On June 22, 1999, the U.S. Supreme Court issued its ruling in Olmstead et al. v L.C. et al. (527 U.S. 581). The case was brought on behalf of individuals with dual intellectual and psychiatric diagnoses, who, professionals agreed, could be effectively supported in community settings if such settings were available to them. The case centered on the description in the Americans With Disabilities Act (ADA; 1990) of the segregation of individuals with disabilities as a serious and pervasive form of discrimination (42 U.S.C. 12101 (a)(2)). Title II of the ADA prohibited such discrimination, including that a person with a disability could not “by reason of such disability” be excluded from the benefits of services, programs, or activities of a public entity (42 U.S.C. 12134(a)). In writing the regulations for Title II, the U.S. Department of Justice (DOJ) specified that, “A public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities” (28 C.F.R. 35.130 (d)).
After the 11th Circuit Court ruled that, in effect, the DOJ's regulation fairly defined the intent of Congress and that Georgia and its commissioner of human resources (i.e., Olmstead) had violated the ADA, Georgia appealed to the Supreme Court. In the Supreme Court's opinion of June 22, 1999, the majority concluded that Title II of the ADA required states to provide persons with disabilities with community services rather than institutional services when treatment professionals agreed that a community services would be appropriate, the individual did not object to a community placement, and the community services could be reasonably accommodated within the resources of the state for such services.
Following the ruling, the secretary of the U.S. Department of Health and Human Services (DHHS) wrote to each governor that
Our country's progress…reflects a shared belief that no person should have to live in a nursing home or other institutional if he or she can live in the community. The recent Supreme Court ruling in Olmstead v L.C. affirms this shared value by finding unnecessary institutionalization of persons with disabilities as discrimination under the Americans with Disabilities Act.
On the same day, the Health Care Financing Administration (now Centers for Medicare and Medicaid Services) and the DHHS Office or Civil Rights (OCR) wrote to each state Medicaid director, indicating that OCR would evaluate state efforts to comply with the ADA and the Olmstead decision. Clearly, it seemed that the federal government was committed to ensuring that the Supreme Court's decision in Olmstead would make a difference to people with disabilities. As the United States celebrates the 10th anniversary of the Olmstead decision, it seems timely to consider whether there has been any notable association between the Olmstead decision and rates of institutionalization of persons with intellectual and developmental disabilities.
To examine the association between Olmstead and institutionalized persons with intellectual and developmental disabilities, we compared statistics on residents of public, private, and all institutions at three equidistant points in time. Institutions were defined as places having 16 or more residents. Specifically, we compared institutional population statistics from June 30, 1999 (a week after the Olmstead decision was issued); June 30, 2008 (9 years after Olmstead); and June 30, 1990 (9 years before Olmstead).
Figure 1 presents the changes in institutional populations of the United States from June 30, 1990, 1999, and 2008. The figure shows that between June 30, 1990, and June 30, 1999, public institution populations decreased by about 30,300 residents, or 38.2%. Private institution residents decreased by about 13,700 persons, or about 28.6%. These numerical and rate decreases were actually greater than those that followed the Supreme Court decision in Olmstead. Between June 30, 1999, and June 30, 2008, public institution populations decreased by about 14,100 people, or 28.6%, and private institution populations decreased by about 10,400 people, or 30.5%. Although there was modestly increased rate of private institution depopulation following Olmstead, among public and private institutions combined, the rates of depopulation were slightly lower after than before (36.9% and 29.4%, respectively).
In general, the slowing rate of institutional depopulation after the Olmstead decision occurred because of the slowing rate within public institutions. More specifically, it was driven by low rates of deinstitutionalization in relatively few states. Figure 2 compares the rates of public institutional depopulation of the 10 states that were slowest in depopulating their public institutions between 1990 and 2008 with the 41 other states (including the District of Columbia). Figure 2 shows that in 1990 these 10 slowest states had about one third (33.7%) of the total public institution residents in the United States. At the time of the Olmstead decision, these 10 states had about 42.9% of all public institution residents, and by June 2008, they had a substantial majority (52.3%). Since 1999, these 10 states decreased their total public institution populations by about 14.7% compared with 41.6% in the other states. Another contributing factor to slower depopulation of public institutions prior to Olmstead was the pre-Olmstead elimination all public institutions in 7 states. These states were unable to contribute to post-Olmstead public institution depopulation despite their obvious commitment to it.
Table 1 shows for each individual state the number of people in public, private, and all institutions for persons with intellectual and developmental disabilities at the time of the Olmstead decision in June 1999 and in June 2008. The table also shows the percentage change in those populations during that period. As the table shows, every state with public institution residents at the time of the Olmstead decision further reduced those populations (by 8% to 100%) in the years that followed.
One cannot conclude that Olmstead made no difference based on the fact that institution depopulation occurred at a faster pace prior to Olmstead; nor can one conclude that Olmstead was a significant factor in 29.4% decrease in institution populations following the Supreme Court's decision. These data cannot establish the likelihood of litigation, federal enforcement of Olmstead, or the outcome of states' ”fundamental alternation defense„ in the face of efforts to achieve compliance with the Olmstead ruling. What does seem evident is that the effects of Olmstead in the future, if any, will depend on the internal or external motivation of a relatively small number of states to operate in more consistent compliance with it.
(Sources: Americans With Disabilities Act of 1990, 42 U.S.C. §12101 et seq.; Olmstead v. L.C., 527 U.S. 581, 138 F.3d 893 ; Research and Training Center on Community Living . Residential services for persons with developmental disabilities: Status and trends through 2008. Minneapolis: University of Minnesota.)
Edited by K. Charlie Lakin and David Braddock