Implementing Olmstead decision involves analyzing complex legal concepts, states discover
States implementing community integration under the Americans with Disabilities Act (ADA) and the landmark U.S. Supreme Court decision in Olmstead v. L.C. are closely monitoring cases that interpret complex legal concepts such as "fundamental alteration" of programs and "reasonable pace" of change.
Analysis of recent cases testing these two principles by the Center for Health Services Research and Policy at George Washington University in Washington, DC, indicates that states are faced with trying to understand and comply with a series of balancing tests built into the ADA and Olmstead decision.
Center executive director Sara Rosenbaum tells State Health Watch that the ADA "balances the rights of individuals with disabilities against other institutional interests. And Olmstead does the same kind of balancing."
Olmstead was the high court’s first attempt to deal with the ADA as it applies to qualified persons with disabilities who have been determined to be in medically unnecessary institutional placements.
No definition in the decision
According to Ms. Rosenbaum, court cases to date indicate that there is no fixed definition of the level of effort needed to achieve a "reasonable pace" in implementing community integration. Rather, the concept is seen as related strongly to the context of each case and varying with the circumstances under consideration, the facts of each case, and the courts’ efforts to balance the law’s goal of community integration against the level of public resources available to provide the full range of services necessary to the support of people with disabilities.
Although it didn’t define reasonable pace, the Supreme Court in Olmstead said that a public agency could successfully defend against a claim of discrimination if it could demonstrate that it was making reasonable modifications in its programs and services to achieve community integration. "By implication," Ms. Rosenbaum says, "the very establishment of a reasonable pace standard for measuring when the state is acting in a lawful manner even though all needs are not met immediately amounts to a validation of the concept of waiting periods."
Eight federal courts have addressed reasonable pace issues arising under Olmstead and many of the cases also have involved Medicaid "reasonable promptness" requirements. When confronted with defining what is a reasonable pace, courts have looked for guidance to Olmstead itself and its interpretation of the law, Medicaid law and regulations, and other court decisions that have looked at similar issues.
States should prepare to act
So far, Ms. Rosenbaum says, no particular set of facts is a predictor of how a court will resolve a reasonable pace claim. In half the cases, courts issued preliminary or final decisions in favor of those who were challenging states. It appears that once a state includes a waiver service in its state plan, courts are likely to determine that it must be administered in line with federal law and regulations, including Medicaid’s "reasonable promptness" requirement. Courts generally have rejected defense based on alleged inadequate funding as the cause of delayed community services once a state has instituted a waiver program, especially if the waiver meets Medicaid’s cost neutrality requirement. A cost argument may be successful, however, if a state can show that the needed support would result in a "fundamental alteration" of the program.
It also has been found that if a court employs only a Medicaid analysis in looking at a program design, states are relatively likely to be found in full compliance with the law and courts are more likely to permit long waiting lists. That isn’t as true, however, if a court looks at both Medicaid and the ADA.
Courts have been willing to permit states to maintain long waiting lists for waiver services once state programs have reached the federally approved maximum population limit. And they have been willing to permit long waiting lists when a state can show that requested changes would result in a fundamental alteration of the program.
Be sure funding is available
Ms. Rosenbaum says that as part of their Olmstead planning process, states should carefully look at existing programs to remove any possible discriminatory administration and identify resources for development of new services. If a state outlines a program in its health services plan, it should make every attempt to ensure that the program receives sufficient funding to support the number of individuals described.
As uncertain as "reasonable pace" may be, the concept of "fundamental alteration" is even more difficult because it is intertwined with the legal principle of community integration at the heart of the ADA. Public entities are required to make reasonable modifications to their programs and activities, but not to the extent that the changes represent a fundamental alteration to their program.
Ms. Rosenbaum says that a fundamental alteration changes the basic character of something, and cites the debate over PGA golf pro Casey Martin’s desire to use a cart in tournaments as an example of something that is not a fundamental alteration because use of a cart does not change the basic nature of the game of golf.
She says the point at which a proposed modification becomes a fundamental alteration is critical in understanding the scope and reach of the ADA.
"As state community integration planning efforts proceed in the wake of Olmstead, stakeholders could determine that proposed changes that are fundamental alterations will be candidates for long-term reform and prioritization. Those changes that have the characteristics of reasonable modifications may be more readily accomplished within a relatively short time frame through either formal or informal agency action, depending on the scope of administrative powers granted an agency by a state legislature," Ms. Rosenbaum explains.
Fundamental alteration defense
The Supreme Court’s analysis in Olmstead identified certain parameters to state obligations, according to Ms. Rosenbaum.
The court clarified that a decision to furnish public service at all is a matter of state discretion. It rejected a framework articulated by lower courts and found that in determining the magnitude of a state’s remedial obligation toward any particular member of a protected group, a state can weigh the welfare of the entire group. And the court made clear that despite existence of the fundamental alteration affirmative defense, that defense is not boundless.
Ms. Rosenbaum says the high court "intimated that a state cannot simply raise the defense each time a claimant requests a modification to a program or service, and it appeared to assume that state officials would develop a method to continually identify persons who were capable of living in integrated settings with reasonable modifications, and for whom institutional care is medically unnecessary."
As a result of cases considered to date, Ms. Rosenbaum offers some emerging principles on fundamental alteration:
- Courts are likely to defer to a state’s professional judgment on whether individuals satisfy criteria for community services.
- Courts will scrutinize eligibility criteria for evidence of discrimination in cases in which a state claims that modification of the criteria would amount to a fundamental alteration, or where there has been an actual finding that institutionalization is medically unnecessary.
- Courts generally will not require a state to change essential programmatic features, but will require changes that affect more peripheral aspects of a program.
- Courts generally will not order a state to change a program’s eligibility requirements once the requirements are determined to be indispensable to the character of the program.
- Courts are likely to require a requested change when a state has made previous exceptions to program requirements.
"Taken together," Ms. Rosenbaum says, "the reviewed cases suggest that courts will defer to state discretion, if reasonable and reasonably exercised, regarding the appropriateness of community services for a patient. When the service is not considered appropriate, this effectively ends the reasonable modification/fundamental alteration test, unless a plaintiff can successfully challenge the fairness of a state’s review process.
"Once community placement is found to be appropriate, a court will exercise considerable power in scrutinizing a state’s fundamental alteration defense. A state may be able to claim that a proposed change would affect the integrity or essential features of a program, but its past conduct in administering the program comes into play at this point, as would the reasonableness of criteria that appear to be discriminatory in their exclusion of persons who already have been found to be able to live in the community," she continues.
"Cost alone is not a defense, particularly where the spending is via an entitlement program or where the legislature has shown a tendency to fund institutional care while underfunding community services. A state may be able to defend against a claim that eligibility criteria are discriminatory by presenting evidence that supports the conclusion that the criteria are an essential feature of the program or are there to protect beneficiaries, public safety, or program viability.
"An open question is what this means for state Medicaid programs insofar as they cover services but make distinctions in availability of coverage based on a disability. If the logic of Olmstead is applied to this practice, it may well be that even though such a practice may not be a violation of the Medicaid statute’s comparability or anti-discrimination rules, the distinction may be a violation of the ADA as articulated by the Olmstead majority because it would amount to discrimination based on the type of disability."
[Contact Ms. Rosenbaum at (202) 530-2343.]
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