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Home and Community-Based PAS > Reports > Introduction to Olmstead Lawsuits and Olmstead Plans

Olmstead and Olmstead-related lawsuits (Table 2)

The Olmstead judgment raises many complicated legal issues and questions that are not discussed here¹³.

However, two key legal concepts (mentioned in the lawsuits in the table) are:

• ‘Fundamental alteration’ and ‘reasonable modification’. The Olmstead decision helped clarify that the ADA (Title II) requires any public body to administer programs to provide services in the most integrated setting appropriate to the needs of the (qualified) individual. In complying with this, public bodies are required to make ‘reasonable modifications’ to their programs (e.g., Medicaid) but they are not required to make any changes that would be a ‘fundamental alteration’ of their program. Lawsuits regarding whether the state is making enough effort (including financial and administrative commitment) to shift towards community integration of people with disabilities therefore often include arguments and interpretations of these legal concepts¹⁸.
• ‘Reasonable promptness’. This concept most often arises in lawsuits where complaints are regarding waiting lists for Medicaid services. This is because §1902(a)(8) of the Social Security Act requires states to promptly determine the eligibility of people who apply for services. Moreover, courts have ruled that this also bars a state from putting people on waiting lists for services¹⁶. However this concept can have complicated implications when discussed in relation to the concept (under the ADA) of ‘reasonable modification’ and ‘fundamental alteration’.

Two main types of cases have been included in the table. These are categorized as Olmstead and Olmstead-Related cases¹⁴. No cases that were decided before the introduction of the ADA in 1990 have been included in the table, although there were some cases that raised Olmstead-type (discrimination) issues in the 1970 and 1980s¹⁵.

The content of the table is primarily taken from secondary sources. The secondary sources are typically reports or articles from periodicals that describe and/or analyze lawsuits dealing with Medicaid law and Americans with Disabilities Act (ADA).

While this method avoids duplication of work previously done and aims to collate this information in an accessible way, there are limitations to this method. In particular, this approach rests on the comprehensiveness and accuracy of secondary sources concerning Olmstead type litigation. Also, in instances where details about lawsuits are repeated in several sources, some of the information about those may not be congruent (for example, date lawsuit filed). Therefore, a limited amount of (web-based) primary research has been used to clarify information found in the literature. Where specific data has remained unclear, it is indicated on the table (n/a).

The primary source for the data in this table is a cumulative, periodic report published by the Health Services Research Institute (HSRI)¹⁶. The report compiles information about lawsuits regarding Medicaid services for people with developmental and other disabilities. The report categorizes lawsuits into 3 main categories, these are; access to Medicaid HCBS, community placement of institutionalized persons and limitations on Medicaid home and community benefits. It does not analyze the legal implications of the lawsuits or the body of cases that they are creating. Lawsuits mentioned in this publication were added to a database and then information supplementing this or on data on other lawsuits mentioned in the other sources was added to the table.

Another useful summary of cases is a docket of cases (published by the National Association of Protection and Advocacy Services)¹⁷. This categorizes cases according to 5 groups of people, those living in a psychiatric facility, in a state ICF/MR facility or in a nursing home and those people on waiting lists for community services or people receiving an inadequate amount of support in the community. Other key sources that provide legal analysis of interpretations of the Olmstead decision on services for people with disabilities are publications from the Center for Health Care Strategies (CHCS)¹⁸, and some journal articles¹⁹. Two reports on statewide action following Olmstead have also provided contextual background on the impact of Olmstead on each state as well as information on the state activity that lead to lawsuits being brought and the consequences on states of this litigation^9,11.