Olmstead and Choice – Outline

The Supreme Court, in its Olmstead ruling, recognized the need for a range of services which respond to the varied and unique needs of the entire disability community: 

(1) Unjustified institutionalization is discrimination based on disability. 119 S. Ct. 2176, 2185 (1999).

(2) Community placement is required when the state’s treatment professionals determine community placement is appropriate, the individual, or his/her guardian, does not oppose transfer from institutional care, and placement can be reasonably accommodated by the State taking into account the resources available, and the needs of others with mental disabilities. 119 S. Ct. at 2181.

(3) A majority of Justices in Olmstead recognized an ongoing role for publicly and privately-operated institutions: "We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings...Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it." 119 S. Ct. at 2187.

(4) A plurality of Justices noted: "As already observed [by the majority], the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk... ‘Each disabled person is entitled to treatment in the most integrated setting possible for that person - recognizing on a case-by-case basis, that setting may be an institution [quoting VOR’s Amici Curiae brief]." 119 S. Ct. at 2189.

(5) Justice Kennedy noted in his concurring opinion, "It would be unreasonable, it would be a tragic event, then, were the Americans with Disabilities Act of 1990 (ADA) to be interpreted so that states had some incentive, for fear of litigation to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision." 119 S. Ct. at 2191.

People with mental retardation, especially individuals with severe and profound mental retardation, have vastly different support requirements than cognitively-able individuals with physical disabilities. Choice of residential options is VOR’s guiding principle. VOR is the only national organization which supports a full continuum of care options available to people with mental retardation, including own-home, community-based supports, and Intermediate Care Facilities for the Mentally Retarded (ICFs/MR).