CMS enforcing Olmstead, ADA/By Steven Gold
The following is a comment by independent living advocate Steve Gold
Ten years after the Supreme Court issued the Olmstead decision holding that unnecessary institutionalization violated the Americans with Disabilities Act (ADA) and nine years
after by Centers for Medicare & Medicaid Services (CMS) wrote its ADA/Olmstead "State Medicaid Director" letters pursuant to this decision, CMS finally put some bite behind Olmstead.
On Oct. 30, CMS wrote the Missouri Department of Social Services that Missouri's MA home health services, which required people to be "homebound," was "not in compliance with Federal requirements."
CMS pointed out that the Supreme Court in Olmstead, "reinforced the ADA by affirming the right of individuals with disabilities to live in their communities."
CMS provided Missouri 30 days to change its policy or CMS could "proceed with compliance proceedings" which could "result in withholding Federal funding."
Just think, CMS took a step that reflects that civil rights of people with disabilities are real. Sure it has taken 10 years. But maybe, just maybe, this CMS letter signals a new day.
While confronting the "homebound" issue is obviously very important, the significance of what CMS did goes far beyond this one issue.
Does your state have a waiting list for people in nursing homes to receive sufficient Medicaid services in the community so they will not need to be in an institution? If yes, then how does your waiting list "affirm the right of individuals with disabilities to live in their communities"? Waiting lists ensure just the opposite.
Does your state offer people who are at imminent risk of going into a nursing home meaningful services BEFORE they go into the institution? If no, then the failure to provide real services ensures that people will have to go into nursing homes and will not be able to live in their communities.
Wouldn't it be interesting if CMS really enforced Olmstead and told states that 10 years waiting for full implementation of Olmstead is far too long? Wouldn't it be a great CMS step to tell states that 10 years is more than enough time.
Many states continue to dither because they do not believe CMS will do anything. Despite the Supreme Court's decision, States continue to genuflect to the nursing home industry and perpetuate unnecessary institutionalization in violation of Olmstead, in large part because CMS has shown no will to enforce the ADA. Will CMS take on these states?
It's not too far-fetched to believe CMS might. After all, CMS would not permit states to deny Medicaid services based on race, religion or gender in violation of other federal civil rights statutes. Maybe CMS has begun to recognize disability and the ADA as a real federal civil rights issue.
And while we're thinking about federal enforcement of the ADA and Olmstead, what about the U.S. Department of Justice (DOJ)? Without affirmative, aggressive DOJ enforcement, schools would have remained racially segregated, voting provisions would have continued to be racially tinged, and women sports (Title IX) would have never been implemented.
Yes, with race and gender, the U.S. Department of Justice showed the country and many States that federal enforcement was real. It's truly thanks to DOJ that these abuses were stopped.
What about DOJ showing States - 19 years after Congress enacted the ADA finding segregation (in 1990) existed and 10 years after the Supreme Court ruled in Olmstead - that DOJ will affirmatively and aggressively enforce the ADA and will end the unnecessary institutionalization of people with disabilities?
Hmmm.
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