In a landmark ruling on June 22, 1999, the United States Supreme Court held in Olmstead v. L.C. that the unjustified segregation of persons with disabilities violated Title II of the Americans with Disabilities Act (ADA), which requires public entities to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. The Court held that public entities, such as states, cities, and counties, must provide community-based services to persons with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability-related services from the entity.1 In its 1991 rulemaking implementing Title II of the ADA, the U.S. Department of Justice (DOJ) defined “the most integrated setting appropriate to the needs of qualified individuals with disabilities” as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.”2 The DOJ has also provided additional guidance, characterizing integrated settings as those which “are located in mainstream society; offer access to community activities and opportunities at times, frequencies and with persons of an individual’s choosing; [and] afford individuals choice in their daily life activities.”3
The Olmstead ruling has helped public entities recognize that individuals with disabilities should have choice and self-determination in housing, as well as in the health care and support services they receive. It is important to note that Olmstead covers not only individuals with disabilities who are transitioning out of institutions, but also those who are at serious risk of entering institutions. Quite simply, the Court’s decision recognized that segregating individuals with disabilities in institutional settings deprived them of the opportunity to participate in their communities, interact with individuals who do not have disabilities, and make their own day-to-day choices. Olmstead supports the right of individuals with disabilities to live, work, and receive services in the most integrated setting possible.
The sweeping nature of the Olmstead ruling has resulted in public entities, primarily states, rethinking health care delivery systems that rely on housing individuals with disabilities in institutional, segregated settings, such as hospitals, nursing homes and adult care facilities. Many states are looking to home and community-based services to play a larger role in supporting individuals with disabilities, when appropriate. Many states have begun to assist individuals with disabilities to transition out of institutions and other segregated settings into more integrated settings appropriate to the needs of each individual. Some states are undertaking these efforts as a result of DOJ or private litigation, while others are taking proactive steps to support the integration mandate.
The DOJ, in some cases, has had to go to court to enforce Title II of the ADA. However, it is not uncommon for states to reach a settlement agreement with DOJ, as is the case in New York. Under the New York ADA settlement agreement, the State will provide individuals with serious mental illness residing in certain adult homes the opportunity to live in the most integrated setting appropriate to their needs. More specifically, the agreement will transform the State’s mental health system to ensure that individuals with serious mental illness who reside in 23 large, privately owned adult homes in New York City are provided with the opportunity to receive community-based services and housing that will enable them to live, work, and participate more fully in everyday life. The state will create at least 2,000 units of community-based, scattered-site supportive housing to all eligible people who are unnecessarily segregated in these adult homes and who wish to live in supportive housing. Residents will have access to flexible services to support them as needed and desired. The State will also create additional units as needed to ensure that all eligible residents who want to move to supportive housing have the opportunity to do so.
While the states may be confronted with a lack of affordable, integrated housing options, there are some resources at their disposal. Title II calls for state Medicaid programs to provide the revenue stream that funds community-based services that support individuals with disabilities while transitioning to and living in integrated settings. Additionally, state Housing Finance Agencies (HFAs) can utilize the Low Income Housing Tax Credit program and other programs to create affordable housing for individuals with disabilities.
The states’ primary partner in creating affordable housing is the U.S. Department of Housing and Urban Development (HUD). HUD is committed to providing individuals with disabilities a meaningful choice in housing and the delivery of long-term health care and support services. HUD enforces the Fair Housing Act and is committed to providing individuals with disabilities a meaningful choice in housing and the delivery of long-term health care and support services. HUD’s housing and community development programs play a significant role because they can be used to support affordable and integrated housing opportunities for individuals with disabilities. HUD’s resources include tenant-based housing vouchers, public housing, subsidized/assisted housing developments, and community development block grant funding, among many others. In addition, all recipients of federal financial assistance from HUD have the obligation to administer programs and activities in the most integrated setting appropriate to the needs of individuals with disabilities.
As part of its efforts to support Olmstead’s implementation, HUD is working with housing providers, states, and its federal partners to better align policies and practices in the creation of new housing to meet the needs of individuals with disabilities. As an example, HUD is encouraging public housing agencies to partner with State and local governments to provide additional community-based, integrated housing opportunities for individuals with disabilities transitioning out of, or at serious risk of entering an institution. Further, to assist states and housing providers, in 2009, Congress appropriated funding to HUD’s Housing Choice Voucher program specifically targeted to individuals with disabilities to help them more quickly transition from an institution to the community. HUD is also allowing grantees, in certain cases, to implement preferences to individuals with disabilities who are transitioning out from or are at risk of entering an institution.
HUD continues to fund single site supportive housing that is statutorily permitted to house and provide voluntary supportive services to individuals with disabilities in some or all of the units. Examples include the Housing Opportunities for Persons With AIDS (HOPWA) program, Section 202 housing developments for non-elderly persons with disabilities funded Prior to 1991, certain McKinney-Vento homeless assistance programs, and HUD-VASH vouchers, among others. Some of these programs offer housing settings occupied exclusively by individuals with disabilities, some offer housing opportunities in integrated settings, and some may offer both.
HUD continues to explore how it can fund additional integrated housing units scattered throughout communities. The Frank Melville Supportive Housing Investment Act of 2010 expanded HUD’s Section 811 Supportive Housing for Persons with Disabilities program. Among other reforms, this Act authorized a new Project Rental Assistance program that was first implemented through a demonstration program in FY 2012. Under this program, state housing agencies that have entered into partnerships with state health and human services and Medicaid agencies can apply for Section 811 Project Rental Assistance (PRA) for new or existing affordable housing developments funded by LIHTC, HOME, or other sources of funds. Under the state health care/housing agency partnership, the health care agency must develop a policy for referrals, tenant selection, and service delivery to ensure that this housing is targeted to a population most in need of deeply affordable supportive housing. To learn more about this program, visit: http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/mfh/grants/section811ptl. (Please note that applications are due May 5, 2014, for the FY 2013/2014 Section 811 PRA Notice of Funding Availability)
HUD also encourages housing developers and providers to explore state-specific conditions to assess the different housing options that promote integrated, community-based housing for individuals with disabilities. As states and localities continue to transition individuals from institutions and other segregated settings into communities, HUD stands ready to assist its partners so as to maximize meaningful choice and self-determination for individuals with disabilities. For more information on HUD’s role in accomplishing the goals of Olmstead, visit: http://portal.hud.gov/hudportal/documents/huddoc?id=OlmsteadGuidnc060413.pdf.
References
- Olmstead, 527 U.S. at 607.
- 56 Fed. Reg. 35694 (1992), codified at 28 C.F.R. pt. 35, app. B.
- DOJ Olmstead Statement, http://www.ada.gov/olmstead/q&a_olmstead.htm
