Below is an alert from our friend, Steve Gold. As we in the disability community see our basic civil rights hanging by a thread in the courts, with Congress, in our state legislatures and government, and with the federal system, we need to remember past victories like the Olmstead decision and the Americans with Disabilities Act. Were they simply false rhetoric and meaningless laws and legal decisions? Please read Steve's article and respond accordingly.

Nearly six years ago, the Supreme Court issued its Olmstead decision. As you remember, this decision was based on the ADA's mandate that "A public entity shall administer services, program, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities."

The Court recognized that Congress had found that "unjustified institutional isolation of persons with disabilities is a form of discrimination." The Court understood that a "State's responsibility, once it provides community-based [services] is not boundless." But....

What the Court said about an "effectively working plan" is very critical to persons in nursing homes who have stated they want to reside in the community and who could reside in the community with appropriate services. Namely, the Supreme Court stated "if the State were to demonstrate that it had a COMPREHENSIVE, EFFECTIVELY WORKING PLAN for placing qualified persons [in nursing homes] in less restrictive settings, and a WAITING LIST that MOVED AT A REASONABLE PACE not controlled by the State's endeavors to keep its institutions fully population," then the State could properly use the "reasonable modification"(i.e., not boundless) defense. The Court recognized that a State could ask "a person to wait a SHORT TIME until a community bed is available."

We're now six years down the road.

1. Most States do NOT have an "Olmstead Plan" at all, let alone a Plan that is "effectively working." A Plan is something in writing that you could read which states how many people will move to the community each year.
2. Without a written Plan, there is nothing to be "effectively working." Most States believe they can have some vague, undefined, unwritten "idea" or "policy", for which no one can hold them accountable.
3. Remember, an effectively working plan has waiting lists that "move at a reasonable pace" so that the discrimination is only for a "short time." Without a specific written plan, there is no pace, no movement, no accountability. Only continuing discrimination.
4. In virtually no State can a person ask "when will I be moved into the community from the institution?" "How much longer do I need to be unnecessarily institutionalized?" "When will discrimination stop?"

The disability community has been too nice too long. Many of you have for years talked and talked and talked to your State officials about writing an Olmstead Plan, about "Money Follows the Person," about implementing the Minimum Data Set question Q1a.

Your State officials have successfully talked you into total non-action and submission. The discrimination continues and you keep talking.

WHAT SHOULD DISABILITY ADVOCATES DO?

1. Without a written, effectively working Olmstead Plan specifically stating how many persons will move from nursing homes each year and how the money will be allocated, disability advocates should bring individual lawsuits on behalf of persons who are being discriminated against under the ADA because they are "unnecessarily institutionalized." Without an Olmstead Plan, your State has no ADA defense!
2. Ask your P&A attorneys, law school clinics, legal services attorneys, the private bar for representation to bring INDIVIDUAL lawsuits to implement the ADA.
3. Remind your local newspapers that providing services in the community is much cheaper then services in the community. Let's end discrimination, follow the ADA, implement the Olmstead mandates, and save money at the same time.
4. The time for excuses is over. Remember, "Power concedes nothing without a struggle." The ball is in your court.

Steve Gold, The Disability Odyssey continues. Back issues of other Information Bulletins are available online at http://www.stevegoldada.com with a searchable Archive at this site divided into different subjects. To contact Steve Gold directly, write to stevegoldada@cs.com