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An Open Secret: The De Facto Forced Institutionalization of Persons with Disabilities

Posted on Wednesday 5/4/2016

On Monday, the U.S. Department of Justice issued a findings letter announcing that South Dakota routinely violates the civil rights of persons with disabilities by unnecessarily confining them to nursing homes.  South Dakota’s violations are flagrant, but hardly surprising.  Across the country, states violate the Americans with Disabilities Act (ADA) as a matter of routine policy by operating public long-term care financing schemes that effectively force individuals with disabilities into institutions when their needs could be met at equal or lower cost in the community.  

Since the U.S. Supreme Court’s 1999 decision in Olmstead v. Zimring, it has been settled law that states cannot give preference to nursing home placement over community-based care.  Specifically, Olmstead established that the ADA prohibits states from requiring persons with disabilities to receive care in institutions regardless of their needs or desires.   What this means is that, at a minimum, a state cannot lawfully refuse to pay for long-term care services that meet a person’s needs in the community if the state would pay as much for the same services if provided in a nursing home or other institution.  

Although Olmstead’s requirements are clear, they are often treated as aspirational goals rather than as binding, legal requirements.  Many states continue to rely heavily on nursing homes to meet their citizen’s long-term care needs.  States have created programs that fund long-term care services in less restrictive settings, but demand for these programs far outstrips the supply.  The result is that many people with disabilities are forced to choose between getting the care they need, and residing in the community.  Ironically, such violations not only occur at the expense of the basic liberty and dignity of those the state is ostensibly helping, but also at the expense of the taxpayer:  in many cases, care could be provided more affordably in a non-institutional setting.  

Providing quality, reliable community-based services is a challenge, often especially so in rural communities such as those in South Dakota.  But, as the Justice Department’s letter reminds us, doing so is not simply good policy, it is the law.

Nina A. Kohn

Associate Dean for Research

David M. Levy L’48 Professor of Law