[Congressional Record Volume 155, Number 95 (Tuesday, June 23, 2009)]
[Senate]
[Pages S6955-S6956]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             HONORING THE SUPREME COURT'S OLMSTEAD DECISION

  Mr. BEGICH. Mr. President, I ask unanimous consent the Senate proceed 
to the immediate consideration of S. Res. 201, submitted earlier today.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The bill clerk read as follows:

       A resolution (S. Res. 201) recognizing and honoring the 
     tenth anniversary of the United States Supreme Court decision 
     in Olmstead v. L.C., 527 U.S. 581 (1999).

  There being no objection, the Senate proceeded to consider the 
resolution.
  Mr. HARKIN. Mr. President, this week marks the 10th anniversary of 
the landmark decision of the U.S. Supreme Court in Olmstead v. L.C.
  In the Olmstead case, two Georgia women brought suit on the grounds 
that their needless confinement in a mental institution violated the 
Americans with Disabilities Act--ADA. Even though their treatment 
professionals concluded that the two could receive the services they 
required in a community-based setting, the women remained 
institutionalized.
  The plaintiffs' argument--that their institutionalization violated 
the ADA--was consistent with our findings in the ADA. There we said:

       Historically, society has tended to isolate and segregate 
     individuals with disabilities, and, despite some 
     improvements, such forms of discrimination against 
     individuals with disabilities continue to be a serious and 
     pervasive social problem.

  We also said:

       Discrimination against individuals with disabilities 
     persists in such critical areas as .  .  . 
     institutionalization.

  This is precisely what had happened to the two women in the Olmstead 
case, Lois Curtis and Elaine Wilson. Lois had been confined in an 
institution since the age of 14. Elaine had been living in a locked 
ward in a psychiatric hospital for more than a year.
  Elaine told the district court judge in the case that, confined to 
the institution, she felt like she was sitting in a little box with no 
way out. Day after day, she endured the same routine, the same four 
walls. This is exactly the kind of exclusion and isolation that the ADA 
was designed to end. So Elaine and Lois brought suit under the ADA.
  The Supreme Court agreed with them. The Court ruled that needless 
segregation is discrimination on two grounds. First, the Court said 
that needless segregation perpetuates the unwarranted assumption that 
individuals who are so isolated are incapable or unworthy of 
participating in community life. And, second, the Court said that 
confinement in an institution severely diminishes the everyday life 
activities of individuals, including family relations, social contacts, 
work options, economic independence, educational achievement, and 
cultural enrichment.
  The Supreme Court said that, under title II of the ADA, States are 
required to provide community-based services and supports for 
individuals with disabilities who want to receive their necessary 
services and supports in noninstitutional settings, where such 
placement is appropriate, and where such community-based placement can 
be reasonably accommodated.
  I mentioned that Lois Curtis and Elaine Wilson were institutionalized 
for long durations. How did they fare afterwards?
  At a hearing in the case, they both spoke of the little things that 
had changed. They could make new friends and attend family 
celebrations. They could make Kool-Aid whenever they pleased. They 
could go outside and take walks.
  We all take these kinds of things for granted. But these kinds of 
ordinary activities are not ordinary if you are in an institution and 
someone else dictates every aspect of your life.
  Since the Olmstead decision 10 years ago this week, we have made 
progress in giving individuals with disabilities the choice to receive 
their necessary services and supports in home- and community-based 
settings, rather than only in an institution.
  Many of the provisions in my Money Follows the Person legislation 
were included in the Deficit Reduction Act of 2005. The goal of Money 
Follows the Person is that Medicaid money would follow the person with 
a disability from an institution into the community.
  In 2007, the Centers for Medicare & Medicaid Services awarded more 
than $1.4 billion in Money Follows the Person grants to States, making 
it possible to transition 37,731 individuals out of institutional 
settings over the 5-year demonstration period. Thirty States and the 
District of Columbia were awarded grants to reduce their reliance on 
institutional care, while developing community-based long-term care 
opportunities--thus enabling people with disabilities to fully 
participate in their communities.
  But our work is not nearly done. Despite our efforts, the 
institutional bias remains for low-income individuals with significant 
disabilities. States still spend about 60 percent of their Medicaid 
long-term care dollars on institutional services, with only about 40 
percent going to home- and community-based services.
  Although almost every State has chosen to provide some services under 
home- and community-based Medicaid waivers, to get these services 
individuals with disabilities must navigate a maze of programs where 
there are caps for costs, caps for the number of people served, and 
limits on the specific disabilities that are covered. In many States, 
there are also significant waiting lists for these basic services.
  Some States have adopted the optional Medicaid benefit of providing 
personal care services under their Medicaid Program. But this is only 
30 States, not everywhere. Services provided in an institutional 
setting still represent the only guaranteed benefit.
  So while more than 2.7 million people in this country are already 
receiving home- and community-based services at a cost of more than $30 
billion each year, there are an estimated 600,000 individuals with 
significant disabilities on Medicaid who do not have the same choices 
that were promised by the

[[Page S6956]]

Olmstead decision. Their only choice is to live in an institution or to 
try to get by with the help of family and friends, often at the expense 
of their health.
  To fulfill the promise of Olmstead, Congress must pass the Community 
Choice Act. This legislation, which I have introduced and continue to 
champion, would require Medicaid to provide individuals with 
significant disabilities the choice of receiving community-based 
services and supports, rather than receiving care in an institution. 
These services and supports can include assistance with activities of 
daily living, such as eating, toileting, grooming, dressing, and 
bathing, as well as other health-related tasks.
  We know that, over the long term, providing home- and community-based 
services is likely to be less expensive than providing those same 
services in institutions, especially in the case of adults with 
physical disabilities.
  In 2007, 69 percent of Medicaid long-term care spending for older 
people and adults with physical disabilities went for institutional 
services. Only six States spent 50 percent or more of their Medicaid 
long-term care dollars on home- and community-based services for older 
people and adults with physical disabilities, while half of the States 
spent less than 25 percent. This disparity continues even though, on 
average, it is estimated that Medicaid dollars could support nearly 
three older people and adults with physical disabilities in home- and 
community-based services for every person in a nursing home.
  The majority of individuals who use Medicaid long-term services and 
supports prefer to live in the community, rather than in institutional 
settings. Olmstead says they should have that choice.
  I think of my nephew Kelly, who became a paraplegic after an accident 
while serving in U.S. Navy. The Veterans' Administration pays for his 
personal care services. This allows Kelly to get up in the morning, go 
to work, operate his own small business, pay taxes, and be a fully 
contributing member of our economy and society.
  The costs of the Community Choice Act would be mostly offset by the 
benefits of having people with disabilities who are employed, paying 
taxes, and contributing to the economy.
  With appropriate community services and supports, we can fulfill the 
promise of the Olmstead decision, and we can make good on the great 
goals of the ADA--equal opportunity, full participation, independent 
living, and economic self-sufficiency for all people with disabilities.
  Mr. BEGICH. I ask unanimous consent the resolution be agreed to, the 
preamble be agreed to, the motions to reconsider be laid on the table, 
with no intervening action or debate, and any statements be printed in 
the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (S. Res. 201) was agreed to.
  The preamble was agreed to.
  The resolution, with its preamble, reads as follows:

                              S. Res. 201

       Whereas in the Americans with Disabilities Act of 1990 (42 
     U.S.C. 12101 et seq.) (referred to in this preamble as the 
     ``ADA''), Congress found that the isolation and segregation 
     of individuals with disabilities is a serious and pervasive 
     form of discrimination;
       Whereas the ADA provides the guarantees of equality of 
     opportunity, economic self-sufficiency, full participation, 
     and independent living for individuals with disabilities;
       Whereas on June 22, 1999, the United States Supreme Court 
     in Olmstead v. L.C., 527 U.S. 581 (1999), held that under the 
     ADA, States must offer qualified individuals with 
     disabilities the choice to receive their long-term services 
     and support in a community-based setting;
       Whereas the Supreme Court further recognized in Olmstead v. 
     L.C. that ``institutional placement of persons who can handle 
     and benefit from community settings perpetuates unwarranted 
     assumptions that persons so isolated are incapable or 
     unworthy of participating in community life'' and that 
     ``confinement in an institution severely diminishes the 
     everyday life activities of individuals, including family 
     relations, social contacts, work options, economic 
     independence, educational advancement, and cultural 
     enrichment.'';
       Whereas June 22, 2009, marks the tenth anniversary of the 
     Olmstead v. L.C. decision;
       Whereas, as a result of the Supreme Court decision in 
     Olmstead v. L.C., many individuals with disabilities have 
     been able to live in home and community-based settings, 
     rather than institutional settings, and to become productive 
     members of the community;
       Whereas despite this success, community-based services and 
     supports remain unavailable for many individuals with 
     significant disabilities;
       Whereas eligible families of children with disabilities, 
     working-age adults with disabilities, and older individuals 
     with disabilities should be able to make a choice between 
     entering an institution or receiving long-term services and 
     supports in the most integrated setting appropriate to the 
     individual's needs; and
       Whereas families of children with disabilities, working-age 
     adults with disabilities, and older individuals with 
     disabilities should retain the greatest possible control over 
     the services received and, therefore, their own lives and 
     futures, including quality services that maximize 
     independence in the home and community: Now, therefore, be it
       Resolved, That the Senate--
       (1) recognizes and honors the tenth anniversary of the 
     Supreme Court decision in Olmstead v. L.C.;
       (2) salutes all people whose efforts have contributed to 
     the expansion of home and community-based long-term services 
     and supports for individuals with disabilities; and
       (3) encourages all people of the United States to recognize 
     the importance of ensuring that home and community-based 
     services are equally available to all qualified individuals 
     with significant disabilities who choose to remain in their 
     home and community.

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