Olmstead Violation in Washington State

Washington State passed a law in 2011 which prohibits youth 21 and under from accessing needed supports in the ICF/ID.  This law is in direct conflict with Olmstead.  When I brought up the issues of choice with our then Department of Social and Health Services Secretary Susan Dreyfus, she responded “parents still have choice, they can send their child to another state if they want these services.”  Choice obviously means something different to her than it does to me and the many, many families who I come into contact with.

Two prolific researchers and authors on the issue of deinstitutionalization have written  “Almost all the studies cited earlier involved people with lower support needs, but individuals with severe disability likely do poorly given little support.  Where independent living had the best outcomes for those with mild/moderate ID, those with severe/profound disability achieved the poorest outcomes when living independently, and did better in supported living arrangements with more support.  {Gardner and Curran, 2005}.  Jones et al. {2001} found that the increase staff support for participation resulted in greater resident participation in activities.  However, the benefits were greater for individual with more severe disability.  So, while regularly undertaking activities independent of staff support is associated with skill development and achievement of personal outcomes for people with lower support needs, it is not for persons with severe disability, who instead require active support from caregivers for successful participation in meaningful activities.”

This is the problem that we will see more and more of as those who are still in the ICF/ID tend to be those with the highest support needs.  Our community service system is already struggling and breaking with the people they currently are attempting to serve.  It is documented not only here but throughout the ID research that the studies have predominantly been done looking only at those with lower support needs.  The outcome results from these studies cannot be applied to experiments that will be done with the population which has higher support needs.  This train wreck needs to stop before more of our loved ones are injured or killed.

Why, when a youth, age 19, is doing so well in the supportive community is our state denying him services and trying to boot him out to a community which cannot support him and keep him safe?  Makes NO sense at all.

OLMSTEAD V. L. C. (98-536) 527 U.S. 581 (1999), No. 98-536 (Supreme Court of The United States June 22, 1999).

Lakin, K. C., & Stancliffe, R. J. (2007). Residential Supports for Persons with Intellectual and Developmental Disabilities. Mental Retardation and Developmental Disabilities Research Reviews, 151-159.

3 comments on “Olmstead Violation in Washington State

  1. saskiadavis says:

    In some larger industries, such as tobacco, there has been a practice of weighing cost against benefit, not worrying about how much pain and suffering is caused unless it’s monetary costs to their companies (litigation defense costs and losses) outweigh profits.

    I wonder if ideologues and some DD care industry providers who insist that state run institutions (ICfs-NFs/ID) should not exist or should not serve youth have a similar mindset, something akin to “Some people (with DD/ID) will have to suffer &/or die in order to achieve this revolution.” This is very close to verbatim from a DSHS official answering a statement by a parent of a resident of a campus-based Washington state institutional home. Her statement had been to the effect that her son, if required to live in an off-campus setting, would be too vulnerable and likely would not survive. Her statement, and the official’s stunning answer were heard by +/- 20 parents/guardians at the group’s meeting.

    The state law prohibiting youth from accessing State-run ICF-NF/ID services was passed by the legislature, but I don’t believe most who voted for it truly understood that in many cases it would mean denying young people with DD the most appropriate services to meet their needs, nor did most understand that the law they were voting for would be in direct conflict with American Disabilities Act (ADA); Olmstead Decision: 1999. (Reaffirming: Olmstead provides for theCLIENT’S
    CHOICE between residential care in an “institution or in a “community” setting.

    Politics being what it is, there were a few “bad apples” who either did understand that they were misleading their legislative colleagues, or they had such complete capacity for personal revision of reality that they thought they were telling the truth. We know that they were well-informed of the needs and illegality of the legislation, but for whatever reason chose to work to set in motion this law which, now, must be challenged in court or it will continue to negatively affect families in desperate need of help for their young loved ones.

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    • thank you very much for your comment – we need to overturn this law and I will be writing to legislators to inform them of how this law is actually hurting rather than helping people.

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    • saskiadavis says:

      On review of what I have written, above, it occurs to me that many may not understand what “ICFs-NFs/ID”are.

      ICFs/ID are intermediate care facilities for people with intellectual disabilities (formerly referred to as mental retardation).

      Nfs/ID are Nursing Facilities for people with intellectual disabilities.

      In Washington and other states some ICFs/ID have been converted or partially converted to NFs/ID in order to be eligible for funds for nursing and in some cases to avoid regulations requiring active treatment. When this happens, a person who was an ICF/ID resident one day can become an NF resident the next day. Same person, same house, different designation.

      NFs/ID differ from regular Nursing Facilities in that they are regulated and audited as DD/ID specialty nursing homes.

      It is important that we all begin remembering ICF/NFs and their residents in order to assure that their rights are assured and that when protective legislation is written, they are not overlooked in the legislative language. This has happened, already. There is a national bill to require notification and opt-out protection for parents/guardians representing ICF residents when class action suits are brought against their residential institutions. The language should have included NFs and their residents, but NFs were not on the radar of the original bill’s writers and primary sponsor at the time of it’s writing. Now that the sponsor has retired, hopefully, the bill’s language will be amended to include NF residents.

      My knowledge is about Washington State. Here, we have 4 state-run institutions whose residents and applicants qualify under Olmstead. Two of them have both ICF/ID and NF/ID; one is soley designated NF and the fourth is designated soley as an ICF/ID. All are designated RHCs. (residential habilitation centers).

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