By Nicole Evans

The decision of Olmstead v. L.C. was a monumental moment for the disabled community. It held that under the Americans with Disabilities Act (ADA), unjustified isolation of a person with a disability is discrimination on the basis of the person’s disability.[1] Olmstead also held that the states need to provide treatment for people with intellectual and developmental disabilities in the least restrictive placement possible.[2] Unjustified isolation deprives people with intellectual and developmental disabilities of community-based living that drastically improves their quality of life.[3] It allows them to have more educational, physical, and social activities, and along with the agency, to make important decisions about their lives.[4]

In 2008, the Department of Justice concluded that the five training centers in Virginia violated the ADA and Olmstead by unjustifiably isolating people with disabilities.[5] The training centers were a group of hospital-like residential facilities where the residents spent most of their time interacting with other people with disabilities.[6] Virginia was already looking to lessen its population of residents in the training center, so it entered into a settlement agreement with the Department of Justice.[7] In this agreement, Virginia agreed to provide more waivers for services in the community, case management, crisis teams, and day services to people with disabilities.[8]

Negotiations between the parties concluded in 2012.[9] Yet, ten years later, Virginia has still not reached compliance with its obligations under the settlement agreement.[10] As part of the settlement agreement, the Virginia Department of Behavioral Health and Developmental Services has a series of crisis stabilization teams that work in the community to prevent hospitalization of people with intellectual and developmental disabilities.[11] Between January and March of 2021, the number of assessments done in the community have gone down, getting further from the goals of the settlement agreement.[12] The agreement requires that 85% of individuals in need of behavioral services be referred to a behaviorist within 30 days, but the monthly average only recently reached 60%.[13]

Virginia has made massive improvements in moving people with disabilities into more integrated community settings, but in some regions, the standard has not been met.[14] In these regions, 50% or fewer of individuals with intellectual and developmental disabilities are served in community settings.[15]

One condition that Virginia has been successful in fulfilling is its implementation of waiver slots, approving 2,409 more waivers in the 10 year period than what was required under the settlement agreement.[16] These waivers allow a person with a disability to receive community services through state funding. It has also successfully reduced the waitlist for waivers from 1,100 individuals a year to 235, as well as implemented permanent Developmental Disabilities Regulations.[17] These regulations have only just been approved on March 31, 2021, and their effects have not yet been researched.[18]

Virginians with intellectual and developmental disabilities deserve the same opportunities to live and act in their communities. While it was expected that the shift from institutionalization to community services would take some time, the Department of Justice expected compliance in 10 years. The Commonwealth of Virginia needs to step up and address the needs of its citizens.

 

[1] Olmstead v. L.C. by Zimring, 527 U.S. 581, 597 (1999).

[2] Id, at 607.

[3] Office of Disease Prevention and Health Promotion, Reduce the Proportion of People with Intellectual and Developmental disabilities who Live in Institutional Settings with 7 or More People- DH-03, healthy people 2030, https://health.gov/healthypeople/objectives-and-data/browse-objectives/people-disabilities/reduce-proportion-people-intellectual-and-developmental-disabilities-who-live-institutional-settings-7-or-more-people-dh-03 (last visited Oct. 26, 2022).

[4] Id.

[5] Order Approving Consent Decree at 5, United States v. Virginia, No. 3:12cv59-JAG (E.D. Va. Aug. 23, 2012).

[6] Id. at 3

[7] Id. at 5.

[8] Id. at 6-7.

[9] Id. at 40.

[10] Donald J. Fletcher, Report of the Independent Reviewer on Compliance with the Settlement Agreement United States v. Virginia 3 (June 13, 2022).

[11] Id. at 25.

[12] Id.

[13] Id. at 28.

[14] Id. at 39.

[15] Id.

[16] Id. at 44.

[17] Id. at 25, 45.

[18] Id. at 25.