By Bridget O’Brien Swartz, CELA

In 1999, the Supreme Court’s Olmstead decision found that delivering services in a segregated setting when such services could otherwise be provided in a less restrictive, more integrated setting, violated the Americans with Disabilities Act. As a result, states were directed to provide services within the mainstream community to the greatest extent possible. Olmstead has been compared to Brown v. Board of Education in its implications for the civil rights of those with special needs.

But a report issued last summer by Senator Tom Harkin indicates that Olmstead’s promise remains largely unfulfilled. While Medicaid spending on nursing homes and other institutions dropped by 30 percent between 1995 and 2010, the number of people under age 65 living in nursing homes has actually increased. Meanwhile, waiting lists for community-based services are clogged with hundreds of thousands of applicants. This is the case despite abundant data indicating that home and community-based services (HCBS) are less costly than institutional care.

Given strained budgets throughout the country, some community programs have been cut. In addition, certain states, concerned about rising medical costs and a growing Medicaid-eligible population, have been unwilling to tap federal programs-such as the Community First Choice Option-designed to seed new HCBS initiatives.

Evidence exists that greater attention has often been given to moving individuals to “less institutional,” rather than “more integrated,” settings. In addition, more effort has been focused on serving those already living within the community than on moving people out of institutions.

These choices, Harkin suggests, have been shaped by a social welfare/budgetary model that fails to consider the question of civil rights. He believes, in fact, that the ADA should be amended to make it clear that Medicaid-eligible individuals are entitled under federal law to receive long-term services and supports (LTSS) in an integrated setting.

He calls for the federal government to establish clear guidelines, targets and reporting requirements as a spur to progress. What, for instance, constitutes “home and community-based”? Once goals are clearly defined, reasonable schedules and measurable objectives should be established.

This is an inspiring clarion cry. The Senator, consistent with his career-long objectives, is exhorting us to have high expectations of individuals with disabilities and to facilitate their meeting such expectations. He’s shifting the discussion to embrace the larger question of civil rights. Given that segregated services are a demonstrably more expensive choice, what are we waiting for?!