Time to Take on the Waiting Lists by Talley Wells

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An older mother began to show signs of dementia. She had an adult son with an intellectual disability. He lived with her.  They depended on each other. As Mom’s dementia grew more pronounced, the family asked that her son be given a Medicaid Waiver.  The state said no. The situation grew worse. The Mom mistakenly gave the son some of her medications.  Meals were missed.  The situation grew dangerous.   The state continued to delay Medicaid Waiver services. Finally, after the intervention of a legislator, threats from an attorney, and the persistence of a family member, the son got a Waiver. This was recent — almost fifteen years after Olmstead!

The continuation of endless waiting lists, particularly for individuals who are at risk of institutionalization violates Olmstead. In the Olmstead decision, a plurality of the Supreme Court suggested that states needed effective working plans with reasonably paced moving waiting lists to meet their obligations under the Americans with Disabilities Act. Fifteen years have now passed. Any reasonably paced moving waiting list should have ended. States should have created supports in the community to serve every individual who is otherwise entitled to services in an institution.

Olmstead does not just apply to people who are in institutions.  It also applies to people who are at risk of entering institutions. The Tenth Circuit held that Olmstead protections would be meaningless if individuals “were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.”   Fisher v. Oklahoma Health Care Auth., 355 F.3d 1175, 1182 (10th Cir. 2003). In Georgia, over 7000 people are on the state’s developmental disability waiting list. Many of these men and women have the right to receive institutional supports and services through Medicaid if they choose to enter an institution. Most don’t want to be in institutions. These men and women, particularly those at significant risk of institutionalization, have Olmstead rights. This is also true in every other state in the country.

It is time to take on and litigate the waiting lists. The promise of Olmstead cannot wait any longer.

To learn more about Olmstead v. LC, Olmstead Rights, and to read stories of people with disabilities whose lives have been transformed due to Olmstead and the ADA, please visit http://www.OlmsteadRights.org/

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