Olmstead Update No: 2 
Subject: Questions and 
Answers Date: July 25, 
2000  
Dear State Medicaid Director:  
In our January 14, 2000 letter to you we conveyed our initial approach to compliance with the 
decision in Olmstead v. L.C., 119 S.Ct. 2176 (1999) and outlined a framework for us to respond to 
the challenge of crafting comprehensive, fiscally responsible solutions that comply with the 
Americans with Disabilities Act. As that letter indicated, the Olmstead decision challenges States 
to prevent and correct inappropriate institutionalization of persons with disabilities and to review 
intake and admissions processes to assure that persons with disabilities are served in the most 
integrated setting appropriate. We indicated our willingness to work closely with States to make 
effective use of Medicaid support in your planning and implementation of Olmstead. In that letter 
we also recognized that States may have specific issues and questions about the interaction 
between the ADA and the Medicaid program and we invited you to submit your comments to the 
DHHS Working Group for ADA/Olmstead.  
Since the issuance of that letter we have received numerous questions from States and the 
disability community. We have begun to review, analyze and develop responses to those 
questions. Attached to this letter are some of the questions we have received along with our 
responses.  
We urge you to continue to submit your questions and recommendations to us so that we may assist 
you. Such written correspondence may be sent to:  
DHHS Working Group for ADA/Olmstead  
c/o Center for Medicaid and State Operations  
HCFA, Room S2-14-26, DEHPG  
7500 Security Boulevard  
Baltimore, MD 21244-1850 
 
or e-mailed to:  
ADA/Olmstead@hcfa.gov  
file:///F|/New%20Website%20Content/PCPG%20Files/2000/2000/smd072500a.asp (1 of 11)4/12/2006 11:30:54 AM  
This letter, as well as future questions and answers, will be posted on the Health Care Financing 
Administration's ADA/Olmstead website. That site can be found at 
http://www.hcfa.gov/medicaid/ olmstead/olmshome.htm.   We look forward to continuing our work with you to improve the nation's community service 
system.  
Sincerely,  
Timothy M. Westmoreland Director Center for Medicaid and State Operations Health Care 
Financing Administration  
Thomas Perez Director Office for Civil Rights  
Enclosure  
cc: All HCFA Regional Administrators All HCFA Associate Regional Administrators for Medicaid 
and State Operations American Public Human Services Association Association of State and 
Territorial Health Officials National Association of State Alcohol and Drug Abuse Directors, Inc 
National Association of State Directors of Developmental Disabilities Services National 
Association of State Mental Health Program Directors National Association of State Units on 
Aging National Conference of State Legislatures National Governors' Association  
 
Olmstead/ADA Questions and Answers  
On January 14, 2000, the Department of Health and Human Services issued a letter to State 
Medicaid Directors discussing the Supreme Court's decision in Olmstead v. L.C., 119 S.Ct. 2176 
(1999). In Olmstead, the Supreme Court affirmed that the unjustified segregation and 
institutionalization of people with disabilities constitutes unlawful discrimination in violation of the 
Americans with Disabilities Act (ADA). The January 14 letter sets out a process for technical 
assistance and information sharing, and indicated that questions and recommendations sent to the 
departmental workgroup would be posted on a special website. Accordingly, the following set of 
Qs&As has been posted on the site (see http://www.  
file:///F|/New%20Website%20Content/PCPG%20Files/2000/2000/smd072500a.asp (2 of 11)4/12/2006 11:30:54 AM  
hcfa.gov/medicaid/olmstead/olmshome.htm).  
QUESTIONS ABOUT COMPLAINT INVESTIGATION AND 
DEVELOPING "COMPREHENSIVE, EFFECTIVELY WORKING" 
PLANS  
Q1. Since the Supreme Court's ruling, the Department of Health and Human Services (DHHS) 
has received over 150 complaints from individuals and organizations alleging that States are not 
providing services to qualified individuals with disabilities in the most integrated setting. How is 
DHHS addressing these complaints?  
A. DHHS' Office for Civil Rights (OCR) is responsible for investigating complaints alleging  discrimination on the basis of disability by public entities related to health and human services, 
and by entities receiving funds from DHHS. OCR's first objective is to work promptly and 
cooperatively with all parties involved, including States and individuals with disabilities, to 
obtain voluntary compliance whenever possible that reflects the balanced approach outlined in 
Olmstead.  
The Olmstead v. L.C. decision indicates that a court might find a State in compliance with the 
ADA integration mandate if it can demonstrate that it has a "comprehensive, effectively working 
plan[s]" for providing services to individuals with disabilities in the most integrated setting, and a 
waiting list that moves at a reasonable pace not motivated by a desire to keep institutions full. 
While the court did not require States to undertake planning, we believe planning is a prudent and 
very practical recommendation for moving forward.  
In appropriate cases, therefore, OCR is urging States to bring all relevant stakeholders together to 
develop and implement comprehensive and effective working plans for providing services to all 
qualified individuals with disabilities in the most integrated setting. OCR also is working with 
States to cooperatively resolve complaints filed on behalf of individuals. Only if OCR cannot 
negotiate a satisfactory resolution will ADA title II complaints be referred to the Justice 
Department (DOJ) for resolution.  
Q2. What is the Federal government doing to aid States in developing these plans, and to help 
States increase their capacity to provide community-based treatment and supports for people with 
disabilities?  
A. DHHS is providing technical assistance to promote effective implementation of its longstanding 
policy of facilitating care and service provision in the most integrated setting. Specifically, OCR is 
working with the Health Care Financing Administration (HCFA) to provide technical assistance 
regarding individual State's compliance with the ADA. Also, Federal financial participation is 
available at the administrative rate to design and administer plans to serve individuals with 
disabilities in the most integrated setting, subject to the normal condition that the changes must be 
necessary for the proper and efficient administration of the State's Medicaid program.  
Even more significantly, DHHS is reviewing its own policies, programs, statutes and regulations to  
file:///F|/New%20Website%20Content/PCPG%20Files/2000/2000/smd072500a.asp (3 of 11)4/12/2006 11:30:54 AM  
identify ways to enhance and improve the availability of community-based services. The 
Department recognizes that key programs, such as Medicaid, may sometimes present difficulties 
for people with disabilities to have access to quality care in the community. The Department is 
developing and will implement its own comprehensive plan to eliminate these barriers. 
Recognizing that housing is a critical need, we are also working with the Department of Housing 
and Urban Development (HUD) to improve affordable, accessible housing opportunities for people 
with disabilities (see Q17 below). DHHS is committed to working with States to increase 
community-based alternatives to institutional care.  
Q3. What recommendations does DHHS have regarding the elements of a comprehensive,  effectively working plan?  
A. HCFA and OCR have developed a set of plan recommendations which were attached to the 
January 14, 2000 State Medicaid Director letter and we encourage States to follow them. Listed 
below are some of the principles underlying the recommendations contained in the letter. For 
complete information regarding how to effectively carry out each principle, please consult the 
January 14 letter.  
Comprehensive, Effectively Working Plans  
Principle: Develop and implement a comprehensive, effectively working plan (or plans) for 
providing services to eligible individuals with disabilities in more integrated, community-based 
settings.  
Plan Development and Implementation Process  
Principle: Provide an opportunity for interested persons, including individuals with disabilities and 
their representatives, to be integral participants in plan development and follow-up.  
Assessments on Behalf of Potentially Eligible Populations  
Principle: Take steps to prevent or correct current and future unjustified 
institutionalization of individuals with disabilities.  
Availability of Community-Integrated Services  
Principle: Ensure the Availability of Community-Integrated Services.  
Informed Choice  
Principle: Afford individuals with disabilities and their families the opportunity to make 
informed choices regarding how their needs can best be met in community or institutional 
settings.  
Implications for State and Community Infrastructure  
file:///F|/New%20Website%20Content/PCPG%20Files/2000/2000/smd072500a.asp (4 of 11)4/12/2006 11:30:54 AM  
Principle: Take steps to ensure that quality assurance, quality improvement and sound 
management support implementation of the plan.  
Q4. Does the Olmstead decision require States to have plans to provide services to 
people with disabilities in the most integrated setting?  
A. The decision does not require a State to have such a plan. However, developing and  implementing a comprehensive plan or supplementing existing plans to address unmet needs is an 
important way States may be able to demonstrate that they are in compliance with ADA 
requirements and actively address discrimination.  
The decision indicates that a court might find a State in compliance with the ADA integration 
mandate if it can demonstrate that it has a "comprehensive, effectively working plan[s]" for 
providing services to individuals with disabilities in the most integrated setting.  
Ideally, all people with disabilities would already be provided with services in integrated settings, 
thereby eliminating the need for planning. As a practical matter, however, many States-- including 
those that have made significant investment in the development of community-based services--still 
face unmet needs. Developing and implementing the kind of plan described by the Supreme Court 
in Olmstead is a recommended step towards addressing these needs.  
Q5. If a State already has a plan, does it need to develop a new one?  
A. It depends on how comprehensive and effective the existing plan is. Ultimately, States must 
be able to demonstrate that their existing plans are comprehensive and effectively working. 
States are encouraged to evaluate their existing plans using the Recommendations attached to 
DHHS' January 14 letter, supplement existing plans as necessary, and monitor them to ensure 
that they are being implemented.  
Q6. Why should a State engage in planning activity undertaken in response to an OCR 
complaint? Will it protect the State from other investigations or litigation?  
A. Regulations issued under title II of the ADA direct OCR to investigate complaints against health 
and human service-related State and local government entitles. OCR has informed States against 
which it has received Olmstead-type complaints of its desire to try and resolve complaints by 
helping the State convene stakeholders to develop a comprehensive, effectively working plan to 
serve individuals with disabilities in the most integrated setting appropriate to their needs. Where 
States or other "respondents" (entities against which OCR has received complaints) engage in 
planning processes in good faith and at a reasonable pace, OCR may determine it is possible to 
allow plan development to proceed in lieu of investigation. Where a State or other respondent 
evinces no intent to undertake planning, or where delays in doing so evidence a lack of good faith, 
or where States or other respondents utterly fail to involve stakeholders in plan development, OCR 
may determine it necessary to commence  
file:///F|/New%20Website%20Content/PCPG%20Files/2000/2000/smd072500a.asp (5 of 11)4/12/2006 11:30:54 AM  
full-blown investigation. Following investigation, if a violation is found and no resolution is 
reached, cases may be referred to DOJ for litigation.  
The next question concerns the effect of such planning efforts upon legal claims brought by 
private litigants, or by non-OCR government actors, such as the DOJ. An agreement between a 
State and OCR would not have any direct impact on pending and future title II litigation brought 
by a private party or DOJ unless the private parties or DOJ enter into explicit agreements with the 
State that incorporate OCR's agreement, either in whole or in part.   That said, although there is no direct linkage between OCR complaint investigations and resolution 
activities and pending investigations or litigation brought by other private parties and DOJ, there 
may be situations where creating linkages may result in opportunities to bring all parties to the table 
to resolve pending claims through negotiation.  
Q7. If a State decides to develop a comprehensive plan, what form must it take? Must there be 
only one plan, or can there be multiple plans?  
A. The precise form of the plan is best determined by those who are responsible for developing 
and implementing it. That said, if OCR has a complaint against a State, and OCR has determined 
it possible as a preliminary matter to address the complaint by allowing plan development to 
proceed, OCR may require the State to have a framework that pulls together the essential elements 
of the various plans. In other words, to address a complaint filed with OCR, the State typically 
will be asked to demonstrate the pace at which services to people with disabilities are being 
provided in the most integrated setting, even if more detailed planning documents are developed 
as "subplans."  
Q8. In its letter to State Medicaid Directors dated January 14, 2000, DHHS recommends that 
States "actively involve people with disabilities in the planning process." Does this mean the 
Department believes that groups should be involved in medical treatment decisions?  
A. The Department strongly encourages States to provide an opportunity for interested persons, 
including individuals with disabilities and their representatives, to participate in the State's overall 
plan development process. All stakeholders, including advocacy organizations, should participate 
in the plan development process to ensure that any plan is comprehensive, works effectively and is 
designed to meet the needs and concerns of all people with disabilities. Consumer directed 
organizations, such as independent living centers, often have specific expertise in helping people 
with disabilities transition from nursing homes and institutions into the community which States 
may wish to utilize. Decisions regarding the treatment and specific placement of an individual 
with a disability must be made by that individual in conjunction with the individual's treating 
professionals.  
QUESTIONS ABOUT WHO IS AFFECTED BY OLMSTEAD V. L.C.  
Q9. The decision in Olmstead v. L.C. involved two women with mental retardation and mental 
illness. Is  
file:///F|/New%20Website%20Content/PCPG%20Files/2000/2000/smd072500a.asp (6 of 11)4/12/2006 11:30:54 AM  
the decision limited to people with similar disabilities?  
A. No. The principles set forth in the Supreme Court's decision in Olmstead apply to all individuals 
with disabilities protected from discrimination by title II of the ADA. The ADA prohibits 
discrimination against "qualified individual(s) with a disability." The ADA defines "disability" as:  
  (A) a physical or mental impairment that substantially limits one or more of an   individual's major life activities;  
 
  (B) a record of such an impairment; or  
  (C) being regarded as having such an impairment.  
 
To be a "qualified" individual with a disability, the person must meet the essential eligibility 
requirements for receipt of services or participation in a public entity's programs, activities, or 
services. For example, if the program at issue is open only to children, and that eligibility criterion 
is central to the program's purpose, the individual must satisfy this eligibility requirement.  
Q10. To meet the definition of disability under the ADA and Section 504, a physical or 
mental impairment must be serious enough to limit a major life activity. What kinds of life 
activities are considered "major," and when does an impairment "substantially limit" a 
major life activity?  
A. Examples of major life activities include caring for oneself, walking, seeing, hearing, 
speaking, breathing, working, performing manual tasks, and learning. They also include such 
basic activities as thinking, concentrating, interacting with others, and sleeping.  
An impairment "substantially limits" a major life activity when the individual's important life 
activities are restricted as to the conditions, manner, and duration under which they can be 
performed in comparison to most people. Some examples of impairments which may, even with 
the help of medication or devices, substantially limit major life activities are: AIDS, alcoholism, 
blindness or visual impairment, cancer, deafness or hearing impairment, diabetes, drug addiction, 
heart disease, and mental illness. The determination whether an impairment "substantially limits" a 
major life activity must be made on a case-by-case basis.  
Q11. What do the other two prongs of the definition, "record of" or "regarded as having" a 
disability mean?  
A. The ADA also protects people who are regarded by others as having a substantially limiting 
physical or mental impairment, and people who have a record of a substantially limiting physical 
or mental impairment. For example, a person who is discriminated against based on his or her 
history of a serious seizure disorder is protected by the ADA, even if he or she no longer 
experiences seizures. Likewise, a person with a very mild seizure disorder that does not 
substantially limit any major life activity and is completely controlled by medication that has no 
side effects is protected by the ADA if he or she is discriminated against because he or she is 
perceived as, or "regarded as," having a disability.  
file:///F|/New%20Website%20Content/PCPG%20Files/2000/2000/smd072500a.asp (7 of 11)4/12/2006 11:30:54 AM  
Q12. What about elderly people and children? Are they covered?  
A. No matter what specific impairment or group of people is at issue--including elderly people 
and children--each must meet the same threshold definition of disability in order to be covered by 
the ADA. The question is: "Does the person have an impairment, have a record of impairment, or  is he or she being regarded as having an impairment, that substantially limits a major life 
activity?"  
With respect to elderly people, age alone is not equated with disability. However, if an elderly 
individual has a physical or mental impairment that substantially limits one of more of his or her 
major life activities, has a record of such an impairment, or is regarded as having such an 
impairment, he or she would be protected under the ADA.  
Q13. Are people with substance abuse problems covered by the ADA?  
A. People with substance abuse problems, except for those currently using illegal drugs, are 
covered by the ADA if they have a disability that substantially limits a major life activity. This 
means that people who have alcoholism, people who are addicted to non-controlled substances 
and people who have a history of drug addiction are covered by the ADA if important life 
activities are restricted as to the condition, manner, and duration under which they can be 
performed in comparison to most people. In addition, although current illegal drug users are not 
covered by the Act, persons who use illegal drugs may still be covered if they are discriminated 
against based on another disability, such as a mental or physical impairment that substantially 
limits a major life activity.  
Q14. What is the relationship between the ADA and Section 504 definition of a person with a 
disability and the definition of disability used to establish eligibility for entitlement programs such 
as SSDI/SSI?  
A. The definitions of disability used by entitlement programs are not the same as that used by the 
ADA and Section 504. Thus, the fact that an entitlement program such as SSDI/SSI or Medicaid 
has determined that a person is not disabled does not mean that they are not covered by the ADA 
or Section  
504. That said, the fact that someone has been found disabled for purposes of an entitlement 
program, while not conclusive, is usually good evidence to support a finding of disability under 
the ADA and Section 504.  
ADDITIONAL QUESTIONS [SECTION 504; HUD AND DHHS]  
Q15. What, if any, relationship does Olmstead v. L.C. have to Section 504 of the Rehabilitation 
Act of 1973 (Section 504)?  
A. Section 504, which was enacted some seventeen years before the ADA, prohibits 
discrimination on the basis of disability by entities which receive Federal funding. Section 504 
and the ADA use the same definition of disability. Title II of the ADA extends Section 504's 
prohibition of discrimination in  
file:///F|/New%20Website%20Content/PCPG%20Files/2000/2000/smd072500a.asp (8 of 11)4/12/2006 11:30:54 AM  
Federally assisted programs to all activities of State governments, including those that do not 
receive Federal financial assistance. Although the Olmstead decision interpreted the ADA,  unjustified segregation by a Federally funded program would also constitute disability 
discrimination under Section  
504. A State program receiving Federal funds must comply with both Section 504 and title II 
of the ADA.  
Q16. What about the Department of Housing and Urban Development? Is HUD involved in the 
Federal government's Olmstead implementation efforts?  
Historically, the lack of accessible, affordable housing and necessary community based services has 
been a major barrier to the integration of people with disabilities. Access to affordable housing is 
frequently a necessary but missing prerequisite for moving out of a nursing home or other 
institutional settings. HHS and HUD are strongly committed to assisting States to develop 
comprehensive working plans to strengthen community service systems and to actively involve 
people with disabilities and their families in the design, development and implementation of such 
plans. In some States HUD's "community builders" are aiding plan development, and we urge 
States to take advantage of the opportunity to call upon the expertise of our Federal partners, 
including HUD, in developing home and community-based infrastructure. Partnerships among 
housing, health and human services agencies and other key stakeholders in the disability and aging 
communities will prove central to a State's success.  
Q17. We have many questions regarding the impact of this decision and how we can come 
into compliance with the law. Who should we talk to at HHS?  
A. States should direct any questions or requests for technical assistance regarding their ADA 
and Section 504 obligations in response to the Olmstead decision to the OCR regional office that 
handles complaints filed in that State. A list of regional contacts  local staff designated to 
handle "most integrated setting" issues in each region  may be found at the conclusion of this 
document. Questions regarding Medicaid or Medicare policy should be directed to your HCFA 
regional office.  
 
 
OCR REGIONAL OLMSTEAD CONTACTS  
REGION I Peter Chan  
  (617) 565-1353  
  (617) 565-3809 fax  
 
REGION II Patricia Holub  
  (212) 264- 4997  
  (212) 264 -3039 fax  
 
file:///F|/New%20Website%20Content/PCPG%20Files/2000/2000/smd072500a.asp (9 of 11)4/12/2006 11:30:54 AM  
REGION III Ed Lewandowski     (215) 861- 4445 Paul Cushing (Backup)  
  (215) 861- 4441 (215) 861- 4431 fax  
 
REGION IV Mildred Wise  
  (404) 562-7866 Roosevelt Freeman  
  (404) 562-7886  
  (404) 562-7881 fax  
 
REGION V Michael Kruley  
  (312) 886-5893 Al Sanchez (312)353-5531  
  (312) 886-2301 fax  
 
REGION VI George Bennett  
  (214) 767- 4546 Ralph Rouse (Backup)  
  (214) 767- 4056  
  (214) 767- 0432 fax  
 
REGION VII Jean Simonitsch  
  (816) 426 - 6513 John Halverson  
  (816) 426 - 7236 Peter Kemp (Backup)  
  (816) 426 - 7236  
  (816) 426 - 3686 fax  
 
REGION VIII Andrea Oliver  
  (303) 844- 4774 Jean Lovato  
  (303) 844- 7835  
 
file:///F|/New%20Website%20Content/PCPG%20Files/2000/2000/smd072500a.asp (10 of 11)4/12/2006 11:30:54 AM  
Velveta Golightly-Howell  
  (303) 844- 5101  
  (303) 844- 6665 fax  
 
REGION IX Mario Sagatelian  
  (415) 437- 8326 Monica Eskridge  
  (415) 437- 8324 (415) 437- 8329 fax  
 
REGION X Bennett Prows  
  (206) 615- 2621 Carmen Rockwell  
  (206) 615 -2288  
  (206) 615- 2297 fax  
 
<% 'Sitewide navigation info / do NOT edit %>   file:///F|/New%20Website%20Content/PCPG%20Files/2000/2000/smd072500a.asp (11 of 11)4/12/2006 11:30:54 AM