Introduction
The Disability Law and Policy Network (DLPN) is an informal network of people with disabilities, advocates, and lawyers who came together after an important U.S. Supreme Court case (L.C. v. Olmstead) to talk about how we could work together to make the case mean something for other Georgians. The case was about two Georgians with mental illness and mental retardation who won the right to be served in the community rather than an institution.
The U.S. Supreme Court ruled that “Unjustified isolation . . . is properly regarded as discrimination based on disability.” Further the Court found that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.”
The U.S. Supreme Court said in the L.C. v. Olmstead decision that the Americans with Disabilities Act requires Georgia and other states to provide disability services in community settings rather than in institutions, so long as –
(1) the State's professionals have determined that community placement is appropriate for the person;
(2) the community-based treatment is not opposed by the individual; and
(3) the State can provide these services within the “range of services” that the State provides.
The U.S. Supreme Court also suggested that a state could avoid individual lawsuits if it had a comprehensive, effectively working plan that described how it was complying with the law. The Court said that a state could have waiting lists for services but those lists must move at a reasonable pace. It is unclear what a reasonable pace is but some other decisions and settlements have required services to be provided within 90 days which is much shorter than the time that most people wait for community supports in Georgia.
The DLPN decided its first project would be to focus on outreach to Georgians living in psychiatric hospitals, mental retardation institutions, nursing homes and other institutional places to learn about their individual situations and share with them the news of the Supreme Court decision. Through this outreach, the DLPN has learned that many people are unaware that home and community-based services are an option. This Guide was developed to tell people about these services, explain the often frustrating application process, and suggest steps for pushing the system to do what it is supposed to do.
Advocacy Tips
Don't accept an answer as correct. Don't assume the answer you get from the state, regional board, community board, service provider, advocate, DFCS worker, Medicaid worker, physician or other person is the right answer. Many of these individuals are also learning about home and community-based services and may not have the correct understanding. If they tell you something in this Guide is incorrect, please contact one of the legal resources before giving up.
Don't give up easily. Disability advocates believe that there are ways to challenge how the state is providing disability services. These issues include waiver cost amounts, how they determine how many services a person needs and who is able to direct his or her own care. Give someone else a call before giving up.
Apply and respond in writing. Although many of the agencies or entities you call, will tell you there are no services or “slots” and you do not need to apply, do so in writing. This is the only way to assert your rights for home and community-based services. If there is no application, send a letter. This Guide provides suggestions.
Call one of the legal resources immediately when you get a letter from the State, Department of Human Resources, or Department of Community Health. You have only a few days to “appeal” a decision made by the state. Whenever you get a letter regarding your request for community-based services that is about denying the request, decreasing or changing the services you get, putting you on a waiting list, etc., call one of the legal resources. An advocate can help you understand what you've received and review your options for next steps. But you must do this immediately, so you do not lose your rights.