Fact Sheet: What Constitutes an Effective Working Plan in Olmstead Cases

I. Introduction
In Americans with Disabilities Act (ADA) community integration suits, states may assert that a requested accommodation would be a fundamental alteration of their system for serving people with disabilities. One way of establishing a fundamental alteration defense is to show that a state has an effectively working plan for moving individuals into the community. The determination of whether such a plan exists is fact-specific and individual to each state, time period, and type of plaintiffs at issue in a particular case. There are, however, some common factors that courts consider when determining whether a state has such a plan. 
This memo discusses the factors that the federal government and courts have considered relevant, highlighting relevant cases. It also includes two charts breaking down the elements of an effectively working plan that courts have found relevant.
II. Background
Title II of the ADA makes it illegal for state governments to deny qualified individuals with disabilities the benefits of its programs, services or activities, or to otherwise discriminate against them.1 A regulation implementing Title II mandates that state governments administer services ?in the most integrated settings appropriate to the needs of qualified individuals with disabilities.?2
In Olmstead v. L.C, the Supreme Court held that unjustified institutionalization of individuals with disabilities constitutes illegal discrimination on the basis of disability.3It also held, however, that the right to receive services in the least restrictive environment is not unqualified. Specifically, the Court held that the failure of a state agency to place an individual with disabilities in a community-based setting when it is medically appropriate and the individual so desires is a violation of Title II of the ADA unless the state can prove that providing a community-based setting for the individual would be a ??fundamental alteration.?4
Notably, a majority of the Court could not reach agreement on the precise standard to be applied to determine whether community placement is required. Guidance can be found in from the plurality decision. Significantly, four Justices stated that if the state can show that the requested accommodation, community placement, will be a ?fundamental alteration? of the system for providing care for individuals with disabilities, it will not be required to make the accommodation. 5
Sensibly construed, the fundamental-alteration component of the reasonablemodifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.6
The four Justices also suggested that
if . . . the State were to demonstrate that it had a comprehensive, effectively 
working plan for placing qualified persons with mental disabilities in less 
restrictive settings, and a waiting list that moved at a reasonable pace not 
controlled by the State?s endeavors to keep its institutions fully populated,? the 
State would not be in violation of the ADA.7

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