​Olmstead isn't a "Gift Horse" -- it's the Law ---- but one could be forgiven for thinking otherwise.

If the US Department of Justice (DOJ) thinks it needs additional authority to provide CLEAR OLMSTEAD REGULATIONS, we need to work together to provide that legal authority.

We don't think DOJ needs additional authority, but we can't wait another 20 years or likely more to achieve widespread Olmstead Compliance among the States.

Vague Olmstead Plans, Expensive Litigation --

THe Need for regulatory or statutory clarity


DOJ:  Day Statement of Interest (2011) --- Page 14 

 1.  To Successfully Assert a Fundamental Alteration Defense, a Public Entity Must Have a Comprehensive, Effectively Working Plan.

There are unresolved questions of fact about whether the District even has an Olmstead plan,[1] or if it does, whether this plan constitutes a “comprehensive, effectively working plan,” as required by Olmstead.  

While the Court of Appeals for the District of Columbia Circuit has not had the occasion to enunciate what constitutes a comprehensive, effectively working plan, the District has not established, as a matter of law, that its plan meets the standard of either of the circuit courts that have considered this issue. 


[1] Twelve years after the Olmstead decision, the District of Columbia has never finalized a written Olmstead plan, and is no longer even having interagency meetings to attempt to do so.  (Opp. Ex. H, 213:19-214:8.)  It is not clear that what the District of Columbia has done is sufficient to be considered an Olmstead plan at all.  However, for purposes of this Statement, the United States will refer to the District’s inchoate efforts as an Olmstead plan.
 


 "The Third Circuit has properly required a public entity to prove that it has developed and is implementing an Olmstead plan that demonstrates a specific and measurable commitment to action by the public entity, including goals, benchmarks, and timeframes for which the entity can be held accountable.[1]  Frederick L. II, 422 F.3d at 156-59. 

​ "The Third Circuit has also rejected a public entity’s vague, general assurances and good faith intentions of future community placement because such assurances may change, and has properly found that past progress in deinstitutionalization alone is insufficient to establish a comprehensive, effectively working Olmstead plan.  Id.; Frederick L. I, 364 F.3d at 499-501; Pa. Prot. & Advocacy, Inc., 402 F.3d at 383-85.
[1]

​
The Third Circuit held that:
a viable integration plan at a bare minimum should specify the time-frame or target date for patient discharge, the approximate number of patients to be discharged each time period, the eligibility for discharge, and a general description of the collaboration required between the local authorities and the housing, transportation, care, and education agencies to effectuate integration into the community. 
Frederick L. II, 422 F.3d at 160.
Congressional Research Service
A Brief Overview of Rulemaking & Judicial Review (2017)
What role do the courts have in rulemaking?

Courts review administrative decision-making under the requirements of the APA.

These requirements are intended to ensure that an agency rule is neither "arbitrary" nor "capricious," and that it does not exceed statutory authority.

The Players in Rulemaking | Center for Effective Governmenthttps://www.foreffectivegov.org › node
 An Overview of Federal Regulations and the Rulemaking Process
crsreports.congress.gov › product › pdf

Mar 19, 2021 · rulemaking authority to federal agencies to implement statutory programs. 


The regulations issued pursuant to this authority carry the force and effect of law and can have substantial implications for policy implementation. 


When issuing these regulations, agencies are required to follow a certain set of procedures prescribed in law and executive . . .
​
​DOJ Enforcement is spotty at best.  Private Enforcement ----- while it can be done------ is EXPENSIVE.  Of course, the reason why DOJ Enforcement is Spotty is because of EXPENSE and RESOURCE ISSUES.

That is leaving People with Disabilities in this country in a DIFFICULT POSITION.

A lot of Olmstead is giving the States FLEXIBILITY --- and giving All Parties REASONABLENESS and giving People with Disabilities ACCOUNTABILITY through MEASURABLE (Numeric) GOALS, "REASONABLE" TIMEFRAMES, AND FUNDING TO SUPPORT THE PLAN.