A New Era of Segregation Twenty Years After Olmstead: The Failure of HCBS Waiver Programs and the Need for a Comprehensive Federal HCBS Program

Abstract

Despite significant improvements in treatment and care over the last century, individuals with Intellectual and Developmental Disabilities (IDD) still face barriers to access of appropriate services that allow for total integration into local communities. The United States Supreme Court held in Olmstead that individuals with IDD have the right to receive services in the community to avoid institutionalization. While attempts have been made to provide such services, the current scheme of Home and Community-Based Services Waiver Programs at the state level is failing, which has resulted in a new era of segregation. This Article compares and contrasts the failed Kerr-Mills Medical Assistance for the Aged Act, a precursor to Medicare, and the failing HCBS Waiver Programs. Drawing on the damning similarities between the two programs, this Article highlights the failure of the state HCBS Waiver Programs and calls for the creation of a Federal Home and Community-Based Services program for the same reasons that Congress ultimately enacted Medicare, a Federal program, as a replacement for the Kerr-Mills Medical Assistance for the Aged Act.