hatever the intentions of its drafters, Bernie Sanders’s new “Disability Rights” platform would deprive thousands of people with the most severe disabilities of both their freedom of choice and their ability to access intensive support services. Sanders’s platform, concocted in tandem with a coterie of disability activists and self-advocates, details the candidate’s plans to pass the “Disability Integration Act” and to instruct the Department of Justice to “aggressively” enforce the Supreme Court’s Olmstead decision.
These policies will, if enacted, affect some of the most vulnerable members of our society, who cannot voice their objections to the dogmatic pronouncements of those claiming to speak on their behalf.
The Disability Integration Act, for instance, threatens the home of Stacie Choslovsky, a resident at the Misericordia campus in Chicago. Her brother, Bill, is Stacie’s guardian, and an Illinois attorney who has argued and consulted on numerous disability-related cases. Bill told National Review that Stacie was “born with an ageneis of the corpus collossum,” which is a rare congenital brain condition characterized by the lack of transverse fibers between the two brain hemispheres. She “functions at a one-year-old level and needs help with every aspect of life,” Bill said, and requires assistance “walking, eating, bathing, and toileting.”
To Choslovsky’s dismay, Sanders promised that he, as president, would “pass the Disability Integration Act,” citing the supposed endorsement of “a broad cross-section of the disability community.” Whether a group of federally funded advocacy non-profits and associated polemicists who call themselves the “disability community” is, in fact, representative of all persons and families with disabilities is unclear. Sanders nevertheless brandishes this “broad” endorsement in defense of the DIA. The bill, as written, would treat Stacie’s residential placement at Misericordia — a campus setting with on-site medical, nursing, and psychiatric services — as a prima facie injustice to be “eliminated” rather than, as Bill calls it, “a family to us, and a beautiful lifeline” for his sister. The DIA, which has been introduced in the Senate, instructs states to “eliminate institutionalization” and transition individuals with “all types of disabilities at all ages out of institutions and into the most integrated setting.” It also invokes the “holdings of the Supreme Court in Olmstead v. L.C” as a mandate for its proposed course of action.
Despite its drafters’ claim to the contrary, the DIA betrays the Court’s holding in Olmstead. This case weighed the legality of institutional placements under the Americans with Disabilities Act. The Court’s majority held that states were obligated to provide placement in the “most integrated setting appropriate to the needs of qualified individuals with disabilities (emphasis mine),” deferring that judgment to the state’s medical professionals, and — critically — rejecting the suggestion that there was a “federal requirement that community-based treatment be imposed on patients who do not desire it.”
The clause emphasized above, which refers to the relative medical and behavioral needs of particular individuals with disabilities, is conspicuously absent from most of the DIA. That bill calls only for placement in “the most integrated setting,” with no qualifications about the needs or desires of the affected individual. What does that mean for Stacie, who lives in what the drafters of the Disability Integration Act consider an “institution”? Here, as is often the case in disability policy, sovereign is the activist who determines what is and is not a “community-based” setting.
Certain Olmstead proponents claim the Olmstead decision represents an unqualified “integration mandate” that necessitates so-called “community living for all.” This interpretation was rejected by both Justice Ginsburg’s majority opinion and Justice Kennedy’s concurrence, wherein he favorably referenced an amicus curiae brief’s view that, “on a case-by-case basis,” the most appropriate setting for an individual “may be in an institution.” With a tragic prescience, Kennedy warned:
It would be unreasonable, it would be a tragic event, then, were the Americans with Disabilities Act of 1990 (ADA) to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision.
This note of caution has come to fruition in the sort of “aggressive” Olmstead enforcement the Sanders campaign supports, which the Obama Department of Justice pursued with impunity. The lawsuits follow a similar pattern: The DOJ, in tandem with federally funded “Protection and Advocacy” organizations nominally charged with protecting and advocating for persons with disabilities, files a class-action lawsuit against a state government. The department alleges that the individuals with disabilities who reside in what it deems “institutional settings” are having their rights abridged under the Olmstead framework. Often, neither the flesh-and-blood individuals who live in these settings nor their families are informed of the class-action lawsuit filed on their behalf by activists in the DOJ. Families and individuals have little ability to challenge these mammoth forces waging war on their homes. The result is often the outright closure of facilities against the will of individuals and families served there.
Bill Choslovsky was an intervening party in Ligas v. Eagelson, a class-action Olmstead lawsuit filed by a mere nine plaintiffs on behalf of all 6,000 persons with disabilities in Illinois who lived in “institutional” settings. The suit was filed without consulting the individuals and families whose loved ones were “institutionalized,” presuming that their very placement in a so-called “institution” violated the Olmstead decision. Bill spoke with families across the state and corralled an unprecedented 2,500 objectors to join him in filing a motion to intervene. The result was a favorable settlement for individuals who live in intermediate-care facilities — or “institutions” — to the disappointment of the nine plaintiffs, who called all such facilities “segregated, isolated institutions that deprive” people of their “basic liberties.” Choslovsky’s success in fighting this lawsuit, however, is not always possible when families are less organized or have fewer collective resources to fight an imperious government agency.
A case in point: Connecticut disability-rights advocate Peg Dignoti was asked in 1993 why she decided to sue one state facility — Mansfield Training School — instead of the state’s other facility in Southbury. According to the Hartford Courant, she said that the parents of Southbury clients “were better organized, wealthier and dead-set against shutting down the school” (as the Courant put it). Litigious advocates often choose those facilities where families are poorly organized and, as Dignoti made clear, avoid those settings where families are “wealthier” and are willing to fight back against their clandestine closure efforts.
To be clear, it is good when individuals who do not need or desire more intensive services can move into a more “integrated” setting. Indeed, Choslovsky is quick to note that, “if there are people who, as Justice Ginsburg held in Olmstead, actually do not want to live in such large settings and are medically capable of living in the community, then by all means they should be allowed to do so.” But, he says, “you don’t throw the baby out with the bath water.”
This hyperventilative approach to the supposed scourge of “institutionalization” is a remnant, Choslovsky says, of “the One Flew Over the Cuckoo’s Nest era, when a significant number of individuals with disabilities were placed in a congregate setting against their will.” The statistics, in fact, belie the narrative of rampant institutionalization that seems to animate the Sanders plan.
While Sanders’s plan would lead one to assume otherwise, the number of people living in so-called institutions pales in comparison with the population served in so-called community settings. In 2016, for every 100 Medicaid recipients with a disability, 92 were served in home and community-based settings, while eight were served in intermediate-care facilities, or “institutions.” From 2005 to 2016, the number of Americans with disabilities living in what the anti-facility “Case for Inclusion” report deems “large, isolating state institutions” declined from 39,000 to 19,000, a decline born of admission freezes, closures, and expansive litigation efforts. The average resident who remains in an “institution” is more profoundly impacted — both behaviorally and medically — than an average peer in the “community-based setting,” and has received multiple offers and opportunities to leave. These people and their families have chosen to stay, much to the dismay of their self-appointed moral superiors.
Bill emphasized that, despite her profound challenges, “Stacie leads an incredibly full, meaningful, and loving life at Misericordia, which is a home in the best sense of the word. She is happy there.” He worried that “her quality of life would go down and she would actually be more ‘segregated’ in the so-called ‘community,’ which would also cost the government much more than it does for her at Misericordia,” where all her services are centrally located.
No one — least of all Bill, who has defended the community choice as a litigator — is opposed to individuals’ leaving “institutions” if they desire to do so. But there is no reason to assume, as the Sanders plan does, that the services used and preferred by self-advocates with mild disabilities — who consult leading presidential candidates on the minutiae of Medicaid policy — should be the same as those used and preferred by those such as Stacie, who cannot write or speak, let alone expound upon matters of public policy.
That is the abiding irony of the Sanders disability plan. On the one hand, it insists that Sanders is fulfilling the long-held motto “at the core of the disability rights movement: ‘Nothing About People with Disabilities, Without People with Disabilities,’” highlighting a new disability commission that would be “run by a person with a disability.” On the other hand, Sanders puts people with profound disabilities, who cannot write, speak, or dress themselves, at the mercy of persons with disabilities who are capable of running a federal commission.
“The most insulting thing to me,” Choslovsky said, “is the suggestion that I can’t be trusted with the well-being of my sister, and that academics and ivory-tower types who have never met Stacie hold her best interest in higher regard than I do.”
One similarly doubts that Bernie Sanders knows what’s best for Stacie Choslovsky.