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The Legal Expert
Disabled deserve better than
John Durso, Esq.
Ungaretti & Harris LLP
nursing homes, 3 states told
By Brett Bakshis to that suit, the state will fund
Where might providers most U.S. Justice Department briefs those services only after an indi-
easily fall afoul of the law con- filed in Florida, Illinois and vidual enters a nursing home.
cerning Family and Medical New Jersey allege that the states The DOJ also filed a state-
have failed to comply with the ment of interest in an Illinois
Photo: Official photo from Wikimedia
Leave Act (“FMLA”) requests or
actions? Americans with Disabilities Act lawsuit, which alleges that the
and the Supreme Court’s Olm- state of Illinois relies on large,
The FMLA allows eligible employees stead decision, which deals with privately run facilities called
to take up to 12 weeks of unpaid leave the rights of the disabled. Institutions for Mental Disease
within any 12-month period for the birth New Jersey has failed to (IMDs) to provide long-term
or care of the employee’s newborn serve disabled individuals care services for the mentally
child, the placement with the employee by not placing people in the Thomas Perez says states are not disabled. Meanwhile, it fails to
of a child for adoption or foster care, to most appropriate care setting, properly housing the disabled. offer services in community-
care for an immediate family member the DOJ says in its “friend of vent unnecessary institutional- based settings in violation of
(spouse, child, or parent) with a serious the court” brief in that state. ization,” said Thomas E. Perez, Olmstead, according to the
health condition, or to take medical Despite being qualified for Assistant Attorney General for DOJ statement.
leave when the employee is unable home care under the AMA the Civil Rights Division, after The Obama administration
to work because of a serious health and Olmstead decision, thou- filing the briefs May 25. recently said it would refocus
condition. Companies can require that sands of disabled individuals In Florida, the DOJ filed a enforcement efforts regarding
FMLA leave run concurrently with the are being institutionalized, brief in support of another law- the Olmstead decision. The
employee’s paid time off. New 2009 according to the DOJ. suit, which alleges that Florida original Olmstead decision
FMLA regulations created certain new “Florida, Illinois and New fails to provide community- sent waves of concern through
forms of leave for military families, in Jersey can provide commu- based services to Medicaid- provider groups, which feared
addition to changing prior FMLA rules, nity-based services to people eligible individuals with spinal drops in census and stipula-
such as those for intermittent leave. with disabilities, and the law cord injuries who are at risk of