You asked for information on the U.S. Supreme Court's decision in the "Olmstead" case. (This report includes information provided by the Office of Fiscal Analysis.)

SUMMARY

On June 22, l999, the U.S. Supreme Court ruled that the unjustified isolation of mentally disabled patients in institutional settings constitutes discrimination based on disability (Olmstead v. L.C., U.S. 98-536). The majority decision authored by Justice Ginsburg affirmed the key holdings of an April l998 ruling of the U.S. Court of Appeals for the Eleventh Circuit (138 F.3d 893). That court found that Georgia health officials violated the Americans with Disabilities Act (ADA) by segregating two mentally retarded persons in a psychiatric hospital instead of providing them with appropriate community-based care.

The Supreme Court concluded that the ADA required states to provide community-based treatment for persons with mental disabilities when (1) the state's treatment professionals determine that such placement is appropriate; (2) the affected persons do not oppose such treatment; and (3) the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities.

The Supreme Court remanded the case for further consideration of the appropriate relief, given the range of facilities the state maintains for the care and treatment of persons with diverse mental disabilities, and its obligation to administer services with an "even hand."

Connecticut Attorney General Blumenthal has stated that the Olmstead ruling does not alter the state's defense in the Southbury Training School litigation nor change the state's current placement policy.

THE OLMSTEAD DECISION

Background

Atlanta Legal Aid brought the Olmstead case in l995 on behalf of two women with mental retardation as well as psychiatric conditions who were patients in a state psychiatric hospital. The treating physicians in the hospital agreed that the women were appropriate for discharge into community programs, but slots were not made available. (As the case proceeded through the court system, the women actually were placed in the community.)

The state of Georgia asked the Supreme Court to decide "whether the public services portion of the federal ADA compels the state to provide treatment and habilitation for mentally disabled persons in a community placement, where appropriate treatment and habilitation can also be provided to them in a state mental institution."

The case turned on the meaning of a regulation adopted by the U.S. Department of Justice to enforce Title II of the ADA that states "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities" (28 CFR § 35.130(d)).

U.S. Court of Appeals Decision

The Eleventh Circuit Court of Appeals affirmed the federal district court's decision holding that lack of funding, by itself, was not enough to justify institutionalization of the women. The district court had rejected the state's argument that inadequate funding, rather than discrimination, explained why the women were not in community settings. But the Eleventh Circuit remanded the case for a reassessment of the state's argument that it would be unduly expensive to provide mandatory community-based treatment for all who might be eligible.

The appeals court noted the state's duty to provide integrated services was not unlimited, but also observed that it believed Congress would permit a cost-based defense only in very limited circumstances. It remanded the case for determination whether providing the community-based services would be a "fundamental alteration" in the state's services. The appeals court held that "unless the state can prove that requiring it to make these additional expenditures would be so unreasonable given the demands of the state's mental health budget that it would fundamentally alter the service it provides, the ADA requires the state to make these expenditures."

The court set forth three non-exhaustive factors for the district court to consider: (1) the reasonableness of the expenditures in light of the state's entire budget for mental health, (2) whether it would be unreasonable to require the state to expand its waiver program to minimize the financial burden, and (3) whether any difference in the cost of providing community-based services will lessen the state's burden.

Supreme Court Decision

The Supreme Court's June l999 ruling in Olmstead affirmed the right of people with mental disabilities to live in community-based settings rather than in state hospitals. The Court reviewed the legislative history of the ADA and noted that Congress expressed particular concern that the disabled have been subject to unwarranted segregation and institutionalization. With this in mind, the Court found that Congress had a comprehensive view of the concept of discrimination under the ADA. But the Court also recognized the need of states "to administer services with an even hand."

According to the decision, the state must determine whether individuals are eligible for community-based services before moving them from restrictive settings. The court also stated that community treatment should not be imposed on those who do not want it. The court said, "the ADA is not reasonably read to impel states to phase out institutions, placing patients in need of close care at risk...nor is it the ADA's mission to drive states to move institutionalized patients into an appropriate setting."

The justices reached the least consensus on that part of the appellate court's decision concerning mitigation of the state's financial concerns. (The Supreme Court decision was a 6-3 opinion authored by Judge Ginsburg and joined in part by four other justices.) Ginsburg wrote that the Eleventh Circuit's direction to the district court on what would constitute a "reasonable modification" of its program under the ADA "is unacceptable for it would leave the state virtually defenseless once it is shown that the plaintiff is qualified for the service or program she seeks." The court said that state responsibility for providing treatment to qualified disabled individuals "is not boundless."

According to the decision, states may avoid changes that require a fundamental alteration of state services, and they must have more flexibility than that found by the Eleventh Circuit "to administer services with an even hand." The states' need to maintain a range of facilities for the care and treatment of individuals with diverse mental disabilities must be recognized, according to the court.

In determining whether the state can assert a "fundamental alteration defense, the courts must consider not only the cost of providing community-based care to the litigants, but also the state's obligation to mete out services to others with mental disabilities in a equitable manner. The court stated, "If, for example, 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 reasonable-modifications standard would be met."

RESPONSES TO THE DECISION

Overview

The Olmstead decision does not require a state to have a single plan covering the needs of all people with disabilities. A state may have different plans to address different populations, as long as the needs of all individuals who are unnecessarily institutionalized are addressed, according to commentators on the case (see Bazelon Center for Mental Health Law, Washington, D.C.). National advocacy groups have prepared a proposed template of key elements for consideration when developing a comprehensive state plan, which is available from the National Association of State Protection and Advocacy Systems in Washington, D.C. (The association's members are mandated by federal law to provide legal services to the disabled.) These elements are:

1. the planning process should move expeditiously, and involve consumers, families and other advocates;

2. the planning process should be accompanied by some immediate effort to expand the state's capacity for serving people in the community;

3. the plan must address the placement needs of all individuals in the "program" at issue;

4. the plan must be funded;

5. the plan must ensure the identification of individuals who are needlessly confined and identify both the services they require and the cost of those services;

6. the effectiveness of the plan must be evaluated in order to monitor its impact; and

7. the plan must ensure quality care in the community to prevent individuals' unnecessary returns to institutions and promote the community integration mandated by the ADA.

The advocacy groups also note that the state must ensure that placements occur at a "reasonable pace." This may vary from state to state, but it will depend on how quickly the state is capable of moving people to the community and would not require a fundamental alteration.

Available Resources

According to the Bazelon Center, resources to meet the expansion of community services are available to states from several sources including:

1. Medicaid's optional services for adult-targeted case management and rehabilitation;

2. Medicaid coverage for services furnished in small community residential programs of fewer than 16 beds;

3. Medicaid's array of comprehensive community services for children, mandated through its Early and Periodic Screening, Diagnosis and Treatment requirement;

4. expanding Medicaid eligibility through various options and waivers of federal rules (home and community-based service waivers (§ 1915(c)), research and demonstration waivers (§ 1115), the option to cover people who are medically needy under Medicaid, and coverage of children with serious emotional disorders under the "Katie Beckett" option (§ 1902(e)(3));

5. redirected resources created by closing or significantly downsizing state mental hospitals;

6. federal block grant funds;

7. federal housing assistance programs;

8. federal disability benefits under the Supplemental Security Income (SSI) program; and

9. state general fund appropriations for mental health services.

Connecticut Situation

Following release of the decision in Olmstead, Connecticut Attorney General Richard Blumenthal issued a statement stating that the facts of the Olmstead case are fundamentally different than those in the state's Southbury Training School case. He said that Georgia (in Olmstead) had objected to community placements because of their cost, while Connecticut has sought to allow Southbury residents and their families to decide if they want to live in group homes. Blumenthal stated, "There is nothing in the Olmstead ruling that alters our defense in the Southbury case or changes the state's current placement policy" (The Hartford Courant, June 23, l999).

According to the Office of Fiscal Analysis (OFA), recent Southbury Training School community placement funding is as follows:

· the 1999-2001 state budget includes funding of $2.1 million to provide residential and day support services in the community to 14 clients residing at Southbury, and

· the FY 01 technical adjustments, as submitted by the Department of Mental Retardation to the Office of Policy and Management, include a request of funding of $2.98 million in FY 01 to support the annualized costs of 21 Southbury clients to reside in the community. (The 21 individuals represent those who have requested DMR to actively pursue and plan for alternative placements.)

The state Department of Mental Health and Addiction Services (DMHAS) did not submit any specific budget options related to Olmstead, according to OFA. Since the closings of Norwich and Fairfield Hills Hospitals, DMHAS has already emphasized the delivery of services through the community.

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