Las Vegas Sun on "Wide-Ranging Problems" in Nevada Mental Health System

See this article.  An excerpt:

In April, the story of one man, James F.C. Brown, sent packing with a one-way bus ticket from the Rawson-Neal Psychiatric Hospital in Las Vegas to Sacramento sparked outrage about Nevada’s mental health system. 

The story, first reported by the Sacramento Bee, provided a glimpse into one aspect of the state’s troubled mental health system, but subsequent investigations have revealed wide-ranging problems in a system struggling to provide even basic services for thousands of mentally ill people in Nevada.

If you read to the end of the article, you will find some basic things that the state could be doing to build up community services and provide people the supports they need without having to build new hospital beds.

New Senate HELP Committee Report on Olmstead Implementation

I'm going to go dark again later today, but I'll break radio silence for a few posts.

Just out: This important report on Olmstead implementation, issued by the Senate HELP Committee.  The executive summary:

 The Supreme Court’s 1999 decision in Olmstead v. L.C. put states on notice that unnecessary segregation of individuals with disabilities is a violation of the Americans with Disabilities Act (ADA) of 1990. The ruling was hailed as the disability civil rights equivalent to Brown v. Board of Education, which ordered the desegregation of the nation’s public schools.

 The Olmstead decision clearly articulates that ensuring individuals with disabilities are able to exercise their right to participate as citizens of the state and the country is a protected civil right under the ADA. Olmstead envisioned that states will provide appropriate long-term services and supports (LTSS) to individuals with disabilities through home and community-based services (HCBS) and end forced segregation in institutions.

 Previous testimony before the Committee illustrates the discriminatory nature of institutionalization. One individual stated simply: “People need to have high expectations for people with disabilities because then they’ll give them opportunities to learn and grow. People don’t grow in…institutions.”

 Nationally, there has been a fundamental rebalancing of spending on individuals with disabilities in institutions as compared to spending on HCBS in the years since the Olmstead decision. Between 1995 and 2010, states reduced the share of Medicaid spending on institutions, including nursing homes, mental hospitals, and institutions for people with intellectual and developmental disabilities, from 79 percent to 50 percent.

 However, these numbers fail to paint a complete picture. In reality, only 12 states spent more than 50 percent of Medicaid LTSS dollars on HCBS by 2010. Further, the population of individuals with disabilities under 65 in nursing homes actually increased between 2008 and 2012. This is true even though 38 studies over the past seven years have clearly demonstrated that providing HCBS is more cost-effective than providing services in an institution.

 Last year, on the 13th anniversary of the Olmstead decision, Chairman Harkin requested information from all 50 states on the progress being made to ensure that all individuals with disabilities have the opportunity to live independently in the community through the use of HCBS.

 The result of the survey demonstrates that, with a few exceptions, state leaders continue to approach decisions regarding Medicaid from a social welfare and budgetary perspective. For the promise of Olmstead to be fully realized, state leaders must also approach decisions about Medicaid delivery options from a civil rights perspective. To do so, states must create an Olmstead plan with enforceable benchmark targets—one that fully evaluates whether a state can take advantage of new federal options to better ensure that individuals can live in community-based settings where they can fully participate and be granted the power of individual decision making and choice.

The report also contains extensive recommendations -- definitely worth a look!

HUD Issues Olmstead Guidance

Yesterday, the Department of Housing and Urban Development issued a guidance document on the implementation of Olmstead in HUD-funded programs.  Integrated housing is a crucial piece of Olmstead implementation, so it's exceptionally important that HUD issued this guidance.  From the introduction:

Individuals with disabilities have historically faced discrimination that limited their opportunity to live independently in the community and required them to live in institutions and other segregated settings. In 1999, the United States Supreme Court issued the landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999), affirming that the unjustified segregation of individuals with disabilities is a form of discrimination prohibited by Title II of the Americans with Disabilities Act (ADA). Following the Olmstead decision, there have been increased efforts across the country to assist individuals who are institutionalized or housed in other segregated settings to move to integrated, community-based settings. In addition, states are “rebalancing” health care delivery systems by shifting away from an overreliance on providing long-term services and supports to individuals with disabilities in institutions, hospitals, nursing homes, adult care facilities, and other restrictive, segregated settings and moving towards a greater reliance on home- and community-based services. For many states, these efforts to comply with Olmstead and rebalance the way long-term services and supports are provided by moving individuals out of institutions and into the community are confounded by a lack of integrated housing options for individuals with disabilities. As a result, there is a great need for affordable, integrated housing opportunities where individuals with disabilities are able to live and interact with individuals without disabilities, while receiving the health care and long-term services and supports they need.

Individuals with disabilities, like individuals without disabilities, should have choice and self- determination in housing and in the health care and related support services they receive. For this reason, HUD is committed to offering individuals with disabilities housing options that enable them to make meaningful choices about housing, health care, and long-term services and supports so they can participate fully in community life. As more states facilitate the transition of individuals with disabilities from institutional or other segregated settings into their communities, the need for meaningful choice among housing options is critical. For communities that have historically relied heavily on institutional settings and housing built exclusively or primarily for individuals with disabilities, the need for additional integrated housing options scattered throughout the community becomes more acute.

HUD programs serve as an important resource for affordable housing opportunities for individuals with disabilities, including individuals who are transitioning out of, or at serious risk of entering, institutions. HUD funds the operation, management, development, preservation, and rehabilitation of affordable housing. HUD’s portfolio includes tenant-based housing vouchers, apartment buildings that serve a wide variety of individuals and families, and numerous other programs that provide permanent and transitional housing with or without supportive services to individuals with and without disabilities.

Hoffman on Sheltered Workshops

Just out: Laura C. Hoffman, An Employment Opportunity or a Discrimination Dilemma? Sheltered Workshops and the Employment of the Disabled, 16 U. Pa. J. L. & Soc. Change 151 (2013).  From the introduction:

In January 2011, a U.S. disability rights organization, National Disability Rights Network (NDRN), published a report that criticizes the use of certain employment practices involving people with disabilities. Within the report, NDRN argues that the continued use of these practices amounts to the systemic discrimination of the disabled in employment, rather than to the assured provision of civil rights protections for the disabled. One of these practices is the use of sheltered workshops, which are “facility-based day programs attended by adults with disabilities as an alternative to working in the open labor market.” By providing relatively simple work activities and customized educational programs, these workshops may be designed to assist the disabled with finding long-term employment or transitioning into the open labor market. However, according to the Executive Director of NDRN, “[s]heltered workshops are not what they promise to be, and sometimes serve as an unsettling example of how good intentions can lead to terrible outcomes.” This report was only the beginning for NDRN on this issue; the organization released another report in April 2012 containing even more criticism for the use of sheltered workshops as an employment option for people with disabilities, bringing even greater attention to this issue both within the disability community and across the United States.  

The U.S. also has a number of federal laws designed to ensure equal opportunity in employment for people with disabilities. Most notably, Title I of the Americans with Disabilities Act (ADA) prohibits discrimination against the disabled in all aspects of employment for covered entities. Despite these protections, many of the employment practices implemented for the benefit of the disabled do not actually result in additional equal employment opportunities. Recent statistics released by the Bureau of Labor Statistics (BLS) at the U.S. Department of Labor paint a dismal picture for the overall employment prospects of people with disabilities. According to the BLS report, “[i]n 2011, 17.8 percent of persons with a disability were employed . . . . [i]n contrast, the employment-population ratio for persons without a disability was 63.6 percent.” Moreover, the disabled population continued to show greater joblessness than the non-disabled population through June 2012, according to statistics compiled on a monthly basis for U.S. employment overall.  

Given these troubling statistics, it is necessary to ask whether sheltered workshops are a relevant and successful means of encouraging the employment for the disabled today. Do sheltered workshops represent an antiquated view of people with disabilities and continue what was thought to be an outdated mentality concerning those with disabilities and their ability to participate in society, especially in terms of employment? Or, do sheltered workshops provide something of value and worth to the disabled, by at least providing the opportunity for employment? This Article reexamines the use of sheltered workshops for the employment of the disabled and what this use means for the current legal protections in employment available to individuals with disabilities.

Interesting Article on Lawsuit by Couple with Intellectual Disabilities Whose Group Homes Won't Let Them Live Together

See this article, which begins:

With the beaming smiles of newlyweds, Paul Forziano and Hava Samuels hold hands, exchange adoring glances and complete each other’s sentences. Their first wedding dance, he recalls, was to the song “Unchained ...” ‘’Melody,” she chimes in. 

They spend their days together in the performing arts education center where they met. But every night, they must part ways. Forziano goes to his group home. His wife goes to hers.

The mentally disabled couple is not allowed to share a bedroom by the state-sanctioned nonprofits that run the group homes — a practice the newlyweds and their parents are now challenging in a federal civil rights lawsuit.

Nice Piece on Olmstead, Budget Cuts, and Nursing Homes

By contrast, here's a nice piece on Olmstead issues, which uses the M.R. case as a lens to examine the various questions.

Kaiser Health News on Controversy Over the Companionship Exemption

Kaiser Health News has a decent piece today on the controversy over the companionship exemption to the Fair Labor Standards Act.  The Department of Labor is preparing rules that would narrow that exemption and extend minimum wage and overtime protections to more home-care aides.  The proposed rule has provoked opposition from home-care agencies, predictably.  It has also provoked opposition from many individuals with disabilities and disability rights organizations, who believe that (without increases in Medicaid reimbursements) it will make personal assistance unaffordable for many people with disabilities and drive them into institutions.  It's always seemed to me that there is room for a compromise here, but folks haven't gotten there yet.

The disability rights group ADAPT focused on this issue during its trip to DC last week; indeed, they shut down all the entrances to the Department of Labor building for a time.  So I was a bit displeased that the KHN article, which is otherwise quite well reported, did not include the voice of a single person with a disability or representative of a disability rights organization.

Important Recent Department of Justice Olmstead Brief

Last week, the U.S. Department of Justice filed a brief opposing a motion for preliminary injunction in Illinois League of Advocates for the Developmentally Disabled v. Quinn, a case in which the plaintiffs argue that Olmstead forbids the State of Illinois from closing institutions for people with developmental disabilities.  The DOJ brief takes the position that the plaintiffs are seeking to turn Olmstead on its head:

The State of Illinois currently plans to close two State Operated Developmental Centers (Jacksonville Developmental Center and the Murray Developmental Center) in fiscal year 2013 and shift resources towards expanding community based care. The Plaintiffs, who are the guardians of individuals residing in these institutions, are opposed to the closure of State Operated Developmental Centers (SODCs). The Plaintiffs argue that the ADA, an integration statute enacted to end the pervasive segregation of persons with disabilities, conveys a right to remain in a segregated institution, as opposed to a right to live in the community. See Plaintiffs’ Memorandum of Law in Support of their Motion for Preliminary Injunction, p. 19 (“Pls. Memorandum”). Nothing in the ADA or its regulations, the Supreme Court’s decision in Olmstead, or any other case law supports this interpretation of the ADA and its integration mandate. Rather, the inverse is true.

In Olmstead, the Supreme Court concluded that the unjustified institutionalization and isolation of persons with mental disabilities violates the ADA. 527 U.S. 581, 597 (1999). The Supreme Court reached this conclusion based upon two “evident judgments.” Id. at 600. First, the Court observed that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. at 600. Second, the Court noted that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 601.

Plaintiffs make much of Olmstead’s statement that there is no “federal requirement that community-based services be imposed upon those who do not desire them.” 527 U.S. at 602. However, to read that sentence in Olmstead as creating a right to institutionalization would turn the ADA and its integration mandate on its head and impermissibly create a new right under the ADA that was never intended by Congress. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (Congress must “unambiguously confer a right” to support a cause of action under §1983 or an implied right of action.) The ADA does not confer a right to remain in any given institution.

US DOJ Moves to Intervene in Olmstead Challenge to Oregon's Reliance on Sheltered Workshops

I have blogged before about Lane v. Kitzhaber, the pending case in which plaintiffs allege that Oregon's reliance on sheltered workshops, at the expense of integrated employment services, for people with various disabilities violates the ADA's integration mandate as interpreted in the Supreme Court's Olmstead decision.  Late last week, the U.S. Department of Justice moved to intervene as a plaintiff in the case.  This development is hardly a shock.  Last summer, DOJ issued a letter to the state, which informed the state of DOJ's finding that Oregon's reliance on sheltered workshops violated Olmstead.  But subsequent settlement negotiations did not lead to a satisfactory resolution, so the Department chose to intervene.

National Council on Disability Seeks "Further Research and Negotiation" Before New Wage-and-Hour Rules for Personal Assistance

See this letter from NCD to the Office of Management and Budget, which is considering regulations prepared by the Department of Labor on the issue.  The letter begins:

Thank you for meeting with the National Council on Disability (NCD) and members of the disability and aging communities on March 15, 2013, to discuss the Department of Labor’s (DOL) proposed changes to the Companionship Exemption to overtime compensation under the Fair Labor Standards Act. The complexity of this issue is reflected in the extensive time that DOL, your office, and others have spent crafting and reviewing the proposed rule and the many opinions expressed to guarantee that consistent and fair standards of pay are ensured for the growing industry of companion and service provider caregivers. There is a clear concern expressed by consumers that the proposed rule will create changes that have a significantly adverse impact on the community of Americans with disabilities and seniors that rely on such services. Therefore, NCD urges OMB to require DOL to engage in further research and negotiation in order to fairly balance the complex needs of both the service providers and the disability and aging communities.

Plaintiffs, California Settle In-Home Support Cuts Lawsuit

See this press release, which begins:

Lawyers representing IHSS consumers, unions and the State of California have reached a settlement that will prevent the implementation of devastating cuts to In-Home Supportive Services (IHSS). The settlement resolves a federal lawsuit, David Oster et al. v. Lightbourne (formerly V.L. v. Wagner). The settlement also resolves a second lawsuit challenging wage reductions for IHSS providers.

In the Oster lawsuit, IHSS recipients and their caregivers had won temporary court orders over the past 4 years that stopped the State from implementing cuts to IHSS. These cuts would have meant a significant reduction in hours, or complete disqualification from IHSS, for hundreds of thousands of current IHSS recipients. The State had appealed the earlier favorable court decisions, which meant that a higher court could allow the deep cuts in IHSS to go into effect. Finally, the settlement provides a pathway to stabilize the IHSS program with new revenue and the possibility of restoring all cuts in IHSS hours (including the 3.6% cut that went into effect in 2009) over the next two years.

In the settlement, the State has agreed to repeal and eliminate two major cuts to IHSS: (1) the 20% across-the-board reduction in IHSS hours from 2011, and (2) the termination or reduction in IHSS for many recipients based on their functional index score from 2009.

Instead, the settlement:

• Replaces the permanent 20% cut in IHSS hours with a temporary 8% cut in July 2013. (This is an additional 4.4% on top of the 3.6% current cut.) 

• Reduces the cut to 7% (3.4% on top of the 3.6% current cut) in July 2014. 

• Restores the hours lost from the 7% cut as early as the spring of 2015 if the State obtains federal approval of a provider fee which could bring significant new federal revenue to California. 

• Commits any savings from retroactive federal approval of the new provider fee to fund a program to benefit IHSS recipients, such as the SSI Special Circumstances program, which was used to pay for refrigerators and stoves, rent to avoid eviction and other emergency needs but has not been funded in the budget for many years.

Settlement in New Jersey Olmstead Suit

Somehow I missed this a couple of weeks ago, but New Jersey has agreed to settle Disability Rights New Jersey's longstanding Olmstead litigation challenging unnecessary institutionalization of individuals with intellectual disabilities in the state's Developmental Centers.  The agreement provides that the state will, over the next five years, place 600 individuals currently residing in Developmental Centers into the community.  The agreement also provides for diversion and pre-admission review so that individuals are not unnecessarily placed in Developmental Centers in the first instance.  And it provides that the state's executive branch will seek sufficient funding from the legislature for community-based services and will expand community-based supports through the state's Medicaid waiver.  (I should note that while I was at DOJ, I argued the summary judgment motion in this case representing the United States, which filed as an amicus in support of the plaintiffs.  The US was not a party to this agreement.)

Fourth Circuit Upholds PI in Personal Care Cut Case

Yesterday, the United States Court of Appeals for the Fourth Circuit issued an opinion in Pashby v. Delia, --- F.3d ----, 2013 WL 791829 (4th Cir., Mar. 5, 2013).  In this case, North Carolina had tightened the eligibility requirements for in-home personal care services (PCS) under Medicaid.  A number of PCS recipients filed suit under the Medicaid Act, the ADA, and Section 504 of the Rehabilitation Act.  The district court granted a preliminary injunction to halt the cuts and certified a plaintiff class.  The state appealed.  Yesterday's decision addressed the state's appeal from the preliminary injunction.

Upholding the district court's conclusion that the plaintiffs were likely to succeed on the merits of their ADA/Section 504 claims, the Fourth Circuit held that the district court had not abused its discretion in concluding that the new eligibility standards placed them at a significant risk of institutionalization.  After the new eligibility standards were put in place, the plaintiffs argued, it would be easier to obtain personal care services in a congregate "adult care home" than in one's own home.  The state argued that the ADA does not prohibit placing people with disabilities at risk of institutionalization.  The Fourth Circuit, deferring to the views of the Department of Justice, disagreed:

Because Congress instructed the DOJ to issue regulations regarding Title II, we are especially swayed by the DOJ's determination that “the ADA and the Olmstead decision extend to persons at serious risk of institutionalization or segregation and are not limited to individuals currently in institutional or other segregated settings.” U.S. Dept. of Justice,Statement of the Department of Justice on the Integration Mandate of Title II of the ADA and Olmstead v. L.C.,http://www.ada.gov/olmstead/q & a_ olmstead .htm (last updated June 22, 2011); see also Olmstead, 527 U.S. at 597–98 (“Because the Department is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.” (citation omitted)). Moreover, the Tenth Circuit has held that “there is nothing in the plain language of the regulations that limits protection to persons who are currently institutionalized.” Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir.2003). In sum, individuals who must enter institutions to obtain Medicaid services for which they qualify may be able to raise successful Title II and Rehabilitation Act claims because they face a risk of institutionalization.

The state also argued that adult care homes are not institutions.  But the Fourth Circuit, again deferring to the views of the Department of Justice, disagreed.  And the state argued that "continuing to offer in-home PCS to the class members and named Appellees constitutes a fundamental alteration due to the administrative and financial burdens it entails."  The Fourth Circuit rejected that argument, too.  The court "join[ed] the Third, Ninth, and Tenth Circuits in holding that, although budgetary concerns are relevant to the fundamental alteration calculus, financial constraints alone cannot sustain a fundamental alteration defense."

The Fourth Circuit also concluded that the plaintiffs satisfied the other three requirements for a preliminary injunction (irreparable harm, balance of hardships, and the public interest), so it agreed that a PI was warranted.  The court remanded, however, because it concluded that the preliminary injunction issued by the district court failed to satisfy Rule 65's specificity requirement.  It thus directed the district court to describe the enjoined conduct in greater detail.

Judge Agee dissented.  He concluded that the plaintiffs had not shown a sufficient risk of institutionalization to establish a likelihood of success on the merits.  He also concluded that the state had presented a sufficient fundamental alteration defense to make the plaintiffs unlikely to succeed.

Obama Administration to Finalize Home-Care Workers' Wage-and-Hour Rules?

So says The Hill.  (Thanks to Alice Wong for the tip!)  Its article begins:

The Obama administration is moving forward with a contentious and long-dormant proposal to institute minimum wage and overtime standards for the in-home healthcare industry. 

Enactment of the regulations, which are under final review at the White House, would represent a major victory for unions that have fought for decades to win higher pay for direct-care aides.

But industry groups warn that the rule would cause home-care expenses to skyrocket, hurling an otherwise healthy sector of the economy into upheaval.

Just to be clear, it's not just industry groups that have raised concerns about earlier versions of this rule, but also disability rights groups, which fear that substantially raising the cost of personal assistance services without increasing Medicaid reimbursements will force people with disabilities into nursing homes.  See these comments from DREDF as an example.  It will be interesting to see how the Department of Labor responded to the disability community's concerns.

A Failure-to-Comply-With-Olmstead Horror Story

See this article.  An early excerpt:

Pereira wanted her teenage son to live at a place called Baby House, a small group home for medically fragile children and young adults, with a long track record of treating children like Bryan as family. His care would have cost the state $300 per day there. 

State health and disability administrators had a different plan: For $200 more each day, Bryan would live in a nursing home. 

“I don’t want my son in this place,” Pereira wrote to disability administrators of the Florida Club Care nursing home in Miami Gardens. “If something happened with my son, [if] he died,” she wrote, “I will feel that this place killed” him. 

Two years later, that is just how Pereira feels.

Third Circuit: Objecting Guardians Had a Right to Intervene in Remedial Stage of Olmstead Deinstitutionalization Case

Last week, the United States Court of Appeals for the Third Circuit issued an opinion in Benjamin ex rel. Yock v. Department of Public Welfare.  The case was brought by five plaintiffs with intellectual disabilities who reside in institutions operated by the Commonwealth of Pennsylvania.  They alleged that the institutions were not the most integrated setting appropriate to their needs, and that the Commonwealth was therefore violating the ADA as interpreted in the Olmstead case.  The district court certified a plaintiff class consisting of:

All persons who: (1) currently or in the future will reside in on[e] of Pennsylvania's state-operated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement.

A group of guardians and next friends who opposed community placement for their wards who resided in state institutions sought to intervene following certification of the class.  The district court denied that motion, and the Third Circuit, in an unpublished opinion filed last year, affirmed.  In last year's opinion, the Third Circuit explained that:

The current parties have deliberately defined the class and the relief sought so that Intervenors' right to choose institutional treatment would not be affected. 

The District Court made its intent clear. The class it certified expressly excludes all current and future residents of ICFs/MR who oppose, or would at any relevant time in the future oppose, community placement. It therefore excludes Intervenors, and they will not be personally bound by anything that is decided in this litigation. It follows that, if the DPW should threaten in the future to coerce them into leaving their current institutions, Intervenors would be free to file their own suit and litigate whether they have a legally enforceable right to remain in the institution where they currently reside.

Shortly after the Third Circuit affirmed the denial of intervention, the plaintiffs and the Commonwealth reached agreement on a proposed settlement of the litigation.  In its opinion last week, the Third Circuit described the settlement as follows:

This fifteen-page document contains several significant components, including the establishment of: (1) an annual assessment process to create, maintain and update a “Planning List” consisting of “all state ICF/MR residents who have been identified as not opposed to discharge to community placement” (JA470); (2) educational, training, and outreach programs about community placement; (3) a viable “Integration Plan” providing community placements to a minimum number of ICF/MR residents on the Planning List in each fiscal year until each and every resident on the Planning List has been discharged; and (4) a number of budgetary steps designed to facilitate compliance with this Integration Plan.

The objecting guardians filed objections to this settlement, and they also filed a new motion to intervene to participate in the remedial stage of the case.  The district court denied the motion to intervene, but it said that it would consider the guardians' objections in deciding whether to approve the settlement.  After a fairness hearing, at which the guardians participated and presented their objections, the district court approved the settlement.

In its opinion last week, the Third Circuit reversed the district court's denial of the guardians' motion to intervene in the remedial stage of the case.  The appellate court concluded that "there are several components of the Settlement Agreement reached by the parties (and ultimately approved by the District Court after it denied Appellants' motions to intervene) that may affect or impair the protectable interests of Appellants themselves as well as other ICF/MR residents, guardians, and involved family members."  The court also said that "Appellants' interests in this stage of this complex yet important case—and the possible effects of the disposition of this stage on their interests—extend to the District Court's underlying class definition."  Accordingly, the Third Circuit held that the district court abused its discretion by denying intervention to the objecting guardians at the remedial stage.  But the appellate court was careful to emphasize the limited nature of its holding:

We merely determine that, given the possible effects of the Settlement Agreement, Appellants possess “a sufficient interest” in the remedy stage of the litigation and that their “interest may be affected or impaired as a practical matter” by the disposition of this distinct stage of this complex yet important case. We express no opinion whatsoever as to whether or not the Settlement Agreement (or any other settlement that may be reached in this proceeding) should ultimately be approved—or whether the class itself should or should not be decertified. All such matters must be decided in the first instance by the District Court on remand—with the full and appropriate participation of Appellants as Rule 24(a)(2) intervenors.

Independent Reviewer's Report on Virginia Compliance with DOJ Olmstead Settlement

See this article, which begins:

So far, Virginia has met the requirements in a court settlement to reform the system of care for people with intellectual and developmental disabilities, according an independent reviewer’s report released this week. 

The reviewer, Donald J. Fletcher, stated that Virginia has shown “good faith effort” to comply with the agreement in the first seven months since a judge approved the settlement between the state and the U.S. Department of Justice. 

Federal attorneys charged that Virginia’s service system was failing hundreds of people living in large, out-dated institutions, as well as thousands of people living in the community without support services.

Florida Teen Dies After Disabled Mom Loses Custody

See this story by that title.  It seems to combine discrimination against parents with disabilities and the failure to provide community services to kids with disabilities.  Ugh.

Cuomo Creates Cabinet on Integrating People with Developmental Disabilities

See this article, which begins:

Gov. Andrew Cuomo issued an executive order Friday advancing the state’s efforts to place developmentally disabled people in integrated, community-based settings rather than state institutions. 

Cuomo’s order created a cabinet that will design a plan for how to implement federal law that aims to prevent disabled people from being segregated from the general population, both in where they live and how they spend their days. 

The cabinet, which includes officials from state agencies dealing with the disability community as well as several of the governor’s top aides, will present a plan to Cuomo in May. Roger Bearden, who Cuomo last year appointed chairman of the Commission on Quality of Care and Advocacy for Persons with Disabilities, will serve as the cabinet’s leader.

I like the focus not just on where people with disabilities live but on "how they spend their days."  Very important

A Response to the Free Press on Deinstitutionalization

I seem to have done a number of long, discursive posts lately.  Here's another.

My local big-city paper, the Detroit Free Press, has done a great series of articles over the past several months regarding the lack of services for people with mental illness in Michigan.  The series is a good example of what quality, in-depth journalism can be.  But in an editorial last Sunday, the paper took a wrong turn.  Among some other proposals that are quite valuable, that editorial argues that the state should “put a moratorium on closing psychiatric beds” and “should seriously consider adding some” at the state’s psychiatric hospitals. 

That argument reflects the view that deinstitutionalization was the cause of the problems in the mental health system, and that stopping or reversing deinstitutionalization will help solve those problems.  That view is widely held.  But it is wrong.  In my recent Cardozo Law Review article, I showed that where deinstitutionalization has not fully achieved its goals, that is not because psychiatric hospitals are a particularly good setting for serving people with mental illness.  Rather, it is because states have too often seen deinstitutionalization as largely an opportunity to save money.  They have closed institutions, but they have not sufficiently invested in the services and supports that enable people with mental illness to flourish in their homes and communities.

As the Free Press's own reporting shows, Michigan has replicated this pattern.  An article on September 16 observed that despite the heavy burden that deinstitutionalization placed on community mental health services, the money for those services “never materialized.  In fact, mental health spending failed to keep pace even with inflation.”

To respond to the failure to fund community-based services by choosing reinstitutionalization could make sense only if people with mental illness were better served in psychiatric hospitals than in their homes and communities.  But we know that the opposite is true.  Over the past four decades, a robust evidence base has demonstrated that people with mental illness are more likely to thrive when they receive appropriate services and supports in the community than when they are institutionalized.  The federal Substance Abuse and Mental Health Services Administration has concluded that independence and participation in society, as well as community relationships and social networks, are essential to mental health recovery.

The evidence has also identified the services and supports that people with mental illness need to thrive in the community.  These include: supportive housing, which provides stable and permanent housing to people with mental illness in their own apartments, with services coming to them as needed; intensive and coordinated clinical services, such as those provided by multimember, multidisciplinary Assertive Community Treatment teams; and community-based crisis services, which respond to mental health crises, defuse them, and address their causes without triggering prolonged institutionalization.  All of these services exist in Michigan, and many people with mental illness in the state are flourishing outside of psychiatric hospitals because of them.  But the state has failed to make sufficient investments in these community-based services.  The Free Press's reporting has shown us the results.

More than anything else, it is the state’s failure to provide appropriate community-based housing that has led to the problems of homelessness and incarceration that the Free Press's reporting identified.  In its most recent “Grading the States” report, for example, the National Association for Mental Illness rated Michigan below average in providing housing for people with mental illness. 

The solution to this problem is not to reinstitutionalize people with mental illness.  Reinstitutionalization is more costly, and less effective, than providing services in the community.  And it will likely violate the ADA, as interpreted by the Supreme Court in the Olmstead decision.  The U.S. Department of Justice has been aggressively enforcing the Olmstead community-integration mandate in recent years.  (As all three of my readers know, I played some role in this effort before I left my DOJ appointment and returned to my teaching job a year and a half ago.)  Reinstitutionalizing people with mental illness could tie up the state in lengthy and expensive investigations and, potentially, litigation with the DOJ and private advocacy groups.

Michigan should not go down that path.  Instead, it should—finally—make sufficient investments in integrated supported housing and other community-based services so that Michiganders with mental illness do not have to live on the streets or in a jail or prison.