xxAACP Newsletter, Volume 14, Number 2, Spring 2000
How the Olmstead v. L.C. Supreme Court Decision Will Affect Treatment Regulations for Persons with Mental Illness
In June of 1999, in its ruling on Olmstead v. L.C., the Supreme Court provided mental health advocates with a decision that legally mandates making appropriate community-based treatment available to those eligible, unless such placements will cause a state to "fundamentally alter" its provision of services. A person's eligibility will be determined by the state's mental health experts and treatment professionals. In order for the ruling to apply, there must be a unanimous recommendation among these advisors that the person will benefit from, and is also able to handle, a less-restrictive treatment setting.
The Olmstead decision is seen as a matter of civil rights for those persons with mental illness. The ruling was based on Title II (also known as the integration mandate), of the Americans with Disabilities Act (ADA), a landmark of civil rights legislation, which states that: "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)) Olmstead does not mandate de-institutionalization of all patients with mental disabilities, only those for whom community placement is recommended unanimously by experts. The ruling applies not only to those persons already institutionalized, but also to those who are being considered for institutionalization for the first time.
This recent battle for the right to community-based treatment began in 1995 when Sue Jamieson, an Atlanta legal aid attorney, filed suit on behalf of two women diagnosed with both mental illness and mental retardation. For years the two women had been shuffled between dead-end "treatment" in a Georgia psychiatric hospital, ineffective, inappropriate community services, and the streets. The Supreme Court's ruling in favor of these women, saying that a state's failure to find community placement for an eligible individual with disabilities and the resulting unnecessary segregation through institutionalization of that person constitutes discrimination, will force states to examine and rework their existing treatment policies. The Olmstead decision stipulates that states must fulfill two obligations in order to adhere to the ruling:
- They must develop comprehensive working plans for providing integrated community placement for eligible individuals with disabilities.
- They must enact the plan at a "reasonable pace."
Though the ruling recognizes existing state community treatment as an important resource, it also clearly demands that states reallocate budget resources to fund additional community placements. The court suggests that states involve individuals with disabilities and their families when creating and designing their Olmstead community-based treatment transitional plans. States have until July 26-the anniversary of the passing of the ADA-to complete their comprehensive plans. The federal government has established a working group dedicated to advising and monitoring this process and has distributed guidelines to state policy makers for implementing such Olmstead-directed plans.
It is extremely encouraging to witness states being legally required to plan for the provision of community-based mental health treatment for those eligible. However, the ADA has one definitive caveat that allows states some leeway as they examine their current treatment resources, reallocate funds, and ultimately provide their series of integrated services. Under the ADA, states are required to "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." (28 CFR 35.130 (b) (7)). Olmstead stipulated three factors that could determine services a "fundamental alteration":
- The cost of providing integrated community-based services to the individual;
- The state's available resources;
- The degree to which providing these services to an individual will affect other individuals with disabilities in the state.
It is imperative that state officials, policy makers and mental health professionals work together to create treatment plans that are fiscally responsible and also targeted wisely to provide effective, caring mental health treatment for the citizens of our neighborhoods and cities.
The Olmstead decision offers a tremendous opportunity for states across the nation to examine their treatment policies and to take a new look at how effectively state funds have been used in the past to support appropriate treatment of persons with mental disabilities. It also provides a forum for the mental health community to discuss mental health issues with our state leaders. It is important for us to support, whenever possible, our state's work by providing advice and guidance about mental health issues and by touting the lower cost and higher benefit ratio of integrated treatment for those persons able to thrive in a more independent environment.
Fred Osher, M.D.
Area III Representative
Bridgette Mueller
Fred C. Osher, MD
University of Maryland School of Medicine
645
West Redwood, Suite PIG08
Baltimore, MD 21201-1542
Phone: (410) 328-3414
FAX (410) 328-3311
Email: fosher@umpsy.ab.umd.edu
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