How the Department of Justice Can Expand Institutional Treatment

In July, President Donald Trump signed a sweeping executive order to address homelessness and serious mental illness. In part, it seeks to expand states’ use of involuntary treatment by encouraging states to adopt “maximally flexible . . . institutional treatment . . . standards,” and by reversing, as appropriate, “judicial precedents . . . that impede the United States’ policy of encouraging civil commitment.”

State commitment laws, whatever one thinks of them, will be hard to change. These statutes have been shaped by decades of court decisions and federal laws. The Department of Justice would have to convince the Supreme Court to overturn more than five decades of rulings defining the constitutional rights of people with mental illness and its interpretation of related federal statutes.

The Department of Justice has other tools at its disposal, however, to preserve “institutional treatment” and ensure that states have sufficient bed capacity to treat people with serious mental illness, including those living on the streets who are provably dangerous to themselves or others. These tools stem from the department’s investigative powers and its congressionally authorized role in interpreting the Americans with Disabilities Act (ADA).

Below are three proposals that would help not only people with serious mental illness but also people with a range of disabilities who today have fewer treatment options because of the federal government’s deinstitutionalization agenda.

First, the Department of Justice should send a memo to states clarifying its interpretation of the Supreme Court’s decision in Olmstead v. L.C. (1999)—the biggest catalyst of deinstitutionalization over the last three decades.

The case stemmed from a dispute in Georgia. Two women with psychiatric and developmental disabilities had been in a public mental hospital for years and wanted to leave. The state’s treatment professionals agreed that the women could be served in a less restrictive environment, but the hospital refused to discharge them, citing a lack of appropriate community-based alternatives.

In 1995, one of the women sued the state, arguing that her hospitalization violated Title II of the ADA, which prohibits disability-based discrimination. The other woman later joined her. Their case wound through federal courts for four years, reaching the Supreme Court in 1999.

The case raised a question that implicated all state disability and mental-health systems. Does Title II of the ADA require states to treat people with “mental disabilities” in “community-based settings”?

The Court responded with a qualified “yes.” The majority held that the ADA requires states to treat a disabled person in the “community” when three conditions are met: the state’s treatment professionals have determined that such a placement is medically appropriate; the affected patient does “not oppose” being moved from an institution; and the state can “reasonably accommodate” the person’s request for “community” care, “taking into account the resources available to the State and the needs of others with mental disabilities.”

In the majority opinion, Justice Ruth Bader Ginsburg suggested that states could demonstrate compliance with the Court’s ruling by developing “a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings.” This prompted states across the country to develop “Olmstead plans” in hopes of evading expensive federal scrutiny.

Some of the earliest Olmstead cases were class-action suits filed on behalf of disabled people in institutions. In some cases, plaintiffs’ proposed remedies would have resulted in the downsizing and potential closure of facilities. The Justice Department filed statements of interest in some of these suits, highlighting states’ failure to follow “the national trend of serving people with disabilities in the community.”

As a result, states believed that the most cost-effective way to avoid federal enforcement was simply to close institutions. Pennsylvania, for example, noted in its 2016 Olmstead plan that it had closed 364 state psychiatric hospital beds between 2010 and 2015. Washington, D.C., touted in 2017 how it had closed “the Forest Haven facility for children and adults with intellectual and developmental disabilities” and reduced the population of its public psychiatric hospital, Saint Elizabeths, “to less than 300.”

These closures may have been justified, but they do not independently demonstrate Olmstead compliance. Nothing in the Court’s ruling requires states to close facilities, much less suggests that doing so demonstrates a state’s compliance with the majority’s holding. The ruling effectively requires states to evaluate patients’ capacity to live in the community, offer qualified patients the opportunity to do so, and maintain a range of care options consistent with people’s rights and the system’s needs—nothing more and nothing less.

In fact, the justices went to great lengths to emphasize that their decision did not mandate that states close institutions. “We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings,” the majority wrote. “Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.” In his concurrence, Justice Anthony Kennedy insisted that it would be “unreasonable” and a “tragic event” if the Court’s decision were interpreted such 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.”

But this is precisely what happened. The DOJ repeatedly ignored the actual holding of Olmstead and used its investigative powers to pressure states into shuttering or downsizing their facilities. The department launched more than 50 Olmstead actions between 2009 and 2015 alone, sometimes citing states’ “investment in institutions” as evidence of their failure to comply with federal law. Partly as a result, states closed or merged 62 public psychiatric hospitals between 1997 and 2015.

As Kennedy warned against in his concurrence, the Department of Justice “pressured” states “into attempting compliance on the cheap” by “placing marginal patients into integrated settings devoid of the services and attention necessary for their condition.” For example, the DOJ forced Georgia, as a condition of terminating an Olmstead investigation, to discharge 500 people with severe developmental disabilities from facilities, 62 of whom died within three years.

DOJ investigations have encouraged states not only to close facilities but also to close or restrict admissions to existing facilities and refuse private developers’ requests to build additional beds. North Carolina, for example, hasn’t authorized new facility beds for people with developmental disabilities since the 1990s. The state noted that its administrative agencies had enacted “directives . . . that strongly discourage the development of new beds,” leading developers wrongly to “assume[] that there is a moratorium.”

The Department of Justice can correct these misunderstandings. It should send a memo to states clarifying that Olmstead does not require states to shutter, close admissions to, or prevent the construction of new facilities, provided that states meet their obligations under the ADA. Further, it should affirm that simply closing facilities—without demonstrating that affected patients did not need or opposed removal from institutional care—does not by itself demonstrate compliance with Olmstead.

Second, the Department of Justice should express to states that Olmstead does not prevent voluntary facility-based treatment, provided that community care remains available.

The Trump administration’s executive order focuses on “encouraging civil commitment.” But involuntary hospitalization, while necessary in some cases, can sometimes do more harm than good.

Some people with even the most serious mental illnesses can recognize that they are sick. When states erect unnecessary barriers to these people receiving voluntary inpatient care, the results can be tragic.

Consider Andrew Goldstein, a New Yorker with schizophrenia. Goldstein bounced in and out of psychiatric hospitals over five years and committed a string of assaults. In 1997, he was sent to the psychiatric ward of a general hospital, where he told the unit staff that he needed full-time supervision and pleaded to be committed to Creedmoor Psychiatric Center, a large state-operated mental hospital in Queens. Creedmoor had no space available because of bed reductions, and the hospital discharged Goldstein with an outpatient referral. Mere months later, he shoved Kendra Webdale in front of a subway car, killing her.

After Olmstead, some states made it difficult for patients to commit themselves to facilities voluntarily, in part because they feared the DOJ could use any increase in their institutional population—even one driven by voluntary admissions—to initiate an expensive investigation. California’s state psychiatric hospitals, for example, do not accept voluntary patients.

The Department of Justice has done nothing to dispel states’ fears. It has repeatedly signaled that it has no interest in protecting people’s ability—acknowledged in the Olmstead decision and in federal law—to choose facility-based care.

For example, when guardians file lawsuits opposing states’ efforts to remove their wards from residential facilities against their will, the Department of Justice almost always sends statements of interest to district courts rejecting the guardians’ claims. The department has long characterized Olmstead as requiring “Community Integration for Everyone” in its public communications, despite the Court’s repeated insistence that nothing in the decision requires community care to be imposed on patients who do not desire it.

The DOJ should send a memo to states clarifying that voluntary institutional treatment does not, by itself, raise Olmstead concerns. It should assure states that it will not investigate them solely for having allowed more voluntary patients into facilities. This is a straightforward application of Olmstead and is consistent with the text of the ADA, which does not “require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit which such individual chooses not to accept.” Allowing people to access facility-based services voluntarily—provided the state continues to offer community care and furnish it to those who qualify—fulfills Olmstead’s promise of a meaningful choice between facility- and community-based care.

Finally, the DOJ should amend its binding interpretation of the ADA to allow states to pursue creative community-based approaches to mental-health and disability care.

The Department of Justice has long asserted that the ADA contains an “integration mandate,” which requires states to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” This mandate, however, does not appear in the text of the law. It is based entirely on departmental interpretation of statute.

Title II of the ADA holds that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” The section instructs the Department of Justice to interpret that provision—and the rest of Title II—and implement regulations accordingly.

The DOJ has interpreted this line in Title II as requiring public entities to administer programs “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” It defines “integrated settings” as those that allow “individuals with disabilities [to] interact with non-disabled persons to the fullest extent possible.”

This is a defensible but incomplete reading of the statute. Later in Title II, we read that “[n]othing in this chapter shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided which such individual chooses not to accept.”

Accepting the DOJ’s current interpretation, states are required only to administer programs in the most “integrated setting” when a person with a disability “accept[s]” it. In other words, the law lets individuals choose to receive services in “segregated” environments—which the DOJ defines as those primarily inhabited by other disabled people—and prevents states from imposing “integrated” care on these patients against their will.

But the DOJ’s failure to include in its interpretation of Title II provisions that allow disabled people to make these choices has led states and other departments to embrace absurd conclusions about their obligations under the ADA. In 2013, for example, the Department of Housing and Urban Development attempted to prevent an Arizona developer from building housing with accommodations for deaf people, on the grounds that doing so would have resulted in too many deaf people living in one place.

Reforming the DOJ’s definition of “integrated settings” could enable providers to develop psychiatric services less restrictive than hospitalization but that nevertheless provide structured care in a disability-specific environment for those with mental illness. Farm programs are a good example. A systematic review of clinical evidence suggests that farm-based programs for people with mental illness can “alleviate depressive and anxiety symptoms in patients with treatment-resistant, persistent mental disorders” and enhance patients’ perceived social and occupational skills. Nonetheless, only six private therapeutic farms are in operation in the U.S., in part because states fear approving any facilities that the federal government could deem “segregated” and use as the basis for an expensive Olmstead investigation.

The DOJ should amend its definition of “integrated settings” under Title II of the ADA to reflect how community-based care is characterized by patients’ freedoms rather than their access to “non-disabled people.” It should define an integrated setting as one that allows qualified individuals with disabilities to interact with non-disabled persons to the extent they choose—recognizing that, on a case-by-case basis, this could include a disability-specific environment.

The Department of Justice has tools at its disposal to ensure that states can provide institutional psychiatric and disability care to people in crisis and in need of appropriate services. It can use existing law and Supreme Court precedent to achieve its goals and help people living on the streets access services tailored to their needs and those of the community.

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