Law & Psychiatry: Has the ADA Been Reborn as a Tool of Broad Community Change for People With Mental Disabilities?

On March 17, 2014, in U.S. v. State of New York (1), Federal District Judge Nicholas Garaufis approved a settlement decree by which the State of New York agreed to create supported housing units and other community services for approximately 4,000 individuals residing in 23 large adult homes in New York City. The origins of this matter go back more than a decade. In 2003, shortly after publication of a series of stories detailing the horrific conditions faced by many people with mental disabilities who lived in adult homes in New York City (2), Disability Advocates, a protection and advocacy organization representing people with mental disabilities, sued the Governor of the State of New York and various state officials. The plaintiffs asserted that the Rehabilitation Act of 1973 and the ADA, as applied by the U.S. Supreme Court decision in Olmstead v. L.C. (3), required the state to treat individuals residing in adult homes in the most integrated community settings possible. The case was brought on behalf of “individuals with mental illness residing in, or at risk of entry into, adult homes in New York City with more than 120 beds and in which 25 residents or 25% of the resident population (whichever is fewer) have a mental illness.”

After a five-week trial, Judge Garaufis found that the plaintiffs had demonstrated that the state had violated its duties under the ADA and the Rehabilitation Act (4). In his 2009 decision, he concluded, “The overwhelming evidence in the record compels the court to find . . . that Adult Homes are institutions,” not integrated care settings most suited to plaintiffs’ needs (4). In March 2010, the court issued an order directing that all affected individuals who wanted a placement in supported housing be afforded one (5). To accomplish this, the court directed the state to create housing as necessary, a very broad mandate given uncertainty regarding whether Olmstead could be used to mandate the creation of new resources by states (6). However, the Federal Court of Appeals for the Second Circuit reversed the district court and vacated its order, on the ground that Disability Advocates lacked proper legal standing (that is, lacked sufficient legal interest to bring its claim) (7). As a result, the case ended with New York not obligated to implement the broad relief ordered by Judge Garaufis.

However, the U.S. Department of Justice, which had entered the original litigation seven years after it began, gave notice that it intended to bring a new ADA-based lawsuit against New York asking for virtually the same relief originally required by Judge Garaufis. Governor Andrew Cuomo and his administration agreed to settle the matter, and the result is a far-reaching settlement decree in which the state agrees to “fund Supported Housing units in a quantity sufficient such that every NYC Adult Home Resident for whom Supported Housing is appropriate in accordance with . . . this Agreement is afforded the opportunity to transition to a unit during the time when this Agreement is in effect” (8) To accomplish this, New York has agreed to construct several thousand housing units as necessary to provide housing for the approximately 4,000 individuals in adult homes affected by the decree.

The decree therefore reifies supported housing (also known as supportive housing) as the preferred model of housing and person-centered care planning as the vehicle for organizing treatment—both approaches to care that have been adopted as best practices in many jurisdictions, in large measure because they are favored by consumers of services. For example, a recent review of all available research characterized the empirical evidence for the efficacy of permanent supportive housing as “moderate” and noted that it is the type of housing most endorsed by people with mental illnesses (9). In addition, person-centered care planning lies at the heart of current thinking regarding recovery (10). The fact that the settlement agreement incorporates both supported housing and person-centered care planning as key components has the practical effect of aligning the legal obligations New York has now assumed with current best practice.

In the second case, on April 8, 2014, the U.S. and Rhode Island entered what the U.S. Department of Justice characterizes as “the nation’s first statewide settlement agreement vindicating the civil rights of individuals with disabilities who are unnecessarily segregated in sheltered workshops and facility-based day programs” (11). In this matter, the Department of Justice had issued findings that Rhode Island violated the ADA and Olmstead by failing to serve individuals with intellectual and developmental disabilities in the most integrated setting, thereby effectively continuing the de-facto segregation of those individuals from life in the community. The Department of Justice specifically found that Rhode Island placed approximately 80% of the 2,700 individuals with intellectual and development disabilities who were receiving state services in segregated settings, with only 12% placed in individualized, integrated employment. In the decree, Rhode Island has committed to provide supported employment to approximately 2,000 people over the next decade, with individuals assured at least payment at the minimum wage, interaction with peers, and the opportunity to work the maximum number of hours possible, consistent with their preferences and abilities (11).

Although the Rhode Island case addresses the needs of individuals with intellectual and developmental disabilities, the underlying claim pursued by the Department of Justice could also be applied to the treatment of people with mental illnesses. Like supportive housing and person-centered care, supported employment has attained the status of a best practice with considerable empirical support for its effectiveness (12,13). Its inclusion as the centerpiece of the settlement decree with Rhode Island illustrates the utility of the ADA as a tool for promoting systemic change consistent with best-practice principles.

These two cases are the latest examples of what appears to be a broad effort on the part of the current Department of Justice leadership to aggressively use the ADA and the mandate of Olmstead to leverage the integration of people with mental illnesses into community life in areas essential to community tenure. Early litigation on behalf of people with mental illnesses used constitutional law as the basis for claims that there was a substantive right to treatment. However, for many reasons the success of those theories in challenging conditions in state psychiatric hospitals and other government institutions did not translate into community-based litigation resulting in the development of community services and support. The abandonment of constitutional law as a foundation for class action lawsuits on behalf of people with mental disabilities and the reliance on the ADA recognizes both the limits of constitutional law as an agent of broad change and the apparent potential of the ADA to accomplish such change (14).

Resorting to the ADA is not a new phenomenon. For example, in the past two decades, there has been a significant amount of litigation invoking the Olmstead integration mandate to expand access to home- and community-based services paid for by Medicaid, where many states have had long waiting lists (15). What is different about these latest cases, particularly New York’s commitment to dramatically expand housing for people with mental illnesses now confined to adult homes, is that they effectively extend the reach of the ADA to achieve broad reform of the community care system. This is a quite remarkable development. In the past, states resisted efforts to use the ADA to precipitate system change, relying on the Supreme Court’s caution in Olmstead that the ADA could not be used to create a remedy that constituted a “fundamental alteration” of state policy or services (16). Indeed in the original litigation asking for relief for people in adult homes, New York chose to fight the claim, eventually winning dismissal by a federal court of appeals. For the settlement decree to occur, Governor Andrew Cuomo had to agree to create new services, something not every governor will be willing to do.

Whether the Department of Justice continues to extend the reach of the ADA will depend in part on whether states choose to fight class-based ADA claims. In such cases, the state may prevail, given continued uncertainty over whether the ADA in a litigated rather than a settled case can be used to force a state to create new capacity for service provision. However, the Department of Justice and other advocacy organizations are now pursuing strategies that present state officials with the choice that dominated much early right-to-treatment litigation: whether to settle or litigate. In the New York and Rhode Island cases, state officials chose to settle and in doing so have committed their states to legally binding expansions of community services based on the best available knowledge about best practices.

President George H. W. Bush, in signing the ADA into law, declared that “It signals the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life” (17). After several years of U.S. Supreme Court decisions that made it increasingly difficult for individuals with disabilities to prevail under the ADA, Congress at the end of President George W. Bush’s presidency enacted legislation restoring the ADA to its original intent (18). That legislation and these recent far-reaching decrees suggest that nearly 25 years after its enactment, the original promise of the ADA is finally being realized.

The author reports no competing interests.