Edward J. Rao, Topics Chair, Staff Writer
On September 8, a federal judge for the Eastern District of New York ruled that New York State violated Title II of the Americans with Disabilities Act (“ADA”) as well as Section 504 of the Rehabilitation Act by failing to provide housing and services “in the most integrated setting” to nearly 4,300 individuals currently living in “Adult Homes” under the supervision of the state. The 210-page opinion, authored by United States District Judge Nicholas G. Garaufis, stated that the “integration mandate” of both the Americans With Disabilities Act and the Rehabilitation Act was violated when individuals who could otherwise be thriving in supported housing, offering them most all of the amenities of their nondisabled peers, languished in Adult Homes, which the Court likened to “de facto institutions and satellite mental institutions.”
As reported by the New York Times on September 8, the ruling appears “likely to affect similar cases in other states.” The suit was filed by Disability Advocates, Inc., an organization aimed at protecting the rights of people with disabilities. The named defendants included New York Governor David Paterson, as well as the commissioners of the New York Department of Heath and the New York Department of Mental Health, respectively. At the core of plaintiff’s argument was the notion that by not enabling residents to “interact to the fullest extent possible with nondisabled persons[,]” New York’s services ran afoul of the United States Supreme Court’s mandate in the landmark disability rights case Olmstead v. L.C. By Zimring. The Court agreed, holding that:
Supported housing is an integrated, community-based setting that enables interaction with nondisabled persons to the fullest extent possible. People who live in supported housing have the autonomy to live and participate in their communities in essentially the same ways as people without disabilities. Simply put, residents of supported housing are not defined by the setting in which they receive services. Residents of supported housing have far greater opportunities to interact with nondisabled persons and be integrated into the larger community.
1998 marked the tenth anniversary of the United States Supreme Court’s ruling in Olmstead, in which the Court held that the unnecessary segregation of individuals with disabilities in institutions constitutes discrimination under Title II of the ADA. The facts of Olmstead are as follows: Plaintiffs-respondents Lois Curtis and Elaine Wilson, both mentally retarded women (Wilson had also been diagnosed with schizophrenia), were patients at Georgia Regional Hospital in Atlanta. Treatment officials at an Atlanta state psychiatric hospital deemed the women fit for discharge into community-based living programs, but positions were never given to them, and the women remained institutionalized. Crucial to the case was the question of the meaning of the so-called “integration regulation” of Title II, which read that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” Eventually, a suit was brought by the Atlanta Legal Aid Society on behalf of the plaintiffs against the Georgia State Commissioner of Human Resources. After being granted summary judgment by the district court, the State, on appeal before the Eleventh Circuit, argued that Curtis’ and Wilson’s continued institutionalization was not due to of any sort of discrimination based on their respective disabilities (the existence of which was never in dispute), but rather due to lack of funding. The Court of Appeals rejected this argument, noting that “the plain language of the ADA’s Title II regulations, as well as the ADA’s legislative history, make clear that Congress wanted to permit a cost defense only in the most limited of circumstances.”
At the Supreme Court, Justice Ginsburg posed the issue in the case as simply “whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions.” A majority of the court held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability[,]” and that:
[s]tates are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that  such placement is appropriate,  the affected persons do not oppose such treatment, and  the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.
Not long after Olmstead, scholars began dissecting the ruling in an attempt to determine whether or not it would meet its goals of a greater movement towards community placement. After over ten years of repeated decisions to the contrary, it seems that Disability Advocates may serve as a harbinger of much-needed reform. Crucial to Defendant’s argument was that forcing New York State to remove over 4,000 individuals with mental illness to greater integration into the broader community would “fundamentally alter” the existing state scheme, something that was not required by the state under the mandates of Olmstead. Indeed, perhaps the most determinative aspect of the Court’s opinion in Olmstead to many subsequent courts concerns was whether moving plaintiffs into community-based living would constitute a “fundamental altercation” to a state’s overall plan. This language recognizes a clause of Title II stating that a public entity is not required to “make reasonable modifications in policies, or procedures when the modifications are necessary to avoid discrimination on the basis of disability . . .” when it can be shown that such modifications “would fundamentally alter the nature of the service, program, or activity.” Indeed, many post-Olmstead courts have shown great deference to state programs in the face of challenges by plaintiffs asserting that Olmstead entitles them to more rapid movement towards community placement. Yet in the last decade, more courts have given guidance as to what circumstances may require a state to move individuals with disabilities into community placement, even in the face of budget restaints and other, perhaps more pressing considerations. For example, in Benjamin H. v. Ohl, the United States District Court for the Southern District of West Virginia held that by causing “plaintiffs to be placed on waiting lists [for a home and community-based waiver program] ranging from nearly a year to more than eight years,” the state “violat[ed] the requirement that assistance be furnished with reasonable promptness[,]” and that because the services that plaintiffs were receiving while on a waiting list were not “at home and community-based[,]” the services “are insufficient to meet the level of services required . . .” Indeed, it is perhaps determinative in Disability Advocates that Plaintiffs were able to successfully show that “serving DAI’s constituents in supported housing rather than Adult Homes would not increase costs to the State.”
Early in his opinion in Disability Advocates, Judge Garaufis noted that “DAI [had] proven by a preponderance of the evidence that Defendants have discriminated against DAI’s constituents by reason of their disability.” Recognizing that “the law requires that public entities ‘administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities[,]‘” the Court noted that the large, impacted Adult Homes at issue in this case do not enable interactions with nondisabled persons to the fullest extent possible, and that the State’s supported housing programs offer a setting that enables interactions with nondisabled persons to a far greater extent.
It remains to be seen whether the Second Circuit will affirm the District Court’s decision, or, should certiorari be granted, whether the Supreme Court will extend their original holding in Olmstead as applying to for-profit institutions in addition to those in the public domain. For now, a remedy to New York’s “Adult Homes” is due to be presented by the state to the Eastern District “no later than October 23, 2009.”
Edited by Joe Slater and Stephen Dushko
 Disability Advocates, Inc. v. Paterson, 2009 WL 2872833 (E.D.N.Y. Sept. 9, 2009).
 Id. at 8.
 See Associated Press, Federal Judge: NY Violated Rights of Mentally Ill, N.Y. Times, Sept. 8, 2009, available at http://www.nytimes.com/2009/09/09/nyregion/09mental.html
 The Court noted that DAI are “authorized by statute to bring suit on behalf of individuals with disabilities . . . .” Disability Advocates, 2009 WL 2872833 at 2.
 Olmstead v. L.C. By Zimring, 527 U.S. 581 (1999).
 Disability Advocates, 2009 WL 2872833 at 26.
 Olmstead v. L.C. by Zimring, 527 U.S. 581 (1999); Americans with Disabilities Act, 42 U.S.C.S. §§ 12131-12134 (2000); 28 C.F.R. § 35.130(d) (1998).
 See Olmstead, 527 U.S. at 589 n.2 (“The ADA defines ‘disability’ ‘with respect to an individual’ as ‘(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.’”)
 Id. at 529.
 For an excellent resource on the background of the parties to the case, see The Judge David Bazelon Center for Mental Health Law, Olmstead v. L.C. Online Resource Center, available at http://www.bazelon.org/issues/disabilityrights/incourt/olmstead/index.htm. Interestingly, both Elaine Wilson and Lois Curtis were moved to community-based living while the case was under commencement, but continued their action against Commissioner Olmstead “because the situation could arise again.” See Background on Olmstead, available at http://www.bazelon.org/issues/disabilityrights/incourt/olmstead/lcbkgrnd.htm.
 28 CFR § 35.130(d) (1998). See also Olmstead, 527 U.S. at 592.
 L.C. by Zimring v. Olmstead, 138 F.3d 893, 904 (11th Cir. 1998) (“Reduced to its essence, the State’s argument is that Title II of the ADA affords no protection to individuals with disabilities who receive public services designed only for individuals with disabilities.”).
 Id. at 902, 904 (“L.C. and E.W. have demonstrated that the State may reasonably modify its provision of services by providing treatment to them in an integrated setting. L.C. and E.W. point out that, under Georgia law, the State has the authority to transfer funds between institutional and community-based treatment programs based on need.”).
 Olmstead, 527 U.S. at 587.
 Id. at 597.
 Id. at 597, 607. The Court went on to state that “there is no genuine dispute concerning the status of L. C. and E. W. as individuals “qualified” for noninstitutional care: The State’s own professionals determined that community-based treatment would be appropriate for L. C. and E. W., and neither woman opposed such treatment.” Id. at 602-03.
 See, e.g., Jefferson D.E. Smith & Steve P. Calandrillo, Forward to Fundamental Altercation: Addressing ADA Title II Integration Lawsuits After Olmstead v. L.C., 24 Harv. J.L. & Pub. Pol’y 695, 754 (2001); Melody M. Kubo, Casenote: Implementing Olmstead v. L.C.: Defining “Effectively Working” Plans for “Reasonably Paced” Wait Lists for Medicaid Home and Community-Based Services Waiver Programs, 23 Hawaii L. Rev. 731 (2001) (analyzing what exactly constitutes a state’s “effectively working plan” that moves “at a reasonable pace.”).
 25 CFR § 35.130.
 25 CFR § 35.130(b)(7) (1998).
 See, e.g., Williams v. Wasserman, 164 F. Supp. 2d 591, 638 (D. Md. 2001) (holding that modifying Maryland’s: “three to five year time frame, and considering the need to maintain a minimum number of hospital beds and also to fund placements for other persons in need of community treatment . . . [t]he immediate shift of resources sought by plaintiffs would have resulted in a fundamental alteration of the State’s provision of services within the meaning of Olmstead.”)
 For a list and description of many subsequent Olmstead-related cases, including many of those discussed in this article, see the Center for Personal Assistance Services, available at http://www.pascenter.org/olmstead/olmsteadcases.php.
 Benjamin H. v. Ohl, 1999 U.S. Dist. LEXIS 22469 (S.D. W. Va. July 15, 1999).
 Id. at 31.
 Disability Advocates, 2009 WL 2872833 at 62. But see Bryson v. Stephen, 2006 DNH 113, 1, 3 (D.N.H. 2006). Although more can always be done, the reality is that states must make difficult decisions when allocating necessarily limited resources. Neither the ADA nor the RA requires states to raise, appropriate, and spend whatever amount is necessary to immediately afford all qualified disabled persons community-based services, without regard to other needs and spending priorities).
 Bryson, 2006 DNH at 12.
 Id. at 22; 28 C.F.R. § 35.130(d).
 Bryson, 2006 DNH at 22; 28 C.F.R. § 35.130(d).
 Disability Advocates, 2009 WL 2872833 at 87. See also The Associated Press, Federal Judge: NY Violated Rights of Mentally Ill, supra note 3 (“With the ruling, the state Office of Mental Health must propose a remedy. Disability Advocates will be able to critique it. The judge will then issue an injunction spelling out what changes the state must make.”).