Will Disability Advocates Force a “Fundamental Alteration” to States’ Treatment of the Mentally Ill?

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.[1]  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.”[2]

            As reported by the New York Times on September 8, the ruling appears “likely to affect similar cases in other states.”[3]  The suit was filed by Disability Advocates, Inc., an organization aimed at protecting the rights of people with disabilities.[4]  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.[5]  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.[6]

             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.[7]  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),[8] were patients at Georgia Regional Hospital in Atlanta.[9]  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.[10]  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.”[11]  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.[12]  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.”[13]

            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.”[14]  A majority of the court held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability[,]”[15] and that:

[s]tates are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that [1] such placement is appropriate, [2] the affected persons do not oppose such treatment, and [3] the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.[16]


                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.[17]  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.[18]  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.”[19]  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.[20]  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.[21]  For example, in Benjamin H. v. Ohl,[22] 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 . . .”[23]  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.”[24]

                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.”[25]  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[,]’”[26]  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.[27]

            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.”[28]

 Edited by Joe Slater and Stephen Dushko

[1]     Disability Advocates, Inc. v. Paterson, 2009 WL 2872833 (E.D.N.Y. Sept. 9, 2009).

[2]     Id. at 8.

[3]     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

[4]     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.

[5]     Olmstead v. L.C. By Zimring, 527 U.S. 581 (1999).

[6]     Disability Advocates, 2009 WL 2872833 at 26.

[7]     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).

[8]     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.’”)

[9]     Id. at 529.

[10]    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.

[11]    28 CFR § 35.130(d) (1998).  See also Olmstead, 527 U.S. at 592.

[12]   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.”).

[13]    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.”).

[14]    Olmstead, 527 U.S. at 587.

[15]    Id. at 597.

[16]    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.

[17]    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.”).

[18]    25 CFR § 35.130.

[19]    25 CFR § 35.130(b)(7) (1998). 

[20]    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.”)

[21]    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.

[22]   Benjamin H. v. Ohl, 1999 U.S. Dist. LEXIS 22469 (S.D. W. Va. July 15, 1999).

[23]    Id. at 31.

[24]    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).

[25] Bryson, 2006 DNH at 12.

[26] Id. at 22; 28 C.F.R. § 35.130(d).

[27] Bryson, 2006 DNH at 22; 28 C.F.R.  § 35.130(d).

[28] 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.”).

3 thoughts on “Will Disability Advocates Force a “Fundamental Alteration” to States’ Treatment of the Mentally Ill?”

  1. Although I can relate to your article I can also see how the ‘No Win No Fee’ policies have developed. The certainty with No Win No Fee doesn’t need to exist with our qualification for Legal Aid.

  2. New York State MUST Appeal

    In regard to Judge Nicholas Garaufis’s decision (Sept. 8, 2009) in a case brought by Cliff Zucker of Disability Advocates against the State of New York, there are many disturbing aspects. This lawsuit was about whether or not NYS violated the federal Americans with Disabilities Act (ADA) by referring former psychiatric patients for housing in adult homes. The plaintiffs argue that these adult homes are in affect segregating their residents from a normal life within the community by virtue of the homes being too large, too regulated, and not providing the proper services. The defendant in this case is the State of New York and was defended by the NY Attorney General’s office. The judge wrote a 210 page decision outlining the reasons (all based on newspaper articles from 9 years ago, and misinformation presented by the plaintiff) why he ruled that the State is in violation of the ADA. The plaintiffs demanded, and the judge agreed, that these residents should be moved to Supported Housing units (which don’t exist) because it will not cost the State more than the cost of Adult Homes (???).
    Let us for a moment look at the numbers. This ruling was focused on almost 30 facilities all in the NYC area housing approximately 4,300 ‘mental health’ residents according to the suit. The residents of these Adult Homes receive monthly SSI checks (level 3) to cover the rent and for their own spending money. The monthly rent amount that the facility gets is $1190 ($39 per day), which covers room and board, daily housekeeping services, recreational activities, case management services, medication management, three meals (and snacks), laundry, security, and coordination of all outside services such as medical appointments and transportation. It is important to note that these homes do not bill Medicaid and are not health or medical facilities and therefore do not have any other source of funding.
    “Supported Housing” is basically an apartment with a kitchen and the necessary services are brought in from the outside at extra cost. These units cost approx. $100 per day per bed ($3,000 per month). Not even accounting for NYC’s current housing crunch, it would cost the State a conservative $200,000 per bed to construct these units. That means the State would be looking at approximately $860,000,000 just to create 4,300 new beds, and this number doesn’t even include the interest payments or operating costs! The existing adult home system at $39 per day from SSI (half of which comes from the feds) times the 4,300 residents in question is a State cost of only $31 million. So, any idiot (advocates and judges not included) can figure out that 31 million is cheaper than 1 billion plus.
    The taxpayers and citizens of New York State should not only be demanding that the State appeal this ridiculous ruling, but we also deserve an answer to some other questions such as:
    • What is the real agenda of the ‘advocates’ (Plaintiffs)? Do they have hidden interests in the creation of Supported Housing? Do they also represent housing groups looking for a windfall from the State?
    • Are the Plaintiffs really representing all (or even a majority) of the residents of these homes? How many residents do the advocates speak for? Are the satisfied residents getting the same opportunity to be heard?
    • Why weren’t the facilities named as defendants with the State? Were the plaintiffs concerned that they would put up a real defense and not lose? Why weren’t these facilities at least called to testify at the trial as to the mental and physical conditions of their residents?
    • Why does it seem that the entire case was based on old information as to the condition of the homes, the condition of its residents, and old newspaper articles? Why are the real facts as to costs not represented? Why wasn’t a recent study showing that very few of these residents are actually able to live on their own given more credence?
    • Why was this entire case only about the facilities in NYC? If the agenda was really to enforce a perceived violation of ADA laws, why not include all the facilities in the entire State?
    • Was the Judge’s apparent conflict of interest (his wife is Elizabeth Seidman, a director/board member of a supported housing group) waived by the State? If so, WHY? Does that explain why this judge takes this case so ‘personally’?
    Let’s not be fooled into thinking that the New York Times articles in 2001 describing bad conditions at a few facilities (which have since closed) are the norm in the Adult Home industry. The vast majority of facilities do an outstanding job (even with the limited resources) at caring for a population that would otherwise be homeless, in hospitals, or in jail. The fact is that residents of adult homes are not segregated, to the contrary, they live in the community, many go to work or outside day programs, and get the many services they need within the home. Not a single adult home resident was forced to live there or sign a contract. They chose to live in a place that they can call home and receive the many services they desperately need. Many comments have been posted online from ordinary citizens objecting to these residents living next door to them, with some even saying that they should be moved next door to the judge. Newspaper articles have been written claiming that the homes will be shut down because of this verdict. The sad fact is that many adult home residents are reading all this and wondering who these advocates are and who appointed them as representatives.
    Stand up Governor Paterson and appeal this crazy verdict. New York State is facing a 10 billion dollar deficit and doesn’t need to be extorted into making a payoff to those with their own questionable agendas.

  3. Marco, as the author of the above article, I’d like to point out that, in my opinion, the cost savings to the state was the most determinative factor to the judge’s ruling. Increased costs to the state have always been used by states as an affirmative defense in denying those with disabilities the right to live outside of institutional settings, hence my emphasis on Olmstead and its progeny. Had Disability Advocates been unable to show that the movement they were requesting would have saved the state money, I think it’s very likely the Court would have gone the other way. Thank you for your analysis and interest in the post..

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