ADA Emerging as Tool to Promote Best Practices in Community Care

Two recent settlement agreements between the federal government and the states of New York and Rhode Island promise sweeping change in housing and employment for thousands of individuals with mental disabilities and a reinvigoration of the Americans With Disabilities Act (ADA) to produce change “on the ground” for people with mental illness.

John Petrila, J.D.

In a “Law and Psychiatry” column in the July Psychiatric Services, John Petrila, J.D., describes the agreements, which adopt “best practices” as the foundation for community change.

“The cases are significant not only because they illustrate the growing role of the ADA as a tool for systems change in community settings, but also because in both cases, the agreements incorporate best practices as a foundation for expanded community capacity,” Petrila noted. “In doing so, they reinforce the notion that the ADA, in at least some circumstances, has become the legal tool for dramatic community-based change, something that constitutional right-to-treatment theories failed to accomplish.”

Petrila is a professor in the Department of Health Policy and Management at the University of South Florida’s College of Public Health.

In comments to Psychiatric News, Petrila noted that a series of Supreme Court decisions in the early 1990s stripped the ADA of authority to force states to create a remedy that constituted a “fundamental alteration” of state policy or services. But he said that the involvement of the federal government in the cases in New York and Rhode Island offers a new strategy whereby states may opt to settle out of court—as New York and Rhode Island have done.

He noted that the Obama administration has renewed the use of the ADA to enact change in housing and employment services policy for people with mental illness.

In New York, the Department of Justice (DoJ) gave the state notice that it intended to bring a new ADA-based lawsuit to remedy a more than decade-old dispute involving quality of housing for individuals with mental illness residing in city-provided adult residential homes in New York City. Gov. Andrew Cuomo (D) and his administration agreed to settle the matter, and the result, according to Petrila’s column, is a far-reaching settlement decree in which the state agrees to construct several thousand housing units for the approximately 4,000 individuals in adult homes affected by the decree.

In Rhode Island, the DoJ said that the state had violated the ADA, as interpreted by the Supreme Court’s 1999 Olmstead v. LC decision, by failing to serve individuals with intellectual and developmental disabilities in the most-integrated setting possible, thus continuing the de facto segregation of those individuals from life in the community. Specifically, DoJ found that Rhode Island placed approximately 80 percent of the 2,700 individuals with intellectual and development disabilities who were receiving state services in segregated settings, with only 12 percent placed in individualized, integrated employment.

In the decree, Rhode Island commits to providing 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.

Petrila notes that although the Rhode Island case addresses the needs of individuals with intellectual and developmental disabilities, the underlying claim pursued by the department could also be applied to the treatment of people with mental illness.

“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,” Petrila writes. “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.”

Paul Appelbaum, M.D., editor of the “Law and Psychiatry” column in Psychiatric Services and a former APA president, told Psychiatric News that beginning in the 1960s, efforts have been made to use the courts to compel mental health system change but that judges—though they have often been willing to proclaim “negative rights” for people with mental disorders and other disabilities (such as the right to be free of unnecessary confinement)–have been more reluctant to find constitutional bases for “positive rights” (such as the right to services in the community).

“The recent cases discussed by Prof. Petrila highlight a different strategy to achieve the latter end,” said Appelbaum, who is the Dollard Professor of Psychiatry, Medicine, and Law at Columbia University. “Rather than seeking to establish constitutional rights to services, advocates are now turning to the [ADA] as a lever to promote system change. Beginning with the Supreme Court’s decision in Olmstead in 1999, the courts have been receptive to arguments that states’ failure to provide adequate community-based services fosters exclusion of people with mental disorders and hence violates the ADA. The two latest cases demonstrate that some states are now unwilling even to fight such claims, but prefer to create needed services before ordered by the courts to do so. Although it remains to be seen if other states will follow the lead of New York and Rhode Island, these cases illustrate just how potent a tool the ADA has become for promoting community-based care.” ■