By Ronald S. Honberg, Director of Policy & Legal Affairs, National Alliance on Mental Illness

In 1999, the U.S. Supreme Court issued a decision in which it found that the Americans with Disabilities Act (ADA) gives people with disabilities, including people living with serious mental illness, the right to receive services in the most integrated settings appropriate to their needs. This decision, commonly referenced as the Olmstead decision, is increasingly being used as a tool for reforming public mental health services.

Since 2008, the U.S. Department of Justice (DOJ) has been particularly active in enforcing the Olmstead decision. In states such as Georgia, Delaware, Oregon and North Carolina, DOJ has used its Olmstead authority to push for the development of comprehensive community-based services as alternatives to institutional placements for those deemed ready to live in the community.

For people living with mental illness and family members, these developments are welcome, though they are not without peril. Putting more resources into community-based care inevitably means putting fewer resources into state hospitals. Indeed, for reasons having to do more with budgetary than legal pressures, states have eliminated 4,000 hospital beds in recent years, and more hospital cuts and closures are on the horizon.

There is general agreement that most people who live with serious mental illnesses can live in the community with appropriate services and supports. And there is agreement that institutional placements are not conducive to achieving recovery and independence. But there is also awareness that the absence of comprehensive community-based services and supports, including inpatient beds for those who need them, can have horrendous consequences such as homelessness, incarceration and high rates of suicides.

Four years of budget cutting since 2008 have led to profound reductions in both community and inpatient mental health services. While cuts of this kind, imposed with a meat cleaver instead of a scalpel, are ill advised and produce suffering, taxpayers and policy makers have the right to expect public mental health funds to be invested wisely in services and programs that work. The Olmstead decision creates opportunities for states to consider carefully how their public mental health dollars can be most wisely spent.

As an example, consider the agreement reached between the Justice Department and the state of Delaware. The investigation was precipitated by concerns about conditions in the state’s psychiatric hospital. However, the actual investigation extended beyond the walls of the hospital, with particular focus on the need to increase and improve treatment and services in the community so that individuals with serious mental illness do not have to go unnecessarily to psychiatric hospitals or jails.

The agreement reached between the Justice Department and the state contains a schedule, with numerical targets, specifying steps Delaware will take to implement a comprehensive system of community-based mental health care. The elements of this system include numerical targets and deadlines for establishing Assertive Community Treatment (ACT) teams, making available housing vouchers and subsidies for permanent supportive housing, creating supported employment services, implementing family and peer support services, and developing crisis stabilization units and mobile crisis teams, among other services.

The effective implementation of comprehensive, community-based systems of care for people with serious mental illnesses has been hamstrung by lack of good data on needs, services and outcomes. As stated in NAMI’s report, Grading the States 2009, “If you can’t see the problems, how can you fix them?”

An agreement reached in one phase of the Justice Department’s investigation of Oregon’s mental health system illustrates the importance of good data. The health system in Oregon is undergoing a significant transformation, with expansion of Oregon’s Health Plan and efforts to more effectively integrate physical and mental health care. In recognition of this, the agreement directs the state to collect data on a variety of system development and program outcome measures to serve as the basis for further negotiations on the design and characteristics of a comprehensive system of community-based mental health care. Although the need for better services immediately is apparent, the agreement recognizes that long-term improvements require good information and careful planning.

Mental health care has historically occurred outside the mainstream of American health care, but there are signs that this is beginning to change. The Affordable Care Act (ACA), for example, emphasizes the importance of including treatment for mental illness and substance use disorders in all aspects of the health care system, including plans offered through state health insurance exchanges and expanded Medicaid programs. The Olmstead case can serve as a valuable tool for facilitating the integration of mental health care into mainstream health care. Time will tell whether hope will become reality.

About this Article: We hope you find this article informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since an article was written, the greater the likelihood that the article might be out of date. SNA members focus on this complex, evolving area of law. To locate a member in your state, visit Find an Attorney.

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