ABA Section on Civil Rights & Social Justice
The Future of Olmstead:  2020 & Beyond

Criminal Justice discussion begins at 32:20

ABA Transcript

U.S. v. Georgia – 10-CV-249 – (N.D. Ga. 2010)

•    Georgia will serve in community settings by July 1, 2015, 9000 individuals with serious and persistent mental illness who currently are served in:

• the State Hospitals,
• frequently readmitted to the State Hospitals,
• frequently seen in Emergency Rooms,
• chronically homeless, and/or
• being released from jails or prisons

from DOJ's Fact Sheet

Olmstead at 20:  Using the Vision of Olmstead to Decriminalize Mental Illness

By Kevin Martone, Francine Arienti, Sherry Lerch

Georgetown Journal on Poverty Law and Policy

The Paradox of Inclusion:
Applying Olmstead’s Integration Mandate in Prisons (2020)

By Jamelia N. Morgan

In 1999, the US Supreme Court issued a compromise ruling in Olmstead --- and States, people with disabilities and their advocates have been struggling with it ever since.

States ostensibly love Olmstead and people with disabilities, and States really struggle to comply with Olmstead.

Two Key Concepts:

• If States have a Comprehensive, Effectively Working Plan to de-institutionalize people with disabilities where possible and support those at risk of institutionalization --- THEN states have a defense to a claim brought under Title II of the Americans with Disabilities Act (ADA)
• That Defense is the Fundamental Alteration Defense --- State's are not required to make a fundamental alteration to the State's Plan for People with Disabilities if:
  • The State's Plan is comprehensive, effective and moving at a "reasonable pace."

ASIDE

• The more science-based that Mental Health becomes --- the easier this will be for:
  • the Public to understand and support

Integrating Mental Health with the rest of Medicine is crucial.

Olmstead Condensed including
The Fundamental Alteration Defense

Most States' Plans for People with Disabilities have been relatively siloed and disjointed --- there has been a lot of effort to address that --- but it hasn't completely been solved.

So one of the points the US Department of Justice has made is that this State Plan for People with Disabilities is NOT LIMITED TO MEDICAID.

The big challenge is that Medicaid does not cover Housing --- that is a HUGE PROBLEM.

With regard to housing and supportive housing, most states do what they want and call it "reasonable."

That fiction becomes harder and harder to maintain if you've got a lot of people with cognitive disabilities incarcerated in jails and prisons or homeless --

• and no comprehensive, effectively working State Plan for People with Disabilities moving at a reasonable pace.

Further, a lot of people with cognitive disabilities can live in supportive housing, not necessarily all.