Despite having the highest poverty rate in the United States, Mississippi has the nation’s lowest rate of homelessness. But instead of heralding Mississippi’s success and imploring other states to follow its lead, the Department of Justice is taking formal legal action against the state’s highly effective method of delivering mental-health services.
Back in 2016, DOJ filed a formal complaint against the state, alleging that its approach to mental health “has resulted in [the] repeated, prolonged, and unnecessary institutionalization [of the mentally ill] in state-run psychiatric hospitals, and placed them at serious risk of such institutionalization, in violation of Title II of the Americans with Disabilities Act of 1990.” The complaint and ensuing legal challenges brought both sides before U.S. District Judge Carlton Reeves early this month, and the judge rejected the state’s motion to dismiss the case. The case raises a series of questions about the limits of federal oversight and the jurisdictional authority of states and localities.
Mississippi is one of the few states in the country to retain a state mental-hospital network as an integral part of its mental-health system. While every state has public or private mental institutions, most have relegated their hospitals to ancillary roles, available only to treat a small handful of hard cases and forensic patients. As a result, the most seriously mentally ill, who often require institutional services, have been forced into inappropriate placements in the community. Many end up homeless, incarcerated, or as frequent patients in already-crowded emergency rooms. Mississippi has stood firm in its provision of a robust network of inpatient services for the mentally ill, much to the dismay of the Department of Justice. DOJ is apparently unsatisfied with the carnage deinstitutionalization has wrought on communities across the country and is attempting to force Mississippi to alter its approach to treating its most vulnerable citizens.
DOJ’s complaint letter accuses Mississippi of violating the terms of the landmark 1999 Supreme Court case Olmstead vs. L.C., which held that the state of Georgia had violated the Americans with Disabilities Act in its refusal to offer community-based services to two mentally ill complainants for whom the state’s experts deemed such a transfer clinically appropriate. In Mississippi, the DOJ isn’t bringing forth an analogous case; the complaint is not filed on behalf of a specific aggrieved party, but is instead directed at the entire statewide treatment apparatus for its alleged failure to protect “the rights of adults with mental illness to receive services in the most integrated setting appropriate to their needs.” DOJ is attempting to force Mississippi to restructure its entire mental-health system.
The original Olmstead decision, authored by Ruth Bader Ginsburg, was far more balanced than DOJ portends. The decision compelled states to offer individuals with mental disabilities access to community-based services, subject to three substantial qualifications.
First, the transfer of individuals from “institutions” to less structured environments must be formally approved by the state’s medical professionals, who are required to “have determined that community placement is appropriate” for the affected individual. Ginsburg drew explicit boundaries around the scope of the community mandate, quoting the American Psychiatric Association:
“Some individuals, whether mentally retarded or mentally ill, are not prepared at particular times — perhaps in the short run, perhaps in the long run — for the risks and exposure of the less protective environment of community settings”; for these persons, “institutional settings are needed and must remain available.”
Ginsburg also made clear that “nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings.”
This last clause — “unable to handle or benefit from community settings” — has been occasionally inverted to assert that no one needs institutional services. Deena Fox, an attorney in DOJ’s Civil Rights Division, has not explicitly called for Mississippi to cease all institutional services, but she has promised that “evidence at trial will make clear that individuals with serious mental illness can be appropriately served in the community.” Some individuals with severe mental illness can be served in the community, of course, to different degrees and at different times. But the objection of the DOJ is principally much deeper than that.
Attorney Bill Choslovsky, who has fought similarly obstreperous Olmstead-based litigation in the state of Illinois, calls the logical terminus of DOJ’s argument a “leeches” hypothesis. Just as leeches are viewed as an intrinsically inappropriate medical device — it would be malpractice to use leeches to treat any conceivable disease — the DOJ is trying to impose its view that institutionalization is medically inappropriate per se by asserting medical authority that it doesn’t have. The analogy is wrong on the merits: According to Dr. E. Fuller Torrey in his book American Psychosis, 15 psychiatric experts were empaneled in 2008 to examine the minimum number of public psychiatric beds necessary to deal with those who inevitably fall through the cracks of the community system. This includes beds necessary for both the acutely ill (those suffering temporary suicidal or homicidal impulses, psychotic breaks, or other aggravated psychiatric phenomena) and the small but significant number of profoundly ill individuals who, in Olmstead’s phrasing, are not prepared “for the risks and exposure of the less protective environment of community settings” in the long run. The panel arrived at between 40–60 public psychiatric beds per 100,000 population, presuming adequate outpatient services.
The second qualifier that Olmstead made to its community-services mandate maintains that “the transfer from institutional care to a less restrictive setting” must not be “opposed by the affected individual.” Olmstead imparts no duty for patients to forgo services they are currently receiving, even if they are qualified to be in a less intensive care environment.
Finally — and this is the qualification most pertinent to Mississippi’s affirmative defense — the majority opinion insisted that for a community placement to occur, it must be “reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” This begets the “fundamental alteration” defense, which traces itself back to the original language of the ADA (emphasis mine):
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
Mississippi’s attorneys insist that the Department of Justice is demanding adherence to what amounts to a limitless and arbitrary standard. Mississippi already has community-based mental health services, though proportionately fewer than its peers. Every other state retains some degree of institutional services, and many of them have avoided DOJ litigation. The DOJ, then, is taking issue with the proportion of individuals who receive institutional services, which raises the question: How much is enough? In the absence of a specific claimant who can demonstrate harm under the Olmstead guidelines, how many hospitals must Mississippi close to meet the undefined and interminable demands of DOJ? And how does this not amount to a “fundamental alteration” of the balance of services that the state already provides?
Because of the nature of public finance and the budgetary strictures of state government, the state is making the laudable decision to orient their system towards treating the seriously mentally ill who require hospitalization; Mississippi has precisely nothing to apologize for.
Clarence Thomas’s dissent in Olmstead highlighted the imprecision with which the majority used the word “discrimination” to describe Georgia’s decision to treat patients in “an institutional setting after they became eligible for community placement.” He presciently noted that “by adopting such a broad view of discrimination, the majority drains the term of any meaning other than as a proxy for decisions disapproved of by this Court.” But even Ginsburg acknowledged an appellate court’s ruling that “the State’s duty to provide integrated services ‘is not absolute.’” States are allowed by Olmstead to preserve institutional settings necessary for the most severely ill, and the cost of preserving those settings may, in the fiscally limited world of state government, preclude those with less severe impairments from receiving commensurate services.
In his concurring opinion, Justice Kennedy warned that “it would be a tragic event . . . were the Americans with Disabilities Act of 1990 . . . to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision.” This is precisely what the DOJ is doing. Mississippi is not a straggler to be dragged across deinstitutionalization’s finish line; the state is a necessary rebuke to policies that have relegated the severely mentally ill to lives of squalor and neglect on our nation’s streets and in our prisons.