The Evolution of Disability Rights Litigation (and some stories)

David Ferleger, Esq.

In the Supreme Court (or Heading There): Community Services:

Does the Right to Community Services Protect People Not (Yet) Institutionalized?
Does the Right to Community Services Protect People Who Are "Voluntarily" Institutionalized?

There are two questions which are often enmeshed with community services litigation under the ADA and the Constitution. They are important enough, I suggest, that the Supreme Court will eventually have to decide them.

A. Does the Right to Community Services Protect People Not (Yet) Institutionalized?

There are many individuals who, living at home or elsewhere, are on the cusp of institutionalization. They may require services if institutionalization is to be avoided. Post-Olmstead, these individuals are protected by the statute and, I suggest, by the Constitution.

Courts have held that the integration mandate applies equally to individuals already institutionalized and "at risk" of institutionalization.² One court reached this conclusion on account of the absence of language in the statute and regulations "suggesting that a plaintiff must currently be institutionalized to bring a claim under the ADA or Rehabilitation Act."³ The Tenth Circuit reasoned that the integration mandate "would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation."⁴ Olmstead's proscription of "unjustified isolation" is consistent with this approach.

There is authority that neither due process nor equal protection principles protect individuals living at home from government budget cuts resulting in reduction in reduction of their services.⁵ However, with an analysis informed by Olmstead, and a finely-tuned emphasis on the factual "at risk" question, the result of similar litigation has appropriately been different.⁶

The rationale is straightforward and persuasive: restriction of the claim to those already institutionalized would force community plaintiffs to "choose between staying in the community without any services or entering an institution in order to receive services."⁷ One need not be at the institution's door to be at risk. The fragility of one's situation in the community is sufficient.

B. Does the Right to Community Services Protect People Who Are "Voluntarily" Institutionalized?

There is support in the case law for the notion that voluntariness in the context of institutionalization of people with intellectual disabilities is an illusory concept, and that therefore there is no basis for treating them differently from those involuntarily civilly committed. Residents of state facilities for people with developmental disabilities have generally not consented to their institutionalization. As one court explained:

First, the plaintiffs who are residents of the Grafton state school have not, in most cases, voluntarily consented to their confinement in any meaningful sense of the word "voluntary." North Dakota Century Code, Chapter 25-04, allows for the admission of mentally deficient persons upon the application of a parent or guardian without the consent of the person involved. The statute in no way makes the consent of the person concerned a condition of admittance. Further, in the case of plaintiffs who are severely retarded, informed consent is not even possible. And even in the case of the plaintiffs who are capable of giving informed consent to admission, it may be questioned whether such consent is voluntary in light of pressures from family and the high cost and unavailability of alternative care.⁸

Cases which superficially take the opposite position, that voluntary submission to state custody does not trigger constitutional protections,⁹ concur: "Indeed, even commitments formally labeled as "voluntary" may arguably amount to de facto deprivations of liberty from their inception."¹⁰

A reasonable framework is that adopted under the ADA in a recent decision. "The ADA's preference for integrated settings is not consistent with a procedure in which remaining at Southbury Training School is the default option for residents. The defendants cannot establish compliance with the integration mandate by showing that class members never requested community placement."¹¹

Neither the lack of a request for placement, not nominal voluntary status, should be determinative of whether a person in an institution is eligible to be provided community services.

¹ David Ferleger, Esq. 413 Johnson Street, Suite 203, Jenkintown, PA 19046. 215 887 0123. Email: david@ferleger.com. http://www.ferleger.com.

² Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181 (10th Cir.2003); M.A.C. v. Betit, 284 F.Supp.2d 1298, 1309 (D. Utah 2003).

³ M.A.C. v. Betit, 284 F.Supp.2d 1298, 1309 (D. Utah 2003).

⁴ Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181 (10th Cir.2003). The court also noted that there is nothing in Olmstead which requires "pre-suit" institutionalization before bringing suit to enforce the ADA's integration requirement. Id.

⁵ E.g., Philadelphia Police and Fire Ass'n for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156 (3d Cir. 1989).

⁶ Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1184 (10th Cir.2003). (three individuals with medical-physical disabilities at risk of nursing home institutionalization on account of state decision to limit medically-necessary prescription medications to five per month; "plaintiffs' precarious health and finances" triggers "substantial risk" of harm of institutionalization); M.A.C. v. Betit, 284 F.Supp.2d 1298 (D. Utah 2003) (waiting list under Medicaid Waiver); Martin v. Taft, 222 F.Supp.2d 940 (S.D. Ohio 2002)(people with developmental disabilities eligible to be moved from large private ICF/DD facilities to non-institutional, integrated community-based housing).

⁷ M.A.C. v. Betit, 284 F.Supp.2d 1298, 1309 (D. Utah 2003).

⁸ Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473, 484 (D. N. D. 1982). Accord, Kentucky Assoc. for Retarded Citizens v. Conn, 510 F. Supp. 1233, 1248 (W.D.Ky.1980); Halderman v. Pennhurst State School and Hospital, 446 F. Supp. 1295, 1311 (E.D.Pa.1977) ("[T]he notion of voluntariness in connection with admission as well as in connection with the right to leave Pennhurst is an illusory concept. Few if any residents now have, nor did they have at the time of admission, any adequate alternative to their institutionalization."); New York Association for Retarded Children Inc., v. Rockefeller, 357 F. Supp. 752, 762 (E.D.N.Y.1973); Clark v. Cohen, 794 F.2d 79, 93 n. 7 (3rd Cir. 1986) (separate opinion of J. Becker); United States v. Pennsylvania, 832 F. Supp. 122, 124 (E.D.Pa.1993) ("[W]here the initial institutionalization of an individual is made pursuant to a 'voluntary' decision, such institutionalization in its course may become one which necessarily curtails an individual's liberty."). See Note, The Constitutional Right to Treatment in Light of Youngberg v. Romeo, 72 Geo.L.J. 1785, 1791 (1984).

⁹ Torisky v. Schweiker, 446 F.3d 438, 446 (3d Cir. 2006) ("Thus, a custodial relationship created merely by an individual's voluntary submission to state custody is not a "deprivation of liberty" sufficient to trigger the protections of Youngberg.").

¹⁰ Torisky, 446 F.3d at 446, citing case law and See Sarah C. Kellogg, Note, The Due Process Right to a Safe and Humane Environment for Patients in State Custody: The Voluntary/Involuntary Distinction, 23 Am. J.L. & Med. 339, 341-43 (1997).

¹¹ Messier v. Southbury Training School, 562 F.Supp.2d 294, 337 (D. Conn. 2008).