Law & Psychiatry: Least Restrictive Alternative Revisited: Olmstead's Uncertain Mandate for Community-Based Care

More than three decades have passed since the courts first suggested that involuntarily hospitalized psychiatric patients had a right to be treated in the least restrictive alternative setting that met their needs (1). The doctrine has had its ups and downs since that time; it has been embraced by many lower courts but rejected at the highest appellate level. Now the U.S. Supreme Court has reinvigorated the concept, but has also balanced it with competing concerns, in its important decision in Olmstead v. L.C. (2).

In its heyday in the 1970s, the doctrine of the least restrictive alternative was viewed as a major tool for moving committed patients out of state mental hospitals and into community settings (3). As supported by a number of decisions in lower federal courts, the doctrine rested on the argument that the state could not deprive persons of liberty to an extent unwarranted to meet its legitimate goals. Thus although the state may have had the power to commit persons with mental illness to inpatient treatment against their will to protect those persons or others, it could not do so when means less restrictive of liberty were available to accomplish the same ends. In short, if patients could be safely treated in the community, there was no warrant for their confinement in inpatient settings.

The application of this reasoning about the least restrictive alternative appeared straightforward, so long as community-based facilities existed to which patients could be transferred. What happened, however, if a state had failed to create enough such placements? Could the courts compel states to redirect funds away from state hospitals and into community care? Although the enthusiastic lower-court judges who undertook to reform state mental health systems in the activist 1970s believed the answer was yes, and ordered states to act accordingly, the U.S. Supreme Court took a somewhat different view.

Two decisions of the high court underscored the justices' reluctance to have courts involved in mandating the creation of community treatment facilities, thereby altering states' spending priorities, a quintessential legislative function (4). The court first refused to read apparently clear statutory language in the 1975 federal Developmentally Disabled Assistance and Bill of Rights Act as creating a right to treatment in the community, holding that the language was merely "hortatory" (5). Then, in its 1982 decision in Youngberg v. Romeo (6), the court pulled the rug out from under a constitutional right to treatment in the least restrictive alternative altogether. Although the concept had already made its way into a number of state commitment statutes, the federal courts seemed to be out of the business of compelling states to create alternative treatment venues in the community.

Recently attempts have been made to breathe new life into the idea of a federally enforceable right to the least restrictive alternative by means of the Americans With Disabilities Act (ADA). Passed in 1990, the ADA takes a multipronged approach to promoting the integration of persons with disabilities into the social and economic life of the U.S. Among its provisions is Title II, which covers public services provided by governmental entities. Section 12132 orders that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."

The Attorney General was ordered by Congress to promulgate regulations to implement this section, coordinating them with similar regulations governing the Rehabilitation Act of 1973. One of the resulting regulations reads as follows: "A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities" (emphasis added) (7). A second regulation requires that public entities make reasonable modifications to their program 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" (emphasis added) (8).

Opponents of unnecessary hospitalization of persons with mental illness and mental retardation saw in the Attorney General's regulations an opportunity to use the ADA to force states to treat patients in the most integrated settings possible. A number of law suits were filed in the lower federal courts asking that states transfer patients to community-based care, with some considerable success (9). Inevitably, however, the states resisted these efforts to impose new mandates on their mental health systems, making eventual review by the U.S. Supreme Court all but inevitable.

The case that brought the issue to the nation's highest court was filed on behalf of two Georgia women with mental retardation and comorbid psychiatric disorders, known by their initials, L.C. and E.W. After being admitted voluntarily to Georgia Regional Hospital in Atlanta in May 1992, L.C.'s schizophrenia was treated and stabilized. By May 1993 her treatment team agreed that she did not require further hospitalization but could have her needs met in a state-supported community facility. Placement in that facility, however, took nearly three more years.

E.W.'s story was similar. She was voluntarily hospitalized in February 1995 with a diagnosis of personality disorder. A month later the state sought to discharge her to a homeless shelter, a plan aborted when her attorney filed a complaint. By 1996 E.W.'s therapist concluded that she could be treated in a community setting, but she was not discharged until several months after the district court's decision in the legal action that had been brought in the meantime.

Filing suit in federal district court, L.C. maintained, among other things, that the state's failure to place her in a community facility after her treaters deemed it appropriate violated Title II of the ADA. E.W. intervened in the case with a similar claim. The district court found in favor of the plaintiffs, rejecting the state's defense that inadequate funding, not discrimination, had led to the failure to place these women in community-based facilities. Nor was it persuaded by the state's claim that ordering the placement of these patients would fundamentally alter the state's mental health services in such a way that it should be exempt from the requirements of the ADA. Existing state programs, after all, provided community services for just such persons.

When the state of Georgia appealed to the Eleventh Circuit Court of Appeals, that court upheld the district court's finding, but ordered additional hearings on whether the court's order to provide community care to these two plaintiffs would require a fundamental alteration in Georgia's mental health services. Georgia again appealed, this time to the U.S. Supreme Court.

Writing for the majority, Justice Ruth Bader Ginsburg upheld the lower courts' finding that "unjustified institutional isolation of persons with disabilities is a form of discrimination" that was forbidden by the ADA. She noted that institutional placement both "perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life," and "severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." Persons with mental disabilities are discriminated against because they must forgo community life to receive the medical treatment they need, whereas persons without mental disabilities can receive medical services without sacrificing their ties to the community.

Having acknowledged that disabled persons with mental disabilities could look to the ADA to define a right to community-based care, Justice Ginsburg, with the support of a plurality of only four justices, attempted to define the limits of that right. Existing regulations make clear that remedies that would "fundamentally alter" the services provided by the state are not required by the ADA. Justice Ginsburg took issue with the approach of the lower courts to this matter.

She wrote, "If the expense entailed in placing one or two people in a community-based treatment program is properly measured for reasonableness against the State's entire mental health budget, it is unlikely that a State, relying on the fundamental-alteration defense, could ever prevail." Rather, she held that Georgia should be allowed to show on remand that, "in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities."

The Supreme Court's caution in not wanting to override state decisions about allocation of resources was evident in other ways as well. Justice Ginsburg stressed that a state with a reasonable program of community care, with "a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated," fulfilled the ADA requirements. Moreover, states could usually rely on the judgments of their own professionals in determining whether community-based care was appropriate.

In an opinion concurring in the judgment, Justice Anthony Kennedy said explicitly that "a State may not be forced to create a community-treatment program where none exists," although the majority's position on this question is far from clear. He reviewed the unhappy consequences of willy-nilly deinstitutionalization, underscoring the point that forcing people out of institutions who truly needed to be there was not the court's intent.

Although the initial reaction of mental disability advocates to the court's decision in Olmstead was ecstatic, the impact of the case in the long run remains to be seen. It may lead to greater equity for persons confined in state facilities—even if they are there voluntarily—with regard to access to existing community resources. But it is unclear to what extent the U.S. Supreme Court will support lower courts in compelling states to create community alternatives that do not now exist. No bright line has been identified to separate states that can rely on the fundamental-alteration defense from those that cannot. The reluctance of the courts to trample on executive branch prerogatives has always been the bugaboo of the least restrictive alternative doctrine. Whatever else it may accomplish, the decision in Olmstead v. L.C. is unlikely to precipitate the widespread creation of community-based services for persons with mental disabilities.

Dr. Appelbaum is A. F. Zeleznik professor and chair of the department of psychiatry at the University of Massachusetts Medical School. Address correspondence to him at the Department of Psychiatry, University of Massachusetts Medical School, 55 Lake Avenue North, Worcester, Massachusetts 01655 (e-mail, [email protected]).