Access: The TAC Blog

Leading experts report from the intersection of affordable housing, health care, and human services policy.

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

Posted Wednesday, September 4, 2019 by Kevin Martone, L.S.W. Francine Arienti, M.A. and Sherry Lerch
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Thanks to the historic Olmstead decision 20 years ago, many more people with mental illness now live in integrated, community-based settings rather than in psychiatric hospitals, nursing homes, and large board and care facilities. Yet for far too many people with mental illness who end up unnecessarily in another type of segregated setting — jails and prisons — the promise of the Americans with Disabilities Act and the Olmstead decision remains unfulfilled. Read More

June 22, 2019 marked the twentieth anniversary of the United States Supreme Court’s Olmstead v. L.C. decision. The case was filed on behalf of two women with developmental disabilities and mental illness who were confined in a state psychiatric hospital in Georgia despite their treatment professionals’ recommendations that they could live in the community. In its decision, the court stated that unjustified segregation of persons with disabilities constitutes discrimination in violation of Title II of the Americans with Disabilities Act (ADA). The ADA established a mandate to public entities to ensure that people with disabilities live in the least restrictive, most integrated settings possible.

Because of the Olmstead decision 20 years ago, many states have implemented policies, programs, and new housing options to serve people in the most integrated settings appropriate to their needs. Olmstead-based lawsuits and settlement agreements in several states have forced new resources and opportunities for community integration into both state and local systems. While such progress has been slow, an increase in attention to individuals with mental illness and other disabilities who are unnecessarily segregated — or at risk of becoming so — in settings such as psychiatric hospitals, nursing homes, and large board and care facilities has resulted in many more people with mental illness living in integrated, community-based settings.

Yet for far too many people with mental illness who end up unnecessarily in another type of segregated setting — jails and prisons — the promise of the ADA and the Olmstead decision remains unfulfilled. The incarceration of people with mental illness in communities throughout the United States is a form of discrimination that our public entities must address.

In March 2019, TAC convened top thinkers from across the U.S. to examine the criminalization of persons with mental illness, and to initiate the use of Olmstead as a framework for reform. Based on insights from that group, TAC has prepared and published Olmstead at 20: Expanding the Vision of Olmstead to Decriminalize Mental Illness. In this brief, we apply key elements of Olmstead law to the challenge of reducing the disproportionate number of people with mental illness in the criminal justice system.

Segregated Settings and the Integration Mandate

Understanding how Olmstead applies to the correctional system begins with recognizing that jails and prisons are institutions and that the U.S. Department of Justice’s definition of “segregated settings” applies to them. The “integration mandate” is a fundamental aspect of the ADA, requiring public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” For most individuals, receiving services in the community is the most integrated setting, and an absence of such services, leading to institutionalization, reflects a violation of the ADA. Many individuals with mental illness in correctional settings are there because community-based services and settings were not available to meet their needs — even as public funding is used to sustain the costs of housing people in the segregated correctional system.

Community-Based Services Play a Vital Role

Underdeveloped service delivery systems, budget cuts, loss of insurance coverage, and tightened program eligibility requirements not only reduce people’s access to community services, but also make it harder for them to pay for medication, treatment, and housing. When people with mental illness lack access to comprehensive, community-based treatment and support services, they are at greater risk of ending up in institutional, segregated settings, including correctional facilities. 

In service systems across the country, encounters between people with mental illness and law enforcement can be traced to a lack of community-based treatment and services. If there is no hotline, mobile crisis team, or mental health respite program, the only option for a person in crisis or their family may be to call the police — whose only option may be to arrest the person.

Taking the Next Steps

If you represent a public entity at any level, we encourage you to launch initiatives that minimize preventable interactions with the criminal justice system. Furthermore, such measures should be fully incorporated into the Olmstead planning efforts of your state or county to meet their legal obligations. We hope that other interested stakeholders, such as advocates and civil rights groups, will also find this framework of use for Olmstead planning and advocacy efforts.


April 2019: News, Resources, & Happenings at TAC

Posted Thursday, April 25, 2019
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Working to strengthen the response to opioid use disorders in California's American Indian and Alaska Native communities -- and a gathering of leaders focused on the over-incarceration of people with mental illness. Read More

Meeting the Opioid Use Disorder Needs of California’s American Indian and Alaska Native Populations

TAC recently entered into a two-year contract with the California Department of Health Care Services to provide technical assistance (TA) and facilitation for the state’s Tribal Medication-Assisted Treatment (MAT) Project. The Tribal MAT Project is designed to meet the specific prevention, treatment, and recovery needs of California’s American Indian and Alaska Native (AI/AN) residents. The impact of the national opioid epidemic on this population in California is especially severe, and significant barriers hinder AI/AN access to MAT and other substance use disorder treatment services. Problems include inadequate provider networks, lack of transportation in remote regions, unawareness of available services, stigma, the need for greater cultural literacy in service provision, and distrust of services and providers outside of AI/AN communities.

Described by its lead entities as “A unified response to the opioid crisis in California Indian Country,” the Tribal MAT Project is funded through State Targeted Response (STR) and State Opioid Response (SOR) grants that California received from the U.S. Substance Abuse and Mental Health Services Administration, and is a core component of California’s overall STR/SOR portfolio. Through the contract, TAC Senior Consultant John O’Brien and Senior Associate Tyler Sadwith will offer management support; provide facilitation and TA to Tribal MAT Project contractors; develop a communications toolkit; conduct a scan of effective state and tribal substance use disorder strategies; and deliver planning recommendations for future efforts to mitigate the opioid crisis in California’s American Indian and Alaska Native communities.

Over-Incarceration as an Obstacle to Community Integration for People with Mental Illness

In March, TAC convened leading mental health policy and civil rights advocates in Washington, D.C. to discuss the incarceration of people with mental illness, specifically in the context of the Americans with Disabilities Act and Olmstead law. The U.S. Supreme Court’s historic Olmstead v. L.C. decision, which turns 20 this year, requires public entities to ensure that people with disabilities live in the least restrictive, most integrated settings possible. Symposium participants discussed the changes needed to address system failures that currently lead to the over-incarceration of people with mental illness in correctional settings.

As TAC Executive Director Kevin Martone explained to Mental Health Weekly, “Government agencies must recognize the unnecessary incarceration of people with unmet mental health service needs as a civil rights issue, and fully incorporate initiatives to prevent and end the criminalization of people with mental illness into their Olmstead planning efforts.”

TAC will issue a brief that highlights this problem in honor of the 20th anniversary of Olmstead this summer. 

TAC Staff in Action

STAFF ACTIVITIES

TAC Associate Phil Allen and Senior Associate Douglas Tetrault helped coordinate a regional meeting of Supportive Services for Veteran Families grantees in Dallas, TX, while TAC contractor Naomi Sweitzer was on hand at the Los Angeles, CA edition of the same event; Associates Ellen Fitzpatrick and Lauren Knott joined the Vermont Coalition to End Homelessness for its “road show” of Youth Homelessness Demonstration Program bidders meetings across the state; Executive Director Kevin Martone joined a panel on “New Research on Housing for Extremely Vulnerable Populations” at the National Low Income Housing Coalition’s annual Housing Policy Forum; In Snohomish County, WA, Senior Associate Rachel Post helped the county expand its coordinated entry system to include referrals to a statewide supported employment program funded by an 1115 Demonstration waiver; Rachel was also recently invited to speak to the California Department of Social Services and its contracted counties about the value of incorporating performance measures into their rapid re-housing contracts.