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Twenty-five years ago, the Supreme Court ruled in Olmstead v. L.C., 527 U.S. 581 (1999), that the unjustified segregation of people with disabilities in institutions violates Title II of the Americans with Disabilities Act of 1990 (ADA). Title II requires public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
In Olmstead, Lois Curtis and Elaine Wilson challenged their institutionalization in a mental health hospital arguing that the state had discriminated against them based on disability by keeping them hospitalized when they could live in the community. The Court ruled that the law requires states to move people from segregated nursing facilities into integrated settings when (1) community placement is appropriate; (2) the individuals do not oppose community placement; and (3) return to the community can be reasonably accommodated. Olmstead, 527 U.S. at 582. Since the decision, attorneys and advocates have used the Olmstead ruling to promote the inclusion of people with disabilities in community living throughout the United States.
AARP Foundation regularly litigates cases designed to protect the rights of people with disabilities, including seniors, to live independently in the community under Olmstead. For example, in Brown v. District of Columbia, AARP Foundation, Disability Rights D.C. at University Legal Services, and Terris Pravlik & Millian challenged D.C.’s failure to help people with disabilities transfer from nursing facilities to community living. 928 F.3d 1070, 1072 (D.C. Cir. 2019). AARP Foundation seeks to ensure that D.C. will regularly inform all nursing facility residents about options for living in the community, ascertain where they prefer to live, and help anyone who wants to leave a nursing facility obtain necessary services in the community.
Until recently, courts have consistently held that Olmstead applies not only to people who already live in nursing facilities, but also protects people who live in the community and are at risk of institutionalization due to a lack of community-based services. For example, AARP Foundation’s ongoing litigation in Fitzmorris v. New Hampshire Department of Health and Human Services alleges that the lack of reliable services provided under New Hampshire’s Choices for Independence Waiver program places the program’s participants at an unjustified risk of living in a nursing facility. No. 21-CV-00025-PB, 2023 WL 8188770 (D.N.H. Nov. 27, 2023); see also Waskul v. Washtenow Cnty. Comm. Mental Health, 979 F.3d 426 (6th Cir. 2020) (“courts have widely accepted that plaintiffs can state a claim for violation of the integration mandate by showing that they have been placed at serious risk of institutionalization or segregation”); Davis v. Shah, 821 F.3d 231 (2d Cir. 2016) (“We thus hold that a plaintiff may state a valid claim for disability discrimination by demonstrating that the defendant’s actions pose a serious risk of institutionalization for disabled persons”). However, the viability of these risk-of-institutionalization cases, known as “at risk” cases, may soon be in question at the Supreme Court.
In U.S. v. Mississippi, 82 F.4th 387, 398 (5th Cir. 2023), the Fifth Circuit reversed a lower court holding that Mississippi’s mental health system violates Title II of the ADA because the system placed every person with a severe mental illness at risk of unjustified institutionalization. The Fifth Circuit held that because the only way to be admitted to a state mental hospital is through a judicial proceeding—which considers whether that placement is the least restrictive environment—the plaintiffs could not substantiate their Olmstead claims as a class action as a matter of law. Id. at 393. If the court’s reasoning is more broadly adopted, Olmstead litigation will face substantial new hurdles. Even though most institutional settings, including Medicaid-funded nursing facilities, require that the placement is the least restrictive environment in the same way as Mississippi’s mental health hospitals, this does not mean that the person being institutionalized has been meaningfully given the opportunity to live in the community.
Notably, the Fifth Circuit distinguished U.S. v. Mississippi from “all other previous ‘at risk’ cases … for personal care services or medically necessary items pursuant to Medicaid,” which it deemed appropriate for class action treatment. U.S. v. Mississippi, 82 F.4th at 396. However, many open questions remain concerning the ability to bring “at risk” Olmstead cases as class actions. At least one case has tried to address the circuit split, and we expect this issue will continue to be litigated further this year. Timothy B. v. Kinsley, 1:22-cv-01046-WO-LPA, *10, *12 (M.D.N.C. Mar. 29, 2024). Another “at risk” case, U.S. v. Florida, is currently on appeal in the Eleventh Circuit and that ruling is likely to further solidify this circuit split. 682 F. Supp. 3d 1172 (S.D. Fla. 2023), appeal docketed, No. 23-12331 (11th Cir. July 17, 2023).
Throughout its Olmstead litigation, AARP Foundation has encountered older adults who are institutionalized simply because they lack the services and supports they need to safely live in the community. If the Fifth Circuit’s reasoning is more widely adopted, older adults living in the community who are at risk of institutionalization because of a lack of appropriate services, may not be able to bring Olmstead claims.
Rebecca Rodgers, RRodgers@aarp.org
Sam Wehrle, SWehrle@aarp.org
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