Expanding Institutional Therapy within the Justice Department

In a move aimed at addressing homelessness and serious mental illness, President Donald Trump signed an executive order in July. The order seeks to expand states' use of involuntary treatment and encourages them to adopt "maximally flexible...institutional treatment...standards."

The Department of Justice (DOJ) can use existing law and Supreme Court precedent to achieve its goals. One of the key cases is the Olmstead case, which requires states to treat a disabled person in the "community" when three conditions are met: the state's treatment professionals have determined that such a placement is medically appropriate; the affected patient does "not oppose" being moved from an institution; and the state can "reasonably accommodate" the person's request for "community" care, "taking into account the resources available to the State and the needs of others with mental disabilities."

The DOJ's failure to include provisions that allow disabled people to make these choices has led to absurd conclusions about ADA obligations. To rectify this, the DOJ should amend its definition of "integrated settings" under Title II of the ADA to reflect how community-based care is characterized by patients' freedoms.

The DOJ should define an integrated setting as one that allows qualified individuals with disabilities to interact with non-disabled persons to the extent they choose. This could include farm-based programs for people with mental illness, which have been shown to alleviate depressive and anxiety symptoms in patients with treatment-resistant, persistent mental disorders.

However, the DOJ's interpretation of the Olmstead case should clarify that it does not require states to close facilities, shutter admissions to, or prevent the construction of new facilities, provided that states meet their obligations under the ADA. The DOJ has tools at its disposal to preserve "institutional treatment" and ensure that states have sufficient bed capacity to treat people with serious mental illness.

The DOJ should send a memo to states clarifying its interpretation of the Supreme Court's decision in Olmstead v. L.C. (1999). The memo should assure states that it will not investigate them solely for having allowed more voluntary patients into facilities. It should also clarify that voluntary institutional treatment does not raise Olmstead concerns.

State commitment laws have been shaped by decades of court decisions and federal laws. Changing these state commitment laws would require the Department of Justice to overturn more than five decades of rulings defining the constitutional rights of people with mental illness. This is a complex issue that requires careful consideration and collaboration with stakeholders.

In recent years in the USA, efforts to change deinstitutionalization have involved government officials and disability rights advocates who have promoted measures such as community-based care alternatives, enhanced funding for outpatient services, and legislative reforms aimed at increasing accessibility and inclusion. The DOJ's current interpretation of the ADA does not allow individuals to choose to receive services in "segregated" environments.

Only six private therapeutic farms are in operation in the U.S., in part due to states fearing approval of facilities that the federal government could deem "segregated." The DOJ should clarify that its interpretation does not discourage the creation of such facilities, as long as they meet the criteria for integrated settings.

The DOJ's actions are expected to help people living on the streets access services tailored to their needs and those of the community, while ensuring that states can provide institutional psychiatric and disability care to people in crisis and in need of appropriate services.