One of my favorite movies of all time is Stripes with Bill Murray and Harold Ramis and John Candy and others. There is a scene in that movie where the Sergeant is on a platform and that platform gets destroyed by mortar fire because the commanding officer, John Larroquette, who is absolutely incompetent, demands that a mortar round be fired. That means Bill Murray’s basic training group has to finish the training on their own. They do so with spectacular colors being selected to go abroad as an elite unit as a result of what they did at the graduation activities. During the graduation activities, a General ask Bill Murray where is the basic training Sergeant? Bill Murray responds “blown up sir!” I was reminded of that scene when I read the case of Clinton L v. Wos. If this case prevails, the ability of people to challenge budget cuts leading to an increased risk of institutionalization being a violation of the ADA, just became incredibly difficult, i.e. “blown up.”
As is my usual practice, I have the blog entry divided into three categories: facts, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.
This case involved a reduction in funding by the State of North Carolina with respect to community services offered to people with intellectual disabilities and/or mental illness. As a result of that reduction in funding, one of the local management entities (local management entities manage, funds and plan, develop, implement and monitor mental health and developmental disability services within the catchment area), reduced the reimbursement rate it pays to its service providers for supervised living services from what it was paying for one and two person placements to the same level that it paid for supervised living services provided in three-person placements. Plaintiff sued saying that this decision made as a result of the state funding cuts, meant that they were at an increased risk of institutionalization and therefore, the ADA was violated. There was a 39 day trial and what the court did is discussed below:
The court said not so fast to litigation of this kind and here is why:
1. It is absolutely true that unjustified institutionalization of individuals with disabilities is a form of discrimination under the ADA per Olmstead.
2. But that doesn’t answer the question because: 1) what is meant by an institution?; 2) what is meant by institutionalization; and 3) when can you say that the budget cuts cause the increased risk of institutionalization?
3. With respect to what is an institution or what is institutionalization, neither Olmstead nor title II define the terms. Therefore, the court was left to fashion its own definition.
4. In determining what is an institution, a proper focus would be on size of the facility, isolation it generates, segregation, and lack of choice common to those institutions. Also, the court cited to proposed rules offered by the Centers for Medicare and Medicaid services that said institutions also include but are not limited to settings that are isolated from the larger community, do not allow individual to choose whether or with whom they share a room, limit the freedom of individuals with respect to choices pertaining to daily living experiences such as meals, visitors, and activities, or limit individuals opportunity to pursue community activities. In short, the court decided that an institution is a large, congregate facility for the treatment of those with mental illness or intellectual disabilities that exhibit qualities such as isolation, segregation and lack of personal choice as exemplified by the large, congregate facilities run by the state of North Carolina as well as by ICFMR (intermediate care facilities for those with mental retardation), facilities. (The court actually uses the term mental retardation and developmental disabilities. Those terms are out of date, and so I am using intellectual disabilities).
5. Even where a person would be admitted to an institution as defined in paragraph 4 above, that doesn’t mean that being admitted into such an institution means they are being institutionalized. To determine whether they are being institutionalized, the court said one has to look at the length of the admission and the reasons for the institutional placement.
6. For a person to be able to use Olmstead in this way, that person must be at serious risk of institutionalization or segregation. While it must be a serious risk, that risk does not have to be imminent. If the risk is not imminent, then the public entity’s failure to provide community services due to its cuts to such services must be shown that it will likely cause a decline in health, safety, or welfare leading to the individual’s eventual placement in in institutions. That is, the significant risk of institutionalization has to be found to be causally related to the budget cuts or reduction in reimbursement rates. Causation is governed by a substantially related test (think substantial factor in tort law), because in this kind of situation, there is invariably more than one cause involved in whether a person winds up in an institution.
1. Until this case, it wasn’t all that hard to argue that the ADA may be violated if there is a reduction in budget cuts with respect to having a plaintiff get to first base. Whether the ADA would even apply to budget cuts at all is a separate question and one which I have discussed previously here.
2. This case sets an incredibly high bar for plaintiffs being able to succeed with respect to a case alleging ADA violations creating a risk of institutionalization due to budget cuts because the plaintiff will now have to show a serious risk that they would be placed in an institution; 2) that even though they were placed in an institution, they were also being institutionalized; and 3) that being institutionalized will be substantially related to the budget cuts.
3. Will this case extend throughout the country? It’s unclear. From a plaintiff point of view, this case makes things incredibly difficult and extremely expensive (this case had dueling experts and a 39 day trial and plaintiffs lost). On the other hand, it doesn’t make it impossible, and as mentioned in the blog entry that I linked to in paragraph 1 of this section, it is possible that United States Supreme Court could say that the ADA does not apply in this situation at all. Therefore, if you are a plaintiff, a slim chance is better than no chance. The other reason this case may prove attractive to courts throughout the country, is because courts may be reluctant to say that there is no chance for such a claim to succeed, though they could be within their rights to make that claim, as just mentioned, and instead opt for a situation that would be narrowly tailored to deal with clear cut situations where unnecessary institutionalization is going on.