Protect Your Rights - Community Based Services Info Sheet
PROTECT YOUR RIGHTS
Since the 1960's, public policies have supported efforts to improve the community mental health system and to reduce the reliance on long term hospital services. This trend was driven by a number of factors, among them the development of new medications, the legal recognition of consumer rights in treatment decisions, and the increasing influence of a consumer rights movement that demanded the inclusion of all persons with disabilities in “mainstream” activities.
The most powerful national statement of consumer rights was manifested in the Americans with Disabilities Act (ADA), which was passed by Congress in 1990, and established the fundamental rights of persons with disabilities to have an equal opportunity for jobs and community services and programs. A similar right to protect access to housing was incorporated in the Fair Housing Act (which is described in a separate CLRP flyer).
In Connecticut, the enactment of the Patients Bill Of Rights recognized the civil rights of persons with psychiatric disabilities, and established several specific rights related to mental health services. Among these is the right to meaningful participation in the development of a treatment plan, and the right to a discharge plan which provides appropriate services to meet the individual’s needs.
The emphasis in all of these policies is on empowering persons with disabilities and providing opportunities for them to be as independent and self-sufficient as possible. Most basic among these is the right to be integrated into the community, and to receive services in the least restrictive environment possible; an environment which maximizes the opportunity to interact with non-disabled persons.
The purpose of this flyer is to provide an overview of the ADA provisions which establish an individual’s right to community based, rather than institutional, services. It is not intended to explain all of the details related to this law or to provide legal advice. If you have questions about community integration, please call the Connecticut Legal Rights Project.
FOR PERSONS WITH PSYCHIATRIC DISABILITIES
DOES THE LAW REQUIRE COMMUNITY BASED SERVICES FOR EVERYONE?
NO. However, The Americans with Disabilities Act (ADA) has made community based services a priority. What the ADA does is prohibit state and local governments from discriminating against persons with disabilities in the way that they provide services, run programs or carry out other public activities. To implement this law, regulations were written that require state and local governments to “administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” This regulation, commonly referred to as the “integration mandate,” has been used to argue that persons must be deinstitutionalized from hospitals and be served in a more integrated community setting.
The ADA regulations also provide that state and local governments have a responsibility to make “reasonable modifications” to avoid discrimination on the basis of disability. This means that they are expected to take special steps to help persons with disabilities become integrated. However, they are not required to make fundamental alterations in programs and services.
HOW DOES THE COMMUNITY INTEGRATION MANDATE EFFECT PEOPLE IN PSYCHIATRIC HOSPITALS?
According to a 1999 U.S. Supreme Court decision (Olmstead v. L.C.), requiring a person to be segregated or institutionalized to receive services when they could be receiving services in a less restrictive setting is discrimination that violates the ADA. In fact, the Court emphasized that Congress intended that the ADA be used to secure community living opportunities for persons with disabilities. However, the Court also noted that institutional services must continue to be available for those persons who require that level of care.
DOES THIS MEAN THE STATE MUST PROVIDE COMMUNITY SERVICES FOR EVERYONE WHO CAN LIVE IN THE COMMUNITY?
Technically, the answer is that they should, but they don’t have to do it all at once. The Court recognized that it would take some time and money for states to comply with the community integration mandate. Therefore, they said the state could consider the availability of resources, as well as the diverse needs of persons with disabilities, in meeting this requirement.
Specifically, it was suggested that states could show they were trying to meet the requirement if they demonstrated that they have a “comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moves at a reasonable pace not controlled by the state’s endeavors to keep its institutions fully populated.”
WHO DECIDES WHETHER A PERSON CAN LIVE IN THE COMMUNITY?
The state is allowed to rely on the reasonable assessment of its professionals, but it is clear that the reasonableness of such determinations can be challenged. The decision must be based on the individual’s status and not the availability of community services.
DOES CONNECTICUT HAVE A PLAN TO INTEGRATE PERSONS INTO THE COMMUNITY?
NOT YET, BUT THEY SAY THEY’RE WORKING ON IT. The Department of Social Services (DSS) is taking the lead in coordinating a committee to comply with the ADA’s integration mandate. DSS is responsible for running the Medicaid program which provides health insurance coverage for low income persons with disabilities, however, they do not currently pay for non-medical community services for persons with psychiatric disabilities.
ARE THERE MANY PEOPLE IN CONNECTICUT WHO ARE UNNECESSARILY INSTITUTIONALIZED OR RESTRICTED?
YES, ALTHOUGH IT IS DIFFICULT TO DETERMINE EXACTLY HOW MANY.
DMHAS has documented that there is currently extensive gridlock in the state’s mental health system which means that many clients are receiving services in the wrong setting. Many are in hospitals only because there are not enough community placements, and others are stuck in transitional living arrangements, because more independent housing is not available. In addition, there are more than 2000 persons with psychiatric illnesses in nursing homes, although it is not known precisely how many of these can live in the community.
WHAT ABOUT THE PEOPLE IN SHELTERS AND JAILS ?
It is estimated that 3000 people in Connecticut shelters have a psychiatric disability and that there are double that number living on the streets. The law is not as explicit about the rights of people already “in the community”, but those who are at risk of unnecessary institutionalization could be covered by the ADA. In addition, if the state runs programs, such as alternatives to incarceration, in a way that discriminates against persons with psychiatric disabilities, and makes it more likely that they will go to jail, it could violate the ADA. This means that the State might need to make reasonable modifications in its programs to provide necessary services to these individuals to promote community integration.
CALL CONNECTICUT LEGAL RIGHTS PROJECT FOR INFORMATION AND ASSISTANCE
TOLL FREE 1-877-402-2299
The information in this flyer is effective as of April 2001