Developing Strategies for Expanding Institutional Therapy at the Department of Justice

In a bid to address homelessness and serious mental illness, President Donald Trump signed an executive order last month. The order aims to expand states' use of involuntary treatment and seeks to reverse judicial precedents that have impeded the United States' policy of encouraging civil commitment.

The Department of Justice (DOJ), playing a key role in enforcing the Supreme Court's 1999 Olmstead v. L.C. decision, has been instrumental in promoting the transition from large psychiatric institutions to community-based services. The Olmstead decision required states to treat a disabled person in the "community" under certain conditions. However, the DOJ's current interpretation of the ADA's "integration mandate" requires states to administer programs in the most integrated setting only when a person with a disability accepts it.

Reforming the DOJ's definition of "integrated settings" could enable providers to develop less restrictive, structured care in disability-specific environments for those with mental illness. 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, recognising that, on a case-by-case basis, this could include a disability-specific environment.

The DOJ's failure to include provisions that allow disabled people to make choices has led to absurd conclusions about obligations under the ADA. To address this, the DOJ should amend its interpretation of the ADA to allow states to pursue creative community-based approaches to mental-health and disability care.

The DOJ has tools to ensure states can provide institutional psychiatric and disability care to people in crisis and in need of appropriate services. However, the DOJ should assure states that it will not investigate them solely for having allowed more voluntary patients into facilities. The DOJ should also clarify that voluntary institutional treatment does not raise Olmstead concerns.

The executive order encourages states to adopt "maximally flexible ... institutional treatment ... standards." This could potentially lead to the expansion of farm-based programs for people with mental illness, which have been shown to alleviate symptoms and enhance patients' perceived social and occupational skills.

Despite the potential benefits, only six private therapeutic farms are in operation in the U.S., in part because states fear approving facilities that the federal government could deem "segregated" and use as the basis for an expensive Olmstead investigation. The DOJ should clarify that such facilities would not be considered segregated, provided they meet the criteria for integrated settings.

The DOJ should send a memo to states clarifying its interpretation of the Supreme Court's decision in Olmstead v. L.C. (1999). This would provide much-needed clarity and guidance to states as they strive to address homelessness and serious mental illness in their communities.

The DOJ's role in enforcing the Olmstead decision has been crucial in promoting the transition from large institutions to community-based services. However, the current interpretation of the ADA's integration mandate has created barriers for this transition. The upcoming memo from the DOJ could help remove these barriers and pave the way for more effective and humane care for individuals with mental illness.

Developing Strategies for Expanding Institutional Therapy at the Department of Justice