Defending Olmstead: Strategies for Combatting Institutional Bias to Improve Access to Mental Health Services in the Least Restrictive Setting

From the introduction:

“The term ‘institutional bias’ identifies the concept that, throughout history, public policy and perception innately defer to institutionalization as the default living arrangement for people with mental health disabilities to segregate them from society. In theory, the passage of the Americans with Disabilities Act6 (ADA) in 1990 and the groundbreaking Supreme Court of the United States decision, Olmstead v. L.C., in 1999 served to increase deinstitutionalization for people with disabilities and guarantee a right to live in the least restrictive setting appropriate to their needs. However, the right conveyed by Olmstead, as legal positivists would argue about all legal rights, exists only conceptionally unless courts and government entities enforce it. Accordingly, modern advocacy efforts must focus on creating policies, practices, and strategies to protect and defend Olmstead.

After exploring the legislative and ideological history of mental health treatment that culminated in the passage of the ADA, this article will track post-ADA-and-Olmstead ideological shifts. These shifts include progress towards de-institutionalization and increasing investments in home-and community based services (HCBS) contrasting with increasing institutionalization of unhoused people, criminalization of mental health disabilities, and the creation of new categories of institutional living arrangements.

Finally, this article will give an overview of the current state of Olmstead litigation, how courts have expanded its application, how public entities utilize defenses like the fundamental alteration defense or challenges to standing, diagnose how recent shifts in regulatory deference may impact enforcement of Olmstead, and explore non-litigation methods to combat institutional bias.”