News
Judges and Judiciary
Apr. 23, 1999
Arguments Center on Treatment Under ADA
WASHINGTON - The Supreme Court appeared ready Wednesday to rule that the Americans With Disabilities Act does not require the states to provide community-based treatment for all institutionalized mentally disabled people who may qualify for it.
But it was unclear during hour-long oral arguments just what the justices might require the states to do under the statute.
The court is reviewing, in a case from Georgia, a decision by the Atlanta-based 11th U.S. Circuit Court of Appeals that when "a disabled individual's treating professionals find that a community-based placement is appropriate for that individual, the ADA imposes a duty to provide treatment in a community setting.' The circuit added, however, that such placement is not mandated when it would require a "fundamental alteration' in a state's treatment program. Olmstead v. L.C., 98-536.
That decision closely tracks Justice Department regulations implementing the ADA. But Georgia contends that the regulations go beyond the statute, and that Congress did not intend in passing the ADA to impose "the massive and indeterminate fiscal burdens' that community treatment imposes, especially when "appropriate' treatment can be provided in state hospitals.
The case stems from a suit by two Georgia women whose disabilities include mental retardation, mental illness and brain damage. They contend the state violated the ADA by confining them for many months in a large state institution while they were on a waiting list for placement in a homelike environment recommended by their doctors.
Georgia Senior Assistant Attorney General Beverly Patricia Downing opened her 30-minute argument by contending that "under the language of the ADA, the federal government cannot impose a 'least restrictive treatment' requirement on the states,' and that the law "did not impose deinstitutionalization on the states.'
"By providing a hospital bed and asking them to wait for a short time for a community facility, Georgia is not violating these patients' rights," Downing added.
Justice Sandra Day O'Connor interrupted to note that Section 504 of the Rehabilitation Act required "appropriate treatment in an integrated setting and was adopted in the ADA,' and she wondered whether that controlled this case.
"That deals with access to treatment, such as having a ramp to get to a doctor's office,' Downing replied. "It doesn't mention least restrictive treatment or anything like it ... and our position is that the ADA requires only evenhanded treatment of the disabled because that was the purpose of the act.'
Justice David H. Souter asked: "If you treat those who must live in a hospital and those who can live outside the hospital the same, isn't the government discriminating against the second group?'
"No,' Downing insisted. "We say the second group can benefit from treatment in a hospital; the mere fact that a person can be treated in the community doesn't mean they shouldn't be treated in a hospital setting. And Congress has always favored hospital treatment.'
Justice Stephen G. Breyer asked: "If we lock up those who don't need special treatment, then aren't we discriminating against them, because there's no medical reason to put them there?'
"You can't assume that just one option is appropriate,' Downing said. "Congress has allowed community care under the Medicare Act, but only under a pilot project. And once a patient's condition has stabilized, we do attempt to place them in the community.'
"But there's no space,' Justice Antonin Scalia said. "And you're not required to provide community beds at all.'
"Yes,' Downing replied, "not under the ADA.'
"What is you justification for keeping patients in the hospital?' Justice John Paul Stevens asked.
"Policy and medical reasons,' Downing replied.
"I thought you said financial reasons,' chimed in Scalia, who had repeatedly tried to aid Downing.
"Yes, financial reasons, too,' Downing agreed.
As her time expired, Downing added: "Georgia's position is that it's reasonable to ask someone to wait for community-based treatment, and that that's not discrimination under the ADA.'
Michael H. Gottesman of the Georgetown University Law Center, representing the plaintiffs, began his 20-minute argument by stating: "In enacting the ADA, Congress' overriding goal was to eliminate barriers for the disabled to full participation in American life, and first on that list was the segregation of the disabled from the mainstream of American life.'
"How dependent is your argument on the legislative history?' Chief Justice William H. Rehnquist asked.
"Not at all,' Gottesman replied. "The text says you may not isolate and segregate.'
"But it's not just isolate or segregate,' Scalia said. "The state offers various treatment ... and community treatment is pretty expensive.'
"It's cheaper than institutionalization,' Gottesman replied. "The state's function is rehabilitation for a return to society,' and this can be accomplished in a community setting with "a modicum of supervision.'
"What bothers me about your position,' Breyer said, "is that we will be writing something that, as it works out in the real world, leaves people who really need treatment in an institution to be abandoned in the streets. Like your clients, who have been in and out and who have a condition that is serious, complicated, technical, and it fluctuates.'
"In this case, the state's own professionals said community placement was appropriate,' Gottesman replied.
"But we have to worry about other cases, this is not a class action,' O'Connor said. "What about the others?'
"Georgia identified 542 such persons,' Gottesman said, "but it said they could have service only if they stayed in a locked institution.'
"Is the state required under the statute to provide any community-based facilities?' Ginsburg asked.
"Yes, by the statute and the applicable regulations,' Gottesman said. "We acknowledge that the state is not required to provide any services at all, but the statute says if they do, they must provide them in the most integrated setting possible.'
"What if the state had no community-based facilities,' O'Connor asked, "but said they could care for an individual outside the hospital if they had three attendants day and night - must the state do that?"
"No,' Gottesman replied. "That would satisfy the 'fundamental alteration' defense.'
"And the regulations?' Souter asked.
"Yes, you have to ask if it is a reasonable accommodation [of a person's disability],' Gottesman said.
"If the state has 542 patients outside the hospital and more are asking to go, must the state provide everyone with community treatment?' Ginsburg asked.
"They don't have to get everyone out, but it's much, much cheaper to serve them in the community,' Gottesman replied. "Georgia admits that but says they still have to maintain the beds in the hospital.'
After Assistant U.S. Solicitor General Irving L. Gornstein, given 10 minutes to argue as an amicus for the plaintiffs, echoed some of Gottesman's arguments, Justice Anthony M. Kennedy noted that the 11th Circuit did not hold that it had to defer to the government's regulations under the decision in Chevron U.S.A. v. Natural Resources Defense Council Inc., 476 U.S. 837 (1984).
"It did in the last part of the opinion,' Gornstein said. "But here you only have to rely on the congressional findings that the segregation of the mentally ill would be a violation of the ADA, and the regulations are consistent with that, based on Section 504[of the Rehabilitation Act].'
"Is your position that if the state had no community-based programs, they would be required to create them?' Ginsburg asked.
"They're not obliged to do that,' Gornstein replied, "because that would be a fundamental change in their treatment programs.'
A decision in the case is expected before the end of June.
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David Pike
Daily Journal Staff Writer
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