In honor of the 30th anniversary of the ADA, NH Bar News published the following piece by DRC-NH Policy Director, Mike Skibbie:
Download a copy of the NH Bar News here
This month marks thirty years since the Americans with Disabilities Act (ADA) was signed into law. From the use of curb cuts and ramps to accessible transportation and voting, the ADA has fundamentally altered our understanding of what it means to live with a disability.
As we celebrate three decades of this civil rights law, we remember one of the most important ADA cases in New Hampshire, Amanda D. v. Hassan, a case that continues to change mental health services in the state.
In passing the ADA in 1990, Congress rightly observed that “individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.”
With the ADA, Congress for the first time identified the segregation of people with disabilities as a form of discrimination: “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.”
The “integration mandate” of the ADA is designed to address the segregation problem. The regulations issued pursuant to the ADA which apply to public entities state that disability services are to be administered “in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” meaning “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.”
The United States Supreme Court took up the integration issue in 1999 and concluded that persons who qualify for services in the community and wish to receive them there are entitled under the ADA to live outside institutions so long as integrated services can be reasonably provided. In the Olmstead v. L.C opinion, Justice Ginsberg described the impact of segregation of people with disabilities:
“Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.”
Although states can attempt to defend their use of institutions through the use of the “fundamental alteration” defense, often by claiming that providing services in more integrated settings will be too costly, the good news is that in most circumstances community-based services are less expensive, especially if care is taken to design programs like Medicaid to support such services.
The Amanda D. case was based on the integration mandate. Investigations by Disability Rights Center-NH and the United States Department of Justice (USDOJ) concluded in 2011 that people with mental illness in New Hampshire were being unnecessarily institutionalized at New Hampshire Hospital and other public facilities, and that significant numbers of people were at risk of such institutionalization.
A class-action lawsuit alleging violations of the ADA and other federal statutes was filed the United States District Court in early 2012. DRC-NH was joined in the litigation by Devine Millimet and two national disability rights organizations, the Center for Public Representation and the Judge David L. Bazelon Center for Mental Health Law. The USDOJ joined the case as a plaintiff-intervenor that spring.
After Judge Steven McAuliffe granted class certification in September 2013, the parties reached a settlement, which was approved by the court the following February.
The agreement requires the state to provide community-based services and supports to people who would otherwise be unnecessarily institutionalized at New Hampshire Hospital or the Glencliff Nursing Home. These include:
- multi-disciplinary Assertive Community Treatment (ACT)s services sufficient to serve 1500 individuals
- expanded supported housing services
- community housing for persons with complex medical needs and mental illness residing at the Glencliff Home
- expanded supported employment programs
- mobile crisis services in the Concord, Manchester, and Nashua regions
- improved transition planning at both New Hampshire Hospital and the Glencliff Home
- development of a quality assurance system
More than 5 years after the settlement was approved, the implementation process continues. In his most recent report, issued in January of this year, the independent expert reviewing the state’s compliance with the settlement stated that in the years since the settlement was reached, “a number of positive steps have been taken to improve the quality and effectiveness of [community mental health] services.”
However, he cautioned that “the State remains out of compliance with the CMHA in several critical areas.” The areas identified by the expert include housing, Glencliff Home transitions to the community, and ACT services.
Disability Rights Center-NH and the Department of Justice continue to monitor the state’s efforts at compliance with the Amanda D. settlement. As that process continues, the state has moved in the direction of expansion of mobile crisis services. In 2019, legislation was passed which required the establishment of a statewide system of mobile crisis services for children. This would be a significant improvement to the children’s behavioral health system, and there is hope that when the system is established it will be available for adults as well.
People with disabilities have without question benefited from the ADA in the thirty years since its passage. Cases like Amanda D. have to some extent furthered community integration for people receiving state-provided services. The experience of that litigation, however, is a demonstration that passage of a civil rights statute does not remove the need for continued vigilance and advocacy so that progress continues.