Right to Intervene in Community Placement Olmstead Litigation

In a lawsuit for community placement, which institutional residents are the plaintiff class? To what participation in the suit are residents satisfied with institutional care entitled?

This is an ADA class action by people with developmental disabilities who live in institutions but, with adequate services, could live in the community. As the appeals court put it, the suit’s purpose is “to hasten the state of Illinois down the road to community-based care.” The class is not yet certified.

The suit was not unanimously supported by other residents and families. Representatives institutional residents who do not wish to live in the community were worried they might be included in a class which they opposed. They asked the trial court to allow them to intervene in the case. The trial court denied the motion. In this recent decision, the Seventh Circuit Court of Appeals agreed that there is no right to intervene, nor is permissive intervention required.

The appeals court recognized the importance of these issues and the dramatic effect of the Americans with Disabilities Act on this sort of litigation. Citing Olmstead v. L.C., 527 U.S. 581 (1999), the court began by noting that “[t]his case arises in the context of a much larger debate over the proper way to provide care for the developmentally disabled.” However, Olmstead “has left the exact route to implementing this integration mandate somewhat murky.”

Because the complaint emphasized the need for the state to provide a “choice” between institutional and community services, and the proposed class consisted of people who “do not oppose” community placement, the court of appeals was satisfied that the proposed intervenors’ rights could not be impaired by the action going forward without their participation. In any event, the court found that the state defendants presumptively would provide adequate representation for the group who wanted to remain in institutional care.

The appeals court thus avoided clarifying the “murky” Olmstead standards and indicated that the lines set out in the class definition (separating those desiring placement from those opposing it) are sufficient to defeat motions to intervene such as these.

NOTE: For a decision on whether one has a right to live in institutional settings, see Richard C. ex rel. Kathy B. v. Houstoun, 196 F.R.D. 288 (W.D.Pa.1999), aff'd sub nom. Richard C. v. Snider, 229 F.3d 1139 (3d Cir.2000) (unpublished order).

Ligas v. Maram,
478 F.3d 771 (7th Cir. 2007).

Olmstead Community Services Placements: Progress Slows

Comparing the 3 years before the Olmstead Supreme Court decision to the 3 years after it, researchers have found an 8% DECREASE in the decline in psychiatric institutionalization in state mental hospitals.

"Twenty years of national state hospital census data (1984-2003) were used to assess trends in the rate of declines from pre-to post-Olmstead periods. Data were organized into five four-year periods. Steady declines in the hospital census nationally were found over all periods, with especially large decreases in the 1990s. However, when the percent change in hospital census in the two periods immediately before the Olmstead decision (between 1992-1995 and 1996-1999) were compared with the percent change in the periods immediately before and immediately after the Olmstead decision (between 1996-1999 and 2000-2003), an 8 percent decrease in the magnitude of decline was seen. State hospital census continues to decline but has slowed significantly during the post-Olmstead period," wrote M.S. Salzer and colleagues, University of Pennsylvania, Center for Mental Health Policy and Services Research.

The researchers concluded: "More study of the factors associated with this decline is needed." 

Salzer and colleagues published their study in Psychiatric Services (State psychiatric hospital census after the 1999 Olmstead Decision: evidence of decelerating deinstitutionalization. Psychiatric Services, 2006;57(10):1501-4). Also in 11/13/06 Mental Health Wkly. Dig. 183, 2006 WLNR 19492161.

COMMENT: This may be coincidence. Or perhaps the Olmstead case prompted state officials to regroup and take some time to consider the effect of Olmstead. Another possibility is that states began to construct Olmstead plans at the departmental level, with a consequent reduction in top-directed placement efforts at the facility level.

I would speculate that these statistics have little practical significance. However, I would be concerned that it might be interpreted by advocates or administrators to have deep meaning, meaning beyond the merits of the findings.