A Place of My Own
How The ADA Is Creating Integrated Housing
Opportunities For People With Mental Illnesses

Judge David L. Bazelon Center for Mental Health Law

A Place of My Own
How The ADA Is Creating Integrated Housing
Opportunities For People With Mental Illnesses

A Place of My Own is a publication of the Judge David L. Bazelon Center for Mental Health
Law, developed by Jennifer Mathis, the center’s Director of Programs, with assistance from
Robert Bernstein, the center’s President and CEO.

The Bazelon Center gratefully acknowledges the essential support provided by

Copies of this report will be available to download via:

www.bazelon.org/portals/0/Where We Stand/Community Integration/Olmstead/A Place of My
Own. Bazelon Center for Mental Health Law.pdf

March 2014
JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW
1101 Fifteenth Street NW
Suite 1212
Washington DC 20005-5002
202.467.5730 (voice)
202-223-0409 (fax)
www.bazelon.org

Introduction
Over the past several years, the Americans with Disabilities Act (ADA) has
been used to create supported housing for tens of thousands of individuals with
mental illnesses who are needlessly institutionalized or at risk of needless
institutionalization. The ADA’s “integration mandate” requires public entities to
administer their services to individuals with disabilities in the most integrated
setting appropriate to their needs. In 1999, the Supreme Court clarified that the
integration mandate prohibits states from administering their service systems in a
way that needlessly institutionalizes individuals with disabilities, and requires
them to offer these individuals services in integrated settings unless doing so
would fundamentally alter disability service systems.
For virtually all people with disabilities, the most integrated setting
appropriate is their own apartment or home, with the supports that they need to
live there. Thus, as the law has developed, it has become clear that states must
develop more supported housing—an apartment or home with a flexible package
of supportive services individually tailored to the person’s needs—to enable
individuals with disabilities to avoid needless segregation.
Almost 24 years after passage of the ADA, hundreds of thousands of
individuals with disabilities remain needlessly segregated across the country in
psychiatric hospitals, institutions for individuals with intellectual and other
developmental disabilities, nursing homes, board and care homes, and other
similar facilities. The political power of the private industries that serve
individuals with disabilities in segregated settings has blocked states from
offering these individuals integrated alternatives. By offering individuals with
disabilities only segregated settings, however, states place themselves at risk of
liability under the ADA. In addition to private lawsuits, the United States
Department of Justice has been actively pursuing litigation against states to
enforce the rights of individuals with disabilities to live, work and receive services
in the most integrated setting appropriate to their needs.
1

History of Deinstitutionalization
Advocacy seeking supported housing is the latest chapter in a decadeslong movement to promote the integration of individuals with disabilities into their
communities. Large-scale deinstitutionalization of individuals with disabilities
began occurring in the 1960’s and 1970’s, in large part in response to a civil
rights movement on behalf of individuals with psychiatric and intellectual
disabilities confined in massive public institutions. Between 1955 and 1980, the
census of public psychiatric institutions decreased from 559,000 to 154,000. 1 By
2000, it had decreased to less than 50,000.2 The community services that were
supposed to be developed for individuals leaving institutions, however, did not
materialize on the scale initially envisioned, as federal and state dollars for these
programs dried up. While the deinstitutionalization of the 1970’s and 1980’s was
successful in shutting and downsizing institutions,
Advocacy seeking “it was less successful in promoting investments in
supported housing the kind of community service infrastructure that
enables people with psychiatric disabilities to thrive
is the latest
in the community.”3

chapter in a
decades-long
movement to
promote the
integration of
individuals with
disabilities into
their communities.

When Congress enacted Medicaid in the
1960’s, it excluded coverage for people in state
psychiatric facilities because such care had
traditionally been a state responsibility. However,
Medicaid does cover nursing home care, providing
federal dollars to pay for at least half of such costs.
Taking advantage of this coverage, states moved
many people from state psychiatric hospitals into
nursing homes. By 1980, 750,000 people with

1

Chris Koyanagi, Learning from History: Deinstitutionalization of People with Mental Illness as
Precursor to Long-Term Care Reform 6 (2007),
http://www.nami.org/template.cfm?Section=about_the_issue&template=/contentmanagement/con
tentdisplay.cfm&contentid=137545.
2

Ronald W. Manderscheid et al., Changing Trends in State Psychiatric Hospital Use from 2002
to 2005, 60 Psychiatric Services 29 (Jan. 2009).
3

Samuel R. Bagenstos, The Past and Future of Deinstitutionalization Litigation, 34 Cardozo Law
Review 1 (2012).

2

serious mental illnesses lived in nursing homes, representing approximately 44%
of the nursing home population.4 Over the years, many other people who left
state psychiatric hospitals went to large board and care homes or other, similar
institutional facilities.5 Others went to congregate group homes. These
congregate living models were state-of-the-art technology many decades ago;
they pre-date the ADA and reflect an era when the standard of practice consisted
largely of discharging people from
state hospitals to programs and
Congregate living models
housing arrangements that would
were state-of-the-art
prevent recidivism. In many ways,
technology many decades
nursing homes and other congregate
ago; they pre-date the ADA
settings fulfilled that goal.

and reflect an era when the
But newer technologies such
standard of practice consisted
as supported housing have enabled
largely of discharging people
people with mental illnesses to live
from state hospitals to
the same kinds of lives as people
programs and housing
without disabilities, rather than living
arrangements that would
in special facilities designed for
prevent recidivism.
individuals
with
disabilities.
Moreover, the ADA includes a legal
mandate to promote integration,
recovery and participation in the mainstream of community life. Congregate
housing models persist today largely because of public systems’ inertia and
vested financial interests among program operators. They are outmoded and
segregated in comparison to supported housing, where individuals live in
ordinary housing with assistance tailored to their specific needs.

4

Koyanagi, supra note 1, at 6.

5

See, e.g., Disability Advocates, Inc. v. Paterson, 653 F.Supp.2d 184, 197 (E.D.N.Y. Sept. 8,
2009), vacated on other grounds, Disability Advocates, Inc. v. New York Coalition for Quality
Assisted Living, Inc., 675 F.3d 149 (2012) (describing transinstitutionalization of individuals from
state psychiatric hospitals in New York to large, institutional “adult homes”).

3

Key Principles
of Community Integration
There is widespread consensus in the disability community concerning
what community integration should look like. Twenty-eight national disability
organizations, including the state mental health directors and the state directors
of developmental disabilities services, have embraced a set of principles that
include the following:

 Individuals

with disabilities should have the opportunity to live like
people without disabilities. They should have the opportunity to be
employed, have a place to call home, and be engaged in the
community with family and friends.

 Individuals

with disabilities should have control over where and how
they live, including the opportunity to live in their own apartment or
home. Living situations that require conformity to a collective
schedule or that restrict personal activities limit the right to
choose.

 Virtually all individuals with disabilities can live in their own home with
supports. Like people without disabilities, they should get to
decide where they live, with whom they live, when and what they
eat, who visits and when, etc.

 To this end, individuals with disabilities should have access to housing
other than group homes, other congregate arrangements, and
multi-unit buildings or complexes that are primarily for people with
disabilities. They should have access to “scattered site” housing,
with ownership or control of a lease. Housing should not be
conditioned on compliance with treatment or with a service plan. 6

6

Community Integration for People with Disabilities: Key Principles (2013),
http://www.bazelon.org/portals/0/ADA/7.30.13%20Key%20Principles%20%20Community%20Integration%20for%20People%20with%20Disabilities.pdf?utm_source=7.3
1.13Key+Principles+PR&utm_campaign=7.31.13KeyPrinciples&utm_medium=email. These
principles have been embraced by ADAPT, American Association of People with Disabilities,
4

Housing programs that reflect the Key Principles of community integration align
with states’ obligations under the Olmstead decision and promote the ADA’s
vision that people with disabilities—including serious mental illness—move from
the social sidelines and live their lives as full members of the community.

Virtually all individuals
with disabilities can live
in their own home with
supports. Like people
without disabilities, they
should get to decide
where they live, with
whom they live, when
and what they eat, who
visits and when, etc.

American Diabetes Association, Association of University Centers on Disabilities, The Arc of the
United States, Autistic Self-Advocacy Network, Bazelon Center for Mental Health Law,
Depression and Bipolar Support Alliance, Disability Rights Education and Defense Fund, Easter
Seals, Little People of America, Mental Health America, National Alliance on Mental Illness,
National Association of Rights Protection and Advocacy, National Association of State Directors
of Developmental Disabilities Services, National Association of State Mental Health Program
Directors, National Coalition for Mental Health Recovery, National Council for Community
Behavioral Healthcare, National Council on Independent Living, National Disability Rights
Network, National Federation of the Blind, National Mental Health Consumers’ Self-Help
Clearinghouse, National Organization on Disability, Paralyzed Veterans of America, TASH,
United Spinal Association.

5

Supported Housing
for People with Mental Illness
Supported housing has developed over the last couple of decades, and
has been widely demonstrated to have successful outcomes for people with
mental illnesses, including those with significant levels of disability. In addition,
supported housing comports with the choices of most people: studies have
consistently shown that people with mental
illnesses overwhelmingly prefer living in their
own homes than living in congregate settings
Studies have
with other people with mental illnesses.7
consistently shown
Moreover, supported housing is less costly
that people with
than other forms of government-financed
housing for people with disabilities.
mental illnesses

overwhelmingly
prefer living in their
own homes than
living in
congregate settings
with other people
with mental
illnesses.

Supported housing leads to more
housing stability, improvement in mental health
symptoms,
reduced
hospitalization
and
increased satisfaction with quality of life,
including for participants with significant
impairments, when compared to other types of
housing for people with mental illnesses.8
Supported housing has been endorsed by the
federal government, including the U.S.
Department
of
Housing
and
Urban
Development,9 the Surgeon General,10 the U.S.

See, e.g., Ann O’Hara, Housing for People with Mental Illness: Update of a Report to the
President’s New Freedom Commission, 58 Psychiatric Services 907, 909 (July 2007).
7

8

Bazelon Center, Supportive Housing: The Most Effective and Integrated Housing for People
with Mental Disabilities 1 (2010),
http://www.bazelon.org/LinkClick.aspx?fileticket=eRwzUzZdIXs%3d&tabid=126.
9

U.S Dept. of Housing and Urban Dev. Office of Policy Dev. and Research. The Applicability of
Housing First Models to Homeless Persons with Serious Mental Illness 102-03 (July 2007),
http://www.huduser.org/publications/homeless/hsgfirst.html.

6

Department of Health and Human Services11 and the National Council on
Disability.12
Supported housing operates in accordance with several core tenets:

 First, participants receive immediate, permanent housing in their own
apartments or homes, with the rights and responsibilities of
tenants. The housing is not conditioned on the resident’s
compliance with his or her treatment regimen; this is known as a
“housing first” approach. Stable housing is a prerequisite for
people with mental illnesses to be able to focus on recovery, and
a powerful motivator for people to engage in treatment.13
Providing immediate, permanent housing results in greater longterm housing stability than providing housing that is conditioned
on treatment.14

 Second,

supported housing residents are afforded access to a
comprehensive array of services needed for them to succeed,
including help learning independent living skills, help maintaining
housing, help securing and maintaining employment, help
coordinating medical treatment, and other services. All services
are voluntary.

10

U.S. Surgeon General. Mental Health: A Report of the Surgeon General (1999), chapter 4,
http://www.surgeongeneral.gov/library/mentalhealth/chapter4/sec6.html#human_services.
11

U.S. Dept. of Health and Human Services, Substance Abuse and Mental Health Services
Administration, Transforming Housing for People with Psychiatric Disabilities: Report (2006),
http://research.policyarchive.org/17617.pdf.
12

National Council on Disability, Inclusive Livable Communities for People with Psychiatric
Disabilities 17-26 (March 2008), http://www.ncd.gov/newsroom/publications/index.htm.
13

Sam Tsemberis et al., Housing First, Consumer Choice, and Harm Reduction for Homeless
Individuals With a Dual Diagnosis, American Journal of Public Health, vol. 94, issue 4, at 655
(2004).
14

Tsemberis, Sam & Ronda F. Eisenberg, Pathways to Housing: Housing for Street-Dwelling
Homeless Individuals with Psychiatric Disabilities, 51 Psychiatric Services 487 (Apr. 2000);
Martha R. Burt & Jacquelyn Anderson, Corporation for Supportive Housing, AB2034 Program
Experiences in Housing Homeless People with Serious Mental Illness 3 (2005),
http://www.csh.org/index.cfm/?fuseaction=Page.viewPage&pageID=3621.

7

 Third,

supported housing facilitates full integration of individuals into
their communities. Residents are encouraged and assisted to
seek employment, volunteer work, and social activities.15

Supported housing may be financed through Medicaid and state and
federal housing funds. States can use Medicaid to fund virtually all of the
services provided to individuals in supported housing. While Medicaid funds may
not be used to fund rental subsidies, states may use certain Medicaid authorities
to pay for start-up costs including security deposits, utility start-up costs, and
furniture. Many states have rental subsidy programs that may be used for
individuals with mental illnesses in supported housing. Often state rental
subsidies are used until an individual is able to secure a federal rental subsidy—
for example, under the Section 8 housing program. Typically individuals pay no
more than 30 percent of their income (including SSI benefits) toward rent, with a
rental subsidy covering the remainder.
Supported housing is significantly less expensive than institutional care.
States that reallocate funds from institutional settings to supported housing as
they downsize or close institutions have been able to realize substantial cost
savings.

15

Bazelon Center, supra note 7, at 1-2.

8

The ADA’s Integration Mandate
and the Olmstead Decision
The ADA, enacted in 1990, was intended “to provide a clear and
comprehensive national mandate for the elimination of discrimination against
individuals with disabilities.”16 Title II of the ADA prohibits discrimination based on
disability by state and local government entities.17 In the ADA’s findings,
Congress recognized the longstanding problem of isolation and segregation of
people with disabilities, stating that:

 “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;

 “discrimination

against individuals with disabilities persists in such
critical areas as . . . institutionalization . . . ;

 “individuals

with disabilities continually encounter various forms of
discrimination, including outright intentional exclusion, . . . failure
to make modifications
to existing facilities and practices, . . .
18
[and] segregation . . . .”

Congress’s findings apply to all people with disabilities, including people
with mental illnesses. The ADA’s application to segregation is particularly
relevant to individuals with serious mental illnesses, who have a long history of
being physically segregated in state hospitals and other congregate facilities,
resulting in negative stereotypes and social isolation.

16

§12101(b)(1).

17

42 U.S.C. § 12132.

18

42 U. S. C. §§12101(a)(2), (3), (5).

9

In 1999, the Supreme Court interpreted the ADA’s integration mandate in
Olmstead v. L.C.,19 a case brought by two women with mental illnesses and
intellectual disabilities who challenged their
continued confinement in a state psychiatric
hospital after they had been determined
The ADA’s application
ready for discharge. The Court held that
needless institutionalization was a form of
to segregation is
discrimination prohibited by the ADA.
particularly relevant to
According to the Court, this holding reflected
individuals with serious
two evident judgments. First, needlessly
institutionalizing individuals with disabilities
mental illnesses, who
“perpetuates unwarranted assumptions that
have a long history of
persons so isolated are incapable or
being physically
unworthy of participating in community life.”20
Second, “confinement in an institution
segregated in state
severely diminishes the everyday life
hospitals and other
activities of individuals, including family
congregate facilities,
relations, social contacts, work options,
economic
independence,
educational
resulting in negative
advancement, and cultural enrichment.”21
stereotypes and social
States must offer services in community
isolation.
settings to interested individuals who are
needlessly institutionalized unless doing so
would fundamentally alter their service
systems.22
In Disability Advocates Inc. v. Paterson,23 later vacated on other
grounds, a federal district court considered ADA integration claims brought by
approximately 4,000 individuals with mental illnesses living in large, segregated
board and care homes called “adult homes.” These are among the outdated
facilities that, many decades ago, had been used by states to downsize their
state psychiatric hospitals. The lawsuit involved adult homes with at least 120
beds and where at least 25 percent of the residents had a mental illness
(individuals with mental illnesses constituted about 80 percent of the overall
population of the homes in question). The court held that New York was violating
19

527 U.S. 581 (1999).

20

Id. at 600.

21

Id. at 601.

22

Id. at 604-07.

23

Disability Advocates, Inc. v. Paterson, supra note 5.

10

the ADA’s integration mandate by administering, planning and funding its mental
health system in such a way that, for thousands of individuals with mental illness,
adult homes were the only residential option available.
While the adult homes are not operated by the state, the state is
“responsible for determining what services to provide, in what settings to provide
them, and how to allocate funds for each program.”24 The State “plan[s] how and
where services for individuals with mental illnesses will be provided, and . . .
allocate[s] the State’s resources accordingly.”25 The State licenses, monitors,
inspects, and regulates adult homes, and has the power to determine their
availability.26
Applying the principles set forth in Olmstead, the district court found that
adult homes are institutions that segregate people with mental illnesses from the
community, that supported housing is a more integrated setting than adult homes
(and the most integrated setting for virtually all adult home residents with mental
illness), that virtually all adult home residents with mental illnesses are qualified
to live in supported housing, and that many of these residents would choose to
live in supported housing if afforded a meaningful choice.27 Accordingly, the
district court held that New York discriminated against DAI’s constituents by
needlessly institutionalizing them in adult homes. While a federal appeals court
vacated the decision based on a finding that the plaintiff, Disability Advocates,
Inc., did not have standing to bring the case, it left untouched all of the findings of
fact and conclusions of law concerning the merits of the case.28
The adult homes case was ultimately refiled as a class action case, and
the United States Justice Department brought its own action against the state
based on the same facts—New York’s continued needless segregation of
individuals with mental illnesses in adult homes. The two cases were filed
together with a settlement agreement between the class of adult home residents,
the Justice Department, and New York. That settlement was approved by the
court and requires the state to develop supported housing for thousands of adult
home residents with serious mental illness. It is described in the section below
concerning Olmstead settlement agreements.
24

Disability Advocates, Inc. v. Paterson, 598 F. Supp.2d 289, 319 (E.D.N.Y. Feb. 19, 2009).

25

Disability Advocates, Inc. v. Paterson, supra note 5, at 192.

26

Id. at 194.

27

Id. at 198-265.

28

Disability Advocates, Inc. v. New York Coalition for Quality Assisted Living, Inc., 675 F.3d
149 (2d Cir. 2012).

11

The case has been cited by many other courts, and the reasoning of the
decision has been reflected in many subsequent community integration lawsuits
and court decisions.

Needlessly institutionalizing
individuals with disabilities
“perpetuates unwarranted
assumptions that persons
so isolated are incapable or
unworthy of participating in
community life.”

12

Justice Department Guidance
In 2011, the Justice Department issued guidance concerning the ADA’s
integration mandate and the Olmstead decision.29 The guidance defines the
“most integrated setting” as “a setting that enables individuals with disabilities to
interact with non-disabled persons to the
fullest extent possible,” and makes clear
The guidance specifies
that:
“Integrated settings are those that
provide individuals with disabilities
opportunities to live, work, and receive
services in the greater community, like
individuals without disabilities. Integrated
settings are located in mainstream
society; offer access to community
activities and opportunities at times,
frequencies and with persons of an
individual’s choosing; afford individuals
choice in their daily life activities . . . .”30
The guidance describes scatteredsite housing with supportive services as
an example of an integrated setting. By
contrast, the guidance states that
segregated settings include:

that remedies for the
segregation of
individuals in
institutions or large
congregate facilities
should include
providing these
individuals with
“opportunities to live in
their own apartments or
family homes, with
necessary supports”

 congregate settings populated exclusively or primarily with individuals
with disabilities;

 congregate settings characterized by regimentation in daily activities,
lack of privacy or autonomy, policies limiting visitors, or limits on

29

See Statement of the Department of Justice on Enforcement of the Integration Mandate of Title
II of the Americans with Disabilities Act and Olmstead v. L.C., and Questions and Answers on the
ADA’s Integration Mandate and Olmstead Enforcement,
http://www.ada.gov/olmstead/q&a_olmstead.pdf.
30

Id. at 3, Question 1.

13

individuals’ ability to engage freely in community activities and to
manage their own activities of daily living; or



settings that provide for daytime activities primarily with other
individuals with disabilities.31

The guidance states that the ADA’s integration mandate applies not just to
a state’s use of public institutions, but also to a state’s administration of a service
system that relies on privately operated institutions. A state may violate the ADA
when it “finances the segregation of individuals with disabilities in private
facilities” or “through its planning, service system design, funding choices, or
service implementation practices, promotes or relies upon the segregation of
individuals with disabilities in private
facilities or programs.”32
In addition, the guidance clarifies
that, as many courts have ruled, the
integration mandate also applies to
people with disabilities who are at
serious risk of institutionalization. Thus,
individuals who are homeless and have
a mental illness may have a right to
receive supported housing if they are at
serious risk of institutionalization. In
addition, individuals who are living in
their own homes and receiving services
may be able to prevent cuts to those
services if they can show that these
cuts will place them at serious risk of
institutionalization.33

The guidance states
that the ADA’s
integration mandate
applies not just to a
state’s use of public
institutions, but also to
a state’s administration
of a service system
that relies on privately
operated institutions.

The guidance specifies that remedies for the segregation of individuals in
institutions or large congregate facilities should include providing these
individuals with “opportunities to live in their own apartments or family homes,
with necessary supports” and “expanding the services and supports necessary
for individuals’ successful community tenure,” including supported housing, crisis
services, assertive community treatment (“ACT”) teams, case management, peer
support services, supported employment, and other services.34

31

Id.

32

Id. at 3, Question 2.

33

Id. at 5, Question 6.

34

Id. at 8, Question 15.
14

HUD Guidance
The Department of Housing and Urban Development (HUD) has issued
guidance concerning the integration mandate’s applicability to federally funded
housing programs. Programs and activities that receive federal financial
assistance, including HUD-financed housing programs, must comply with Section
504 of the Rehabilitation Act. Section 504 imposes obligations on covered
entities that are largely the same as the ADA’s requirements, including the
requirement to administer services to individuals with disabilities in the most
integrated setting appropriate to their needs.35
HUD’s guidance observes that as states “rebalance” their service systems
to shift away from providing long-term services to individuals with disabilities in
hospitals, nursing homes, adult care facilities and other institutions, these efforts
are frustrated in many states by a lack
of integrated housing options. “As a
For communities that
result, there is a great need for
affordable,
integrated
housing
have historically relied
opportunities where individuals with
heavily on institutional
disabilities are able to live and interact
settings and housing
with individuals without disabilities,
while receiving the health care and
built exclusively or
long-term services and supports they
primarily for individuals
need.”36
The HUD guidance notes that
“[f]or communities that have historically
relied heavily on institutional settings
and housing built exclusively or
primarily for individuals with disabilities,
the need for additional integrated
housing options scattered throughout

35

with disabilities, the need
for additional integrated
housing options scattered
throughout the
community becomes
more acute.

29 U.S.C. § 794.

36

Statement of the Department of Housing and Urban Development on the Role of Housing in
Accomplishing the Goals of Olmstead, at 1,
http://portal.hud.gov/hudportal/documents/huddoc?id=OlmsteadGuidnc060413.pdf.

15

the community becomes more acute.”37 HUD reiterated much of what the Justice
Department said about integrated and segregated settings, and listed as
examples of integrated settings: “scattered-site apartments providing permanent
supportive housing, tenant-based rental assistance that enables individuals with
disabilities to lease housing in integrated developments, and apartments for
individuals with various disabilities scattered throughout public and multifamily
housing developments.”38

37

Id. at 2.

38

Id. at 6.

16

Olmstead Settlement Agreements
The vast majority of Olmstead cases involving individuals with mental
illnesses have resolved through settlement agreements rather than court rulings.
Most settlement agreements that states have entered with the Justice
Department and/or private litigants focus on the development of supported
housing for individuals with mental illnesses who are needlessly institutionalized.
Other settlements have included similar relief for individuals with intellectual or
developmental disabilities, though the terminology of “supported housing” is not
used. Below we describe how some of the key settlement agreements have
promoted, or will promote, the development of supported housing.

Presumption that Supported Housing is the Most Integrated
Setting
The Olmstead settlements entered by the Justice Department and by
private litigants typically obligate states to establish a process to assess
institutional residents to determine what is the most integrated setting appropriate
to their needs and what services would be needed for them to succeed in that
setting. These settlements generally require that the assessments operate with
the presumption that scattered-site supported housing is the most integrated
setting appropriate and that individuals with disabilities are capable of living in
that setting. Some of the settlements set forth the narrow circumstances in which
that presumption can be overcome. For example, the settlement between adult
home residents, New York, and the United States provides that adult home
residents will be eligible for supported housing unless they (a) have significant
dementia, (b) would be a danger to self or others in supported housing, even if
receiving needed services, (c) need skilled nursing care that cannot be provided
outside of a nursing home or hospital, or (d) need services that are not available
through any publicly or privately financed program.39

Settlement Agreement in O’Toole v. Cuomo, United States v. New York, Nos. 13-CV-4165, 13CV-4156 (proposed settlement agreement filed July 23, 2013), at F.5,
http://www.bazelon.org/portals/0/In%20Court/Current%20Cases/Current%20Cases/DAI/Court%
20Documents/7.23.13DAI%20settlement%20(1).pdf. See also Williams v. Quinn, at par. 9,
http://www.bazelon.org/LinkClick.aspx?fileticket=FCDIyZfA5jk%3d&tabid=195 (permanent
supportive housing considered the most integrated setting appropriate for Class Members except
where institutional residents (i) have severe dementia or other severe cognitive impairments
39

17

Ensuring Informed Choice of Living Settings
Many of the settlements require states to have supported housing
providers or individuals with mental illnesses who are living in supported housing
conduct ongoing efforts to engage institutional residents, educate them about
supported housing (including the services and financial benefits available to
residents of supported housing), and explore and address any concerns that
residents may have about living in supported housing. This process, sometimes
known as “in-reach,” typically includes facilitating visits by institutional residents
to supported housing, providing photographs or virtual tours of supported
housing units, and identifying supported housing residents willing to speak with
institutional residents.40
Such a process is important to ensure that individuals can exercise
informed choice about where to live. Many individuals have the experience of
being told where they will live. Many are unfamiliar with supported housing, or
are unaware that they would receive a rental subsidy or how much of their SSI
benefits they would keep. Many have been told that they are incapable of living
outside of an institution and thus have difficulty believing that they can. Others
have had negative experiences when living in their own apartments or homes in
the past, in situations where they did not receive services or a rental subsidy.
Educating individuals about their options and exploring their concerns will help
ensure that they can make meaningful choices.

Ensuring that Individuals Receive Needed Services
Another critical aspect of most recent Olmstead settlements is a
requirement that states provide the services that individuals need in order to live
successfully in supported housing. These services, determined through an
individualized planning process, may include case management, assertive
community treatment, supported employment, peer support, crisis services,
and/or other services.

requiring such a high level of staffing to assist with activities of daily living or self-care
management that they cannot effectively be served in supportive housing, (ii) have medical needs
requiring a high level of skilled nursing care that may not safely be provided in supportive
housing, or (iii) present an imminent danger to themselves or others).
See, e.g., O’Toole v. Cuomo settlement, supra note 38, at par. E (“In-Reach”); Williams v.
Quinn consent decree, supra note 38, at pars. 6(d) and 10.
40

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Supported Housing Generated Under Olmstead Settlements
Below are descriptions of some of the key Olmstead settlement agreements that
expand supported housing for people with mental illnesses:

United States v. New York, O’Toole v. Cuomo (adult homes in New
York; settlement preliminarily approved 2014): New York will develop at
least 2000 units of scattered-site supported housing for adult home
residents with serious mental illness, and as many as needed to afford all
residents with serious mental illnesses the opportunity to live in supported
housing if they are qualified for it and want it. There are approximately
4000 adult home residents with
serious mental illnesses in the homes
These settlements
that are the subject of the settlement
generally require
agreement. This is the refiled adult
homes case discussed earlier.
that the assessments

operate with the
presumption that
scattered-site
supported housing is
the most integrated
setting appropriate
and that individuals
with disabilities are
capable of living in
that setting.

United
States
v.
New
Hampshire, Amanda D. v. Hassan
(state psychiatric hospital and state
nursing home for individuals with
serious mental illnesses in New
Hampshire; settlement approved
2014): New Hampshire will develop
more than 600 units of scattered-site
supported housing for residents of
New Hampshire Hospital and the
Glencliff Home, as well as individuals
who, within the last two years, have
been admitted multiple times to New
Hampshire Hospital, have used crisis or emergency services for mental
health reasons, have had criminal justice involvement as a result of a
mental illness, or have been unable to access needed community
services.

United States v. North Carolina (privately operated adult care
homes for individuals with psychiatric disabilities in North Carolina;
settlement approved 2012): North Carolina will develop 3000 units of
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scattered-site supported housing for individuals with serious mental
illnesses who reside in, or are at risk of admission to, large adult care
homes.

United States v. Delaware (state psychiatric hospital; settlement
approved 2011): Delaware will develop 650 units of scattered-site
supported housing for individuals with serious and persistent mental
illnesses served in, or at risk of admission to, Delaware Psychiatric Center
or private psychiatric hospitals that are paid for with state funds.

United States v. Georgia (state psychiatric hospitals; settlement
approved 2010): Georgia will develop approximately 9000 supported
housing for state psychiatric hospital residents who are qualified for and
want it. Half of the units must be scattered-site.

Williams v. Quinn (privately operated “Institutions for Mental
Diseases” in Illinois; settlement approved 2010): Illinois will develop 646
units of scattered-site supported housing for IMD residents over the first
two years, and then a sufficient amount of additional units to ensure that
all IMD residents with mental illnesses who are qualified for supported
housing and want it have the opportunity to transition to supported
housing. There are more than 4000 individuals with mental illnesses in
IMDs.

These settlement agreements vary in their terms based upon the circumstances
under which each was negotiated. Accordingly, they differ somewhat in the
numbers of new housing units to be developed and how the state will
demonstrate that the individuals are integrated within the community.
Collectively, however, they reflect the goal of providing individuals with mental
illnesses opportunities to live successfully in the community mainstream, and
they should result in the development of supported housing and services for
many thousands of such individuals across the country.

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Medicaid Rules Promoting
Supported Housing
Recent revisions to the federal Medicaid rules concerning services in
“home and community-based settings” will promote the expansion of supported
housing for individuals with disabilities. These rules, which became effective on
March 17, 2014, provide that such home and community-based settings must be
chosen by the individual, from among various options including settings that are
not disability-specific (i.e. a home or apartment in mainstream housing). 41 These
settings must be integrated in and support full access to the greater community
(including opportunities to seek employment, work in competitive integrated
settings, engage in community life, control personal resources, and receive
services in the community), ensure a person’s rights of privacy, dignity, respect,
and freedom from coercion and restraint, optimize autonomy and independence
in conducting daily activities and making life
choices, and facilitate choice regarding
Many of the settings
services and who provides them.42 Certain
in which individuals
settings are presumed not to be home and
with mental illnesses
community-based, including settings in a
publicly or privately-owned facility that
currently live and
provides inpatient treatment, settings on the
receive Medicaidgrounds of or adjacent to a public
funded home and
institution, and settings that have the effect
community-based
of isolating individuals from the broader
services do not meet
community.43

the requirements of
the new regulations.

These rules are expected to create
significant changes in how disability service
systems operate. Many of the settings in
which individuals with mental illnesses currently live and receive Medicaid-funded
41

42 C.F.R. §§ 441.301(c), 441.530(a), 441.710(a).

42

Id.

43

Id.

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home and community-based services do not meet the requirements of the new
regulations. Moreover, most individuals with mental illnesses who live in
congregate settings—or in apartment buildings occupied primarily or exclusively
by other people with disabilities—have not been given the choice of living in their
own home in mainstream housing, as required by the new regulations. These
regulations, which allow states a transition period to come into compliance,
create incentives for states to invest more heavily in supported housing settings
for individuals with mental illnesses.

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Taking Advantage of the
Changed Landscape
The ADA and Section 504 have created tremendous opportunities for the
development of supported housing. These laws include an “integration mandate”
requiring that services for people with disabilities be administered in the most
integrated setting appropriate to their needs. For virtually all people with mental
illnesses, the most integrated setting is their own home or apartment, with the
services (if any) that they need to succeed there. Accordingly, the federal
government has made clear that developing scattered-site supported housing,
with a housing subsidy and the individualized services that an individual needs to
succeed, should be the focus of states’ efforts to comply with the integration
mandate. New Medicaid rules also create significant incentives for states to
expand supported housing and reallocate dollars from institutional settings to
finance this expansion.
These developments provide an excellent opportunity for the development
of additional supported housing for individuals with mental illnesses. As states
make efforts to comply with the ADA’s integration mandate, the development of
supported housing is becoming an important priority, and one that holds the
promise of improving the lives of individuals with mental illnesses as well as
enabling states to realize cost savings.

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