Risk of Unjustified Civil Commitment Does Not Constitute Discrimination under Title II of the ADA

Facts of the Case

In February 2011, the United States Department of Justice (DOJ) began an investigation of Mississippi’s mental health care system for unclear reasons; there was no evidence of individual instances of discrimination against persons with mental illness. This investigation involved interviews with state leaders, community mental health center employees, and disabled persons; various reports were written comparing Mississippi’s use of community-based resources to other states’ programs.

In December 2011, the DOJ informed Mississippi that its investigation showed the state was senselessly civilly committing individuals with mental illness in violation of Title II. The DOJ sent a letter of findings to Mississippi outlining the necessary steps to be taken to meet DOJ’s set criteria for commitment. In August 2014, Mississippi responded in writing to the DOJ outlining the steps it had taken to comply with the DOJ’s recommendations. The DOJ decided more forceful measures were needed to get Mississippi in compliance, so it filed a lawsuit against Mississippi in August 2016, under the ADA (and the Civil Rights of Institutionalized Persons Act). The lawsuit did not cite individual instances of discrimination, but rather asserted that “systemic deficiencies” in the state’s operation of mental health programs put every Mississippian with a mental illness “at risk” of unnecessary institutionalization in violation of Title II.

To prove its claims, the United States convened a study by six outside experts (two psychiatrists, a clinical social worker, a psychologist, a nurse, and an occupational therapist) who interviewed 154 individuals from a pool of 3,951 Mississippians who had been admitted to state hospitals at least once between 2015 and 2017 and reviewed each of the interviewees’ hospital and outpatient records. Based on the interviews and records reviews, the experts answered four predetermined questions for each interviewee, concluding that each interviewee would have avoided, or spent less time in, a state hospital if the interviewee had been provided reasonable community-based services. Among the other data analyzed, these experts found that about 50 percent of 5,070 state hospital admissions from 3,951 patients were repeat, i.e., “cycling admissions.”

In September 2019, the district court found that Mississippi’s “entire mental health system” violated Title II because it put every Mississippian with a severe mental illness “at risk” of “unjustified institutionalization,” using “cycling admissions” as part of their rationale. The court stated the experts’ study showed that Mississippi’s system of providing mental health care for adults violated the “integration mandate” prescribed by the ADA and reified in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). The court rejected Mississippi’s defense that expanding access to its existing community-based services would “fundamentally alter” its mental health system.

The court did not immediately enter a remedial order; it appointed a special master to assist the court and the parties attempted to reach a settlement. Negotiations went on for two years while Mississippi increased the number of community-based programs. Upon pressure from the court, the parties and the special master each submitted a proposed remedial plan. In July 2021, after a hearing, the court adopted the special master’s proposed remedial plan, and in September 2021 it issued a remedial injunctive order, appointed a monitor, and entered a final judgment.

The remedial order tasked community mental health centers to prevent unnecessary institutionalization by identifying individuals with mental illness, coordinating their care, and diverting them from unnecessary hospitalization. The court order dictated the quantity of community-based mental health services, how they should be implemented, and policy priorities agencies should follow. It forced the state to fund certain programs, hire additional staff, and sought influence over state chancery courts (chancery courts had jurisdiction over civil commitments). In addition, there were very strict measures by which Mississippi's compliance would be tracked, such as requiring monthly and annual reports, requiring quarterly hearings, posting certain data on a publicly available website, and submitting the data to the DOJ and the monitor. The remedial order was to end only when Mississippi achieved “substantial compliance” and maintained that compliance for one year as determined by the court.

Mississippi contended it had substantially complied with the court’s order. The United States withdrew its response to Mississippi’s showings. Mississippi moved for a partial stay of the remedial order, which the court granted, pending an appeal to the Fifth Circuit, in which Mississippi contended that the federal government had not proved a cause of action for discrimination in violation of Title II and the court’s remedial order vastly exceeded the scope of claimed liability.

Ruling and Reasoning

In a unanimous decision, the three-judge panel of the Fifth Circuit reversed the district court’s ruling. The appeals court ruled the United States did not prove that Mississippi violated Title II pursuant to ADA statute, its implementing regulations, and Olmstead “as properly construed.”

Regarding the Title II claim, the appeals court referenced the text of Title II, its implementing regulations, and Olmstead in stating that nothing in these documents suggested that a “risk of institutionalization,” without actual institutionalization, is an actionable claim of discrimination. Similarly, the appeals court stated the integration mandate did not speak to the “risks of maladministration” of public programs. The Fifth Circuit indicated courts must follow the language Congress had enacted and not increase the scope of a statute because the courts think it is good policy or an application of “Congress’s unstated will.” In addition, the appeals court reasoned that Mississippi’s judicial commitment process and subsequent hospital discharge procedures, which include a “least restrictive environment” component made it “hubristic” for a federal court to predict the “risk” that unwarranted civil commitments could be initiated against individuals. The Fifth Circuit also stated that the DOJ’s guidance document in the wake of Olmstead, which asserted that a “serious risk of institutionalization” was sufficient to establish an ADA claim, had no legal bearing and never underwent appropriate procedures to become a binding document.

Regarding the overarching remedial order claim, the appeals court indicated Mississippi was correct in contending that Olmstead did not support a mandate for “court-superintended institution-wide changes” (p 395) based on the “risk of institutionalization” that was generalized from a survey of 154 individuals out of 3,951 Mississippians. The Fifth Circuit stated “generalizations” could assist a state in assessing its own programs but are not sufficient to prove that individuals suffered from “unjustifiable isolation” that was a result of unwarranted institutionalization “en masse.” The appeals court stated the risk that “unnamed” persons with serious mental illness or “all such persons” in Mississippi could be unjustifiably committed in the future does not allow courts under the ADA to revamp the state’s entire mental health system. The Fifth Circuit ruled the district court’s remedial injunction order was too broad even if the United States was able to prove a discrimination claim under Title II.