Expansion Strategies for Institutional Therapy by the Department of Justice

The Department of Justice (DOJ) has proposed changes to its policies regarding mental health care for individuals with severe mental illness, following an executive order signed by President Donald Trump in July. The order aims to address homelessness and serious mental illness, and the DOJ's proposals seek to expand states' use of involuntary treatment and improve access to community-based care.

The DOJ's suggestions include increasing access to community-based treatment, expanding crisis intervention services, and enhancing coordination between mental health providers and the criminal justice system. These measures are designed to help people living on the streets access services tailored to their needs and those of the community.

However, changing these laws would require the DOJ to overturn more than five decades of rulings defining the constitutional rights of people with mental illness. The DOJ's current interpretation of the Americans with Disabilities Act (ADA) requires public entities to administer programs in the most "integrated setting" only when a person with a disability "accepts" it. The DOJ is proposing to amend this definition to reflect how community-based care is characterized by patients' freedoms rather than their access to "non-disabled people."

The DOJ's proposed changes also address the example of Andrew Goldstein, a New Yorker with schizophrenia, who experienced the tragic results of states erecting unnecessary barriers to voluntary inpatient care for people with serious mental illness. The DOJ has tools at its disposal to ensure that states can provide institutional psychiatric and disability care to people in crisis and in need of appropriate services. The department should assure states that it will not investigate them solely for having allowed more voluntary patients into facilities.

The DOJ's proposed changes also seek to clarify that voluntary institutional treatment does not raise Olmstead concerns. The Olmstead case required states to treat a disabled person in the "community" under certain conditions, but it did not mandate that states close institutions or imply that doing so demonstrates compliance with the ruling. The DOJ could send a memo to states clarifying its interpretation of the Supreme Court’s decision in Olmstead v. L.C. (1999).

The DOJ's proposed changes also aim to reverse judicial precedents that impede the United States' policy of encouraging civil commitment. The order encourages states to adopt "maximally flexible ... institutional treatment ... standards."

The DOJ's tools stem from its investigative powers and its role in interpreting the ADA. The department's failure to include provisions that allow disabled people to make choices about their care has led to states and departments embracing absurd conclusions about their obligations under the ADA. The DOJ should define an integrated setting as one that allows qualified individuals with disabilities to interact with non-disabled persons to the extent they choose, recognizing that, on a case-by-case basis, this could include a disability-specific environment.

A systematic review suggests that farm-based programs for people with mental illness can improve symptoms and skills, but only six private therapeutic farms are in operation in the U.S. due to fears of being deemed "segregated" and facing Olmstead investigations. The DOJ's proposals aim to alleviate these fears and encourage the expansion of such programs.

In conclusion, the Department of Justice's proposed changes to mental health care policies aim to expand access to community-based care, increase crisis intervention services, and enhance coordination between mental health providers and the criminal justice system. The DOJ is also seeking to clarify its interpretation of the ADA and the Olmstead case, with the aim of ensuring that people with severe mental illness receive the care they need while maintaining their constitutional rights.