U.S. v. Mississippi: Fifth Circuit Decision Leaves Community Mental Healthcare in a Vulnerable State

Guest Post by Cory Bernstein

Cory Bernstein is a Staff Attorney at National Disability Rights Network, USA. He has previously worked at Disability Rights New Jersey.

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In September 2023, the Fifth Circuit of the U.S. Court of Appeals, one level below the Supreme Court, issued a decision on Mississippi’s state mental health system and its duty to prevent psychiatric hospitalization. The case, U.S. v. Mississippi, upended decades of precedent regarding the Americans with Disabilities Act (ADA), impacting stakeholders in the mental health disability and psychiatric communities. My hope in writing is that non-legally focused stakeholders learn about U.S. v. Mississippi and the importance of rejecting its interpretation of the ADA, Olmstead v. L.C, and the integration mandate.

For background, Title II of the Americans with Disabilities Act provides that public entities, such as a state mental health system, cannot discriminate against or exclude individuals with disabilities from participating in services or programs on the basis of their disability. Federal regulations further elaborate that public entities must provide such services, programs, and activities “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” This is colloquially known as the “integration mandate.” In 1999, the Supreme Court interpreted the integration mandate in the seminal case Olmstead v. L.C., holding that unjustified institutionalization constitutes discrimination under the ADA that violates the integration mandate. Therefore, Olmstead requires that public entities provide mental health and disability services in the most integrated setting possible—i.e., community-based settings—to prevent discrimination in the form of unjustified institutionalization. Olmstead remains a foundation of the disability rights movement and the legal protections against institutionalization.

Following Olmstead, lower courts have consistently held the ‘risk of unjustified institutionalization’ to be a violation of the integration mandate. The risk of unjustified institutionalization does not only apply to psychiatric hospitals. For example, in Davis v. Shah, the Second Circuit U.S. Court of Appeals court found that a Medicaid system’s lack of coverage for orthopedic footwear created a risk of unjustified institutionalization in nursing facilities.

In the 2003 case Fisher v. Oklahoma Health Care Authority, the Tenth Circuit Court of Appeals meanwhile explained why a risk of unjustified institutionalization violated the ADA:

“[The integration mandate] would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation. Second, while it is true that the plaintiffs in Olmstead were institutionalized at the time they brought their claim, nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA's integration requirements.” Fisher, 335 F.3d 1175, 1181.

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In 2011, the U.S. Department of Justice (DOJ) began investigating Mississippi’s mental health system. The DOJ found that Mississippi unnecessarily institutionalized and placed individuals at risk of unjustified institutionalization by “cycling” individuals in and out of psychiatric facilities without necessary supports to sustain community living. After years of negotiations and clinical studies validating the federal government’s claims, the U.S. sued Mississippi alleging ADA violations under Olmstead. After a four-week trial in 2019, the court found that Mississippi’s mental health system violated the integration mandate by placing individuals at risk of unjustified institution. The court cited DOJ’s voluminous evidence about Mississippi’s inadequate community supports, including: failure to provide sufficient mobile crisis services, peer support services, and permanent supportive housing. Crucially, the court issued a sweeping injunctive order that overhauled Mississippi’s mental health system to satisfy the integration mandate. Mississippi appealed this decision to the Fifth Circuit Court of Appeals.

On September 20^th, 2023, the Fifth Circuit reversed the 2019 decision of the lower court in sweeping fashion. Bucking decades of Olmstead’s progeny from other circuit courts across the country, the three-judge panel unanimously held that being “at risk of unjustified institutionalization” does not constitute discrimination under the ADA. There are many notable takeaways from the decision outside the scope of this piece. For this purpose, I will highlight three aspects of the decision with significant ramifications on state mental health systems and people with mental health disabilities moving forward.

First, the court rejected the well-established argument that a risk of unjustified institutionalization constitutes discrimination under the ADA. Writing for the court, Judge Edith Jones reasoned that individuals cycling between institutions “are not separated from the community” once they are discharged. This creates a binary— one is either in a psychiatric hospital or in the community—that is divorced from practical reality. Psychiatric hospitalization completely upends one’s life. Upon discharge, where does someone live? Have they been evicted from their apartment? Are they forced to live in a homeless shelter or restrictive group home? Did they lose their job upon commitment, and if so, can they get it back? Where will they pick up medication prescriptions? Do they have a way to schedule and find transportation to clinical services they might need? Individuals must address these questions immediately upon discharge or risk re-institutionalization. Not having basic needs addressed hinders sustained stability upon discharge. Moreover, the court explained that Mississippi’s civil commitment hearing process “makes it hubristic for a federal court to predict the ‘risk’ that an ‘unjustified’ civil commitment process will commence against any individual.” Civil commitment processes, however, are not infallible. The hearing process is based on court-appointed medical and clinical professional’s opinions about an individual’s ‘dangerousness’ which can have shortcomings.

Second, the court asserted that Olmstead claims are limited to individualized determinations of discrimination rather than discrimination against entire classes of individuals. Relying on Justice Anthony Kennedy’s concurring opinion in Olmstead, the Fifth Circuit highlighted the importance of “obtaining treating or state physicians’ opinions for each individual” rather than using data or surveys for systemic Olmstead claims. The court readily acknowledges that this interpretation of Olmstead does not comport with case law in various federal circuits across the country, as well as longstanding DOJ guidance. Nevertheless, the Fifth Circuit seems to sardonically ask “[a]re all these cases wrong? We need not say, because they are all distinguishable or unreliable legally.” The court goes as far as to say that it would not be discrimination if every Mississippi citizen were at risk of unjustified institutionalization.

Finally, the court noted that even if the DOJ successfully demonstrated discrimination under the ADA, the injunctive order revamping Mississippi’s mental health system was overly broad. Again, the court’s Olmstead interpretation is individualistic, injunctive orders must not pursue systemic change. The Fifth Circuit highlighted the injunctive order’s language, adding 250 housing vouchers and mobile crisis teams in various regions as particularly egregious.

Notably, the decision never denies that individuals with serious mental health disabilities are at risk of unjustified institutionalization. Rather, the court counters in the face of many other decisions that this does not constitute discrimination under the ADA, nor can the ADA mandate systemic change. In so doing, it ignores the ADA’s general underlying commitment to “positive rights”, i.e. requiring public entities to make affirmative changes to prevent discrimination before it occurs. Simply put, U.S. v. Mississippi harrowingly limits Title II of the ADA and Olmstead, which are foundational for disability rights in the United States.

It will take plenty of time to determine the national ramifications of this decision. The Fifth Circuit covers Mississippi, Texas, and Louisiana. Other circuits, many of which view Olmstead very differently, are not bound by this decision. As the Fifth Circuit readily acknowledged in Mississippi, its decision is well outside the mainstream interpretations of Olmstead. Nevertheless, if the case is appealed to the Supreme Court and granted review, the Supreme Court could affirm the Fifth Circuit’s holding, and U.S. v. Mississippi could apply nationally.

But while jurists and national Olmstead experts grapple with these essential, but somewhat existential questions, the people of Mississippi are already feeling the pain. Describing the 5th Circuit decision as a “tragedy”, Disability Rights Mississippi’s Interim Legal Director Clayton Giles explained that “the Mississippi Department of Mental Health has stated it will continue to move forward with [the settlement’s expert] recommendations. Whether it will or not is another question. Frankly, what was once a mandate is now just outside advice. The Department does not have to heed it. This consent decree was good for our state and was spurring us toward a better system. Now it is gone. Future motivation for progress will now have to come from the citizens of Mississippi and not the courts.” Giles also noted that the order inspired meaningful change outside of the psychiatric hospital. Building off the injunctive order, Mississippi used and applied methodologies in the injunctive order to reduce competency evaluation wait times for individuals in forensic settings found not competent to stand trial for criminal charges.

With three states staring down a post-Olmstead integration mandate future, U.S. v. Mississippi exposes the real limitations of the ADA—or any law for that matter. As crucial as the language of Olmstead or Title II of the ADA might be, it is still subject to judicial interpretation which, as in the Fifth Circuit case, can result in the degradation of the impact of that seminal decision on the lives of persons with mental health disabilities. The Fifth Circuit maintains that legal discriminations based on serious mental illness under Title II are individual circumstances that must be evaluated as such. But irrespective of any legal standard, on the ground reports and a growing body of research indicate that large-scale socio-economic factors are the driving force behind many serious mental health disabilities, and addressing these systemic forces may provide more effective outcomes than hyper-individualized interventions. What’s required is not to just defend our ground but to affirmatively build the mental healthcare system we deserve through broad-based coalitions between legal advocates, clinicians, activists, and most of all, people with serious mental health disabilities. Working together, we provide ourselves with the broadest array of tools and best chance to maximize our strengths.

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