Monday, November 28, 2022

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Abstract

Excerpted From: McKenna Stone Cloud, Discrimination and Disparity: Violating Olmstead v. L.c. Discriminates Against the Psychiatrically Vulnerable and Fosters Racial/Ethnic and Socioeconomic Mental Health Disparities, 40 Mississippi College Law Review 131 (2022) (306 Footnotes) (Full Document)

 

McKennaStoneCloudWhen asked how to improve Mississippi's mental healthcare system, Melody Worsham's response was simple: “Stop violating people's rights. Start there. The current system is designed to violate people's rights.” Melody speaks from experience, not just as a certified peer support specialist for the State, but also as a mental health consumer who has struggled with serious mental illness (“SMI”). As a visitor, she has seen firsthand the conditions of Mississippi's psychiatric institutions and hospitals. Patients have little to no rights or privacy, as they are inundated with drugs, forced to share community bathrooms, and prevented from resting in their rooms during the day. In fact, during menstruation, women are forced to publicly carry feminine hygiene products in their hands, stripping them of even the most basic dignity and privacy. After witnessing these deplorable conditions, Melody was determined never to be institutionalized.

Unfortunately, thousands of Mississippians with SMI and intellectual and developmental disabilities (hereinafter “psychiatric vulnerabilities”) are unable to escape these institutional settings due to insufficient community-based services throughout the State. Unnecessarily institutionalizing individuals with psychiatric vulnerabilities violates people's rights, and Mississippi is not alone; states across the nation are similarly guilty of such violation.

Dubbed “the Brown v. Board of Education for Disability Rights,” the landmark United States Supreme Court case Olmstead v. L.C. ex rel Zimring held that institutionalizing individuals with psychiatric vulnerabilities who are capable and desirous of community-based treatment is a form of unlawful discrimination that violates the Americans with Disabilities Act (“ADA”). Violating the ADA and Olmstead does more than just discriminate against people with psychiatric vulnerabilities; it fosters racial/ethnic and socioeconomic mental health disparities.

More than twenty years after Olmstead's publication, numerous states remain in violation of the federal mandate through failure to provide the least restrictive treatment to individuals with psychiatric vulnerabilities. In 2019, Mississippi was the subject of one of the most recent federal court decisions expressly finding a state in violation of Olmstead, but it is merely one of several states that continues to unnecessarily institutionalize individuals with psychiatric vulnerabilities due to a lack of community-based mental health services. States' failures to fund and implement ample community-based treatment not only discriminates against individuals with psychiatric vulnerabilities, but it also disproportionately impacts those in lower socioeconomic statuses and people of color. Data shows that oftentimes community-based mental health services are ample in wealthy cities comprised of majority-white residents, while such services are sparse in lower-income areas in which the majority of the population consists of people of color. Such racial/ethnic and socioeconomic mental health can be addressed through compliance with Olmstead, which requires states to fund and implement community-based treatment.

Using the recent holding against Mississippi as a focal point, this Comment advocates for states to “stop violating people's rights” by increasing access to community-based mental health alternatives. While Mississippi is used as a case study, the application for findings and recommendations has a much broader scope, extending to states across the nation. Part II of this Comment discusses the history of the deinstitutionalization movement in the United States, a trend which led to the enactment of the ADA, its interpretation in Olmstead, and states' responses to the federal mandates. Part III highlights Mississippi's violation of the ADA and Olmstead and the resulting socioeconomic and racial/ethnic implications. Finally, using Mississippi as a case study, Part IV offers a path forward by exploring proposals for complying with the ADA and Olmstead and the larger implications of expanding community-based services--improving socioeconomic and racial/ethnic mental health parity.

[. . .]

Happy twentieth birthday, Olmstead; you've been violated, again. In 2019, on the twentieth anniversary of the publication of Olmstead v. L.C. ex rel Zimring, Mississippi was found to be in violation of the Americans with Disabilities Act and Olmstead due to unnecessarily institutionalizing individuals with psychiatric vulnerabilities. The federal mandate is simple: “Stop violating people's rights.” However, Mississippi's lack of community-based services not only violates the rights of people with psychiatric vulnerabilities, but it also fosters racial/ethnic and socioeconomic mental health disparities. There are five recommendations to achieve Olmstead compliance and address racial/ethnic and socioeconomic mental health disparities: (1) create an Olmstead plan with measurable goals; (2) increase and reallocate funding for community-based services; (3) improve patient-discharge plans and collaboration among state actors; (4) increase telehealth accessibility; and (5) expand Medicaid mental health coverage and eligibility.

Complying with the ADA and Olmstead will provide individuals with psychiatric vulnerabilities with the least-restrictive treatment possible, ensuring such individuals are not unnecessarily institutionalized against their will. Furthermore, expanding access to affordable community-based services will increase racial/ethnic and socioeconomic healthcare parity. This Comment implores states to heed the following call to action: put an end to discrimination and disparity.


McKenna Stone Cloud is a 2022 graduate of Mississippi College School of Law.

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