Department of Justice Launches Investigation into the State of South Carolina

On January 12, 2022, the Department of Justice (DOJ) launched a statewide disability rights investigation into South Carolina's use of adult care homes. The DOJ states that it intends to determine whether the State of South Carolina has subjected persons with mental health issues to unnecessary segregation and institutionalization and failed to provide appropriate community-based mental health services. 

Assistant Attorney General Kristen Clarke of the Justice Department's Civil Rights Division: 

“People with disabilities have too often been unlawfully isolated in institutions, including state psychiatric hospitals and adult care homes, [...] the Civil Rights Division will continue to defend the rights of individuals with mental illness to access the community-based services they need and to participate fully in community living.”

According to the State of Carolina's "Resident's Bill of Rights," the State of Carolina provides for a grievance process in which patients can participate if they feel their rights have been violated.

While the DOJ's press release does not provide information about the complaint that triggered the investigation, the language used may provide insight into which direction they are going. 

Specifically, the release states that "South Carolina needlessly segregates individuals with mental illness in adult care homes, known in the State as community residential facilities, by failing to provide integrated community-based mental health services." 

The keywords being "integrated" and "community-based [services]," key components of the ADA's integration mandate − which was upheld in Olmstead v. L.C. in 1999. 

Since 2009 the DOJ has aggressively worked to enforce the Olmstead ruling and prevent unnecessary segregation of persons with disabilities and ensure the most integrated setting available. 

What is Olmstead v. L.C.?

Olmstead v. L.C. may be one of the most important Supreme Court Decisions regarding the treatment of persons with disabilities and particularly persons with mental health conditions since the passage of the Americans with Disabilities Act (ADA). In 1999 the Supreme Court held that persons with disabilities have the right to live and receive treatment in their community and/or community-based settings rather than in an institution. 

The Supreme Court ruled that persons should be placed in community-based settings rather than institutions if the following three criteria are met: 

1. when treatment professionals determine that community placement is appropriate
2. when the individual does not oppose being served in the community, and
3. when the placement is a reasonable accommodation when balanced with the needs of others with mental disabilities

While the Olmstead decision spoke to just one type of institution, the DOJ has interpreted its meaning to apply to all "state and Medicaid funded institutions, including nursing facilities." The DOJ has categorized its enforcement efforts by issue: 

• Nursing facilities
• Board & Care Facilities and Adult Care Facilities
• Mental Health Facilities
• Institutions for Individuals with Intellectual and Developmental Disabilities
• Children
• Sheltered Workshops/Segregated Day Services
• Medicaid EPDST Services
• Class Certification
• Persons at Risk of Institutionalization
• Education

From the DOJ's perspective, Olmstead v. L.C. upheld Title II of the ADA, specifically § 35.130 General prohibitions against discrimination (d), which states: 

"A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities."

The integration mandate

The ADA requires that the most integrated setting be "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." This means that persons with disabilities cannot be segregated on the basis of disability. 

Does the integration setting only apply to care facilities? 

No. While the Olmstead ruling was in regards to the treatment of persons with mental health conditions, the integration mandate itself is applicable in many situations. The integrated setting mandate requires that individuals with disabilities be provided equal participation in the "mainstream" of American society. 

The DOJ's Technical Guidance Manual (II-3.400) itself defines the core principles of mainstreaming as: 

1. Individuals with disabilities must be integrated to the maximum extent appropriate.
2. Separate programs are permitted where necessary to ensure equal opportunity. A separate program must be appropriate to the particular individual.
3. Individuals with disabilities cannot be excluded from the regular program, or required to accept special services or benefits.

For example, a public Parks department is permitted to create therapeutic and adaptive recreation programs, but persons with disabilities cannot be segregated into those programs on the basis of disability and must be provided access to all recreation programs. In other words, establishing an adaptive recreation program does not mean all persons with disabilities are required to participate in one program or another, the "mainstream" program must be made accessible as well. 

While it is still unclear what the DOJ is looking for in South Carolina, the announcement comes as a stark reminder for Title II entities' and their obligations to provide integrated settings for their programs and services. Title II covered entities should evaluate their programs and services and ensure activities are accessible to the maximum extent feasible to comply with the integration mandate.