Costs and the Right to Community-Based Treatment

Abstract

Much has been written about the right of people with mental disabilities to receive treatment in the community. Several scholars have worked to ground a right to community-based treatment in various state and federal statutes or constitutional provisions. Very little attention, however, has been paid to the way in which the costs of community-based treatment have entered into courts' opinions. Helen L. v. DiDario, a case celebrated by disabilities rights advocates for its expansive interpretation of the right to receive treatment in the most integrated setting, has raised puzzling and pressing questions about the role of costs in the right to community-based treatment under the Americans with Disabilities Act ("ADA"). In Helen L., the Third Circuit Court of Appeals ordered Pennsylvania's Department of Public Welfare to provide the plaintiff with nursing care in her own home instead of in the state's nursing home, but the court was extremely vague about the extent to which the fact that home-based care was less expensive influenced its reasoning. The Eleventh Circuit Court of Appeals's recent decision in L. C. v. Olmstead has planted the seeds of a circuit split on the issue of costs, which may lead the Supreme Court to grant certiorari in a future case concerning the costs of community-based treatment. These costs are thus likely to play an increasingly important role in judicial opinions deciding the right to be treated in the community and challenge advocates to articulate an approach to costs that will best promote the integration of people with disabilities.