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Olmstead’s Fundamental Alteration Defense – A Circuit Review

Christopher Sleeper

I. Introduction

In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court held that under Title II of

the Americans with Disabilities Act (“ADA”) unjustified segregation of individuals with

disabilities in institutions constitutes discrimination. The Court’s opinion reinvigorated the

deinstitutionalization movement, spurring litigation brought by the Department of Justice,

the institutionalized and their advocates, and those on the verge of institutionalization.

Many consider Olmsteadto be the Brown v. Board of Education for the disabled; however,

unlike Brown, the Supreme Court provided states with an excuse to not comply with the

integration mandate – the fundamental alteration defense. Further, the Supreme Court did

not define fundamental alteration, but only gave vague guidance. This omission has left the

lower courts to grapple with the complex issue of what constitutes a fundamental

alteration. This paper summarizes lower courts’ interpretations of the fundamental

alteration defense, particularly the three appellate courts that have ruled upon the issue –

the second, third and ninth circuits – and suggests that Olmstead is so internally flawed that

uniform application is nearly impossible.

II. Fundamental Alteration According to Olmstead

In 1990, Congress enacted the ADA“to provide a clear and comprehensive national

mandate for the elimination of discrimination against individuals with disabilities.”1

Congress recognized that “historically, society has tended to isolate and segregate

individuals with disabilities, and, despite some improvements, such forms of discrimination

1Olmstead v. L.C., 527 U.S. 581, 589 (1999).

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against individuals with disabilities continue to be a serious and pervasive social problem”

and that such discrimination against individuals with disabilities persists in such critical

areas as . . . institutionalization . . . ”2Olmstead addressed Title II, the public services portion

of the ADA, which states in relevant part:

“Subject to the provisions of this subchapter, no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.”3

Congress authorized the Attorney General to issue regulations to implement and

enforce the ADA. Specifically, in regard to Title II, the Attorney General issued the

“integration regulation” 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.”4The integration regulation defines “most integrated setting”

as “a setting that enables individuals with disabilities to interact with non-disabled persons

to the fullest extent possible.”5

Olmstead affirmed the Attorney General’s integration regulation that promotes

community placement whenever possible. Writing for the plurality, Justice Ginsburg stated

that unnecessary institutionalization reflects two impermissible judgments.6 First,

institutionalization “perpetuates unwarranted assumptions that persons so isolated are

2Id. at 588. 3Id. at 589-90, citing 42 U.S.C. § 12132. 428 CFR § 35.130(d) (1998). 528 CFR pt. 35, App. A, p. 450 (1998). 6Olmstead v. L.C., 527 U.S. 581, 600 (1999).

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incapable or unworthy of participating in community life.”7 Second, institutionalization

“severely diminishes the everyday life activities of individuals.”8 Therefore, once a State

undertakes the responsibility of providing a service, such as a community-based program,

it must implement it in a non-discriminatory manner by allowing all “qualified individuals”

to be served in the “most integrated setting appropriate.”9

Even so, the state’s obligation to provide community-based services is not

“boundless.”10 The integration regulation is tempered by the reasonable-modifications

regulation, which states: “A public entity shall make reasonable modifications in policies,

practices, or procedures when the modifications are necessary to avoid discrimination on

the basis of disability, unless the public entity can demonstrate that making the

modifications would fundamentally alter the nature of the service, program, or

activity.”11Justice Ginsburg gave scant guidance to lower courts on how to determine

whether a modification constitutes a fundamental alteration. She stated that a State might

maintain the defense by showing that given “the allocation of available resources,

immediate relief for the plaintiffs would be inequitable, given the responsibility the State

has undertaken for the care and treatment of a large and diverse population of persons

with mental disabilities.”12 She stressed that due deference should be given to the state’s

fiscal decisions on how to “maintain a range of facilities and to administer services with an

even hand.”13 One way a state may mount a successful fundamental alteration defense is

7Id. 8Id. at 601. 9Id. at 584. 10Id. 11Id. citing28 CFR § 35.130(b)(7) (1998). 12Id. 13Id. at 605.

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by providing a “comprehensive, effectively working plan for placing qualified persons with

mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable

pace not controlled by the State’s endeavors to keep its institutions fully populated.”14

As the following sections illustrate, the plurality opinion confused rather than aided

lower courts. On the one hand, the plurality held that unnecessary institutionalization is

discrimination. On the other, the plurality held that a state may continue to unnecessarily

institutionalize an individual if relief for the plaintiff would be “inequitable” in light of

state’s obligations for the care of others “with an even hand.” Essentially, the plurality left

the pace of deinstitutionalization, or in fact whether to deinstitutionalize, largely up to the

discretion of the state. Some lower courts latched onto the plurality’s “comprehensive,

effectively working plan” example as the exclusive means of raising a fundamental

alteration defense.

III. The Developing Contours of the Fundamental Alteration Defense

A. Leeway to Administer Services with an Even Hand – Ninth Circuit

The Ninth Circuit Court of Appeals is one of the three appellate circuit courts that

have interpreted the fundamental alteration defense. The Ninth Circuit approach may be

summarized as follows: the state does not need a comprehensive, effectively working plan,

and absent facial discrimination, the court should defer to the state’s distributive

determinations.15 Focusing on the language in Olmstead that States should be given

“leeway” to “maintain a range of facilities and to administer services with an even hand,”

the Ninth Circuit cautions that courts should be sympathetic to a state’s fundamental 14Id. at 605-06. 15Townsend v. Quasim, 328 F.3d 511 (C.A.9 (Wash.), 2003); Arc of Washington State Inc. v. Braddock, 427 F.3d 615 (C.A.9 (Wash.), 2005); Sanchez v. Johnson, 416 F.3d 1051 (C.A.9 (Cal.), 2005).

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alteration defense.16 So long the state is “genuinely and effectively in the process of

deinstitutionalizing disabled persons ‘with an even hand,’” the court will not tinker with

the state’s mental health-care scheme.17

In 2003, the Ninth Circuit struck down Washington’s fundamental alteration

defense but hinted at the government friendly approach it would soon adopt.18The State of

Washington allowed community-based waivers for disabled persons falling below a certain

income level (the “categorically needy”), while forcing disabled persons with a higher

income level (the “medically needy”) to remain institutionalized.19 The Court held this

waiver system constituted facial discrimination; however, the Court noted that requiring

the state to adopt a completely new program or to apply for additional Medicaid waivers in

order provide community-based services would constitute a fundamental alteration.20

Two years later, the Ninth Circuit adopted a highly deferential retrospective

approach in determining whether a modification would constitute a fundamental

alteration.21In State v. Sanchez, plaintiffs contested that the State of California violated

Olmstead by paying lower wages to employees of community-based service providers than

to employees of institutions, thus resulting in some developmentally disabled persons

remaining institutionalized.22 Plaintiffs demanded that California increase the size of its

HCBS waiver program and more aggressively pursue Medicaid reimbursement.23 While the

Court recognized that the requested relief would constitute a $1.4 billion, or forty percent, 16Braddock, 427 F.3d at 618. 17Sanchez, 416 F.3d at 1068. 18Townsend v. Quasim, 328 F.3d 511(C.A.9 (Wash.),2003). 19Id. at 514. 20Id. at 520. 21State v. Sanchez, 416 F.3d 1051 (C.A.9 (Cal.) 2005). 22Id. at 1055. 23Id. at 1062.

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increase in the California’s budget for developmentally disabled services,24 the Court

granted the State’s fundamental alteration on purely retrospective grounds. The Court

concluded that California’s commitment to deinstitutionalization was “genuine,

comprehensive and reasonable” and that its plan was “comprehensive, effective, and

moving at a reasonable pace” based upon retrospective evidence that California increased

its HCBS waiver slots from 45,000 in 2002 to 70,000 in 2005 and increased expenditures

for community services by 196% during the same period.25 Based on past evidence, the

Court concluded that California’s deinstitutionalization “plan” was “effectively working.”26

The Court inferred that California would continue its progress of deinstitutionalization.

Any alteration to this “effectively working” plan would disrupt the state’s “working plan”

and “restrict impermissibly that California is permitted in its operation.”27 The

retrospective approach in Sanchez gives the state an absolute fundamental alteration

defense if it already has an effective plan.

Similarly, the Ninth Circuit granted the State of Washington’s fundamental

alteration defense when developmentally disabled plaintiffs requested that Washington

expand its HCBS waiver program to allow every qualified individual to receive community-

based services.28In granting the State's fundamental alteration defense, the Court again

adopted a retrospective analysis. The Courtnoted that the State's institutional population

had declined by twenty percent from 1994 to 2001 and that its expenditures on community

24Id. at 1063. 25Id. at 1067. 26Id. at 1068. 27Id. 28Arc of Washington State v. Braddock, 427 F.3d 615 (C.A.9 (Wash.) 2005).

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services had doubled in the same period.29 In so holding, the Court bluntly stated, “[s]o

long as states are genuinely and effectively in the process of deinstitutionalizing disabled

persons ‘with an even hand,’ we will not interfere.”30 Again, the fundamental alteration

proved impenetrable. Once the State establishes an effectively working “plan” based upon

retrospective evidence, the Court does not seriously consider whether the plaintiff’s

particular relief would merely constitute a reasonable modification.

The Ninth Circuit is not the only court to transform the fundamental alteration

defense into a trump card by giving “leeway” to a state’s distributive decisions. Decisions

by District Courts of Maryland and New Hampshire are similar striking.31 In granting

Maryland’s fundamental alteration defense, the district court spent most of the opinion

lauding Maryland as the “acknowledged leader” in the field of development disabilities.32

Then the Court summarily held that plaintiff’s requested relief of accelerating the process

of finding and creating community placements for TBI/NRDD patients would be

“unmanageable expensive” and thus a fundamental alteration.33 The Maryland court did

not engage in any cost analysis but just focused on Maryland’s retrospective success in

deinstitutionalization. Likewise, the New Hampshire District Court granted the State’s

fundamental alteration defense because the Court should not “tinker” in an effectively

working plan.34 The Court emphasized that New Hampshire consistently expends all

allocated funds, has increased its budget for the acquired brain disorder (ABD) program

29Id. at 621. 30Id. at 620. 31Williams v. Wasserman, 164 F.Supp.2d 591 (D.Md., 2001); Bryson v. Stephen, 2006 WL 2805238 (D.N.H.,2006). 32Wasserman, 164 F.Supp.2d 635. 33Id. 34Bryson v. Stephen, 2006 WL 2805238 at *5.

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and has significantly increased available waivers from 15 in 1993 to 132 in 2006.35

Without weighing the plaintiff’s requested relief in particular, the Court stated, “Although

more can always be done, the reality is the states must make difficult decisions when

allocating necessarily limited resources.”36

In each of these cases that use the retrospective approach, the court did not truly

consider whether the pace of deinstitutionalization was reasonable given current demand

and other factors and whether the particular relief would be a fundamental alteration. The

Third Circuit Appellate approach does not fair much better; its interpretation of the

fundamental alteration defense makes a “comprehensive, effectively working plan” a “get

out of jail free card” for states not otherwise complying with the ADA’s integration

mandate.37

B. Comprehensive, Effectively Working Plan– Third Circuit

The Third Circuit Court of Appeals has erroneously seized upon the Olmstead

plurality’s “comprehensive, effectively working plan” example and turned it into the

exclusive means by which a state may succeed in its fundamental alteration defense. In

dicta, the Olmstead plurality stated, “If, for example, the State were to demonstrate that it

had a comprehensive, effectively working plan for placing qualified persons with mental

disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace

not controlled by the State's endeavors to keep its institutions fully populated, the

reasonable-modifications standard would be met.”38 The Third Circuit disregards two key

35Id. at *9. 36Id. at *5. 37 David Ferleger, The Constitutional Right to Community Services, 26 Ga. St. U. L. Rev. 763, 776 (2010). 38Olmstead, 527 U.S. at 605-06.

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words: “for example.” There is another problem, however, with this example. The plurality

invites a mere “plan” which itself would satisfy the integration mandate.39 The plurality

allows a “plan”, devoid of actual compliance, to satisfy a state’s obligation.40

The Third Circuit developed its interpretation throughout several Frederick L cases

and Pa. Prot. & Advocacy.41 In the Frederick L. cases, patients at Norristown State Hospital,

a state-run psychiatric hospital in Pennsylvania, sued the Department of Public Welfare of

Pennsylvania for inadequate opportunities to be placed in community-care settings.42 The

state responded that it had demonstrated a genuine commitment to deinstitutionalization

and was effectively complying with Olmstead. Pennsylvania pointed to its past progress

with deinstitutionalization, specifically that it had closed thirteen state-operated

psychiatric facilities between 1976 and 1998 and reduced the institutional population from

40,000 in 1950 to fewer than 3,000.43 In Frederick L. I, the Court held that, although past-

progress is relevant in evaluating a fundamental alteration defense, a comprehensive

working plan is a necessary component of a fundamental-alteration defense.44Accordingly,

the State must communicate a plan “in some manner” that allows the Court to hold the

State accountable for its commitment to deinstitutionalization and includes a wait list that

moves at a “reasonable pace.”45 The Court remanded the case and ordered Pennsylvania to

draft an Olmstead plan.

39 Ferleger, supra note 37, 775. 40Id. 41Frederick L. v. Dept. of Pub. Welfare of Pa., 364 F.3d 487 (C.A.3 (Pa.),2004); Frederick L. v. Dept. of Pub. Welfare of Pa., 422 F.3d 151 (C.A.3 (Pa.),2005); Pa. Prot. and Advocacy, Inc. v. Pennsylvania Dept. of Public Welfare,402 F.3d 374 (C.A.3 (Pa.), 2005). 42Frederick L I, 364 F.3d at 489. 43Id. at 490. 44Id. at 500-01. 45Id.

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The Court reviewed Pennsylvania’s plan in Frederick L. II and found it lacking.

Specifically, the Court criticized the plan’s goal of deinstitutionalizing “up to” 250 people

per year.46 In Frederick L. II, neither past progress or “general assurances and good-faith

intentions” was sufficient to raise a fundamental alteration defense.47 In order to give the

parties assistance, the Third Circuit Court of Appeals delineated more concrete guidelines:

“[W]e believe that a viable integration plan at a bare minimum should specify the time-

frame or target date for patient discharge, the approximate number of patients to be

discharged each time period, the eligibility for discharge, and a general description of the

collaboration required between the local authorities and the housing, transportation, care,

and education agencies to effectuate integration into the community.”48

In Pa. Prot. & Advocacy, the Court actually granted plaintiffs summary judgment on

the State’s fundamental alteration defense.49Pa. Prot. & Advocacy brought suit against the

Department of Welfare of Pennsylvania on behalf of residents of the South Mountain

Restoration Center, a state-run nursing-type facility.50 The staff at South Mountain

believed that 80% of its residents could live in a community setting.51 The District Court

had granted the State’s fundamental alteration defense on fiscal grounds.52 The Appellate

Court held that budgetary concerns were irrelevant until the State had demonstrated a

commitment to action.53 Pennsylvania’s plan showed that it had no intention of

deinstitutionalizing this particular facility. The Court demanded that the State make an 46Frederick L. II, 422 F.3d at 158. 47Id. 48Id. at 160. 49Pa. Prot. & Advocacy, 402 F.3d at 385. 50Id. at 377. 51Id. at 383. 52Id. at 380. 53Id. at 383.

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effort to bring South Mountain into compliance with Olmstead. While the Third Circuit has

not yet found a satisfactory Olmstead plan, it stated that “When an agency has implemented

a sufficient compliance plan . . ., we must be wary of judicial mandates that could thwart or

undermine the agency's authority to carry out that plan as it sees fit.”54

The Third Circuit’s fixation on “comprehensive, effectively working plan” is as

flawed as the Ninth Circuit’s retrospective approach. Once a state creates this magic plan,

the Court will not look at whether the state really is genuinely committed to

deinstitutionalization but defer to the state on how to carry out its plan as it sees fit. As a

result of the Third Circuit’s focus on a plan, 26 states, including Ohio, have developed

Olmstead plans and 18 states have developed alternative responses, which are basically

documents evidencing compliance.55 Ohio drafted its Olmstead plan in 2001 and updated it

in 2006.56 One gets the impression that States drafted these plans purely as a legal shield

rather than as a means of embracing Olmstead. The Second Circuit combined elements

fromthe Ninth Circuit’s retrospective approach and the Third Circuit’s prospective

approach and arrived at a more sensible method for examining the fundamental alteration

defense.

C. Specific, Fact-Based Inquiry - Second Circuit’s Synthesis

In 2009, the Second Circuit attempted to clear up the mess created by the Ninth and

Third Circuit’s interpretations of the fundamental alteration defense.57 Disability

54Id. at 381-82. 55 “Olmstead Case References and Notes”, Center for Personal Assistance Services, available at http://www.pascenter.org/olmstead/olmsteadcases.php (last accessed Apr. 20, 2013). 56See Ohio Access, http://www.ohioaccess.ohio.gov (last accessed Apr. 20, 2013). 57Disability Advocates, Inc. v. Paterson, 598 F.Supp.2d 289 (E.D.N.Y.,2009) remanded Disability Advocates, Inc. v. Paterson, 653 F.Supp.2d 184 (E.D.N.Y., 2009), judgment vacated

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Advocates represented 21 “private” adult homes in New York City.58 They challenged New

York’s reliance on private, but licensed, adult homes rather than more integrated

supported housing.59 New York asserted fundamental alteration as an affirmative defense

because the (1) the requested relief would increase the State’s costs; (2) earmarking funds

for the requested purpose would unfairly impact others with mentally illness; (3) the

remedy would “alter many of the State's programs, activities, and policies;” and (4) the

State has an Olmstead plan.60 The Second Circuit agreed with the Ninth Circuit that states

must be given leeway to administer with an even hand, but disagreed that the Court should

be so sympathetic to the government as to make the integration mandate meaningless.61

The Court summarized the Third Circuit approach that requires a “comprehensive,

effectively working plan” as simply standing for the proposition that a state must genuinely

seek to comply with the integration mandate before it can assert fundamental alteration as

a defense; however, an Olmstead plan is not a necessary prerequisite to a fundamental

alteration defense.62 In sum, both the Ninth and Third Circuit approaches are relevant in

determining whether the state has demonstrated a commitment to

deinstitutionalizationbut do not resolve whether a modification is a fundamental

alteration.

Under the Second Circuit approach, once the Court has determined that the state has

made a commitment to comply with Olmstead, it must undertake a complex, fact-specific

on standing by Disability Advocates, Inc. v. New York Coalition for Quality Assisted Living, Inc., 675 F.3d 149 (C.A.2 (N.Y.),2012). 58 598 F.Supp.2d at 292. 59Id. 60Id. at 333. 61Id. at 337. 62Id. at 339.

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inquiry regarding the requested relief.63 The inquiry should examine the aspects of the

Olmstead plan, if it exists, that relate to the particular plaintiffs, the fiscal impact of the

requested relief, potential impact on others with mental disabilities and other factors.64

Here, New York’s past progress (downsizing and closure of state-operated psychiatric

centers and reinvestment in community-based services) was relevant as evidence of

commitment to Olmstead.65 Likewise, the existence of an Olmstead plan was also relevant

as evidence of commitment.66 However, New York’s Olmstead plan was not particularized

to the plaintiffs, i.e. it did not plan for the integrating residents of adult homes into the most

integrated setting.67 Even though New York apparently did not demonstrate a commitment

to deinstitutionalizing adult homes and therefore could not assert a fundamental alteration

defense, the Second Circuit remanded the case for to develop a more fact extensive record,

particularly the fiscal impact and impact on others with mental disabilities.

The Court envisioned a lengthy, complex trial, perhaps months long, with detailed

fiscal analysis.68 The District Court issued a 129-page decision holding that expanding the

State’s community-based housing program to include adult home residents would not

constitute a fundamental alteration.69 The Court found that New York did not have a plan

to deinstitutionalize adult homes and that the number of adult home residents actually

given supported housing slots was negligible.70 Adult home residents were not a target

group for supported housing and other groups had a higher priority for community 63Id. at 334. 64Id. 65Id. at 340. 66Id. at 341. 67Id. at 345. 68Id. at 337. 69653 F.Supp.2d 184. 70Id. at 274.

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placement, resulting in de facto permanent institutionalization.71 The District Court

undertook a detailed fiscal analysis, weighing the expert testimony. The Court concluded

that the additional cost, when including Medicaid reimbursement, would constitute a

reasonable modification to the State’s program.72 Fatal to the State’s fundamental

alteration defense was its failure to do its own fiscal analysis instead merely stating that

costs would be substantially higher.73

On appeal, the judgment was vacated because Disability Advocates lacked standing.

The Second Circuit approach is the most accurate interpretation of fundamental alteration

defense. While flaws in the plurality’s reasoning in Olmstead produce uncertainty on how

far a state must go to integrate the disabled, the Ninth Circuit and Third Circuit clearly

erred in their interpretation. The Ninth Circuit unreasonably assumed that past progress

toward integration meant that the state had an “effectively working” system, and because it

was effectively working, the court must grant the state leeway to implement that system.

This assumption is not logical. The state might not be following the plan. The state might

not be implementing the plan in regard to certain groups of disabled. For budgetary

reasons, the waiting list for integrated placement might not be moving at a “reasonable

pace.” The Third Circuit erred by requiring a plan, assuming that if a state has a plan the

system must be “effectively working.” Reading the plurality’s example, the Third Circuit

focused on the word “plan” rather than on the words “effectively working.” The Second

Circuit, however, avoids the plurality’s troublesome “comprehensive, effectively working

plan” example, and focuses on the Olmstead plurality’s instructions to the District Court:

71Id. at 303. 72Id. at 305-08. 73Id. at 298.

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“In evaluating a State's fundamental-alteration defense, the District Court must

consider, in view of the resources available to the State, not only the cost of

providing community-based care to the litigants, but also the range of services the

State provides others with mental disabilities, and the State's obligation to mete out

those services equitably.”74

The Second Circuit correctly viewed the “comprehensive, effectively working plan”

as just an example and its existence as evidence of commitment to ending unjustifiable

segregation of the disabled. Rather than determine whether the system is “effectively

working”, the Second Circuit requires a complex, fact-specific inquiry looking at cost and

impact on others with disabilities. While this interpretation of the fundamental alteration

defense may not be perfectly in-line with Olmstead,it at least does not make an assumption

that gives the state an absolute fundamental alteration defense in all circumstances.

IV. Conclusion

Olmstead is not the Brown v. Board of Education of the ADA because it does not

unequivocally seek to end segregation of the mentally ill. On the one hand, Olmsteadheld

that unnecessary segregation of the disabled is wrong (perpetuates the view of disabled as

“incapable or unworthy”) and harmful (diminishes their quality of life) thus seemingly

suggesting that states must move toward gradual deinstitutionalization. On the other hand,

Olmsteadexplicitly states that its holding does not impose a “standard of care” or require

that states provide a certain level of benefits to individuals with disabilities.75 All Olmstead

requires is that the states administer the services they do provide with an even hand, i.e. in

a nondiscriminatory manner. Further, Olmstead suggests that ADA beneficiaries 74Olmstead, 527 U.S. 597. 75Id. at FN14.

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necessarily have to compete for limited state mental health resources.76 The Court does

not suggest that the state has an obligation to create a bigger pie of resources to achieve a

certain level of integration.77Olmsteaddoes not attempt to reconcile the conclusion that

unnecessary institutionalization is discrimination but 100% compliance with the

integration mandate would be too costly. The Court would not want to require a state to

devote fifty-percent of its budget to the mentally ill just to end institutionalization and

sacrifice other important interests. However, the Court does want to end

institutionalization motivated by discriminatory purpose, institutional entrenchment or

minor budgetary savings. Ideally, the Court would like the state to weigh evils, without

discriminatory bias, and administer its services with an even hand. The Court, however,

failed to encapsulate this concept in its reasoning or suggest a solution. Instead, the Court

required states to comply with the integration mandate subject to a reasonable

modification test and avoided the harsh reality that states cannot completely eliminate

unnecessary institutionalization. Because the Court did not set clear guidelines for how far

a state must go toward deinstutionalization, the Court caused chaos in lower courts’

interpretations of the fundamental alteration defense.

Some courts required states to request additional waivers and provide new

services,78 while others held that these modifications constituted fundamental alterations.

Some courts have found that cost alone is insufficient to mount a fundamental alteration

76 Fundamental alteration defense must take into consideration “allocation of available resources” and responsibility the state has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. Id. at 610; see also Shijie Feng, Madness and Mayhem: Reforming the Mental Health Care System in Arizona, 54 Ariz. L. Rev. 541, 555 (2012). 77Id. 78Grooms v. Maram, 563 F.Supp.2d 840, 858 (N.D.Ill.,2008).

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defense, regardless of the cost, while others hold that cost is a critical component. Some

courts have determined that any modification to a scheme is unreasonable if the state has

demonstrated a commitment to deinstitutionalization. Even the Second Circuit’s approach

could not determine at what point a modification becomes a fundamental alteration. Is it

$30, $3,000 or forty-percent of the budget? There is no way of knowing, especially with

Olmstead’s unclear guidance.

Given the Department of Justice’s stepped up enforcement of the integration

mandate with resolution through settlement, we are unlikely to get more clear guidance

anytime soon on what constitutes fundamental alteration. The Attorney General should

work with states to end unnecessary institutionalization. Absent facial discrimination, the

court is not in a position to determine to what extent a state must deinstitutionalize before

modifications become fundamental alterations. In reality, Olmstead has been given far

more weight than its worth. It has spurred a lot of litigation, but has not illuminated how

much resources society must contribute toward ending isolation of the mentally disabled.