While the Olmstead decision was based on Congress' desire to prevent unnecessary institutionalization of individuals with disabilities, litigants have argued that the decision establishes a right to remain in an institutional setting. Courts have uniformly rejected these arguments.

In Richard C. v. Houstoun family members and legal guardians of residents of a state intermediate care facility for persons with mental retardation attempted to intervene in a settled class action lawsuit that alleged violations of the Medicaid statute, Section 504 of the Rehabilitation Act, and the Fourteenth Amendment.¹ As part of the settlement, the state Department of Public Welfare was required to evaluate each resident to determine if community services were appropriate and to develop community placements for eligible class members. As a result, the number of residents diminished, and the governor closed the facility.

Plaintiff intervenors sought to stay further outplacement of class members into the community, as well as to reopen admissions to the facility and give all outplaced members the chance to return.² They interpreted the Supreme Court’s decision in Olmstead to preclude the placement of an institutionalized person with a disability in a community-based treatment program unless all three of the Olmstead criteria were met: (1) the state’s professionals determine that such placement is appropriate, (2) the affected persons do not oppose community placement, and (3) the placements can be reasonably accommodated.³ The court rejected this interpretation; it noted that Olmstead considered the circumstances under which the Americans with Disabilities Act required community placement of institutionalized persons with disabilities. The court said that “it does not logically follow that institutionalization is required if any one of the three Olmstead criteria is not met.”⁴

A California state court considered a similar argument in Black v. Department of Mental Health.⁵ There, the administrator of the estate of a decedent with mental illness claimed that the state violated the Americans with Disabilities Act’s integration mandate by inappropriately discharging him from a state hospital to a community facility. Plaintiff interpreted Olmstead to require that the community placement be consistent with the individual’s treatment needs.⁶ He claimed that the decedent was discharged not because discharge served the decedent’s medical needs but because the state hospital had closed and other placement alternatives were not available.

The court found that, while the state’s conduct might have been actionable under other theories, nothing in the Americans with Disabilities Act, its regulations, or the case law interpreting the integration mandate appeared to prohibit inappropriate discharges into the community.⁷ Interpreting Olmstead to mean that a mere failure to provide an appropriate treatment setting violated the integration mandate would effectively delete the phrase “most integrated setting” from the integration regulation and convert incorrect treatment decisions into discriminatory conduct.⁸ Further, the Supreme Court in Olmstead clarified that the integration mandate did not impose a standard of care requirement on the states.⁹

Like the court in Black, a California federal court in Richard S. v. Department of Developmental Services ruled that a premature discharge into the community, while perhaps a bad medical decision or poor policy, did not constitute disabilitybased discrimination pursuant to Olmstead.¹⁰

In Richard S. several residents of a state center for individuals with developmental disabilities and a physician practicing at the center sought to stop discharges from developmental centers; the discharges were occurring as a result of previous litigation. Plaintiffs argued that the discharges violated the integration mandate because the community placements were not equipped to handle the individuals being discharged.¹¹

In addition to plaintiffs’ claims that Olmstead creates the right to remain in an institution, defendants have raised a related argument: that an integration-mandate plaintiff must specifically plead no opposition to placement in the community. In Frederick L. v. Department of Public Welfare the court rejected this argument; it held that a plaintiff’s authorization of a lawsuit to enforce the right to services in a community setting meant that the plaintiff did not oppose community placement.¹²