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There's No Place Like Home: The Right to Live in the Community for People with Disabilities, Under International Law and the Domestic Laws of the United States and Israel

Published online by Cambridge University Press:  29 June 2012

Arlene S Kanter
Arlene S Kanter
Affiliation:
Professor of Law, Meredith Professor of Teaching Excellence, Syracuse University College of Law; Director, Disability Law and Policy Program; Co-Director, Syracuse University Center on Human Policy, Law, and Disability Studies; Fulbright Scholar and Visiting Professor, Tel Aviv University (2009–11); Visiting Professor, Hebrew University Faculty of Law (2010–11); Distinguished Switzer Fellow, National Institute of Disability Rehabilitation and Research, US Department of Education(2010–11). This article was written during a two-year research leave from Syracuse University College of Law, for which I am most grateful. Research for this article was completed with support from the Fulbright Program, the Switzer Fellowship, and a summer research grant from Syracuse University College of Law.
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Abstract

This article explores the developing ‘right to live in the community’ for people with disabilities under international law and the domestic laws of two countries: the United States and Israel. In 2006, the United Nations adopted the Convention on the Rights of People with Disabilities (CRPD). This Convention embraces a human rights approach to disability, based on the principles of equality, dignity, freedom and inclusion. Based on these principles, Article 19 of the CRPD includes a specific right of all people with disabilities ‘to live in the community, with choices equal to others’. The author argues that the mandate of community living in Article 19 supports an explicit legal right of all people with disabilities not only to live in the community, but to choose where to live and with whom, and with supports, as needed. This new international legal right to live in one's home in the community also advances the goals and principles of the domestic laws of the US and Israel.

In the US, the Americans with Disabilities Act (ADA) protects the right of people with disabilities to receive services in ‘the most integrated’ setting. Relying on this ‘integration mandate’, the US Supreme Court, in 1999, upheld a limited right of people with disabilities to live in the community in Olmstead v LC and EW. In Israel, the Parliament (Knesset) enacted a law similar to the ADA in 1998. This law, the Equal Rights of Persons with Disabilities Law (‘Equal Rights Law’) includes a general right of people with disabilities to equality and non-discrimination. Although the current version of the Equal Rights Law does not include a specific article on the right to live in the community, the basis for such a right may be found in other articles of the law as well as other Israeli laws. In addition, in the recent case of Lior Levy et al., the Israeli High Court of Justice was asked to consider the right to live in the community under Israeli law. While the Court in this case recognised a limited right to live in the community, it failed to invalidate as discriminatory the Israeli government's policy of placing people with disabilities in large institution-like hostels rather than in homes in the community. The author concludes the article with a discussion of the scope and meaning of community living and the extent to which institutions, as well as community housing that functions just like institutions, should be prohibited under the CRPD as well as under US and Israeli law.

Keywords

disabilityAmericans with Disabilities Act (ADA)Israeli Equal Rights of People with Disabilities Lawright to live in the communityOlmsteadConvention on the Rights of People with Disabilities (CRPD)international human rights law
Type
Articles
Information
Israel Law Review , Volume 45 , Issue 2 , July 2012 , pp. 181 - 233
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2012

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References

1 Based on HCJ/07 Lior Levy and Others v State of Israel and Others IsrSC 2008(3) 4561 (‘Lior Levy’).

2 Kanter, Arlene S, ‘The Globalization of Disability Rights Law’ (2003) 30 Syracuse Journal of International Law and Commerce 241, 243Google Scholar.

3 This article does not address such issues as affordable or accessible housing and the lack of it. See, for example, the BBC report on the question of whether people with low incomes have a right to stay in expensive neighbourhoods: Jon Kelly, ‘Do the Poor Have the Right to Live in Expensive Areas?’, 4 BBC News Magazine (2010), available at http://www.bbc.co.uk/news/magazine-11674864.

4 UNGA Res 61/106, Convention on the Rights of Persons with Disabilities, UN Doc A/61/106, Annex I, 13 December 2006 (entered into force 3 May 2008) (CRPD).

5 See Statement by Thomas Hammarberg, ‘Protecting and Promoting the Rights of People with Disabilities in Europe: Towards Full Participation, Inclusion and Empowerment’, Council of Europe, Commissioner for Human Rights, Strasbourg, 29 October 2008, available at https://wcd.coe.int/ViewDoc.jsp?id=1364885&Site=COE. See also Parker, Camilla, ‘Developing Mental Health Policy: A Human Rights Perspective’ in Knapp, Martin and others (eds), Mental Health Policy and Practice across Europe: The Future Direction of Mental Health Care (McGraw-Hill International 2007) 308–35Google Scholar; Jim Mansell and others, ‘Deinstitutionalisation and Community Living – Outcomes and Costs: Report of a European Study’, Vol 2: Main Report, Tizard Centre, University of Kent, 2007, 2, 25 (‘the Mansell report’), available at http://www.kent.ac.uk/tizard/research/research_projects/DECLOC_Volume_1_Exec_Summary.pdf. This report found that of 25 countries in Europe alone it is estimated that there are at least 1.2 million disabled people living in institutions; most of the residents have mental health problems or intellectual disabilities.

6 ibid; see also Mansell, ibid 1. The Mansell report is intended to bring together the available information on the number of disabled people living in residential institutions in 28 European countries, and to identify successful strategies for replacing institutions with community-based services, paying particular attention to economic issues in the transition. It is the most wide-ranging study of its kind ever undertaken.

7 Commission of the European Communities, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, ‘Equal Opportunities for People with Disabilities: A European Action Plan’ COM (2003) 650 final, 30 October 2003; Geert Freyhoff and others (eds), ‘Included in Society: Results and Recommendations of the European Research Initiative on Community-Based Residential Alternatives for Disabled People, The European Commission 2003, available at http://www.community-living.info/contentpics/226/Included_in_Society.pdf.

8 Committee on the Rights of Persons with Disabilities, Fifth session, 11–15 April 2011, Implementation of the Convention on the Rights of Persons with Disabilities: List of Issues to be Taken up in Connection with the Consideration of the Initial Report of Spain (CRPD/C/ESP/1), concerning arts 1 to 33 of the Convention on the Rights of Persons with Disabilities, UN Doc CRPD/C/ESP/Q/1, 20 June 2011; Committee on the Rights of Persons with Disabilities, Fourth session, 4–8 October 2010, Implementation of the Convention on the Rights of Persons with Disabilities: List of Issues to be Taken up in Connection with the Consideration of the Initial Report of Tunisia (CRPD/C/TUN/1), concerning arts 1 to 33 of the Convention on the Rights of Persons with Disabilities, UN Doc CRPD/C/TUN/Q/1, 10 November 2010.

9 Movement for Global Mental Health, ‘The Right to Live in the Community’, available at http://www.globalmentalhealth.org/articles.php?id=57.

10 MDAC, ‘Advocating the Right to Live in the Community in Hungary’, Budapest, 17 January 2011, available at http://www.mdac.info/content/advocating-right-live-community-hungary.

11 DRI, ‘The Worldwide Campaign to End the Institutionalization of Children’, available at http://www.disabilityrightsintl.org/learn-about-the-worldwide-campaign-to-end-the-institutionalization-of-children.

12 ibid.

13 Many countries have begun to address the issue of the right to community living and services (and against institutionalisation) through litigation in domestic and regional human right tribunals and other forms of advocacy. For example, MDAC filed two cases in the European Court of Human Rights (ECtHR) about the situation in Bulgaria, which were argued in November 2009: Mitev v Bulgaria App no 60922/00 (ECtHR, 7 January 2010) and Stanev v Bulgaria, App no 36760/06 (ECtHR, 9 February 2011). These cases were brought on behalf of Mr Mitev, who died in a social care institution. His case is being continued by his sister and Mr Stanev, who was the first person from a social care institution to bring a case before Europe's human rights court. Among other allegations, the plaintiffs allege that their confinement in the social care institution violates their rights under art 5 of the European Convention of Human Rights.

Similarly, DRI in Washington, DC recently filed a complaint with the UN regarding conditions in a private institution in Massachusetts that DRI documented in a report entitled ‘Torture not Treatment: Electric Shock and Long-Term Restraint in the United States on Children and Adults with Disabilities at the Judge Rotenberg Center’, available at http://www.disabilityrightsintl.org.

In Turkey, which has already ratified the CRPD, a NGO has developed a project on community living, which includes developing laws to promote community housing and services: Republic of Turkey Prime Ministry Administration for Disabled Persons, ‘The Project: Deinstitutionalisation and Community Living – Outcomes and Costs’, available at http://www.ozida.gov.tr/ENG/?menu=actual&sayfa=deinst_com; and a committee of psychiatrists: see Kanter, Arlene S, ‘The Right to Community Living Under International Law’ (Uluslararası Hukuk Uyarınca Toplum İçinde Yaşama Hakkı) in Dagidir, Fatma Zengin (ed), The Right to Live in the Community: Community Based Services for People with Mental Disabilities (Toplum Içınde Yaşama Hakkı: Zıhınsel ve Ruhsal Rahatsızlığı Olan Kısıler içın Toplum Temellı Hızmetler) (Karika 2010) (in Turkish)Google Scholar.

14 28 CFR § 35.130(d) (2006): ‘A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities’; see also Social Security Act, Title XIX, 42 USC § 1396–1396v (2008). This regulation implements Title II of the Americans with Disabilities Act, 42 USC § 12101 et seq (2006). See also Social Security Act, Title XIX, 42 USC § 1396–1396v (2008).

15 Olmstead v LC by Zimring 527 US 581 (1999) (‘Olmstead’).

16 Equal Rights of People with Disabilities Act, 1998 (Israel) (‘Equal Rights Law’), s 5.

17 This law was adopted by the Israeli Parliament in 1998, in part, as a result of efforts by a coalition of disability groups to respond to widespread discrimination against people with disabilities in Israel: see Rimmerman, Arie and Avrami, Shirley, ‘Israel‘s Equal Rights for Persons with Disabilities Law: Legal Base, Process and Impact’ (2009) International Journal of DisabilityGoogle Scholar, Community and Rehabilitation 8.

18 Lior Levy (n 1).

19 For a discussion of the meaning of home in various disciplines see, for example, Després, Carole, ‘The Meaning of Home: Literature Review and Directions for Future Research and Theoretical Development’ (1991) 8 Journal of Architecture and Planning ResearchGoogle Scholar 96. The legal conception of home, however, has received surprisingly little attention: Fox, Lorna, ‘The Meaning of Home: A Chimerical Concept or a Legal Challenge?’ (2002) 29 Journal of Law and Society 580CrossRefGoogle Scholar. See also Robinson, Carole A, Reid, R Colin and Cooke, Heather A, ‘A Home Away From Home: The Meaning of Home According to Families of Residents with Dementia’ (2010) 9 Dementia 490, 491CrossRefGoogle Scholar.

20 World Health Organization (WHO) and World Bank, ‘World Report on Disability’ (2011), 29, available at http://www.gpdd-online.org/media/news/world_report_disability_2011.doc. This estimate is higher than previous World Health Organization estimates, which date from the 1970s and suggested around 10%: World Health Organization, ‘Violence, Injuries and Disability: Biennial Report 2008–09’, Geneva, 2010, available at http://whqlibdoc.who.int/publications/2010/9789241599474_eng.pdf.

21 See Kanter, (n 2) 241Google Scholar, 253; Kanter, Arlene S, ‘The Law: What's Disability Studies Got to Do with it or Introducing Disability Legal Studies’ (2011) 43 Columbia Human Rights Law Review 403Google Scholar, 427–28, citing Barnes, Colin, ‘A Legacy of Oppression: A History of Disability in Western Culture’ in Barton, Len and Oliver, Mike (eds), Disability Studies: Past, Present and Future (The Disability Press 1997) 3–24Google Scholar (noting the systematic murder of disabled persons in Nazi death camps); Longmore, Paul K and Umansky, Lauri (eds), The New Disability History: America Perspective (New York University Press 2001)Google Scholar 1, 17 (noting the prevalence of abuse, discrimination and oppression of disabled persons throughout history); see also Switzer, Jacqueline Vaughn, Disabled Rights: American Disability Policy and the Fight for Equality (Georgetown University Press 2003) 30–44Google Scholar (highlighting the historic mistreatment of disabled persons, including movements toward forced sterilisation of disabled persons).

22 Convention on the Rights of the Child (entered into force 2 September 1990) 1577 UNTS 3, art 23; UNGA Res 2856(XXVI), Declaration on the Rights of Mentally Retarded Persons, UN Doc A/RES/2856(XXVI), 20 December 1971; Standard Rules on the Equalization of Opportunities for Persons with Disabilities, annexed to UNGA Res 48/96, UN Doc A/RES/48/96, 20 December 1993; and the Charter of Fundamental Rights of the European Union (2000) OJ C364/01 all urge that a right to community integration be enforced under international human rights standards. See Eric Rosenthal and Arlene Kanter, ‘The Right to Community Integration for People with Disabilities under United States and International Law’ in Breslin, Mary Lou and Yee, Silvia (eds), Disability Rights Law and Policy: International and National Perspectives (Transnational 2002)Google Scholar. Another more recent example of an international instrument recognising a right to community integration is the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities (entered into force 14 September 2001) AG/RES 1608 (XXIX-O/99).

23 Declaration on the Rights of Mentally Retarded Persons ibid, art 4.

24 The term ‘mentally retarded’ is no longer used in the US. In response to demands by the self-advocacy community as well as professionals, the American Association on Mental Retardation changed its name to the American Association on Intellectual and Developmental Disabilities. The New York State Office of Mental Retardation changed its name to the NYS Office of People with Developmental Disabilities. See Ferleger, David, ‘The Constitutional Right to Community Services’ (2011) 26 Georgia Law Review 763Google Scholar, 766 fn 15. ‘Developmental disabilities’ is a broader category than mental retardation and is statutorily (not clinically) defined. See Schalock, Robert L and others, Intellectual Disability: Definition, Classification, and Systems of Supports (11th edn, American Association on Intellectual and Developmental Disabilities 2010)Google Scholar. In Israel, the term ‘mental retardation’ is still commonly used.

25 Declaration on the Rights of Mentally Retarded Persons (n 22) art 4.

26 UNGA Res 3447(XXX), Declaration on the Rights of Disabled Persons, UN Doc A/10034 (1975), art 3.

27 ibid art 9.

28 ibid.

29 Leandro Despouy, Human Rights and Disabled Persons, UN Doc E/CN.4/Sub 2/1991/31 1 (UN Center for Human Rights 1993) (‘Despouy Report’); Erica-Irene A Daes, Principles, Guidelines and Guarantees for the Protection of Persons Detained on Grounds of Mental Ill Health or Suffering from Mental Disorder, UN Doc E/CN.4/Sub.2/1983/17/Rev.1 (United Nations Publications 1986) UN ESCOR, Sub-Commission on Prevention of Discrimination and Protection of Minorities (‘Daes Report’).

30 Daes Report (ibid) para 225.

31 Despouy Report (n 29) paras 195–99.

32 ibid.

33 Leslie Bennetts, ‘The Disabled Seek Public Awareness’, New York Times, 1 November 1981, 65. The year 1981 was the International Year of Disabled Persons, the primary purpose of which was to change public attitudes and create awareness.

34 UNGA Res 46/119, The Protection of Persons with Mental Illness and the Improvement of Mental Health Care, UN Doc A/RES/46/119, Annex, 17 December 1991 (‘MI Principles’).

35 Kanter (n 2) 261; Rosenthal, Eric and Rubenstein, Leonard S, ‘International Human Rights Advocacy under the “Principles for the Protection of Persons with Mental Illness”’ (1993) 16 International Journal of Law and Psychiatry 257CrossRefGoogle Scholar, describing the use of the MI Principles as a guide to the interpretation of related provisions of human rights conventions.

36 Henry Steel, Report of the Working Group on the Principles for the Protection of Persons with Mental Health Care, UN Doc E/CN. 4/1991/39 (Economic and Social Council, Commission on Human Rights, Human Rights and Scientific and Technological Developments, 1991), Annex II; Leandro Despouy, Special Rapporteur on Human Rights and Disability, reaffirmed this viewpoint in his report to the UN Human Rights Commission: Leandro Despouy, Human Rights and Disability, UN Doc E/CN.4/Sub.2/1991/31 (Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 1991); see also Eric Rosenthal and Clarence J Sundram, ‘The Role of International Human Rights in National Mental Health Legislation’, World Health Organization, Department of Mental Health and Substance Dependence, 2004, available at http://www.who.int/mental_health/policy/international_hr_in_national_mhlegislation.pdf.

37 MI Principles (n 34) 15–18.

38 See Victor Rosario Congo v Ecuador, Case 11.427, Report No 12/97, InterAmCHR, OEA/Ser.L/V/II.95, Doc 7 rev, 257 (1997); Report No 63/99, Inter Am CHR, OEA/Ser L/V/II 95 (1998) para 54. The Inter-American Commission went on to say that ‘[t]hese Principles serve as a guide to states in the design and or reform of mental health systems and are of utmost utility in evaluating the practice of existing systems’. See Mental Health Principle 23.

39 See MI Principles (n 34) 3 and 7 (emphasis added).

40 Vienna Declaration and Program of Action, UN Doc A/CONF/157/23, 14–16 June 1993.

41 ibid, para 63.

42 UNGA Res 48/96, Standard Rules on the Equalization of Opportunities for Persons with Disabilities, UN Doc A/RES/48/96, 4 March 1994.

43 ibid, Rule 9.

44 Kanter (n 2) 263–64.

45 UN Doc A/C.3/42/SR 16, 19 October 1987, para 7; UN Doc A/C.3/44/SR 16, 24 October 1989, para 8.

46 Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, UNGA Res 56/119b, UN Doc A/C.3/56/L67/Rev.1 (2001).

47 Kanter, Arlene S, ‘The Promise and Challenge of the Disability Convention’ (2007) 34 Syracuse Journal of International Law and Commerce 287Google Scholar, 288; National Council on Disability, ‘Understanding the Role of an International Convention on the Human Rights of People with Disabilities: An Analysis of the Legal, Social, and Practical Implications for Policy Makers and Disability and Human Rights Advocates in the United States’, 12 June 2002, 35–61 (available from the author).

48 ibid.

49 ibid 290.

50 Optional Protocol to the Convention on the Rights of Persons with Disabilities (entered into force 3 May 2008) UN Doc A/RES/61/106, Annex II. The Optional Protocol has been signed by 90 countries of which 63 have ratified it, ibid. ‘The 18-article Optional Protocol on Communications allows petitioning by individuals and groups to the Ad Hoc Committee, once all national recourse procedures had been exhausted’ in order to seek redress for violations of rights under the Convention directly with the international monitoring body, as well as to allow the monitoring body to undertake inquiries in relevant countries: Press Release, General Assembly, ‘General Assembly Adopts Groundbreaking Convention, Optional Protocol on Rights of Persons with Disabilities’, UN Doc GA/10554, 13 December 2006.

51 Kanter (n 47) 288–89.

52 CRPD (n 4) art 1.

53 See http://www.un.org/disabilities/countries.asp?navid=12&pid=166.

54 Kanter (n 2) 247.

55 ibid.

56 Kanter (n 2) 248.

57 Kanter (n 47) 290.

58 Kanter (n 2) 247; Kanter (n 47) 291.

59 The IDC consists of 35 international, regional and national organisations representing persons with disabilities from all regions of the world and from all groups of persons with disabilities: see http://www.disabilityworld.org/09-11_04/news/caucus.shtml.

60 Inclusion International represents over 115 member federations in 200 countries on the issue of the rights and inclusion of people with developmental disabilities. It is one of the largest of the international disability NGOs and is one of the five disability-related organisations officially recognised by the UN: see http://www.cacl.ca/about-us/international.

61 Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, UN Doc A/60/266, 17 August 2005.

62 Correspondence with Tirza Liebowitz, chief negotiator for Bizchut, 26 April 2010 (by email).

63 ibid.

64 Discussion at the Seventh Ad Hoc Session, pending issuing of new and last draft of the CRPD: ‘Daily Summary of Discussion at the Seventh Session: UN Convention on the Human Rights of People with Disabilities Ad Hoc Committee – Daily Summaries’, 20 January 2006, available at http://www.un.org/esa/socdev/enable/rights/ahc7sum20jan.htm.

65 For the complete summary of the discussion of the community living article that took place during the Seventh Ad Hoc Meeting on 19–20 January 2006: ‘UN Convention on the Rights of People with Disabilities Seventh Session on the Ad Hoc Committee’, 19–20 January 2006, available at http://www.un.org/esa/socdev/enable/rights/ahc7summary.htm.

66 ibid.

67 Kanter (n 2).

68 For example, Turkey has ratified the CRPD and the Optional Protocol and is working actively with non-governmental organisations and disabled peoples' organisations to implement the community living provision of the CRPD as well as other articles: Fatma Zengin Dagidir (n 13). Further, art 9 of Turkey's new Disability Law provides that ‘care services can be presented in home care or institution care models. First of all it is essential that the service is provided without separating the person from his/her social and physical environment’: Turkish Law on Disabled People and on Making Amendments in Some Laws and Decree Laws, Law No 5378. This law became effective on 7 July 2005, available at http://www.law.syr.edu/media/documents /2009/9/Turkish_Disability_Law.pdf.

69 See e.g., Purohit and Moore v The Gambia, Communication no 241/2001, Sixteenth Activity report 2002–03, Annex VII (African Commission on Human and Peoples' Rights (ACHPR)). Here, the ACHPR found conditions in a Gambian mental hospital so inhumane as to violate the residents' rights under the African Charter. Although the ACHPR did not recognise a right to live in the community per se, it did state that exposing the mental hospital residents to ‘personal suffering and indignity’ violates the right to human dignity. The ACHPR also observed that ‘mentally disabled persons would like to share the same hopes, dreams and goals and have the same rights to pursue those hopes, dreams and goals just like any other human beings. Like any other human being, mentally disabled persons or persons suffering from mental illnesses have a right to enjoy a decent life, as normal and full as possible, a right which lies at the heart of the right to human dignity. This right should be zealously guarded and forcefully protected by all states party to the African Charter in accordance with the well established principle that all human beings are born free and equal in dignity and rights’: ibid, para 61.

See also Malacu and Others v Romania App No 55093/09, filed with the ECtHR on 11 December 2009. This case involves an institution in which, from 2002–03, 155 patients died, 28 of such deaths occurring during the first five months of 2004. The applicants are four women and a man who suffered from various mental health problems and spent long periods, in some cases their whole lives, in social care institutions, being subjected to poor care, inadequate treatment, as well as extremely substandard living conditions, including insufficient food and heating. According to the lawyers who filed the case, ‘[t]he case raises issues of access to justice for people with disabilities as well as shedding light on the failure of authorities to prevent the numerous abuses perpetrated against people with disabilities inside social care institutions and psychiatric hospitals. The [attorneys] hope that a positive decision from the Court will strengthen further the case against long-stay residential institutions and in favour of community living for people with disabilities’.

See also Câmpeanu v Romania, App no 47848/08, filed with the ECtHR on 23 April 2009, available at http://www.interights.org/campeanu. This case alleges negligence by a system that moved a young man with HIV and intellectual disabilities to an institution where he died seven days later, and which highlights the difficulties associated with the transitioning process from a social care home for children to, ideally, life in the community, as well as the widespread stigma attached to positive HIV status. See also Varbanov v Bulgaria ECHR 2000-X; Aerts v Belgium ECHR 1998-V; Victor Rosario Congo v Ecuador Case 11 427, Report no 63/99 Inter Am CHR OEA/Ser L/V/II 95 (1998). Although these are examples of negligence, or even abuse in institutions, they reflect the dangers inherent in institutionalising populations who are admitted ostensibly for treatment rather than allowing them to receive treatment in the community.

70 See Kanter (n 2) 248–50.

71 For a comprehensive history of the treatment of people with mental disabilities in the US, see Justice Marshall's dissenting opinion in Cleburne v Cleburne Living Center, Inc 473 US 432 (1985) (‘Cleburne’). See also Kanter (n 2) 243; Rosenthal and Kanter (n 22); Kanter, Arlene S, ‘A Home of One‘s Own: The Fair Housing Amendments Act of 1988 and Housing Discrimination Against People with Mental Disabilities’ (1994) 43 American University Law Review 925Google Scholar; See also DiPolito, Samantha A, ‘Olmstead v LC – Deinstitutionalization and Community Integration: An Awakening of the Nations’ Conscience?' (2007) 58 Mercer Law Review 1381, 1382–88Google Scholar; Smith, Jefferson DE and Callandrillo, Steve P, ‘Forward to Fundamental Alteration: Addressing ADA Title II Integration Lawsuits after Olmstead v LC’ (2001) 24 Harvard Journal of Law & Public Policy 695, 703–05Google Scholar (the harms of institutionalisation and benefits of community services); Weber, Mark C, ‘Home and Community-Based Services, Olmstead, and Positive Rights: A Preliminary Discussion’ (2004) 39 Wake Forest Law Review 269, 273–77Google Scholar (the history and nature of institutionalisation); Ferleger (n 24) 766–67, citing tenBroek, Jacobus, ‘The Right to Live in the World: The Disabled in the Law of Torts’ (1966) 54 California Law Review 841CrossRefGoogle Scholar (perhaps the first article by a legal scholar to explore the question of living in the community for people with disabilities, but as a matter of tort law).

72 Cleburne ibid, Marshall J dissent, fn 9, citing Moore, Anne, The Feeble-Minded in New York: A Report Prepared for the Public Education Association of New York (United Charities Building 1911) 3Google Scholar. See also Tyor, Peter L and Bell, Leland, Caring for the Retarded in America: A History (Greenwood Press 1984) 71–104Google Scholar. The segregationist purpose of these laws was clear: see, for example, Act of 22 March 1915, Ch 90, 1915 Texas Gen Laws 143 (repealed 1955) (Act designed to relieve society of ‘the heavy economic and moral losses arising from the existence at large of these unfortunate persons’).

73 ibid.

74 Cleburne (n 71) Marshall J dissent.

75 ibid.

76 The current Vocational Rehabilitation Act is codified at 29 USC §§ 701–796 (2001). The history of the Vocational Rehabilitation Act is detailed in S Rep No 318, 93rd Cong, 1st sess, reprinted in 1973 USCCAN 2076.

77 29 USC § 794 (1976 edn).

78 On 30 October 2000, President Clinton signed into law the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (Public Law No 106-402), which reauthorises the law and created the Developmental Disabilities Councils (renamed the Councils on Developmental Disabilities), the Protection and Advocacy Systems, the University Affiliated Programs (renamed University Centers for Excellence in Developmental Disabilities Education, Research, and Service), and programmes of national significance. In addition, the legislation authorises separate grants for family support and a programme of direct support for workers who assist individuals with developmental disabilities: Bobby Silverstein, ‘Developmental Disabilities Assistance and Bill of Rights Act Amendments of 2000’, Maryland Developmental Disabilities Council, available at http://www.md-council.org/about/dd_act.html.

79 See the Fair Housing Amendments Act, 42 USC § 3601 et seq; See also Kanter (n 71) 925, 943.

80 42 USC § 675(5)(A) (2007) (‘Title Five’). The phrase the right to treatment ‘in the least restrictive setting’ originated from Dr Morton Birnbaum, who termed it a ‘necessary and overdue development of our present concept of due process of law’: Birnbaum, Morton, ‘The Right to Treatment’ (1960) 46 American Bar Association Journal 499, 503Google Scholar. For the development of this right, see Rouse v Cameron 373 F2d 451, 455 (DC Cir 1966); ‘Developments in the Law: Civil Commitment of the Mentally Ill’ (1974) 87 Harvard Law Review 1190Google Scholar; Drake, Jack, ‘Enforcing the Right to Treatment: Wyatt v Stickney’ (1972) 10 American Criminal Law Review 587Google Scholar; Herr, Stanley, ‘Civil Rights, Uncivil Asylums and the Retarded’ (1974) 43 University of Cincinnati Law Review 679Google Scholar, cited in Ferleger (n 24) 766.

81 Objective 6.7 in Healthy People 2010, Vol I, Ch 6, ‘Disability and Secondary Conditions’, Center for Disease Control and Prevention, available at http://healthypeople.gov/2020/default.aspx; discussed and cited in SA Larson and others, ‘Children and Youth with Intellectual or Developmental Disabilities Living in Congregate Care Settings (1977–2009): Healthy People 2010 Objective 6.7b Outcomes’ (2011) 49 Intellectual and Development Disabilities 209–13. Congregate care facilities are defined as settings in which four or more children or adults with disabilities live in order to receive needed support and services, regardless of whether they reside in the community, such as a school, group home, nursing facility or institution: ibid.

82 ibid, Objective 6.7b.

83 See Americans with Disabilities Act, 42 USC § 12132 (2006) and Americans with Disabilities Amendments Act of 2008, S3406, 110th Cong (2008) (as signed by the President on 25 September 2008).

84 42 USC § 12101(a)(5) and (1)(2).

85 42 USC § 12101(a)(2).

86 Statement accompanying his introduction of the ADA Bill in the Senate, 135 Cong Rec 8505, 8508 (1989).

87 135 Cong Rec 19801 (1989) (Comments by Senator Harkin, D-Iowa).

88 ADA: Hearing Before the Senate Committee on Labor and Human Resources and the Subcommittee on the Handicapped, 101st Cong, 1st Sess 215 (1989) (Comments by Senator Lowell Weiker, R-CT), as cited in Memorandum 01-05690 for Williams v Wasserman, 164 F Supp 2d 591 (2000), 11, available at http://www.justice.gov/crt/foia/readingroom/frequent_requests/ada_settlements/md/md3.txt; and ibid 12, citing also 135 Cong Record S4993 (daily edn 9 May 1989). Senator Kennedy also testified that the ADA ‘will roll back the unthinking and unacceptable practices by which disabled Americans today are segregated, excluded, and fenced off from fair participation in our society by mindless biased attitudes and senseless physical barriers’: 136 Cong Record H2447 (daily edn 17 May 1990) (Comments by Senator Kennedy, D-MA). Similarly, Republican George Miller stated, during a Congressional debate on the Bill, that American society made disabled people ‘invisible by shutting them away in segregated facilities’: ibid.

89 Title II of the ADA states that ‘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’: 42 USC § 12132 (2001).

90 Data on the number of people with disabilities in institutions varies between states and is difficult to ascertain on a nationwide basis. The most comprehensive research (on people with intellectual disabilities) is undertaken on an annual basis at the University of Minnesota's Research and Training Center: Charlie Lakin, Sheryl A Larson and Shannon Kim, ‘Behavioral Outcomes of Deinstitutionalization for People with Intellectual and/or Developmental Disabilities: Third Decennial Review of US Studies, 1977–2010’, April 2011, available at http://ici.umn.edu/products/prb/212/default.html.

In another study, carried out in 2002, the US Census found 69,136 nursing facilities and 28,448 mental retardation, mental health and substance abuse facilities in the US: ‘Nursing and Residential Care Facilities: 2002’, August 2004; available at http://www.census.gov/prod/ec02/ec0262i03.pdf. As of 30 June 2008, 42 states operated 2,614 residential settings housing people with intellectual or developmental disabilities and 1.8 million people live in nursing facilities: US Census Bureau, ‘Characteristics of the Group Quarters Population by Group Quarters Type’, Data Set: 2006–08 American Community Survey 3-Year Estimates Survey: American Community Survey, available at http://factfinder.census.gov/servlet/STTable?-geo_id=01000US&-qr_name=ACS_2008_3YR_G00_S2601B&-ds_name=ACS_2008_3YR_G00_. With respect to mental health facilities, there were 62,200 state and county mental hospital inpatient beds and 63,000 private inpatient beds reported in the 2010 US Census: ‘Mental Health Facilities – Summary by Type of Facility’, available at http://www.allcountries.org/uscensus/210_mental_health_facilities_summary_by_type.html. In addition, 35,741 people lived in large state intellectual or developmental disabilities institutions as of 2008: see K Charlie Lakin and others, ‘Residential Services for Persons with Developmental Disabilities: Status and Trends Through 2008’, Research and Training Center on Community Living, Institute on Community Integration, College of Education and Human Development, University of Minnesota, 2009, 3, 6, available at http://rtc.umn.edu/risp08. According to a comprehensive study by Charlie Lakin and others at the Research and Training Center on Community Living's Institute on Community Integration of the University of Minnesota, there were an estimated 4,132,878 people in the US with mental retardation or developmental disabilities in 1995: Sheryl Larson and others, ‘Prevalence of Mental Retardation and/or Developmental Disabilities: An Analysis of the 1994–95 NHIS-D’, Research and Training Center on Community Living, Institute on Community Integration, College of Education and Human Development, University of Minnesota, 2000, 1, 8, available at http://rtc.umn.edu/docs/dddb2-1.pdf. Of those, about 49,105 people were in public institutions in 1995: see K Charlie Lakin and others, ‘Marking the 10th Anniversary of Olmstead: Has it Made a Difference for People with Developmental Disabilities’ (2009) 47(5) Intellectual and Developmental Disabilities 403, 406. By 30 June 2008, the number had dropped to 35,741 people: Lakin and others, ibid. But overall there has been a decrease. From 30 June 1999 to 30 June 2008, public institution populations decreased by about 14,100 people, or 28.6%, and private institution populations decreased by about 10,400 people, or 30.5%: ibid. Further, from 1990 to 2008, the number of individuals in public mental retardation institutions fell by 66% from 84,239 to 35,051: ibid.

91 28 CFR § 35.130(d) (2001).

92 28 CFR § 35.130(b)(7) (2001).

93 Jackson v Indiana 406 US 715 (1972).

94 ibid 738.

95 O'Connor v Donaldson 422 US 563, 576 (1975).

96 Ferleger (n 24) 783.

97 446 F Supp 1295 (1977), 451 US 1 (1981) and 465 US 89 (1984).

98 After a 32-day trial, [the district court] issued an opinion, reported at 446 F Supp 1295 (1977) ibid, making findings of fact and conclusions of law with respect to the conditions at Pennhurst. Its findings of fact are undisputed: ‘Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the “habilitation” of the retarded. Indeed, the court found that the physical, intellectual, and emotional skills of some residents have deteriorated at Pennhurst’: Pennhurst, ibid 1308–10.

99 ibid 1308–10.

100 Ferleger (n 24) 765.

101 ibid. As Ferleger, one of the lawyers who brought Pennhurst, wrote recently: ‘Indeed, while the 1978 district court precipitated decision resulted in two Supreme Court decisions on other grounds, and a myriad of rulings on related issues, the constitutional holdings were not questioned on appeal or certiorari’: ibid 764–65; for example, Halderman v Pennhurst State School and Hospital 465 US 89 (1984); Pennhurst State School and Hospital v Halderman 451 US 1 (1981); 49 F 3d 939 (3rd Cir 1995); 901 F 2d 311 (3rd Cir 1990); 707 F2d 702 (3rd Cir 1983); 673 F 2d 645 (3rd Cir 1982) (on remand); 673 F 2d 628 (3rd Cir 1982); 673 F 2d 647 (3rd Cir 1982); 612 F 2d 84 (3rd Cir 1979); 612 F 2d 84 (3rd Cir 1979) (affirmed in part and reversed in part); 612 F 2d 131 (3rd Cir 1979); 446 F Supp 1295 (ED Pa 1977) (original trial court decision).

102 Prior to the Supreme Court's decision in Olmstead, the Third Circuit had decided the scope of the integration mandate under Title II in Helen L v DiDario 46 F 3d 325, 330–33 (3rd Cir) certiorari denied, 516 US 813 (1995). The Court in Helen L wrote that ‘the ADA and its attendant regulations clearly define unnecessary segregation as a form of illegal discrimination against the disabled’: ibid 333. The Court then reversed the district court and entered summary judgment in favour of the appellant. According to the Third Circuit, the Pennsylvania Department of Public Welfare violated the ADA by requiring the appellant to remain in the segregated setting of a nursing home instead of providing her with required home-based services. Relying on the ‘integration mandate’ of the Title II regulations, the unanimous three-judge Court of Appeals panel emphasised that ‘the ADA is intended to insure that qualified individuals receive services in a manner consistent with basic human dignity rather than a manner which shunts them aside, hides, and ignores them’.

103 Olmstead (n 15) 581.

104 ibid 581.

105 ibid 581.

106 ibid.

107 ibid.

108 ibid 594.

109 ibid.

110 ibid.

111 LC by Zimring v Olmstead 138 F 3d 893 (11th Cir 1998), affirmed in part, vacated in part, and remanded.

112 ibid.

113 Olmstead (n 15) 600.

114 ibid 601.

115 ibid 600–01 (citing Brief for the American Psychiatric Association and the National Alliance for the Mentally Ill as Amici Curiae Supporting Respondents).

116 ibid.

117 ibid.

118 ibid 604, fn 15.

119 ibid 603–04.

120 ibid 597.

121 ibid 605–06.

122 Sara Rosenbaum and Joel Teitelbaum, ‘Olmstead at Five: Assessing the Impact’, Kaiser Commission on Medicaid and the Uninsured, 2004, 1, 10, available at http://www.kff.org/medicaid/7105a.cfm.

123 ‘A Decade of Little Progress Implementing Olmstead: Evaluating Federal Agency Impact after 10 Years’, Disability Rights Network, 30 September 2009, 3, 4 and 22, available at http://www.napas.org/images/Documents/Issues/Community_integration/NDRN_Decade_of_Little_Progress_Implementing_Olmstead.pdf.

124 Disability Advocates, Inc v Paterson 653 F Supp 2d 184 (EDNY 2009) (Memorandum Order of Findings of Fact and Conclusions of Law); for media coverage of this case, see James Baron, ‘State Discriminated Against Mentally Ill, Judge Rules’, New York Times, 9 September 2009, A 24. Decided on appeal as Disability Advocates, Inc v New York Coalition for Quality Assisted Living, Inc and Cuomo, Docket Nos 10-235(L), 10-251(CON), 10-767(CON), 10-1190(CON) (2d Cir, 6 April 2012).

125 DAI v Paterson (ibid) 187.

126 ibid.

127 ibid 208.

128 ibid 219. See also the Court's Remedial Order and Judgment, 1 March 2010.

129 DAI v Paterson (n 124) 199.

130 ibid 199–202.

131 One of the experts, Ms Rosenberg, testified that by 2004 the linear continuum ‘was really being abandoned by both New York and most places’. According to Ms Rosenberg: ‘[t]he whole issue of a continuum is also an old idea. It used to be thought that people had to move from … large congregate settings to smaller congregate settings, to having a few roommates to eventually graduating to their own apartment. Nobody really thinks that much anymore. First of all, it would be like asking me to move every few months or every year or so just because I have to. So, it's quite disruptive, and also there is no evidence to show that people do better in the long run with you going through the continuum and, in fact, [people] could be placed directly in their own apartments with the right supports [and] can be quite successful’: ibid 252. Dr Duckworth testified that ‘the idea that people need to go through transitional housing, another move, another step, I think has been debunked pretty definitively in our field’. Ms Jones testified that the continuum approach is ‘outdated’, and the accepted approach in the states where she has worked is to provide individuals with permanent housing and add or subtract supports based on their specific needs. Mr Jones testified that the continuum model is ‘archaic’ and that New York's views on it have ‘changed pretty significantly’ in the last five to ten years: ibid 253 (citations to trial transcript omitted).

132 ibid 263 (quoting testimony of expert Ms Jones).

133 ibid 267–68. In fact, the district court noted that studies conducted by New York State itself revealed that ‘[p]eople who reported the most satisfaction with their housing choices also reported significantly higher overall quality of life’: ibid 263, quoting OMH, Progress Report on New York State's Public Mental Health System, January 2001, 20.

134 Disability Advocates, Inc v Paterson, Memorandum and Order, 03-CV-3209, 1 March 2010, 11. See also Disability Advocates, Inc v Paterson Remedial Order and Judgment. Accordingly the state must: (1) provide all qualified adult home residents the chance to move to supported housing within four years and ensure that appropriate services are in place that will support [residents'] success as tenants and their integration into the community; (2) create at least 1,500 supported housing units per year for three years, and create additional units as necessary after, to accommodate all current adult home residents and future individuals with mental illnesses being considered for adult home placement who would prefer to live in supported housing; (3) contract with supported housing providers to engage and educate adult home residents about their opportunities to live in their own housing with support services rather than in large, institutional adult homes. This education is necessary to overcome the fear and self-doubt that have been instilled in many residents during years of living in adult homes with no other options; (4) employ individuals in recovery from mental illnesses who are trained to assist others making the transition to assist current and future adult home residents wishing to move; and (5) undergo the oversight of a court monitor to ensure the obligations are met. See http://www.bazelon.org/News-Publications/Press-Releases/3-1-10DAI.aspx.

135 DAI v Paterson (n 124) 187.

136 Disability Advocates, Inc v New York Coalition for Quality Assisted Living, Inc (n 124). The US Ninth Circuit Court of Appeals decided a similar case and rejected the State of Washington's claim that the state's system of deciding who is eligible for community services was reasonable and concluded that ‘policy choices that isolate the disabled cannot be upheld solely because offering integrated services would change the segregated way in which existing services are provided’: Townsend v Quasim 328 F 3d 511, 519 (9th Cir 2003). See also Fisher v Oklahoma Health Care Authority 335 F 3d 1175 (10th Cir 2003); Ball v Rogers, No 00-67 2009 WL 13954235 (24 April 2009); Pennsylvania Protection and Advocacy, Inc v Pennsylvania Department of Public Welfare 402 F 3d 374 (3rd Cir 2005); and Crabtree v Goetz, No 08-0939, 2008 WL 5330506 25, 19 December 2008.

137 State of Connecticut Office of Protection and Advocacy for Persons with Disabilities v State of Connecticut 706 F Supp 2d 266 (2010). The DoJ filed an amicus curiae brief in support of the plaintiffs and opposing a pending motion to dismiss the lawsuit. The case challenges the state's lack of community placements for persons with disabilities who are housed in large, private nursing homes: available at http://www.justice.gov/opa/pr/2010/May/10-crt-612.html.

138 On 24 November 2009 the DoJ filed an amicus curiae brief in the federal district court in Richmond, Virginia, in ARC of Virginia v Timothy Kaine 2009 WL 4884533 (EDVa), 40 NDLR P 80. The brief opposes Virginia's motion to dismiss a case that challenges the state's decision to spend millions of dollars to construct a new, large, segregated facility for persons with intellectual disabilities who could be better served in the community in supported housing. On 24 November 2009, the Department also filed a brief in support of the plaintiff's proposed remedy in DAI v Paterson and Others, a case in which, as discussed above, the court had already ruled that placement of persons with mental disabilities in ‘large adult homes’ violates the Supreme Court decision in Olmstead: see http://www.justice.gov/opa/pr/2010/May/10-crt-612.html.

139 The US DoJ has filed supporting documents in several post-Olmstead cases. In Marlo M v Cansler, it filed an amicus curiae brief in support of the plaintiff's motion for a preliminary injunction in a case alleging that the State of North Carolina's cuts in state supplemental funding put her at risk of institutionalisation in violation of Olmstead: Marlo M v Cansler No 5:09-CV-535, 2010 WL 148849 (ED NC 17 January 2010). In Clinton L and Others v Cansler, the DoJ filed a statement of interest in a case alleging that the State of North Carolina's decision to reduce reimbursement rates to plaintiffs with disabilities who are now living in the community will have the effect of eliminating medically necessary services that support them in their homes in the community, thereby placing them at risk of institutionalisation in violation of Olmstead, available at http://www.ada.gov/briefs/interest_clinton_br.pdf.

140 The lawsuit in Illinois alleges that the State of Illinois relies on facilities instead of offering services in community-based settings, in violation of Olmstead: see http://www.justice.gov/opa/pr/2010/May/10-crt-612.html.

141 In Florida, the DoJ filed a statement of interest to support a plaintiff's lawsuit alleging that Florida failed to provide community-based services to a Medicaid-eligible individual with a spinal cord injury who is at risk of institutionalisation and who is required to relinquish her right to live in the community prior to receipt of needed services in a nursing home: see http://www.justice.gov/opa/pr/2010/May/10-crt-612.html. In June 2010, the district court in Jacksonville ruled that the State of Florida must provide the plaintiff with services that will allow her to remain in her home: see http://blogs.usdoj.gov/blog/archives/892. See also Long v Benson 2008 WL 4571903 (ND Fla) 14 October 2008.

142 In New Jersey, the US DoJ filed a brief as amicus curiae, to support a motion by New Jersey residents with disabilities for summary judgment alleging that the State of New Jersey fails to serve individuals with disabilities in the most integrated setting appropriate to their needs in violation of Olmstead: see http://www.justice.gov/opa/pr/2010/May/10-crt-612.html.

143 Other recent post-Olmstead cases in which the US DoJ has been involved in varying degrees include Townsend v Quasim (n 136); Fisher v Oklahoma Health Care Authority (n 136); Pennsylvania Protection and Advocacy, Inc v Pennsylvania Dept of Public Welfare, 402 F 3d 374 (3rd Cir 2005); and Crabtree v Goetz (n 136). See http://www.ada.gov/olmstead.

144 See http://www.justice.gov/opa/pr/2010/October/10-crt-1165.html.

145 The DoJ complaint applies to people who are in institutions, have been discharged from institutions or are at risk of institutionalisation. It alleges that ‘[t]he state has not given many residents, and/or their family/guardian, the opportunity to make an informed objection to receiving services in a setting less restrictive than the institution’. In terms of the state's failure to transition persons to the most integrated setting appropriate to meet their needs, the complaint alleges that ‘[m]ost residents do not proactively request a more integrated setting because the state does not properly educate residents on what community resources are available, or the possible benefits of community placements … The state does not adequately assess whether residents could be served in a more integrated setting appropriate to their needs … [and] the state does not properly educate staff at the institution on how to appropriately assess a resident for community placement … Institution staff typically tailor an assessment of a resident's appropriateness for community placement based upon their limited understanding of what community resources are available (or not available), rather than specifically what supports and services a resident needs in order to be adequately supported in the community’: US Department of Justice, Office of Public Affairs, Press Release, ‘Justice Department Obtains Comprehensive Agreement Regarding the State of Delaware's Mental Health System’, 6 July 2011, available at http://www.justice.gov/opa/pr/2011/July/11-crt-881.html.

146 US Department, Office of Public Affairs, Press Release, ibid.

147 Equal Rights Law (n 16).

148 After several years in a legislative committee, the proposed Equal Rights of Persons with Disabilities Law passed its first reading in the Knesset in March 1996. Following the first reading, the Minister of Justice and the Minister of Labor and Social Affairs appointed a Commission on Comprehensive Legislation Concerning the Rights of People with Disabilities. This Commission (known as the Katz Commission, for its chair, the former Minister of Labor and Social Affairs, Dr Israel Katz) called for the enactment of a comprehensive and detailed law to ‘narrow the existing gap between the reality of life for persons with disabilities and the principles of equality and human dignity, which are among the basic principles of Israeli society’: see ‘Report of the Public Commission on Comprehensive Legislation concerning the Rights of Persons with Disabilities’, 19 July 1997. This Report provided the support and context for the passage of the new Israeli Equal Rights Law. On 23 February 1998, five of the ten sections of the draft law passed their final readings and became what is now known as the Equal Rights for People with Disabilities Act of 1998. These sections include the Basic Principles, General Principles, Employment, Public Transportation, and the creation of the Commission for Equal Rights of Persons with Disabilities. After years of debate, an amendment to the law covering access to public buildings and services passed the Knesset in March 2005.

149 Equal Rights Law (n 16).

150 Explanatory Remarks to the Equal Rights for Persons with Disabilities Draft Bill (Israel).

151 Now, more than 15 years since the original Equal Rights Law was proposed, it has been only partially enacted. Further, not all of the regulations implementing the five sections of the law that have been enacted have been approved. For example, the regulations mandating accessibility of public transportation were signed in 2003 but the regulations on state participation in improving access in the workplace have yet to be signed. Indeed, only a portion of the regulations on accessibility and even fewer of the regulations on public services have been finalised in more than two years of work by a Knesset Committee: Interview with Commission staff Zvia Admon, and her email of 8 August 2010. Moreover, once the regulations are finalised, the law itself proscribes a long period of implementation. For public buildings and services the period is 12 years; or 11 years for health and emergency services. For private building, the implementation period is six years. However, private entities also have a defence of ‘undue burden’, which is not available to the public sector: Equal Rights Law (n 16).

152 Interview with Ahiya Kamara, Commissioner, Commission for Equal Rights of Persons with Disabilities, 22 July 2010, Jerusalem, Israel.

153 ibid.

154 Equal Rights Law (n 16).

155 ibid.

156 ibid.

157 ibid.

158 Rehabilitation of the Mentally Disabled in the Community Law, 2000 (Israel).

159 Aviram, Uri, ‘Promises and Pitfalls on the Road to Mental Health Reform in Israel’ (2010) 47 Israel Journal of Psychiatry and Related Sciences 171, 174Google ScholarPubMed.

160 ibid 175, citing Shershevsky, Yehiel, ‘Rehabilitation Package of Services for Mentally Disabled Persons in the Community’ in Aviram, Uri and Ginath, Yigal (eds) Mental Health Services in Israel: Trends and Issues (Cherikover 2006) 357–87 (in Hebrew)Google Scholar.

161 Aviram (n 159) 171.

162 ibid 174.

163 ibid 174–75.

164 The Ministry of Health estimates that, as of December 2007, approximately 7,284 people with mental illness lived in rehabilitation centres operated by the Ministry of Health: see ‘Mental Health in Israel, Statistical Report 2008’, Israel Ministry of Health, 2007, available at http://www.health.gov.il/download/forms/mentalReport2008.pdf. Between 120,000 and 160,000 adults in Israel are estimated to be consumers of mental health services: Naomi Struch and others, ‘People with Severe Mental Disorders in Israel: An Integrated View of the Service Systems’, Myers-JDC-Brookdale Institute, 2009, 1, 6, available at http://brookdale.jdc.org.il/?CategoryID=192&ArticleID=49; see also Aviram (n 159) 175, citing Shershevsky (n 160).

165 Mental Health Services, Ministry of Health, ‘Project for the Estimation of Rehabilitation of People with Disabilities in the Community’, internal document, 8 June 2007. There is no question that development of housing in the community for people with mental illness has exceeded similar efforts for other populations of people with disabilities, particularly people with cognitive disabilities: interview with Kamara (n 152).

166 Aviram (n 159) 171.

167 ibid 177; see also Goodwin, Simon, Comparative Mental Health Policy: From Institutional to Community Care (Sage Publications 1997)Google Scholar; Knapp, Martin and others, Mental Health Policy and Practice Across Europe (Open University Press 2007)Google Scholar; Whiteford, Harvey, Thompson, Ian and Casey, Dermot, ‘The Australian Mental Health System’ (2000) 23 International Journal Law and Psychiatry 403, 403–17CrossRefGoogle ScholarPubMed; D‘Avanzo, Barbara and others, ‘Discharges of Patients from Public Psychiatric Hospitals in Italy between 1994 and 2000’ (2003) 49 International Journal of Social Psychiatry 27Google ScholarPubMed; Barbui, Corrado and Tansella, Michele, ‘Thirtieth Birthday of the Italian Psychiatric Reform: Research for Identifying its Active Ingredients is Urgently Needed’ (2008) 62 Journal of Epidemiology and Community Health 1021CrossRefGoogle ScholarPubMed; Barbato, Angelo and others, ‘A Study of Long-Stay Patients Resettled in the Community after Closure of a Psychiatric Hospital in Italy’ (2004) 55 Psychiatry Services 67CrossRefGoogle ScholarPubMed.

168 Unless and until the state budget for institutions is reduced, the claim of lack of funds for community living options and other services in the community is likely to continue: see Aviram (n 159) 177. According to Dr Uri Aviram, at that time the government hospitals had been under-budgeted and needed additional funds in order to stabilise their budgets. However, ‘the timing of this increase’, Aviram writes, ‘makes one wonder whether this was not aimed, at least in part, at neutralizing the opposition of the strong lobby of the government psychiatric hospitals and of the Israel Medical Association to the planned reform’: ibid. See also Aviram, Uri, Guy, Dalia and Sykes, Israel, ‘Risk Avoidance and Missed Opportunities in Mental Health Reform: The Case of Israel’ (2007) 30 International Journal of Law and Psychiatry 163, 163–81CrossRefGoogle ScholarPubMed.

169 Care for People with Mental Retardation Act, 1969 (Israel), art 7(a)(b).

170 Amendment to the Care for People with Mental Retardation Act, 1969 (2000).

171 A 2008 study by the Ministry of Social Affairs reports, for example, that approximately 1,500 children and 5,000 adults with developmental/cognitive disabilities or autism, and an additional 1,000 people with physical, hearing or vision impairments now live in institutions in Israel: see State of Israel Ministry of Welfare and Social Services, ‘Report of the Commissioner on the Implementation of the Freedom of Information in the Ministry of Social Affairs and Social Services for 2008: Objectives, Operations, Budget and Structure’, July 2009, (in Hebrew) available with the author.

172 Amendment to the Planning and Construction Law, 1965 (Israel). The relevant article of this law was amended again in 2002.

173 Explanatory Remarks to the draft bill amending the Planning and Construction Law, 1994 (Israel).

174 Kanter, Arlene S, ‘Recent Zoning Cases Uphold the Establishment of Group Homes for the Mentally Disabled’ (1984) 18 Clearinghouse Review 515Google Scholar; Kanter (n 71) 925. For additional information about housing for people with disabilities in the community, see http://www.planningcommunications.com/gh/group_homes.htm. Here a representative sample of 50 studies on the impact of housing in the community for people with disabilities has been completed. These studies look at property values, neighbourhood turnover and neighbourhood safety. No matter which methodology has been used, every study has concluded that group homes not clustered on the same block have no effect on property values, even for the houses next door, nor on the marketability of nearby homes, neighbourhood safety, neighbourhood character, parking, traffic, public utilities or municipal services. See also Schwemm, Robert G, ‘Barriers to Accessible Housing: Enforcement Issues in “Design and Construction” Cases Under the Fair Housing Act’ (2006) 40 University of Richmond Law Review 753Google Scholar; Iglesias, Tim, ‘Managing Local Opposition to Affordable Housing: A New Approach to NIMBY’ (Fall 2002) 12 Journal of Affordable Housing 78Google Scholar; Allen, Michael, ‘Why Not in Our Backyard’ (2002) 45 Planning Commissioners Journal 1Google Scholar, available at http://bazelon.org/Where-We-Stand/Community-Integration/Housing/Housing-Resources.aspx#baz; Michael Allen, ‘Separate and Unequal: The Struggle of Tenants with Mental Illness to Maintain Housing’, National Clearinghouse for Legal Services, 1996, available at http://bazelon.org/Where-We-Stand/Community-Integration/Housing/Housing-Resources.aspx#baz; Lauber, Daniel, ‘A Real LULU: Zoning for Group Homes and Halfway Houses Under the Federal Fair Housing Amendments Act of 1988’ (1996) 29 The John Marshall Law Review 369Google Scholar.

175 In the US, the Federal Fair Housing Amendments Act (FHAA) prohibits discrimination in housing including the application of restrictive zoning laws to housing for people with disabilities: see 42 USC § 3602(h). Accordingly, zoning boards, municipalities and other governmental entities that act in violation of the FHAA have been held liable. See the comprehensive report on the FHAA prepared by the Disability Rights Network of Pennsylvania for the following cases: San Pedro Hotel Co, Inc v City of Los Angeles 159 F 3d 470, 475 (9th Cir 1998); Smith & Lee Associates, Inc v City of Taylor 13 F 3d 920, 924 (6th Cir 1993), appeal following remand 102 F 3d 781 (6th Cir 1996); Cohen v Township of Cheltenham 174 F Supp 2d 307, 320–21 (ED Pa 2001); US v City of Chicago Heights No 99 C 4461, 1999 WL 1068477 at *3 (ND Ill 19 Nov 1999); Remed Recovery Care Centers v Township of Worcester No 98-1799, 1998 WL 437272 at *6–*7 (ED Pa 30 July 1998); US v Borough of Audubon 797 F Supp 353, 357 (DNJ 1991), affirmed without opinion 968 F 2d 14 (3rd Cir 1992); Resident Advisory Board v Rizzo, 564 F 2d 126, 146 (3rd Cir 1977), certiorari denied 435 US 908 (1978); available at http://drnpa.org/File/publications/discriminatory-zoning-and-the-fair-housing-act.pdf. See also Cleburne (n 71): Supreme Court invalidates a zoning scheme requiring the operators of a group home for people with mental disabilities to obtain a special use permit for institutions for the ‘feeble-minded’. Although the Court rejected the home's residents’ claim that they are entitled to heightened judicial scrutiny under the Equal Protection Clause, the Court nonetheless upheld their right to live in the community using the rational basis test.

176 Courts in Israel have consistently upheld the right of a facility or home for people with disabilities to open, even when such places are more like institutions than homes: see s 63(a) of the Planning and Construction Law, 1965. See also Local Affairs Court (Karmiel), Case 104/02, State of Israel and the City of Karmiel v KSR Kidum, 25 April 2004; Magistrates Court (Haifa), Case 21735/00, Yehoshua Michaeli v KSR Kidum; Ministry of Welfare and Social Services in the Matter of Nave Adir Hostel, 11 November 2009; Magistrates Court (Jerusalem), Case 512/02, Peled and Others v ALUT (National Society for Autistic Children), 28 April 2003; Magistrates Court (Herzliya), Case 902/03, Tunir Meir v AKIM, 15 June 2005; District Court sitting as an Administrative Court (Tel-Aviv-Jaffa), Case 1073/07 17, Yehudit Katz v Bar-Dror Housing and the Planning and Building Committee – Central District, October 2007.

177 In Yehoshua Michaeli v KSR Kidum (ibid) the plaintiffs and the city of Karmiel objected to the opening of a hostel for 18 teenagers with different disabilities (including ADD, learning disabilities, Down's syndrome) in a residential neighbourhood. The neighbours claimed that the hostel violated art 63 of the Planning and Construction Law. The court found no evidence of falling property values or danger and found in favour of the hostel. In the second case, Peled and Others v ALUT (ibid), the neighbours of an existing home for 14 autistic children sought to have the home closed down on the grounds of nuisance (noise and dirt) and falling property values. The court ruled in favour of ALUT, finding no evidence of nuisance or an adverse effect on property values.

178 HCJ 7081/93 Shahar Botser and Others v Makabim Re‘ut Local Authority and Others [1996] IsrSC 50(1) 19 (in Hebrew).

179 ibid, para 2.

180 ibid, para 8.

181 Lior Levy (n 1).

182 ibid.

183 ibid.

184 ibid.

185 Ruth Sinai, ‘Disabled Petition for Right to Live Outside Institutions’, Ha'aretz, 19 April 2007.

186 The author provided an expert affidavit in this case, when it was filed in 2007, on the area of international and US law on community living.

187 Lior Levy (n 1).

188 ibid.

189 ibid.

190 ibid 4562. By way of contrast, for example, the Ninth Circuit Court of Appeals in the US, in Townsend v Quasim (n 136), rejected the State of Washington's claim that its system of deciding who is eligible for community services was reasonable. Criticising the state, the court concluded that ‘policy choices that isolate the disabled cannot be upheld solely because offering integrated services would change the segregated way in which existing services are provided’.

191 For example, the petition stated that Michael, one of the named petitioners, does not require constant medical treatment despite his severe disabilities. As his sister stated, ‘he has never required urgent treatment and when he is sick the family takes him to the doctor at the health maintenance organisation’: Sinai (n 185).

192 28 CFR § 35.130(d), cited in both Olmstead and DAI v Paterson. The court in DAI v Paterson went even further to state that ‘[t]he question is not whether the people with disabilities have any opportunities for contact with non-disabled persons. That ignores the “most integrated setting” and the “fullest extent possible” language of the regulations’: DAI v Paterson (n 124), 190–93, 223.

193 DAI v Paterson, ibid 223.

194 Lior Levy (n 1) 4563.

195 HCJ 2815/11 Bizchut and Others v Ministry of Health and Ministry of Welfare and Social Services (‘Illanit’) (judgment given 21 June 2011).

196 See, for example, Institute on Communication and Inclusion at Syracuse University, available at http://soe.syr.edu/centers_institutes/institute_communication_inclusion/default.aspx; and for information about research on communication by people who, in the past, were considered unable to communicate, see http://soe.syr.edu/centers_institutes/institute_communication_inclusion/About_the_ICI/Research.aspx.

197 See, for example, Wolf-Branigin, Michael, ‘Self-Organization in Housing Choices of Persons with Disabilities’ (2006) 13 (4)Journal of Human Behavior in the Social Environment 25CrossRefGoogle Scholar, available at http://u2.gmu.edu:8080/dspace/bitstream/1920/3442/1/Self-Organization_in_Housing_Choices_of_Persons_with_Disabilities.pdf; Thomas Nerney, Richard F Crowley and Bruce Kappel, ‘An Affirmation of Community; A Revolution of Vision and Goals: Creating a Community to Support All People Including Those with Disabilities’, University of New Hampshire Institute on Disability, 1995, available at http://www.centerforselfdetermination.com/docs/sd/communityPrint1.pdf; Eustis, Nancy N, ‘Consumer-Directed Long-Term Care Services: Evolving Perspectives and Alliances’ (2000) 24 Generations 10, 38Google Scholar; Pennell, RL, ‘Self Determination and Self Advocacy: Shifting the Power’ (2001) Journal of Disability Policy Studies 15CrossRefGoogle Scholar.

198 Some may regard this statement as controversial. The fact remains that absent a showing that a person with a disability is unable to express his or her preferences regarding the type of housing he or she prefers, the legal presumption should remain that the person has a right to choose where to live and with whom. Of course, professionals as well as family members may help individuals to make such decisions. But absent a showing of impossibility, as a legal matter, such decisions are the person's alone.

199 Interview with Director of Beit Noam, Yitzhak Bar Haim, 2 May 2010, Alin Beit Noam, Kiryat Ono, Israel.

200 SPNI, Opposition to Developmental Proposal No. V2/130/1-4 (Beit Noam), filed 25 September 2009.

201 Interview with Esther Sivan, Director of Bizchut, 7 May 2010, Jerusalem, Israel.

202 Interview with Karine Elharrar, Director of Bar Ilan Disability Clinic, 3 August 2010, Jerusalem, Israel.

203 Dalya Mandler and Denise Naon, ‘The Quality of Life of Severely Physically and Mentally Disabled People in Community-Based Residences’, JDC Brookdale Institute, 2001.

204 In the US, a recent report on board and care homes for people with psychiatric disabilities found that even small board and care homes operate much like institutions, with residents being required to line up for medicine or to receive their disability check, enjoying little privacy, and little choice with respect to room-mates, meals or activities: ‘Transforming Housing for People with Psychiatric Disability Report’, US Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Mental Health Services, 2004, 2, available at http://www.acbhcs.org/housing/doc/SAMHSA_group%20homes.pdf.

205 Statement of expert, Elizabeth Jones, quoted in DAI v Patterson, 8 September 2009 (transcript of testimony of Elizabeth Jones) 21. For a comprehensive discussion of why some community housing is essentially an institution, see the court's decision in DAI v Patterson, No 03-CV-3209, 20–49 (NGG) (EDNY 8 September 2009).

206 Institutions include state-operated institutions for people over 16 with developmental disabilities, state-operated psychiatric hospitals, privately operated residential facilities for persons over 16 with intellectual or development disabilities (I/DD), and nursing facilities for persons with ‘disabilities’ (meaning I/DD, mental illness and physical disabilities): David Braddock, ‘State of the States’, 2010 (preliminary data, on file with author).

207 See Commission for Equal Rights of People with Disabilities, Annual Report 2009. The percentage of people with disabilities in Israel is at least as large as that of the US. As of 2003, approximately 400,000 or 10% of Israeli adults have one or more disabilities: Florian, Victor and Nira Dangoor, , ‘Selected Issues in Israel's System of Rehabilitation’ (1999) 19 Society and Welfare 193 (in Hebrew)Google Scholar. A more recent survey reveals that 1.5 million or 24% of people in Israel consider themselves as having a disability that ranges from limiting their abilities to no limitation on their daily living skills: interview with Denise Naon, Director of Disability Research, 20 July 2011 at Brookdale Institute, Jerusalem Israel. With respect to children and young persons, 177,000 or 7.7% of all children in Israel have a disability such as deafness, paralysis, ‘retardation’, learning disabilities and severe behavioural problems, cancer or other chronic diseases that require medical or para-medical care on a regular basis. Of these, there are some 93,000 (4% of all children) whose main disability is a learning or behavioural and some 72,000 (about 40%) suffer from more than one disability, such as physical disability and mental retardation, or sensory and learning disability. Of the 177,000 children with a disability, some 18,000 (about 10%) received the Disabled Child Benefit from the National Insurance Institute in 2003. In towns classified as having a very low socio-economic profile, the proportion of children with disabilities is particularly large, at 11% as opposed to 7.7% of the total population of children in Israel: Denise Naon and others, ‘Children with Special Needs – Stage I and Stage II: An Assessment of Needs and Coverage by Services’, Research Report RR-355-00, JDC Brookdale Institute, 2000, (in Hebrew). The proportion of children with disabilities is higher in Arab towns (8.3%) than it is in Jewish towns (7.6%). It may be assumed that the actual gap is greater owing to the absence of an appropriate system for identification and diagnosis of children with learning disabilities in the Arab sector: ibid. The Ministry of Health's most recent estimates, as of December 2007, report that approximately 7,284 people with mental illness live in rehabilitation centres operated by their Ministry. However, the 2008 Israeli Report to the UN Committee on the International Convention on Civil and Political Rights states that approximately 3,000 people with mental illness live in mental hospitals, an additional 3,000 people in hostels, and an additional 4,000 people in their own apartments. A total of between 120,000 and 160,000 adults in Israel are estimated to be consumers of mental health services: see Struch and others (n 164) 228.

208 In a recent report to the UN General Assembly, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, highlighted concerns about people with disabilities in institutions when he commented that disabled people are ‘often segregated from society in institutions’ and ‘deprived of their liberty for long periods of time including what may amount to a lifelong experience, either against their will or without their free and informed consent. Inside these institutions persons with disabilities are frequently subjected to unspeakable indignities, neglect, severe forms of restraint and seclusion, as well as physical, mental and sexual violence’: Statement by Manfred Nowak – Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, UNGA 63rd sess, Item 67(a), 28 October 2008.

209 See, for example, Ted Houghton, ‘The New York/New York Agreement Cost Study: The Impact of Supportive Housing on Services for Homeless Mentally Ill Individuals’, Corporation for Supportive Housing, 2001, 6–7, available at http://www.csh.org/index.cfm/?fuseaction=Page.viewPage&pageID=3251.

210 Mandler and Naon (n 203) 59: the monthly costs of institutions were found to range from 7,976 NIS to 11,534 NIS per month as opposed to hostels (7,927 NIS per month) and apartments (ranging from 9,140 NIS to 12,283 NIS per month.

211 Interview with Denise Naon (n 207).

212 See, for example, Houghton (n 209) 6–7.

213 See Mental Disability Rights International, ‘Torture Not Treatment: Electric Shock and Long-Term Restraint in the United States on Children and Adults with Disabilities at the Judge Rotenberg Center’, Child Rights International Network, 20 April 2010, available at http://www.crin.org/resources/infodetail.asp?id=22455. This report is the basis for a complaint filed by Disability Rights International, in Washington, DC with the Inter-American Commission on Human Rights regarding conditions in a private institution in Massachusetts.

214 For example, in Oregon, nursing homes cost $5,900 per month while community-based services cost only $1,200 on average. Nonetheless, in some places, home-care workers are being cut over the more expensive nursing home programmes because the state receives federal reimbursement for nursing home care but not for home-care services: see John Leland, ‘Cuts in Home Care Put Elderly and Disabled at Risk’, New York Times, 20 July 2010, available at http://www.nytimes.com/2010/07/21/us/21aging.html?_r=1&th=&emc=th&pagewanted=all.

215 Email from Dr Steve Taylor, Syracuse University, 28 August 2010 (on file with the author).

216 I use the term ‘parentalistic’ as a gender-neutral term since such views are espoused by men and women alike.

217 As early as 1966, Jacobus tenBroek observed that one's physical limitations have less to do with where one lives and how one lives than do the attitudes of the public about people with disabilities, generally. As he wrote in his seminal article, Jacobus tenBroek (n 71) 841–42: ‘The actual physical limitations resulting from the disability more often than not play little role in determining whether the physically disabled are allowed to move about and be in public places. Rather, that judgment for the most part results from a variety of considerations related to public attitudes, attitudes which not infrequently are quite erroneous and misconceived. These include public imaginings about what the inherent physical limitations must be; public solicitude about the safety to be achieved by keeping the disabled out of harm's way; public feelings of protective care and custodial security; public doubts about why the disabled should want to be abroad anyway; and public aversion to the sight of them and the conspicuous reminder of their plight’: ibid 842.

218 The 12 states are as follows (the date given indicates the year in which the last institution closed): District of Columbia (1991), New Hampshire (1991), Vermont (1993), Rhode Island (1994), Alaska (1997), New Mexico (1997), West Virginia (1998), Hawaii (1999), Maine (1999), Minnesota (2000), Indiana (2007) and Oregon (2009). Thirty-eight states, including the District of Columbia, also have closed at least one institution: ‘Status of Institutional Closure Efforts in 2005’, Policy Research Brief, Research and Training Center on Community Living, Institute on Community Integration, College of Education and Human Development, University of Minnesota, vol 16, No 1, 2005.

219 Correspondence from Steve Gold, ‘Comparing Olmstead Implementation Among Disabilities’, Information Bulletin No 322 (9/2010), 8 September 2010 (on file with the author).

220 See, for example, Young, Mary Ellen and others, ‘Prevalence of Abuse of Women with Physical Disabilities’ (1997) 78 Archives of Physical Medicine and Rehabilitation S34, S35CrossRefGoogle ScholarPubMed; Schaller, James and Frieberg, Jennifer Lagergren, ‘Issues of Abuse for Women with Disabilities and Implications for Rehabilitation Counseling’ (1998) 29 Journal of Applied Rehabilitation Counseling 9Google Scholar. See also US International Council on Disabilities, ‘Abuse of Human Rights of People in Social Care Institutions: Access to Justice for People with Disabilities’, 11 December 2009, available at http://www.usicd.org/index.cfm/news_abuse-of-human-rights-of-people-with-disabilities-in-social-care-institutions-access-to-justice-for-people-with-disabilities.

221 See, for example, Gloag, Daphne, ‘Severe Disability: 2 – Residential Care and Living in the Community’ (1985) 290 British Medical Journal 368CrossRefGoogle ScholarPubMed.

222 See, for example, Eisenstadt, Shmuel Noah, The Transformation of Israeli Society: An Essay in Interpretation (Westview Press 1985) Pt 2Google Scholar; Smooha, Sammy, Israel: Pluralism and Conflict (University of California Press 1978)Google Scholar. For a discussion of the kibbutz movement, see Krausz, Ernest (ed), The Sociology of the Kibbutz (Transaction 1983)Google Scholar; Bettelheim, Bruno, Children of the Dream: Communal Child-Rearing and American Education (Simon and Schuster 1997)Google Scholar.

223 Documents of the City of Boston for the Year 1894, Vol 6 (Rockwell & Churchill, City Printers 1895) 3632–33, quoted in David Ferleger, ‘Disability Rights: A Vision of the Future’, Jacobus tenBroek Disability Law Symposium: Equality, Difference, and the Right to Live in the World Conference, Baltimore, MD, 15–16 April 2010, 3, available at http://bbi.syr.edu/projects/tenBroek/documents/ferleger_TenBroek_speech.pdf.

224 See, for example, Robison, Julie and others, ‘Community-Based Versus Institutional Supportive Housing: Perceived Quality of Care, Quality of Life, Emotional Well-Being, and Social Interaction’ (2011) 30 Journal of Applied Gerontology 275CrossRefGoogle Scholar, online version available at http://jag.sagepub.com/content/30/3/275; Dalia Mandler and Denise Naon, ‘Integrating People with Disabilities into the Community: Learning from Success’, JDC, Brookdale Institute of Gerontology and Human Development, Jerusalem, 2002 (on file with the author) (a study of 15 people with disabilities who live independently in the community, and their life stories were examined with regard to occupation, housing, family, social life and education); Susan L Parish and others, ‘Family Support for Families of Persons with Developmental Disabilities in the US: Status and Trends’, Policy Research Brief, The College of Education and Human Development, June 2001, 12, cited in Chris Plauche Johnson, Theodore A Kastner and the Committee/Section on Children with Disabilities, ‘Helping Families Raise Children with Special Health Care Needs at Home’ (2005) 115 Pediatrics 507, 509.

225 See Social Services Law, 1958 (Israel). This assistance comes from two sources, the Ministry of Social Affairs and the National Insurance Institute, according to Israel's Social Services Law. Funds provided to individuals and families of people with disabilities may cover personal aids, therapy services, respite services as well as funding for home modifications to make a home or an apartment accessible. However, if a person is considered to be ‘too disabled’ for in-home services, then an out-of-home placement will be provided in lieu of services to help keep the person at home.

226 According to Braddock (n 206), 12 states have closed all of their institutions (see n. 218) and 38 states have closed at least one institution: ‘Status of Institutional Closure Efforts in 2005’ (n 218). Research also indicates that between 1996 and 2000, all states except Missouri and North Dakota reduced their public institutional populations: Braddock, David (ed), Disability at the Dawn of the 21st Century and the State of the States (American Association on Mental Retardation 2002)Google Scholar. However, there is wide variation between states with regard to trends in de-institutionalisation. The states with the greatest percentage reduction (40–86%) in public institution populations between 1996 and 2000 were Kansas, Maine, Minnesota, New York, Oregon and Tennessee: ibid. During the same time period, 15 other states reduced their institutional populations by less than 15%. These states are Arkansas, Delaware, Florida, Illinois, Iowa, Kentucky, Mississippi, Missouri, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Texas and Washington: ibid. See also Robert W Prouty, Gary Smith and K Charlie Lakin (eds), ‘Residential Services for Persons with Developmental Disabilities: Status and Trends Through 2004’, Research and Training Center on Community Living, Institute on Community Integration, College of Education and Human Development, University of Minnesota, July 2005, available at http://rtc.umn.edu/publications/index.asp#risp. In contrast, 13 states have not closed any public institutions; these states are Arkansas, Delaware, Idaho, Iowa, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, Utah, Virginia, Wisconsin (although Wisconsin is now very close to doing so) and Wyoming: Braddock, ibid. The states which continue to support an ‘extensive network of public institutions’ are Arkansas, Louisiana, Mississippi, North Carolina and Virginia: ibid.

227 DAI v Paterson (n 124) 283–98.

228 ibid 306. The judge stated that supported housing was less expensive than adult homes: ‘The annual cost to the state of serving an adult home resident in supported housing is on average $146 cheaper than the cost of serving that resident in an adult home.’ In addition, the judge noted that the total cost for a mentally ill person in supported housing was $40,253 a year, compared with $47,946 for a resident in an adult home. A chart in the decision showed that the Medicaid cost for an adult home resident was nearly double the cost for someone in supported housing: ibid.