On 2006-01-04 12:30:00, katfish wrote:
"I haven't read through this entire article, but I wonder if this applies 1. to youth (not mentally ill) 2. to insitutionalization in 'therapeutic' boarding schools--- as pointed out, that doesn't even begin to cover non-mentally ill youth who are emotionally disturbed...
The Supreme Court held, in Olmstead v. L.C., that under the ADA, it
is discrimination for a state needlessly to institutionalize an individual with a
disability. The court specifically noted that one way states can show they
are meeting their obligations under the ADA is to have a comprehensive,
effectively working plan to serve people in the most integrated setting
appropriate to their needs. Based on this suggestion, almost all states have
begun Olmstead planning. Unfortunately, little effort has been made to
include children with serious emotional disturbance in meaningful ways.
http://www.bazelon.org/issues/children/ ... ldren2.pdf[ This Message was edited by: katfish on 2006-01-04 12:35 ]"
It depends on whether the kid has a disability under ADA definitions of "disability." And whether or not the disability was the reason, or one of the reasons, for institutionalizing the kid.
"Serious emotional disturbance" could qualify as a disability under ADA. You can't be seriously emotionally disturbed and not have a mental illness. If you're "seriously emotionally disturbed" then there's a diagnosis for it.
Does a diagnosis mean the kid is "mentally ill"? Maybe not as most people think of "mentally ill," but it would be a mental illness.
Kids with ADHD, as a common example, are classified under federal "504" education law as disabled in the OHI category---other health impaired.
Kids who have serious emotional problems are also classified as disabled under federal "504" education law.
An attorney could probably bring an Olmstead suit on behalf of one of these kids. Most likely person I could see bringing the suit would be a parent with joint custody or visitation who disagreed with the decision to send a kid with some diagnosis or other to an RTC.
It's a good idea for someone to come up with a good test case and bring this suit.
A parent with joint custody would be the ideal plaintiff.
A good lawyer could contend we don't want people's relatives using the power of the state to hospitalize disabled people just because they're inconvenient to be around.
You get these things handled in the court one case at a time. You bring the case with the most sympathetic plaintiff, and the best slam-dunk case, first. Then you bring the next most sympathetic case, etc., as you set one precedent after another. The less a ruling is a departure from existing precedent, the more sympathetic the case, the more likely you are to get precedent expanded. Then you do it over, and over.
First Amendment law is a great example of this in practice.
Julie
