Does the IMD Exclusion apply to secure residential treatment facilities? 

          No.   The IMD exclusion, which is found in section 1905(a)(B) of the Social Security Act, applies to “institutions for mental diseases” with more than 16 beds and to individuals between ages 21-65.  The IMD exclusion was intended to ensure that states, not the federal government, be responsible for funding psychiatric services and substance use disorder residential treatment.  Secure residential treatment facilities will not be IMDs as they will have less than 16 beds.  

 How does Olmstead relate to the Secure Treatment?

The landmark Supreme Court decision,Olmstead v. LC, 527 U.S. 591 (1999), protects the civil rights of people with disabilities from being inappropriately institutionalized. Olmstead requires that individuals reside in the “most integrated” setting that the individual’s treatment professionals agree is clinically appropriate. Olmstead at 597.  ACMI envisions secure residential treatment facilities as providing a more integrated setting to hospitalization, jail, or prison for individuals who have not been successful in other community living arrangements. 

All individuals who are referred to and accepted in a secure residential treatment facility will have been committed by a Title 36 civil court.  And Arizona law is actually more protective than Olmstead because it mandates that individuals be provided services in the least restrictive placement: “The court shall order the least restrictive treatment alternative available.” See ARS 36-540.  Consistent with Olmstead, Title 36 also requires that a treatment professional to conclude that a less restrictive traditional community placement is not appropriate.

Does Olmstead forbid secure settings other than a psychiatric hospital?

No.Importantly, the Supreme Court explained that admission to any facility always depends, first, on the treating professionals’ assessment that the facility is appropriate for the individual either as an alternative to a more restrictive setting such as a hospital or a less restrictive setting such as housing in the community.  Olmstead at 597. 

Second, secure residential treatment facilities are the kind of option that the Supreme Court seemed to anticipate and encourage when it said that states “need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities …”  Olmstead at 597 (emphasis added).   Individuals with chronic serious mental illness face unique challenges and may benefit during their recovery from services delivered in a clinically appropriate, secure residential setting.  Such a setting is “more restrictive” than other community-based housing options, but “less restrictive” than inpatient care or incarceration.  It can offer an alternative to jail, prison, the state hospital, or life and death on the street.      

Will secure residential treatment facilities meet due process requirements. 

Yes.  Olmsteadrequires, first, that treatment professionals determine what is appropriate clinically for each person. Second, all due process protections apply as to who may be admitted and why. No person will be admitted to a secure residential treatment facility except under a court-order.  The court order must be based on and follow an assessment and recommendation by an individual’s treatment professionals that (i) the secure facility is the most integrated setting appropriate for the individual’s clinical needs, and (ii) the individual likely cannot succeed in a less restrictive community placement.  Individuals considered for admission generally will have been unsuccessful in other types of housing and treatment settings.   Third, there will be periodic review of appropriateness of continued stay and criteria for discharge and the ability at any time to petition for discharge.  Fourth, there must be ongoing, periodic reviews about whether transfer to a less restrictive setting is clinically appropriate.  The individual can petition for discharge at any time.

Will secure residential treatment facilities provide comprehensive services?

          Yes.  Olmstead requires that states offer services, programs, and activities in the most integrated setting appropriate to the clinical needs of the individual.    Secure facilities can provide all needed services and support, including the full range of clinical and therapeutic services and peer support consistent with an individualized treatment program.  Personal choice and independent living skills will be promoted consistent with maintenance of a therapeutic and safe environment for all residents.  There will be a full range of recreational and educational opportunities.  All residents will have ongoing contact with an assigned outpatient clinical team who will follow the individual after discharge to a lower level of care.  In short, secure residential treatment facilities can be the most integrated and most appropriate setting for people who are struggling in their recovery journey in other outpatient settings.

This post was edited 8/6/2019 to ensure that you have the most up to date information!

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