The U.S. Department of Justice says states have no legal obligation to serve people with developmental disabilities in the community, a reversal that advocates say could have profound consequences.
The agency’s Office of Legal Counsel issued a 39-page memo late last week stating that neither the Americans with Disabilities Act nor Section 504 of the Rehabilitation Act “require states to treat mentally disabled patients in the most integrated setting appropriate to their needs.”
The Justice Department memo comes in response to questions from the White House counsel. The opinion authored by Lanora C. Pettit, principal deputy assistant attorney general for the Office of Legal Counsel, is now the official position of the United States. It does not alter current law, but could impact how federal agencies enforce it, advocates said.
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The assertion runs counter to long-held interpretations of Olmstead v. L.C., a landmark 1999 Supreme Court decision on the rights of people with disabilities, which found that “states are required to provide community-based treatment for persons with mental disabilities” provided that certain conditions are met. The decision turbocharged state efforts to shutter institutions and move people with disabilities into community-based settings.
“The Department of Justice’s memo attempts to take away one of the most important and hard-fought rights for people with disabilities — the right to receive services in their own homes and communities,” said Alison Barkoff, a professor at George Washington University who led the Department of Health and Human Services’ Administration on Community Living under the Biden administration and previously served as the Justice Department’s special counsel for Olmstead enforcement.
The opinion, which came out just ahead of the 27th anniversary of the Olmstead decision on Monday, alters the interpretation of Section 504 that the federal government has had for nearly 50 years, advocates said.
“The fact that the United States is taking the position that there is no longer an integration mandate will likely impact the many Olmstead settlement agreements, investigations, and individual cases that DOJ and HHS’ Office for Civil Rights are involved in,” Barkoff said. “This memo also sends a message to states that they can reverse course on the decades of progress on implementing Olmstead and instead unjustifiably institutionalize people without fear of enforcement by the United States.”
In addition, the memo signals that the Justice Department and HHS are likely to amend their regulations under the ADA and Section 504 to align with the new interpretation, Barkoff said.
The Justice Department opinion claims that federal enforcement has been more expansive that the Olmstead decision intended.
“Over the past two decades, DOJ’s Civil Rights Division (“CRT”) has relied on its integration mandate and Olmstead to pressure states into discharging individuals from mental-health institutions,” the memo states. “By threatening or bringing federal enforcement action, CRT has successfully elicited consent decrees, remedial orders, or out-of-court agreements in nearly a dozen states, obligating the participants to meet DOJ’s deinstitutionalization benchmarks.”
In fact, the memo argues that the Olmstead decision was “narrow” finding only that “unjustified institutional isolation of persons with disabilities is a form of discrimination.”
At the same time, however, even the Justice Department is acknowledging that its new interpretation of Olmstead “is out of step with the common understanding of that decision within the federal courts.”
“There is consequently a risk that any final agency action adopting our view will be subject to challenge in litigation,” the Justice Department opinion says. “Moreover, any state that chooses to treat a person with mental disabilities in an institution based on our reasoning may still be subject to individual ‘Olmstead claims’ seeking a judicial order to release party patients.”
The Justice Department did not respond to a request for comment about the new opinion or how it will impact enforcement.
Disability advocates say that the implications for people with disabilities could be far-reaching.
“The Office of Legal Counsel is incorrect in its interpretation of Olmstead and its assumptions about what Congress intended. But the fact that their conclusion is unjustified and incorrect doesn’t change the fact that they will seek to use said interpretation to hurt disabled people, lock us away, end our autonomy over our lives, and in many cases, end our lives altogether,” the American Association of People with Disabilities warned.
Some changes could be immediate, said Jennifer Mathis, who oversaw disability rights enforcement at the Justice Department as deputy assistant attorney general for the Civil Rights Division under the Biden administration.
“The federal government’s new position that neither the ADA nor Section 504 has an integration mandate will likely impact the ongoing Olmstead settlements and other matters in which the federal government has been involved. That could impact the lives of thousands of people with disabilities and leave them without the ability to access needed community services,” she said.
Still, Mathis said, guardrails remain.
“A federal agency cannot change the law — only Congress can do that. So while this new position is likely to have a significant impact in the government’s own Olmstead matters, states will put themselves at significant risk if they treat DOJ’s memo as a change in law,” said Mathis who now serves as deputy director at the Bazelon Center for Mental Health Law.
The greater threat from the Justice Department opinion could be the message that the it sends, according to Shira Wakschlag, senior executive officer for legal advocacy and general counsel at The Arc of the United States.
“Olmstead remains the law of the land, but this opinion tells people with disabilities that the federal government seeks to attack one of their most basic civil rights,” she said.
