Justice Department Says States Don't Have to Keep Disabled People Out of Institutions, Breaking With a 1999 Supreme Court Ruling

The Justice Department has concluded that states are not legally required to provide home- and community-based services to people with disabilities — a reading that breaks with 27 years of federal enforcement built on the Supreme Court's decision in Olmstead v. L.C.

The conclusion arrived in a 39-page opinion from the department's Office of Legal Counsel, released June 18 and written by Principal Deputy Assistant Attorney General Lanora Pettit. The memo accepts the narrow holding of Olmstead — that unjustified institutional isolation of people with disabilities is a form of discrimination — while rejecting what the Civil Rights Division has spent decades enforcing on the basis of it. Neither Title II of the Americans with Disabilities Act nor Section 504 of the Rehabilitation Act, the opinion argues, imposes an affirmative "integration mandate" obligating a state to serve people in "the most integrated setting appropriate," or to offer community-based care at all.

The department then acted on it. On July 20, DOJ published a notice in the Federal Register stating that it will no longer rely on its longstanding Olmstead guidance when enforcing Title II of the ADA — the practical step that converts an internal legal opinion into a change in how the federal government polices state conduct.

Olmstead itself came out of Georgia. Two women with mental and intellectual disabilities, Lois Curtis and Elaine Wilson, were held in a state psychiatric hospital long after clinicians agreed they were ready for community placement, because the community services did not exist. The Supreme Court ruled in 1999 that keeping them there was discrimination. The decision became the legal foundation for the shift of hundreds of thousands of Americans out of institutions and into Medicaid-funded home- and community-based services, and for the consent decrees the Civil Rights Division has negotiated with states ever since.

Disability advocates read the memo as removing the enforcement threat that made those decrees work. Alison Barkoff, who supervised Olmstead enforcement at the Justice Department, put the stake in ordinary terms: "community integration is so important is so children can be part of their families, so they can go to school." The Arc and the American Bar Association's disability rights committee have both published responses arguing the OLC reading is wrong on the law, and state-level councils have warned that the memo gives budget-pressed legislatures cover to shrink waiver programs with long waiting lists.

What the memo does not do is change the law. Olmstead remains binding precedent, the ADA and Section 504 remain on the books, and the integration mandate remains enforceable by private plaintiffs in federal court. An OLC opinion binds the executive branch's own lawyers, not judges. The realistic effect is a shift in who does the enforcing: from a federal department with subpoena power and a litigating division to individual disabled plaintiffs and the nonprofit legal organizations that represent them, one lawsuit at a time.