States not required to give community-based care for those with disabilities: DOJ opinion

A recent legal opinion from the U.S. Justice Department's Office of Legal Counsel (OLC) asserts that states are not legally obligated to offer community-based care for individuals with mental, physical, and intellectual disabilities. Civil rights advocates are concerned this stance represents a significant setback for disability rights.

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The Olmstead decision itself said that why community integration is so important is so children can be part of their families, so they can go to school, so people can be part of their communities. That's what's at stake with this re-interpretation of Olmstead.

The OLC opinion, authored by Principal Deputy Assistant Attorney General Lanora Pettit, reinterprets the landmark 1999 Supreme Court decision in Olmstead v. LC. This foundational case established that people with disabilities have the right to receive services within their communities rather than in institutions. Experts contend that the new OLC interpretation directly challenges this precedent and could lead to a rise in institutionalizing individuals with disabilities.

Alison Barkoff, a former DOJ attorney involved in enforcing Olmstead, emphasized the importance of community integration, stating, "The Olmstead decision itself said that why community integration is so important is so children can be part of their families, so they can go to school, so people can be part of their communities." She expressed concern that this re-interpretation jeopardizes these fundamental aspects of life for people with disabilities.

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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. 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.

The Olmstead case originated from a lawsuit filed by two women with mental and intellectual disabilities who faced repeated institutionalization due to a lack of support for independent living. The Supreme Court's ruling in their favor was seen as a major civil rights victory, comparable to Brown v. Board of Education. However, the DOJ's OLC opinion suggests that the department's enforcement efforts over the past two decades have exceeded the Supreme Court's original intent, pressuring states into deinstitutionalization through federal actions.

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The Olmstead opinion by the Supreme Court did not in fact impose any integration mandate. Rather, it says, the finding was narrower in scope and held that 'unjustified institutional isolation of persons with disabilities is a form of discrimination.'