Organizations that support people living with disabilities are denouncing a Department of Justice (DOJ) notice that called the landmark Supreme Court Olmstead v. L.C. decision “unenforceable” — while also expressing concern over an erosion of inclusion-related rights.
The DOJ published the notice in the Federal Register on July 20, saying it “is issuing this document to clarify that the guidance issued by the Department on June 22, 2011, and last updated February 28, 2020, titled ‘Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act [ADA] and Olmstead v. L.C.’ (Olmstead Guidance), and similar guidance documents are not enforceable.”
Segregation as discrimination
The Olmstead decision, issued by the U.S. Supreme Court in June 1999, “held … that unjustified segregation of persons with disabilities constitutes discrimination in violation of title II of the Americans with Disabilities Act,” according to the DOJ’s civil rights division’s website.
At the center of the Supreme Court case were Lois Curtis — known as “L.C.” in the court case’s title — and Elaine Wilson, “who had mental illness and developmental disabilities, and were voluntarily admitted to the psychiatric unit in the state-run Georgia Regional Hospital,” the DOJ said. After Curtis and Wilson were treated, the mental health professionals working with them “stated that each was ready to move to a community-based program. However, the women remained confined in the institution, each for several years after the initial treatment was concluded.”
Curtis and Wilson eventually sued under the ADA to be released from the hospital. Tommy Olmstead, commissioner of the Georgia Department of Human Resources at the time, was the defendant in the case.
The U.S. Supreme Court ruled “that public entities must provide community-based services to persons with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability services from the entity.”
The Court’s decision added that requiring people “who can handle and benefit from community settings” to remain in institutional settings “perpetuates unwarranted assumptions that persons so isolated are incapable of or untrustworthy of participating in community life.”
Remaining confined to institutions also “severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement and cultural enrichment,” the Court said.
The Olmstead decision has been foundational to the durable medical equipment and Complex Rehab Technology industries, which provide the medically necessary equipment and services that make it possible for consumers with medical conditions to live and thrive at home and in their communities.
American Bar Association: Disability discrimination remains a ‘serious’ problem
Weighing in on July 1, the American Bar Association (ABA) described the DOJ’s notice as a “narrowing” of the ADA, Section 504 of the Rehabilitation Act, and the Olmstead decision, and said the June memo “concludes that neither the ADA nor Section 504 requires states to provide services in the ‘most integrated setting appropriate’ or creates a broad legal obligation to offer home- and community-based services … and that the decision did not establish a general ‘integration mandate.’”
The ABA said that although the notice is “not binding on courts,” it’s “likely to guide executive branch agencies, shaping federal enforcement priorities and substantially narrowing the government’s approach to investigations, compliance and litigation under the ADA and Section 504.”
The association added that the memo’s stance is that Congress “prohibited disability discrimination generally, not segregation specifically.”
But the ABA disagreed, saying, “The factual findings that Congress relied on in enacting the ADA show otherwise. Congress found that ‘historically, society has tended to isolate and segregate individuals with disabilities and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.’”
Organizations fear erosion of disability, inclusion rights
Organizations supporting people with disabilities began voicing concern following a DOJ Office of Legal Counsel (OLC) legal opinion memo issued in June.
LeadingAge, which describes itself as “a community of nonprofit aging services providers and other mission-driven organizations serving older adults,” said the OLC opinion demonstrated that the DOJ “no longer recognized the integration mandate under both the ADA and Section 504 of the Rehabilitation [Act] as a legal requirement within the executive branch of the government,” and warned the change “could further jeopardize services and supports for people with disabilities in community-based settings.”
“While Olmstead remains law, recent Department of Justice guidance marks a dangerous break from decades of precedent and federal enforcement supporting community integration under the ADA and Section 504,” Easterseals said in a statement posted to social media on June 22. “This new interpretation attempts to dismantle access to vital home care, and threatens to separate people from their families and warehouse them.
“For millions of Americans with disabilities, home care makes it possible to live independently, stay connected to family and friends, work, attend school and participate fully in their communities. These services are the line of defense keeping people in their own homes, which is where federal law says they have the right to remain.”
Disability community advocates have launched the Say No to Crip Crow movement, saying the DOJ memo “is designed to undermine and delegitimize the Olmstead decision — a landmark 1999 Supreme Court ruling that established the right of people with disabilities to live in their communities, not in institutions.
“This is not just a disability issue. It is an attack on civil liberties — and a mechanism to label dissent as a mental illness. The time to act is now, before they change the laws.”
Say No to Crip Crow is seeking “to make the Olmstead integration mandate permanent” by urging Congress “to write these protections into law through budget reconciliation — a path that only needs a simple Senate majority.”
That strategy would make “core home- and community-based services a required Medicaid coverage category rather than an optional one; [and] permanently authorize the Money Follows the Person program rather than extending it on a recurring basis. Both are direct changes to Medicaid’s mandatory and optional coverage categories and to its federal matching formula.”
