A Justice Department Office of Legal Counsel opinion issued in June argues that federal disability-rights law does not require states to provide the services, in-home bathing assistance or mental-health counseling among them, that let people with disabilities live at home rather than in institutions [1].
The target is Olmstead v. L.C., the 1999 Supreme Court decision holding that unjustified institutionalization of people with disabilities is discrimination under the Americans with Disabilities Act [1]. The memo concedes the ground it stands on: its reading, it acknowledges, 'is out of step with the common understanding of that decision within the federal courts' [1].
In the memo's framing, states can have a 'legitimate reason' for institutional placement, including 'resource constraints, capacity limitations' and 'safety concerns' [1].
An OLC opinion changes no statute and binds no court. What it steers is the executive branch, and this one could reshape how the Justice Department and HHS enforce, or decline to enforce, community-integration requirements [1]. Advocates put the population at stake at roughly 40 million adults and 5 million children with disabilities [1].
Zoe Brennan-Krohn, who directs the ACLU's disability rights work, said of the opinion: 'It reflects a deeply held disrespect for disabled people from this administration and total lack of awareness of lived experiences' [1].
The families in CBS News's reporting are already planning around the possibility. Amanda DeSimone-Shabrack, a Virginia parent: 'I'm worried. Am I going to have to put him in an institution, and what's that going to be like for him?' [1] Jennifer Kucera, of Cleveland: 'My future is a shaking floor beneath me. With the stroke of a pen, they could get rid of everything I've built.' [1]
The memo is not this weekend's news; it issued in June. What keeps it current is that the enforcement shift it signals has not happened yet, and the people it would reach are deciding now whether to trust services that a memo says their state never owed them [1].
Olmstead has meant, for 27 years, that a state cannot warehouse a person who could live at home with support. The memo reads that guarantee narrower, says so itself, and leaves the next move to enforcement offices and to the courts that, by the memo's own account, understand the decision differently.
