June 2024 marked the twenty-fifth anniversary of the U.S. Supreme Court’s landmark Americans with Disabilities Act (ADA) decision in Olmstead v. L.C. holding that the unnecessary institutional segregation of people with disabilities constitutes discrimination. Olmstead established the principle that people with disabilities must receive state-funded supports in the “most integrated settings” — that is, within the communities where they live. That principle, known as the Olmstead community integration mandate, recognizes that institutionalization constrains people with disabilities from engaging in everyday human activities and perpetuates stigmatizing assumptions about this population.
Indirectly related to Olmstead, but highly relevant to its implementation, during the Spring 2024 Term the Court issued opinions in Loper Bright Enterprises v. Raimondo affecting the role of agency regulations interpreting federal statutes and in City of Grants Pass v. Johnson upholding the criminalization of unhoused people, many of whom have disabilities.
This short blog essay reflects on the convergence of these cases and their implications for the as-yet to be realized right of Americans with disabilities to live in the community. First, we describe the uneven progress of Olmstead’s legal implementation over the past quarter century. Next, we consider how Loper Bright has the potential to weaken disability antidiscrimination structures and raise additional legal barriers to community-based integration of people with disabilities. Finally, we consider how Grants Pass’s greenlighting of criminalization could further impede progress for people with disabilities’ right to live in the community.
Olmstead’s Uneven Legal Implementation
The plaintiffs in Olmstead, Lois Curtis and Elaine Wilson, each had intellectual disabilities and mental health conditions and were institutionalized in the Georgia Regional Hospital at Atlanta, a state psychiatric facility. Although their physicians had recommended community-based treatment, Georgia continued institutionalizing Curtis and Wilson, justifying this decision by claiming it lacked resources to provide community-based supports. Curtis and Wilson therefore sued Georgia under Title II of the ADA. They invoked the statute’s integration mandate which requires local and state government agencies to provide services in the most integrated setting appropriate to the needs of individuals with disabilities.
Their case eventually reached the Court. Writing for a 6-3 majority, Justice Ruth Bader Ginsburg held that Georgia must “provide community-based treatment” for persons with disabilities when “the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated” in view of available resources.
Many disability rights advocates have heralded the Olmstead decision as a high watermark in the decades-long struggle for achieving their civil rights. Following centuries of warehousing people with disabilities in institutions and congregate “care” facilities under frequently deplorable conditions, Olmstead applied the paradigm-shifting ADA by ruling that unnecessary institutionalization of people with disabilities is illegal and that individuals are entitled to live in the most integrated settings. That said, like Brown v. Board of Education’s “all deliberate speed” desegregation mandate — which Charles Ogletree famously criticized as enabling delay — Olmstead’s proviso that states need not “phase out” institutions likely similarly impeded community integration of people with disabilities.
The decade after Olmstead witnessed only limited progress in realizing the right to live in the community, despite President George W. Bush professing his administration’s commitment to swift implementation of community living as a component of its New Freedom Initiative announced in 2001. (Other facilitating components included increasing access to assistive technologies and improving educational opportunities.) A concerted effort by the Obama Administration’s Department of Justice (DOJ) included filings or interventions against at least 25 states that resulted in compliance, mostly through settlements, and demonstrated the promise of sustained legal enforcement of community integration.
Continued Implementation Troubles
Despite some progress suggested above, Olmstead’s vision remains unfulfilled after twenty-five years. In 2023, 692,000 people receiving government support — most of whom are individuals with intellectual or developmental disabilities — were reported on Medicaid home and community-based services (HCBS) waiting lists across states. Left unchecked, this figure is likely to balloon in view of the number of Americans over the age of 65 — many of whom will have disabilities and be impoverished — projected to double by 2040. Unless states unexpectedly reverse course and comply with Olmstead’s community integration mandate along the lines explicated in May 2024 by the Department of Health and Human Services in its updated regulations of Section 504 of the Rehabilitation Act of 1973 (Revised 504 Regulations), recourse to the courts will once again be required. Implementation of the right by people with disabilities eligible for government support to live in the community will need to be achieved via litigation, whether on behalf of individuals or as class-wide suits by the DOJ, public interest lawyers, or lawyers representing disability advocacy organizations.
Bringing such litigation may become more difficult after the Court’s opinion in Loper Bright repealed the principle enunciated in Chevron v. Natural Resources Defense Council that courts should defer to reasonable agency interpretations of genuinely ambiguous statutory language. Indeed, in late September 2024 a coalition of 17 states attorneys general led by Texas relied on Loper Bright to challenge the Revised 504 Regulations while highlighting its enumeration of gender dysphoria as a protected disability. Newly reelected President Trump has vowed to reduce both federal government regulations and spending, including that directed to people with disabilities, and has also engaged in ableist and transphobic rhetoric. Hence, in addition to the pending judicial challenge, the Revised 504 Regulations are in peril of being undermined or rendered ineffective through a lack of meaningful federal enforcement efforts.
The Court’s opinion in Grants Pass risks compounding barriers to effective Olmstead implementation by greenlighting the criminalization of unhoused and unsheltered individuals as a valid legal response to the crisis of homelessness in the United States. This outcome is troubling because this population disproportionately experiences disabilities, both behavioral and physical, rendering them especially vulnerable to the dual harms of housing instability and criminal law enforcement. Nevertheless, city, county, and state officials from across the country filed amicus curiae briefs in support of Grants Pass before the April 2024 oral arguments claiming that criminal law enforcement is the best possible way to address the purported health and safety harms of encampments and other forms of outdoor living. And since the Court’s decision, many jurisdictions appear to have escalated efforts to punish people experiencing homelessness. These actions literally represent the opposite of enabling people to live in the least restrictive community environment.
These events raise urgent questions about whether progress toward community integration for people with disabilities — despite the civil rights mandate of Olmstead and encapsulated in the Revised 504 Regulations — can be made without committed political support, not only at the federal level but also crucially by states. Such support might emerge from the millions of potentially affected stakeholders, along with their families and friends, objecting to the impact of institutionalization (including increased incarcerated and nursing home populations) and reduced health care access for people with disabilities (including older persons). These voices would track the non-partisan history of pro-disability policies being supported by a diversity of political views and interest groups. They would also align with a history of public opinion swaying congressional decisions about health care programs. Arising from diverse perspectives, the question is whether shared interests in these outcomes could generate sufficiently large groups and political leverage to precipitate genuine programmatic change.
* Professor Michael Ashley Stein is the co-founder and Executive Director of the Harvard Law School Project on Disability, and a Visiting Professor at Harvard Law School since 2005. Considered one of the world’s leading experts on disability law and policy, Dr. Stein participated in the drafting of the UN Convention on the Rights of Persons with Disabilities; works with disabled peoples’ organizations and non-governmental organizations around the world; actively consults with governments on their disability laws and policies; advises an array of UN bodies and national human rights institutions; and has brought landmark disability rights litigation globally. Dr. Stein teaches at the Harvard Kennedy School of Government, Harvard Medical School, and Harvard Extension School; holds an Extraordinary Professorship at the University of Pretoria Faculty of Law’s Centre for Human Rights; and is a visiting professor at the Free University of Amsterdam Faculty of Earth and Life Sciences’ Athena Institute. He earned a J.D. from Harvard Law School (where he became the first known person with a disability to be a member of the Harvard Law Review), and a Ph.D. from Cambridge University (funded by a W.M. Tapp Studentship).
Lisa I. Iezzoni, MD, MSc is Professor of Medicine, Harvard Medical School, and based at the Health Policy Research Center, Mongan Institute, Massachusetts General Hospital. Dr. Iezzoni has conducted numerous studies examining the health care experiences of persons with disability, focusing on primary, reproductive health, and cancer care. She has also explored home-based supportive services. Her most recent book, Making Their Days Happen: Paid Personal Assistance Services Supporting People with Disability Living in Their Homes and Communities, was published in 2022. Dr. Iezzoni is a member of the National Academy of Medicine in the National Academies of Sciences, Engineering, and Medicine. She received her MD degree from Harvard Medical School and MSc in Health Policy and Management from the Harvard School of Public Health.
Benjamin A. Barsky is Associate Professor of Law at the University of California College of the Law, San Francisco and Consortium Advisory Board member of the UCSF-UC Law SF Consortium on Law, Science & Health Policy. Barsky’s work sits at the intersection of law, health care policy, and public health ethics. Broadly, his research interrogates the relationship between law and inequalities in health — an issue that he studies using different social scientific methodologies, both qualitative and quantitative. His research has been supported by the Commonwealth Fund, the Horowitz Foundation for Social Policy, the National Institute on Drug Abuse, the National Institute of Mental Health, and the Robert Wood Johnson Foundation Evidence for Action Program. He holds a Ph.D. from Harvard University, a J.D. from the University of Pennsylvania Carey School of Law, a Master of Bioethics from the University of Pennsylvania Perelman School of Medicine, and B.A. from Johns Hopkins University.
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