Robert F. The exterior of the Kennedy Justice Department building is photographed on May 4, 2021 in Washington, DC.
Patrick Semansky/AP
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Patrick Semansky/AP
The Justice Department released a memo this week that quietly calls into question decades of civil rights protections for disabled Americans and stoked fear and anger among advocates and families.
The memo, an opinion from the Office of Legal Counsel, argues that states are not required to provide home or community-based care to disabled people who need assistance. These services allow many Americans with disabilities to continue living, learning, and working at home or in their own communities, surrounded by family and friends.
“It is now the position of the United States government that people with disabilities do not have the right to be part of their communities,” says Alison Barkoff, a health law and policy professor at George Washington University who led disability law and policy efforts during both the Obama and Biden administrations. “I cannot overstate how significant this change in situation is.“
Without the federal government requiring that states provide these services — to help people with disabilities integrate into their communities — advocates and legal experts warn that cash-strapped states could cut them and return to what was once common practice: the de facto segregation of disabled Americans in nursing homes and large institutions.
The reaction from the disability community was intense.
The American Association of People with Disabilities said, “As America prepares to celebrate 250 years of independence, (this memorandum) threatens to take our country back to a dark and shameful era of ignorance and cruelty.” “This interpretation would open the door for states to store people with disabilities in institutions out of sight and out of mind.”
Shira Wakslag of The Arc of the United States, a nonprofit disability advocacy group, said, “This opinion is a direct threat to decades of progress toward living in the community for people with disabilities.” “People with disabilities should not be forced into institutions because a state refuses to provide services in the community.”
The Justice Department did not respond to NPR’s request to clarify its position as well as why it is changing course after decades of legal and bipartisan support for community services.
What does the law say
The new memo raises questions about what legal experts say has been settled law for decades.
Both Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act have long been interpreted to require states to provide services to Americans with disabilities in the most appropriate integrated setting. In short: institutionalization should be a last resort.
In 1999, a case testing these protections reached the US Supreme Court. In Olmsted vs. LCTwo mentally disabled women sued Georgia, arguing that the state has failed in its obligation to provide services that would allow them to return to their communities and instead has continued to institutionalize the women, thus violating their civil rights.
The Court agreed that states have a legal responsibility to provide supports that integrate disabled Americans into their communities, and for nearly three decades, courts across the country have adopted that interpretation.
By 2023, 8.4 million Americans were receiving home and community-based services through Medicaid.
The new memorandum, written by Lenora Pettit, Principal Deputy Assistant Attorney General in the Office of Legal Counsel, argues that, while federal law prohibits discrimination on the basis of disability, it does not impose an “integration mandate” on states to provide these community services.
Furthermore, the memo argues, the Supreme Court olmsted The decision “simply held that a State cannot institutionalize such patients without justification.”
But, the memo said: “What counts as sufficient justification remains an open question.”
At one point, Pettit acknowledges the novelty of this reading: “We believe that this approach olmstedThe import of that decision goes beyond the common understanding within the federal courts.”
why it matters
“The United States government has taken the stance since 1977 that (federal law) includes an integration mandate that requires services to be provided in the most integrated setting,” says Professor Barkoff, who worked in the Obama Justice Department. olmsted Enforcement efforts.
For decades, Barkoff says, both Republican and Democratic administrations, including the first Trump administration, actively enforced federal disability law and repeatedly took action against states that relied too heavily on care in large, isolated settings, saying the law should be a last resort.
The courts and Congress decided that institutionalization should be the last resort because people’s personal liberties are at stake, says Jennifer Mathis of the Bazelon Center for Mental Health Law: “Who you can see, when you can go out, when you eat, what you eat. Who is your roommate, who do you talk to, what is your environment. And so many people who are institutionalized, their life is literally a hallway. I’ve been in those hallways with people. It’s deadly. Is.“
This memorandum signals a dramatic change in the official position of the US government.
“We are incredibly concerned that the message coming from the federal government in this memo is, ‘It’s OK to go back to the days when people were placed in institutions,’ even though they could be served in the community, even if they wanted to do so and even though it would be more cost-effective,” Barkoff says.
Time also matters. The memo comes as a new matter, texas vs kennedyMaking its way through the courts. The case, brought by Texas and several other states, is essentially a new challenge to the integration mandate imposed on states.
With this memorandum, the federal government is associating itself with the plaintiff party in the case. However, Mathis cautions: “It is important to understand that (this memo) is not law, the Justice Department cannot change the law. Congress makes the law, not agencies.”“
For now, it’s unclear what the immediate impact of the memo will be, although it seems likely the Justice Department will pause its enforcement efforts. olmsted.
why now?
The Justice Department memo appears to be the latest salvo in a broader effort that began on July 24, 2025, when President Trump issued an executive order aimed at making it easier for state and local governments to police homelessness.
The order argues, “Spatial loitering, disorderly behavior, sudden confrontations, and violent attacks have made our cities unsafe,” further claiming that “the majority of these individuals are drug addicts, suffer from mental health conditions, or both.”
Administration’s solution: involuntary institutionalization. The order reads, “Transferring homeless persons to long-term institutional settings for humane treatment through the appropriate use of civil commitment will restore public order.”
In a 2023 campaign video, President Trump himself pledged: “For those who are seriously mentally ill and deeply disturbed, we will put them back in the mental institutions where they belong.”
The Cicero Institute, a conservative Texas think tank, has been a driving force behind recent efforts to deal with homelessness forcefully, including institutionalization.
A serious barrier to large-scale institutionalization of nonresidential people is federal disability law that has long required home- or community-based services when appropriate. A footnote in a new Justice Department memo appears to suggest that these laws have contributed to an increase in long-term homelessness.
On the contrary, Barkoff says, the Olmsted decision “has been one of the most effective tools in providing services and stable housing to homeless people.”
NPR has previously reported that the Trump administration’s effort to decriminalize institutionalization faces another major hurdle: a severe shortage of beds in these special facilities.
The memo comes as Republicans have also made deep cuts to Medicaid, the primary source of funding for community-based services that many disabled Americans rely on.
Several legal experts tell NPR that, in response to last year’s One Big Beautiful Bill Act, states must now make deep cuts to the full range of services already funded by Medicaid. They say the Trump administration memo essentially allows states to cut these localized supports and, instead, rely on institutionalization — even though research shows it is significantly more expensive for states to provide it.
It comes as disability advocates were already pushing back against the Trump administration’s announcement Tuesday that it would move federal administration of special education programs out of the Department of Education and into the Department of Health and Human Services — a change that, along with the new Justice Department memo, has raised fears of rolling back enforcement of long-standing civil rights protections.
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