Last summer, the president issued an executive order called “Ending Crime and Disorder on America’s Streets.” The order argued that homelessness, serious mental illness and substance use should be addressed via more “long-term institutional settings.”
Ending Crime and Disorder on America’s Streets – The White House
The EO mainly focused on people with serious mental illness, but it could potentially have broader consequences for people with all kinds of disabilities, (including intellectual and developmental disabilities).
The EO directed the Justice Department to seek the reversal of court decisions and consent agreements that stand in the way of increasing institutionalization of people with disabilities.
Of course, the Justice Department lawyers dutifully followed through and last month issued a memo about the Rehabilitation Act, the ADA and the Olmstead decision.
The densely worded 38-page complicated memo argues that no federal law (the Rehabilitation Act of 1974 nor the ADA) requires states to provide services in the most integrated setting appropriate.
The memo claims that Olmstead only established that unjustified institutionalization can be discrimination (not that states must build their care systems around community placement).
Before you freak out, remember that the memo was written by lawyers in this administration’s DOJ, so any Justice Department lawyer that wants to keep their job would have to validate the president’s position pressing for more institutionalization.
The memo was just that – a Justice Dept lawyer writing something that the White House dictated. It’s not a court ruling – not even close.
But – it’s still meaningful, because for the next 2.5 years Kennedy and other federal agency directors can use the memo to justify and craft harmful actions or look the other way when it comes to civil-rights and civil liberties or even actively pursue more institutional models of care.
Note: The memo isn’t a Supreme Court ruling and it doesn’t repeal the ADA, the Rehabilitation Act or the Medicaid statutes. The memo never even mentions Medicaid, CMS and doesn’t even use the words Home and Community-Based Services. It also doesn’t overturn Olmstead.
Arizona’s Model
On the local stage, AZ is far down the road toward community-based care. Our current Olmstead Plan continues to emphasize HCBS (home and community-based services), supportive housing, integrated care and services that help people remain in their communities. ADES/DDD serves more than 60,000 people, and only about 9% of ALTCS members are placed in institutional settings.
Based on my conversations with Arizona agency leaders last week, the Justice Department memo is being treated as something to watch, but not as something that changes how Arizona currently serves (or plans to serve) people with developmental disabilities or serious mental illness.
But – a future AZ administration could want to expand institutional care… but I really don’t think it would take off because institutional care is WAY more expensive that community-based care.
The bottom line is that the DOJ memo (which has freaked a lot of people out) is really just the opinion of a Trump Administration DOJ lawyer who was instructed to write a memo that the president likes.
Any attempt to dismantle the integration mandate will almost certainly face years of litigation – time that this administration doesn’t have left (only 916 days… but who’s counting).
