The Assault on Olmstead: Why It Matters for Families

The disability community expressed united outrage at the announcement of a Department of Justice (DOJ) memo on June 18, 2026, which concluded that the interpretation of the famous Olmstead decision — the longstanding rule requiring states to serve people with disabilities in the most integrated setting appropriate to their needs — is incorrect, and instructs government agencies such as Health and Human Services (HHS) and the Department of Justice (DOJ) stop enforcing it.

This ties into a number of other moves in the administration to limit Home and Community Based Services and is consistent with the federal approach. This doesn’t mean that states have to stop providing services, but it does mean that if a state chooses instead to require people with disabilities to be institutionalized in order to receive Medicaid-funded services, the federal government would not consider this discrimination and would not act to prevent it.

Note that California defended their use of HCBS Medicaid funding for IHSS payments to families taking care of their loved ones — by referring to the federal enforcement of this rule over 30 years.

The DOJ opinion is just an opinion; it does not change the law. Government agencies are expected to follow the guidance, which could affect how they enforce protections under the Olmstead decision. If an agency acts on that guidance in a way that results in discrimination, an affected person can challenge those actions in court, allowing the courts to decide whether they are consistent with the law.

The Olmstead case was decided by the Supreme Court in 1999. Two women in Georgia — both with intellectual disabilities, one also diagnosed with schizophrenia, the other with a personality disorder — were confined in a state psychiatric institution. Their own doctors had decided the women were ready to move to community-based care, but the state kept them institutionalized anyway. The women went to court, arguing this violated the Americans with Disabilities Act (ADA), which was signed by President George Bush on July 26, 1990.

The case posed the question of whether keeping someone in an institution, when their own doctors recommended community care, counts as illegal disability discrimination. The court held that "unjustified institutional isolation of persons with disabilities is a form of discrimination" and is therefore prohibited under the ADA. In other words, keeping someone locked in an institution without good reason, when they could be served in the community, is a civil rights violation.

Justice Ruth Bader Ginsburg wrote the Olmstead opinion in 1999 for four of the justices. She laid out a three-part test for when states must move someone to community care:

1. Their own treatment team says it's appropriate.
2. The person doesn't object.

3. The state can reasonably afford it given its resources and other patients' needs.

Ginsberg’s opinion had a majority, but the court was very divided. Justice Stevens and Justice Kennedy agreed that it was discrimination but disagreed with Ginsburg’s three-point test. Justices Thomas, Scalia, and Chief Justice Rehnquist dissented, arguing that treating people differently isn't "discrimination" in the legal sense unless you're comparing them to a similarly situated group being treated better.

Only five justices actually agreed on the narrow point that unjustified isolation can be discrimination — but they didn't agree on when it's unjustified or what triggers a state's obligation to act. For 25 years, federal regulators and most courts have treated Olmstead as a broad mandate requiring states to maximize community-based, integrated care for people with disabilities.

This latest DOJ opinion argues that interpretation is an overreading — that this law doesn’t actually require the government to ensure the "most integrated setting appropriate to their needs.”

Disability rights organizations nationwide have reacted with alarm, framing the opinion as an attempt to unravel four decades of hard-won deinstitutionalization — work that closed almost all state institutions and shifted care into communities not only because it is more humane but also, contrary to any cost-saving rationale, because home and community care is generally cheaper than institutional care. Read more in our article Paid Family Caregiving Through Medicaid HCBS Waivers.

The decision will likely be challenged in court, and it remains to see how today’s Supreme Court justices will interpret the ADA.

On August 13, 2026, the federal government asked a court in Florida to erase one of the biggest disability rights victories in recent years.

For more than a decade, the Department of Justice argued that Florida wasn't providing enough in-home nursing or other supports for children with complex medical needs. According to the DOJ, some children ended up in nursing facilities unnecessarily, while others were at serious risk because their families couldn't get the services they needed to keep them safely at home.

Florida lost the case. In March 2026, the 11th Circuit Court of Appeals agreed with the DOJ and issued a major published decision reinforcing those protections. One of the most important parts of that decision was that families shouldn't have to wait until a child is already institutionalized before the law can protect them.

But on August 13, the Department of Justice, the same agency that won that case, asked the court to erase that decision and undo a disability rights victory that it already won. Not because Congress changed the law, not because the Supreme Court overturned Olmstead, not because the ADA changed, but because the Department of Justice has changed its own legal position.

The DOJ is asking the court to vacate or erase its appellate decision. If the court agrees, that published decision would no longer serve as precedent for future cases. Court decisions don't just affect one family or one state — they become precedent, and other courts rely on them. Disability rights attorneys cite them, and advocates use them to protect families. If a decision is erased, one important piece of that legal foundation disappears.

No laws have changed yet. This is simply a request, and the court can say yes or no. But this could potentially affect families outside of Florida because federal appellate decisions often influence courts across the country.

Some good news: in early August, two senators introduced the Home and Community-Based Services (HCBS) Access Act in the Senate. If it passes, HCBS would be a mandatory Medicaid benefit, and HCBS programs would receive more funding to reduce waiting lists and train more providers.

Contact your senators and ask them to support this bill. If your family has benefited from HCBS programs, tell them your story. You can look up your senators here.

We'll continue breaking down any major developments so you know what they mean for your family.