The federal government is switching sides in a closely watched disability rights case and is now seeking to do away with rules requiring that people with disabilities be served in the community.
The U.S. Department of Justice alongside Texas, Alaska, Florida, Louisiana and Montana want to drop all references to the phrase “most integrated setting” in Department of Health and Human Services’ regulations related to Section 504 of the Rehabilitation Act.
Doing so would go back on decades of precedent, disability advocates say.
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“This is a significant departure,” said Michelle Uzeta, executive director at the Disability Rights Education & Defense Fund. “The position taken by the government is a reversal of the way it has interpreted Section 504 for the past 50 years, and its own authority.”
The about-face comes in a proposed resolution filed with the U.S. District Court for the Northern District of Texas in a case known as Texas v. Kennedy.
The litigation was initially brought by Texas and 16 other states in a bid to ensure that gender dysphoria would not qualify as a disability under a 2024 update to Section 504 regulations. The states also sought to strike Section 504 in its entirety, but later backed off that claim while continuing to challenge the regulations. Under pressure from disability advocates, all except for three states dropped out of the case, but two — Louisiana and Montana — rejoined the suit this month.
In June, the Justice Department’s Office of Legal Counsel issued a memo stating that neither the Americans with Disabilities Act nor Section 504 of the Rehabilitation Act “require states to treat mentally disabled patients in the most integrated setting appropriate to their needs.” Even the memo noted that its position “is out of step with the common understanding” in the federal courts of Olmstead v. L.C., a landmark 1999 Supreme Court decision on the rights of people with disabilities to access services in the community.
Nonetheless, the Justice Department has started to change its stance in multiple disability rights matters since then and the agency specifically cited the memo in its latest action.
“In light of this development, defendants have determined that it is in the interest of the public, the parties, and judicial economy, to resolve plaintiffs’ lawsuit without further protracted litigation,” reads the joint motion filed by the Justice Department and the states in the case. “Therefore, the parties have agreed to resolve plaintiffs’ challenge to the final rule through a joint request that the court enter a final judgement vacating the specific provisions of the final rule on integration … and related portions of the code of federal regulations that use the phrase ‘most integrated setting.’”
If the court signs off on the proposed resolution from the federal government and the five states, it will put an end to the case.
The move is highly unusual, according to Jennifer Mathis, who served as deputy assistant attorney general for the Justice Department’s Civil Rights Division under the Biden administration and is now deputy director at the Bazelon Center for Mental Health Law.
“Switching sides on this type of fundamental disability rights issue is pretty unprecedented,” she said. “The integration mandate has been one of the most important rights that people with disabilities have. It has enabled people with disabilities to live, work and receive services in their own homes and communities and to have the same kinds of lives as people without disabilities.”
Still, even if references to community integration are removed from Section 504 regulations, advocates say that nothing about the law itself has changed.
“The resolution does not and cannot change longstanding legal precedent interpreting the requirements of Section 504 or the Americans with Disabilities Act (ADA). Nor does it change the ADA or Section 504 themselves. Only Congress can change the law,” said Shira Wakschlag, senior executive officer for legal advocacy and general counsel at The Arc of the United States. “But it’s dangerous because rights mean less when the federal government refuses to enforce them. This resolution seeks to undermine protections people with disabilities have from being pushed into institutions when they can and want to live in the community.”
