The Trump administration is tossing aside key guidance that federal officials have used to steer enforcement of the Americans with Disabilities Act for more than a decade.
The U.S. Department of Justice issued a notice Monday clarifying that its long-standing guidance on enforcement of the ADA’s integration mandate and Olmstead v. L.C. is “not enforceable.”
“The department will not rely upon the Olmstead guidance in its enforcement of Title II of the Americans with Disabilities Act,” reads the notice from Harmeet K. Dhillon, assistant attorney general for civil rights.
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At issue is a Q&A document from 2011 that was last updated in 2020 which details implementation of the Supreme Court’s Olmstead decision. The 1999 ruling found that “states are required to provide community-based treatment for persons with mental disabilities” so long as certain conditions are met.
The guidance details what qualifies as the most integrated setting under the ADA and Olmstead, who should be able to access services in the community and much more. Subsequent Justice Department guidance on employment for people with disabilities and other related issues relied on the Olmstead guidance and the agency said this week that “similar guidance documents are not enforceable.”
Officials indicated that they plan to “revisit” the Olmstead guidance in light of a 2024 Supreme Court decision in Loper Bright Enterprises v. Raimondo on how courts should view agency guidance “to determine whether the Olmstead guidance is consistent with the ‘single, best meaning’ of the ADA.”
The Justice Department notes that the Q&A document itself indicates that it is not legally binding.
“Despite the non-enforceable nature of the Olmstead guidance, numerous courts have treated the Olmstead guidance as authoritative,” the Justice Department notice indicates. “The department is concerned about confusion over the non-enforceable nature of the Olmstead guidance and issues this clarification that the Olmstead guidance is not enforceable.”
The move to dissociate from the guidance comes roughly a month after the Justice Department’s Office of Legal Counsel issued a memo indicating that neither the ADA nor Section 504 of the Rehabilitation Act “require states to treat mentally disabled patients in the most integrated setting appropriate to their needs.” That stance runs counter to long-held interpretations of the Supreme Court’s Olmstead decision.
“The Department of Justice’s Olmstead guidance reflects the overwhelming consensus of courts in their interpretation of the requirements under the Americans with Disabilities Act and Section 504, their implementing regulations, and the Supreme Court’s decision in Olmstead v. L.C.,” said Alison Barkoff, a professor at George Washington University who oversaw development of the guidance when she served as the Justice Department’s special counsel for Olmstead enforcement. “Today’s notice from DOJ that it will no longer rely on the guidance is further evidence of their backing away from a decades-long commitment to enforcing the rights of people with disabilities to live and participate in their communities.”
Notably, the first Trump administration was responsible for the 2020 update to the Olmstead guidance that the Justice Department is now calling unenforceable, said Regan Rush, former chief of the special litigation section at the Justice Department’s Civil Rights Division who is currently tracking changes in the division’s policies as director and editor-in-chief of Red Line for Civil Rights at Democracy Forward.
“That guidance has stood the test of time. It is grounded in decisions by courts across the country and has been relied upon by states and the federal government alike since 2011,” Rush said. “States that follow DOJ’s cue and abandon their integration efforts risk violating the rights of people with disabilities, and they will have to answer for it in courts that have upheld Olmstead for decades.”
In the immediate, the Justice Department notice “is likely to create further uncertainty and confusion among stakeholders in the wake of DOJ’s June memo saying that there is no integration mandate,” said Jennifer Mathis, who served as deputy assistant attorney general for the agency’s Civil Rights Division under the Biden administration and is now deputy director at the Bazelon Center for Mental Health Law. “Neither of these things has the force of law, but they appear designed to undermine the rights of people with disabilities to live in their own homes and communities. The disability community will continue to fight these attacks on their hard won rights.”
The Justice Department did not respond to questions about the changes.
