NCD letter to DOJ regarding Olmstead

Ms. Lanora C. Pettit
Principal Deputy Assistant Attorney General
Office of Legal Counsel
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

September 4, 2026

Dear Principal Deputy Assistant Attorney General Pettit,

I am writing as Acting Chairman of the National Council on Disability (NCD), an independent, bipartisan federal agency that is a statutorily mandated advisor to the President, Congress, and fellow federal agencies on matters affecting the lives of people with disabilities, to follow up on our June 29, 2026, request to meet regarding the Department of Justice’s (DOJ) June 18 opinion on the application of the Rehabilitation Act and Americans with Disabilities Act to state institutionalization of people with disabilities. We have concerns about the potential impacts of this opinion on the lives of Americans with disabilities, an example is the proposed resolution ¹ of Texas v. Kennedy. DOJ itself admits that its interpretation is “out of step” with the interpretation of the law by courts across the country. ²

Attached please find a brief paper summarizing and highlighting the longstanding, bipartisan history of efforts to integrate people with disabilities into their communities, the economic benefits of integration, and the significance of the Olmstead decision.

Respectfully,

Neil Romano
Acting Chairman

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The Olmstead Decision

For most of United States history, people with disabilities were largely invisible and lacked the civil rights and protections to enable them to be educated, employed, or access public spaces. Thousands were involuntarily institutionalized where they experienced isolation and abuse. The largest institution ³ in the United States was the Willowbrook State School, located in Staten Island, NY, described by one of its employees as a “human warehouse.” ⁴ At its peak enrollment, in 1968, Willowbrook housed more than 6,000 people, though it was only intended to house 4,000. ⁵ This overcrowding was a key factor in Senator Robert Kennedy calling the institution a “snake pit,” with residents “living in filth and dirt, their clothing in rags, in rooms less comfortable and cheerful than the cages in which we put animals in a zoo.” ⁶ A 1972 television exposé raised public awareness of the horrors at Willowbrook, ⁷ and helped spur the groundwork for the development of home and community-based services programs. ⁸

In 1981, President Ronald Reagan established the Home and Community Based Services (HCBS) waiver program to allow states to use Medicaid dollars to cover long-term services and supports like home health visits and personal care attendants in people’s homes. The program was later incorporated into Section 1915(c) of the Social Security Act, and it continues today. ⁹ HCBS services have continued to expand, including in this Administration. For example, the 2025 budget reconciliation bill created a new “1915(c)(11) waiver,” which is designed to provide HCBS services to individuals who do not need an institutional level of care. Today, HCBS waivers are one of the most common ways that people with disabilities receive the support they need to maintain community living. ¹⁰ In 2023, there were approximately 8.4 million HCBS users across the country. ¹¹

HCBS waiver programs have been shown to be cost-effective. For example, in 2023, research from Brandeis University’s Community Living Policy Center found that “average annual Medicaid [long-term services and supports] expenditures were $17,298 per person for individuals receiving HCBS and $54,462 for individuals in institutional settings.” ¹² NCD research has similarly found that states can save almost 50% per person by providing services in the community. ¹³

Following the establishment of HCBS waivers, the passage of the Americans with Disabilities Act of 1990 (ADA) was another watershed moment for community integration. The ADA “requires equal opportunity for individuals with disabilities, with broad coverage and setting clear, consistent, and enforceable standards prohibiting discrimination on the basis of disability.” ¹⁴ , ¹⁵ The ADA’s goals, which have shaped disability policy since their introduction in 1990, are to: “assure equality of opportunity, full participation, independent living, and economic self-sufficiency for people with disabilities.”¹⁶ , ¹⁷ Thanks to significant Republican support and leadership, including from Senators Orrin Hatch and Bob Dole, working alongside Equal Employment Opportunity Commission Chair Evan Kemp, Attorney General Richard Thornburgh, and others, the passage of the ADA was a bipartisan effort, which culminated in President George H.W. Bush signing the legislation into law. ¹⁸ , ¹⁹

The 1999 Supreme Court case Olmstead v. L.C. ²⁰ was instrumental in realizing the ADA’s goal of independent living. Plaintiffs Lois Curtis and Elaine Wilson, two Georgia residents with disabilities, filed suit for release from their institution, claiming that their placement in an institutional facility was inappropriate. In a 7-2 decision, the Supreme Court held that unnecessary institutionalization of individuals with disabilities violated the ADA. The Court said their answer to whether the ADA’s nondiscrimination protections required “placement of persons with mental disabilities in community settings rather than in institutions,” was a “qualified yes.” The Court’s qualifications were threefold: that “treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” ²¹ These qualifications ensured that the option for institutional care was not taken away from people with disabilities who needed it, but meant that such care became an option, rather than a predetermined outcome.

In 2001, just two years after the Olmstead decision, the Bush-Cheney Administration announced the New Freedom Initiative, which focused on increasing access to technology for people with disabilities, expanding educational opportunities for youth with disabilities, and promoting full integration into both the workplace and the community. ²²

Promoting full and rigorous enforcement of Olmstead was key to the Bush Administration’s community integration strategy. The initiative began with Executive Order 13217 (E.O 13217), which begins by stating, “The United States is committed to community-based alternatives for individuals with disabilities and recognizes that such services advance the best interests of Americans,” and “The United States seeks to ensure that America’s community-based programs effectively foster independence and participation in the community for Americans with disabilities.” E.O. 13217 required the Federal Government to act swiftly to assist States and localities to implement the Olmstead decision “to help ensure that all Americans have the opportunity to live close to their families and friends, to live more independently, to engage in productive employment, and to participate in community life.” ²³ E.O. 13217 also directed the Departments of Health and Human Services (HHS), Education, Labor, and Housing and Urban Development to work with the Social Security Administration to provide technical assistance to states on how to implement Olmstead in every corner of their communities. Three additional agencies joined this effort voluntarily.

In response to this Executive Order, NCD released research that investigated Olmstead’s implementation at the Federal and state levels. ²⁴ This research identified gaps in how existing implementation approaches helped Americans with disabilities access community living, and provided recommendations on addressing those gaps through targeted use of federal resources.

In 2005, President Bush authorized the development of the Money Follows the Person (MFP) program. MFP is “a Medicaid demonstration program that provides funding to states to enable more people to receive long-term services and supports in community settings, rather than institutions. ²⁵ Supporting MFP has been a bipartisan commitment for decades. The federal grant program assists individuals to transition from congregate settings to their homes and communities by helping states to remove barriers in state laws and budgets that promote institutional care.” ²⁶ In the 2007 update to the New Freedom Initiative, the Bush Administration continued to invest in the program. ²⁷ Congress included MFP in the Affordable Care Act in 2010, ²⁸ and MFP has continued to receive funding. ²⁹ Since 2008, over 127,000 individuals have transitioned to the community through MFP, ³⁰ and that number is poised to keep increasing, as Congress has funded MFP through the end of September 2027. ³¹

This investment in MFP across administrations is fiscally responsible, reducing the cost of services and preventing other healthcare costs. Under the MFP program, a national study found that average per-person costs were between 23 and 30 percent lower following transitions from institutions to the community, and state-specific evaluations have found similar cost savings. ³² Research has also shown that, among many other benefits, access to HCBS can result in decreased hospitalizations and emergency department visits, reducing overall healthcare expenditures. ³³

While policy developments like MFP and the New Freedom Initiative demonstrate a longstanding, nonpartisan commitment to community integration that has been cost effective and improved the lives of people with disabilities, DOJ’s June 18, 2026, slip opinion appears to reinterpret Olmstead and reverse decades of established policy promoting full participation and integration of people with disabilities into American society. We hope that this information provides you with a fuller context about the history of institutionalization, the importance of Olmstead and the integration regulations to our country’s community of people with disabilities, and the potential consequences of erasing that longstanding legal framework.