DOJ memo stokes fear among disability advocates of a return to institutionalization

The Justice Department did not respond to an NPR request that it explain its position as well as why it is changing course after decades of legal and bipartisan support for community services.

What the law says

This new memo calls into question what legal experts say has been settled law for decades.

Both Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act have long been interpreted to require that states provide services to Americans with disabilities in the most integrated setting appropriate. In short: Institutionalization should be a last resort.

In 1999, a case testing these protections made it to the U.S. Supreme Court. In Olmstead v. L.C., two women with mental disabilities sued Georgia, arguing that the state had failed its obligation to provide services that would allow them to return to their communities and that it had continued to institutionalize the women instead, thus violating their civil rights.

The court agreed that states have a legal responsibility to provide support that integrates disabled Americans into their communities, and for nearly three decades, courts across the country have embraced that interpretation.

By 2023, 8.4 million Americans were receiving home- and community-based services through Medicaid.

The new memo, written by Lanora Pettit, principal deputy assistant attorney general in the Office of Legal Counsel, argues that, while federal law prohibits discrimination on the basis of disability, it does not impose an "integration mandate" on states to provide these community services.

What's more, the memo argues, the Supreme Court's Olmstead decision "held only that a state cannot institutionalize such patients without justification."

But, the memo adds: "What counts as adequate justification remains an open question."

At one point, Pettit acknowledges the novelty of this reading: "We recognize that this view of Olmstead's import is out of step with the common understanding of that decision within the federal courts."

Why it matters

"The United States government since 1977 has taken the position that [federal law] includes an integration mandate that requires services to be provided in the most integrated setting appropriate," says professor Barkoff, who worked in the Obama Justice Department leading its Olmstead enforcement efforts.

For decades, Barkoff adds, both Republican and Democratic administrations, including the first Trump administration, proactively enforced federal disability law and repeatedly brought actions against states that relied too heavily on care in large, segregated settings that the law says should be a last resort.

The courts and Congress decided institutionalization should be a last resort because people's personal liberty is at stake, says Jennifer Mathis of the Bazelon Center for Mental Health Law: "Who you can see, when you can go out, when you eat, what you eat. Who your roommate is, who you talk to, what your environment is. And for so many people who are institutionalized, their life is literally a hallway. I have been on those hallways with people. It is deadening."

This memo signifies a dramatic change in the U.S. government's official position.

"We are incredibly concerned that the message coming from the federal government in this memo is, 'It's fine to go back to the days that people were placed in institutions,' even though they can be served in the community, even though they want to be and even though it's more cost-effective," Barkoff says.

The timing matters too. The memo arrives as a new case, Texas v. Kennedy, is making its way through the courts. The case, brought by Texas and several other states, is essentially a fresh challenge to the integration mandate on states.

With this memo, the federal government is aligning itself with the plaintiffs in the case. Though Mathis cautions: "It's important to understand that [this memo] is not the law, that the Justice Department can't change the law. Congress makes laws, not agencies."

For now, it's not clear what the immediate impact of the memo will be, though it seems the Justice Department will stop its enforcement efforts around Olmstead.

Why now?

The Justice Department memo appears to be the latest salvo in a broader effort that began on July 24, 2025, when President Trump issued an executive order intended to make it easier for state and local governments to police homelessness.

"Endemic vagrancy, disorderly behavior, sudden confrontations, and violent attacks have made our cities unsafe," the order argues, going on to claim that "the overwhelming majority of these individuals are addicted to drugs, have a mental health condition, or both."

The administration's solution: Involuntary institutionalization. "Shifting homeless individuals into long-term institutional settings for humane treatment through the appropriate use of civil commitment will restore public order," the order reads.

In a 2023 campaign video, President Trump himself pledged: "For those who are severely mentally ill and deeply disturbed, we will bring them back to mental institutions, where they belong."

A conservative Texas think tank, the Cicero Institute, has been a driving force behind recent efforts to forcefully combat homelessness, including through institutionalization.

One serious obstacle to large-scale institutionalization of the unhoused is federal disability law that has long required home- or community-based services instead, when appropriate. A footnote in the Justice Department's new memo appears to suggest these laws have contributed to the rise in chronic homelessness.

To the contrary, Barkoff says, the Olmstead decision "has been one of the most effective tools in providing services and stable housing to people who are homeless."

NPR has previously reported that the Trump administration's push for institutionalization faces another big obstacle: An acute shortage of beds at these specialized facilities.

The memo arrives as Republicans have also passed deep cuts to Medicaid, which is the primary source of funding for community-based services many disabled Americans rely on.

Multiple legal experts tell NPR that, in response to last year's One Big Beautiful Bill Act, states must now make deep cuts to a whole range of services previously funded by Medicaid. The Trump administration's memo, they add, essentially gives states permission to cut these localized supports and, instead, rely on institutionalization – even though research shows the latter is considerably more expensive for states to provide.

This comes as disability advocates were already pushing back against the Trump administration's announcement on Tuesday that it would move federal administration of special education programs out of the Department of Education and into the Department of Health and Human Services – a change that, as with the new Justice Department memo, raised fears of a rollback of the enforcement of longstanding civil rights protections.