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Since the inception of Together for Choice ten years ago, it has been our view that many disability advocates and government policymakers have misread the Supreme Court’s Olmstead decision and the Americans with Disabilities Act. We have consistently advocated that Olmstead and the ADA are first and foremost about choice. Properly read, neither Olmstead nor the ADA mandate that every individual with an intellectual disability live in a small group home or in their own home. Such a “one-size-fits-all” solution is bad law and bad policy.
Over a year ago, we wrote the Attorney General and the Deputy Attorney General for the Civil Rights Division asking them to reverse course on DOJ’s position that congregate residential and vocational settings for individuals with intellectual disabilities are discriminatory. We asked DOJ to affirm that individuals with intellectual disabilities have the right to choose to live in intermediate care facilities or on campus settings or farmsteads and in other intentional communities. [Click to read TFC's Letter to DOJ] We are gratified that the DOJ agrees with TFC.
We are hopeful that the DOJ Memorandum Opinion will lead to a broader array of residential and vocational options. Increased options will enhance the ability of individuals with intellectual disabilities and their families to choose the settings that best meet their needs and preferences. TFC has always supported and will continue to support the ability of individuals to choose to live in small group homes or their own homes. For many people with intellectual disabilities such settings work well. However, there are a significant number of individuals with intellectual disabilities, especially those with complex medical or behavioral challenges, who need and desire a more congregate setting. That choice must be respected. We believe the DOJ Memorandum Opinion is a long overdue step in that direction.
The Memorandum Opinion does not spell the end of home and community-based settings. The Opinion makes clear that unjustified institutionalization remains unlawful. In addition, home and community-based settings enjoy broad support within the disabilities community and among federal and state policymakers.
The DOJ Memorandum Opinion does raise serious questions about the validity of the Settings Rule. For over a year, Together for Choice has advocated for rescission of the Settings Rule under Executive Order 14219. We have pointed out that the Settings Rule limits residential and vocational options and reduces choice. We have also argued that CMS lacked the legal authority to adopt the Settings Rule. The DOJ Memorandum Opinion strongly supports our view on the Settings Rule. We will continue to push for its rescission.
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Media Contact:
Scott Mendel
Chairperson,Together for Choice
scott.mendel@klgates.com
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