Document Type

Article

Publication Date

2017

Abstract

Since the passage of the Americans with Disabilities Act (ADA) in 1990, states have made significant progress in enabling Americans with disabilities to live in their communities, rather than institutions. That progress reflects the combined effect of the Supreme Court’s holding in Olmstead v. L.C. ex rel. Zimring, that states’ failure to provide services to disabled persons in the community may violate the ADA, and amendments to Medicaid that permit states to devote funding to home and community-based services (HCBS). This article considers whether Olmstead and its progeny could act as a check on a potential retrenchment of states’ support for HCBS in the event that states face severe reductions in federal funding for Medicaid, as was threatened by Republican efforts in 2017 to “repeal and replace” the Affordable Care Act and to restructure Medicaid. The article concludes that Olmstead provides a strong basis for challenging a state’s elimination or severe curtailment of existing HCBS programs, but that the fact-specific nature of a state’s likely “fundamental alteration” defense precludes predicting the outcome of such a challenge. Despite this legal uncertainty, protests mounted by people with disabilities, in which they demanded freedom from institutionalization, may have helped cement the idea that community integration is a civil right in the public’s mind.

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