COFAR blog

A new legal memorandum from the U.S. Department of Justice signals a change in philosophy in the federal government toward supporting Intermediate Care Facilities (ICFs) for individuals with intellectual and developmental disabilities (I/DD), such as the Wrentham and Hogan centers in Massachusetts.

The memo, which was issued on June 18 by the DOJ’s Office of Legal Counsel, has ignited a firestorm of dissent among disability advocates who support the closures of ICFs. It has even generated concern among some supporters of ICFs who say the memo may nevertheless have gone too far in preventing community-based placements.

Overall, the DOJ memo appears to validate what we have said for years, which is that the 1999 Olmstead v. L.C. U.S. Supreme Court decision did not order states to close ICFs and place everyone in the community-based system of residential care.

We have argued that eligible individuals with I/DD have a federal right to ICF care; yet the state Department of Developmental Services (DDS) has blocked almost all admissions in recent years to the Wrentham and Hogan centers. As a result, those facilities are continuing to lose residents and are on a closure trajectory.

As we have maintained, DDS and other opponents of ICF care have misrepresented the Olmstead decision as ordering an end to all institutional care.

The DOJ memo argues that neither Title II of the federal Americans with Disabilities Act (ADA) nor Olmstead created or upheld a community “integration mandate,” and that Olmstead held that institutionalization is not discriminatory if it is justified by factors such as the individual’s needs and resource limitations in the community.

As the DOJ memo stated in its interpretation of Olmstead,

Before committing a patient with mental disabilities to an institution—or upon request for a transfer by a patient currently institutionalized—states should assess the appropriateness and feasibility of both institutional and community-based treatment options and make a decision based on a non-arbitrary rationale. (Our emphasis)

We support both the ICFs and the community-based system

We agree with the following statement made by our partner organization, The Saving Wrentham and Hogan Alliance, in a recent analysis of the DOJ memo:

We do not believe that congregate care is inherently superior to community-based living, or that families who choose Home and Community Based Services (HCBS) are making a wrong choice. We believe in choice — genuine, funded, legally secured choice — and we believe that choice is the mechanism through which quality in any service system is actually produced.

The problem is that Massachusetts and other states, inappropriately citing Olmstead, have been letting ICFs like Wrentham and Hogan slowly die by attrition. This threatens to eliminate a critical backstop for care in the overall DDS system.

The DOJ memo took note of the potential danger in eliminating congregate care by highlighting a claim by Justice Anthony Kennedy of a “dark side of deinstitutionalization.” Kennedy made the claim in a concurring opinion in Olmstead in which he wrote that “patients prematurely released from in-patient care frequently end up homeless or even incarcerated.”

In addition, we think the DOJ memo correctly criticized a previous longstanding practice of the Justice Department’s Civil Rights Division of using “its integration mandate and Olmstead to pressure states into discharging individuals from mental-health institutions.” We have long raised similar concerns. As we said in 2015, “The DOJ seems to have closed its eyes to the realities on the ground in continuing to file lawsuits around the country to close state-run care facilities.”

More recently, in December 2024, we wrote to U.S. Health and Human Services Secretary Robert F. Kennedy Jr., asking whether he would commit “to changing the direction in which HHS (the Department of Health and Human Services) and the DOJ have long been headed in furthering the runaway privatization of human services and the closures of state-run services for people with I/DD, including Intermediate Care Facilities.”

Concerns about the DOJ memo

Some advocates have argued that the DOJ memo has gone too far in its support of institutional care by interpreting Olmstead in a way that may make it more difficult for people with I/DD to access community services. It has been suggested that the memo has set an overly high bar for community services because the memo interprets Olmstead as stating that institutional care is discriminatory only if it is solely based on a person’s disability and is not necessarily discriminatory if it is based on the person’s needs.

As we understand it, the concern is that the DOJ is now interpreting Olmstead in a way that could make it more likely that persons with certain needs will be placed in institutions even if they want to be in the community.

At least some of that concern centers around the DOJ memo’s recommendation to rescind a regulation under the ADA which requires states to move institutionalized patients to “the most integrated setting appropriate to the needs of qualified individuals with disabilities.” Many advocates are concerned that rescinding this regulation will remove any impetus a state may have to place clients with I/DD in integrated settings.

While we share that concern, we would note that the DOJ memo states, “Before committing a patient with mental disabilities to an institution—or upon request for a transfer by a patient currently institutionalized—states should assess the appropriateness and feasibility of both institutional and community-based treatment options and make a decision based on a non-arbitrary rationale.” (Our emphasis)

This statement in the memo appears to demonstrate an even-handedness in assessing the appropriateness of institutional and community-based care.

The three-part test

We do recognize that there is some additional disagreement among advocates with the DOJ memo’s conclusion that Olmstead did not establish clear criteria for what justifies institutional versus community placement. There appears to be legitimate debate over that claim in the memo — particularly over the memo’s analysis of the three-part test suggested by Justice Ruth Bader Ginsburg in Olmstead for requiring placement of an individual in the community.

Ginsburg wrote that community placement is required when (1) an individual’s “treatment professionals determine that such placement is appropriate,” (2) that individual “do[es] not oppose such treatment,” and (3) “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.”

The DOJ memo stated that Ginsburg’s three-part test was approved only by a plurality and not a majority of the Court, and “thus, Olmstead did not conclusively resolve which justifications a state may offer in defense of its treatment choices—it held only that institutionalization must be ‘justified.’”

While many advocates contend the ADA regulations do conclusively establish the justifications needed for institutional care, we would note that the DOJ memo does go on to state that a majority of the Court did agree that the three-part test is “relevant” in justifying institutional placement. As the memo stated:

The majority opinion (in Olmstead) certainly references “the reasonable assessments of [a state’s] professionals” and patient “desire” as relevant to the question of whether institutionalization—that is, the provision of care in an in-patient setting, typically over the medium or long term—is justified in a given case…But not even the Olmstead plurality held that Title II makes maximal integration obligatory based on these factors alone.

The DOJ memo further stated that,

Indeed, the majority explained that it offered these factors (three-part test) to ’emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings.’ Read in this light, the opinion permits treatment in an institution based on professional assessment and patient consent. It does not say that these factors are the only acceptable justifications.

A recognition of history

The proponents of complete deinstitutionalization are overlooking the history of residential care in Massachusetts and throughout the country of people with I/DD since the 1980s. In particular, those proponents are missing the role played in Massachusetts by the late U.S. District Court Judge Joseph Tauro in overseeing the landmark litigation — Ricci v. Okin — which brought about significant improvements in the care and conditions at those facilities.

Tauro noted in his 1993 disengagement order from the case that both the major capital and staffing improvements to the facilities and a program of community placements  had “taken people with mental retardation from the snake pit, human warehouse environment of two decades ago, to the point where Massachusetts now has a system of care and habilitation that is probably second to none anywhere in the world.”

Ironically, it is the community system has now become the new warehouse system for thousands of people with I/DD.  We hear countless accounts of abuse, neglect, and poor conditions in group homes. This is happening while the executives of corporate residential provider agencies make exorbitant salaries and pay their direct care workers low wages and provide them with inadequate training.

The main danger isn’t that people with I/DD will be forced into institutional care, but that the community-based system has never had the staffing, expertise, or oversight necessary to replace the institutional system entirely. As we have seen in case after case, group homes cannot handle clients with the most severe and profound levels of I/DD and the most complex medical problems. That is why the ICFs remain so critically important.

In the final analysis, we would agree that we shouldn’t put all of our faith and focus on the DOJ memo in continuing to advocate for the preservation of ICFs. But we can use the memo’s conclusion as one more argument in our quiver in support of the assertion that there is a right to ICF-level care in Massachusetts and elsewhere.

Those arguments asserting that right can also be found in the Medicaid statute (42 U.S.C., § 1396a(a) (8)), which states that if a state includes an ICF in its Medicaid Plan, it must provide that service promptly to all eligible individuals. In addition, the right to ICF care is found in the Boulet v. Cellucci federal court decision (107 F. Supp. 2d 61 (D. Mass. 2000), and in the Medicaid regulations, 42 C.F.R. § 441.302(d), which explicitly require the choice of either institutional or HCBS care.

All of these are arguments we can bring if we do file or join in a lawsuit or as we continue to make our case to the Legislature that ICFs should be preserved and open their doors to persons who need and desire that level of care.