Commentary
Commentaries reflect analysis and perspective on issues affecting our communities and are intended to encourage discussion and understanding of important public policy issues.
A recent opinion issued by the U.S. Department of Justice has renewed discussion about Home and Community-Based Services (HCBS), the Americans with Disabilities Act (ADA), and the continuing impact of the U.S. Supreme Court’s 1999 Olmstead v. L.C. decision.
The opinion addresses whether federal law requires states to provide community-based services under legal principles associated with Olmstead. While the legal implications of the opinion will likely be debated for some time, it also provides an opportunity to revisit the history of Home and Community-Based Services and the role they have played in disability policy over the past four decades.
The modern Home and Community-Based Services system traces its roots to the early 1980s. In 1981, Congress created the Medicaid Home and Community-Based Services waiver program through Section 1915(c) of the Social Security Act, giving states the option of providing community-based alternatives to institutional care.
The legislation came at a time when families, disability advocates, service providers, healthcare professionals, and policymakers were increasingly looking for alternatives to traditional institutional models of long-term care. Over time, states developed a variety of waiver programs and other service models that became part of today’s broader Home and Community-Based Services system.
The growth of community-based services occurred alongside broader changes in disability policy. During the latter half of the twentieth century, disability rights organizations, self-advocates, families, and policymakers were engaged in discussions about education, employment, independent living, and community integration for individuals with disabilities.
Those discussions later intersected with the Americans with Disabilities Act and, ultimately, the Supreme Court’s decision in Olmstead v. L.C.
In Olmstead, the Court held that, under certain circumstances, unnecessary institutionalization of individuals with disabilities could violate the ADA. The decision became a significant milestone in disability law and influenced later discussions about how services should be delivered and how states could meet their obligations under federal law.
In the years that followed, federal and state governments continued to expand and refine Home and Community-Based Services programs. Medicaid-funded waiver programs became a major source of support for many individuals with disabilities, with services provided in homes, family settings, group residences, and other community environments.
As those programs evolved, they became part of a broader system of long-term services and supports. Children receiving services grew into adults. New families entered the system. States developed different approaches to administering programs, funding services, and balancing community-based supports with other forms of long-term care.
Today, Home and Community-Based Services are an established component of disability policy in many states. For more than four decades, HCBS programs have been part of the broader network of long-term services and supports funded through Medicaid and administered by states in partnership with the federal government.
In addition to legal and policy considerations, discussions about Home and Community-Based Services have often included questions about financing and long-term sustainability. Because Medicaid funds a substantial portion of both institutional and community-based services, policymakers have frequently examined the costs associated with different approaches to delivering long-term supports while balancing budgetary and service-delivery considerations.
The recent Department of Justice opinion has renewed discussion about the relationship between the ADA, the Olmstead decision, and Home and Community-Based Services. It also raises broader questions about the respective roles of federal and state governments in shaping disability policy.
If federal law does not require states to provide Home and Community-Based Services under certain circumstances, questions may arise about the extent to which states would continue to support, expand, modify, or reduce community-based service programs. The answer would likely vary from state to state, but such discussions could have significant implications for individuals with disabilities and their families who rely on Medicaid-funded services and supports.
The broader policy debate may ultimately extend beyond legal interpretations of the ADA and Olmstead. It may also raise practical questions about the future of services relied upon by many individuals with disabilities and their families. Whether states maintain existing programs, expand them, modify them, or pursue other approaches remains uncertain.
The debate is not simply about whether services will be provided. Individuals with significant disabilities will continue to require long-term supports, and states will continue to face the responsibility of addressing those needs through publicly funded programs. As a result, discussions prompted by the DOJ opinion may ultimately center on the structure and delivery of services rather than the existence of need itself.
At the same time, policymakers will continue to face the challenge of meeting the long-term support needs of individuals with significant disabilities. Those needs have historically been addressed through a variety of approaches, including institutional care, community-based programs, family supports, group living arrangements, and other service models.
How those needs are met has varied over time and across states. The recent Department of Justice opinion may encourage renewed discussion about how disability services should be structured, what obligations federal law imposes on states, and how long-term services and supports can best be delivered in the future.
The answers to those questions are unlikely to emerge quickly. Legal interpretations, policy priorities, budget considerations, and practical service-delivery concerns will all play a role in shaping future discussions.
The DOJ opinion raises legal questions, but it also raises practical questions about the future of services on which many individuals with disabilities currently rely. Regardless of how the legal questions are resolved, the need for long-term services and supports will remain. The central policy question may not be whether services are provided, but how states and the federal government choose to organize, finance, and deliver them in the years ahead.
How states, policymakers, providers, and families respond to those questions may become an important part of the next chapter in disability policy.
Readers interested in learning more can review the original Department of Justice opinion:
https://www.justice.gov/olc/media/1446701/dl
Information about the U.S. Supreme Court’s Olmstead v. L.C. decision is available at:
https://supreme.justia.com/cases/federal/us/527/581/
The federal Administration for Community Living provides information about Home and Community-Based Services:
https://acl.gov/programs/hcbs-settings-rule
Additional information about the history of the Medicaid Home and Community-Based Services waiver program is available through the National Library of Medicine:
https://pmc.ncbi.nlm.nih.gov/articles/PMC4194662
Additional information about Medicaid and long-term disability services is available through KFF, formerly known as the Kaiser Family Foundation, an independent nonprofit organization that researches health policy and Medicaid issues:
https://www.kff.org/medicaid/
About the Author: Karen Lagrange Cox writes on issues affecting local communities and public policy. She has written about and been involved in disability-related issues for many years.
