By Dan Christensen, FloridaBulldog.org
To little notice by the nation’s newspapers, the Trump administration recently moved to reverse decades of disability civil rights policy through a Justice Department opinion that signals an apparent sea change in how the executive branch plans to enforce the Americans with Disabilities Act (ADA).
The opinion would give states and federal agencies a powerful new weapon for limiting community-based care obligations under the ADA. An immediate test is Florida’s long-running case over medically fragile children in nursing homes, where the federal government now appears aligned with the state it once sued.
No law has changed, and the U.S. Supreme Court’s landmark disability-rights ruling known as Olmstead has not been overturned. But a June 18 memorandum opinion from the Justice Department’s Office of Legal Counsel (OLC), requested by a young lawyer in the White House Counsel’s office named Samuel Adkisson four months earlier, challenges the foundational principle of disability civil rights: the integration mandate, which has required states to provide services to people with severe disabilities in the most integrated setting appropriate for their needs.
The memo strikes at the ADA’s central guarantee, repeatedly upheld by courts across the country, that people with disabilities, including medically fragile children in Florida, cannot be warehoused in institutions simply because states resist providing care at home or in the community. If embraced by higher ups at Justice, it also threatens two watershed court rulings that found Florida violated the ADA through the unjustified segregation and institutionalization of people with disabilities, a form of discrimination.
What’s happened has sent shock waves through the ranks of the nation’s disability advocates.
“The OLC memo is a sharp pivot from DOJ’s longstanding construction of the ADA and Olmstead. It is harmful to real people and intellectually dishonest,” said Geron Gadd, senior attorney with the National Health Law Program.
“It’s an extraordinary change in position and shows that the government has gone from a lead protector of disability rights to a threat,” said Anne Raish, senior staff attorney with the Bazelon Center for Mental Health Law in Washington, D.C.
Among the first practical impacts of the sweeping reinterpretation is likely to be in the Justice Department’s 13-year-old enforcement action against Florida, which challenged the state’s widespread practice of unnecessarily placing medically vulnerable children in nursing homes rather than providing care in their homes.
Florida lost in the federal district court in West Palm Beach after a two-week trial in 2023. It lost again in a 2-1 panel decision after it appealed to the 11th Circuit in Atlanta. But now Florida wants the appellate court to hold a rare en banc rehearing before its 12 judges. If granted, that could change everything.
U.S. SWITCHING SIDES IN FLORIDA CASE?
Within days of the issuance of the OLC’s opinion, Civil Rights Division lawyers asked for and were granted a 45-day extension to assess the opinion “and its reasoning” before responding to Florida’s petition for the en banc hearing. The deadline for Justice’s response is Aug. 13.
The extension request, and others court papers filed recently by both Florida and the Justice Department, indicate that a curious thing is happening behind the scenes in Washington – that the U.S. is looking seriously at switching sides at this critical juncture in the case.
The OLC memorandum clearly recommends such a switch, which would align DOJ with Florida in its contention that the government’s authority to enforce the ADA is limited. But DOJ’s position in the case won’t be known until it files its response.
Because the memo was issued in response to a request from the White House, and issued quickly given the complexities involved, it suggests President Trump’s personal involvement. If so, the sweeping changes he’s made at Justice further suggest the department will do what the president wants.
Should Justice adopt the OLC’s recommendation, a 180-degree policy reversal, it would prevent federal agencies from aggressively enforcing the trial court’s system-wide injunction and upend the very framework of how courts are supposed to operate – as an adversary system where opposing parties make their case before a neutral judge or jury.
Soon there may be no adversary in U.S. v. Florida. And if that happens, and the full appellate court and its conservative majority undo the findings of its own panel and Judge Middlebrooks, the consequences for thousands of disabled individuals and their families would likely be disastrous.
Children with terrible afflictions like cerebral palsy or other profound developmental disabilities, congenital heart and chronic respiratory disorders, and severe epilepsy and neurological disorders would lose the right to receive the services they need to live at or near home.
ECHOES OF TRUMP V. IRS
What’s happening echoes another high-profile case involving a major shift in the government’s litigation position that was decided last week in Miami – President Donald J. Trump v. Internal Revenue Service.
That case began when the president, his sons Donald Jr. and Eric, and the Trump Organization LLC sued the government for $10 billion, alleging it failed to safeguard their tax returns after an agency contractor leaked them to the New York Times. Trump’s own Justice Department sought to settle the suit in perhaps the most controversial way imaginable: granting the Trump family immunity from federal tax audits and setting up a $1.8 billion “anti-weaponization” fund to pay his political allies.
But after 35 former federal judges wrote to the presiding judge to call the settlement a “fraud upon the court” and a “product of collusion,” U.S. District Judge Kathleen Williams voided the deal.
“This action was never about a party seeking judicial resolution of a legal issue or a factual dispute,” she wrote. “This was an attempt to use the Court to provide some legitimacy to an agreement to confer immunity to people and entities affiliated with the President and to earmark billions of dollars from taxpayers to redress grievances not defined in the law…In sum, the facts before this Court demonstrate there was never adverseness between the Parties; there was never a case or controversy; and there was never a question as to who would prevail.”
Veteran South Florida disability rights attorney Matthew Dietz sees a parallel in U.S. v. Florida.
“They are the same thing, frauds upon the court,” said Dietz, who previously helped litigate the Florida case until his clients exited it. “Whether it’s the state or the federal government attempting to get a rubber stamp, they are trying to get their wishes by using the court system without any person objecting, well other than the 35 judges. But there’s not going to be 35 judges on a case involving disabled children.”
The 39-page OLC memorandum opinion that has so churned the waters about what rights the disabled are entitled to was signed by Lanora Pettit, a Justice department sophomore with the title principal deputy assistant attorney general. Her previous experience was 5 ½ years under controversial Texas Attorney General Ken Paxton where she focused on border security, election integrity and public safety.
Her memo’s title is “Application of the Rehabilitation Act and Americans with Disabilities Act to State Institutionalization of Patients with Severe Mental Illness or Disabilities.” It says neither the Supreme Court nor the ADA enacted by Congress imposed an integration mandate on states, and that neither “require states to treat mentally disabled patients in the most integrated setting appropriate to their needs.”
The implications of Pettit’s reinterpretation are that institutional segregation is only to be deemed discriminatory if a state’s decision is entirely arbitrary and lacks any rational basis. It also gives states a strong legal defense to defund community programs and in-home caregiving for their most vulnerable residents.
The timing could not be more fortuitous for Florida, which first lost the case in 2023 when West Palm Beach U.S. District Judge Donald Middlebrooks ruled the state had violated Olmstead. Middlebrooks said Olmstead established key rights for disabled individuals, including their right to live and receive Medicaid services in their own communities rather than being segregated in institutions like nursing homes. He issued an injunction ordering the state to implement several remedies, including providing 90 percent of the private duty nursing hours prescribed by doctors and fixing Florida’s Medicaid program to ensure it complies with the ADA.
Florida next lost its appeal to the 11th Circuit in Atlanta which held on March 31 that the U.S. had the authority to sue Florida and that the state had violated Olmstead discrimination protections by warehousing people with disabilities in institutions. The panel required Florida to provide community-based services when appropriate and sought.
OLC MEMO ‘UNDERCUTS’ COURT RULING
The OLC memorandum was issued despite an extensive pre-suit investigation by Justice’s Civil Rights Division that found Florida was systemically violating the ADA by needlessly confining children with medically complex conditions in nursing homes. It also came after a decade of successful enforcement litigation against Florida that court papers, and Judge Middlebrooks, say yielded significant changes in services that improved lives.
Florida Attorney General James Uthmeier’s office, not the Justice Department, announced the existence of the OLC memo to the 11th Circuit by filing a copy of it just 12 days after it was released. “OLC’s opinion thus undercuts the lynchpin of the panel majority’s decision,” says an accompanying letter written by Florida’s Deputy Solicitor General Christine Pratt.
Georgia and Alabama, also in the 11th’s jurisdiction, have now joined Florida in seeking en banc review. Their joint amicus, or friend of the court brief argues that the appellate panel’s ruling against Florida undermines federalism and risks allowing heavy-handed overreach by the federal government into state programs.
“The panel’s reasoning is not limited to the Medicaid context: It threatens to reach any state program that serves people with disabilities,” the brief says. “In sum, the panel’s opinion significantly expands federal enforcement power beyond anything envisioned in Olmstead.”
Even Disability Rights Florida (DRF), the states federally funded designated protection and advocacy system for people with disabilities, has backed away from supporting the U.S.’s initial appellate victory. Instead of defending the panel’s decision, it simply wants the case to end.
DRF is not a party to the lawsuit, but it recently submitted an amicus brief asking Judge Middlebrooks to terminate the injunction he issued against Florida in 2023, saying Florida has made “substantial and durable progress” in complying. It submitted no proof, however.
Still, last week the DRF issued a statement condemning the OLC’s opinion and affirming “both the right of individuals to live in their communities and fully participate in society, as well as the value of their contributions.”
Florida, which is paying a pair of high-powered Florida law firms – GrayRobinson and Shutts & Bowen – to represent it, has asked Middlebrooks to deny DRF’s motion as “a transparent attempt to thwart ongoing appellate proceedings… DRF’s only interest in termination of the injunction is to protect the panel decision from further appellate review.”
That is true, as DRF’s website says. But disability experts like attorney Dietz, former director of the Disability Inclusion and Advocacy Law Clinic at Nova Southeastern University, aren’t happy about what’s happening.
“There really is no advocacy group in the state of Florida that is standing up saying no, they can’t do this,” Dietz said. “There were maybe some improvements by Florida, but not nearly what they’re claiming, and there’s no monitor to ensure that what they’re saying is even correct.
“There are still many kids that are stuck in institutions where they just have a nurse watching them without any contact with others whatsoever,” he said. “I’ve heard anecdotally that there are as many children in nursing homes today as before. So it really hasn’t changed that much.”
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