Public Health Law Watch
An initiative of the George Consortium

Public Health Law Watch blog


Threats to Medicaid and Community Integration for People with Disabilities

By Mary Crossley

As we enter the second year of the Trump administration, Medicaid remains in the cross hairs of conservatives in Congress and the administration. The repeated efforts in 2017 to reduce the program’s funding and change its structure, however, revealed the breadth and depth of public support the program enjoys. People with disabilities protested, putting their bodies on the line to express their outrage over proposed cuts that would threaten their access to services that permit them to live in the community rather than institutions. Along with others’, their protests helped defeat Republican proposals in 2017, but similar battles likely lie ahead.

In the recently published “Community Integration of People with Disability: Can Olmstead Protect Against Retrenchment?”,  I explain how the Supreme Court’s holding in Olmstead v. L.C. ex rel. Zimring, combined with changes to Medicaid that permit states to devote funding to home- and community-based services (HCBS),  have contributed to meaningful state progress in enabling people with disabilities to live in the community. The article also considers the extent to which Olmstead could act as a check on a potential retrenchment of support for HCBS if states were to face severe reductions in federal funding for Medicaid. Although states proposing to cut their HCBS programs would likely raise the ADA’s “fundamental alteration” defense and assert that Olmstead recognizes the relevance of budgetary constraints to state decision making, I argue that states should not succeed with a fundamental alteration defense if disabled plaintiffs are suing to forestall cuts to existing HCBS programs and maintain the status quo. In short, Olmstead should provide a check against states’ backsliding in their support for integrating people with disabilities, at least in theory. But people with disabilities probably shouldn’t think that their protesting days are over just yet….

Read the article in Laws.

Elisabeth Ryan