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The Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999), made headlines this summer when the U.S. Department of Justice’s Office of Legal Counsel (OLC) issued a formal memorandum reinterpreting Olmstead’s landmark holding. For more than 25 years, Olmstead has served as a vital civil rights tool for older adults and people with disabilities to prevent forced placement in nursing homes or other facilities, guaranteeing their right to receive long-term care and daily assistance in inclusive, community-based settings.
In Olmstead, Lois Curtis and Elaine Wilson challenged their continued institutionalization in a psychiatric hospital under Title II of the Americans with Disabilities Act (ADA), arguing that the state discriminated against them by confining them to an institution even though they could be appropriately served in the community. 527 U.S. at 581-82. Title II’s integration mandate requires public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The Supreme Court held that unjustified institutionalization constitutes disability discrimination and that states must provide services in community settings when (1) community placement is appropriate; (2) the individual does not oppose community placement; and (3) the placement can be reasonably accommodated. See Olmstead, 527 U.S. at 592. Since 1999, the Olmstead decision has served as the foundation for efforts to expand access to community-based services for people with disabilities. Today, the federal courts are divided over whether those protections also extend to individuals who have not yet been institutionalized but face a serious risk of unnecessary institutionalization.
OLC’s memorandum, published on June 18, 2026, rebuked the Supreme Court’s holding. OLC concluded that the ADA does not require states to provide services in the most integrated setting appropriate. Instead, OLC reinterpreted Olmstead to mean that states may not unnecessarily institutionalize people with disabilities “without adequate justification,” rejecting Title II’s integration mandate. But OLC’s memorandum does not undo Olmstead or its progeny; decades of District Court and Circuit Court precedent remain good law. And OLC’s memorandum is not binding on any court. Nevertheless, this memorandum will guide Executive Branch agencies in their actions, meaning the era of the Justice Department enforcing and prioritizing Olmstead’s integration mandate is over.
Despite OLC’s memorandum, attorneys and advocates throughout the U.S. continue to rely on Olmstead to expand access to community-based services for older adults and people with disabilities. Consistent with these efforts, AARP Foundation regularly litigates Olmstead cases to protect older adults’ rights to live independently in their communities and avoid unnecessary institutionalization. For example, in Brown v. District of Columbia, AARP Foundation, along with co-counsel, proved at trial that the District of Columbia’s failure to help people with disabilities transfer from nursing facilities to community living violates Olmstead. 761 F. Supp. 3d 34 (D.D.C. 2024). We also continue to enforce our winning verdict to ensure that the
District will regularly inform all nursing facility residents about options for living in the community, find out where residents would prefer to live, and help anyone who wants to leave a nursing facility obtain necessary services in the community.
Until recently, courts routinely held that Olmstead applies not only to people who already live in nursing facilities but also to people who live in the community and are at risk of institutionalization due to a lack of community-based services. AARP Foundation’s ongoing Fitzmorris litigation, for example, alleges that the lack of reliable community-based services provided under New Hampshire’s Choices for Independence program places the program’s participants at an unjustified risk of living in a nursing facility. Fitzmorris v. N.H. Dep’t of Health & Human Servs., No. 21-cv-00025 (D.N.H. Jan. 11, 2021). However, the U.S. Court of Appeals for the Fifth Circuit departed from this approach in United States v. Mississippi, where the court rejected the viability of “at risk” of institutionalization claims under Olmstead, creating a circuit split. 82 F.4th 387, 398 (5th Cir. 2023).
In March 2026, this circuit split deepened when the Eleventh Circuit upheld the viability of “at risk” Olmstead cases in United States v. Florida, increasing the likelihood that the Supreme Court will be asked to resolve this question. 172 F.4th 1201, 1225 (11th Cir. 2026). In that case, the court held that Florida violated Title II of the ADA by failing to provide adequate community-based services to a class of children with complex medical needs, placing them at risk of unnecessary institutionalization. Id. at 1225-27. Rejecting the state’s argument that only individuals who have already been institutionalized may pursue claims under Olmstead, the court held that Title II also protects individuals who face substantial risk of institutionalization. Id. The court also found that the children could be appropriately served in the community, that the state did not oppose community-based care, and that the U.S. had proposed reasonable modifications to the state’s programs that would prevent unnecessary institutionalization and facilitate the transition of institutionalized children to more integrated settings. Id.
The Eleventh Circuit, in reaching that conclusion, expressly rejected the Fifth Circuit’s contrary reasoning in United States v. Mississippi, which held that claims based solely on the risk of institutionalization are not available under Olmstead. See Florida, 172 F.4th at 1226. The Eleventh Circuit reasoned that “a family need not wait until a child is institutionalized to sue for prospective relief to prevent Title II discrimination under Olmstead when that family can prove substantial risk of imminent harm.” Id. at 1227. The court further observed that every other circuit court considering the issue, including the Second, Fourth, Sixth, Seventh, Ninth, and Tenth Circuits, has recognized “at risk” of institutionalization claims under Title II of the ADA. Id. at 1225 (citing Davis v. Shah, 821 F.3d 231, 262-63 (2d Cir. 2016); Pashby v. Delia, 709 F.3d 307, 321-22 (4th Cir. 2013); Waskul v. Washtenaw Cnty. Mental Health, 979 F.3d 426, 460-61 (6th Cir. 2020); Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 614 (7th Cir. 2004); M.R. v. Dreyfus, 663 F.3d 1100, 1117-18 (9th Cir. 2011), amended and superseded, 697 F.3d 706, 734-35 (9th Cir. 2012) (still recognizing “at risk” of institutionalization claim); Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181-82 (10th Cir. 2003). The Eleventh Circuit likewise rejected the Fifth Circuit’s view that such claims were unavailable because the ADA does not expressly refer to the risk of institutionalization, explaining that plaintiffs may seek prospective relief to prevent imminent violations of their statutory rights. See Florida, 172 F.4th at 1226-27.
2026 Supreme Court Preview
The Supreme Court often hears cases affecting the lives of people over 50. Read our review of key cases coming before the Court this year and likely to come in the future.
Although one judge dissented in United States v. Florida, concluding that Olmstead does not encompass claims based on the risk of institutionalization, the Eleventh Circuit’s decision further entrenched the circuit split. See Florida, 172 F.4th at 1250-63 (Brasher, J., dissenting). With every circuit to address the issue except the Fifth Circuit recognizing “at risk” claims, the Florida decision substantially increases the likelihood that the Supreme Court will be asked to resolve the conflict. The outcome of this circuit split could greatly affect the rights of older adults to live where and how they choose, with the services they need, rather than being forced into unnecessary institutional settings.
Rebecca Rodgers, RRodgers@aarp.org
Sam Wehrle, SWehrle@aarp.org
2026 Supreme Court Preview
The Supreme Court often hears cases affecting the lives of people over 50. Read our review of key cases coming before the Court this year and likely to come in the future.