AARP Foundation Attorneys Help Defend the Right to Live in Community

AARP Foundation attorneys play a vital role in protecting 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. Those rights are based on a Supreme Court ruling from 1999 known as the Olmstead decision, and defending those rights is at the heart of Brown v. District of Columbia, a landmark case in which AARP Foundation’s litigation team helped challenge the District’s failure to provide meaningful pathways from nursing facilities to community-based care. (Vietress Bacon, pictured above, was an early beneficiary of the case and was able to move into her own home.)

This story, co-authored by AARP Foundation Vice President for Litigation Kelly Bagby, was originally published by the American Bar Association and appears here with their permission.

ABA Journal of Affordable Housing & Community Development Law: Brown v. District of Columbia

By Kelly R. Bagby, David Ahmadi, and Brad Bainum

Journal of Affordable Housing & Community Development Law, Vol. 34 No. 2

April 30, 2026

Individuals with disabilities continue to fight for equal participation and against unwarranted and illegal segregation in institutions. Brown v. District of Columbia is a landmark and long-running civil rights case that addresses the rights of people with disabilities to receive care in their communities where they dearly want to live, rather than languishing in nursing facilities. [1]  The members of the Brown class are three to four thousand nursing facility residents who challenged the District of Columbia (“the District” or D.C.) for its systemic failure to comply with its obligations under the Americans with Disabilities Act (ADA) and the Rehabilitation Act, as interpreted by the Supreme Court in Olmstead v. LC ex rel. Zimring. [2]  Plaintiffs filed their complaint in 2010, and the class was certified in 2014. The District sought interlocutory review in the D.C. Circuit Court of Appeals, but class certification was upheld. [3]

Members of the plaintiff class occupy some of the nearly 2000 beds located in seventeen nursing facilities within the District, and thousands more are placed in out-of-state nursing facilities in neighboring Maryland, away from their families and communities. All class members are people with disabilities who are living in private nursing facilities funded by D.C. Medicaid. Class members have been required to surrender all of their income to the nursing facility (whether from pensions or social security benefits) and receive only a small stipend of $100 per month to buy essentials like shampoo and deodorant.

The lawsuit arose because class members are not informed about D.C.’s existing community-based care alternatives that would enable them to live and get the care they choose outside of a nursing facility. Further, the community transition process is complex, and class members are not adequately supported through the challenges of securing the rental assistance and documentation that they need to apply for housing; applying for home and community-based waiver services to deliver the home care they need; and rebuilding their lives outside of a nursing facility, such as finding primary care physicians, securing adaptive equipment, obtaining furniture, and securing other household items.

Bureaucratic barriers are especially daunting for people who have been institutionalized and segregated from their community. Plaintiffs brought this lawsuit to remove government-controlled barriers that impede them from returning to their communities in accordance with Olmstead. They asked that the District be ordered to make reasonable accommodations to create and maintain systems to ensure that people in Medicaid-funded nursing facilities have the transition assistance necessary to end their unnecessary and unlawful segregation.

 Title II is construed alongside Congress’s codified “[f]indings and purpose” that the ADA “is intended ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against people with disabilities.’” [5]

To effectuate that mandate, Congress tasked the United States Attorney General with promulgating regulations. The resultant Department of Justice (DOJ) regulations, inter alia prohibit state and local governments from administering their programs and services in a manner that results in discrimination against people with disabilities. The regulations affirmatively require public entities to administer their programs and services in “the most integrated setting appropriate” to the needs of the person with a disability. Finally, the regulations require public entities to make “reasonable modifications” to their programs and services “necessary to avoid discrimination,” so long as a modification does not require the public entity to fundamentally alter the “nature” of its programs. [6]

The Supreme Court in Olmstead analyzed the ADA and its regulations and determined that “undue institutionalization qualifies as discrimination.” [7] 

 The Supreme Court’s clear holding was that public entities must administer their programs for disabled individuals in the most integrated setting possible to prevent “unjustified isolation” and illegal segregation of people with disabilities. [8]

A plurality of the Court in Olmstead further held that a public entity can defeat an Olmstead claim by proving that the remedy sought requires the defendant “fundamentally alter” the nature of its programs or services. Defendants can meet their burden to prove a “fundamental alteration” defense [9] by either (i) demonstrating that the cost of plaintiffs’ requested modification is “inequitable” given the state’s undertaking of care for a “large and diverse population of persons” with disabilities; or (ii) “demonstrat[ing] that it ha[s] a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings.” [10]

The Brown litigation first went to trial in 2016, at which time the federal district court ruled against the class. [11] 

The Plaintiffs appealed, and, on July 5, 2019, the Court of Appeals for the District of Columbia reversed the district court, holding that the district court erroneously placed the burden on the Plaintiffs to show that all members of the class were adversely impacted in the same way by proving that the District’s Olmstead Plan suffered from “concrete, systematic deficiencies.” [12] 

The D.C. Circuit directed the district court on remand to determine whether the District could establish that Plaintiffs’ requested accommodation was unreasonable, by showing either that (i) the District has an effective and sufficiently comprehensive “Olmstead Plan” to meet the integration needs of people with disabilities; or (ii) the cost of Plaintiffs’ requested accommodations constitute a fundamental alteration of the District’s program, by diverting resources away from other disabled individuals. [13] The D.C.’s Circuit’s opinion is one of the most fulsome statements about the rights of people with disabilities who want to leave institutional care.

On remand, District Court Judge Paul Friedman determined that the District’s Olmstead Plan was neither comprehensive nor effectively working. [14] Judge Friedman found that the District failed to provide effective outreach to nursing facility residents to determine their willingness and ability to transition to community-based care. [15] He further found that the District neglected to provide nursing facility residents with sufficient information to enable them to make informed decisions about seeking to transition out of institutional care. [16] Judge Friedman determined that the District’s efforts to inform individuals seeking community transition assistance were insufficient and flawed. He also found that the District places an unreasonable burden on nursing facility residents and facility staff to navigate the pathway out of the nursing facility without help, despite their lack of information about the availability of long-term care services in the community. He further determined that the District failed to adequately track and use data concerning people who actively sought assistance and information related to living in the community. [17] 

Judge Friedman concluded that three of the Plaintiffs’ four requested accommodations would not result in the District needing to “fundamentally alter” its programs and services. [18] While he agreed that the District’s cost concerns were relevant to the fundamental alteration analysis, he concluded that budgetary constraints alone were insufficient to establish such a defense. [19] The court further found that the Plaintiffs’ request that the District actually transition specific numbers of people to the community from nursing facilities for a specific period of years would result in a fundamental alteration to the nature of the District’s programs and services and denied that requested relief. [20]

Accordingly, Judge Friedman entered a permanent injunction requiring the District to (1) develop and implement a working system of transition assistance for Plaintiffs; (2) ensure that the District has and maintains sufficient capacity in its community-based long-term care services to serve Plaintiffs in the most integrated setting appropriate to their needs; and (3) demonstrate the Defendant’s ongoing commitment to deinstitutionalization by publicly reporting on at least a semiannual basis the total number of D.C. Medicaid-funded nursing facility residents who want to live in the community. [21] 

After the trial finished in 2021, named Plaintiff Larry McDonald finally transitioned out of the nursing facility that he had been in for seventeen years into an independent living setting in his community. During the trial, Mr. McDonald testified that he had wanted to leave the facility from the very first day that he was admitted but did not know how to do so. Mr. McDonald’s guardian also testified at trial that she had no idea how to navigate the complex process of moving him from the nursing facility and back into his community.

Sixteen years after the Plaintiffs in Brown filed their lawsuit, Judge Friedman’s order and final judgment represent a momentous win for named Plaintiff Ivy Brown and the rest of the class members seeking to live their lives with dignity in an integrated community setting. On September 15, 2025, the District filed an appeal before the D.C. Circuit. [22] Plaintiffs will continue to fight for their rights. Sadly, Ivy Brown passed away in the fall of 2025. She did not get to experience the benefits of the injunctive relief that bears her name.

©2026. Published in Journal of Affordable Housing & Community Development, Vol. 34, No. 2, Spring 2026, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Endnotes

1.      *. Brown v. District of Columbia, 761 F. Supp. 3d 34 (D.D.C. 2024). The case has also been captioned as Day v. District of Columbia and Thorpe v. District of Columbia, as additional plaintiffs were added when named members of the class died. For discussion of the case’s significance, see https://www.uls-dc.org/article/federal-court-issues-landmark-civil-rights-decision-enabling-thousands-of-district-residents-with-disabilities-to-transition-out-of-nursing-facilities-to-the-community, and https://www.impactfund.org/legal-practitioner-blog/brown-v-dc. Plaintiffs’ class is represented by AARP Foundation, Disability Rights D.C. at University Legal Services, the firm of Terris Pravlik and Millian, LLP, and private attorney Marjorie Rifkin who formerly worked at University Legal Services.

2.      Olmstead v. LC ex rel. Zimring, 527 U.S. 581 (1999).

3.      In re District of Columbia, 792 F.3d 96 (D.C. Cir. 2015).

4.      42 U.S.C § 12132.