The Justice Department has signaled that the federal government no longer plans to enforce a landmark court ruling that has shaped Georgia’s mental health and disability care system for nearly two decades, although the leader of the state agency responsible for disability services says nothing has changed in his mind.
A June memo from the U.S. Department of Justice argues that federal disability laws do not require states to provide community-based care to people with disabilities that limit their ability to do what the Americans with Disabilities Act considers “major life activities,” such as eating. These services allow many people with disabilities to live and receive care in their communities rather than be institutionalized in state hospitals.
The memo adds that the federal government doesn’t have the authority to oversee and monitor whether states are providing those services, despite requirements in the law. Disability advocates warn this could reduce pressure on states to fund and expand community-based services.
D’Arcy Robb, executive director of the Georgia Council on Developmental Disabilities, said she is worried a lack of federal oversight could deter progress in disability care reforms.
“We know that our state still has great needs that are not being met,” Robb said. “We anticipate we’re not going to have as much federal pressure, if any federal pressure, on integrating people (into the community) — and yet, Georgians want it.”
U.S. Sen. Jon Ossoff, a Democrat who is up for reelection this year, pressed the Justice Department to rescind what he called a “shameful document” in a letter to then-acting Attorney General Todd Blanche.
Ossoff said the new interpretation of a longstanding court ruling could leave Georgians with disabilities vulnerable at a time when states are bracing for Medicaid cuts that were packed into the GOP’s tax break and spending bill last year.
“I am deeply concerned about recent reports of U.S. Department of Justice (DOJ) efforts to undermine the scope and enforcement of rights for Americans with disabilities,” Ossoff wrote in the Aug. 6 letter.
Some advocates, though, said they remain hopeful that the DOJ’s opinion will not have the effect that others fear.
Devon Orland, litigation director at the Georgia Advocacy Office, said the federal memo challenges a legal precedent established in Olmstead v. L.C., a 1999 Supreme Court decision. Orland emphasized the memo is a statement of the federal government’s position and does not overturn the law or legal precedent on its own. Orland’s organization, a private, nonprofit organization that advocates for people with disabilities and mental illness, is named as a party in federal litigation about disability rights in Georgia.
“My hope is that the statement of focus by the Department of Justice won’t change anything,” Orland said. “It doesn’t change the status of the law. We have decades of legal precedent since Olmstead v. L.C.”
In that case, the court ruled that unjustified institutionalization of people with disabilities can violate the Americans with Disabilities Act. Olmstead v. L.C. originated in Georgia, where plaintiffs Lois Curtis and Elaine Wilson were involuntarily institutionalized in a state hospital despite medical professionals clearing them to live in their communities while receiving care.
The federal government later entered into a 2010 agreement with Georgia, known as the Olmstead settlement, which required more options for Georgians with disabilities and mental illnesses to receive care in their communities.
A federal court released Georgia from the mental health portion of the Olmstead settlement in February. Now, only requirements related to people with intellectual and developmental disabilities remain to be addressed by the state.
Among the remaining provisions is improving statewide clinical oversight, maintaining a high-risk surveillance list and providing crisis services and medical professionals that serve people with intellectual and developmental disabilities.
Robb said it’s unclear to her whether the remaining parts of the settlement will be enforced at all.
The DOJ did not respond to the Recorder’s requests for comment on whether they intend to enforce the remaining parts of the settlement.
Commissioner Kevin Tanner, who oversees state behavioral health and disability services, told the Recorder during an August interview that the department remains committed to complying with the remaining parts of the Olmstead settlement agreement. He noted the state has committed over $1 billion in funding to its disability and mental health care system over the past 16 years.
“I get up every day not worrying about the settlement agreement,” Tanner said. “When I became commissioner, I made it clear to the staff and to others that we were not going to focus on a settlement agreement. We were going to focus on building the best system of care. The settlement agreement will then take care of itself.”
Tanner said Georgians should not be worried about the apparent loss of federal oversight.
“They shouldn’t be concerned that the DOJ may not have oversight,” he said. “But we all should be concerned about these folks who did not ask for the situation they might find themselves in, and we all need to push to find better solutions.”
What’s at stake for Georgia’s disability care system
Before this summer’s DOJ opinion, the federal government routinely monitored states for compliance with community care requirements, according to Robb. When a state was found in violation of those requirements, the federal government could bring lawsuits to enforce them. Robb said the Olmstead settlement agreement between Georgia and the federal government is an example of this oversight.
Without federal oversight, Robb said state officials will be more responsible than ever in determining the future of disability services for Georgians. But she emphasized that Georgia’s advocacy community won’t go anywhere.
“The pressure may no longer be federal, but the pressure is going to be from the community,” Robb said.
Robb said a large part of community care for people with disabilities comes from two waiver programs. Waivers from New Option Waiver Program (NOW) and Comprehensive Supports Waiver Program (COMP) allow some Georgians to receive care in their homes through both Medicaid and state funding.
Tanner told the Recorder in August that more than 14,000 Georgians receive services through the waivers, but about 7,200 Georgians are still waiting for care on what the department calls its “planning list.” Robb said in July that more than 1,200 of those waiting urgently need further care.
When Gov. Brian Kemp signed the state budget in May, he signed off on funding for 100 NOW/COMP waivers but withheld $9.3 million intended for hundreds of additional waivers as part of the $300 million additional cuts to help pay for an income tax cut package that passed earlier this year. Kemp also announced a spending freeze in August, signaling a potentially tight year ahead for agency budgets.
Despite the spending freeze, Tanner said the department has made progress in building community crisis centers across the state and providing other essential resources. Additionally, he noted Georgia created the Behavioral Health Reform and Innovation Commission on its own, without a federal mandate, and the commission was a big driver behind a major mental health law that passed in 2022.
Robb said there is still a lot of need from people with intellectual and developmental disabilities that the department must address, even outside of baseline compliance with the Olmstead settlement. She added that people with disabilities vastly prefer community resources over treatment in an institution.
“I cannot think of a time when someone has said to me, ‘I want to live in an institution,’” she said. “People want to live in the community. Treatment professionals agree people can live in the community. We can support all developmental disabilities in the community — that’s broadly known.”
Commissioner says complete compliance is near, with new independent report planned for October
Tanner said he believes his department is currently in “substantial compliance” with most of the remaining parts of the settlement. But Tanner would not say which requirements have yet to be fully addressed. Instead, he said he thinks the department’s greatest challenge has been demonstrating how much progress has been made toward complete compliance since 2010.
“I think that we have substantially complied with most of the provisions of the settlement agreement,” he said. “We’re definitely heading toward the time that we will be out of the settlement agreement. I’m confident of that.”
Georgia’s compliance with the Olmstead settlement has been evaluated by Elizabeth Jones, a court-appointed independent reviewer, for over a decade. Jones has monitored Georgia’s behavioral health and disability care system and filed regular reports over the years.
During a phone call with the Recorder, Jones said she will file her next report in October and that it will focus on the remaining intellectual and developmental disability requirements.
No monitoring reports on the developmental disability provisions have been filed in federal court since September 2024, when Jones recommended scaling back active monitoring on some provisions. Her next report could provide an important snapshot of the state’s progress.
Jones said all parties involved in the settlement, including the state, continue to work toward compliance.
“Progress is being made on the remaining obligations, and there’s a commitment by the state to fulfill those obligations,” Jones said.
As an independent monitor, Jones was appointed by the federal court, not the state of Georgia. She declined to comment on how the memo from the federal government may impact the settlement or her work.
One requirement of the Olmstead settlement was establishing 22 Assertive Community Treatment (ACT) teams. The program provides 24/7 mobile services and crisis response to people across Georgia, each team serving between 75 and 100 people at a time.
Since January, though, the Recorder found the department has eliminated an ACT team that served 31 counties in north Georgia, most of them rural. Tanner attributed the cut to a lack of demand for resources and said the department redistributed the funding to other teams needing more support.
“They just don’t have the numbers to justify a full team where there’s not enough people being referred,” he said. “You don’t want to fund something just for the sake of funding it if the need is not there.”
The number of ACT teams was among the settlement requirements that the federal court stopped actively monitoring in 2024.
Next governor will shape future of disability care
State Rep. Mary Margaret Oliver, a Decatur Democrat, said she was disappointed by the federal memo and called it a “blatant disregard” of civil rights. Oliver, a practicing attorney and a lawmaker who has been influential on mental health issues, said the memo creates new uncertainty.
“It’s a direct message to the state that the Department of Justice is not going to enforce the civil rights of Georgia citizens,” Oliver said. “We cannot count on politicians, even on a good day, to always be mindful of the constitutional rights of the people they represent.”
Oliver said many lawmakers are committed to helping people with disabilities but it’s difficult to balance funding priorities. This year’s gubernatorial race could lead to policy changes across Georgia’s mental health and disability care system, she added.
In November, voters will choose between Republican Rick Jackson and Democrat Keisha Lance Bottoms for Georgia governor. Whichever candidate wins will inherit a disability care system at a pivotal moment.
Garrison Douglas, a Jackson campaign spokesperson, told the Recorder that the Republican candidate hopes to focus on individualizing care for people with disabilities and mental health issues if elected. He did not directly address the DOJ memo.
“Georgia’s challenge is capacity, which means more providers, especially in rural communities, more beds for patients with severe mental illness, and real answers to the provider shortage through better pay, recruitment, training, and retention,” Douglas said in a statement.
The Bottoms campaign did not provide a comment to the Recorder for this story.
