A recent Justice Department memo could lead to more disabled people being moved into nursing homes and psychiatric facilities. The DOJ memo centers on a 1999 Supreme Court decision and argues Congress has imposed an integration mandate on state and local governments that raises constitutional concerns. Advocates say the Trump administration's interpretation endangers laws that protect and empower disabled people to remain in their homes.
Emyle Watkins, disability reporter for the New York Public News Network, joined WAMC's Lucas Willard on Friday to discuss how the Justice Department's interpretation is making waves in New York state.
Lucas Willard: So, Emyle, tell me about how this DOJ memo is being received in New York. It's been about a week now since this came out. There's been a lot of discussion that's been happening. So, where are we right now in New York State?
Emyle Watkins: I think — right now, it's a lot of confusion. I think that — over the past week — we've seen a lot of different conversation and interpretation nationally and in New York State regarding this.
One thing I want to make clear is that, right now, I think the biggest concern with this memo is that ... from talking with an expert, it kind of takes this right of living in the most integrated setting as possible for you from... it being a federal right to the federal government kind of saying, "well, that's up to states to decide." And like you mentioned, it creates interesting challenges, because will that mean that people can't leave the hospital, can't leave the psychiatric hospital, [or] they are involuntarily committed and can't leave. That's what the 1999 case centered around: two women who were ready to leave a psychiatric hospital, and we're not allowed to. And I think in New York, it has people quite scared, because while New York is one of the — I think a lot of people would term — more progressive states in terms of disability rights, if you talk to historians, we are also one of the states that led the charge in terms of institutionalization and certain eugenics policies.
So, there's a lot of concern right now. If this right does get turned back to the states, like this memo is kind of discussing, we end up in a situation where it really is on the governor and the legislature to decide if they continue to codify this right as they've already done in certain ways, or you know where their policy goes.
LW: And if this is turned back to the states, and we do have a sort of patchwork across the country of different laws and different interpretations — we saw this after the Supreme Court overturned Roe v. Wade just a few years ago, and that has led to lawsuits between states, New York State, for example, has faced lawsuits from Louisiana and from Texas over its abortion laws, do you anticipate if we do have differing policies between different states, room for legal action between states over how people with disabilities are treated and how they are homed or hospitalized?
EW: You know, I'm a reporter, so I won't pretend to be a lawyer or any policy expert who can tell you what might or might not happen. But as a reporter, I think historically there is that trend, and I think that a lot of people are comparing this to Roe v. Wade. I think that calling into question this substantial Supreme Court decision is going to lead, my guess would be, it's going to lead to probably a lot of legal action. And I think that you are going to see, probably, if it does get turned back to the states, a lot of differences in how these states handle it.
Even right now, we see big differences in how states handle home and community-based services, which is really at the center of what the DOJ memo says, is that states don't have to provide those services. And so, if states go off of that DOJ interpretation, states that already have long wait lists or have legislators or governors who don't want to contribute state dollars to that, it raises a lot of policy questions, it raises a lot of legal questions, and I think this, you know, if history repeats, could be a lot of, like, you mentioned, legal challenges,
LW: And speaking of state leaders, Emily. I'm wondering how leaders in New York State have responded to this DOJ memo, and especially when it comes to Governor Kathy Hochul, she's faced a lot of criticism over the CDPAP [Consumer Directed Personal Assistance Program] transition from the disabled community. So, how has Hochul and her administration, how have they responded over the past few days?
EW: Yeah, so Thursday was one week out from the DOJ memo being released. And in that week, we did see the [state] Chief Disability Officer [Kimberly Hill Ridley] come out and speak openly about New York's commitment to disability rights, and ... the Olmstead right, which is in reference to the Supreme Court decision that this whole memo is about. We also saw the Office for People with Developmental Disabilities, or OPWDD, Commissioner Willow Baer come out and also say the same thing, say that she feels this is essentially just an opinion, and that it doesn't change how New York proceeds. I'm going to be speaking with her later today [Friday] as well. They've been very open about this.
But in a most integrated setting, committee council meeting this week, which is the exact statewide committee that looks at Olmsted rights, we saw them speak out about this. But we also saw a lot of people with disabilities questioning where the governor was on this. And from what I can tell, I didn't see any statement from the governor on this until I reached out to her and asked if she wanted to give a statement. And in that statement, she said, "In New York we understand what is at stake, and we'll continue to fiercely prioritize access to services that enable people to live with dignity and autonomy in the community." And we see that quote come out, but I think that a lot of people are still concerned because we had our largest home care system, which was run by over 600 companies, handed over to one private equity-backed company that, in a very quick transition, led to a lot of people reportedly losing services, losing access, you know, having workers leave.
I've talked to people in this system who are really, really struggling to stay at home without this home care and without the level that they had before, and that ties directly into this Olmstead decision conversation, because they have a right to those services to live as integrated as possible in a community. If you say that states don't have to provide home and community-based services, if states don't have to provide home care, and these things that allow people to live in the most integrated setting, then we end up with people who are living in less integrated settings, like nursing homes and hospitals.
