DOJ Olmstead Opinion: The Real Threat Isn’t Institutionalization — It’s Monopoly

And In Massachusetts, monopoly may look like abandonment disguised as “natural supports.”

What is less warranted is the conclusion being drawn from that alarm: that the problem is institutional settings themselves, and that the solution is their elimination. That argument has been made for thirty years. It has not produced the quality, choice, or security that people with intellectual and developmental disabilities and their families deserve. And right now, in this particular policy moment, it is pointing advocates toward the wrong fight.

The real threat — the one hiding in plain sight — is not institutionalization. It is monopoly.

What We Actually Believe

Let us be direct about where we stand. The Saving Wrentham and Hogan Alliance is not a pro-institutionalization organization. We do not believe that congregate care is inherently superior to community-based living, or that families who choose Home and Community Based Services (HCBS) are making a wrong choice. We believe in choice — genuine, funded, legally secured choice — and we believe that choice is the mechanism through which quality in any service system is actually produced.

Specifically, we believe that ICF/IID settings (Intermediate Care Facilities for Individuals with Intellectual Disabilities) and HCBS must both exist as real, funded, accessible options for every family navigating this system. Not one as a last resort and the other as the preferred alternative. Both as genuine options. Because when both exist, families have meaningful choice. And when families have meaningful choice, providers have a reason to listen, adapt, and improve. When one option disappears, the other becomes a monopoly — and monopolies in disability services leave families with too little leverage when quality falls short. Programs fill regardless of what they offer, because families have nowhere else to go.

Massachusetts Ran This Experiment. We Know the Results.

This is not a theoretical argument. Massachusetts already learned what happens when families have only one practical option.

Before the 1970s, Belchertown State School functioned as that option for many families in Western Massachusetts. Families of people with intellectual disabilities had little meaningful ability to choose another setting. Complaints, inspections, appropriations, and internal reviews all led back to the same state-run system responsible for the conditions being challenged.

The result was not merely poor oversight. It was oversight without leverage. Belchertown’s documented neglect and abuse did not persist because no one noticed; they persisted because families had nowhere else to go and the system had too little reason to change. Ricci v. Okin forced that reckoning, but the lesson was broader than Belchertown itself: when one provider model becomes the only practical answer, oversight becomes the last line of defense — and history shows that it is not enough.

That is the present-day risk. If HCBS is weakened while ICF/IID remains the only enforceable placement for some families, Massachusetts will not be returning to the exact institutions of the past. But it will be recreating the same structural danger: one pathway, too little leverage, and families dependent on oversight after choice has disappeared.

The Irony Both Sides Are Missing

Here is the structural irony of the current moment, and it is one that neither the disability rights advocates posting on Facebook nor the current administration has fully articulated.

The DOJ’s weakening of Olmstead is being opposed on the grounds that it will lead back to institutionalization. That concern is understandable, but in Massachusetts the most likely immediate result may be something quieter and more brutal: extraordinary care by aging parents and family caregivers, reclassified by the state as “natural supports.” Massachusetts has already curtailed the quantity and quality of HCBS: a person with profound communication needs may receive no speech therapy, while a person requiring round-the-clock support may be offered only a fraction of the in-home assistance necessary to keep them safe. On paper, the person is “served.” In reality, the family is left to fill the gap. And the state has effectively cut off new admissions to ICF/IID. For families who do not litigate — and most cannot — the consequence of weakened Olmstead enforcement may therefore be not institutionalization, but little or no meaningful service at all.

Litigation changes the equation. When a family reaches court and a judge must order an enforceable remedy, ICF/IID may become the only legally compellable option left. HCBS can be capped, frozen, or waitlisted. ICF/IID is an optional Medicaid state-plan benefit under federal law, but in states like Massachusetts that include ICF/IID in their Medicaid state plan, the state may not legally cap access or maintain waiting lists for eligible individuals in the way it may for HCBS waiver services. That means families with the resources, stamina, and legal help to sue may be pushed toward ICF/IID, while everyone else is left to absorb the state’s retreat at home.

The real danger is therefore not simply a return to institutions. It is a two-tier collapse: litigation may produce institutional remedies for a few, while everyone else is left with unpaid family care, shrinking HCBS access, and a state increasingly willing to call exhaustion “natural support.”

The Facebook posts warning about institutionalization are describing one possible outcome. In Massachusetts, the more immediate danger may be abandonment disguised as “natural supports.”

The Fight That Actually Matters

We are not suggesting that advocates abandon their opposition to the DOJ’s Olmstead reinterpretation. But opposing a policy shift without simultaneously demanding the structural reform that would make the opposition durable is how advocates win the argument and lose the system.

We at the Saving Wrentham and Hogan Alliance believe that every person with an intellectual or developmental disability deserves a genuine choice between settings — and that genuine choice is what produces quality in both. We oppose the hollowing out of HCBS not despite our strong, unwavering support for ICF/IID settings, but precisely because of it. Without community-based alternatives, the families we serve are trapped in a system with one option and one quality assurance mechanism. History has told us how that story ends.

The setting wars — the decades-long argument about which model of care is philosophically superior — have distracted the disability services field from the structural question that actually determines quality: do families have a real alternative when a provider fails them, or are they trapped in a captive system? That question applies to HCBS providers and ICF/IID providers alike. It is answered not by oversight alone, but by the existence of genuine, accessible alternatives.

We are asking advocates, policymakers, and families to make a different argument. Not “community settings or nothing,” but “both settings, equally funded, equally compelled, genuinely available.” Not “strengthen oversight and hope it is enough,” but “give families real alternatives that make oversight meaningful.” Not “stop institutionalization,” but “stop monopoly.”

That is the argument the history supports.

And it is why this moment requires more than agreement. It requires families and advocates to band together during a time of scarcity, uncertainty, and rapid change. We urge readers to join and support local organizations that advocate for choice rather than “one size fits all” such as the Saving Wrentham and Hogan Alliance and the Coalition of Families and Advocates (COFAR), as well as national organizations such as VOR and the National Council on Severe Autism (NCSA). No single organization can carry this fight alone. Families who believe in real choice need to build power together.

We also urge advocates on every side of the disability-services debate to reject the one-size-fits-all ideology. A community-based placement is not automatically right for every person. A facility-based placement is not automatically wrong for every person. The question should never be which model wins as a matter of philosophy. The question should be whether the individual has the setting, staffing, clinical support, safety, dignity, and continuity of care needed to live as fully as possible.

About the Saving Wrentham and Hogan Alliance — The Saving Wrentham and Hogan Alliance advocates for the preservation of residential choice for individuals with intellectual and developmental disabilities in Massachusetts, including the continuation of publicly funded ICF/IID settings alongside robust Home and Community Based Services. We represent families, direct care professionals, and advocates committed to quality through genuine choice, meaningful oversight, and accessible alternatives.

Sources:

U.S. Department of Justice, Office of Legal Counsel opinion, Application of the Rehabilitation Act and Americans with Disabilities Act to State Institutionalization of Patients with Severe Mental Illness or Disabilities, Memorandum Opinion for the Counsel to the President, June 18, 2026.

In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the Supreme Court held that unjustified segregation of people with disabilities may constitute discrimination under Title II of the Americans with Disabilities Act.

Medicaid.gov, “Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF/IID),” explaining that ICF/IID is an optional Medicaid benefit but that states may not limit access to ICF/IID services or make them subject to waiting lists as they may for HCBS waiver services.

Medicaid.gov, “Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF/IID)”, Centers for Medicare & Medicaid Services, stating that ICF/IID is an optional Medicaid benefit but that states may not limit access to ICF/IID services or make them subject to waiting lists as they may for HCBS

Benjamin Ricci, Crimes Against Humanity: A Historical Perspective on Mental Retardation in Western Massachusetts (1993).