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BISMARCK, N.D. (KFYR) – A shift in legal wording out of Washington has North Dakota disability advocates urging caution, warning it could eventually threaten the services that keep thousands of vulnerable residents living in their own homes.
The U.S. Department of Justice’s Office of Legal Counsel recently released a legal memorandum reinterpreting civil rights laws regarding disability care. While the document does not change current policies, local advocates worry it could eventually upend decades of legal precedent.
For North Dakota residents like Carl Young, a volunteer advocate for children prenatally exposed to alcohol who lives with physical and developmental disabilities, the stakes are deeply personal. Young relies on Medicaid-funded Home and Community-Based Services (HCBS) to live independently.
“I could potentially end up in an institution if I didn’t have home and community-based services,” Young said. “There are some people that need that level of care, but not the whole population.”
HCBS waivers allow disabled residents to receive vital care in their own homes and communities rather than being placed in institutions. However, the DOJ’s June memorandum reinterprets the Americans with Disabilities Act (ADA), concluding that federal law does not actually mandate integrated community care.
Advocates worry the legal opinion provides a dangerous blueprint for future policymakers looking to trim healthcare spending.
“The federal government basically is saying, it’s left up to the states, and we’re not going to back anything,” said Kirsten Dvorak, executive director of the Arc of North Dakota. “And so, what does that look like for us? We have the fear of going back to institutionalized care.”
It was only 46 years ago, in 1980, that the Arc of North Dakota sued the state, starting a grueling 16-year legal battle that ultimately closed the San Haven institution near Dunseith and transitioned residents into integrated community homes.
“It’s scary, I’ll say it,” Dvorak said. “We have to be hypervigilant to make sure that that doesn’t happen again.”
If federal and state community care waivers were to be reduced down the road, North Dakota would be uniquely exposed. The state currently lacks the facility space to house these residents. Young’s analysis suggests building the necessary institutional capacity would cost approximately $7.8 billion, and that’s before hiring staff.
“Right now, a lot of people on home and community-based services are relying on unpaid family caregivers to provide most of their care, if not all of it,” Young explained. “And if we institutionalize people, we don’t have the staffing.”
To be clear, nothing has changed yet. No legislation has been introduced at either the state or federal level to reduce or remove these home care services. What worries advocates is not an immediate cut, but how future policymakers might interpret this legal shift down the road.
“They may read it one way and interpret it saying, ‘Well, we don’t need to do anything anymore.’ The federal government basically said we don’t have to do anything anymore, which isn’t true, but that may be the interpretation of it,” Dvorak said.
Young has sent his detailed policy analysis directly to federal lawmakers, urging them to press the Department of Justice for a formal retraction.
“It’s almost like we’re moving back in time,” Young said. “And the citizens of North Dakota, whether they need services or not, don’t deserve to go backwards in time. We’ve come too far to do that.”
At the national level, more than 100 federal lawmakers have already signed a formal letter asking the Department of Justice to retract the memo.
You can read the full memo here.
