When Prevention No Longer Counts:
A Federal Court Ruling with Serious Implications for HCBS
Vanessa Rastović, JD
For more than two decades, federal disability policy has rested on a shared assumption: people with disabilities should not have to be harmed by institutionalization before civil rights protections apply. Home and Community-Based Services (HCBS) exist to support participation in ordinary community life by providing access to services where people live, work, and receive care—not merely to respond once systems have already failed.
A recent decision from the U.S. Court of Appeals for the Fifth Circuit calls that assumption into question and raises important issues for HCBS policy, compliance, and system design.
In United States v. Mississippi, the court rejected the federal government’s long-standing position that placing people with disabilities at serious risk of institutionalization can itself constitute discrimination under Title II of the Americans with Disabilities Act (ADA). While the decision does not overturn Olmstead, it narrows how that precedent may be applied and introduces new uncertainty for systems intended to operate upstream of crisis.
Community Services as Public Infrastructure
HCBS are often discussed as disability-specific supports, but from a systems perspective, they function more accurately as community infrastructure. Like transportation networks, emergency services, or primary care access, they are public mechanisms designed to enable people to live safely and participate fully in community life.
When community infrastructure functions well, most people rely on it without thinking about alternatives. When it fails—or when access is uneven—people are forced into fallback systems that are more restrictive, more expensive, and less integrated.
The core issue in United States v. Mississippi is not whether institutionalization is harmful. That point is widely accepted. The more fundamental question is where discrimination occurs within the system.
Risk Versus Access: What the Court Decided
The Department of Justice alleged that Mississippi’s mental health system failed to provide sufficient community-based services, resulting in predictable cycles of hospitalization and institutional care for people with serious mental illness. The government’s case focused on systemic deficiencies: service gaps, capacity constraints, and the absence of effective community alternatives.
Importantly, the government did not argue that every affected individual was already institutionalized. Instead, it relied on evidence that people with disabilities were unable to access the same community-based services available to others, placing them at a serious and ongoing risk of unnecessary institutionalization.
A federal trial court accepted that theory and ordered Mississippi to expand and strengthen its community-based system. The Fifth Circuit reversed.
The appellate court concluded that Title II of the ADA does not reach system-wide conditions that merely increase the risk of institutionalization. In the court’s view, discrimination requires a present, concrete denial of services or an existing unjustified institutional placement—not a foreseeable outcome resulting from gaps in community infrastructure.
Why This Framing Matters
This distinction has significant implications for how discrimination is understood in the context of HCBS.
Under an access-based framework, discrimination occurs when people with disabilities cannot meaningfully access the same community services that others rely on as a matter of course. Long waitlists, insufficient provider networks, or administrative designs that assume institutional pathways can all function as barriers to equal participation in community life.
Under this framework, institutionalization is not the discriminatory act itself. It is the predictable consequence of exclusion from community infrastructure.
By contrast, the Fifth Circuit’s approach effectively treats institutionalization as the point at which discrimination primarily begins. Until that point is reached, system-wide access barriers are viewed as insufficient to trigger legal scrutiny.
For HCBS systems built around prevention, this reframing is consequential. It shifts attention away from whether community infrastructure is equitably accessible and toward whether harm has already materialized.
Practical Consequences for HCBS Systems
HCBS programs are inherently preventive. They are designed to stabilize people in the community before avoidable crises occur, rather than after repeated hospitalization or institutional placement has become the default response.
By rejecting risk-based claims, the Fifth Circuit’s interpretation moves the compliance threshold from prevention to remediation. In practice, this shift carries several implications:
Delayed accountability: States may face less pressure to address structural access barriers—such as capacity limits or workforce shortages—until individuals experience institutional placement or repeated hospitalization.
Increased system strain: Crisis-driven care is typically more expensive, more disruptive to continuity of care, and less effective than well-resourced community services.
Compliance uncertainty: State agencies, managed care organizations, and providers operating across jurisdictions may face inconsistent expectations about when ADA obligations attach.
From a systems perspective, the Fifth Circuit’s approach prioritizes documentation of realized failure over evidence of foreseeable exclusion—an orientation that sits uneasily with modern health policy, quality-improvement, and risk-management frameworks. This tension, however, reflects more than a disagreement about the scope of Olmstead. It exposes a structural limitation in federal health oversight: neither the Centers for Medicare & Medicaid Services nor the Department of Health and Human Services requires health systems or safety-net providers to collect disability status as a standardized demographic variable across Medicaid or mainstream healthcare delivery. As a result, enforcement agencies lack direct, system-level evidence of exclusion and instead rely on proxy indicators—such as repeated hospitalization, service gaps, or heightened risk of institutionalization—to infer discriminatory effects. Viewed in this light, the conflict between the Fifth Circuit’s demand for concrete, present harm and the Department of Justice’s reliance on risk-based theories is less a doctrinal impasse than a byproduct of an evidentiary vacuum. One path toward resolving this divide—without expanding or contracting substantive rights—would be to require uniform disability demographic data collection across federally funded health systems, allowing discrimination to be identified through direct evidence rather than inference.
A Narrowing of Olmstead’s Preventive Reach
Since the Supreme Court’s Olmstead decision, federal enforcement has largely treated serious risk of institutionalization as evidence that community-based systems are not operating equitably. That approach allowed courts and regulators to examine whether public services were structured in ways that meaningfully included people with disabilities.
The Fifth Circuit declined to adopt that preventive lens. While the decision does not invalidate Olmstead, it constrains its application by limiting when courts may address system-level access barriers before harm occurs.
Why This Matters Beyond Litigation
For policymakers, compliance professionals, and HCBS advocates, the ruling raises a practical question that extends beyond legal doctrine:
When community infrastructure is functionally available to some members of the public but not others, at what point does exclusion become acceptable?
If unequal access alone is insufficient to trigger scrutiny, systems may drift toward reactive models that address harm only after it becomes visible and costly. Over time, this approach risks entrenching disparities while increasing pressure on institutional and emergency systems that HCBS were designed to reduce.
An Uneven Landscape Going Forward
The Fifth Circuit’s decision reflects one court’s interpretation. Other federal courts continue to recognize access-based and risk-based claims, and the Department of Justice has not retreated from its broader enforcement framework.
For now, the result is an uneven legal landscape in which the availability of preventive civil rights protections may depend on geography rather than need.
For HCBS systems already under strain, the stakes are significant. Whether the law supports equitable access to community infrastructure—or intervenes only after exclusion produces crisis—will shape how systems plan, fund, and evaluate community-based care in the years ahead. Absent more robust disability demographic data across federally funded health systems, that uncertainty will persist—leaving courts, enforcement agencies, and regulated entities to debate civil rights obligations using indirect indicators rather than direct evidence of exclusion.
Vanessa Rastović, JD, is a disability and healthcare compliance professional whose work sits at the intersection of civil rights, health systems, and lived experience. She is the Founder of AccessLab, a disability-informed health access and compliance organization focused on helping healthcare systems move beyond minimum legal requirements toward meaningful inclusion and equity in practice. She also serves as Vice President of First Domino Alliance, a nonprofit advancing inclusive workforce pathways and community-based health access initiatives, including peer-supported service models and practical solutions to persistent gaps in oral and primary healthcare for people with disabilities. Vanessa is a member of the Advisory Council for Project DIME (Disability Inclusive
Medical Education), a national initiative working to improve medical and dental education through disability-informed training, clinical guidance, and systems change. As a lawyer who also experiences disability, her work frames compliance as a tool for accountability, dignity, and better health outcomes. Outside of her professional work, Vanessa is an avid SCUBA diver who enjoys exploring shipwrecks and observing marine life up close.