A recent ruling by the U.S. Court of Appeals for the Fifth Circuit held that plaintiffs cannot bring a claim alleging a risk of unnecessary institutionalization under Title II of the Americans with Disabilities Act (ADA).  This directly contradicts the holdings of six other circuit courts and guidance issued by the Department of Justice (DOJ)—all of which maintain that Title II of the ADA (Title II), the integration mandate, and the U.S. Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring permit these claims.  This Note explores how the circuit courts have evaluated risk of unnecessary institutionalization claims, including what it means to be “at-risk.”

Understandably, the Fifth Circuit’s ruling has induced fear throughout the disability rights community.  However, the U.S. Court of Appeals for the Eleventh Circuit has the opportunity in United States v. Florida to join many of its fellow circuit courts and solidify Olmstead’s protections.  This Note argues that risk of unnecessary institutionalization claims are actionable under Title II because the ADA’s legislative history and the language of Title II, in conjunction with Olmstead and the integration mandate, explicitly allow such claims.  Further, this Note insists that, at the very least, the statute is ambiguous on the issue, and some level of deference should be afforded to the DOJ’s interpretation.  This Note then argues that preventative litigation is important to support public health initiatives, especially in the context of the ADA.  Finally, this Note argues for the “likely” at-risk standard and suggests risk determinations be made using a common risk assessment framework and public health professional testimony.