Advocates: State ignores disability act

Saturday, Sept. 30, 2000 | 3:04 a.m.

Advocates for institutionalized mentally and physically disabled Nevadans say the state has ignored a U.S. Supreme Court ruling that gives such individuals the option to live in the community with proper medical consent.

But the state disagrees, arguing that it already complies because it funds community-based services.

The debate is over interpretation of the June 1999 ruling in Olmstead vs. L.C., which was hailed by advocates nationally as a landmark decision in their battle to preserve the Americans with Disabilities Act.

Nevada, however, has quietly become one of the nation's leading critics of the federal law through a series of legal briefs filed by Attorney General Frankie Sue Del Papa. Its fight against the Olmstead ruling is just one example.

The decision favored Lois Carter and Elaine Wilson, two people with mental illnesses who sued Georgia Department of Human Resources Commissioner Tommy Olmstead for the right to be deinstitutionalized.

In its 6-3 ruling, the high court determined that a person deemed medically eligible for community placement should have his wishes granted as long as "the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities."

Local advocates such as Mary Evilsizer, executive director of the Southern Nevada Center for Independent Living, interpreted the ruling to mean that the state must review the cases of disabled individuals who are institutionalized. She said Nevada has had enough time to develop a plan to enforce Olmstead.

"Our dream is to allow people to live in an integrated community where they're not seen as separate but a part of the community," Evilsizer said. "Olmstead requires that states develop plans to provide for the most integrated setting for individuals with severe disabilities. But Nevada hasn't developed a plan."

But Jonathan Andrews, deputy director of the Nevada Department of Human Resources, said the state already has a plan.

"It would be our position that Nevada is in compliance with Olmstead," Andrews said. "Nevada historically has had far more community-based services than institutions. Our position is that our plan is our budget."

No one knows how many disabled Nevadans now in institutions would likely be eligible to live in a community, though advocates concede the number probably is small.

As of June 30, there were 254 disabled individuals in state-run institutions and another 112 in smaller, privately run intermediate care facilities who received state assistance.

But advocates believe that if Olmstead were enforced as they would like, situations such as that involving the 10-year-old grandson of Las Vegas resident Nora Marcom would not exist.

Marcom's grandson, who is mildly mentally disabled, was transferred this year from what she alleged was an abusive private group home for children to the state-run Desert Regional Center in Las Vegas. While complimentary toward the regional center's staff, Marcom said her grandson is the only child at the residential facility and would be better off with other children.

Marcom said she would also be able to care for him at her home if she were able to obtain a Medicaid waiver that paid for a full-time assistant.

"He doesn't belong in an institution. There is so much potential for him," she said.

As of June 30, the human resources department provided funding for 1,456 disabled individuals through community-based programs and group housing. The state also has Medicaid waivers that can be used to purchase services such as home care for disabled people who are eligible to live in the community.

But getting a waiver is no sure thing because of limited state funding, said state Medicaid administrator Charles Duarte. As of earlier this month, waivers were given to 141 physically disabled Nevadans while 300 others were on the waiting list pending review of their eligibility.

"The state isn't obligated to unilaterally provide services if it has a severe impact on state funding," Duarte said.

Passed in 1990, the Americans with Disabilities Act has been widely considered the most important civil rights legislation of the past decade. The law addresses issues such as job discrimination and building access. But it has also been reviled by critics as broadly worded and frequently abused.

States' rights

Del Papa said her office supports the rights of disabled individuals but believes Olmstead and two other cases involving the federal act have threatened states' rights. In a brief she filed in support of defendant Olmstead, Del Papa expressed fear that the overall thrust of the lawsuit was toward "massive deinstitutionalization, regardless of the disruption and regardless of the short-term costs."

"I'm very supportive of the Americans with Disabilities Act," Del Papa said. "But it is not uncommon in major pieces of legislation to have litigation follow that will interpret certain portions of that legislation."

She said that in its Olmstead ruling, the court struck a balance by recognizing that states have limited financial resources.

"One reason Nevada signed on to Olmstead was to weigh in on states' rights where Congress has imposed unfunded mandates on the states," Del Papa said. "Nevada has a broad responsibility to care for and treat people with disabilities. But the court did not override the states' decisions on how to provide programs and services."

But local advocates say they are perplexed that Del Papa, a progressive in such areas as domestic violence and telemarketing fraud, has taken such a high-profile stand against portions of the ADA.

One such advocate is Ed Guthrie, executive director of Opportunity Village, which provides community-based services in Las Vegas for disabled individuals.

"I have a great deal of respect for the attorney general, but she is dead wrong about the Americans with Disabilities Act and its application to the states," Guthrie said. "We can argue about states' rights but the state of Nevada gets 50 percent of its operating expenses from the federal government (through Medicaid). Since the federal government pays 50 percent, they have a right to dictate the rules."

In Pennsylvania Department of Corrections vs. Yeskey, Del Papa and the state of Ohio filed the lead brief against prisoner Ron Yeskey. He argued that Pennsylvania violated the federal law by using his high blood pressure as a reason to deny his transfer to a rigorous boot camp that would have reduced his sentence.

Del Papa countered that a state's ability to manage prisons would be adversely impacted by having to make accommodations under the disability law. But Yeskey prevailed when the U.S. Supreme Court ruled in 1998 that the federal law applied to state prisons.

In Garrett v. University of Alabama, which the high court is scheduled to hear this fall, Nevada is one of eight states that is opposing the application of the federal law in that job discrimination case. Fourteen states support Patricia Garrett, a university employee who sued Alabama in federal court after she was demoted following breast cancer treatment.

The opposition brief supported by Del Papa argued that states ought to be immune from disability-related lawsuits brought by private citizens in federal courts.

But disability rights advocates fear an unfavorable ruling in Garrett would make it easier for states to violate the ADA. That fear is particularly acute in Nevada, a state that historically ranks among the nation's worst in per capita funding for disabled individuals.

In 1997, two years before the Olmstead decision, a bill sponsored by state Sen. Ray Rawson, R-Las Vegas, set aside $500,000 in state funds to help the Nevada Department of Employment, Training and Rehabilitation provide community-based services for physically disabled individuals.

Because of delays in getting federal approval for this Medicaid waiver, the money was never spent and it was returned to the state's general fund, department spokeswoman Karen Rhodes said.

"A bureaucracy has 500 ways to kill legislation if they don't like it," Rawson said. "It's difficult to get the big agencies to move. This has been a major frustration for me."

Equally frustrating for advocates is what they perceive as inequities in the way the state provides services to disabled individuals. Under Medicaid, the federal government usually matches dollar for dollar what a state is willing to spend on programs for the disabled.

But Guthrie charged that the state does not reimburse community-based programs at the same rates given institutions for similar services such as meals.

Level playing field

"They have to look at levelling the playing field," Guthrie said of the state. "If they spend $200 a day for services for someone in an institution, they should spend $200 a day for someone in the community."

The reimbursement rates are generally higher for institutions because they provide more services and have higher overhead than do community-based services, Duarte said.

"If we raised the rates for community-based providers, we'd have to consider serving fewer people or providing fewer services," he said.

Advocates also believe the state could save tens of thousands of dollars a year per person by transferring qualified individuals from institutions to community-based housing. Evilsizer said Southern Nevada could increase its housing stock for disabled individuals through more aggressive pursuit of federal grants.

"In the disability community we have always found that while there are barriers, we find ways to go around them," she said.

Duarte conceded that the state spends less on disabled individuals who live in a community versus an institution. But he said the state would not be saving money by transferring people from institutions to the community. That's because with the increase in older Nevada residents, he said there will always be demand for the state's institutional beds.

Andrews said the state is willing to work with advocates to address concerns related to Olmstead. But Jill Smith, litigation director for the Nevada Disability Advocacy & Law Center, said advocates have been frustrated by the state's response.

"Because of the critical needs of our clients, Nevada Disability Advocacy & Law Center will have to bring a lawsuit if this is not remedied," Smith said. "If a person does not need to be in an institution or nursing home they should not be there. It's not humane and it's also not cost effective."

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