Disabled Find Bias Issue Unsettled

Five years after the Supreme Court ruled that segregating individuals with physical and mental disabilities can be a form of discrimination, experts said that the effort to move people out of large institutions and into small community homes had been sluggish and uneven.

“About three-fifths of the states have made progress,” said Timothy M. Westmoreland, a law professor with Georgetown University’s health policy institute. “But that means the other two-fifths haven’t even put together a plan -- no timeline, no budget. Few have significantly improved services.”

Westmoreland spoke this week at a forum assessing the impact of Olmstead vs. L.C., a decision that has been called the Brown vs. Board of Education of the disability rights movement.

In that 1999 ruling, the Supreme Court said that patients in state institutions had a right to be moved to community-based housing with doctors’ consent.

The court also said that states could avoid discrimination lawsuits by drawing up a plan for moving people out of institutions at a “reasonable pace.” That language reminded some experts of the phrase “with all deliberate speed” -- the timetable for action in the Brown decision. And the states’ reaction, they said, has been similar.

“Some states are going to take it as a signal they should get cracking and move quickly; others are taking their time,” said Michael Gottesman, the lawyer for the two Georgia women -- identified only as L.C. and E.W. -- who sued Tommy Olmstead, then that state’s commissioner of human resources, for the right to live outside an institution.

As of February, 29 states had devised plans for beefing up support services and community care options. After advocacy groups threatened litigation, California finished its plan in May 2003, but the Legislature has not acted on it.

California’s task force noted in the plan that without additional funding, implementing its recommendations would be a “significant challenge.”

It’s a challenge most states face.

In 2004, the states were looking at a combined $80-billion budget shortfall, according to the National Council of State Legislatures.

“I think states have been hesitant to draw up a plan they know they would not be able to implement anytime soon,” said Joel Teitelbaum, a health policy professor at George Washington University who has studied Olmstead’s impact.

Advocates said they saw an irony in blaming cost constraints, arguing that in the long run home-care support services and alternative housing were often cheaper than hospitalization.

“It’s a short-term approach,” said Jennifer Mathis, an attorney at the Bazelon Center for Mental Health Law, a Washington-based policy center. “Olmstead can really be used as a tool for cost savings.”

In spite of the economic realities, states have made some progress toward reversing what many call a historical and entrenched bias toward isolating people with disabilities, said Matt Salo, a health analyst at the National Governors Assn.

More than 800,000 people receive waivers from Medicaid that enable them to get home and community care.

State and federal funding for those waivers has increased by $7 billion in the last three years, and states have also been helped by the Bush administration’s “new freedom initiative,” which since 2001 has provided nearly $200 million in planning and project grants.

Critics of the administration liken those initiatives to carrots, but say that some states need to be threatened with sticks to make changes.

“I don’t think the states view the federal government as a credible threat. That’s one of the reason for the inertia,” said Thomas E. Perez, director of the Health and Human Services Department’s office of civil rights during the Clinton administration.

Perez criticized the Justice Department for staying out of court battles interpreting the scope of the Olmstead decision.

Teitelbaum added, “The states have felt no hammer above them.”

But mediation, not litigation, has been the administration’s focus. Of the 600 Olmstead-related complaints that have come into HHS, 500 have been settled through mediation, according to the civil rights office.

Frustrated, some advocates are looking for movement on the issue.

“There’s a sense that we’re planning ourselves to death,” Mathis said. “I have this mantra: ‘Just move somebody. It’s just not that hard.’ ”

The forum was sponsored by the Alliance for Health Reform, a nonpartisan research group in Washington, and the Kaiser Commission on Medicaid and the Uninsured, a Washington-based division of the Kaiser Family Foundation that studies healthcare issues affecting the poor.