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Friday, September 14, 2012

Advocates Warn Gregoire that Appeal Could Allow Conservative Supreme Court to Reverse Disability Rights

Posted by on Fri, Sep 14, 2012 at 10:18 AM

Fearing that it could open the door for a conservative US Supreme Court to reverse the rights of the disabled, advocates nationwide are pleading with Washington Governor Chris Gregoire not to appeal a 9th Circuit decision instructing the state to fully restore in-home care to 12 senior and disabled plaintiffs.

Ruling in M.R. v. Dreyfus, a 9th Circuit panel determined that across the board state budget cuts that reduced in-home care hours by 10 percent violated the Americans with Disabilities Act (ADA) by threatening to force the 12 plaintiffs into institutionalized care. Under the landmark 1999 Olmstead v. L.C. decision, a 6-3 majority of the US Supreme Court ruled that the ADA requires states to administer services in the "most integrated setting" that meets the individual's needs. Considered by some to be the Brown v. Board of Education for people with disabilities, it was Olmstead that made it possible for millions of disabled Americans to stay in their own homes and communities rather than being institutionalized.

The state has a September 17 deadline to file an appeal (it has asked for an extension to October 1), and Gregoire has clearly signaled her intention to do so, prompting great concern within the disability community that an activist court might seize the case as an opportunity to role back protections.

In an August 29 letter (pdf), two dozen organizations warn Gregoire that filing an appeal "could place at risk one of the most fundamental civil rights of individuals with disabilities, the right to avoid needless institutionalization":

Even if Washington’s petition to the Supreme Court were narrowly drawn, it could, if granted, open the door to Supreme Court review and revision of the entire Olmstead decision. In recent years, the Supreme Court has become increasingly restrictive in its view of Congressional power to protect the most vulnerable Americans and has repeatedly reached out to decide questions affecting individuals’ rights that it need not have addressed. Seeking certiorari in M.R. v. Dreyfus could result in a ruling that significantly diminishes the right of people with disabilities to live in integrated settings and be full participants in their communities.

The irony is that Gregoire herself has been a strong advocate for disability rights. As Attorney General she reversed the state's position on Olmstead, and sided with people with disabilities. And despite recent budget cuts, Washington remains a leader in providing long term in-home services to seniors and the disabled. So even if the Supreme Court does reverse Olmstead, Washington's disabled will likely remain relatively well cared for.

But in much of the rest of the nation, not so much. Without Olmstead's protections millions of disabled Americans could lose the services they rely on to stay in their homes and their communities. And that's a legacy I'm not sure that Gregoire really wants to leave.

[UPDATE: The state was just granted its extension request. It now has until October 1 to file an appeal.]


Comments (15) RSS

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"...relatively well cared for."? Define relatively.
Posted by tacomagirl on September 14, 2012 at 10:33 AM · Report this
Part of the problem may be that when Gregoire was AG, an assistant AG screwed up and missed an appeal date, and as a result the State had a multi-million dollar judgment to pay. Gregoire really took heat for that. Even though this would not be the same kind of situation, she may not want that effect to happen again.
Posted by sarah70 on September 14, 2012 at 10:38 AM · Report this
Goldy 3
@1 Relative to many other states.
Posted by Goldy on September 14, 2012 at 10:40 AM · Report this
Joe Szilagyi 4
@1 not dying forgotten somewhere due to poverty.
Posted by Joe Szilagyi on September 14, 2012 at 10:44 AM · Report this

It seems like we've gone too far in the deinstitutionalization process when it comes to mental health though. Downtown Seattle is testament to that.
Posted by Supreme Ruler Of The Universe http://_ on September 14, 2012 at 11:26 AM · Report this
rob! 6
I wonder what elswinger (Larry Davenport) would have made of this. If he had remained in a nursing home he might (might) still be alive. Yet his joy at moving into his own apartment was obvious, as was his frustration at getting the assistance he needed (even before many of the recession-caused budget cuts took full effect).
Posted by rob! on September 14, 2012 at 11:28 AM · Report this
@6, great example, rob! RIP elswinger.
Posted by gloomy gus on September 14, 2012 at 11:52 AM · Report this
Whoa, whoa, whoa. You mean as AG Gregoire UNILATERALLY took it upon herself to decide what the state's position was on a health care issue before the Supreme Court? The exact same thing that you got all worked into a froth over w/r/t McKenna?
Posted by Reader01 on September 14, 2012 at 11:57 AM · Report this
@8, no, it wasn't at all the same thing. Read and think before you get worked into a froth of righteous gotcha-ism.
Posted by sarah70 on September 14, 2012 at 12:05 PM · Report this
@9 - that's not what this post says. I'd be happy to have it cleared up though
Posted by Reader01 on September 14, 2012 at 12:33 PM · Report this
McKenna and other AGs sued. Gregoire didn't sue. Organizations concerned with the cut in home care hours sued. The State was the defense.

Posted by sarah70 on September 14, 2012 at 12:44 PM · Report this
And she unilaterally decided what the state's position was going to be by substituting her own position, yes?
Posted by Reader01 on September 14, 2012 at 1:08 PM · Report this
@12 - no. My read is that a budget was passed cutting this home health care. The lawsuit was to overturn the cuts in the budget. It has nothing to do with what Gregoire's personal opinion is. In other words, it's nothing like what McKenna did. Nice try, though.
Posted by Bax on September 14, 2012 at 4:25 PM · Report this
@13 - then what does the following phrase mean, exactly

"As Attorney General she reversed the state's position on Olmstead"
Posted by Reader01 on September 14, 2012 at 5:22 PM · Report this
@1: relative to other states. For instance:
This AARP-sponsored study rates Washington the 2nd-best state for long-term care services provided to the elderly and persons with disabilities.…

And according to NPR, Washington devotes a higher portion of its disability services budget to community-based care than any other state.…

Regardless of how much of the state budget you think should be devoted to Medicaid services, it seems pretty strange to me that the Ninth Circuit would call it "discrimination" when a state simply reduces the services it funds--especially when that state still provides more services than most other states. Are all those other states discriminating by failing to provide services as good as those in Washington? Is it really "discrimination" to slow the growth of Medicaid spending?
Posted by Solicitor Expliciter on September 15, 2012 at 10:47 AM · Report this

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