Louisiana: Judge: Disabled can bring suit to trial

BATON ROUGE, La. (AP) -- A federal judge has refused to dismiss a civil-rights lawsuit challenging state budget cuts to home-based care for some elderly and disabled individuals. U.S. District Judge James J. Brady rejected the state Department of Health and Hospital efforts to avoid a trial in the case, which alleges that the cuts will lead to the unnecessary and unconstitutional institutionalization of people. Brady's decision came in a lawsuit filed late last year on behalf of four disabled people, including Denham Springs resident Helen Pitts, who needs weekly in-home assistance to stay out of a nursing home. Pitts and the others challenge DHH's reduction from 42 to 32 hours a week of care provided through the Long-Term Personal Care Services program. The state adopted the cutbacks as part of budget-balancing efforts. The program serves about 12,000 individuals providing such in-home support as help with eating, bathing, meal preparation, managing medication and arranging transportation to medical appointments. At issue is potential state violation of the federal Americans With Disabilities Act. The U.S. Justice Department had sided with the plaintiffs, saying policies that place individuals with disabilities at risk of institutionalization are discriminatory under the ADA. The DHH had argued that the state has a backup plan under which the individual who may be affected by the cuts could be moved to the top of a priority list for services through other programs if they agreed to a 120-day stay in a nursing home. "This would subject plaintiffs to the very institutionalization which the ADA seeks to avoid," Brady said. "Therefore, the state's current plan plainly violates the ADA by creating a greater risk for institutionalization for those individuals who require more than 32 hours per week of assistance." Brady said questions remain about whether maintaining the 42-hours a week of service is "a reasonable modification" or a "fundamental alteration" for purposes of plaintiffs' ADA claim. "It's a good decision," said Advocacy Center lawyer Nell Hahn who represents Pitts and the others. "Judge Brady followed the law." DHH Secretary Bruce Greenstein did not agree to interview requests. His press office issued a prepared statement in his name: "We share the same vision, values and goals as the plaintiffs in that we want to give all Louisianans opportunities to lead independent lives in a safe and supported environment." Hahn said Brady's ruling will necessitate additional evidence to be presented on the impact of the cut on the state budget. DHH has projected it would save $5 million in 2011 and $24 million in 2012 by reducing the in-home service hours. Hahn argues that providing care hours the plaintiffs need won't cost that much because not everyone covered by the program needs the 42 hours. If the people at risk have to go into nursing homes for care, taxpayer expense would be greater, she argues. "It's going to be somewhat of a balancing act," said Hahn. Hahn said one solution could be allowing exceptions to the 32-hour limit if physicians certify that an individual needs the extra in-home support to avoid institutionalization. Published: Fri, May 20, 2011