Class action demands services for disabled

Groups sue state, alleging people with disabilities must wait too long for aid

by Laylan Copelin lcopelin@statesman.com, September 6, 2002, American-Statesman

For more articles on disabilities and special ed visit www.bridges4kids.org. 

Christy McCarthy graduated from high school in May, and she very much wants to stay home with her family in tiny West Columbia, south of Houston. She wants to socialize with her friends and continue her volunteer job at a state park.

Unlike most young Texans, the 23-year-old and her family have a difficult choice because she has cerebral palsy, some paralysis and mild mental retardation.

McCarthy no longer has the special education services she had while in public school, including an aide who helped her attend school and her job. Now she either must move to a state institution, or her family must make sacrifices to provide the kind of care needed for her to live at home.

Two advocacy groups on Thursday sued the State of Texas, saying the Legislature has failed to fully finance the services that allow people with mental retardation and other disabilities to stay in their homes or in group homes in their communities. The groups say the state is violating the federal Medicaid law that grants options to allow such people to remain at home or group homes.

The Arc of Texas and Advocacy Inc. filed the class action lawsuit in federal court in Beaumont, claiming that as many as 25,000 Texans are waiting for years with little hope of getting services. The lawsuit names the heads of the Texas Health and Human Services Commission, the Texas Department of Mental Health and Mental Retardation and the Texas Department of Human Services.

The lawsuit also cites a 1999 U.S. Supreme Court decision that says "unjustified institutional isolation of persons with disabilities is a form of discrimination." It further argues that federal law requires that the services must be provided at a reasonable pace.

At a Capitol news conference, Richard Garnett, president of the Arc of Texas, said that people are waiting as long as seven years for services and that the Legislature has not increased financing for more services fast enough.

"The Arc believes that forcing someone to wait for services for seven years in neither prompt nor reasonable," he said.

Liz Newhouse of San Antonio is chairwoman of the board of Advocacy Inc. and a parent whose adult son has been on an MHMR waiting list since the mid-1990s. She said the state remains at the bottom nationally in providing services: "It's time for the Texas Legislature to listen and act."

State Rep. Rob Junell, D-San Angelo and the retiring chairman of the House Appropriations Committee, said lawmakers face demands for services from many worthy causes.

"Nobody is discriminated against individually," he said. "It's a case of taking a limited resource, cash, and spreading it over unlimited needs."

Don Rogers, an MHMR spokesman, said the Legislature last session increased home-care services for people with mental retardation by almost 11 percent, which equaled 665 new slots. But the waiting list at MHMR increased by a third last year, he said. He said the list is growing because Texas is growing, people are living longer and more people are demanding the service as they learn about it.

"Every state is experiencing an increase in their waiting lists," Rogers said.

Mike Jones, a Department of Human Services spokesman, said his agency's waiting list is up to almost four years. He said the list has grown as the program expanded into 105 counties over the past six years. It serves 1,800 people, double the caseload of six years ago. Rogers and Jones said their agencies provide other services to many of the people on the waiting lists. Rogers said 55 percent of the people on the MHMR waiting list are getting some kind of aid while waiting for the services that would let them remain in their homes.

Christy McCarthy's mother, Jamie Travis, said that although Christy requires constant care, her family is determined to keep her at home with her sister and brother. The family has hired friends to help 40 hours a week. But Travis said the state's waiting list for services is longer than Christy's life expectancy.

Travis said that's why she joined the lawsuit: "Christy will always be in our home as long as we are blessed to have her."