Case Echoes Of Olmstead And Garrett
By Dave Reynolds, Inclusion Daily Express
http://www.InclusionDaily.com
November 6, 2001

HELENA, MONTANA--In 1999, the U.S. Supreme Court ruled in the case of
Olmstead vs. L.C. that states violate the Americans with Disabilities Act
when they "unnecessarily" put people with developmental disabilities or
mental illness in institutions.

A case similar to Olmstead has been bubbling up through the legal system in
Montana for the last six years.

The case is called Travis D. vs. Eastmont Human Resources and claims that
the state violates the constitutional rights of people with disabilities
when it puts them in institutions against their will or their doctors’
advice. Among other things, Travis D. wants the court to keep the state from
putting more people in institutions if community-based services would meet
their needs. It is a potential class action suit, meaning that a court
ruling could apply to a number of Montanans who have disabilities.

The state's Department of Public Health and Human Services, which contracts
with Eastmont to provide services, wants the judge in the case to hear its
argument that Congress violated the Constitution when it passed the ADA. The
department believes the 11th Amendment to the Constitution does not allow
people to use the ADA to sue the state.

If that argument sounds familiar to you, it could be because it was used in
another U.S. Supreme Court case decided in February of this year. In the
case of Board of Trustees of the University of Alabama vs. Garrett, the
Supreme Court ruled that two state of Alabama employees, Patricia Garrett
and Milton Ashe, could not sue their employer for damages under the ADA.
The Garrett case had to do with employment aspects of the ADA, while Travis
D. uses provisions in the ADA that call for services to be provided in the
least restrictive setting.

On Monday, a group of advocates for people with disabilities gathered in
Montana's Capitol to deliver a message to Governor Judy Martz. The Coalition
of Montanans Concerned with Disabilities wants the governor to stop the
department from using this argument.

"Governor Martz should instruct the Department of Public Health and Human
Services not to make any legal arguments that would endanger the rights of
people with disabilities to participate equally in the lives of their
communities, under the ADA, the Social Security Act or any other law, now or
in the future," said Carol Ann Hovland, president-elect of the Coalition of
Montanans Concerned with Disabilities.

"We cannot allow the few federal mechanisms that protect our basic freedoms
to be sacrificed on the altar of state’s rights," said Michael Regnier, who
is a member of the coalition and of the Governor’s Advisory Council on
Disability.

According to a brief article in Tuesday's Billings Gazette, the department
is still not sure whether it will actually use the "states’ rights"
argument. The state Assistant Attorney General Kimberly Kradolfer, who is
representing the department in the case,
said the department will have a decision by the end of this week.
--
Sent to this list by:
Dave Reynolds, Editor
Inclusion Daily Express / Inclusion Weekly Review
Disability Rights Email News Service
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