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  •   Justices Weigh Rights of Mentally Disabled

    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, April 22, 1999; Page A14

    The Supreme Court heard arguments yesterday over whether federal law requires states to place mentally disabled people in community homes instead of hospitals, in a case that cuts to the heart of how many disabled live.

    The dispute is one of a record five cases the court is considering this term on the breadth of the 1990 Americans With Disabilities Act, which is meant to open doors to the nation's disabled, provide them with jobs and greater access to public buildings, and engender dignity. Unlike the four other cases that relate to job discrimination, yesterday's dispute dealt with services that states provide to the mentally disabled.

    Because it evokes the nation's checkered experience with institutionalized care, the case has become a rallying point for disabilities rights groups trying to get more people out of state hospitals and broaden their acceptance in the community. One grass-roots organization called Adapt held a candlelight vigil Tuesday night, and its members many in wheelchairs or using canes camped out on the steps to ensure that they could get places in the white marble courtroom.

    In recent decades, attitudes toward the mentally disabled have changed and many states have moved toward treatment in residential settings. However, advocates for people with disabilities say that some states, including Georgia, have been slow to change from institutional to community services.

    Two Georgia women with mental illnesses sued state officials for keeping them in a psychiatric hospital long after they qualified for a community residential setting. A federal appeals court sided with the women and ruled that the state violates the disabilities law when it keeps a person in an institution even though community placement is appropriate.

    During yesterday's hearing on Georgia's appeal of that decision, Supreme Court justices wrestled with the question of what would actually be best for the mentally disabled.

    "What bothers me," said Justice Stephen G. Breyer, is the possibility of a ruling "which, as it works out in the real world, leaves many who need to be in institutions . . . abandoned on the streets." Justice John Paul Stevens similarly raised concerns that if the justices affirmed the 11th Circuit Court of Appeals, states would push people out of hospitals before they were ready for community-based facilities.

    But Justice Anthony M. Kennedy homed in on the potential discrimination in Georgia. "Are you putting up some extra barriers?" he asked of a state lawyer defending Georgia's policy of restricting community treatment. He questioned whether mentally disabled people were shunted off to institutions and offered limited options for treatment and counseling because of their disabilities.

    A key provision of the disabilities law says "no qualified individual with a disability shall, by reason of such disability . . . be subjected to discrimination" by a government program or service. The attorney general has said that means state programs must be offered "in the most integrated setting appropriate to the needs" of people with disabilities.

    Justice David H. Souter appeared most sympathetic to arguments that once the women no longer needed hospitalization they should immediately be placed in the community. At the other end of the spectrum, Justice Antonin Scalia suggested that states have little, if any, obligation to offer community treatment and spoke of its potential expense to taxpayers.

    According to lawyers in the case, Lois Curtis, 31, is mildly mentally disabled and has been diagnosed with schizophrenia. Elaine Wilson, 47, is mildly retarded and has a personality disorder. Both women were patients at the Georgia Regional Hospital in Atlanta when the staff determined they could be treated in state-run community residences. Because there were no openings, the women ended up on waiting lists.

    Yesterday, Beverly Patricia Downing, the senior assistant Georgia attorney general, said that even if a person can be treated in a community setting, that does not make hospital treatment discriminatory. She contended that the federal act was not a mandate for the "least restrictive treatment."

    But Michael H. Gottesman, a lawyer for the women, emphasized that Congress sought to end "the isolation" that the mentally disabled often face. He said Congress wanted to stop states from requiring segregation from the community as the price for receiving needed services.

    Responding to the justices' fears of needy people being abandoned, Gottesman said that because medical professionals would be determining what settings were best, people who required continued hospitalization would not be pushed out.

    Siding with the women in the case of Olmstead v. L.C., assistant solicitor general Irving L. Gornstein told the justices that when state health professionals determine that it is "appropriate" to place a disabled person in a residential setting, the state must follow through.

    © Copyright 1999 The Washington Post Company

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