Monday, June 29, 2009

Stop! In the Name of Civil Rights!

Exciting news! The Health and Human Services (HHS) Office on Civil Rights recently began investigating the state of Kentucky's Medicaid system for violation of the ADA, due to their cutting in-home services for people with disabilities. This is an interesting issue that bears discussion - one of the implications of having civil rights that are, at least in part, dependent on government funding streams is that a denial or cutting of those streams represents a violation of those civil rights. This is not how we typically understand rights discourses and is often the cause of political backlash as states face tight times fiscally. At the same time, how can any disability rights advocate deny that the support a person needs to not be relegated to an institution and to be able to meaningfully participate in the community is a civil right?

Another element of this does come up. For one thing, it is not the mere cutting of services that constitutes a civil rights violation. The landmark Olmstead v. L.C. case highlighted the fact that it is a violation of the ADA's integration mandate to offer services in an institutional setting but not in a community living setting. Thus the issue of context comes up - the civil rights violation is not simply as a result of a failure on the part of the state to provide support. It is as a result of a failure on the part of the state to provide a kind of support in the context of other support it is providing. This reminds me somewhat of the Abbott v. Burke decisions in my home State of New Jersey on school financing equity, which highlighted the need for the state to redirect some of the tax revenue from property taxes in wealthy districts to fund education in districts with low tax revenue from property taxes, in the interests of educational equity. Whether there should be a basic floor as far as minimum school funding was not the issue - it was whether or not there was a need to mandate equality of opportunity as far as district action in the educational context that brought about the civil rights claim.


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