A federal judge has dismissed a lawsuit filed by the Disability Law Center that claimed the state has not acted quickly enough to provide assistance to family members who care for disabled relatives rather than institutionalize them, which has resulted in a lengthy waiting list.

The center filed suit in 2002 on behalf of individuals alleging, among other things, that the state did not have a formal plan to ease the ever-growing waiting list.

This slowness in providing help was, in essence, a form of discrimination because it violated several federal laws including those involving Medicaid and the Americans with Disabilities Act, the center claimed.

Utah has received federal permission to provide home- and community-based service under a waiver program that helps a limited number of people who meet certain criteria and who otherwise would most likely be institutionalized within a month.

But, in a ruling made public Wednesday, U.S. District Judge Dale Kimball ruled that Utah does in fact have a plan to address the waiting list.

He also agreed with the state's argument that the individual plaintiffs do not fit the criteria for the waiver because they cannot show they are in imminent danger of being institutionalized.

"While the court is sympathetic to the hardships and frustrations experienced by plaintiffs and their families, the court concludes the plaintiffs have not demonstrated that they meet the 'essential eligibility requirements,' " for waiver services, the judge wrote.

Even if these individuals were in imminent danger of being put in an institution, they cannot show that state officials handle the waiver system in a way that intentionally discriminates against them personally or against other disabled people as a class, according to Kimball.

The judge also addressed the expense of accommodating those on the waiting list.

"While cost alone is not sufficient to establish a fundamental alteration/undue burden defense, a state can succeed by showing that the budget costs would compel cutbacks to others who receive necessary services and that the state has a comprehensive plan to moving eligible individuals out of institutions and providing home- and community-based services," he wrote.

Kimball said the state has shown that serving everyone on the waiting list would cause the state to spend all the funds budgeted for these needs, which would "fundamentally alter" the state's ability to help other disabled people, cut employee salaries, and would substantially slash or even end other services.

"Overall we're pleased with the decision because it means we can return our focus to helping people with disabilities receive services," said Carol Sisco, public information officer for the Utah Department of Human Services.

"This opens an opportunity to have more dialogue with the advocate community. We can sit down and talk to each other now — we're not in litigation. We can look at solutions for reducing the waiting list and look at services and ways to help while they're waiting," Cisco said.

She said the disabilities division last year served 4,233 Utahns with disabilities, but about 1,900 are still waiting for assistance.

The idea of sitting down and talking about ways to improve things was good news for Fraser Nelson of the Disability Law Center. "We certainly look forward to working with them to develop a plan to meet the needs of these citizens," Nelson said. "We both share a common goal, which is to get efficient and effective services to people with disabilities."

She noted the timing of Kimball's ruling, which came on the final day of the 2006 legislative session.

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"It's time for everybody here to realize the solution to this problem is in this building," she said from the State Capitol Wednesday.

She hopes the lawsuit, as well as discussions during the just-ended session, have raised public awareness of the problems posed by the nearly 2,000-person waiting list enough to force lawmakers to finally address the issue.

Advocates this year pushed hard for full funding of the waiting list — estimated at $8.2 million — but received just $1.6 million in ongoing funding.


E-mail: lindat@desnews.com; awelling@desnews.com