1999 By The Associated Press

CONCORD, N.H. (AP) — Attorney General Philip McLaughlin has changed his mind and decided to keep the state from joining a Georgia disability lawsuit that could be heard by the U.S. Supreme Court.

McLaughlin said Monday he reversed his decision after reviewing the case and meeting with disability rights activists who opposed New Hampshire joining the suit.

Georgia is appealing a federal appeals court decision that required the state to move a mentally disabled man from an institution into a community setting at considerable cost.

McLaughlin had upset activists when he signed a request that the Supreme Court hear the case. They're worried the lawsuit could return New Hampshire to institutionalization or give disabled people few options about where they are treated.

"It is very clear that there are differing perspectives among the state agencies concerning what the outcome of this case should be," McLaughlin said after meeting with representatives of the Department of Health and Human Services, New Hampshire Developmental Disabilities Council and disability rights activists.

He said that while it is important that questions raised by the Georgia case should be resolved by the Supreme Court, "I have weighed New Hampshire's progressive role in dealing with disabilities' rights issues against the narrow legal issue on which we joined on the request ... and have concluded that the interests of the state are best served by not joining in the amicus brief."

Advocates for the disabled were angry, in part, because they were not consulted. Given the state's past support for community-based services, "to even know that New Hampshire has signed (on) to this thing, seemingly without any discussion with the disability community, is unbelievable," said Alan Robichaud, director of the disabilities council.

Georgia is appealing a federal ruling requiring it to move a developmentally disabled person from an institution to the least restrictive community setting possible. More than 20 states have asked the Supreme Court to hear the appeal.

For several weeks, activists have peppered McLaughlin and Gov. Jeanne Shaheen with faxes, letters and calls asking who authorized New Hampshire's participation, questioning the state's motives and demanding to know whether Shaheen was in on the decision.

Pressure from disability rights activists has prompted two states to pull out of the lawsuit.

McLaughlin made his original decision after talking with the state Department of Health and Human Services, but he did not talk to Shaheen, the disabilities council, representatives of the Governor's Commission on Disability or any similar groups.

The state closed Laconia State School, its institution for the mentally retarded and people with other developmental disabilities, in the mid-1980s. It replaced it with a system of home- and community-based care.

Few expect the state to put disabled people back into a big institution, but are afraid the state would reduce services necessary to keep people in communities.

McLaughlin said such fears are misplaced.

"The only reason there would be concern is there is a misunderstanding about what the state is doing," he said.

He said the state's goal is maintaining flexibility in interpreting federal law and deciding what is reasonable.

The issue is genuine in New Hampshire because the state is being sued by a brain-injured man who lives in a nursing home. He wants to be placed in a community setting, which would cost more than $100,000 annually.

The man is on a waiting list. To grant his request, the state either would have to bypass others on the waiting list or provide services to 94 additional people.

McLaughlin said the state does not want a large institution but it may need to use group homes, he said.

Disability rights groups argue that costs of home and community care often are exaggerated. In a letter to Shaheen and McLaughlin last week, a dozen disability rights organizations urged the state not to sign on to the case.

"The state's agreeing to place its name on the brief would have profound symbolic as well as real negative consequences for thousands of New Hampshire citizens with disabilities," the letter said.


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Last updated February 5, 1999