Wednesday, Dec. 9, 1998 | 11:10 a.m.
The strain finally got to Arleen Post as she sat before the Regional Transportation Commission's appeals board on Nov. 18, 1997. The RTC, which manages the Citizens Area Transit bus system, had ruled in August that Post no longer qualified to ride CAT's paratransit service for the disabled.
The rejection set off a volcano of emotions in Post, who suffers from a degenerative spine condition, heart disease, severe arthritis and blindness in her right eye. Her exasperation comes through loud and clear on the RTC's tape recording of the appeal hearing.
Post's voice rises as she argues her case before the three-person panel and an RTC official. She interrupts board members and disputes their assertions. At one point, the state social worker assigned to Post at the time, Dorna Calkins, asks her to calm down.
She mellows slightly, struggling to tame her anger while explaining her need for paratransit. Sounding contrite by meeting's end, Post apologizes to board members as she leaves the room. "I get so upset sometimes... I'm sorry if I came off as angry or anything. It's certainly not with you guys...," she says.
Less than a minute later the joking begins. Board members Rick Mahone, John Malone and Benjamin Zvenia, polite throughout the hearing, become flippant once Post shuffles out of earshot.
"Boy, if that poor social worker has a couple of those--" Malone says.
"She's got a hundred of those," Mahone interjects, laughing.
"She got herself her hands full," Malone continues. He then reads off a report supplied by the Jean Hanna Clark Rehabilitation Center, which screens prospective paratransit riders for CAT, about Post's behavior during her mobility test three months earlier.
"Boy, I'll tell you, this statement comes out kind of true, though, doesn't it? 'S.O.B. [shortness of breath], paused for a few seconds. Talked nonstop, noticed that she was not distressed enough to... stop talking.' Boy, is that true."
The comment meets with laughter, followed by more banter.
"She's got pretty good breath control as far as I'm concerned," Mahone says.
"Wonderful breath control!" Zvenia chimes in.
The discussion eventually turns serious, with the three men considering Post's medical reports against her refusal to finish the mobility test. Still, they can't resist a few more wisecracks on their way to upholding the decision to deny her paratransit access. One member apes Post's mispronunciation of an RTC worker's name. Another quips that she is the reason then-Paratransit Manager Ron Davis planned to retire.
Last week, a year after the meeting, Post leafed through the RTC's transcript of the hearing -- a transcript from which the social worker jokes quoted above are conspicuously absent. She wiped away tears with a crumpled tissue.
"This is a denial of one person's rights. What is the sense of all this?" she said.
These days Post's frustration is surpassed only by desperation. She sued the RTC this spring with the help of Clark County Legal Services attorney Sara Winter. The lawsuit gave Post hope that she would regain her paratransit eligibility -- until Winter dropped the case in August.
Unable to afford another lawyer -- Post survives on a $494 monthly disability check -- the former casino waitress opted to represent herself. Winter handed over the information she had compiled, including the tape.
Post, 64, already felt wronged by the physical therapist who conducted her mobility test, RTC officials and the appeals board. Listening to the tape "and all that garbage they said about me" persuaded her that she had an even stronger case.
Trouble is, without an attorney to guide her through the legal labyrinth, Post is lost. Persistent headaches and sleepless nights have gnawed away at her resolve. Scheduled to attend a deposition Friday at the office of RTC attorney Gloria Sturman, Post wonders how much fight she has left in her.
"I just want my day in court. I just want to show what the RTC has done to me...," she said in a faint rasp. "They've taken away everything. They've taken away my freedom of choice."
[SUBHEAD: Who's the better judge?]
The RTC established a third-party certification process for paratransit riders in January 1997. Prior to then, CAT accepted anyone who filled out a self-evaluation eligibility form, making paratransit the cheapest casino shuttle in town for able-bodied seniors.
Certifying potential riders, who now must complete an in-person interview and a functional skills test at the Jean Hanna center, weeded out the abusers of the system. The RTC has managed to winnow the number of paratransit riders in Clark County by more than half since 1996, from 18,000 to 8,000.
More significantly, certification brought the RTC into compliance with the American With Disabilities Act. Passed in 1990, the law stipulates that agencies operating a fixed-route bus system offer "comparable complementary paratransit services" for the disabled.
It's here, however, that the controversy erupts: The law also states that if a person's handicap makes it "more difficult... but does not prevent" him from traveling to regular bus stops, there is no guarantee of paratransit eligibility.
Advocates for the disabled criticize the RTC for applying that aspect of the ADA too rigorously, jilting dozens of previously legitimate paratransit riders such as Post. Not so, countered RTC Director Kurt Weinrich.
If every disabled person were allowed onto paratransit, Weinrich said, someone who truly needed the service might end up without a ride -- an oversight that could ensnare the RTC in costly civil rights litigation. Mobility testing reduces the odds of that happening, he said.
"It's not a question of what kind of disability they have, but whether that disability prevents them from using the fixed-route system," Weinrich said.
Post, a paratransit rider since the service's launch in 1994, visited the Jean Hanna center for certification last August. She received passing marks on much of the mobility test, but fearful of tripping, refused to finish a short walk through a rock bed and to climb a set of simulated bus stairs.
"That's why I was talking (during the test)," said Post, who gets around with the help of a cane. "It was hurting me and I couldn't do it. I can't walk in the rocks. That's too much hurt on my hip. Should I fall down to please them?"
Post admitted to clashing with the Jean Hanna therapist who handled her certification. She insisted, then and now, that the worker omitted crucial details in the test report, including her inability to walk more than a short distance without stopping and the pain she felt in her legs.
The therapist denied paratransit eligibility to Post, concluding in the report that she "demonstrates the abilities needed to access the fixed route bus." The score sheet indicates she walked at least 200 feet without signs of physical distress, "a pure lie," Post said.
A call to the Jean Hanna center was referred to an RTC spokesman, who declined to comment on Post's lawsuit. Added Weinrich: "Ms. Post has her right to pursue the matter in court, and that's where that matter has to be hashed out."
RTC officials acknowledged that paratransit applicants who refuse to complete the mobility test -- whatever the reason -- generally are denied the service. The emphasis placed on the evaluation over other evidence baffles both Post and Calkins.
Post provided the therapist and appeals board with medical documents from three doctors. One physician noted her back and heart ailments would make it "difficult for her to ride the usual and typical bus." Another wrote that Post "cannot walk more than 200 feet without stopping. Additionally, she cannot tolerate extreme temperatures or prolonged waiting. She cannot stand because of arthritis."
The appeals board, Post contends, relegated those assessments behind the opinion of the therapist, who according to court documents does not hold a medical degree.
"That's why I'm so angry," Post said. "I know what I can't do, my doctors know what I can't do, my social worker knows what I can't do. But this person is saying I can do these things. Who's the better judge?"
Calkins is more blunt. "I mean, what do they need, for her to be in a body cast before they believe she has a problem?"
[SUBHEAD: An imperfect system]
Paratransit represented an escape for Post from her stuffy one-bedroom apartment in Arthur D. Sartini Plaza, picking her up just outside the building's front door. She would ride the bus to a nearby medical center for physical rehabilitation exercises, or down to a casino to play bingo and catch a show.
Now, with several hundred feet to the nearest regular bus stop -- on a route she rarely would use anyway -- Post is marooned at home most days, kept company by piles of legal and medical papers. A kitchen cabinet holds a pharmacy's worth of medications, with names like Percodan and Cozaar. Post logs every pill she takes, carefully jotting down the time and dosage on a piece of notepaper.
Post's disabilities qualify her for supplemental security income through the federal government, Nevada Medicaid and subsidized city housing. Under the ADA, that's still insufficient proof of a need for paratransit, according to RTC officials.
"The federal government, the state (and) the city know I'm disabled. The idiots at RTC think they know more than the whole world!" Post said, her voice ricocheting through the apartment. "...They're not applying the law, they're hiding behind it."
Now living in Elko, Calkins works in the state's homemaker program, which provides house-cleaning services to the disabled. She has seen other clients lose their paratransit privileges since certification began, including a woman with a chronic heart condition who uses an oxygen tank to breathe. Similarly, a woman in her seventies, her body gnarled by arthritis, was booted off paratransit, Calkins said.
In cracking down on abusers, the RTC has barred some disabled people with valid demands for the service, Calkins said. She argued that the certification process is woefully inaccurate in gauging the stamina required to use the fixed-route system, which often requires riders to switch buses to reach their destination. Yet Calkins suspects more than the mobility test harmed Post's chances of regaining eligibility.
"Part of the problem (is) she can be very loud," Calkins said. "If she disapproves of something, she lets you know. She can grate. But these are the kind of people (who) if you don't grovel, they don't want to hear anything. And Arleen doesn't grovel."
RTC officials maintain that the mobility test is an impartial evaluation. Weinrich said a doctor's diagnosis, while helping Jean Hanna therapists identify an applicant's disability, rarely addresses a person's functional skills outside a clinical setting. The mobility test goes beyond a medical opinion, ensuring the RTC cleaves to federal law, he said.
"We certainly understand the plight of an individual, but we didn't make up the rules. Congress passed the ADA," Weinrich said.
Zvenia, one of the board members who heard Post's appeal, said the ADA remains an enigma to paratransit applicants and physicians alike. He repeatedly informed Post at the hearing that a demonstration of functional skills bears greater relevance than a doctor's note in deciding eligibility.
In an interview earlier this week, Zvenia cited the ADA clause that states a disabled person is not guaranteed paratransit service simply because using the fixed-route system is difficult. He had pointed out to Post that one of her own doctors said only that it would prove "difficult" for her to ride a fixed-route bus.
"Yes, you're disabled. But how does if affect you on a daily basis?" Zvenia said. "Difficult' is not 'impossible.' 'Difficult' doesn't mean you give them that service."
A Las Vegas attorney, Zvenia serves as a mediator specializing in ADA issues for the U.S. Department of Justice, and formerly worked as an independent medical examiner for the state industrial insurance system. Given his medical background, he tended to pay closest attention to an applicant's medical records when he joined the appeals board last year.
Sometime later, RTC officials and attorneys instructed Zvenia and other board members to weigh the certification process more than doctors' reports -- a nod to the ADA's guidelines on functional skills. With that in mind, the "direct conflict" between Post's medical reports and incomplete mobility test compelled the board to sustain the denial, he said.
Zvenia no longer sits on the appeals board. Nor does anyone else. In July the RTC replaced the all-volunteer board -- comprised of a 20-member pool -- with five paid hearing officers. The move toward officers, which the RTC hires as independent contractors, was spurred in part by doubts about the proficiency of the volunteer board.
While he described the board as imperfect, Zvenia said most of the 20 members had at least some experience working with the disabled. Yet Calkins questioned whether board members -- some with no formal medical or rehabilitation training -- should have tried to assess an applicant's disabilities. During Post's hearing, Zvenia, Malone and Mahone debated her breathing and gait, as well as how she handled her cane.
Zvenia, known to crack open medical texts during hearings, admitted that his studious approach was a bit of an exception.
"At times I sometimes felt that my fellow board members were not as prepared as they could've been based on the information and facts provided to them," he said.
Characterizing the board's jokes about Post as "insider humor," Zvenia said even U.S. Supreme Court justices make comments when deliberating privately that would be considered improper if caught on tape.
That's no excuse, according to Regional Transportation Commissioner David Wood. Told some of the board's remarks regarding Post, Wood deemed them "absolutely inappropriate."
"The comments and the attitude of the volunteer board... did not respect the applicant or the needs of the disabled," Wood said.
Like Wood, fellow Commissioner Bruce Woodbury cautioned that he knows few details about Post's case. Still, he said the commission has heard numerous complaints regarding the appeals process.
"If in fact there is any discourtesy or taking (of) a citizen's situation lightly, then that is troubling," Woodbury said.
The hearing officers now in place may be able to smooth over any hard feelings created by the volunteer board. Nonetheless, Calkins said, it's too little, too late.
"They didn't care a flying flip no matter what Arleen said, no matter what documents she had," Calkins said. "They already had their minds made up."
[SUBHEAD: Outrage]
Following Post's appeal, RTC officials urged her to submit to another mobility test. Post chose to take the agency to court instead, adamant that she had offered substantial medical evidence and completed as much of the test as her disabilities allowed.
Her legal prospects brightened in June when the RTC's attorney, Sturman, sent a letter to Winter of Legal Services. Sturman indicated that a recent change in paratransit eligibility criteria concerning walking speed likely would help Post qualify -- provided she finish the entire mobility test. If she passed, the RTC wanted the lawsuit dropped.
Winter responded that Post's test from August 1997 showed she already qualified under the new criteria. Rather than risk the uncertainty of another evaluation, Winter proposed that the RTC reinstate Post's paratransit access, as well as pay $2,500 in damages and $4,400 in legal fees. The offer died there. (Sturman declined to comment for this story.)
Not long after, Winter, who also refused comment, dumped the case. Post said Winter grew weary of her unwillingness to visit another doctor to further buttress her disability claims. But Winter's request for a fourth medical opinion seemed even more puzzling to Post after she turned over the case file.
Among the documents Post found is an evaluation from Columbia Sunrise Therapy Services dated May 2, 1997. The report details Post's disabilities and her functional skills: "Factors (that) increase symptoms include ascending/ descending stairs, bending, prolonged positions, standing and walking... Patient experiences pain constantly..."
The analysis also puts the maximum length of time Post can stand without upper body support at two minutes, and lists her "walking tolerance" as 10 minutes.
The existence of the evaluation shocked Post. Convinced she received a raw deal from the RTC -- and something less than a fair appeals hearing -- she now feels abandoned by Legal Services. Post suggested the Columbia Sunrise analysis, coupled with the other doctors' reports, might have prodded the RTC to overturn the denial.
Perhaps. But with no attorney and little money, the documents, tests and tape may not matter much. At this point, Post realizes the only weapon she has left is her outrage.
"They lie and they're getting away with it," she said of RTC officials. "They're hurting so many people. I just can't take it anymore. But I'm not going to let them kill me."
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