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URGENT ALERT - Olmstead and Rodriguez

Justice For All
jfa@jfanow.org
Olmstead and Rodriguez
Bob Griss, Bgrisscdh@aol.com, writes:
URGENT ACTION NEEDED-OLMSTEAD VICTORY DISMANTLED BY 
DISASTROUS RODRIGUEZ COURT DECISION, THREATENING FUTURE 
OF COMMUNITY-BASED SERVICES 
Many of you responded to an action alert in September by protesting a harmful decision of the Second Circuit Court of Appeals in Rodriguez v. DeBuono, which seriously threatens the integrity of the ADA. Rodriguez allowed New York to implement a wholesale cutback in Medicaid home care services, despite the inevitable result that thousands of people will be forced into nursing homes - entirely defeating the ADA's integration mandate and the Olmstead decision. Many of you sent letters asking federal officials at the Health Care Financing Administration to issue a corrective instruction that would point out the serious errors in the Second Circuit's decision applying Medicaid regulations as well as the ADA. The hope was that a clarifying memo from HCFA would lead the Supreme Court to review and reverse the decision. 
Despite advocacy efforts, HCFA did not take any corrective action and the Supreme Court declined to review this damaging Second Circuit decision. The ruling is now FINAL. Unless the Health Care Financing Administration (HCFA)
in the waning Clinton-Gore Administration-issues a directive immediately telling State Medicaid programs that Rodriguez is wrong, the decision's potential for harm will dismantle the rights of persons with disabilities in New York, Connecticut and Vermont-and in other states that will undoubtedly follow the decision. 

Rodriguez has already been followed within the Second Circuit to reject a challenge by homeless New Yorkers living with AIDS, who, under the ADA, challenged New York City's refusal to provide adequate emergency housing that accommodated the special needs of people living with AIDS. Wright v. Giuliani, 2000 U.S. App. LEXIS 26796 (2d Cir. 2000). Following the distorted reasoning of Rodriguez, the Court held that the ADA did not require provision of the emergency housing sought because it was a so-called new and additional benefit, not merely a "reasonable accommodation" to afford the plaintiffs "meaningful access" to the City's emergency housing program. 
ACTION NEEDED: Write President Clinton and the other federal officials and politicians listed at the end of this Alert to demand that HCFA immediately clarify how state Medicaid programs must follow the ADA and the Medicaid law. A letter sent to President Clinton this week by the Center on Disability and Health several other groups is copied below, which explains in detail how Rodriguez distorts the ADA and the Medicaid law. You can write a short letter to the officials listed below stating that you support this letter and urge them to pressure HCFA to act immediately, or write your own letter. Tell them that HCFA must tell Medicaid programs that they-
1) may not attempt to discriminate against people with disabilities generally, or between groups of people with particular disabilities (such as between people who are physically or cognitively disabled), by so narrowly defining the relevant benefit or service as to exclude one group or the other; 
2) may not refuse to provide a covered benefit to a person or group 
in a 
community setting if they provide that same benefit in an institutional 
setting; and 
3) must provide services that are sufficient in amount, duration, and scope to reasonably meet the purpose of the entire category of services. 
On the campaign trail, Vice President Gore recently stated that: "No one should be kept in a nursing home or institution if they can live in the community with affordable support." We must demand that the Administration move from rhetoric to action and uphold the ADA's promise of enabling disabled individuals to live as independently as possible in the community. It must take immediate action to nullify the adverse impact of the Rodriguez decision. 
We urge you to write, fax (202-456-2461) or e-mail the following individuals on this crucial matter: 
Hon. William J. Clinton
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
E-mail: president@whitehouse.gov 

Vice President Al Gore
Office of the Vice President
Washington, D.C. 20501
E-mail: vice.president@whitehouse.gov

Hon. Hillary Rodham Clinton
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
E-mail: first.lady@whitehouse.gov

Hon. Tipper Gore
Office of the Vice President
Washington, D.C. 20501
E-mail: mrs.gore@whitehouse.gov

--

(Letter to President Clinton)
Center on Disability and Health
1522 K Street, NW, Suite 800
Washington, DC 20005
202.842.4408
fax 202.842-4202
Bgrisscdh@aol.com

November 29, 2000

President Bill Clinton
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

RE: IMMEDIATE ACTION NEEDED TO SAVE ADA FROM 
RODRIGUEZ COURT DECISION ENDANGERING DISABLED 
INDIVIDUALS NATIONWIDE

Dear President Clinton:
One of the most important legacies of your Administration has been its vigorous enforcement of the Americans with Disabilities Act. Under your leadership, the Justice Department won the landmark ruling by the United States Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999), which establishes the principle that the "integration mandate" in the ADA requires states to provide supportive services for persons with disabilities so that they can live in their communities rather than in nursing homes. 
Unfortunately, a recent ruling by the Second Circuit Court of Appeals in the case of Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. Oct. 6, 1999) threatens to cripple the rights of persons with disabilities in New York, Connecticut and Vermont-and in other states that will undoubtedly follow the decision. Unless the Clinton-Gore Administration, through the U.S. Department of Health & Human Services' Health Care Financing Administration (HCFA), takes immediate action to address Rodriguez, the decision will directly undermine, and ultimately perhaps destroy, the considerable promise that the ADA holds out for persons with disabilities who seek to live in the community as independently as possible. We understand that HCFA is now working on a directive that will address some of these issues, and ask you to ensure that adequate corrective action is taken.
SUMMARY: The Rodriguez ruling mis-interprets both the ADA and federal Medicaid regulations in a manner so pernicious that it essentially repeals the ADA's integration mandate and renders meaningless the key federal Medicaid regulation that has long set a minimum standard for the "amount, duration and scope" of services a state Medicaid program provides. First, the court allows states to avoid any claims of discrimination under the ADA by playing games with semantics, defining their benefits in ways that are inherently discriminatory but immune from challenge. Second, the court flippantly dismisses the ADA's integration mandate and the Supreme Court's Olmstead decision as inapplicable. Third, by stripping the federal Medicaid regulation of any meaning, the ruling allows states unfettered discretion to scale back the scope of their crucial medical services without any accountability. 
BACKGROUND: The Rodriguez case involved a challenge by Medicaid recipients who have disabilities, many of whom are elderly, to harsh cutbacks in New York's Medicaid personal care program-cuts that will deprive thousands of needy disabled New Yorkers of crucial personal care services and ultimately force them into nursing homes. New York's Medicaid program provides personal care services to assist persons with disabilities to carry out their normal daily activities, for up to 24-hours per day depending on the individual's needs. In a departure from 20 years of practice, New York suddenly decided that only the need for physical assistance would be counted in assessing the amount of personal care to authorize. The verbal cueing and supervisory "safety monitoring" needed by persons with Alzheimer's disease and other cognitive impairments no longer counts. As a result, people with physical impairments are eligible for up to 24-hours a day of personal care, while people with cognitive impairments qualify for, at most, a few hours of care. As the reduced amount of care is not enough to maintain them safely at home, they are forced into nursing homes where they then receive exactly the care they were denied while at home. Furthering this irony, and injustice, is the fact that those who get an adequate amount of personal care service because of the physical nature of their disabilities are also provided with any necessary safety monitoring during all the hours that the personal care attendants are present. 
THE SECOND CIRCUIT'S ADA RULING: The Second Circuit found that this disparate treatment on the basis of the type of a person's disability was not discrimination, even though the Supreme Court in Olmstead specifically found the ADA to apply to discrimination among groups of disabled individuals. 
527 
U.S. 581, 598 at n.10 (1999). In reaching its conclusion, the Second 
Circuit fell into a common semantic trap wisely anticipated by the 
Supreme 
Court in an earlier decision, Alexander v. Choate, 469 U.S. 287 (1985). The
Court there warned that, "'Anti-discrimination legislation can obviously 
be 
emptied of meaning if every discriminatory policy is 'collapsed' into 
one's 
definition of what is the relevant benefit.'" 469 U.S. at 301 n.21. That is
exactly what happened in Rodriguez, where New York was allowed to invent its
own definition of the relevant benefit-personal care-as care that 
is 
solely physical assistance. With the relevant benefit so defined, 
people 
with cognitive impairments can never complain that they are being denied 
"personal care," since what they need is verbal rather than physical 
assistance. By characterizing the non-physical care needed by the 
cognitively impaired as a so-called "separate service" of "safety 
monitoring" 
(even though it is provided by the very same aides who provide physical 
care), the Court allowed New York to deny those with cognitive 
impairments 
access to the same benefit available to those with physical impairments 
- 
personal care services in amounts up to 24 hours a day to maintain them safely at home. 
This tactic of redefining a service in such a way that it excludes persons with a particular disability is extremely dangerous, and will have an impact far beyond issues of access to community based long-term care and other Medicaid services . For example, in a case that actually occurred years ago, a housing authority tried to evict a blind woman because she had a seeing eye dog and the housing authority had a "no pets" rule. The housing authority claimed that the "relevant benefit" they were providing was not "low-income housing," for which the woman was clearly eligible but for the presence of the dog, but rather "low-income housing for people who can live without animals." Since the woman claimed she couldn't live without her dog, the housing authority argued, she simply wasn't "otherwise qualified" for the relevant benefit. Not surprisingly, the housing authority lost. But the Rodriguez court accepted essentially the same argument from New York. Second, Rodriguez incorrectly found the Olmstead decision of the Supreme Court-and the entire integration mandate of the ADA-inapposite. Quoting Olmstead as requiring only that states not discriminate "with regard to the services they in fact provide," the Second Circuit concluded that since New York provided safety monitoring to no one, it could not be discriminating by not providing it to the plaintiffs. Under this reasoning, a state that refused to treat anyone with a mental illness in the community, but rather required even the most minor care to be provided in an institution following a commitment proceeding, would not be violating the integration mandate of the ADA because it provided "community mental health services" to no one. This reasoning eviscerates the ADA, and poses an enormous threat to persons with disabilities nationwide as they advocate for their states to implement the integration mandate upheld by Olmstead. 
What the Second Circuit failed to take into consideration is the admitted fact that New York does pay for safety monitoring provided to a person with a cognitive disability who is put in a nursing home. Indeed, when some of the Rodriguez plaintiffs are no longer able to cope in the community because they have been denied personal care services, they will enter nursing homes explicitly to receive those services. So, it is not the case that New York does not pay for the personal care needed by the cognitively impaired. It is merely the case that in order to receive such care, a person must be willing to live in an institution, here, a nursing home. This is exactly the type of unnecessary segregation of people with disabilities that the ADA is intended to address, and that the Olmstead court declared to be a form of prohibited discrimination. 
THE SECOND CIRCUIT'S MEDICAID RULING: Rodriguez grossly distorts the
long-standing federal Medicaid regulation that requires that, in every 
state's Medicaid program, "[e]ach service must be sufficient in amount, 
duration or scope to reasonably achieve its purpose." 42 C.F.R. § 
440.230(b)(emphasis added). Before Rodriguez, many courts as well as 
HCFA 
properly interpreted this regulation to mean that the scope of a 
particular 
medical service provided by a state must be sufficient to reasonably achieve
the purpose of the applicable federal category of services, such as the categories of prescription drugs or physician's services, or, as in this case, the category of personal care services. This interpretation held states to a critical minimum standard of quality health care. Departing from that precedent, Rodriguez holds that a court need not examine the purpose of the benefit category. Thus the court refused to consider whether New York's refusal to provide "safety monitoring" for people with Alzheimer's disease rendered the state's personal care benefit insufficient to reasonably achieve the purpose of personal care services, which is unquestionably to enable persons who are disabled or elderly to remain safely in their homes. The Court held that the State need only meet the purpose of a particular service or treatment within a category, no matter how narrowly and arbitrarily that service or treatment - and its purpose-is defined by the State. 
Here, 
New York defined its personal care service as hands-on physical care. Having allowed the state to employ that self-serving definition, the Second Circuit of course then had no difficulty finding that the refusal to provide verbal supervision for persons with cognitive impairments did not defeat the service's purpose. 
ACTION NEEDED: Advocates from around the country have pressed the Health Care Financing Administration (HCFA) to correct, through a State Medicaid Director letter addressed to all states, the clear errors in the Rodriguez decision regarding both the ADA and the federal "amount duration and scope" regulation. While HCFA cannot undo all of the harm done by the Second Circuit's opinion, it can, as the agency that administers the Medicaid program-the principal provider of community-based services nationwide- greatly limit the Rodriguez decision's impact and precedential value. This dangerous ruling already controls in the Second Circuit and likely will be followed by Medicaid agencies nationwide-unless HCFA acts now. 
Indeed, 
HCFA has issued much useful guidance to the states over the last year to assist in the implementation of the Olmstead decision, but that guidance is in danger of being swallowed by the decision in Rodriguez. To avoid such a result, and a world in which people with disabilities are once again condemned to institutions, HCFA must act quickly to clarify that Medicaid services intended to allow people to live at home whenever possible must be provided to ALL Medicaid recipients with disabilities - whether their impairments are physical or mental in nature.
We, therefore, ask you to reaffirm your commitment to this goal by ensuring that HCFA is directed immediately to clarify that state Medicaid programs: 
1) may not attempt to discriminate against people with disabilities generally, or between groups of people with particular disabilities (such as between people who are physically or cognitively disabled), by so narrowly defining the relevant benefit or service as to exclude one group or the other; 
2) may not refuse to provide a covered benefit to a person or group 
in a 
community setting if they provide that same benefit in an institutional 
setting; and 
3) must provide services that are sufficient in amount, duration, and scope to reasonably meet the purpose of the entire category of services. 
In the absence of such a statement, the Rodriguez decision will 
stand as 
a virtual blueprint for discrimination against and 
re-institutionalization of 
the most disfavored persons with disabilities. With such guidance, which merely reflects the stated will of Congress, we as a nation can realize the great potential, which the ADA and the Medicaid Act present, for integrating all persons with disabilities into the community.
Your administration has generated more progress for people with disabilities than perhaps any other in history. We know that preserving this progress in the years to come must be as important to you as it is to those who have benefitted directly from it. We therefore thank you in advance for your anticipated prompt attention to this most important matter."

--

For more info:
Sheldon V. Toubman
New Haven Legal Assistance Association
426 State Street
New Haven, CT 06510
(203) 946-4811, ext. 148 (phone)
(203) 498-9271 (fax)
SToubman@nhlegal.org

Bob Griss, Director
Center on Disability and Health
1522 K Street, NW, Suite 800
Washington, DC 20005
202.842.4408
fax 202.842-4202
Bgrisscdh@aol.com


--
Fred Fay
Chair, Justice For All
jfa@jfanow.org
http://www.jfanow.org 

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