Debilitating Alexander v. Choate: "meaningful access" to health care for people with disabilities.

• Author: Francis, Leslie Pickering

INTRODUCTION

Since 1985, Alexander v. Choate (1) has stood for the proposition that financially-motivated limitations and cutbacks in state-provided health care services imposing significant negative impacts on people with disabilities are very difficult to challenge successfully under the Rehabilitation Act of 1973 ("Rehabilitation Act") (2) and, for similar reasons, under the Americans with Disabilities Act of 1990 ("ADA"). (3) During the twenty years following the Choate decision, acquiescence in this proposition has largely prevailed. (4) This discouraging picture, however, reads Choate far too expansively. In this Article, we develop a strategy for addressing and, we hope ultimately, circumscribing Choate's influence and debilitating its effects.

Part I of this Article analyzes in detail the Court's decision in Choate. Part II then establishes how a wide array of cases, both in and out of the health care area, have explained the meaningful access requirement under the ADA, which the Choate Court analyzed in terms of the equal opportunity to make use of or enjoy a benefit or service. Part III suggests, in light of several examples, that understanding meaningful access in terms of equality of opportunity may provide a blueprint for success despite Choate. Finally, this Article concludes that the meaningful access standard should be understood in terms of fair equality of opportunity. This reading brings Choate in line with Congress's goal in passing the ADA to provide equal opportunity for people with disabilities. (5)

1. ALEXANDER V. CHOATE

   In 1980, Tennessee was facing the all-too-familiar story of a state Medicaid program that was costing more than legislators wished to pay for it. (6) Tennessee therefore proposed a limit of fourteen hospital days per year for each Medicaid patient. (7) Although this limit would have affected all Medicaid recipients and thus was equal in this formal sense, it would have had significant deleterious consequences for a greater percentage of Medicaid recipients with disabilities. (8) The undisputed statistical evidence was that in the year before the proposed limit, 27.4% of all users of hospital services with disabilities who received Medicaid required more than fourteen days of care, while only 7.8% of non-disabled users required more than fourteen days of inpatient care--a three-fold difference. (9) Tennessee Medicaid recipients brought a class action suit and challenged the limit under section 504 of the Rehabilitation Act's prohibition of discrimination against people with disabilities in programs receiving federal funding. (10) The proposed fourteen-day limit was actually a reduction from an existing state limit of twenty days per-year per-Medicaid recipient, and the challengers also argued that any such flat limit violated section 504. (11) As part of their challenge, the plaintiffs proposed instead a per-episode-of-illness limit, fashioned along the lines of good medical care, as a distributive approach to reduce Tennessee Medicaid costs without unduly burdening people with disabilities. (12)

   The Supreme Court, in a unanimous decision written by Justice Marshall, upheld the Tennessee plan to reduce Medicaid expenditures. (13) The decision, as we shall argue, both reaffirms the possibility that section 504 permits litigation challenging programs with disparate impact on people with disabilities and reaches the conclusion that the Choate plaintiffs had not shown the type of disparate impact that would allow their lawsuit to succeed. Subsequently, commentators have paid less attention to the positive affirmation the Court expressed in Choate. (14)

   The Court began its analysis in Choate by rejecting outright the idea that section 504 prohibits only intentional discrimination. (15) Thoughtlessness, indifference, and "benign neglect" were, in the view of the Court, critical causes of the wrongs against people with disabilities that Congress had sought to remedy with section 504. (16) Much of the conduct Congress sought to change with section 504--architectural barriers, mal-designed systems of public transport, and special educational and rehabilitation services--was not the product of intentional discrimination but of patterns of failure to see harms by effect as parallel to harms by design. (17) Thus, the Court determined that patterns of exclusion, even if unintentional, may violate section 504--holding open the door to disparate impact litigation under section 504 in health care and in other arenas. (18)

   The Court, however, also rejected the contention that section 504 was intended to reach every case of disparate impact on people with disabilities in federally funded programs. (19) Section 504 was meant to be kept "within manageable bounds." (20) And so the difficulty for the Choate plaintiffs was that section 504 did not assure equal results for the disabled and the non-disabled alike. (21)

   To sketch the parameters of those "manageable bounds," the Court turned to its previous decision in Southeastern Community College v. Davis, (22) which held that section 504 of the Rehabilitation Act did not require the college to compromise its program integrity by admitting a student who was not otherwise qualified for admission. (23) "Otherwise qualified" students must receive "reasonable accommodations" to afford them "meaningful access," but additional modifications in programs were not required. (24) Applying this reasoning to the circumstances in Choate, the Court concluded that the fourteen-day limit did not eliminate "meaningful access." (25)

   It is important to note that there is dissimilarity between Davis and Choate that is not made explicit in the Court's reasoning here. In Davis, the analysis was about whether the student in question was otherwise qualified. (26) The plaintiff in Davis was a hearing impaired student at the College who sought admission to its nursing program. (27) The College refused her admission on the basis that she could not safely participate in its clinical training program and would not be able to practice as a registered nurse. (28) Modifications in the program to allow her to participate would prevent her from achieving the program's learning objectives because she still would not be qualified to practice as a nurse. (29) In Choate, there was no question about whether Tennessee Medicaid patients were "otherwise qualified" to receive health care services; the issue was whether, with the fourteen-day limit, they were provided meaningful access to the services they were given. (30) The challengers in Choate, of course, argued that limiting people with disabilities to fourteen days of hospitalization prevented them from having "meaningful access" to health care. (31)

   To the claim that the fourteen-day limit would not provide meaningful access, the Court replied that both disabled and non-disabled Medicaid recipients would receive fourteen days of care: each, alike, had "meaningful" access to that benefit. (32) Tennessee's Medicaid, moreover, should not be regarded as providing adequate health care, or even adequate health, but as providing a "package of health care services," among which fourteen days of hospitalization were included. (33) The Court's reasoning here rested on a specific understanding of the benefit in question: Tennessee had chosen to provide a limited benefit--fourteen hospital days--and this benefit was available, in the same way, to both the disabled and the non-disabled alike. (34)

   To the claim that fourteen days--or indeed any across the board--limit on hospital days fails to provide meaningful access because it resulted in a state Medicaid plan that disparately affected people with disabilities, the Court responded that in enacting section 504, Congress had not intended substantial changes in state Medicaid plans. (35) Although Congress had intended changes that would eliminate other barriers inherent in system design, the Court found that barriers implicit in state-funded health plans were not among them, stating that:

   Congress did focus on several substantive areas--employment, education, and the elimination of physical barriers to access--in which it considered the societal and personal costs of refusals to provide meaningful access to the handicapped to be particularly high. But nothing in the pre- or post-1973 legislative discussion of section 504 suggests that Congress desired to make major inroads on the States' longstanding discretion to choose the proper mix of amount, scope, and duration limitations on services covered by state Medicaid. (36) Section 504 was not a guarantor of equal health or even equal access to health care; it was instead a prohibition on exclusion of people with disabilities from health care provided to others. (37) Congress's focus in the legislative history of section 504 on the areas of employment, education, and elimination of physical barriers is understandably relevant to the purpose of the Rehabilitation Act, which is to assist people with disabilities in qualifying for the workforce. (38) The ADA, by contrast a civil rights act, is much broader and more basic in purpose than legislation focused on rehabilitation services.

   The core of the Court's approach in Choate was that the fourteen-day limit applied to the disabled and the non-disabled alike. (39) There were no barriers to this benefit as everyone could use it. (40) Therefore, everyone had "meaningful access" to the benefit provided, or so it might seem. There is, however, a gap in this reasoning. A fourteen-day hospital stay is "meaningful" for those whose conditions can be adequately treated within a fourteen-day period. For those whose conditions require more, such as patients requiring high-dose chemotherapy plus stem cell rescue, fourteen days of hospitalization might as well be no benefit at all. Limiting hospitalization to fourteen days thus provides meaningful benefits to many, but benefits that are not...