"Meaningful access" to health care and the remedies available to Medicaid managed care recipients under the ADA and the Rehabilitation Act.

• Jurisdiction: United States
• Author: Abbe, Alexander
• Date: 01 May 1999

INTRODUCTION

In recent years, financial and political pressures have induced legislators to adopt forms of managed care for Medicaid programs. Rising health care costs,(1) the unpopularity of the Medicaid entitlement to both taxpayers and state governments,(2) and shrinking budgets(3) have made the move to managed care all but unavoidable. As one commentator puts it: "In short, rationing of health care is inevitable."(4) Given this reality, legislators and courts are finding themselves in the difficult position of deciding between the health care needs of the disabled and the financial demands of the voters, and consistently they are concluding that managed care is the only option.(5) In the U.S. Congress, this has led to the explicit endorsement of managed care for Medicaid under section 4701 of the Balanced Budget Act of 1997.(6) In Pennsylvania, this has resulted in the development of "HealthChoices," a program under which all Medicaid recipients will be mandatorily enrolled in managed care organizations ("MCOs") by 2000.(7) With this "inevitable" rationing, MCOs eventually will deny care to Medicaid patients in many circumstances. This Comment explores the potential remedies that those patients have available to them under the Americans with Disabilities Act of 1990(8) (the "ADA" or the "Act") and the Rehabilitation Act of 1973.(9)

Medicaid(10) funding has been the target of budget cuts almost since its inception.(11) Although the program has never been comprehensive, given the large number of persons ineligible for Medicaid,(12) one should not underestimate its importance to those who do receive assistance, particularly those with disabilities. For instance, "between half and three-quarters of all prescriptions for antiretrovirals are paid for by Medicaid or through state AIDS programs."(13) Nevertheless, "[i]t may be difficult for middle- and upper-class Americans to appreciate that poor people still die in the United States because medical care is refused them."(14) Many welfare advocates fear that a move to managed care(15) will bring about exactly this result.(16)

Although the benefits provided to Medicaid recipients have been shrinking, the legal rights of disabled persons have expanded, especially with the enactment of the ADA in 1990. Building on the ground broken by the Rehabilitation Act of 1973, the ADA prohibits discrimination against the disabled in the arenas of employment, public services, and public accommodations.(17) Recognizing the historical and continuing isolation and segregation of persons with disabilities,(18) and the potentially devastating "benign neglect" of the disabled that saturates American culture,(19) Congress promulgated this broad-reaching statute.

With this expansion of rights on the one hand, and narrowing of benefits on the other, a significant amount of litigation has begun to appear, brought by patients challenging decisions made by state Medicaid agencies or Medicaid MCOs under the ADA and the Rehabilitation Act. As one commentator put it, "[s]ince its enactment, the ADA is already responsible for a crippling case-load."(20) For Medicaid recipients, the relevant provisions of the Act are Title II (public services)(21) and Title III (public accommodations).(22) Under Title II, a state or local government and its instrumentalities cannot exclude from participation in a program or deny services to a person with a disability.(23) Under Title III, a public accommodation cannot discriminate against a disabled person in the full and equal enjoyment of goods and services of the accommodation.(24) Predictably, however, there are a multitude of additional requirements and exceptions affecting whether a state or MCO is responsible when it denies care. A "safe harbor" provision in the ADA blocks suits against insurance companies under Title III, as long as the insurer makes its risk assessment based on sound actuarial principles, and not as a subterfuge to defeat the other purposes of the ADA.(25) A number of courts have held that the public accommodations title applies only to physical accommodations, and because most insured persons never actually visit their insurance company's office, the insurance company does not fall within that ambit.(26) And most significantly, a Medicaid beneficiary can recover for a denial of services only when he or she has been deprived of "meaningful access" to that benefit.(27) Not all restrictions on access to public services and accommodations are actionable.

The issue of whether "meaningful access" to health care exists became the crucial inquiry in determining whether a state agency had discriminated against the disabled plaintiffs in Alexander v. Choate.(28) This widely cited case involved a challenge that Medicaid recipients brought against Tennessee's decision to reduce the yearly cap on reimbursed hospital days from twenty to fourteen. In rejecting the plaintiffs' claim, the court cited three relevant factors: the limitation did not "have a particular exclusionary effect" on the disabled, the reduction decision was not based on a standard that the disabled were less capable of meeting, and "nothing in the record suggest[ed] that the handicapped will be unable to benefit meaningfully from the coverage they will receive under the 14-day rule."(29) Outside the particular facts of Choate, however, it is uncertain what constitutes "meaningful access," and as a result the federal courts have issued a wide spectrum of decisions.(30) Some courts have gone so far as to conclude that if a recipient of a benefit has any access to the benefit, then that access is meaningful.(31) Other courts suggest a more detailed inquiry into the circumstances, examining whether the defendant has taken modest, affirmative steps toward accommodation,(32) or even whether the access provided is adequate.(33)

Given these conflicting interests, the question remains: When disabled Medicaid managed care patients are denied care, what remedies are available to them under the ADA and the Rehabilitation Act? This Comment explores the potential causes of action a disabled Medicaid managed care patient has under the ADA or the Rehabilitation Act and whether a denial of care, under recent federal court interpretations, constitutes a lack of meaningful access. Part I looks at the problems presented by Medicaid managed care and the HealthChoices program in Pennsylvania. Part II discusses the stated purposes of the ADA and the Rehabilitation Act and whether the two acts even contemplate such a suit. Part III explores the specific titles of the ADA and the Rehabilitation Act and the potential suits that Medicaid patients could bring under each. Part IV analyzes Alexander v. Choate and the establishment of the "meaningful access" test. Part V investigates recent federal court rulings for interpretations of "meaningful access" in both the health care arena and other contexts. Finally, Part VI argues for a more expansive reading of the ADA and the Rehabilitation Act, the abandonment of numerous threshold barriers to bringing suit, and a more workable definition of meaningful access in light of the goals of the ADA.

1. THE PROBLEM PRESENTED BY MCOS AND "HEALTHCHOICES"

   At the same time that Congress has responded to demands for increasing rights for the disabled, the government has been under increasing pressure to reduce health care costs. Rising health care costs resulting from technological advances, an aging population, and new diseases, combined with the unpopularity of the Medicaid entitlement, have prompted both the federal and state governments to adopt Medicaid managed care programs.(34) In Pennsylvania, this has resulted in the implementation of the "HealthChoices" program for Medicaid recipients.(35) Originally established as a trial program, 540,000 Medicaid recipients in southeastern Pennsylvania were required to choose one of four MCOs beginning on February 1, 1997.(36) The program expanded to include the ten-county southwestern part of the state on January 1, 1999,(37) and the Pennsylvania Department of Public Welfare (the "DPW") anticipates completing statewide enrollment in the next two years.(38) One provision of the Medicaid statute requires that recipients have the ability to choose their physicians.(39) Because MCOs typically restrict care to doctors in their individual networks,(40) in order to implement HealthChoices, Pennsylvania had to obtain a waiver of this provision.(41)

   The implementation of HealthChoices in Pennsylvania has not been smooth. For example, the reimbursement rates HealthChoices MCOs pay for prescriptions to pharmacies are so low that two of the Philadelphia area's largest chains, CVS and Eckerd, will not fill HealthChoices prescriptions, and almost half of the independent pharmacies in the area have been forced to close since the implementation of HealthChoices.(42) Also, patients in rural counties may be unable to see their primary care physicians, because some areas lack transportation for doctors in other counties, and there is a dearth of doctors in outlying counties participating in particular MCO plans.(43) Further, there are problems with MCOs assigning non-English-speaking patients to doctors who only speak English.

   The main problem that managed care programs like HealthChoices present, of course, is that in their mission to cut costs, they inevitably cut the amount and quality of services, and this significantly affects the disabled. Not only do MCOs give physicians a financial incentive to restrict the care they provide,(44) but MCOs themselves attempt to discourage enrollment of persons with serious illnesses,as The motivation for this is clear: "[A]lthough persons with disabilities make up only fifteen percent of Medicaid beneficiaries, forty percent of Medicaid spending is attributable to that group."(46) In a traditional managed care program, an insurer can contain its costs by keeping patients healthy through...