Medical treatment for older people and people with disabilities: 1988 developments.

Medical Treatment for Older People and People with Disabilities: 1988 Developments

Summary

In 1988, the United States Supreme Court determined that "primary alcoholism" is "willful misconduct" that disqualifies veterans for an extension of time for educational benefits eligibility based on disability. The Civil Rights Restoration Act, passed in 1988, broadened the scope of programs or activities which may be covered by federal civil rights statutes that prohibit discrimination by entities receiving federal financial assistance. Decisions by the highest courts in two states may signal a trend toward reestablishing protection for persons with disabilities who are incompetent and are being threatened with denial of life-sustaining food and fluids. Federal and state courts addressed the issue of withholding medical treatment from persons with disabilities. The rights of persons with AIDS to participate in programs receiving federal financial assistance continue to be litigated with increasing frequency. Lastly, thirty-eight states and the District of Columbia have "living will" legislation.

Introduction

Access to adequate and appropriate health care continues to be a problem facing older persons and persons with disabilities. Recognizing this problem, two state supreme courts have issued decisions halting a trend of cases which authorized the denial of beneficial food and fluids to persons with disabilities who are incompetent. Both cases require a stricter evidentiary standard in that patients must give her informed refusal while competent before food and fluids may be withdrawn. It is expected that persons with AIDS will also be affected in today's climate of increasing pressure to curtail rising health care costs. Attempts to regulate the costs of health care coupled with discriminatory attitudes toward persons with disabilities and persons with AIDS will undoubtedly impact adversely on these populations who are often indigent or quickly impoverished by costs of needed medical care. Legal services attorneys should be aware of these trends to better identify and represent these client populations.

The United States Supreme Court

In Traynor v. Turnage,(1) the United States Supreme Court held in a 4-3 decision (Justices Scalia and Kennedy did not participate) that a Veterans Administration's regulation that irrebuttably presumes that primary alcoholism is the result of willful misconduct and, therefore, is not a protected disability for the purpose of extended education benefits, does not violate section 504 of the Rehabilitation Act of 1973.(2) Section 504 provides that no otherwise qualified individual with handicaps can be denied benefits or be discriminated against in any program or activity that receives federal financial assistance.(3)

Veterans who are honorably discharged from the United States Armed Forces are entitled to receive educational assistance benefits under the Government Issue Bill,(4) which must be used within ten years following discharge or release form active duty.(5) In 1977, Congress created a statutory exception to extend the ten-year period if a veteran was prevented from using his benefits earlier by "a physical or mental disability which was not the result of...[his or her] willful misconduct."(6) The Veterans Administration had characterized primary alcoholism, a dependency not the result of a psychiatric disorder, as "willful misconduct."(7)

The Supreme Court found that the text and legislative history of the 1977 statute,(8) confirmed that Congress clearly intended to use the term "willful misconduct," which had long been used in other veterans' benefits statutes(9) and which had long encompassed primary alcoholism.(10) Moreover, the Court found that Congress did not intend for the 1978 antidiscrimination amendments to the Rehabilitation Act of 1973 to expressly contradict, repeal, or amend the precise "willful misconduct" statute of 1977 to extend educational benefits under the Government Issue Bill.(11) The "willful misconduct" provision did not violate the antidiscrimination purpose of section 504 because veterans were denied time-extension for education benefits as a result of their own willful misconduct rather than their handicap.(12)

The Court recognized that each veteran is entitled to an individual assessment to determine whether his or her alcoholism is the result of mental illness.(13) However, the Court did not find that section 504 entitles each veteran to an individual assessment to determine whether his or her alcoholism is the result of willful misconduct or other factors. To reach this conclusion, the Court relied on medical literature supporting the Veterans Administration's regulation that alcoholism is not entirely involuntary and noted that Congress and the Veterans Administration had "reasonably determined for purposes of the veterans' benefits statutes that no such factors exist."(14)

The Court contrasted the instant case with School Board of Nassau County v. Arline.(15) In Arline, the Supreme Court recognized that in most cases a district court should undertake an individualized inquiry to determine whether a person with a handicap was denied a job for which he or she is otherwise qualified.(16) The Court stated that "Arline did not involve a handicapping condition as to which Congress had specifically determined that no individualized inquiry was necessary,"(17) as they found to be true in the present case.

It is unclear whether the holding in this case is limited to present Veterans Administration statutes and regulations which deny individuals veterans' benefits based on "willful misconduct." The Veterans Administration could potentially extend the "willful misconduct" test to other disabilities, such as those arising from heart and lung disease, diabetes, or AIDS, where the affected individual might be said to bear some responsibility for his or her own condition. On the other hand, the Court's holding in the present case relied heavily on a specifically stated policy on alcoholism that preexisted the enactment of section 504.

Federal Legislation

On January 28, 1988, the U.S. Senate passed the Civil Rights Restoration Act of 1988; the House passed the Act on March 2, 1988. President Reagan vetoed the bill, but both the House and the Senate overrode the President's veto and passed the bill on March 22, 1988. The bill then took effect and is now law.(18)

The Civil Rights Restoration Act overturned the Supreme Court decision in Grove City College v. Bell,(19) which had limited the scope of application of the term "program or activity"--a term that appears in federal civil rights statutes that prohibit discrimination by entities receiving federal financial assistance, including section 504 of the Rehabilitation Act of 1973.(20)

As amended by the Restoration Act, section 504 now reads as follows:

Sec. 504. (a) No otherwise qualified handicapped individual

... shall, solely by reason of his handicap, be excluded from

the participation in, be denied the benefits of, or be subjected

to discrimination under any program or activity receiving

Federal financial assistance.

(b) For the purposes of this section, the term "program or

activity" means all of the operations of

(1) (A) a department, agency, special purpose district, or other

instrumentality of a state or of a local government; or

(B) the entity of such State or local government that distributes

such assistance and each such department or agency (and each

other State or local government entity) to which the assistance

is extended, in the case of assistance to a State or local

government;

(2) (A) a college, university, or other postsecondary

institution, or a public system of higher education; or

(B) a local educational agency (as defined in section 198(a) (10)

of the Elementary and Secondary Education Act of 1965), system

of vocational education, or other school system;

(3) (A) an entire corporation, partnership, or other private

organization, or an entire sole proprietorship

(i) if assistance is extended to such corporation, partnership,

private organization, or sole proprietorship as a whole; or

(ii) which is principally engaged in the business of providing

education, health care, housing, social services, or parks and

recreation; or

(B) the entire plant or other comparable, geographically

separate facility to which Federal financial assistance is extended,

in the case of any other corporation, partnership, private

organization, or sole proprietorship; or

(4) any other entity which is established by two or more of the

entities described in paragraph (1), (2), or (3); any part of which

is extended Federal financial assistance.

(c) Small providers are not required by subsection (a) to make

significant structural alterations to their existing facilities for

the purpose of assuring program accessibility, if alternative

means of providing the services are available. The terms used

in this subsection shall be construed with reference to the

regulations existing on the date of the enactment of this

subsection.(21) So amended, section 504 has been explicitly acknowledged to apply to the entire operation of most entities receiving federal financial assistance. It can no longer be reasonably argued, for example, that section 504 would not apply to a particular department, ward, or physical plant of an entity principally providing health care or education that receives federal financial assistance even if that department, ward, or physical plant does not directly benefit from the assistance.

The only significant restriction on the scope of section 504 would appear to be that it does not extend to entire entities receiving federal financial assistance that: (1) are privately owned, (2) have not received federal funds that benefit them "as a whole" (but that may have received funds that benefit a particular program or activity), and (3) are not principally engaged in providing "education, health care...