The Inescapable Irony Of Footnote Eight.

By Tim Wheat

The 10th Circuit court has ruled in the case Fisher v. Oklahoma Health Care Authority (OHCA). The MCIL Journal reported on this case last month because of the recent drive of U.S. states to try to nullify the 1990 Americans with Disabilities Act. In the Fisher case, state of Oklahoma was attempting to trample on the ADA and the civil rights of people with disabilities.

Oklahoma lost in a case that is certain to generate little or no legal analysis. And you will find no legal analysis here, except what is found in the footnotes of the ruling. Within the dry text of an appeals court ruling, the message in the footnotes is stunning. In the light of U.S. states claiming sovereign immunity over the protections of our civil rights, what you read in the footnotes can be also be frightening. 

To briefly recall the case, Oklahoma because of budget problems, instituted a cap on the prescription drug benefits of citizens in the state Home and Community Based Waiver program, called the Advantage program. People that live in Oklahoma nursing homes and other institutional settings did not have any limit on their prescription drug benefits.

The Advantage program is only available to citizens that are eligible for nursing home care, but the state has applied to the federal authority to “waive” the institutional care requirements. Ms. Fisher and others in the Advantage program took Oklahoma to court because the state was limiting their benefit because they live in the community, while making no attempt to charge nursing homes and institutions more for drugs. Oklahoma’s attempt to save money clearly discriminated against those citizens in the Advantage program.

Footnote 2:

FN2. In Oklahoma, it costs approximately $28,000 per year to provide care to a disabled individual in a nursing home, and $14,000 to provide care through the Home and Community Based Waiver program.

By itself this footnote is neither amazing nor frightening; but it is interesting that Oklahoma notices that home and community services are about half the cost of institutional care. Nationally, nursing homes are the most expensive and least desirable form of long-term care.

The Judges responsibility in this case is to the law and not to decide how to save the Oklahoma taxpayers money. It is clear; however, that bolstering the Home and Community Based Waiver program is one way to save money. The Judges do not directly say that if fewer people were nursing homes and receiving home and community-based services, the state would save a lot. In fact, providing home and community services as an alternative to just one person would save over four times the amount Oklahoma stands to save a year by taking away the prescription drug benefits of the named plaintiffs.

FN8. An inescapable irony of the decision to cap prescriptions for participants in the Advantage program is that, given that the cost of institutional care is approximately twice as high as community-based care, if the plaintiffs are indeed forced to enter a nursing home to obtain necessary medical services, any cost savings achieved by the prescription cap will be quickly eroded.

It is amazing that Oklahoma pressed this case into federal court on the pretext of “the State financial crisis.” The state of Oklahoma itself presents facts that do not support the illusion that the state would save any money. It is clear that Oklahoma is deceitful about why the state attempted to create an inequitable drug benefit. Whatever the state’s motive was, the Judges in this case seem equally skeptical by the implications they put into the footnotes.

U.S. states do not protect the civil rights of people with disabilities, which is precisely why Title II of the ADA is necessary for all Americans. Title II makes state and local governments responsible to provide equality for citizens with disabilities. But many U.S. states are working to limit and destroy the civil rights protections of the ADA. It is much more plausible that Oklahoma was attempting to restrict the scope of the ADA rather than to save money.

What is frightening is examining this kind of state attack on our civil rights in light of Tennessee v. Lane. The state of Tennessee is claiming it is immune to the civil rights protections of the ADA in a case that may be heard by the U.S. Supreme Court this term. 

By the way, the State of Tennessee Constitution protects against discrimination:

Safeguard all individuals within the state from discrimination because of race, creed, color, religion, sex, age or national origin in connection with employment, public accommodations, and because of race, color, creed, religion, sex or national origin in connection with housing…[Title 4, Chapter 21 § 101(a)(3)]

That’s right, the sovereign state of Tennessee does not safeguard “all individuals.”

Read the MCIL article about this case.

Read the Deborah Cunningham's article about Tennessee v. Lane.

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