News from the September 2003
Mouth.
APPEALS
COURT UPHOLDS INTEGRATION MANDATE, SLAPS STATE
If your state cuts Medicaid
waiver benefits because of “budget shortfalls,” here’s
news to use. The U.S. Court of Appeals, 10th Circuit, has slapped Oklahoma’s
Health Care Authority (OHCA) for such a cut, and taken a swipe at the
judge who approved it.
Last September OHCA announced to beneficiaries of Medicaid waivers that
they would henceforth be entitled to only five prescriptions per month.
On the day the cutback went into effect, three brave women who live at
the mercy of the state’s health care services filed suit against
the state. Their attorney? The redoubtable Steve Gold.
How did three impoverished women happen to find him? Carla Lawson and
Jeff Hughes, two directors of Oklahoma centers for independent living,
did the honors.
STATE
WINS FIRST ROUND
Gold, who brought the original Helen L. suit (foremother of the
1999 Olmstead decision) based his case on Olmstead and
on a clear HHS/Social Security regulation: that a state cannot change
the terms of a waiver without advance approval from the feds.
James H. Payne, U.S. District Court Judge for the Northern District of
Oklahoma, heard the arguments and ruled in favor of the state, saying
the ADA had no bearing because the state’s expenditure for all required
drugs would constitute a “fundamental alteration” of the program.
Say what? But wait, there’s worse. He ruled that Olmstead’s
integration mandate could not apply to people who were not institutionalized.
In order to exercise their rights under Olmstead, they’d
have to sign themselves into an institution. Perhaps coincidentally, Judge
Payne’s ruling came down on Halloween.
Gold and co-counsel Morris Bernstein of the University of Tulsa filed
an appeal with the U.S. Court of Appeals for the Tenth District—a
court Gold characterizes as “a very conservative panel.”
"HOLLOW
INDEED"
On July 15 the Court of Appeals reversed Payne’s decision. (Note:
Judges never live that down.) It cited Olmstead’s “most
integrated setting” mandate, saying that Payne’s interpretation
of the ADA’s fundamental alteration provision “cannot stand
up to logical inquiry.... If every alteration in a program or service
that required the outlay of funds were tantamount to a fundamental alteration,
the ADA’s integration mandate would be hollow indeed.”
The court added that since “the cost of institutional care is nearly
double that of community-based care, it seems unlikely that... elimination
of the waiver program would have solved Oklahoma’s fiscal crisis,
because it could have served only to drive participants into nursing homes.”
Even after this momentous decision, everyone who relies on the waiver
do without the prescriptions they need while the state delays doing what
the court says must be done. — L. Gwin
FLORIDA
SUPREME COURT IMPOSES DEATH PENALTY FOR THE CRIME OF DISABILTY
The litmus test
for personhood, the attorney for Michael Schiavo argued at an appeals
court hearing two years ago, “is whether or not a person can bring
a spoon to their mouth.” Allowing someone who cannot do that to
live is “poor public policy,” he said.
Although his client’s wife, Terri Schindler-Schiavo, smiles when
her parents visit and makes vocalizations that sound like “Hi”
and “Hello,” she cannot bring a spoon to her mouth. Three
Florida courts, most recently the Florida Supreme Court, have judged her
to be in PVS (persistent vegetative state) and sentenced her to death
by starvation and dehydration per her husband’s wish. He claims
she would have wanted it. Starvation will begin on August 25, at the end
of a 30-day stay of execution.
Terri Schindler-Schiavo’s own attorney argues that the courts have
disregarded the state’s law on what constitutes PVS, and has asked
them to note her strenuous attempts to communicate.
In 1990, Terri was deprived of oxygen for some minutes in what may have
an attempt by her husband to strangle her. A physician who examined her
records says she “may have been a strangulation victim.” A
radiologist concludes that x-rays show “she was worked over pretty
good.” Schiavo, who won a $1.3 million malpractice settlement on
her behalf, has not spent it toward rehabilitation. As her sole heir,
he will inherit the money—less the legal expenses to get her killed.
'RIGHT'
TO DIE IMPOSED
While right to die groups consider her execution to be “an important
foothold in the law,” her parents see it differently. Her death
will make his battering “the perfect crime,” according to
her parents, Bob and Mary Schindler, who have fought since 1998 to keep
her alive.
Probate judge George Greer, who handed down her original death sentence,
asked for assurances from doctors who had examined her that she could
be “restored by treatment.” Although the physicians he questioned
wanted her to live, all had to agree that she would “never be the
same.”
Efforts by the Schindler-Schiavo Foundation are underway to get Gov. Jeb
Bush to issue a stay of Terri’s execution while an investigation
goes forward. To sign their petition, go online to www.terrisfight.org.
HOSPITALS
RESERVE THE RIGHT TO REFUSE SERVICE
Hospital patients are losing
their right to decide whether they want medical treatment. No, it won’t
be forced on them, according to Wesley J. Smith, author of Culture
of Death: The Assault on Medical Ethics in America. “To put
it bluntly, he wrote recently in The National Review, “even
if you want medical treatment to enable you to fight for your life, you
may be told that the hospital reserves the right to refuse service.”
24 of 26 California hospitals surveyed have such policies in place.
It’s called “futile care policy,” and at hospitals in
Cedar Falls, Iowa, where the story leaked to the press, “it allows
medical staff to withdraw treatment over a family’s objection.”
Although the Iowa hospitals allow such families a hearing before their
ethic committees, Smith believes it’s likely that deck is stacked
against them thanks to what are known as DRGs —where reimbursement
by third party payors is limited by Diagnostic-Related Group to which
an injury or illness belongs. “Hospitals now generally lose money
on patients requiring intensive or extended care,” Smith says.
Surprise: it’s about money, and it’s spreading nationwide.
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