Disabled Wisconsinites Lose Dispute Over Cuts

CHICAGO (CN) - A group of Wisconsinites with developmental disabilities lack standing to sue the state over cuts to their benefits, the 7th Circuit ruled.

The Wisconsin Care Program funds disabled persons who live in group homes among other things, but the state reduced the program's subsidies in 2011 to save money, cutting back mostly on those whose care is most costly.

A group of these individuals filed suit in August, claiming that the cuts improperly singled out those with disabilities and would force them into institutions.

U.S. District Judge Barbara Crabb nevertheless refused to grant an injunction to the class led by Michael Amundson and his guardians.

The Madison judge said the class's fears of being moved from group homes to institutions were not ripe, and that the allegations otherwise failed to allege discrimination.

A three-judge panel of the 7th Circuit affirmed Wednesday.

"None of the plaintiffs has been placed in an institution," Chief Judge Frank Easterbrook wrote for the panel. "Indeed, plaintiffs do not allege that any developmentally disabled person in Wisconsin has been moved, involuntarily, from group to institutional care. Plaintiffs do allege that some of their number have been required to leave group settings where they would have preferred to remain, but they do not allege inability to find another group home willing to accept the level of reimbursement that the Wisconsin Care Program now offers." (Emphasis in original)

Defending the state's cuts, the Chicago-based appellate panel also noted Wisconsin's belied that the changes "will reduce the cost of care by excluding the highest-cost providers from the program, but without landing any developmentally disabled person in an institution."

"If that's so, Wisconsin has fulfilled its obligations under federal law, no matter how much plaintiffs prefer the comfort and amenities of the more-expensive group homes," Easterbrook wrote. "And whether that is so, the District Court concluded, cannot be determined without more experience under the current rates. Plaintiffs fear the worst, but their fears may be unwarranted."

The plaintiffs failed to show the court that Wisconsin discriminated by targeting the developmentally disabled, as opposed to persons with visual impairments, for cuts.

The plaintiffs "have not offered any comparison group or any standard by which 'worse treatment' could be identified," Easterbrook wrote. "Before the change made in 2011, developmentally disabled persons received greater subsidies than any other sub-category of the disabled. The 2011 revisions cut their subsidy, but plaintiffs do not contend that they are now treated worse than some other set of disabled individuals.

"Suppose it costs at least $50,000 a year to provide for care of a developmentally disabled person in a group home and more (say, $75,000) to pay for top-quality group care. Suppose that it costs only $40,000 a year to provide for care of a blind person in a group home. Finally, suppose that until 2011 Wisconsin was paying $75,000 a year for each developmentally disabled person and $40,000 a year for each blind person, but that in 2011 the payments were cut to $50,000 and $40,000 for these groups. Although one group lost money and the other did not, this would not be discrimination against the developmentally disabled; it would instead be the end of discrimination in favor of the developmentally disabled." (Emphasis and parentheses in original)

Denying "optimal" placement to the developmentally disabled represents an "untenable" discrimination claim, "unless the state is providing other groups of disabled persons with whatever care, in whatever location, their physicians most favor, and plaintiffs do not contend this," according to the ruling.

"Plaintiffs tell us nothing about what kind of care persons with other disabilities receive in Wisconsin," Easterbrook added. "Their sole argument is that Wisconsin reduced their own subsidies."

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