State Medicare Cuts Stand Over Nine Objecting Judges

     (CN) – Over stern objections, the full 9th Circuit refused Monday to reconsider a block against Washington budget cuts that could have forced disabled Medicaid recipients into institutions by reducing in-home personal care.
     Nine judges who felt the court should have granted the rehearing en banc warned that the injunction will undermine states’ powers to make “small, evenhanded cuts” to some Medicaid programs.
     Prior to its 2010 budget, Washington had voluntarily offered, under its state Medicaid program, personal care services like in-home feeding, cooking and other assistance to about 45,000 disabled residents. Recipients were eligible for between 416 hours and 26 hours per month depending on need. The cuts reduced those numbers by between 6.3 percent and 18.8 percent.
     More than a dozen disabled and elderly plaintiffs, along with a service-employees union and others, claimed that the cuts violated the non-discrimination provision of the Americans with Disabilities Act (ADA).
     After a federal judge refused to order an injunction, a three-judge panel of the Seattle-based federal appeals court reversed in December 2011.
     Washington requested a rehearing before a full, 11-judge panel, but a majority of the court voted the request down.
     Those who disagreed criticized the 2011 panel for its “strained interpretation of the ADA,” which will affect about 20 percent of the nation and prevent western states from balancing their budgets.
     “The District Court’s order was correct on the law, on the facts, and on the standard for issuing a preliminary injunction,” Judge Carlos Bea wrote for the dissent. “Now, after this decision, the ADA will block states from making even small, evenhanded cuts to programs which the state has voluntarily added to its Medicaid program. This is so even when the reductions are in response to severe budget deficits, and even when there is no evidence that anyone will be subjected to imminent institutionalization. Somehow, this is all done in the name of prevention of discrimination. Congress, with the passage of the ADA, certainly never contemplated nor sanctioned such a one-way ratchet on governmental spending. We should have gone en banc to correct course.”
     Chief Judge Alex Kozinski joined the dissent along with Judges Diarmuid O’Scannlain, Richard Tallman, Johnnie Rawlinson Jay Bybee, Consuelo Callahan, Sandra Ikuta and N. Randy Smith.
     “Under M.R., states will be hard-pressed to reduce benefit levels in voluntarily-provided personal care services programs and, perhaps, in a variety of other voluntary social services programs,” Bea added, abbreviating the case caption to M.R., one of the plaintiff’s initials.
     “This not only departs from the text of the relevant statutes and regulations, but it presents two major practical problems. First, in the near term, states will not be able to balance their budgets. Second, in the longer term, if states do not have flexibility to cut the provision of such services, then they are far less likely to decide to provide the programs in the first place. Both of these cause serious harm to states and their citizens, yet this harm was entirely ignored by the panel majority.”
     In an amendment to the 2011 opinion, the judges noted that the plaintiffs are still awaiting a ruling from the trial court on class certification.

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