Independent Living Research Utilization
"Legal Protections for People with Disabilities in Managed Care"
Table Of Contents About the Research and Training
Center on Managed Health Care and Disability Permission is granted for duplication of any portion of this newsletter, providing the following credit is given to the project: Developed as part of the RTC on Managed Health Care and Disability and the Southwest Disability and Business Technical Assistance Center. © 2000 ILRU I. About the Research and Training Center on Managed Health Care and Disability “Legal Protections for People with Disabilities” is one of six research projects of the Research and Training Center on Managed Care and Disability (RTC-MC&D). Partners in the RTC are the National Rehabilitation Hospital Center for Health and Disability Research (NRH-CHDR) in Washington, D.C. and ILRU (Independent Living Research Utilization) in Houston, TX. The Center began operating in June of 1997 and is funded by the National Institute on Disability and Rehabilitation Research (NIDRR). The purpose of the Center is to provide national leadership on the major health service and health policy issues facing consumers with disabilities in managed health care arrangements. The Health Law and Policy Institute, based at the University of Houston and ILRU are collaborating on the “Legal Protections” project. Data is being elicited by: (1) tracking complaints and grievances voiced through protection and advocacy and similar legal service programs; (2) analyzing nondiscrimination laws and other legislation to ascertain their effect on the delivery of health care to people with disabilities in managed care arrangements; and (3) tracking litigation. The research findings will be used to: (1) generate training and educational materials designed to enhance the ability of consumers and advocates to address barriers in managed care arrangements on an individual and systemic basis; and (2) develop materials for policy makers that identify gaps in the system of protections. II. What Constitutes Discrimination in Managed Care? People with disabilities, along with other individuals without disabilities, may receive less than adequate medical care in managed care arrangements. Both groups may experience problems due to the complexity and lack of flexibility in some managed care organizations (MCOs), but the stakes are often higher for people with disabilities. There are a number of federal and state laws and regulations that affect the terms and conditions of the delivery of health care to individuals in MCOs. They can be used in a number of different ways, depending on the type of MCO and the practice being challenged. Federal and state anti-discrimination laws may be used to challenge practices that result in inferior treatment for individuals with disabilities; other laws may be used to challenge practices that may not constitute discrimination per se, but deny access to needed health care. Distinguishing what may be considered discrimination based on disability in health care from generally poor administration or treatment is a difficult exercise. To date, a number of suits have been brought against state agencies responsible for Medicaid managed care programs and MCOs using the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. These challenges have met with varying degrees of success. We will highlight some of these cases in this newsletter. What we have learned from these cases is that there is power in these laws. Many managed care arrangements, by virtue of their design and purpose, tend to perpetuate discrimination against people that are or are perceived to be higher users of health care services, a group that arguably includes more individuals with disabilities than non-disabled individuals:
III. Sources of Law for Managed Care 101 In this special issue we are focusing on the major federal anti-discrimination laws and their applicability to managed care arrangements. We will also review a few of the other laws that can be used to assure that states are arranging for appropriate care, providing procedural due process protections, and developing assessments of the services delivered under their Medicaid managed care programs. Major Federal Legislation
Implementing Regulations and Guidance Documents
State Law
What Kinds of Legal Protections Exist? Legal protections vary by type of coverage. Consumers need to know that the answers to some questions will depend upon whether their health insurance is public (e.g., Medicaid or Medicare) or private. Protections may also vary depending upon the type of health plan. For example, health maintenance organizations (HMOs) tend to be more heavily regulated than preferred provider organizations. Public Health Insurance Federally funded programs are subject to the Rehabilitation Act, and state and local public services are subject to Title II of the ADA. Basic requirements of both acts include nondiscrimination, reasonable accommodation/modifications, and community integration. State civil rights laws may provide additional protections. The BBA provides that Medicaid beneficiaries in Medicaid managed care retain their right to a state-level fair hearing and imposes other requirements on Medicaid managed care, such as a “prudent layperson” standard for emergency treatment. HCFA is preparing to issue final regulations for Medicaid managed care programs, but as of the date of this newsletter they have not been published. Private Health Insurance Employer-provided benefits are subject to Title I of the ADA, and “public accommodations” (this includes doctors’ offices, clinics, and hospitals and may include insurance policies) are subject to Title III of the ADA, which has its own nondiscrimination, reasonable modification, and integration mandates. HIPAA also contains anti-discrimination provisions that apply to group health plans. It prohibits discrimination against individuals based on health status and regulates use of pre-existing condition clauses, among other things. For private health insurance, the availability of basic managed care protections, such as the “prudent layperson” standard for emergency treatment, depends on state law. State insurance regulations apply to health insurance purchased by individuals and group health plans purchased by employers. State insurance commissioners provide oversight and regulate the business activities of insurance companies. They generally regulate insurance marketing practices, review whether policies and premiums are reasonable, and assure that claims are paid in a timely manner. Employers that set aside funds and employee premiums to pay for health coverage have self-funded plans. Self-funded plans are not regulated by states but are governed by the Employee Retirement Income Security Act (ERISA). If these plans are offered by a private sector employer or a bona fide union, the U.S. Department of Labor’s Pension and Welfare Benefits Administration regulates them. IV. Title II Integration Mandate Interpreted by Supreme Court The United States Supreme Court, in Olmstead v. L.C., found that institutionalizing a person with a disability who can benefit from living in the community and wishes to do so constitutes discrimination because it severely diminishes the individual’s ability to interact with family and friends, work and make a life for him or herself. The case was brought by two Georgia women with disabilities (mental retardation and mental illness) who were placed in state-run institutions in order to receive the services they needed, although their physicians had said that they were able to live and receive services in a community-based setting. The women argued that the state’s failure to provide services in a community-based setting violated a regulation implementing Title II of the ADA, 28 CFR § 35.130 (d) which requires that public entities provide their services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities….” [In a setting that “enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.”] The setting must be appropriate to the needs of an individual and could include home and community-based arrangements. As the Court noted, the extent of the obligation to make a community placement may be modified by Title II’s “fundamental alteration” defense. In applying it to this situation, the Court said states may consider not only the cost of providing community-based care to individuals, but also the range of services provided to other individuals with disabilities and the states’ obligation to mete out those services in an equitable manner. V. In the Wake of Olmstead v. L.C. - How to Integrate People with Disabilities into the Community In Olmstead v. L.C. the Court laid out the “roadmap” that states must use to develop their integration plans. The Court indicated that states may demonstrate compliance by showing that they have comprehensive and effective plans for placing qualified individuals with disabilities in less restrictive settings and waiting lists that move at a reasonable pace not influenced by a state’s attempts to keep its institutions fully populated. The role of people with disabilities in this process is key. January 14: Letters and Preliminary Technical Guide Sent to State Medicaid Directors The OCR began consulting with State Medicaid Directors, members of the long-term care technical advisory group, and with people with disabilities to help states develop their “Olmstead Community Integration Plans.” The letter outlines what OCR expects from the states and offers technical assistance and support from the agency. The accompanying technical guide outlines the responsibilities of the states, including the principles that should be addressed, and recommended practices, to provide states with a foundation from which to start. The OCR does not recommend one model plan, noting that each state may take a different approach. What is clear is that persons with disabilities must be included in all phases of the process. States are required to consider the methods that
should be employed to “ensure constructive, on-going involvement
and dialogue and assess what partnerships are needed to ensure
that any plan is comprehensive and works effectively.”
January 4: DHHS, OCR Sends Sample Olmstead Letter to Governors with Copy of Document Sent to Medicaid Directors “We encourage you to develop and implement such plans, and to involve individuals with disabilities and other stakeholders in the process of design and implementation. This department stands ready to assist you in these efforts.” The Role of Advocates in Developing State Plans On March 9, 2000 the NCIL (National Council on Independent Living) National Advocacy Training Project held a national teleconference on “Making Olmstead Work in Your State.” Nationally known advocates and experts on Olmstead interpreted the decision from the standpoint of clarifying what states must do, and recommended strategies for people with disabilities to work with states to develop plans that comply with the letter and spirit of this important decision. They broke the decision down into pieces to demonstrate how each component of the decision should be interpreted and implemented, for example: What if a state treating professional fails to determine that the community is the most integrated setting appropriate to meet an individuals needs, can the assessment of the state’s treating professional be challenged? Yes, the decision leaves room for the state’s treating professional’s assessment to be challenged. When the Supreme Court explained its two-part test it said that states may “generally rely on the reasonable assessments” of their own professionals as to whether an individual is appropriate for community-based services. Certainly, “generally rely on” does not mean total deference to the treating professionals on this matter. While the state can probably not simply ignore the assessments of the state professional, the Court seems to leave room for an individual to ask for another assessment from an independent evaluator or for the state professional’s opinion to be challenged. Also the Court said the state treating professional’s assessment must be “reasonable.” While the Court did not define the elements of a “reasonable” assessment, a strong case can be made that, to be reasonable, an assessment must be made by a qualified professional who is familiar with relevant professional standards and the capacities of community systems, especially services that are now available to meet even the most challenging of needs, for example, wrap-around, crisis and respite services. An assessment may also be challenged as unreasonable if it is the product of a flawed process. For example, it is common for institutions to judge an individual “not ready” for the community solely because there is no community placement currently available for that individual. Institutional staff that determine individuals to be ready for discharge only if and when services become available (i.e., a community “slot” opens up) are not making “reasonable” assessments of community readiness. Such assessments should be based on the capacities and needs of the individual with a disability, and on whether appropriately crafted community services can meet those needs. Whether appropriately crafted services are currently available in the community has no bearing on whether the community is the most integrated setting appropriate for an individual. (Statement prepared by National Association of Protection & Advocacy Systems, Inc. See Resource Directory for information on obtaining the tape of the teleconference and the resources provided.) Filing Individual Complaints If someone encounters a barrier imposed by the state Medicaid program, to get them, a family member, or a friend out of an institution, they may file a complaint with the Office for Civil Rights in the Department of Health and Human Services. V. a. Exploring the Scope and Power of the Title II Integration Mandate The integration mandate has been used by Protection and Advocacy Agencies (P&As) in a number of cases to assure the provision of the services, medication, and equipment necessary to enable individuals with disabilities to continue living independently in a community setting. In Sanon v. Wing, the court overruled the decision of the State Department of Health and city agencies to terminate home care services and place three individuals with disabilities in nursing care. The court held that Title II of the ADA required that individuals with disabilities have access to in-home care and that allowing such would not cause a “fundamental alteration” of the State Medicaid program. In Re J Curtis H (Cal. DHS, Sept. 4 1998), an individual with multiple disabilities required wrap around services to maintain him in the community. His doctor verified that these services were necessary. The Department of Human Services denied his request stating that these services were not medically necessary. The Administrative Law Judge ruled for the individual, finding that these services were necessary for the individual to remain living in the community. In Ivey v. State Dept. of Health Care Policy and Finance/Mental Health Capitation Program (1998), the P&A challenged the state’s implementation of the assessment process which was part of the new Medicaid mental health care program. The new program required that all Medicaid recipients discontinue treatment with their existing providers. An exemption would only be granted if it was proven to be in the “best clinical interests” of the recipient, which would be determined through an assessment. In this case, the court found that the state did not conduct an appropriate assessment. In addition, the court found that “overwhelming evidence was presented that the individuals in question would end up in institutions if they were unable to continue with their current providers.” In Adam Cale v. Illinois Department of Public Aid, the Illinois P&A is arguing that a threatened reduction in home health services for an individual with a disability would violate the Title II integration mandate because if the individual is not allotted the necessary hours the individual may have to move into an institution. In Blackman v. Mississippi, the Mississippi P&A sued a state hospital for violation of the Title II integration mandate because the hospital did not provide all anti-psychotic medications on the same basis. The state hospital used a voucher system for provision of medication; a voucher was needed to prescribe certain types of medication, including certain types of anti-psychotic medications. No vouchers were needed to prescribe older types of anti-psychotic medications. Statistics were presented which showed that 30-70 percent of individuals with schizophrenia who do not respond to older drugs do improve after taking the newer ones. The administration of the vouchers in this way inhibited the ability of individuals to obtain the treatment they needed to live in the community. (The suit was dropped after the state provided assurances that a system was in place that provided access to medications regardless of brand or expense.) In Chris S. v. Geringer, the Wyoming P&A brought a class action suit against the state for violations of the Medicaid Act and the ADA, alleging that the state failed to provide adequate transitional services, including employment and health care, while the plaintiff was in the state hospital. Without such services, the plaintiff was at risk for re-institutionalization. The dispute resulted in a settlement agreement that created the “Partnership for Resolution of Mental Health Issues in Wyoming,” a coalition of the P&A, the State Alliance for the Mentally Ill, and representatives of the Wyoming Department of Health. VI. Challenging HMO Contractual Arrangements Under Title III HMOs and other MCOs may have contractual arrangements with health care providers that create incentives for those providers to avoid or undertreat individuals with disabilities. Problems can arise where an HMO pays a provider a set fee per patient (capitation), ties bonuses and other incentive fees to rates of usage of services (utilization goals), or imposes prescription drug limitations or restrictions on certain types of treatment. Innovative cases have been brought challenging contractual arrangements that contain incentives for providers to delay or deny care to individuals with disabilities. The ultimate outcome is still unclear, but at least one of these cases has passed a significant legal hurdle. In Zamora-Quezada v. HealthTexas Medical Group of San Antonio, 34 F.Supp.2d 433 (W.D. Tex. 1998), the plaintiffs are two physicians and 13 patients who are alleging that their Medicare HMO delayed or denied them full and equal enjoyment of medical treatment and services in violation of Title III of the ADA and the Rehabilitation Act. In the complaint, the patient-plaintiffs claim that they were forced to endure long waits or medical care was delayed or denied them, while nondisabled patients received better treatment, and that the HMO’s financial arrangements make treating people with disabilities more costly to providers. The physician-plaintiffs claim that they were terminated by the HMO because they advocated for their disabled patients (i.e., they suffered associational discrimination). The HMO moved to dismiss the case. In an important ruling, the court denied the motion to dismiss. The HMO maintained that all of its decisions were based on actuarial, statistical and empirical data, and so were protected from scrutiny under the ADA’s insurance “safe harbor,” § 501 (c). The court noted that Medicare HMOs are prohibited from discriminating in coverage on the basis of health history or current health status, meaning they cannot engage in traditional insurance risk rating. Additionally, the court pointed out that the plaintiffs alleged discrimination was based on clinical evaluations, not ratings for insurance purposes. The HMO also maintained that it was not covered by Title III. The court noted that Title III of the ADA applies to entities that have a right to control a public accommodation. If the HMO regulated health care decisions made by the medical group, including referrals and admissions, and attempted to monitor and influence physicians’ utilization patterns, it would be covered by Title III. The HMO also argued that the case was one of disparate impact rather than intentional discrimination. It argued that utilizing cost-control measures will result in some denials of requests for care, and if people with disabilities have more requests, they will have more requests denied. The court found the plaintiffs’ specific allegations that delays and denials were disability-based were sufficient to raise genuine issues of fact for trial. VII. Applicability of Title III to Health Insurance Plans While it is clear that an insurance office is a public accommodation covered by Title III, courts are divided over whether Title III applies to (a) insurance policies that are not purchased by a consumer entering an actual insurance office, and (b) the contents (terms and conditions) of insurance policies. Of the federal Court of Appeals (the highest courts to consider the issue thus far, one level below the U.S. Supreme Court), the First, Second, and Seventh Circuit Court of Appeals have interpreted Title III to include insurance policies, while the Third, Sixth, and Ninth Circuits have gone the other way, at least where the policy was provided by an employer. In Carparts Distribution Center v. Automotive
Wholesaler’s Assn., 37 F.3d 12 (1st Cir. 1994), the health
plan at issue was See also: Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (22 Cir. 1999) and Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999), cert.denied S.Ct. (2000) (broader interpretation) versus Ford v. Schering-Plough Corporation, 145 F.3d 601 (3d Cir. 1998), cert. denied, 119 S.Ct. 850 (1999) and Parker v. Metropolitan Life Ins. Co., 191 F.3d 1006 (6th Cir. 1997), cert. denied, 118 S.Ct. 871 (1998), Weyer v. Twentieth Century Fox Film Corp., (narrow interpretation). VIII. Section 501(c) of the ADA Title I of the ADA prohibits discrimination in all terms, conditions and privileges of employment, including health benefits. Employers are also prohibited from contracting with an insurer or other entity that discriminated against its employees with disabilities. Titles II and III also contain nondiscrimination mandates that can be used to attack discriminatory health care practices. The nondiscrimination requirements in Title I provide that employers cannot refuse to hire, terminate or treat an employee with a disability differently because of concerns about health benefit plan costs and coverage. Employers also cannot refuse to hire qualified applicants who have dependents with disabilities because of any concerns about the potential impact on health care costs. Employees with disabilities must be given equal access to any health benefits provided to other employees. Lower levels of coverage for dependents are permissible. Section 501(c), located in Title V of the ADA, addresses
the practices of insurers. Section 501(c) states that Titles
I through IV should not be construed to prohibit or restrict (1)
an insurer or other entity that administers benefit plans from
underwriting risks, classifying risks, or administering such risks
in a manner based on or not inconsistent with State law; (2) a
person or organization from establishing, sponsoring, observing
or administering the terms of a bona fide benefit plan based on
underwriting risks, classifying risks, or administering such risks
in a manner based on or not inconsistent with State law; or (3)
a person or organization from establishing, sponsoring, observing
or administering the terms of a bona fide benefit plan that is
not subject to State laws that regulate insurance (ERISA prevents
the application of state insurance regulations to employer- The EEOC, in 1993, issued Interim Enforcement Guidance on Application of ADA to Disability Based Distinctions in Employer Provided Health Insurance in order to explain its interpretation of Section 501(c). The EEOC takes the position that distinctions in health insurance are only subject to scrutiny under the ADA if they are “disability-based.” A distinction is disability-based if it singles out a particular disability, a discrete group of disabilities, disability in general or any treatments related to a particular type of disability. In giving meaning to the concept “disability-based,” the EEOC, in effect, defines two points on a continuum from non-disability-based to disability-based. At the non-disability-based end of the continuum are broad distinctions that (a) apply to the treatment of a multitude of dissimilar conditions and (b) constrain individuals both with and without disabilities (although they may have a greater impact on individuals with disabilities). Examples offered by the EEOC are lesser benefits for eye care as well as “mental/nervous” conditions, and limitations on elective surgeries or experimental drugs. At the disability-based end of the continuum are distinctions that single out a particular disability, discrete group of disabilities, or disability in general. The primary barrier to the recognition of the traditional distinction between “mental/nervous conditions” and “physical conditions” as disability-based, and therefore subject to scrutiny under the ADA, has been the Rehabilitation Act cases. However, there are good reasons for this issue to be reviewed anew under the ADA. The introductory provisions of the ADA issue a powerful challenge to the long-held but false assumptions that perpetuate discrimination. The archaic nature of the mental/physical distinction is revealed in the coupling of “nervous” with mental, and the assumption that mind and body can be neatly separated. According to the EEOC, if a distinction in insurance is disability-based, it is illegal unless it can be justified by “sound actuarial data.” An insurer must use legitimate insurance risk classifications and actuarial data to prove that the distinctions are legal or that the distinction is necessary to prevent drastic changes in the things the plan offers (premiums, scope of coverage, etc.) that would significantly affect the level and quality of benefits offered to others in the plan. In addressing the insurer’s burden of proof once a showing of disability-based discrimination has been made, the EEOC notes that data that are “seriously outdated and/or inaccurate,” e.g., “based on myths, fears, or stereotypes” or “false assumptions... or ...assumptions that may once have been, but are no longer, true,” are not legitimate. The same considerations should apply in the stage one analysis of whether a distinction is disability-based and therefore subject to scrutiny under the ADA. IX. Associational Discrimination Title III of the ADA prohibits discrimination based on association. Public accommodations must not discriminate against “an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationshop or assocation2. In the interpretive analysis accompanying this section, the DOJ notes that the term "entity" in this section was added to ensure that those entities "such as health care providers, ...and others who provide professional services to persons with disabilities are not subjected to discrimination because of their professional association with persons with disabilities." This section could be used to challenge physical credentialing and de-selection practices intended to rid plans of physicians that treat high cost patients. X. Using the Medicaid Act to Resolve Individual Complaints and Achieve Systemic Change The Medicaid Act has been used on its own and along with the ADA and Section 504 to challenge health care decisions and practices that harm people with disabilities. Medicaid is a joint venture between the federal and state governments to help states provide medical care to eligible low-income individuals. The federal government establishes broad national guidelines that the states must follow. The approval process for waivers of Medicaid requirements can be used to assure that people with disabilities can obtain more meaningful access to health care. States may choose the managed care providers and structure their contracts. Getting involved at the planning level can significantly affect what level of services eligible individuals with disabilities will receive. This “great potential for significant change” can be exploited through influencing decisions regarding the:
Visit the Families USA 3 Web site at http://www.familiesusa.org for a detailed “roadmap” of how individuals can get involved in the design and implementation of Medicaid managed care networks in their state. Visit the National Health Law Program Web site at http://www.nhelp.org/pubs/adwaiverrepeal.html to review “Medicaid Waiver Repeal Implications for Post-waiver Advocacy” to understand the implications for advocates of the Balanced Budget Act’s repeal of Medicaid managed care waiver requirements. XI. Medicaid Managed Care and the Implications of the BBA The Social Security Act authorizes freedom of choice waivers to implement Medicaid managed care programs. The BBA permits states to implement managed care on a mandatory enrollment basis for most individuals with disabilities without applying for a freedom-of-choice waiver. With the relaxation of this requirement, it is even more important for advocates to get involved during the planning stages of these programs. The BBA does require that plans meet certain standards. Section 4705 of the BBA states that contracts for Medicaid managed care under Section 1903(m) of the Social Security Act must develop and implement quality assessment and improvement strategies. “At a minimum, these strategies must include access standards, measures that examine other aspects of care and services directly related to improving the quality of care (e.g., grievance procedures and marketing standards), procedures for monitoring and evaluating the quality and appropriateness of care and services that Medicaid enrollees receive. . . .” (A workgroup is currently developing a regulation that will implement this provision of the law.) As a result of the relaxation of the waiver requirement, more and more states are moving toward placing Medicaid recipients into managed care programs. Individuals in the public system generally have more serious disabilities. They also face additional barriers such as poverty and have less access to the tools needed to negotiate through the complex health care maze than the privately insured population. Hastily developed programs, implemented without proper protections and guarantees could have tremendous impact on the delivery of health care to the individuals with disabilities who have the greatest health care needs. XII. Health Care Financing Administration HCFA, an agency of HHS, has developed a number of guidance documents designed to assist states in implementing and administering Medicaid managed care programs.
This guidance was issued in response to the Second Circuit Court of Appeals opinion in DeSario v. Thomas, in which the court upheld a state’s use of the “Medicaid population as a whole test” in deciding whether to approve coverage of medical equipment. This test required a recipient to demonstrate that “absent coverage of the item requested, the needs of most Medicaid recipients would not be met.” The Medicaid program at issue, the mandatory home health services benefit, covers medical supplies and equipment for home use. HCFA responded to this decision by quickly issuing a guidance letter to all state Medicaid directors. The agency unequivocally stated that this type of test may not be used. The guidance noted that states are allowed some discretion in setting the standards for coverage of these items, subject to certain criteria (i.e., medical necessity) and may develop pre-approved lists as a matter of administrative convenience. However, if they choose to do so, they must also have a procedure for requesting items not on the pre-approved list.
This guidance is intended for states to use in “designing and implementing quality strategies for persons with special health care needs.” Among the items addressed in the guidance is the provision of services to assist individuals with cognitive disabilities in understanding the enrollment process.
This guidance requires MCOs to disclose their financial reimbursement arrangements with providers to “current, previous, and prospective enrollees upon request.” The type of information that may be requested includes information on the types of physician incentive plans used and how they affect referral services. There may be additional state law protections you can draw upon to assist you in addressing barriers encountered in managed care arrangements. Look for provisions that:
States may also prohibit certain practices, for example, restricting providers from speaking freely with patients or using “economic profiling” to avoid or get rid of providers that treat a high-cost patient population. State anti-discrimination laws may provide protections that exceed those in the ADA or allow remedies that are not provided under the ADA. Where someone suffers an injury, state common law may provide a remedy. Cases have been brought against managed care organizations for bad faith, negligence, breach of fiduciary duty, breach of contract, negligent misrepresentation, intentional infliction of emotional distress, and interference with the physician-patient relationship. XIV. Individual Claims--Use Informal and Formal Processes Step 1: Informal Process
Step 2: Formal Grievance/Administrative Complaint
Name,
address, and phone number;
General Tips for Consumers
If help is available, use it
Document, document, document
HHS, through the Office for Civil Rights (OCR) enforces the Rehabilitation Act and the ADA in all Medicaid and Medicare programs. Filing an administrative complaint is an easy process. The good news is that it doesn’t cost you anything and, better yet, you don’t need an attorney. The OCR conducts investigations, provides technical assistance, issues policy guidance, uses voluntary dispute resolution, and its enforcement powers to pursue discriminatory actions. Complaints must be filed within 180 days from the date of the alleged discrimination. This period may be extended for good cause. You can either request a Discrimination Complaint Form from OCR or write a letter that includes all of the following information: Your name, address and telephone
number. If you are filing on someone’s behalf, include
your name, address, Name and address of the institution or agency you believe discriminated against you; How, why and when you believe you were discriminated against; Any other relevant information; and Your signature. The complaint should be sent to your OCR regional office or to the Washington, D.C. headquarters:
U.S. Department of Health and Human Services Once your complaint is received, it is reviewed and if it raises an issue under the Rehabilitation Act or the ADA it will be investigated. If discrimination is found, OCR will first try negotiating a voluntary resolution to correct the discrimination. If negotiations are unsuccessful, enforcement proceedings may be instituted to suspend Federal funding. At this point, you may also wish to consult with an attorney about bringing a private lawsuit. Once a complaint is filed with OCR, the institution or agency named in the complaint is prohibited from taking any kind of retaliatory action against you or any person who provides information to OCR regarding the complaint. If OCR finds that the complaint is not within their jurisdiction, they may forward it to an appropriate agency that may be able to help you. OCR has a hotline for technical assistance at: 1-800-368-1019 (Voice); 1-800-537-7697 (TTY)4 or visit their Web site. XVI. Technical Assistance Resources on the ADA--Regional Disability and Business Technical Assistance Centers The Disability and Business Technical Assistance Centers (DBTACs) on the Americans with Disabilities Act (ADA) are leading national resources for information on the ADA in the United States. There are centers in each of the ten federal regions that cover the United States. They are authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide training, materials, and technical assistance to individuals and entities that are protected or have obligations under the Americans with Disabilities Act. ADA requirements and answers to technical questions on the application of the ADA to health care and other ADA issues are explained to anyone calling the national toll-free hotline at 1-800-949-4232. All calls are confidential and automatically routed to the DBTAC that serves the state where the call originates. XVII. RTC on Managed Health Care and Disability at ILRU Research and Training Projects Research Projects
Training Projects
For further information, please contact Wendy Wilkinson at ILRU (Independent Living Research Utilization), 2323 S. Shepherd, Suite 1000, Houston, TX 77019, 713-520-0232 (Voice), 713-520-5785 (Fax), 713-520-5136 (TTY), or email wendy@ilru.org. 1 Other cases that reached the same conclusion regarding the “fluidity” of the definition of public accommodation include: Wai v. Allstate Ins. Co., 75 F.Supp. 2d1 (DDC 1999); Attar v. Unum Life Insurance Co. of America, 1998 WL 574885 (N.D. Tex. 1998); Chabner v. United of Omaha Life Ins. Co., 994 F.Supp. 1185 (N.D. Cal. 1998) (Title III applies to insurance underwriting practices). See also: Cloutier v. Prudential Ins. Co., 964 F.Supp. 299, 302 (N.D. Cal. 1997); Kotev v. First Colony Life Ins. Co., 927 F.Supp. 1316 (C.D. Cal. 1996); Lewis v. Aetna Life Ins. Co., 982 F.Supp. 1158 (E.D. Va. 1997) (Title III prohibits insurer from discriminating on the basis of disability, regardless of how policy is acquired); Doukas v. Metropolitan Life Ins. Co., 950 F.Supp. 422 (D.N.H. 1996) (Title III extends to the substance of an insurance policy including underwriting practices). 2 42 USC Sec. 12182 (b) (1) (e). 3 “Families USA is a national nonprofit, non-partisan organization dedicated to the achievement of high-quality, affordable health and long-term care for all Americans. Working at the national, state and community level . . ..” See “Resource Directory” for contact and additional information. 4 Information excerpted from “Know Your Rights - Fact Sheet” about OCR’s responsibilities under the ADA and Section 504. Getting Started Families USA Foundation has a number of guides that provide a basic overview of a topic and then offer extensive information, case studies, and best practices for advocates. Two may be of particular interest to people with disabilities and disability advocates: A Guide to Meeting the Needs of People with Chronic and Disabling Conditions in Medicaid Managed Care (January 1998). A Guide to Access to Providers in Medicaid Managed Care (April 1998). These guides are free. For more information, you can contact Families USA by email at info@familiesusa.org, by telephone 202-628-3030, or visit their Web site at http://www.familiesusa.org. Reviewing Managed Care Contracts The National Health Law Program has created “An Advocacy Checklist for People with Disabilities” to assist in review of state Medicaid managed care contracts. This document and other valuable tools are available on the NHeLP Web site at http://www.nhelp.org. Evaluating MCO and State Plans In October 1998, the Health Care Financing Administration published a document entitled “Key Approaches to the Use of Managed Care Systems for Persons with Special Health Care Needs.” This guidance document is intended to aid states in planning, but it can also be used to hold states and health plans accountable. (After all, if something is “key,” it should be addressed at the state and plan levels.) The revised 1915(b) waiver renewal application form requires states to report on their efforts to comply with ADA requirements, among other things. See “Section F: Special Populations” and “Addendum to Section F: Draft Interim Review Criteria for Children with Special Needs.” In states that are implementing mandatory managed care for Medicaid beneficiaries with special needs, advocates should review this information and monitor program and plan performance. Managed Mental Health Care The National Alliance for the Mentally Ill has created a report card that can be used to evaluate mental health services. To see how it works, request a copy of Stand and Deliver: Action Call to a Failing Industry by calling 1-800/950-NAMI, or read a summary on the Web site at http://www.nami.org/update/reportcard.htm. The Substance Abuse and Mental Health Services Administration has a Managed Care Technical Assistance Series that includes titles such as Partners in Planning: Consumers’ Role in Contracting for Public-Sector Managed Mental Health and Addiction Services. Like the other materials referenced in this resource list, this helpful guidebook should be available free-of-charge. You can get more information from the SAMHSA managed care initiative Web site at http://www.samhsa.gov/mc. Implementing Olmstead Tapes of the teleconference on Implementing Olmstead may be obtained from NCIL (National Council on Independent Living), 1916 Wilson Blvd., Suite 209, Arlington, VA 22202 (Attn. Kristy Langbehn), at 703-525-3406 (Voice), 703-525-3409 (Fax), 703-525-4153 (TTY), Web site at http://www.ncil.org, or email at ncil@ncil.org. Speakers and organizations submitting comments included: Bob Kafka, ADAPT, 1339 Lamar Square Drive #101, Austin, TX 78704, Web site at http://www.adapt.org; Mike Oxford, Topeka Independent Living Resource Center, 501 SW Jackson, Suite 100, Topeka, KS 66603, Web site at http://www.tilrc.org; Steve Gold, (215) 627-7300; ATTAC (Advocacy Training/Technical Assistance Center) for Protection and Advocacy Systems and Client Assistance Programs, 303-733-9324 (Voice), Web site at http://www.protectionandadvocacy.com/attac12.htm; and the National Association of Protection & Advocacy Systems, Inc., 900 Second Street, NE, Suite 211, Washington, DC 20002-3557 at 202-408-9514 (Voice), 202-408-9520 (Fax), 202-408-9521 (TTY), Web site at http://www.protectionandadvocacy.com. The RTC on Managed Health Care and Disability’s primary purpose is to provide national leadership on the major health service and health policy issues facing consumers with disabilities in managed health care arrangements. The Center conducts research; prepares special policy analyses; hosts forums for discussion; presents expert testimony to Congress and governmental agencies; publishes in the health policy, consumer, and trade literature; trains graduate students with disabilities in health service research; and disseminates findings to the diverse consumer, provider, payer, academic, and policy making audiences. The Center seeks to serve as a catalyst in the nation’s capital and at the state level for the development of new ideas that will make managed care and the larger health care system more responsive to the needs of people with disabilities. You can get more information at the Web site, http://www.ilru.org/mgdcare. (Grant #H133B70003) The Health Law and Policy Institute at the University of Houston was established in 1978. In March 1999, it was ranked as the number one health law program in the country. You can get more information at the Web site, http://www.law.uh.edu/healthlaw. Since 1977, ILRU (Independent Living Research Utilization) has served as a national center for information, training, technical assistance, and research on independent living. ILRU is affiliated with TIRR Systems, a corporation providing a continuum of services to people with disabilities. You can get more information at the Web site, http://www.ilru.org. The Southwest
DBTAC (Disability and Business Technical Assistance
Center) for Federal Region VI is one of ten regional centers
in the United States. The Southwest DBTAC is based at
ILRU, a program of TIRR located in Houston, Texas. It is
funded by the National Institute on Disability and Rehabilitation
Research (NIDRR), an agency of the Department of Education.
You can get more information at the Web site, http://www.ilru.org/dbtac
or if you are located in Arkansas, Louisiana, New Mexico, Oklahoma,
or Texas you can contact us at 1-800-949-4232. All other
states can contact us at 713-520-0232.(Grant #H133D60012) Staff Mary Anderlik Sharon Finney
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The complete ILRU Web site was developed with support from grants from the Department of Education. However, its contents and the opinions expressed do not necessarily represent the policy of the Department of Education, and no endorsement by the Department should be assumed. ILRU is a program of TIRR (The Institute for Rehabilitation and Research), a nationally recognized medical rehabilitation facility for persons with disabilities.
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