Braille Monitor

December, 1992

 FEDERATIONISTS JOIN IN ADA LAWSUIT TO BLOCK MEDICAID CUTS

by Greg D. Trapp

From the Associate Editor: Greg Trapp is one of the leaders of the National Federation of the Blind of New Mexico. He is also an attorney with the Protection and Advocacy System in the state. Last May he and his colleagues brought what appears to have been the first lawsuit ever in a State District Court claiming violations of the Americans with Disabilities Act. Those of us who have watched and worked for passage of this legislation know that there are very real limits to what it can do to assist disabled people. It is a tool, and we must learn to use it wisely and appropriately. This case is instructive and serves as an example of what the ADA can and cannot do in difficult and complex legal and fiscal situations. Here is the story as Greg Trapp told it:

A recent Americans with Disabilities Act (ADA) lawsuit is of special interest to blind people. The lawsuit was decided on issues related to the ADA Title II provision on "effective communications." It was an effort to block Medicaid cutbacks in the state of New Mexico. Several members of the National Federation of the Blind were deeply involved in the lawsuit, including Albuquerque board member Marcella Gallegos, who was one of the three plaintiffs; NFB of New Mexico president and Information Access Coordinator Joe Cordova, who testified as an expert witness; other NFB members who were prepared to testify as fact witnesses; and many more Federationists who came to the hearing to demonstrate their support. In addition, I was a member of the team of eight attorneys from the organization Protection and Advocacy System (P&A) which litigated the case.

Protection and Advocacy Systems are familiar to many as the state-appointed, mostly federally-funded entities usually charged with representing the developmentally disabled and (through the Client Assistance Program, CAP) with representing state rehabilitation agency clients. However, the New Mexico Protection and Advocacy System is one of only eleven state agencies to include a Protection and Advocacy for Individual Rights (PAIR) project along with its other services. PAIR provides advocacy to recipients of services from Rehabilitation Act Title VII Independent Living Centers, including the section C, older blind adult programs.

Like Medicaid programs in other states, the New Mexico program has a budget deficit caused by the national recession and Medicaid expansions. This past March the New Mexico Human Services Department (HSD) published legal notice of proposed cutbacks in the state Medicaid program. HSD also published legal notice of a public hearing on the proposed cutbacks, which was to be held in Santa Fe on April 10, 1992. The purpose of this hearing was to enable HSD to gather public comment on the proposed cuts so that these concerns could be considered prior to the adoption of the final rule.

There are 170,000 Medicaid recipients in New Mexico, most of whom are low-income, elderly, or disabled persons. The proposed cuts would have limited these Medicaid recipients to just two doctor's visits and three prescriptions per month. Non-emergency dental care and elective surgical procedures would have been eliminated. Recipients would have been required to make co- payments for each doctor's visit and prescription. Medicaid payments for important items such as eye glasses, hearing aids, and other durable medical equipment (as well as diapers and adult protective undergarments) would have been eliminated altogether. One of the ironies of the proposed cutbacks was that, rather than saving the state money, a strong case can be made that the cuts would ultimately have cost the state more than the six million dollars HSD projected it would save. The restrictions on doctor's visits and the newly-imposed co-payments would have forced many Medicaid recipients to defer needed early medical treatment, which often results in medical complications that can lead to expensive hospital treatment. Additionally, Medicaid payments allow many severely disabled persons to live outside of costly medical care facilities. The cutbacks would have forced many of them into nursing homes or hospitals.

When the devastating impact of the proposed cuts became known, Protection and Advocacy began to formulate a strategy to oppose them. Our first plan was to file a lawsuit seeking a court order requiring the Human Services Department Secretary to rescind the cuts. We had to show that he had failed to comply with his "mandatory non-discretionary duty" to abide by state and "other applicable" law. We argued that the Secretary failed to abide by New Mexico statutory laws concerning the rule-making process and that he failed to comply with the requirements of the Americans with Disabilities Act.

The ADA is comprised of five divisions: Title I currently covers private employers with twenty-five or more employees; Title II covers state and local governments; Title III covers private sector public accommodations; Title IV covers telecommunications; and Title V includes miscellaneous provisions of the Act.

Title I currently covers employers with twenty-five or more employees and prohibits discrimination based on disability. It requires employers to provide reasonable accommodations for disabled and prospective employees. It mandates that disabled employees be required to perform only the "essential functions" of a job and makes illegal job requirements such as having a driver's license if the job requires only occasional driving and if the driving can be assigned to other employees. It makes illegal job application questions which would tend to elicit information about a person's disability.

Title II covers all activities of state and local governments. These must be operated so that, when viewed in their entirety, they are "readily accessible to and usable by" disabled people. Communication with these individuals must be as effective as communication with others. Title II does not require elimination of barriers in existing buildings. However, newly constructed buildings and facilities must be free of architectural and communication barriers, and substantially remodeled portions of existing buildings or facilities must be accessible. A Title II public entity need not make a fundamental alteration in a facility, service, or program or be required to make alterations or modifications which would result in an undue administrative or financial burden.

Title III covers private entities that operate public accommodations such as hotels, restaurants, and theaters. It requires that public accommodations provide goods and services in an integrated setting, eliminate discriminatory eligibility standards, and make reasonable modifications in policies, practices, or procedures, provided that a fundamental alteration would not result in a change in the nature of the goods and services provided. Although Title II does not require state and local governments to remove barriers in existing facilities, Title III does require that public accommodations remove barriers in existing facilities, where "readily achievable," that is, "easily accomplishable and able to be carried out without much difficulty or expense." Public accommodations must furnish auxiliary aids when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result. Public accommodations must provide equivalent transportation services, maintain accessible features of facilities and equipment, and design and construct new facilities and alter existing ones in accordance with the Americans with Disabilities Act Accessibility Guidelines (ADA-AG). (The infamous truncated domes discussed at length in the October, 1992, issue of the Braille Monitor are contained in the ADA Accessibility Guidelines.) Private entities offering examinations for educational or professional purposes must offer them in an accessible place and form or offer alternative accessible arrangements.

The ADA can be understood better by looking at the areas which it does not cover. Religious organizations are generally exempt unless they rent facilities to a Title III public accommodation or unless they employ twenty-five or more persons, in which case they are covered by Title I. Indian tribes are also not covered. The Rehabilitation Act of 1973 covers the Federal Government, and therefore the ADA does not apply to it. The Fair Housing Act was amended in 1988 to protect against discrimination based on disability, so therefore the ADA does not cover housing or apartment rentals. Likewise, the ADA does not cover airports or airlines because they are already covered by the Air Carrier Access Act.

It is at this point, when looking at the interplay between the various laws, that the ADA gets a little tricky. For example, private vendors located in airports are not covered by the Air Carrier Access Act and are therefore covered by Title III of the ADA. The Fair Housing Act does not cover hotels and other places of temporary lodging, so therefore Title III covers them. While most state and local governments receive federal funds and therefore have long been covered by Section 504 of the Rehabilitation Act of 1973, not all governmental entities receive federal funds. Therefore, Title II of the ADA, which is basically a restatement of Section 504, is intended to reach those previously uncovered governmental entities and applies ADA requirements to even the smallest local governments. Thus, an ADA complaint against a small town which receives no federal funds will be investigated as a Title II complaint. If, on the other hand, an ADA complaint is filed against a state agency which receives federal funds, it will be treated as a 504 complaint and routed to the federal agency which disperses funds to the department in question.

Any individual who believes that he or she is a victim of discrimination may file a complaint. Complaints on behalf of classes of individuals are also permitted. They should be submitted in writing, signed by the complainant or an authorized representative, contain the complainant's name and address, and describe the alleged discriminatory action. Eight federal agencies are designated to receive ADA complaints. A complaint filed with the wrong agency will eventually be routed to the proper one. The Department of Justice is designated as the primary ADA enforcement agency; so, when in doubt, complaints should be sent there. ADA complaints must be filed with a designated agency (even if it is the wrong one) within one- hundred-eighty days of the discriminatory act, unless there is good cause for delay.

In addition to the federal complaint process, private lawsuits may be brought to enforce the ADA, and these may be brought prior to exhaustion of administrative remedies. It was this provision that permitted Protection and Advocacy to raise ADA violations in our lawsuit against the New Mexico Human Services Department.

Although Title II of the ADA reiterates the provisions of section 504 of the Rehabilitation Act, it does elaborate upon the earlier legislation in several important areas, including additional definition of the provision concerning communications. Section 35.160 of Title II of the ADA regulations requires state and local governments to communicate with the public in a manner that is "as effective" for disabled persons as for the non- disabled. Section 35.160 reads as follows:

SUBPART E - COMMUNICATIONS 35.160 GENERAL.

35.160(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.

35.160(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.

35.160(b)(2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.

The New Mexico Human Services Department, however, ignored-- or perhaps more accurately was oblivious of--these provisions of the ADA. We argued that the HSD announcements of the proposed cuts, the publication of the regulations implementing the proposed cuts, and the April 10 public hearing on the proposed cuts failed to comply with the Section 35.160 provisions requiring "as effective communications for the disabled as for the non-disabled." We also argued that the public hearing itself was inaccessible. It had originally been scheduled in a room which seated one-hundred-twenty-eight persons and which was largely wheelchair-inaccessible, having only a small handicapped section at the back. It had an inaccessibly steep ramp leading to the front, where the microphones were located, and no provision was made for a person using a wheelchair to travel to the microphones. HSD had made no provisions for sign language interpreters and had to scramble to locate several at the last minute. None of the written information on the cutbacks was prepared in alternate formats such as Braille or audiotape. Over five hundred persons appeared at the public hearing, and as a result HSD decided to move it across the street to the State Capitol Building. The hundreds of persons--many of whom were on crutches, in wheelchairs, or on stretchers--had to make their way through two parking lots and across a busy street in order to reach the Capital Building.

The cuts were scheduled to take effect on May 1, 1992. On April 29 we filed our court order in State District Court, expecting that a hearing would be scheduled in a couple of weeks. The judge issued a temporary order granting our Writ and, to our surprise and that of the HSD attorneys, scheduled a hearing for the next day. After the judge granted the temporary Writ, we met with the HSD attorneys into the evening. We were trying to agree on certain facts so that we would not have to contest them at the hearing. Three attorneys represented P&A at this meeting. It concluded with an exchange of witness lists, and I announced our intention to call Fred Schroeder, director of the New Mexico Commission for the Blind, and Joe Cordova, president of the National Federation of the Blind of New Mexico and NFB Information Access Coordinator for the state, as expert witnesses on the ADA and issues related to blindness. Notice of intent to call an expert witness is usually required to be given to the other side in a lawsuit so the attorneys can prepare their cross- examination. Both Mr. Schroeder and Mr. Cordova have amassed impressive credentials. When I recited them, a task that took several minutes, Shannon Broderick, HSD's lead attorney, sat back and said, "I'm beginning to think that it isn't realistic to have this hearing tomorrow."

We returned to our office at about 8:00 p.m., and shortly thereafter Ms. Broderick called to request that we agree to an extension of the temporary Writ and a new hearing date. This seemed to be in our interest, so we agreed. However, no one knew whether the judge would agree to the postponement, so we had to be prepared to present our case the next day. Consequently, Joe Cordova and Marcella Gallegos, who was one of the plaintiffs and a member of the board of directors of the NFB's Albuquerque chapter (Fred Schroeder was out of town), made the first of what turned out to be three hour-long trips to Santa Fe. This one proved to be unnecessary because the judge agreed to the postponement and rescheduled the hearing for May 12, 1992. During the interim we made plans to pack the court with people who had obvious disabilities. As a result about fifty persons with disabilities, including nearly a dozen Federationists, were present at the start of the hearing. Several newspaper reporters along with news crews from all three local TV news organizations were also present to record the events. I had been given responsibility for formulating the ADA arguments, so we decided that I would present the majority of the ADA case at the hearing. Our plan was twofold: 1. argue that the ADA had been violated; and 2. argue that the process by which the rule enacting the proposed cutbacks was promulgated and eventually adopted was not in accordance with statutory requirements. We had a small parade of sympathetic witnesses, who were to testify that the public hearing was inaccessible and not conducted in accordance with the statutory requirements for a public hearing.

The judge began by disparaging our entire case and especially casting severe doubt upon our ADA arguments, saying that he didn't think the ADA applied, but if it did, he would give it only slight weight. After this discouraging introduction, the judge called the case, and the lead attorneys presented opening arguments. HSD argued that they had complied with all relevant New Mexico statutes governing the adoption of agency regulations and the holding of public hearings and that the ADA did not impose any additional requirements above those contained in the New Mexico statutes.

We began to call our witnesses and elicited testimony about the inadequacy--even complete lack--of accommodations provided by HSD. We took every opportunity we could find to elicit testimony about the harm that would result from the proposed cuts, and HSD quickly objected each time. We called several witnesses who testified to the inadequacy of the sign language interpretation arrangements and to the need to publicize the availability of sign language interpreters. The ADA clearly requires that steps taken to comply with the Act be publicized.

I called our first expert witness, Anne Thomas, an attorney who is knowledgeable about the ADA. My first job was to have her recite her qualifications as an expert. Ms. Thomas has extremely impressive ADA credentials, including being the Director of Equal Opportunity Programs and ADA Coordinator at the University of New Mexico, serving five years as a staff attorney at the Equal Employment Opportunities Commission, serving on several disability- and ADA-related boards and commissions, and writing numerous scholarly articles on the ADA. Ms. Thomas also uses a wheelchair. Needless to say, the effect was quite dramatic. Also needless to say, Ms. Broderick vociferously objected to Ms. Thomas's being allowed to testify. However, the judge overruled her objections and allowed the testimony.

An expert witness is permitted to give an opinion on an ultimate question of law. Ms. Thomas was thus able to state her opinion that the Human Services Department had failed to comply with the Americans with Disabilities Act. She testified that Section 35.160 of Title II required HSD to communicate the notice of the proposed cuts and the notice of the public hearing in a way that was "as effective for the disabled as for the non- disabled." Specifically, she testified that HSD was required to provide the notice in Braille and on audiotape as well as take steps to communicate directly to organizations representing the blind. Most important, she was also able to convince the judge of the applicability of the ADA to HSD and of the Act's supremacy over the narrow public-hearing and rule-making requirements listed in the New Mexico statute. This testimony countered the HSD argument that it was required to abide by the statutory rule- making requirements only and that it therefore did not have to take steps to accommodate persons with disabilities. The transformation in the judge's thinking was evident at the end of the day's testimony when he referred to the ADA and said, "It's a whole new world."

I called Marcella Gallegos to testify on the second day of the hearing. The presence of Ms. Gallegos, who was one of our named plaintiffs and an active Federationist of many years standing, was very important to our case. She gave us clear reason to assert that Section 35.160 of Title II had been violated. The lawsuit claimed that her Title II rights were violated because HSD had taken no steps to make the notice of the cuts and public hearing comply with the Section 35.160 requirements that such notices be effectively communicated. Ms. Gallegos had been unaware of the proposed cuts. I asked her to describe how she would be harmed by them. This question was objected to, although the objection was overruled on the basis that the question addressed the importance of Ms. Gallegos' receiving adequate notice and the likelihood that she would want to attend the public hearing.

Our last witness on the second and final day of the hearing was state NFB president Joe Cordova. We called him as an expert witness on effective communications for the disabled and on blindness. The judge knew of Mr. Cordova from a letter which he had recently sent to all New Mexico judges pointing out that blind persons should not be kept from jury duty based solely on their blindness. The judge's reaction to Mr. Cordova and his letter seemed positive. He listened closely as the witness testified to the number of blind persons in New Mexico who receive Medicaid and his opinion on the ineffectiveness of the HSD communications. Mr. Cordova, who is the state NFB's Information Access Coordinator, described the steps necessary to assure effective communication with the blind and hearing- impaired.

The HSD attorneys put on a rebuttal argument and called the director of the Medicaid program. It was clear by this time that HSD officials were in difficulty. The legal team was trying to construct the argument that abiding by the ADA would have resulted in an undue financial or administrative burden. Upon cross-examination, however, the Medicaid director admitted that HSD had taken no steps to make the notices of the proposed cuts and public hearing comply with the ADA. After our cross- examination the judge himself questioned the Medicaid director asking him "how much would it cost to make audiotape copies of the regulation?" The director could only respond, "Not much." The director gave a similar answer when the judge asked how much it would have cost to place a sentence on the notices stating that a TDD number was available and that copies of the notices were available in Braille and other accessible formats.

It was obvious to all that the judge was about to rule in our favor. However, he threw out the arguments we had made concerning HSD's failure to abide by the statutory rule-making requirements. Instead, he found that HSD did not comply with the Title II ADA requirements for provision of effective communications, making the hearing fundamentally unfair. The decision caught many state officials off guard. HSD initially threatened to appeal the decision and even challenge the constitutionality of the ADA. The Governor, however, was quoted as saying that he did not want to be perceived as being against the disabled by challenging the ADA. Finally, the attorney general decided against an appeal on the basis that the facts of the case were too sympathetic to our side and that the result might be a decision against the state which would have even broader legal precedent.

State agencies, however, have taken notice of the decision. The New Mexico Commission for the Blind, which reflects the Federation philosophy of its director Fred Schroeder, is busy filling requests for ADA information and providing Braille services. The Newsline for the Blind (telephone newspaper-reading service) director, Mike Santullo, has even had to create a new legal notices category on the Newsline system. Mr. Cordova is also now responding to requests for information on how to provide more effective communication for blind people. As a result of this lawsuit, the positive philosophy of the National Federation of the Blind is being disseminated by many people in New Mexico. Best of all, it is all being done with nary a mention of a truncated dome.

There you have Greg Trapp's description of this important ADA case. Here are two of the newspaper articles published at the time it was making news. Jackie Jadrnak was the reporter who wrote both stories. The first was published in the Albuquerque Journal on Thursday, May 14. Here it is:

JUDGE HALTS MEDICAID CUTS, SAYS DISABLED KEPT FROM HEARINGS

Medicaid cuts won't be allowed to take effect under a court ruling Wednesday--a ruling that could have a major impact on public accommodations that must be made for people with disabilities.

The decision effectively means the state Human Services Department can't count on any savings from the cuts in its budget before the June 30 end of the fiscal year, according to Secretary Dick Heim.

State District Judge Art Encinias ruled the department didn't go far enough to make a public hearing on Medicaid cuts accessible to people with disabilities. Because the process to enact the cuts didn't comply with the federal Americans with Disabilities Act, the cuts themselves couldn't take effect, he said.

Heim said he would decide today what course the department would take next. It's possible the department could both appeal the decision and begin a round of new hearings to cut Medicaid coverage, he said.

One option might be to challenge the constitutionality of the Americans with Disabilities Act itself on the grounds that the federal government is interfering too closely with powers reserved to the state government, said Judith Ferrell, attorney for Human Services.

That could set the state in the forefront in challenges to the act, which toughens requirements for making public buildings and events accessible to people with disabilities. The act took effect January 26.

As it is, Encinias' ruling was the first in New Mexico on the effect of the disabilities act. "There are going to be very serious implications to state government," Heim said. Encinias said the department failed to give effective notice of the public hearing on the Medicaid cuts to people with disabilities, especially those who couldn't see.

In addition, the notice of the hearing failed to mention what special steps would be taken to make it easier for people with disabilities to participate, he said.

Testimony showed the notice of the hearing was available mainly in written form and didn't mention that sign language interpreters would be available.

Without offering details of what should have been done at the hearing, Encinias said adequate accommodations weren't offered for people with visual, hearing, or mobility impairments. Saying he didn't believe the department acted in bad faith, Encinias said, "It treated the disabled without thought...as invisible men and women."

Under the Americans with Disabilities Act, they can be invisible no longer, he said. "They are absolutely entitled to participate in public life," Encinias said.

The Medicaid cuts, which were to take effect May 1, would have reduced payments to various health-care providers and scaled back coverage for the 170,000 low-income people receiving Medicaid in New Mexico. For instance, Medicaid would have stopped paying for hearing aids, glasses, or dental care for adults and would have limited the number of doctor office visits and prescriptions it would pay for.

The cuts would have saved $4.3 million in state and federal spending during the last two months of this fiscal year. Without those savings Heim estimated that state funds are short $2.9 million to $6.9 million this fiscal year for the Medicaid program. The gap between the two figures represents money the state hopes counties will contribute to the program. Donna Smith, director of the New Mexico Association of Counties, said at a legislative hearing Wednesday that she might know after meetings this week how much counties might ante up. Do¤a Ana County already has agreed to give about $1 million, but several counties may have to donate to make it worthwhile for any of them to do it, she said.

Otherwise, only one or two counties would end up subsidizing the program statewide, according to Smith.

Odis Echols, lobbyist for Bernalillo County, said county and University Hospital officials are discussing whether they want to give Medicaid $2.5 million to help keep it out of the red this fiscal year.

Counting the federal match--the state gets about $3 in federal funds for every $1 it spends on Medicaid--the program's shortfall is running between $11.5 million and $27 million. The department estimates this fiscal year's spending will total about $500 million.

Next fiscal year expenses under Medicaid could run up to $565 million, while funding would be only about $500 million, according to department estimates. For the next fiscal year the department still has to figure out either how to cut spending or find new money.

There you have the first article. A little more than a month later, Ms. Jadrnak completed the story. Here is the Albuquerque Journal article of Tuesday, June 23:

STATE WON'T APPEAL MEDICAID RULING

The state won't appeal a court ruling that blocked Medicaid cuts and interpreted some requirements of the new federal Americans with Disabilities Act, officials said Monday. Attorney General Tom Udall said he was trying to practice preventive law instead.

Noting that his office is trying to develop guidelines for all of state government to comply with the disabilities act, Udall said, "After we have a chance to work at them a little more, we'll be able to resolve some of these issues rather than resolve them through litigation."

Last month state District Judge Art Encinias ruled that planned cutbacks in Medicaid couldn't take effect because a public hearing on the cuts didn't comply with the disabilities act. For example, public notices didn't state that interpreters for the deaf would be available, nor was any effort made to notify blind people of the hearing, he said.

The decision now specifically affects Human Services, but an appeal could set a strong precedent for all of state government, said Human Services Secretary Dick Heim.

Udall indicated it might have been hard for the state to win the case, "The courts, under the set of facts we had here, might well find against us," he said. "The facts could be very sympathetic to the plaintiffs and the judge's ruling." Also, the decision on whether to appeal had no real effect on Human Services' battle against a budget deficit, said Deputy Secretary Aug Narbutas.

It would be too late for program cuts to save the department any money for the current fiscal year, which ends next Tuesday, he said. Meanwhile, the department is working on a set of cuts that would go through a hearing process and might take effect about September, he said.

The department hasn't settled on a list of proposed cuts, Narbutas said, but added that the Medicaid program could be $65 million or more short next fiscal year. In New Mexico Medicaid, which pays medical bills for some low-income and disabled people, gets almost three-quarters of its money from the federal government.

"There are only two ways to deal with this: to increase revenues or reduce expenditures," Heim told members of the Legislature's Health and Human Services Committee Monday. "We most probably will go with another round of cuts. "We can't avoid being sued, but we hope to avoid losing," he added.

 "If we don't find another way to finance Medicaid growth, we're inevitably going to see significant cuts in the Medicaid program," said Sen. Janice Paster, D-Albuquerque. "Medicaid is just eating the general fund up....

"This is a gigantic train wreck--and I think it's coming next legislative session," she said, noting that program costs have grown thirty percent in each of the past two years. "This is a disaster of major proportions."

That is what the newspapers were saying, and there is no question but that the Medicaid program is in deep trouble. All citizens with a concern about this crisis should have an opportunity to be a part of the discussions being conducted by state governments across the country in an effort to find solutions. This case has demonstrated the new legal necessity to insure that no disabled citizens shall be prevented from taking part in the discussion. The Americans with Disabilities Act is no panacea, but in the right hands it is a tool that can help to insure justice.