Sunday, November 21, 2010
COFA medical care case advances in federal court
by Larry Geller
When the Lingle administration attempted to cut off dialysis and chemotherapy services to Compact of Free Association residents of Hawaii it sparked a scandal that likely made a sizable dent in the Governor’s popularity rating. Cutting off those services would be a death sentence, and there is a report that as many as 27 people may indeed have died as a result of that action.
Lingle and Director of the Hawaii Department of Human Services, Lillian Koller, did not learn from their mistake and created a new health plan called Basic Health Hawaii (BHH) which seemed immediately problematic because there were no administrative rules permitting DHS to do that. The plan was to dump the COFA residents into that minimal plan.
And so a series of lawsuits was filed against the state resulting in an injunction. One is the subject of a procedural hearing tomorrow before Judge Kevin Chang.
It’s a scheduling hearing that probably isn’t worth attending. Here is a snip from the filed document. The original complaint and this document are attached below.
Plaintiffs are COFA Residents. From 1996 to the implementation of BHH on July 1, 2010, COFA Residents were eligible for and/or received State-funded health benefits through existing medical assistance programs established under Title XIX of the Social Security Act, such as QUEST, QExA, QUEST-Net, QUEST-ACE, fee-for-service, and SHOTT ("Old Programs"). The Old Programs are jointly financed by the Federal and State governments and administered by the State. On July 1, 2010, DHS disenrolled COFA Residents who were not pregnant and who were age nineteen or older from the Old Programs and enrolled them in BHH.
Plaintiffs allege, among other things, that BHH violates (1) the Equal Protection Clause of the Fourteenth Amendment because it provides less health benefits than the Old Programs offered to citizens and certain qualified aliens, and (2) the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, because BHH is not administered in the most integrated setting appropriate to meet their medical needs.
A previous case brought in this Court on behalf of COFA Residents and New Residents, Sound, et al. v. Koller, et al., CV. No. 09-409 JMS-KSC, led to an injunction against Defendants' previous attempt to implement BHH. The Sound Plaintiffs were subsequently found to be the prevailing parties and awarded attorneys' fees pursuant to 42 U.S.C. § 1988.
In a simultaneously-filed suit in State court, Sound, et al. v. Koller, et al., Civil No. 09-1-2022-08 GWBC, the court found that Defendants had violated the Hawai`i Administrative Procedures Act, Chapter 91, Hawai`i Revised Statutes, by failing to engage in administrative rule making prior to implementing BHH.
The COFA plaintiffs are represented by a capable array of attorneys: Victor Geminiani, Paul Alston, J. Blaine Rogers, Zachary A. McNish, Margery S. Bronster, Robert M. Hatch and Catherine L. Aubuchon.
Click “Fullscreen” for easier reading, or download your own copy.
Download complaint: 1-10-cv-00483 20100823 Korab v. Koller
Closing remark: I can’t resist. If someone goes out and kills even one person, they will find themselves behind bars (unless they are police…). If someone might be found responsible for 27 deaths, they not only walk free but consider running for higher office. At the top of the heap, it appears that killing any number of people is possible in foreign countries without recriminations.
There’s something very wrong with this.
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