Thursday, September 20, 2012


9th Circuit hears oral arguments in Lingle COFA healthcare denial case—a case that Abercrombie won’t drop

by Larry Geller

Governor Neil Abercrombie has continued an appeal before the 9th Circuit Court of appeals of an injunction granted by U.S. District Judge J. Michael Seabright that ordered Hawaii to reinstate health benefits for Micronesians and other members of the Compact of Free Association (COFA) countries (see Federal judge issues preliminary injunction restoring medical services to Micronesians and other COFA beneficiaries in Hawaii, 12/14/2010).

Oral arguments in the appeal were heard Tuesday in San Francisco.

The case began began as a class action suit against then Governor Lingle’s decision to cut off dialysis and chemotherapy to the Pacific Island migrants residing in Hawaii. Her decision was alleged to have cost at least 27 deaths after patients received a letter from Hawaii’s Department of Human Services informing them that their dialysis would be cut off.

Imagine you depend on dialysis to keep you alive. That letter comes in the mail. It starts off, “Aloha” followed by your name. Yup, they know who you are. It goes on to say that the state’s economy is bad, so your health benefits end August 31. Just like that.

There’s an explanation of the new plan. You look, and there is no dialysis. You call the phone number to check. Yes, you get no dialysis. Your heart is pumping and you’re breaking out in a sweat. It’s not swine flu you’ve got, it’s a death sentence from Linda Lingle, governor of Hawaii, sent to you personally.

[Dialysis cutoff may be settled by the courts, 8/31/2009]

In deciding to enjoin the state, Judge Seabright determined that those whose services have been cut off would suffer irreparable harm. Plaintiff attorneys held that irreparable harm had already occurred. The judge ordered medical services to resume the following day.

While the judge ruled on matters of law, there is also an overwhelming moral issue involved. This makes Governor Abercrombie’s decision not to drop the appeal particularly distressing. He has continued to fight Seabright’s injunction.

The case is Tony Korab, et al. v. Patricia McManaman, et al, case number 11-15132.

Listen to the oral arguments before the panel of three 9th Circuit justices (Margaret McKeown, Richard Clifton, and Jay Bybee) via the player below. (The player requires some plugins in your browser. If it doesn’t appear, use the download link instead).

Download or listen from this link

No sooner did Deputy AG  Lee Anne Brewer start her arguments when she fell under sharp questioning. She was questioned closely just a few seconds into her arguments. Plaintiff attorney Paul Alston faced the same.

For those who may not know the background of this case, the US tested atomic weapons on the islands now called the COFA states. As a result, islanders have had serious health problems that have persisted from one generation to the next. They are entitled to free medical care in the US, and many have chosen to live in Hawaii. The US government has never properly reimbursed Hawaii for their care.

Governor Lingle sought to simply cut off these residents of the state from health services that were keeping many of them alive. The media noted in particular what the loss of chemotherapy and dialysis would mean to this community.

The class action suit against the state, alleging that the reduction in health care benefits violated the equal-protection clause of the U.S. Constitution and the Americans with Disabilities Act.

Attorney Paul Alston argued for the COFA plaintiffs in San Francisco. He described the discrimination as focusing narrowly on COFA residents.

It is always risky trying to guess how 9th circuit judges will decide based on their questioning during oral arguments. But the audio is very clear—listen in, and you be the judge.

For more on this case, see these articles.


The "player below" seems to be missing.

Hmmm... it shows on my browser. To be sure, I added a link below where the player is supposed to be. That should work for anyone, I hope.

Maybe I need a better audio player.

"The US government has never properly reimbursed Hawaii for their care."

Let's focus on this. Let's ask our Congressional team how they can "guarantee" (up to and including WW3)$1.55 billion in Federal dollars for the Train but cannot get Uncle to pony up the promised payments for COFA folks. Instead of just demonizing Lingle who was required by law to try balance the State budget, ask Akaka or Inouye what all their seniority has accomplished in resolving this abomination.

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