It's been a busy night-morning for ISM who should get some sleep to have
a pretty face for the Wheelchair Maintenance Guy later.
Perhaps the hour-I can't quite translate this. But it does seem
important.. Maybe because I don't understand it.
S.
-----Original Message-----
From: [log in to unmask]
[mailto:[log in to unmask]]On Behalf Of Stephanie Thomas
Sent: Monday, February 28, 2000 7:32 PM
To: micasa-list
Subject: FW: fyi - new olmstead case
-----Original Message-----
From: [log in to unmask]
[mailto:[log in to unmask]]
Sent: Monday, February 28, 2000 9:51 AM
Subject: fyi - new olmstead case
Disabled Plaintiffs Win Right to
In-Home Care
Michael A. Riccardi
New York Law Journal
February 28, 2000
Without specific evidence of program-wide
difficulties in providing services, New York City and
State officials may not deny accommodations to a
disabled person eligible for access to a public
benefit, a Manhattan Supreme Court justice has
ruled.
The decision by Justice Karla Moskowitz requires
State and City officials to allow three disabled
people to continue using Medicaid-funded in-home
care.
The decision in Matter of Sanon v. Wing,
402855/98, represents the first interpretation in
New York State of the U.S. Supreme Court's 1999
ruling in Olmstead v. L.C. ex rel. Zimring, 527 U.S.
581. Olmstead limited the government's ability to
raise a defense to demands claimed under the
federal Americans With Disabilities Act.
The court ruled that the ADA guaranteed access to
the in-home care program for three petitioners,
each of whom had several disabilities, rejecting the
claims by City and State officials administering the
program that it would be "fundamentally altered" if
the petitioners remained in it.
Moskowitz's decision annuls those by the State
Department of Health and two City agencies to
terminate Medicaid home care services and place
the petitioners in nursing homes. The
administrative agencies' rulings were challenged
under Article 78 of the Civil Practice Law and
Rules.
The Olmstead ruling, Moskowitz reasoned,
effectively raised the level of proof needed by the
State and local officials to justify denial of a
requested accommodation under the ADA.
The Article 78 was filed after the City Human
Resources Administration (HRA) decided in 1996
to terminate in-home personal care services to
three disabled persons. The termination decision
came after the City Department of Social Services
(DSS) made a fiscal assessment that it was no
longer "cost effective" to provide in-home care on a
round-the-clock basis to the disabled persons.
Under the requirements of the ADA, the State has
an obligation to allow access to public benefit
programs, such as the Medicaid-funded in-home
care, to eligible persons who have disabilities, by
making reasonable accommodations as necessary
for the disabled. But local and State governments
may raise a defense against the accommodations
by saying that a modification of the program would
"fundamentally alter" the service.
The City DSS took the position that continued
home care to the petitioners would substantially
alter or modify the State's Medicaid program. But
Moskowitz said that the DSS position was
unsubstantiated, with no factual inquiry as to the
effect of any ADA modification.
It was the Olmstead Court that addressed the
"fundamental alteration" defense last year,
Moskowitz said. Federal courts, the U.S. Supreme
Court said, should employ a balancing test in
evaluating the defense. They should not simply
accept the State's assertion that a "fundamental
alteration" would occur as a result of the
modification.
Moskowitz adopted the balancing test for use by
New York courts weighing the effect of ADA
accommodations requested of State and local
officials running public services.
"The focus is ... not only on the impact on the
State's budget of providing the services, but also
on the competing demands of others requiring
services and the State's available resources," she
wrote.
Moskowitz said that the City and State, in order to
prove its defense, must demonstrate that the costs
of accommodating disabled eligible persons would
"fundamentally alter" the program as a whole.
Simply stating the comparative costs with regard
to the individual seeking the accommodation is not
enough, she said.
"Unless [the City and State] can demonstrate that
accommodating Medicaid recipients who otherwise
qualify for 24-hour home care would result in a
fundamental alteration in the Medicaid program,
respondents must provide services in 'the most
integrated setting appropriate to the needs of'
petitioners," Moskowitz wrote.
Moskowitz annulled the decision to terminate
in-home services to the petitioners and sent the
issue back to the City and State agencies for
further evaluation.
She said that a mere allegation by the government
officials that the public would be required to pay for
24-hour personal care whenever a Medicaid
recipient "prefers" home care was not enough to
justify termination.
The City DSS, which performed the cost analysis
for the three petitioners, did not "demonstrate that
there would be a 'massive' change in the program,"
Moskowitz pointed out. Nor did it consider what
would be the most integrated setting for the
petitioners, she said.
Lawyers from New York Legal Assistance Group
Inc. represented the petitioners.
NATIONAL ADAPT MAILING LIST - Adapt MiCASA List
|
