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Gregoire won’t appeal to Supreme Court over ruling on Medicaid cuts; case brought by SEIU now goes to trial

Post by Brad Shannon / The Olympian on Oct. 22, 2012 at 5:46 pm |
October 22, 2012 5:46 pm

Gov. Chris Gregoire said Monday she won’t appeal to the U.S. Supreme Court in order to defend budget cuts she sought in 2011. The cuts were challenged in court by 14 disabled people who saw a cut in assistance from state-paid home-care aides in March 2011, and the  Democratic governor now plans to let the state take its chances at trial in U.S. District Court.

Gregoire said in a statement that state concerns – about being able to make budget cuts in Medicaid without violating the Americans with Disabilities Act – were addressed in a letter from the Department of Justice and the Department of Health and Human Services dated Oct. 22, or Monday.

“I worked closely with Health and Human Services Secretary Kathleen Sebelius to obtain the guidance we needed, and on the basis of that guidance Washington state believes we can balance our budget while maintaining the intent of the Americans with Disabilities Act and the Olmstead ruling.

“The letter today from HHS and the U.S. Department of Justice affirms that, with appropriate process, Washington state can reduce its service level and still be consistent with federal law. Attorney General Rob McKenna and I agree that it is in the best interest of all citizens to return to the federal district court to obtain a final decision, rather than seek the review of the 9th Circuit’s decision by the U.S. Supreme Court at this time.”

The Service Employees International Union 775 Northwest had fought against the cuts, filing suit along with the disabled parties. Its spokesman Jackson Holtz said:

“SEIU Healthcare 775NW is pleased that Gov. Gregoire is not appealing the Ninth Circuit Court’s ruling to the U.S. Supreme Court and placing the rights of people with disabilities in jeopardy. We look forward to working with the state to resolve the case in a manner that ensures quality care for people with disabilities and seniors.”

The decision today sends the case – known as M.R. v. Dreyfus – back to U.S. District Court, and no trial date is yet set, according to Holtz.

The case had prompted letters to Gregoire signed by major disability groups nationally as well as in-state advocacy groups.

My previous stories on the issue are here and here.

At issue in the case were the 6.3 percent across-the-board budget cuts Gregoire ordered in 2010 and that took effect in March last year. The order reduced the amount of in-home care hours available to Medicaid clients in Washington, and it meant many qualified for fewer hours of home-care assistance with washing, laundry, cooking and other chores.

The cuts affected 47,000 people on Medicaid who received what are considered “optional” services that the state has elected to provide. “Optional” means that Medicaid, the federal-state partnership, does not require states to provide the assistance.

After an adverse ruling earlier this year in the 9th Circuit Court of Appeals, Gregoire was considering an appeal on behalf of DSHS.

“Our concern from the beginning has been that the 9th Circuit’s opinion could be read to say that a state could not make even moderate reductions in its personal care services when it faces a budget crisis,” DSHS Secretary Robin Arnold-Williams said Monday in a statement. “Under that reading, state leaders would not offer services during good economic times for fear of losing the ability to even moderately reduce those programs during an economic crisis. So it was critical that the state receive clarification from the federal agencies overseeing these programs on their interpretation of the appellate court’s ruling.”

The overall cuts carried a value of about $117 million for a more than 2½ year period. But the state was able to make most of those cuts, because the court did not impose a restraining order and only the 14 plaintiffs were being shielded by the suit initially, according to the state Department of Social and Health Services and the Governor’s Office.

But disability groups at the national and state level had other fears: that an appeal could open the door to a U.S. Supreme Court case in which the landmark, 1999 ruling in Olmstead v. L.C., could be altered.

Many sent letters to Gregoire since August urging her to drop the case. Olmstead, which grew out of a Georgia case, enshrined the right of disabled people to receive services in a less restrictive setting than institutions – often with home-care help to make their in-home set-ups workable.

Advocates say Olmstead did for the disabled that the court’s Brown v. Board of Education ruling did for civil rights in 1954.

But in her statement, Arnold-Williams explained that those concerns have been addressed:

“During months of discussions with the U.S. Department of Justice and Health and Human Services, the state offered to add an additional review step in the existing “exceptions” process that allows additional personal care service hours. Recent data shows the program is working to avoid service reductions that place individuals at serious risk of institutionalization, based on the state’s monitoring of various health indicators and nursing facility placements.
“Today, the heads of the civil rights divisions of HHS and DOJ provided joint guidance that the state of Washington may make reductions in these programs consistent with the landmark U.S. Supreme Court’s Olmstead ruling and the Americans with Disabilities Act using an appropriate exceptions process.
“Reducing personal service care hours for vulnerable citizens was one of many difficult decisions we were forced to make as we faced an historic financial budget crisis. I look forward to better economic times, in which state leaders can reconsider this and other reductions to social service programs. But in the meantime, we will continue our commitment to have the least impact on those with the greatest need.

Gregoire faced an Oct. 22 deadline for appealing to the high court. She had asked for two extensions since August to weigh her options, and during that time state leaders worked with the Justice Department and Health and Human Services Secretary Sebelius to clarify what the state’s options could be.

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