I had been hopeful that the advocates lawsuit against the Wisconsin Managed Care Program would prevail but that was not the case yesterday. Last year we invited Thomas Cook to present on the Wisconsin Managed Care Program and he has kept me up to date as advocates filed a lawsuit last August. Thomas met with our Executive Forum last week to discuss progress of the lawsuit. Below is his summary of the decision and related documents.Yesterday about 1,000 people attended the Administration’s briefing of Phase Two of the Integrated Care Pilot. Phase Two includes all community waiver programs excluding developmental disabilities. The Arc remains oppose to Phase Three. We will have a program on managed care at The Arc’s Leadership Conference in few weeks and also at The Arc’s Annual Convention. Join us.
Yesterday. Judge Barbara Crabb announced her decision, which dismissed the lawsuit brought by plaintiffs against three Managed Care Organizations (MCOs), the Wisconsin Department of Health Services (DHS), and DHS Secretary Dennis Smith. In reaching this decision, Judge Crabb said:
“[I]t is impossible not to sympathize with plaintiffs’ plight. They are not seeking large sums of money for personal gain or sweeping changes to the government. They simply want to keep their homes and a basic level of assistance. It is unfortunate to say the least that the most vulnerable members of society have found themselves to be the victims of budget cuts. I have little doubt that the reductions in funding will cause significant hardship to individuals with disabilities all around Wisconsin.”
In dismissing the case, Judge Crabb identified several areas in which the case might continue to be pursued. Of most interest to me was her discussion on whether or not a claim can be brought under the Americans with Disabilities Act (ADA) based on disparate treatment of different groups of people with disabilities. Because the Seventh Circuit of the U.S. Court of Appeals, in which Wisconsin courts fall, has not ruled specifically on this matter, she said she was bound by precedent within the circuit. Mr. Pledl feels that this precedent is contrary to the Olmstead decision, which found that people with more significant disabilities living in an institution were being denied rights accorded to people with disabilities living in the community. Therefore, this case would seem to be ripe for consideration by the Seventh Circuit of the U.S. Court of Appeals.
Please see the press release from Mr. Pledl, in which he identifies additional areas in the decision that he and the other attorneys felt were favorable to the plaintiffs. One of the arguments made by the MCOs that was most worrisome to me and to others around the country who are in the process of entering into a managed care system was that private MCOs are immune from federal regulations (i.e., the ADA and the Rehab Act) because of McCarran-Ferguson Act, which prohibits any Federal interference with State insurance laws. The Court disposed of this argument by saying that the defendants had failed to explain how the Family Care statutes could qualify as laws that regulate insurance.
The judge also found that the plaintiffs did have standing to bring the lawsuit, which would be helpful in an appeal, because often times attorneys find that a dismissal by a District Court on those grounds is impossible to overcome at the next level.
Another issue that was decided in the plaintiffs’ favor was the finding that MCOs do not have the same immunity from claims under the ADA and §1983 that the decision granted to DHS and Secretary Smith. Despite giving immunity to the State against the ADA and §1983 claims, the judge did not dismiss the Rehabilitation Act claims against the State, and in fact found that States do not have sovereign immunity from lawsuits under the Rehab Act because they voluntary accept Federal funds and agree to waive their immunity from lawsuits.
It is impossible to know whether any of the Managed Care Organizations that have entered into negotiations with the plaintiffs and their providers in an attempt to resolve this dispute might feel like they have a green light to make deeper cuts, now. They can’t help but understand that the plaintiffs will appeal this decison and how it might look to the Court of Appeals in Chicago if they make a bad situation even worse for people with signifcant disabilities who receive residential services under the Family Care program. Furthermore, I would hope they would understand how it would look to the public and to their elected representatives if they added insult to injury by making additional cuts at this time.
A Lincolnesque response by Secretary Smith to the victory by DHS and the MCOs at this stage of the proceedings would be reach out to guardians, providers, and advocates, to ask them to come together with other stakeholders to discuss how DHS might use this interlude to make changes in the very funding methodologies that led the plaintiffs in the case to seek Mr. Pledl’s assistance in the first place. If this decision were to be used as a catalyst for creating a fair and equitable funding system, it would be a true act of statesmanship on the part of DHS that would call to mind the concluding words of Lincoln’s first inaugural address, in which he appealed to “the better angels of our nature.”