Tuesday, August 24, 2010

More Press Clippings, August 24, 2010

Lawsuit: State Discriminates in Care for Micronesians
Honolulu Civil Beat
by Sara Lin

New cuts to medical benefits for low-income residents based on nationality amount to discrimination, according to a federal class action lawsuit filed Monday against the state of Hawaii on behalf of disabled Micronesians.

Roughly 7,500 Micronesians live in Hawaii as legal residents and depend on the Hawaii Department of Human Services for medical benefits. Significant changes to their health-care plan went into effect in July — including limiting coverage to 12 doctors' visits per year and four prescription medications.

"We've very sensitive and empathetic to the financial situation we all find ourselves in — our state and country. We just don't think that denying critical health care to the most marginalized people in our society is a good way to start solving these problems," said Victor Geminiani, executive director for the nonprofit Lawyers for Equal Justice, which filed the suit along with firms Alston Hunt Floyd & Ing and Bronster Hoshibata.

At issue is the state Department of Human Services' new "Basic Health Hawaii" program, a health insurance program established to cover legal aliens who have lived in the U.S. for less than five years. The program also covers Hawaii residents from Pacific nations that have entered treaties with the U.S. that grant them the same privileges given to U.S. residents — including health care.

Last year, the state attempted to cut benefits to COFA residents entirely. Lawyers filed suit and won an injunction on procedural grounds, showing that the state made changes without giving the public adequate notice or holding the necessary public hearings. A federal judge also temporarily struck down the department's attempt to deny benefits.

The state's new plan no longer eliminates benefits but instead reduces them. Monday's suit challenges the substance of the plan changes.

Basic Health Hawaii causing complications

The Hawaii Independent

HONOLULU— A State health care program put forward by the Department of Human Services (DHS) is the catalyst for a federal lawsuit filed by a group of low-income Hawaii residents. The plaintiffs say that the program called Basic Health Hawaii cuts benefits they had previously received and will have dire consequences to their health.

Since 1997, the State of Hawaii has been providing health coverage to non-immigrant legal residents living in Hawaii under Compacts of Free Association (COFA) treaties, which grant free entry into the United States to citizens of Palau, the Republic of the Marshall Islands, and the Federated States of Micronesia. In the past, COFA residents were enrolled in State-funded programs in which they received the same benefits that DHS provided to U.S. citizens in Hawaii. Those benefits included dialysis, cancer treatments, long-term care, and prescription drugs.

The State first attempted to cut benefits to COFA residents entirely in 2009. After a lawsuit, U.S. District Court Judge J. Michael Seabright issued a temporary order barring DHS from implementing the program. In response, DHS adopted Basic Health Hawaii, which does not entirely cut benefits, but reduces them.

Plaintiffs in this latest lawsuit hope to force the State to reinstate medical services that were cut. The suit claims DHS has illegally discriminated against the residents by drastically cutting their medical benefits based on the plaintiffs’ status as legal residents from other countries.

“I am disappointed that Hawaii would adopt laws that so blatantly discriminate against Micronesians and immigrants.” said Catherine Leilani Aubuchon, an attorney with Bronster Hoshibata, who is from the Federated States of Micronesia.

After the federal ruling that prevented the State from entirely cutting benefits to COFA residents last year, the State proposed rule changes that would limit current State-funded medical assistance through QUEST, QUEST Expanded Access, QUEST-Net, QUEST-ACE, fee-for-service, and SHOTT programs to citizens of a COFA nation who are under 19 years of age, or are pregnant, or for emergency services. All other citizens of COFA nations have to rely on Basic Health Hawaii, which the plaintiffs say is inadequate.

Basic Health Hawaii covers up to 12 outpatient doctor visits, 10 hospital days, six mental health visits, and five generic prescription drugs a month. However, the services do not cover preventive care such as regular dialysis and chemotherapy treatments. The governor said earlier this year that Basic Health Hawaii, offered to 7,000 Micronesians, will save the state $15 million.

At a DHS hearing in January, testifiers with life-threatening diseases said they would likely die without access to QUEST.

“During the past 8 years, we have seen many examples of federal intervention due to the Lingle Administration’s disregard of the rights of the weak, the poor, and disabled,” said attorney Paul Alston. “This is another shameful example of this administration’s callousness and lack of regard for the law.”

The new suit asserts that DHS’s program is constitutionally impermissible because it is inconsistent with federal policy and encroaches on exclusive federal power. Finally, the suit claims that DHS’s policy violates the “integration mandate” of the Americans with Disabilities Act, which prohibits a government entity from forcing persons to go into an isolated institutional setting in order to obtain essential medical services.

Plaintiffs include legal immigrants who have been U.S. residents for less than five years and non-immigrant legal residents living in Hawaii under COFA treaties. Representing the plaintiffs are attorneys from the non-profit organization Lawyers for Equal Justice and the firms of Alston Hunt Floyd & Ing and Bronster Hoshibata.

“Our state owes much of what we are today to the contributions that legal immigrants like members of the COFA nations have made to our economy, our culture, and our values,” said Victor Geminiani, Executive Director of Lawyers for Equal Justice. “It is a tragedy that the governor has now chosen to severely ration life-sustaining health care by targeting the most vulnerable population among us.”

COFA treaties have established special relationships between the U.S. and the Republic of the Marshall Islands, Federated States of Micronesia, and Republic of Palau. For example, under COFA, the United States is allowed conduct military operations in the COFA nations, while citizens of those nations are allowed to “enter into, lawfully engage in occupations, and establish residence as … non-immigrant[s] in the United States and its territories and possessions.”

The plaintiffs in the new lawsuit say that Basic Health Hawaii coverage is not adequate for disabled or very ill persons because some patients will use a large portion of their allotted 12 doctor visits simply to get diagnosed, and that most disabled individuals often need to visit the doctor more frequently, may need more prescription medications than allotted, and need access to medical devices.

“These [disabled COFA residents] cannot live with 12 visits and four drugs, and they don’t get other services like transportation to the doctor,” said Dr. Ritabelle Fernandes, a physician at the Kokua Kalihi Valley community health center who treats a number of disabled COFA residents.

“The State of Hawaii may not discriminate on the basis of national origin,” said Margery S. Bronster, of Bronster Hoshibata and a former Attorney General for the State of Hawaii. “Once the U.S. government allowed COFA residents free access to the U.S., no state could limit those rights.”

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