As states seek to shift Medicaid recipients with disabilities out of traditional fee-for-service settings and into managed care plans, vexing questions arise about the impact on access to needed care and providers for beneficiaries with medically complex needs. With many states expanding their Medicaid program as part of health care reform and cost-containment pressures continuing to mount, this movement will likely accelerate over the next several years. This Article examines the possibility that disability discrimination law might provide a mechanism for prodding states in the planning stage to anticipate and plan for likely access issues, as well as for challenging any systemic access problems that arise as enrollment proceeds. Although the Supreme Court’s 1985 decision in Alexander v. Choate signaled a reluctance to use disability discrimination law to police the decisions of state Medicaid policy makers, Choate’s holding need not be an insurmountable barrier if compulsory enrollment in Medicaid managed care has an adverse disparate impact on people with disabilities. Before they can compel managed care enrollment for many disabled Medicaid beneficiaries, state officials must obtain approval from the federal Centers for Medicare & Medicaid Services (CMS). This Article argues that the process of obtaining CMS approval lays the foundation for a disparate impact claim under § 504 of the Rehabilitation Act and the Americans with Disabilities Act. More specifically, it argues that access-related standards contained in states’ waiver applications – if those standards are not met – can support a claim that a state fails to provide disabled Medicaid enrollees with “meaningful access” to the state’s Medicaid benefits. Such a claim should be cognizable, even under Choate. Thus, this Article provides a conceptual roadmap for disability advocates for framing such a claim, while also highlighting both the advantages of this approach and its potential shortcomings.
Giving Meaning to 'Meaningful Access' in Medicaid Managed Care,
Kentucky Law Journal
Available at: https://scholarship.law.pitt.edu/fac_articles/413
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