ADA Analyses of the Oregon Health Care Plan

Article excerpt

Introduction

In 1989, the Oregon legislature approved a plan to provide comprehensive health care coverage to all Oregon residents.(1) The plan would initially include Medicaid recipients(2) and would employ two innovations: managed competition and a prioritized benefits package.(3) The legislature created the Oregon Health Services Commission" to prioritize individual health services "from the most important to the least important."(5) The commission began work in September 1989 and completed a final priority list of 709 treatments for the legislature in May 1991.(6) The legislature adopted the list and determined that the state Medicaid budget could finance the first 587 treatments.(7)

Oregon could not implement the new plan without obtaining several waivers of Medicaid regulations from the federal government.(8) On August 16, 1991, the Oregon Department of Human Resources applied to the Health Care Financing Administration of the United States Department of Health and Human Services (HHS) for the necessary waivers.(9) While Oregon's proposal engendered opposition because it would ration health services for the poor,(10) its approval by the federal government appeared likely.(11)

Acting on requests by Congressman Chris Smith(12) for legal analysis, the National Legal Center for the Medically Dependent & Disabled, Inc., was the first organization to fault the plan for failing to comply with the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973.(13)

HHS denied Oregon's application on August 3, 1992, raising ADA objections similar to those made by the National Legal Center.(14) Like the National Legal Center, HHS objected to Oregon's reliance on quality of life" criteria for ranking individual treatments.(15) HHS advised Oregon to resubmit its application after eliminating the objectionable elements and reranking its priority list accordingly.(16)

Oregon submitted a new plan to HHS on November 13, 1992.(17) The revised plan no longer incorporated quality of life measurements of specific conditions. Oregon proposed, however, to downrank treatments that left individuals in a "symptomatic" state.(18)

Congressman Smith again requested the National Legal Center's legal analysis of the Oregon plan.(19) In response, the National Legal Center found that the revised plan would violate the ADA by downranking treatments on the basis of residual symptomatic conditions.(20)

The federal government failed to act on Oregon's resubmission before the end of President George Bush's administration, though the United States Department of justice advised HHS in a January 19, 1993, letter to reject the proposal on the basis of the ADA.(21) On March 19, 1993, after the term of President Bill Clinton began, HHS approved the revised plan but required Oregon to rerank its priority list yet again without taking into account "whether treatment returned an individual to an asymptomatic state."(22)

The issues raised with respect to the ADA and the Oregon plan foreshadow those that will likely arise in the national debate over health care financing reform. (23) The Oregon plan debate also anticipates larger debates over the ethics of health care rationing.(24) For these reasons, Issues in Law & Medicine is publishing several otherwise unpublished documents referred to above that applied the ADA's provisions to one state's efforts to reform health care financing.

December 5, 1991

Honorable Christopher H. Smith United States Representative 2440 Rayburn HOB Washington, D.C. 20515

Dear Representative Smith:

We hereby respond to your October 23, 1991, request for a legal opinion on whether the Oregon Health Plan would violate the Americans with Disabilities Act (ADA). The National Legal Center for the Medically Dependent & Disabled, inc., appreciates the opportunity to evaluate the plan's impact on indigent persons with disabilities. …