Jennings v. Alexander

MERRITT, Circuit Judge,

dissenting.

Assuming arguendo that it is appropriate for a federal court to reach the question, I agree with the Court’s holding in Part II that the state’s Medicaid plan is not “contrary to the best interest” of Medicaid recipients under 42 U.S.C. § 1396a(a)(19) (1976). I also agree with Part III of the opinion that the adoption of the Medicaid plan in Tennessee was not procedurally deficient.

For the reasons set out below, I disagree, however, with Part I of the opinion that the state of Tennessee may not reduce its Medicaid hospitalization coverage by six days per year without violating “the general corpus of discrimination law,” (Majority Opinion p. 1040), specifically section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976).

I.

The statute which we must interpret here, § 504, provides simply that no “handicapped individual” (defined as a person “regarded” as handicapped who has an “impairment which substantially limits ... major life activities”) “shall, solely by reason of his handicap ... be subject to discrimination” under any program receiving federal funds. No further definition of “discrimination” is given.

•I believe that the statute seeks only to secure for the handicapped equality of opportunity, or equality of access, in connection with government programs. It does not require a form of affirmative action or equality of results, as my colleagues insist. They hold that the plaintiffs have made a prima facie showing that Tennessee discriminated against the handicapped by reducing Medicaid coverage for inpatient hospital care from twenty to fourteen days per year. They base this holding on a finding that the reduction in coverage will have a disparate impact on some classes of “handicapped” patients (e.g., asthmatic patients): a higher percentage of these classes of “handicapped” recipients will have their health adversely affected by the cutback than other recipients. Although budgetary constraints are the reason for the.State’s action — the State can no longer afford to pay for the longer period of hospitalization — the majority finds discrimination in the method the State has chosen to reduce its budget. Conceding that equality of access is present, the majority says that the State may not make a modification in its program that has a more adverse effect on the health of some group of handicapped individuals than other medical patients. The majority points to the asthmatic patient, assumes without discussion that he is a “handicapped individual” within the meaning of the statute, and finds that the State must provide him with an “equal opportunity to succeed” in achieving good health (see note 8 of the majority opinion) in comparison with other patients.

Without a clear, bright-line distinction based on access, like the District Court makes, the Court’s decision will create a whole new source of challenges to state budgetary decisions. People with physical ailments depend on a myriad of state services more heavily than do people with no ailments. When a local government decides to reduce the quality, frequency or financing for some service, for example, bus service, some group could make a case of discrimination, for example, by showing that they use the buses more than others. Across-the-board cuts in welfare, social security, education and many other benefits will affect some groups more than others and will open the way to litigation. I do not believe that Congress intended this statute to authorize the federal courts to step in and control the state budgetary process when cuts in appropriations affect asthmatics, or some other class of patients, somewhat more heavily than another group of patients.

*1048 The substantive right or benefit in question here, according to my colleagues, seems to be good health. Since they find that the budget cut affects the health of asthmatic patients more, they find discrimination. We all want good health for ourselves and others, but there is no constitutional, statutory or other substantive legal right to good health or to equality of “success” in achieving good health through governmental programs.

The Court may be right in its speculation, although I am not convinced by its reasoning or the statistical evidence, that the handicapped as a group, however defined, will be less healthy than the non-handicapped after 14 rather than 20 days in the hospital. But the problem with this assumption, even if true, is that Medicaid does not ensure better health. It grants only days of inpatient hospitalization free of charge. Medicaid only gives eligible individuals access to free hospital care for X days per year. Tennessee’s decision to reduce the number of days of coverage in order to meet its budgetary requirements reduces free hospital care to the handicapped and non-handicapped equally. As District Judge Morton pointed out:

Both handicapped and nonhandicapped Medicaid recipients will have identical hospital services available for their use, subject to the same durational limitation. The alleged problem is not with access, but with the end result.... [Njeither the statute nor the accompanying regulations require a program to achieve identical results for handicapped and nonhandicapped recipients.

Jennings v. Alexander, 518 F.Supp. 877, 883 (M.D.Tenn.1981).

The majority relies heavily on N.A.A.C.P. v. The Medical Center, 657 F.2d 1322 (3d Cir.1981), for the proposition that a showing of discriminatory effect establishes a prima facie case under Section 504. That reliance is misplaced. The case involves only the question of access to medical facilities, a point the majority does not acknowledge or discuss. The issue in the case was the effect of relocating a medical center. Assuming arguendo the application of a disparate impact test, the Third Circuit found that plaintiffs failed to make a prima fade showing that handicapped access to treatment would be lessened by the proposed move. It said nothing about the effect of the new facility’s services on the health of the handicapped.

A case more analogous to the one before us, discussed extensively by the District Judge, is Doe v. Colautti, 592 F.2d 704 (3d Cir.1979). There a mental patient challenged the Pennsylvania Medicaid law, which provided unlimited inpatient coverage for treatment in private general hospitals but limited coverage for treatment in private mental hospitals to 60 days. Doe claimed this limitation discriminates against the handicapped who are mentally ill. The court held that private mental hospitalization coverage is not required at all and, therefore, the State’s decision to provide a different measure of benefits for the two types of impairments does not violate § 504. It reasoned that § 504 does not “obliterate the distinctions between the medical care a state medical assistance program must cover and the care it need not include.” Id. at 710. It is this same distinction that my colleagues have “obliterated” in this case.

The recent Supreme Court case, Southeastern Community College v. Davis, 442 U.S. 397 , 99 S.Ct. 2361 , 60 L.Ed.2d 980 (1979), delivers the coup de grace to the theory of equal treatment the majority seeks to establish in this case. In the Southeastern Community College case, Justice Powell, writing for a unanimous Court, held that a state’s refusal to make modifications in its nursing education program to accommodate a deaf applicant does not violate § 504. Responding to plaintiff’s argument that § 504 “requires Southeastern to make the kind of adjustments that would be necessary to permit her safe participation in the nursing program,” the Court stated that § 504 does not “compel Southeastern to undertake affirmative action.” 442 U.S. 407, 409 , 99 S.Ct. 2367 , 2368. Rather “the language and structure” of the Act “reflect a recognition by Congress of the distinction between the evenhanded treatment of qualified handicapped persons *1049 and affirmative efforts to overcome the disabilities caused by handicaps.” 442 U.S. at 410 , 99 S.Ct. at 2369 . 1 It is precisely this distinction between evenhanded treatment by the state and equality of results that my colleagues fail to recognize.

II.

It is highly questionable whether a disparate impact test should be applied under § 504. This case appears to be the first federal appellate court opinion which actually finds discrimination against the handicapped by applying a “disparate impact” test. The Medical Center found no prima facie case, even assuming the applicability of such a test. My research discloses no other appellate case that suggests that such a test is applicable under section 504, and there is now substantial doubt that the test is applicable under Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d (1976), the provision the majority points to as the analogue for § 504. See Cannon v. University of Chicago, 648 F.2d 1104, 1106-09 (7th Cir.1981) (disproportionate impact does not establish a Title VI violation; discriminatory intent required); Guardians Ass’n of New York v. Civil Service Comm’n of the City of New York, 633 F.2d 232, 254, 272-75 (2d Cir.1980) (same). The unsatisfactory nature of the disparate impact test is intelligently discussed in Eisenberg, Disparate Impact, 52 N.Y.U.L.Rev. 36 (1977), an article which proposes a better test of causation in discrimination cases.

Assuming arguendo the applicability of a disparate impact test, this case illustrates why such a test will not work unless a bright-line equality of access standard is used. Combining an equality of results standard with a disparate impact test means the plaintiff always wins.

According to the majority’s interpretation of the statute, a plausible interpretation in light of the broad language of the statute, there are many sub-classes of patients who fall within the “handicapped” category, not just traditional groups like the blind, the deaf and the lame. The majority’s list would seem to include any serious, limiting physical or mental ailment, from asthma and arthritis to alcoholism and drug addiction. Any reduction in funding or services will, have a differential impact on some class of patients. In such a situation the disparate impact test will always work for some class of illness; it will always produce a finding of discrimination. The alternative solution suggested by the majority — a limitation based on the number of trips to the hospital during the year rather than the number of days — will fall hardest on the class of patients who must come often to the hospital for short stays. It is clear that the majority’s alternative would also produce a finding of discrimination if its disparate impact analysis is carried to its logical conclusion.

There appears to be no way. under the set of standards developed by the majority that a state can modify its medical program *1050 without some disparate impact on some class of patients — unless the state simply abolishes Medicaid altogether, a solution that would presumably be equal only because it denies relief to everyone. Obviously, neither the majority nor I want to encourage that kind of nihilistic solution, which requires that everyone should fail so that no one will succeed more than another — the ultimate in equality of results.

For these reasons, I respectfully but strongly disagree with the majority and would affirm the judgment of the District Court.

. The Court discussed and ruled on this distinction in the following two paragraphs:

The language and structure of the Rehabilitation Act of 1973 reflect a recognition by Congress of the distinction between the evenhanded treatment of qualified handicapped persons and affirmative efforts to overcome the disabilities caused by handicaps. Section 501(b), governing the employment of handicapped individuals by the Federal Government, requires each federal agency to submit “an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals____” These plans “shall include a description of the extent to which and methods whereby the special needs of handicapped employees are being met.” Similarly, § 503(a), governing hiring by federal contractors, requires employers to “take affirmative action to employ and advance in employment qualified handicapped individuals.... ” The President is required to promulgate regulations to enforce this section.

Under § 501(c) of the Act, by contrast, state agencies such as Southeastern are only “encourage[d] ... to adopt and implement such policies and procedures.” Section 504 does not refer at all to affirmative action, and except as it applies to federal employers it does not provide for implementation by administrative action. A comparison of these provisions demonstrates that Congress understood accommodation of the needs of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so.

442 U.S. 410 -11, 99 S.Ct. 2369 .