Petition for Writ of Certiorari — Ibarra v. Van Len
Supreme Court brief1993
Ask Donna
What actually matters in this document.
Text
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1992
IRENE M. IBARRA, in her official capacity as the Executive
Director of the Colorado Department of Social Services;
HENRY SOLANO, in his official capacity as the Executive
Director of the Colorado Department of Institutions;
ROBERT BAUSERMAN; ROBBIE L. BEAN; SUSANNE D.
DOSH; DENNIS FISHER; MARY KYER; PEGGY
STOKSTAD; JOHN P. STONE and RICHARD F. WALKER
in their official capacities as members of the Colorado Board of
Social Services,
Petitioners,
vs.
DUC VAN LE, on behalf of himself and the class of persons
similarly situated,
Respondents.
PETITION FOR WRIT OF CERTIORARI
On Certiorari to the Colorado Supreme Court
Case No. 91SC189
GALE A. NORTON* STACY L. WORTHINGTON
Attorney General Assistant Attorney General
RAYMOND T. SLAUGHTER Human Resources Section
Chief Deputy Attorney General Attorneys for Petitioners
TIMOTHY M. TYMKOVICH 1525 Sherman St., 5th FI.
Solicitor General Denver, Colorado 80203
PAUL FARLEY Telephone: (303) 866-5660
Deputy Attorney General *Counsel of Record
WADE LIVINGSTON
First Assistant Attorney General
QUESTIONS PRESENTED FOR REVIEW
l. Whether a State may provide home and community-
based services to elderly, blind and physically disabled medicaid
recipients and not to mentally ill medicaid recipients without violating
§ 504 of the Rehabilitation Act of 1973 and the Equa! Protection
Clause of the Fourteenth Amendment to the United States
Constitution.
2. Whether the mentally ill are a “suspect class" for the
purpose of analyzing claims under the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution.
3. Whether the right to receive services to avoid
institutionalization is a "fundamental right" for the purpose of
analyzing claims under the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.
TABLE OF CONTENTS
PAGE
QUESTIONS PRESENTED FOR REVIEW ............. i
CE l
ae kg kg 4 e4 4 a ¥ 00s ode a be be 2
CONSTITUTIONAL PROVISION AND STATUTES
ee GLa
pamemmenmn Or IMECASE ............. ccc cee +
REASONS FOR GRANTING THE WRIT .............. 8
I. THE COURT BELOW MISCONSTRUED THE
REQUIREMENTS OF § 504 TO MEAN THAT
BENEFITS GIVEN TO ONE GROUP OF
HANDICAPPED INDIVIDUALS MUST ALSO
BE GIVEN TO ALL OTHER HANDICAPPED
INDIVIDUALS, DESPITE UNANIMOUS
PRECEDENT TO THE CONTRARY. ....... 8
II. THE COURT BELOW, CONTRARY TO
EVERY REPORTED DECISION ON THE
ISSUE, HELD THAT THE MENTALLY ILL
WERE A SUSPECT CLASS, SO THAT
LEGISLATIVE ACTIONS REGARDING THE
MENTALLY ILL MUST BE SUBJECTED TO
STRICT SCRUTINY UNDER THE EQUAL
Pumpemamu CLAUSE............... 1]
ill
TABLE OF CONTENTS
Il. THE COURT BELOW CREATED A
SIGNIFICANT NEW CONSTITUTIONAL
RIGHT, BECAUSE IT HELD THAT
INDIVIDUALS ARE ENTITLED TO
SERVICES TO PREVENT
INSTITUTIONALIZATION. ........... ale *
IV. THERE IS A RATIONAL BASIS FOR
COLORADO’S DECISION NOT TO OFFER
HCBS TO THE MENTALLY ILL......... 13
RENEE 65 ew eh de oo ee ee ek aero ee ene 14
NG AR Aika DO ee ae ae A-|
Re AR Sk ok Cee a oe ee ee ee ee B-1
POU Se b-o ce She eee ee eee C-]
eR OP hs 8 eds 6-85 a oe ee ee D-1
TABLE OF AUTHORITIES
CASES PAGE
Beckwith v. Kizer, 912 F.2d 1139 (9th Cir. 1990) ...... : +
Benham v. Edwards, 678 F.2d 511 (5th Cir. 1982), vacated on
other grounds, 463 U.S. 1222 (1983)............. 11
Bervard B. v. Blue Cross Shield of Greater New York, 528 F.
Supp. 125 (S.D.N.Y. 1981), aff'd, 679 F.2d 7 (2d Cir.
on ee ee Se a eee 8
Brecker v. Queens B’nai B’rith Housing Development Fund, 607
F. Supp. 428 (E.D.N.Y. 1985), aff'd, 798 F.2d 52 (2d
ee ee ee en a ee we 8
City of Cleburne v. Cleburne Living Center, 473 U.S. 432
RR NReIe gr vas remy pe ien deel Se Rok, et 11
Connecticut Department of Income Maintenance v. Heckler, 471
eens ME 5" "eal gaa as Sek ob k we 5
Cospito v. Heckler, 747 F.2d 72 (3d Cir. 1984), cert. denied,
re te ARE CUD oy nos Wow Keo a ee ok oe 1]
Doe v. Colautti, 592 F.2d 704 (3d Cir. 1979) ............. 8
Douglas v. Hugh A. Stallings, M.D. Inc., 870 F.2d 1242 (7th
ewe ee ae ro tei 1]
TABLE OF AUTHORITIES
CASES PAGE
Knutzen v. Eben Ezer Lutheran Housing Center, 815 F.2d 1343
Ea eon age ge Od ha ROE cece 8, 11
Schweiker v. Hogan, 457 U.S. 569 (1982) .............. 13
Traynor v. Turnage, 485 U.S. 535 (1988) ................ 8
United States ex rel. Weismuller v. Lane, 815 F.2d 1106 (7th
nage kara a oe ek one ee ae 11
Youngberg v. Romeo, 457 U.S. 307 (1982) .............. 12
CONSTITUTIONS
rr Me ak eee te hk a ke ws i, 2
STATUTES
RE Sg d+ 9
eS (a 2
FAS ie Eh | | i, 4, 6, 8-10
42 U.S.C. § 1396n(c) (1988 & 1990 Supp.) ............ ,
vi
TABLE OF AUTHORITIES
STATUTES PAGE
42 U.S.C. § 1396n(c)(7) (1988 & 1990 Supp.) ...........-. 13
42 U.S.C. § 1396n(c)(7)(A) (1988 & 1990 Supp.)........ 5, 10
42 U.S.C. §§ 1396a(a)(10)(A) and 1396d(a)(4)(A) (1988 & 1990
re ae er eee ee ee ee 5
42 U.S.C. $8 12131-12213 (I99U) 0 ww ce eee 9
H. Conf. Rep. No. 99-1012, reprinted in 1986 U.S. Code Cong.
I Ae, FOU GS ack eb ee eee eke ks 10
Pub. L. 102-550, 106 Stat. 3813, §622 ...........2205-. 9
Pub. L. No. 93-112, 87 Stat. 355, § 305, reprinted in 1973
U.S. Code Cong. & Admin. News 409, 441 ......... 9
Pub. L. No. 99-506, § 901, 100 Stat. 1807 ............... 9
§§ 26-4-101 to 26-4-661, C.R.S. (1992 Supp.) ........-..-..-. 4
RULES
y Coke BOR Be 5) eer eae a ara 4
fot S OY 8 ofl. re ere re a are ae 3
fet 2 PG FO ee ee 5
Vii
TABLE OF AUTHORITIES
RULES
pee f SG fi. ee ee re
56 Fed. Reg. 35705 (July 26, 1991) .........
OTHER AUTHORITIES
CCH Medicare & Medicaid Guide, § 14,625 (8/92)
vill
No.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1992
IRENE M. IBARRA, in her official capacity as the Executive
Director of the Colorado Department of Social Services;
HENRY SOLANO, in his official capacity as the Executive
Director of the Colorado Department of Institutions;
ROBERT BAUSERMAN; ROBBIE L. BEAN; SUSANNE D.
DOSH; DENNIS FISHER; MARY KYER; PEGGY |
STOKSTAD; JOHN P. STONE and RICHARD F. WALKER
in their official capacities as members of the Colorado Board of
Social Services,
Petitioners,
VS.
DUC VAN LE, on behalf of himself and the class of persons
similarly situated,
Respondents.
PETITION FOR WRIT OF CERTIORARI
On Certiorari to the Colorado Supreme Court
Case No. 91SC189
The petitioners named above respectfully pray that a writ of
certiorari issue to review the judgment of the Supreme Court of the
State of Colorado entered in the above-entitled proceeding on
December 14, 1992.
OPINIONS BELOW
The opinions of the Supreme Court of the State of Colorado are
not published, and are reprinted in the appendix hereto, pp. B-1 and
C-]
The decision and order of the District Court of the City and
County of Denver has not been published, and it is reprinted in the
appendix hereto, p. A-]
JURISDICTION
The opinion of the Colorado Supreme Court was delivered on
December 14, 1992 and a timely petition for rehearing was denied on
January 11, 1993
Petitioners invoke the jurisdiction of this Court pursuant to 28
U.S.C. § 1257(a) (1988)
CONSTITUTIONAL PROVISION AND STATUTES
INVOLVED
The Fourteenth Amendment to the United States Constitution
provides in relevant part:
No state shall ... deny to any person
within its jurisdiction equal protection of
the laws.
42 U.S.C. § 1396nic) (1988 & 1990 Supp.) provides in
relevant part:
(1) The Secretary may by waiver
provide that a State plan approved under
this subchapter may include as "medical
assistance" under such plan payment for
part or all of the cost of home or
nN
cenacmensinemneniisinieieanen ——— ee
community-based services....
(2) A waiver shall not be granted under
this subsection unless the State provides
assurances satisfactory to the Secretary
that
(D) under such waiver the average per
capita expenditure estimated by the State
in any fiscal year for medical assistance
provided with respect to such individuals
does not exceed 100 percent of the
average per Capita expenditure that the
State reasonably estimates would have
been made in that fiscal year for
expenditures under the State plan for
such individuals if the waiver had not
been granted
(7)(A) In making estimates under
paragraph (2)(D) in the case of a waiver
that applies only to individuals with a
particular illness or condition ... the
State may determine the average per
Capita expenditure that would have been
made in a fiscal year for those
individuals under the State plan
separately from the expenditures for
other individuals....
42 C.F.R. § 441.301 (1992) provides in relevant part:
(b) If the agency furnishes home and
community-based services ... under a
waiver request granted under this
subpart, the waiver must
(6) Be limited to one of the following
target groups or any subgroup thereof
that the State may define:
(i) Aged or disabled, or both.
(ii) Mentally retarded or
developmentally disabled, or both.
(ili) Mentally ill.
29 U.S.C. § 794 (1988), popularly known as § 504 of the
Rehabilitation Act of 1973, provides in relevant part:
(a) No otherwise qualified individual
with handicaps in the United States ...
shall, solely by reason of his or her
handicap, be excluded from participation
in, be denied the benefits of, or
subjected to discrimination under any
program or activity receiving Federal
financial assistance ....
STATEMENT OF THE CASE
Petitioners are officials of the State of Colorado who administer
the medical assistance program under Title XIX of the Social Security
Act and the Colorado Medical Assistance Act, §§ 26-4-101 to
4
—
26-4-661, C.R.S. (1992 Supp.), popularly known as "medicaid."
Under medicaid, Colorado and the federal government pay for the
medical care provided to poor, disabled and otherwise needy
individuals. In order to qualify for matching federal funds, Colorado
must pay for certain kinds of medical care and cannot pay for other
kinds of care.
Among the services that Colorado must pay for are services
provided by a nursing home. 42 U.S.C. §§ 1396a(a)(10)(A) and
1396d(a)(4)(A). Among the kinds of services that Colorado cannot
pay for are services provided by an institution for mental diseases.
Connecticut Department of Income Maintenance v. Heckler, 471 U.S.
524, 533 n.24 (1985) and accompanying text. This case involves a
third kind of services: services that are neither required nor
prohibited.
Pursuant to 42 U.S.C. § 1396n(c), a State may ask the federal
government to waive certain requirements of the medicaid program
in order to provide home and community-based services ("HCBS").
These services are provided to individuals who would otherwise
require care in an institution, such as a nursing home. The cost of
these services, however, must be less than medicaid would have paid
for institutional services. HCBS can include services such as
assistance with cooking, shopping, house cleaning, bathing and
eating.
Pursuant to 42 U.S.C. § 1396n(c)(7)(A), a State may request
a waiver limited to "individuals with a particular illness or
condition ...". Indeed, federal regulations require that a waiver
request be limited to one of three target groups: the physically
disabled and elderly, the developmentally disabled, and the mentally
ill. 42 C.F.R. § 441.301(b)(6) (1992). In 1982, Colorado obtained
three different waivers to serve the three target groups. The waivers
to serve the physically disabled and elderly and the developmentally
disabled have operated continuously to the present, but Colorado’s
request to renew the waiver to serve the mentally ill was denied in
5
1985 and Colorado has not provided HCBS to mentally ill clients
Since that time.
Colorado is not unique in this regard. Several States have
waivers to provide HCBS to physically disabled clients, but no State
currently has a waiver to provide HCBS to mentally ill adults.’ In
large part, this is due to the difficulty of assuring that the cost of
HCBS is less than the cost of institutional care. Inasmuch as
medicaid does not pay for services provided by an institution for
mental disease, clients who would otherwise receive services in an
institution for mental disease are not appropriate for HCBS.
Colorado provides a number of non-institutional services for its
mentally ill residents. These services include services under medicaid
(such as clinic services and rehabilitation options) and services
provided with only state funds (such as adult foster, home care
allowance and community mental health centers). Respondent,
nevertheless, brought an action alleging that providing HCBS to the
elderly and physically disabled while denying HCBS to the mentally
ill violated federal law.
The trial court entered judgment in favor of respondent.
Specifically the trial court held that respondent and the class he
represented were “otherwise qualified" to receive HCBS and that the
failure to provide them with HCBS violated § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988). The trial court
further held that the failure to provide HCBS to the mentally ill
violated the Equal Protection Clause. According to the trial court,
the mentally ill were a “suspect class" and HCBS was a "fundamental
' According to CCH Medicare & Medicaid Guide, | 14,625, pp. 6340-
50 (8/92), there are approximately 148 waivers in effect in 48 states. The
waivers are targeted to the developmentally disabled (68), elderly, blind and
physically disabled (57), AIDS (13) and a number of narrower target groups
defined by illness or condition. None of the waivers are targeted to mentally
ill adults.
right" so that the failure to provide HCBS should be strictly
scrutinized. Moreover, the trial court concluded that Colorado did
not have even a rational basis for providing HCBS to the physically
disabled but providing different non-institutional services to the
mentally ill.
Petitioners appealed this decision to the Colorado Court of
Appeals. Thereafter, the Colorado Supreme Court granted a
pre-judgment writ of certiorari. The Colorado Supreme Court then
reversed the trial court by a vote of five to two.
The Colorado Supreme Court held that the mentally ill were
not a suspect class and that HCBS was not a fundamental right. The
court also held that the slight chance of obtaining a waiver to serve
the mentally ill and the cost of pursuing such a waiver provided a
rational basis for Colorado’s decision to offer different
non-institutional services to the mentally ill.
After this decision, the Colorado Supreme Court granted
respondent's petition for rehearing. On rehearing, one justice recused
himself and the remaining justices divided equally. This equally
divided vote had the effect of affirming the trial court’s decision.
REASONS FOR GRANTING THE WRIT
I. THE COURT BELOW MISCONSTRUED
THE REQUIREMENTS OF § 504 TO MEAN
THAT BENEFTTS GIVEN TO ONE GROUP
OF HANDICAPPED INDIVIDUALS MUST
ALSO BE GIVEN TO ALL OTHER
HANDICAPPED INDIVIDUALS, DESPITE
UNANIMOUS PRECEDENT TO THE
CONTRARY.
The court below held that a State may not target benefits to one
group of handicapped individuals and deny them to others without
violating § 504. The courts, Congress and administrative agencies
are unanimous in rejecting this position, and the decision hampers
States in their efforts to provide benefits to handicapped individuals.
In Traynor v. Turnage, 485 U.S. 535, 549 (1988), this Court
said, "There is nothing in the Rehabilitation Act that requires that any
benefits extended to one category of handicapped persons be extended
to all other categories of handicapped persons." This doctrine has
been applied by every other court facing an issue similar to the one
presented in this case. For example, in Knutzen v. Eben Ezer
Lutheran Housing Center, 815 F.2d 1343 (10th Cir. 1987), the court
held that a sponsor did not violate § 504 by offering subsidized
housing to the elderly and mobility impaired but not to the mentally
ill. Accord Brecker v. Queens B’nai B’rith Housing Development
Fund, 607 F. Supp. 428 (E.D.N.Y. 1985), aff'd, 798 F.2d 52 (2d
Cir. 1986). In Bernard B. v. Blue Cross Shield of Greater New York,
528 F. Supp. 125 (S.D.N.Y. 1981), aff'd, 679 F.2d 7 (2d Cir. 1982),
the court held that an insurance company did not violate § 504 by
paying for inpatient care but not for psychiatric inpatient care.
Similarly, the court in Doe v. Colautti, 592 F.2d 704 (3d Cir. 1979)
held that a State did not violate § 504 by providing unlimited general
hospital care but only limited care in a mental institution. In
Duquette v. Dupuis, 582 F. Supp. 1365 (D. N.H. 1984), the court
8
held that a State did not violate § 504 by providing medical benefits
to blind children while denying the benefits to all other handicapped
children.
These decisions are consistent with the actions of Congress to
target certain benefits to particular groups of handicapped individuals.
For example, in the Rehabilitation Act itself, Congress created
programs benefitting certain handicapped individuals while excluding
others. ‘Pub. L. No. 93-112, 87 Stat. 355, § 305, reprinted in 1973
U.S. Code Cong. & Admin. News 409, 441, established a National
Center for Deaf-Blind Youths and Adults. The 1986 amendments to
the Rehabilitation Act renewed this program. Pub. L. No. 99-506.
§ 901, 100 Stat. 1807, 1840 "Reauthorization of Helen Keller
National Center Act." In the recently enacted Housing and
Community Development Act of 1992, Pub. L. 102-550, 106 Stat.
3813, § 622 Congress expressly allowed public housing agencies to
designate projects for the elderly and exclude the disabled. The
Randolph-Sheppard Act, 20 U.S.C. §§ 107-107f (1988), gives blind
individuals a preference in operating businesses within public
buildings even though other handicapped individuals could also
benefit from such a preference.
Administrative regulations implementing § 504 reinforce the
view that benefits can be provided to some handicapped individuals
without providing them to all handicapped individuals. 45 C.F.R.
§ 84.4 (1992) provides that "... the exclusion of a specific class of
handicapped individuals from a program limited by federal statute or
executive order to a different class of handicapped persons is not
prohibited ....". Similarly, regulations implementing the Americans
with Disabilities Act, 42 U.S.C. §§ 12131-12213 (1990), provide
that, "nothing ... prohibits a public entity from providing benefits ...
to a particular class of individuals with disabilities ....". 28 C.F.R.
§ 35.130(c) (1992). The regulatory comments on this provision
explain that, "... State and local governments may provide special
benefits ... limited to ... a particular class of individuals with
disabilities without thereby incurring additional obligations to ... other
9
classes of individuals with disabilities." 56 Fed. Reg. 35705 (July
26, 1991).
In this case, federal regulations require waivers be limited to
one of three defined target groups, and specifies that the physically
disabled aid the mentally are in different target groups. The statute
authorizing the waivers expressly anticipates that waivers may be
limited to “individuals with a particular illness or condition ...." 42
U.S.C. § 1396n(c)(7)(A). The legislative history underlying this
section says without ambiguity that, "States are allowed to target their
waivers to groups of individuals at risk of hospital care, as defined by
illness or diagnosis (e.g., AIDS of {sic} AIDS related condition), or
by condition (e.g., chronic mental illness, ventilator dependency)."
H. Conf. Rep. No. 99-1012, reprinted in 1986 U.S. Code Cong. &
Admin. News 4046.
Despite this wealth of authority from the courts, Congress and
administrative agencies permitting States to target benefits to one
group of handicapped individuals while excluding others, the court
below held that Colorado could not limit its HCBS program to the
physically disabled. Petitioners believe that this is a question of first
impression in the state and federal courts. The decision is not only
novel, it casts doubt on the legality of all 148 HCBS waivers
operating in 48 States.
Moreover, the claim in this case is very odd. In the typical
§ 504 case, the plaintiff claims that he should receive some benefit
despite his handicap. In this case, respondent claims he is entitled to
a benefit because of his handicap. In short, he is not using § 504 as
a shield to protect himself from discrimination, but as a sword to
carve out a place for himself in a benefit program intended for
entirely different group of handicapped individuals.
The decision substantially misconstrues the requirements of
§ 504, and effectively guts the usefulness of HCBS waivers. Under
the decision of the court below, States can longer target benefits to
10
particular groups as Congress intended but must choose between
providing HCBS to all needy groups or to none. Accordingly, HCBS
waivers will be inflexible and unwieldy and States will be less likely
to utilize them. In the end, the decision of the court below will only
result in fewer services for the disabled because States will have to
weigh the risk of litigation and coverage of unintended groups any
time it considers a program to serve any portion of the disabled
community.
Il. THE COURT BELOW, CONTRARY TO
EVERY REPORTED DECISION ON THE
ISSUE, HELD THAT THE MENTALLY ILL
WERE A SUSPECT CLASS, SO THAT
LEGISLATIVE ACTIONS REGARDING
THE MENTALLY ILL MUST BE
SUBJECTED TO STRICT SCRUTINY
UNDER THE EQUAL PROTECTION
CLAUSE.
The court departed from well established judicial precedent by
holding that the mentally ill are a suspect class. All other decisions
on the issue have held that the mentally ill are not a suspect class.
Douglas v. Hugh A. Stallings, M.D. Inc., 870 F.2d 1242 (7th Cir.
1989); United States ex rel. Weismuller v. Lane, 815 F.2d 1106, 1110
n.7 (7th Cir. 1987); Knutzen v. Eben Ezer Lutheran Housing Center,
815 F.2d 1343 (10th Cir. 1987); Cospito v. Heckler, 747 F.2d 72, 82
(3d Cir. 1984), cert. denied, 471 U.S. 1311 (1985); Benham vy.
Edwards, 678 F.2d 511, 515 n.9 (Sth Cir. 1982), vacated on other
grounds, 463 U.S. 1222 (1983). On a closely related issue, this
Court has held that mentally retarded individuals are not a suspect
class. City of Cleburne vy. Cleburne Living Center, 473 U.S. 432
(1985).
It is clear that the decision below is without support in any
reported decision and that it imposes a substantial burden on all state
11
and local governments that seeks to extend a benefit to any needy
group without extending the same benefit to the mentally ill.
Il. THE COURT BELOW CREATED A
SIGNIFICANT NEW CONSTITUTIONAL
RIGHT, BECAUSE IT HELD THAT
INDIVIDUALS ARE ENTITLED TO
SERVICES TO PREVENT
INSTITUTIONALIZATION.
The court below held that individuals have a right to be free of
undue bodily restraint and that Colorado infringed on this right by
failing to provide HCBS to mentally ill persons. There is no support
for this decision in the law, and it creates an unlimited liability for the
States to provide services to their citizens.
In Youngberg v. Romeo, 457 U.S. 307, 317 (1982), this Court
said, “As a general matter, a State is under no constitutional duty to
provide substantive services for those within its borders." In this
case, the court below held that the right to receive HCE was a
fundamental right, because it implicated liberty interests in freedom
from bodily restraint. This holding dramatically expands the services
a State must offer under the Constitution. In virtually all cases in
which a person’s liberty is restrained, one could credibly argue that
the restraint would not be necessary if the State had only provided the
appropriate services. Thus, there would be a fundamental right to
marriage counseling to prevent incarceration for domestic violence,
a fundamental right to treatment for substance abuse to avoid
incarceration or hospitalization for drug related problems, and a
fundamental right to family therapy to avoid placing children in foster
care. Carried to its logical conclusion, the holding of the court below
would mean that the States must provide every conceivable service
that might prevent any loss of liberty.
Petitioners believe that the question of whether HCBS is a
12
fundamental right is one of first impression in the state and federal
courts. Inasmuch as 48 States offer HCBS to their citizens, this is an
issue of great public importance that should be addressed by this
Court.
IV. THERE IS A RATIONAL BASIS FOR
COLORADO’S DECISION NOT TO OFFER
HCBS TO THE MENTALLY ILL.
In Schweiker v. Hogan, 457 U.S. 569, 590 (1982), this Court
said:
In establishing public assistance
programs, Congress has _ often
determined that the federal government
cannot finance a program that provides
meaningful benefits in equal measure to
everyone. Both state and federal funds
for such assistance are limited.
The same is true hers. Funds to provide medical assistance are
not limitless, and benefits cannot be given to everyone in equal
measure. This is why HCBS waivers can be limited to '
individuals with a particular illness or condition ....". 42 U.S.C.
§ 1396n(c)(7). In this way, States can control their expenditures for
medical assistance and target benefits to particular groups.
In Beckwith v. Kizer, 912 F.2d 1139 (9th Cir. 1990), the Ninth
Circuit was presented with a challenge to an HCBS waiver that served
persons that had been hospitalized but did not serve persons with
identical physical conditions that had not beer hospitalized. The court
upheld the waiver against an equal protection challenge, and said:
Definition of any waiver class
necessarily involves difficult policy
13
judgments concerning where services
would most efficiently be used. We
lack the qualifications or the authority to
pass upon the fiscal responsibility of
California’s waiver program in the
manner plaintiffs request .... We cannot
say that this decision is irrational. The
Statute is intended to alleviate the
problem of unnecessary
institutionalization, but it does not
purport to solve it altogether.
In this case, Colorado was faced with a situation where its
request for a waiver to serve the mentally ill had been denied by the
federal government, no other State currently has such a waiver, and
there are a number of other non-institutional services that it could
offer to its mentally citizens. In such a case, it cannot be said that
Colorado’s decision to pursue other options than HCBS for the
mentally ill was irrational.
CONCLUSION
Based on the above points and authorities, the petition for a
writ of certiorari should be granted.
GALE A. NORTON*
Attorney General
RAYMOND T. SLAUGHTER
Chief Deputy Attorney General
TIMOTHY M. TYMKOVICH
Solicitor General
PAUL FARLEY
Deputy Attorney General
WADE LIVINGSTON
First Assistant Attorney General
14
STACY L. WORTHINGTON
Assistant Attorney General
Attorneys for Petitioners
Colorado Department of Law
1525 Sherman Street, Sth Floor
Denver, Colorado 80203
Telephone: 866-5660
*Counsel of Record
ee
APPENDIX A
DISTRICT COURT, CITY AND COUNTY OF DENVER,
COLORADO
Case No. 88 CV 22641. Courtroom 20
DECISION AND ORDER
DUC VAN LE, on behalf of himself and the class of persons
Similarly situated,
Plaintiffs,
v%
IRENE M. IBARRA, in her official capacity as Director of the
COLORADO DEPARTMENT OF SOCIAL SERVICES: HENRY
SOLANO, in his official capacity as Director of the COLORADO
DEPARTMENT OF INSTITUTIONS; ROBERT BAUSERMAN:
ROBBIE L. BEAN, SUZANNE D. DOSH; DENNIS FISHER:
MARY KYER; PEGGY STOKSTAD; JOHN P. STONE: RICHARD
F. WALKER, in their official capacity as members of the
COLORADO BOARD OF SOCIAL SERVICES.
Defendants.
This is an action brought by plaintiff Duc Van Le individually,
and on behalf of all others similarly situated, against Irene M. Ibarra.
in her official capacity as Director of the Colorado Department of
Social Services; Robert Bauserman, Robbie L. Bean, Suzanne D.
Dosh, Dennis Fisher, Mary Kyer, Peggy Stokstad, John P. Stone, and
Richard F. Walker, in their official capacity as members of the
Colorado Board of Social Services; and Henry Solano, in his official
capacity as Director of the Colorado Department of Institutions.
The Court has previously determined that this action should be
maintained as a class action pursuant to Rule 26, subsections (b)(1)
and (b)(2) of C.R.C.P. The class is defined as follows:
A-1
Low income mentally ill residents of
Colorado who, because of their mental
illness, qualify for skilled or
intermediate care under Title XIX of the
Social Security Act, but who have been
and are being deprived by the State of
Colorado of home and community based
services under Title XIX of the Social
Security Act, solely on the basis of their
mental illness, although such services
are provided to physically disabled
adults, and who claim that this
deprivation violates their rights under
the Social Security Act, the Reha-
bilitation Act of 1973 and the Fourteenth
Amendment of the United States
Constitution.
Plaintiff seeks to enjoin defendants, their agents and employees,
from denying members of the class, as defined above, access to home
and community based services (HCBS) under the State’s HCBS
waiver program, solely on the basis of the nature of their disability.
Plaintiff contends that state defendants’ unequal and
discriminatory treatment of the mentally ill in allocating HCBS
benefits is contrary to Section 1915(c) of the Social Security Act [42
U.S.C. § 1396n(c)], and constitutes a violation of Section 504 of the
Rehabilitation Act of 1973 [29 U.S.C. § 794]. Plaintiff also claims
that the classification of persons whose primary diagnosis is mental
illness, so as to exclude such persons from receiving needed HCBS
benefits, violates equal protection under the Fourteenth Amendment
to the United States Constitution.
The Court, after reviewing all of the evidence in this case, and
in consideration of the testimony of the witnesses called, documentary
evidence submitted, and the briefs and arguments of counsel, does
A-2
enter these findings of fact and conclusions of law.
FINDINGS OF FACT
The parties to this matter have submitted Stipulated Facts.
which this Court accepts as true and incorporated herein.
In addition to the stipulated facts, the Court has heard
testimony from Catherine Pring, the Director of Adult Services for
Denver County Department of Social Services; Rose Kotlar, Director
of Outpatient Services for the Mental Health Corporation of Denver;
Rev. Wade Blank, Director of the Atlantis Community; and Bruce
Berger, the Assistant Director of the Colorado Division of Mental
Health. Based upon the testimony of these witnesses, the Court
makes the following additional findings of fact:
1. Personal care services, homemaker services, medication
monitoring in the home, and non-medical transportation, which are
services currently provided under the HCBS Program for the elderly,
blind and physically disabled, are services which are necessary to
maintain plaintiff and class members in stable condition in the
community, and to avoid institutionalization of such persons in
hospitals and nursing homes.
2. No public or private agency currently has a program to
provide these essential services to plaintiff and class members,
although such services are provided by the Department of Social
Services to elderly, blind and physically disabled adults whose
incomes and medical needs are virtually identical with those of
plaintiff and class members.
3. Without these home and community based services,
plaintiff and class members will continue to experience the revolving
door syndrome of hospitalization, nursing home placement, placement
in the community, de-stabilization and re-hospitalization. Thus, the
availability of HCBS is an essential ingredient of normal living
A-3
patterns for a substantial number of persons who are mentally ill.
The failure to provide such services operates to exclude persons who
are mentally ill from living in the community, and to return them into
more restrictive environments.
4. The mental health services currently provided through the
Mental Health Corporation of Denver (MHCD) and other community
mental health centers are not sufficient by themselves to avoid the
revolving door of re-institutionalization of chronically mentally ill
persons. As an example, there is currently a 200-person waiting list
for case management services in the MHCD alone. Even under
optimal conditions, case managers, with the existing resources, could
only spend, on average, slightly more than one hour per week with
chronically mentally ill clients. Such case management services,
alone, cannot provide the community supports necessary to avoid re-
institutionalization of plaintiff and other mentally ill persons class
members.
5. Although the State claims that the federal government will
not fund a HCBS waiver for mentally ill persons, the evidence of
record shows that the State in the last five years has not applied for
such a waiver, has not requested in writing any assistance from the
federal government to develop a waiver which would be acceptable
under the existing regulations, and has not made any attempts to
correct its rejected 1985 waiver application or to challenge the
rejection of that waiver application in 1985.
6. The cost burden to the State of providing HCBS program
services to the mentally ill is insignificant in light of the benefits to
plaintiff and class members, and the federal government’s
contribution of between 50% and 75% of the cost. The evidence
indicates that provision of such services would prevent unnecessary
hospitalizations at a cost of $400.00 per day, as compared to the
$46.00 per day average cost of HCBS services.
: According to the testimony there are currently
A-4
approximately 300 persons in nursing homes in the Denver
metropolitan area alone who have been designated as mentally ill.
8. Many of these persons could live in the community if
community supports provided through the HCBS program were made
available to them.
9. In addition, there are substantial numbers of class members
who are currently residing in the community, either in substandard
boarding homes or homeless shelters, who would benefit from home
and community based services identical to those that are currently
provided to the elderly, blind and physically disabled.
10. Despite these facts, the State of Colorado, through the
Department of Institutions and the Department of Social Services, has
simply failed to exercise reasonable diligence to seek out federal
financial assistance, which is currently available, to provide these
home and community based services to plaintiff and class members.
11. As plaintiff and class members meet all of the medical and
financial qualifications for the Home and Community Based Services
Program currently operated by the State, other than the fact that they
are mentally ill, they are otherwise qualified handicapped persons
under Section 504 of the Rehabilitation Act of 1973.
12. The evidence of record establishes that plaintiff and class
members require the very same home and community based services.
which the State currently makes available to the elderly, blind and
physically disabled, and that plaintiff and class members are deprived
of these services solely by reason of the nature of their disability.
13. The State is currently underspending its authorized funding
for home and community based services for the elderly, blind and
physically disabled; therefore, there is sufficient funding within the
HCBS Program to accommodate the provision of home and
community based services to plaintiff and class members.
A-5
CONCLUSIONS OF LAW
The Court, upon consideration of its Findings of Fact, has
determined that the defendants have violated the federal statutory and
constitutional rights of plaintiff and class members.
1. Section 1915(c) of the Social Security Act, by its clear
language, establishes the HCBS waiver program for:
individuals with respect to whom there
has been a determination that but for the
provision of such services the
individuals would require the level of
care provided in a hospital or skilled
nursing facility or intermediate care
facility...
See 42 U.S.C. § 1396n(c)(1).
2. This statute does not limit participation in the HCBS
waiver program to any specific category of persons who would
otherwise be institutionalized. Indeed, there is no provision in the
Statute which authorizes states to offer HCBS programs for the
elderly, blind and physically disabled while discriminating against
eligible mentally ill persons solely on the basis of the nature of their
disability. To the contrary, the statute establishes a single, unified
HCBS waiver program for all otherwise eligible persons who, without
the provision of such services, would require hospitalization, or
skilled or intermediate nursing home care.
3. Plaintiff and the class of persons he represents meet the
above-quoted statutory definition; therefore, they cannot be excluded
from receiving HCBS program services solely by reason of the nature
of their disability.
4. Defendants’ assertion that plaintiff would be ineligible for
HCBS on the basis of the MINS criteria, which became effective July
2, 1989, is erroneous. The MINS criteria were not in effect at the
time that plaintiff was denied services under the HCBS program.
5S. Further, 10 C.C.R. 8.485.41(5)(a) specifically provides
that:
Individuals who are de-institutionalized
from skilled nursing facilities and
intermediate care facilities, and who
continue to meet all other HCBS-EBD
eligibility criteria shall be exempt from
application of the HCBS-EBD admission
criteria for determination of applicants
most in need of services at the time of
admission and upon all subsequent level
of care reviews....
6. According to the stipulated facts, plaintiff was de-
institutionalized from Sunshine Health Care Center, an intermediate
care facility. Hence, the MINS criteria, even in their present form,
would not affect the eligibility of plaintiff and class members who
have been de-institutionalized from hospitals, skilled nursing facilities
and intermediate care facilities.
7. Defendant Solano contends that he does not have the
responsibility for providing community based services to mentally ill
persons. The facts indicate otherwise. Stipulated fact number 23
explicitly states that:
Defendant Henry Solano is the Director
of the Colorado Department of
Institutions (DOI). In his official
Capacity and in conjunction with the
Department of Social Services, he has
A-7
been delegated certain responsibilities
and authority to provide home and
community based services for the
mentally ill under C.R.S. § 26-4.5-204.
8. Further, prior to its repeal in May 1990, § 26-04.5-204,
C.R.S. (1989 Repl. Vol.), stated that:
The department of social services and
the department of institutions shall:
(a) Utilize any available
federal, state, local, or
private funds, including,
but not limited to,
medicaid funds available
under Title XIX of the
federal "Social Security
Act", as amended, to
Carry out the purposes
of this part 2; ...
9. Under part 2 of Title 26, article 4.5,-the Colorado General
Assembly established a program of home and community based
services for the mentally ill. Subsection 26-4.5-209(1) states:
A program to provide home and
community-based services to those
mentally ill persons in need of the level
of care available in a nursing home is
hereby established pursuant to the
federal "Social Security Act", as
amended. This program shall provide
for the mental health, residential, and
other needs of mentally ill persons so
that those persons may avoid
A-8
institutionalization in nursing homes.
10. Under these statutory provisions, defendant Solano, and
his department’s prior directors, along with the current and former
executive directors of the Department of Social Services, from July
1, 1982 to May 1990, were mandated to establish a home and
community based services program for the mentally ill, using any
available state, federal, local or private funds.
11. Defendants attempt to rationalize their failure to seek an
HCBS waiver on behalf of plaintiff and class members, and thus the
unequal treatment of them, on the following alleged grounds:
a. Mentally ill persons do not always need the same
services and cannot be treated the same as physically disabled people;
b. The State should be able to provide services for
which federal financial assistance is available, while not undertaking
similar services in the absence of federal funding; and
c. The State should be able to determine the appropri-
ate allocation of scarce resources for public welfare benefits.
12. The stipulated facts defeat the rationalizations proffered by
State defendants.
13. State defendants have stipulated that the same HCBS
services currently provided to the elderly, blind and physically
disabled are "essential" and "would be of great benefit to Duc Van Le
and the class of mentally ill persons he represents."
14. Exhibit 5 to the stipulated facts, a May 17, 1990 letter
from the director of the Health Care Financing Administration
(HCFA) to Congresswoman Patricia Schroeder, states that federal
financial assistance is available for HCBS program services for the
mentally ill just as it is available for HCBS program services for the
A-9
elderly, blind and physically disabled. This letter from HCFA also
states that the Department of Health and Human Services "applies the
same standards to waivers for the mentaliy ill as it does for all other
requests for waivers." Therefore, federal funds are equally available
for HCBS programs for the mentally ill as for HCBS programs for
the elderly, blind and physically disabled.
15. In addition, state defendant have stipulated that the federal
government would pay between 50% and 75% of the cost of HCBS
program services.
16. There are no facts or evidence before the Court to support
state defendants’ contention that they should be able to provide HCBS
program services to the elderly, blind and physically disabled while
denying such services to mentally ill persons on alleged grounds of
"scare public dollars." Indeed, the State has admitted that HCBS
program services are essential to contain the more expensive costs of
skilled and intermediate care. The evidence also shows that the State
is underspending appropriated funds for the HCBS program.
In addition to the foregoing, Section 504 of the Rehabilitation
Act of 1973 [29 U.S.C. § 794] states that:
(a) No otherwise qualified individual
with handicaps in the United States
shall, solely by reason of her or his
handicap, be excluded from _ the
participation in, be denied the benefits
of, or be subjected to discrimination
under any program or activity receiving
Federal financial assistance....
The federal regulations implementing Section 504 of the
Rehabilitation Act of 1973 specifically provide that:
No qualified handicapped person shall,
A-10
on the basis of handicap, be excluded
from participation in, be denied the
benefits of, or otherwise be subjected to
discrimination under any program or
activity which receives or benefits from
Federal financial assistance.
45 C.F.R. 84.4(a).
The Section 504 implementing regulations further outline the
types of discrimination prohibited by the statute. These include:
a. Deny[ing] a qualified handicapped person the
Opportunity to participate in or benefit from the aid, benefit. or
service;
b. Afford[ing] a qualified handicapped person an
Opportunity to participate in or benefit from the aid, benefit, or
service that is not equal to that afforded others:
c. [Providing] a qualified handicapped person with an
aid, benefit, or service that is not as effective as that provided to
others;
d. [Providing] different or separate aid, benefits, or
services to handicapped persons or to any class of handicapped
persons unless action is necessary to provide qualified handicapped
persons with aid, benefits, or services that are as effective as those
provided to others;
e. Otherwise limit[ing] a qualified handicapped person
in the enjoyment of any right, privilege, advantage, or opportunity
enjoyed by others receiving an aid, benefit or service.
45 C.F.R. 84.4(b)(1).
The limited exception to the prohibition against such
discriminatory actions is outlined in 45 C.F.R. 84.4(c):
... [T]he exclusion of a specific class of
handicapped persons from a program
limited by Federal statute or executive
order to a different class of handicapped
persons is not prohibited by this part.
This exception is inapplicable to this case. As Section 1915(c) of the
Social Security Act does not limit participation to any specific class
of handicapped persons, the exclusion under 45 C.F.R. 84.4(c) does
not apply.
Although state defendants point to mental health services
provided under the Colorado Care and Treatment of the Mentally III
Act, these are the same "services" which the Colorado Supreme Court
in Goebel, et al. v. Department of Institutions, et al., 764 P.2d 785
(Colo. 1988) found to be so deficient that plaintiff's and class
members’ rights under the Act were and continue to be violated.
There is no alternative state program
which provides for Duc Van Le and the
class of mentally ill persons he
represents the same HCBS program
services which are currently being
provided to elderly, blind and physically
disabled persons.
Under the State’s administration of the HCBS program and
other State programs, eligible elderly, blind and physically disabled
persons receive homemaker services, personal care services,
medication monitoring, assistance with cleaning and hygiene, and
assistance with similar househo!d tasks while similarly situated
mentally ill persons are denied such services.
A-12
ne
State defendants rely on Knutzen v. Nelson, 617 F. Supp. 977
(D. Colo. 1985), aff'd 815 F.2d 1343 (10th Cir. 1987), to justify
their refusal to provide plaintiff and class members the same home
and community based services the State, with federal financial
assistance, provides to elderly, blind and physically disabled persons.
The Knutzen case, however, dealt with Section 202 housing program
benefits rather than HCBS waiver program benefits.
Further, the Knutzen court found that plaintiffs in that case had
not established a prima facie case under Section 504 because they
were not excluded solely on the basis of their handicap. In this case,
however, state defendants have specifically stipulated that they are
denying HCBS to plaintiff and class members solely on the basis of
the nature of their handicap. Specifically, defendants have stipulated
they [sic]:
Even though Duc Van Le and the
members of the plaintiff class meet all
of the financial and medical screens for
HBS services, they have been and will
be denied these services solely on the
basis that their primary diagnosis is
mental illness.
Further, the Colorado Supreme Court’s analysis of the
applicability of Section 504 to mentally ill persons in Goebel, et al.
v. Colorado Department of Institutions, et al., supra, supports
plaintiff's Section 504 arguments here. In Goebel, the Supreme Court
found that the trial court should not have dismissed the Section 504
claim of the mentally ill plaintiffs alleging that the Department of
[Institutions discriminated against mentally ill persons on the basis of
the severity of their handicap. Goebel, supra, 764 P.2d at 803-807.
The Goebel court cited with approval a number of cases,
including Homeward Bound, Inc. v. Hissom Memorial Center, No.
85-C-437-E (N.D. Oklahoma, July 24, 1987) [available on
A-13
WESTLAW, 1987 WL 27104], a case involving Oklahoma’s refusal
to apply for HCBS program services for the mentally retarded. The
Homeward Bound court ruled that the State of Oklahoma’s failure to
seek HCBS program services under the federal waiver, which would
prevent institutionalization of mentally retarded citizens, violated their
rights under Section 504 as well as their right to equal protection
under the United States Constitution.
The Homeward Bound court found that mentally retarded
persons have a "right to effective and integrated services under
Section 504." Analyzing the intent of Congress in enacting the
Federal Rehabilitation Act of 1973, as reflected in the extensive
legislative history of the Act, the Homeward Bound court ruled that
"Section 504 prohibits unnecessarily segregated services for regarded
persons."
The Homeward Bound court also found that the State had
violated Section 504 by providing fewer services to severely retarded
persons and retarded persons with other handicaps. Indeed, the court
found that "federally assisted retardation services for severely retarded
people and for retarded people with physical or behavior disabilities
have been provided by [the state] only in segregated settings."
Finally, the Homeward Bound court found = an
“underdevelopment of a community service system" by a state which
constituted "a continuation of the original and _ continuing
discrimination practiced by the state against retarded people" and
ruled that “the affirmative development of community services is
necessary to remedy this effect." The court relied on and upheld the
HHS’ regulatory construction of Section 504, which requires the
taking of “appropriate remedial steps to eliminate the effects of any
discrimination that resulted from adherence to these policies and
practices." See 45 C.F.R. 84.6.
These findings of the Homeward Bound court with respect to
mentally retarded persons are equally applicable here with respect to
A-14
mentally ill persons. The State’s current administration of services
clearly segregate mentally ill persons from other handicapped persons.
By failing to provide HCBS program services to mentally ill persons,
the State has underdeveloped a community based.services system for
those suffering from mental illness. which perpetrates past
discrimination against such persons. Such discrimination clearly
violates plaintiff's and class members’ rights under Section 504.
Finally, in determining whether the requirements of Section 504
are met, the U.S. Supreme Court has mandated that courts must
balance "the statutory rights of the handicapped to be integrated into
society and the legitimate interest of federal grantees in preserving the
integrity of their programs." Alexander v. Choate. 469 U.S. 287,
300 (1985). This balancing test requires:
That an _ otherwise handicapped
individual must be provided with
meaningful access to the benefit that the
grantee offers. The benefit itself, of
course, cannot be defined in a way that
effectively denies other qualified
handicapped individuals the meaningful
access to which they are entitled: to
assure meaningful access, reasonable
accommodation in the grantee’s program
or benefit may have to be made.
Id. at 301
in this case, the State has simply failed to provide mentally ill
persons access to home and community based services. Plaintiff and
class members seek no more than the same access to HCBS program
services as is provided to the elderly, blind and physically
handicapped.
The defendants [sic] further contend that the State’s failure to
A-15
provide HCBS benefits to mentally ill persons solely on the basis of
the nature of their handicap constitutes a violation of equal protection.
The Fourteenth Amendment to the United Constitution states
that:
No state shall ... deprive any person of
life, liberty, or property, without due
process of law; nor deny to any person
within its jurisdiction the equal
protection of the laws.
In 1982, the United States Supreme Court in Plyler v. Doe, 457
U.S. 202, 216 (1982), stated unequivocally that "[t]he Equal
Protection Clause directs that all persons similarly circumstanced shall
be treated alike." Three years later in Hooper v. Bernalillo County
Assessor, 472 U.S. 612, 618 (1985), the Court ruled that:
When a. state distributes benefits
unequally, the distinctions it makes are
Subject to scrutiny under the Equal
Protection Clause of the Fourteenth
Amendment.
See Zobel v. Williams, 457 U.S. 55, 60 (1982)
When a governmental classification operates to the peculiar
disadvantage of a "suspect" class or interferes with the exercise of a
“fundamental" right or interest, strict scrutiny of the classification is
required. To pass muster under the strict scrutiny test, such a
classification must further a compelling governmental interest which
cannot be served by an alternative means less burdensome to the
suspect class or [sic] fundamental right or interest. Shapiro v.
Thompson, 394 U.S. 618, 634 (1969); Dunn v. Blumstein, 405 U.S.
330, 343 (1972).
A suspect class has generally been described as a "discrete and
insular" minority. United States v. Carolene Products Co.. 304 U.S.
144, 152 n. 4 (1938); Graham v. Richardson, 403 U.S. 365. 372
(1971). These are classes which have been “saddled with such
disabilities, or subjected to such a history of purposeful unequal
treatment, or relegated to such a position of political powerlessness
as to command extraordinary protection from the majoritarian
political process." San Antonio Indep. School District v. Rodriguez,
411 U.S. 1, 28 (1973); Massachusetts Board of Retirement v. Murgia,
427 U.S. 307 (1976).
Rights are fundamental if their source. explicitly or implicitly,
is the Constitution. Plyler, supra, 457 U.S. at 217 n. 15. See also
Lujan v. Colorado State Board of Education, 649 P.2d 1005, 1015 n.
7 (Colo. 1982) ("fundamental rights are essentially those rights having
a value essential to individual liberty in our society"). Among the
rights which are considered fundamental, "[lJiberty from bodily
restraint always has been recognized as the core of the liberty
protected by the Due Process Clause from arbitrary governmental
action." Youngberg v. Romeo, 457 U.S. 307, 316 (1982). The
Youngberg court indicated that reasonable "habilitation" services,
which are needed to assure freedom from undue restraint of persons
who are mentally disabled, may be found to be fundamental in an
appropriate case.
When there is no suspect class or fundamental right involved,
there still must be some rational basis for the governmental
classification and disparate treatment. United States Department of
Agriculture v. Moreno, 413 U.S. 528, 533 (1973).
While the United States Supreme Court has generally applied
a rational basis test rather than a strict scrutiny test for equal
protection claims the Court has never been confronted with an equal
protection claim in which mentally ill persons are denied benefits
necessary to avoid institutionalization, i.e., the loss or deprivation of
a liberty interest, on the basis of their mental handicap.
A-17
Indeed, the United States Supreme Court in Schweiker v.
Wilson, 450 U.S. 221, 230-31 n. 15 (1981), reserved decision on the
question of what standard of review applies to legislation classifying
the mentally ill as a distinct group.
The United States Supreme Court in City of Cleburne v.
Cleburne Living Center, Inc., 473 U.S. 432 (1985), overturned a
discriminatory zoning ordinance affecting mentally retarded persons
by applying a rational basis test.
Physically disabled persons and mentally ill persons are
similarly situated with respect to the purposes of the Section 1915(c)
waiver Statute.
The mentally ill are a suspect class for equal protection
purposes.
Plaintiff's and class members’ interest in living in a community
setting, and being free from undue bodily restraint in institutional
setting such as hospitals and nursing homes, is a fundamental liberty
interest which is infringed by the State’s failure to provide HCBS
benefits to persons who are mentally ill.
On the basis of the stipulated facts and evidence presented, state
defendants have shown no compelling governmental interest to
support the unequal and discriminatory treatment of plaintiff and class
members in this case.
Even assuming that the denial of HCBS benefits to mentally ill
persons does not involve a suspect class or a fundamental right or
interest, state defendants have not shown that such denial of HCBS
benefits is rationally related to any legitimate governmental interest.
Therefore, the State’s failure to provide HCBS benefits to
mentally ill persons solely on the basis of the nature of their
handicap, i.e. mental illness, constitutes a violation of equal
A-18
protection.
ORDER
IT IS THEREFORE ORDERED that plaintiff Duc Van Le and
members of the class, as previously certified, are entitled to
meaningful access to the same HCBS program services which are
currently provided to elderly, blind and physically disabled persons.
[IT IS FURTHER ORDERED that:
1. State defendants, their agents and employees are
permanently enjoined from denying plaintiff and class members
HCBS benefits solely on the basis that their primary diagnosis is
mental illness.
2. So long as state defendants provide HCBS benefits to
elderly, blind and physically disabled persons, they shall provide the
Same services for plaintiff and class members.
3. The parties shall submit recommendations to the Court
within fifteen (15) days after the date of this Order regarding a
feasible method for notifying class members of their right to apply or
re-apply for HCBS benefits.
DONE AND SIGNED this day of August, 1990, at
Denver, Colorado.
BY THE COURT:
Edward E. Carelli, Judge
APPENDIX B
SUPREME COURT OF COLORADO
Case No. 91SC189 April 20, 1992
DUC VAN LE, on behalf of himself and the
class of persons similarly situated, Petitioner,
V.
IRENE M. IBARRA, in her official Capacity as the
Executive Director of the COLORADO DEPARTMENT OF
SOCIAL SERVICES; HENRY SOLANO, in his official Capacity
as Executive Director of the COLORADO DEPARTMENT OF
INSTITUTIONS; ROBERT BAUSERMAN, ROBBIE L. BEAN,
SUSANNE D. DOSH, DENNIS FISHER, MARY KYER. PEGGY
STOKSTAD,
JOHN P. STONE, and RICHARD F. WALKER in their official
capacities as members of the COLORADO BOARD OF
SOCIAL SERVICES, Respondents.
Certiorari to the Colorado Court of Appeals
Pursuant to C.A.R. 50
EN BANC JUDGMENT REVERSED
In this class action, the trial court held that respondents,
administrators of state social services programs, violated the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution and section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794 (1988), by failing to provide the petitioner, Duc Van
Le, and the members of the class of low income mentally ill persons
with the same Home and Community-Based Services (HCBS)
program that is provided to elderly, blind, and disabled persons. The
trial court ordered respondents to provide HCBS benefits to the class
members. Respondents appealed the trial court judgment to the court
of appeals. We accepted certiorari before judgment pursuant to
B-]
C.A.R. 50 and now reverse the judgment of the trial court.
Petitioner Duc Van Le is a low income mentally ill resident of
Colorado who requires round-the-clock skilled nursing care. He lived
in a nursing home for several years until it was determined that the
nursing home environment was no longer conducive to his further
improvement. Petitioner was then moved to an independent living
facility, where he continued to receive supervision. In August 1988,
he applied for Medicaid reimbursement for the services he was
receiving at the facility. Respondent Colorado Department of Social
Services determined that petitioner qualified financially for HCBS, but
denied his application because he is mentally ill. Petitioner
commenced this class action in November 1988 to obtain HCBS
benefits for himself and for a class of similarly situated "low income
mentally ill residents of Colorado." The class certified by the trial
court, pursuant to C.R.C.P. 23(b)(1) and (2), was:
Low income mentally ill residents of
Colorado who, because of their mental
illness, qualify for skilled or
intermediate care under Title XIX of the
Social Security Act,’ but who have been
Title XIX of the Social Security Act §§ 1901-1930, 42 U.S.C.A.
§§ 1396-1396u (West 1992), is also known as "Medicaid." Section 1901
states that Title XIX was enacted:
For the purpose of enabling each
State, as far as practicable under the
conditions in such State, to furnish (1)
medical assistance on behalf of families with
dependent children and of aged, blind, or
disabled individuals, whose income and
resources are insufficient to meet the costs
of necessary medical services, and (2)
rehabilitation and other services to help such
families and individuals attain or retain
B-2
and are being deprived by the State of
Colorado of home and community based
services under Title XIX of the Social
Security Act, solely on the basis of their
mental illness, although such services
are provided to physically disabled
capability for independence or self-care,
there is hereby authorized to be appropriated
for each fiscal year a sum sufficient to carry
out the purposes of this subchapter. The
sums made available under this section shall
be used for making payments to States
which have submitted, and had approved by
the Secretary [of Health and Human Servic-
es], State plans for medical assistance.
42 U.S.C. § 1396 (1988). The United States Supreme Court explained:
Medicaid was established by Title
XIX of the Social Security Act of 1965, 79
Stat. 343, as amended, 42 U.S.C. § 1396 et
seq. Medicaid is a joint state-federal
funding program for medical assistance in
which the Federal Government approves a
state plan for the funding of medical services
for the needy and then subsidizes a
significant portion of the financial
obligations the State has agreed to assume.
Once a State voluntarily chooses to
participate in Medicaid, the State must
comply with the requirements of Title XIX
and applicable regulations. Harris v.
McRae, 448 U.S. 297, 301 (1980).
Alexander v. Choate, 469 U.S. 287, 289 n.1 (1985); see also Geriatrics,
Inc. v. Colorado Dep’t of Social Servs., 712 P.2d 1035, 1040 (Colo. App.
1985) (goal of Medicaid “is to provide services to program recipients to the
same extent, or as nearly as possible, as those services are available to the
general public").
B-3
adults, and who claim that this
deprivation violates their rights under
the Social Security Act, the
Rehabilitation Act of 1973 and the
Fourteenth Amendment of the United
States Constitution.
Duc Van Le v. Ibarra, No. 88CV22641, slip op. at 1-2 (Denver Dist.
Ct. Aug. 23, 1990).
Respondents administer Colorado’s HCBS programs and were
sued in their official capacities as the directors of the Colorado
Department of Social Services and the Colorado Department of
Institutions, and as members of the Colorado Board of Social
Services. From 1982 through 1985, respondents administered
programs that provided HCBS benefits to low income elderly, blind,
physically disabled, developmentally disabled, and mentally ill
persons. The HCBS programs were paid for in part by federal funds
obtained by the state under Medicaid waivers. See Social Security
Act § 1915(c)(1), 42 U.S.C. § 1396n(c)(1) (1988). HCBS waivers
initially last three years but, upon proper application, may be
extended for additional five-year periods. 42 U.S.C. § 1396n(c)(3).
In 1985, respondents applied for renewal of Colorado’s 1982 HCBS
waivers. The federal government renewed the HCBS waivers for the
state’s elderly, blind, and disabled HCBS programs, but did not
renew the waiver for the state’s mentally ill program. As a result,
respondents stopped providing HCBS benefits to mentally ill persons,
but continued HCBS benefits for elderly, blind, and disabled persons.”
*Currently, Colorado has HCBS waivers to provide: (1) aged and
disabled persons with case management, personal care, homemaker, adult
day care, respite, transportation, minor home modifications, and electronic
monitoring and communications devices; (2) mentally retarded and
developmentally disabled persons with personal care, respite care,
transportation, residential services, case management, and habilitation
services; (3) inappropriately placed developmentally disabled individuals with
B-4
a
Petitioner claimed that he was deprived of HCBS benefits in
violation of the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution and section 504 of the
Rehabilitation Act of 1973 and sought injunctive relief to prevent the
denial of HCBS benefits to himself and the class. In a "decision and
order" dated August 23, 1990, the trial court ruled in favor of the
petitioner on both claims and ordered respondents to provide HCBS
benefits to the class "[s]o long as [respondents] provide HCBS
benefits to elderly, blind and physically disabled persons."
Respondents appealed and we granted certiorari before judgment
pursuant to C.A.R. 50 to determine whether the Equal Protection
Clause or section 504 forbids Colorado from offering HCBS benefits
to elderly, blind, and disabled persons without offering precisely the
same services to mentally ill persons. We also granted certiorari to
determine whether there is a basis for imposing liability on respondent
Henry Solano, Director of the Colorado Department of Institutions
since he did not provide HCBS services to physically disabled
persons. We reverse the judgment of the trial court and hold that
respondents did not violate the Equal Protection Clause or section 504
by refusing to provide HCBS benefits for the members of the class of
low income mentally ill persons. Our resolution of the first issue
eliminates the need to address the potential liability of the respondent
Solano.
case management, residential habilitation, transportation, day habilitation,
and respite; and (4) individuals diagnosed as having AIDS (Acquired
Immunodeficiency Syndrome) or ARC (AIDS-Related Complex) with case
management, personal care/homemaker, adult day care, home health care,
private duty nursing, and intensive supervision of foster care children with
AIDS or ARC. 3 Medicare & Medicaid Guide (CCH) ¢ 14,625, at 6341.
B-5
The Stipulated Facts
Section 1915(c) of the Social Security Act authorizes states to
provide HCBS programs for elderly, blind, and physically disabled
persons; developmentally disabled persons; and mentally ill persons.
The parties stipulated that the provision was meant to prevent the
unnecessary institutionalization of those persons, contain costs of
long-term nursing home care for them, and provide them with more
appropriate community-based services. The HCBS programs are
jointly funded by the federal and state governments. Federal financial
assistance under Medicaid covers between fifty and seventy-five
percent of the cost of the HCBS programs. The federal government
reimburses the state under an HCBS "waiver" obtained under section
1915(c) of the Social Security Act.* To receive an HCBS waiver,
the state must demonstrate that the individual HCBS program is "cost
effective." To be cost effective, an HCBS program must cost less per
eligible individual than would Medicaid reimbursed nursing home
care.°
In 1982, Colorado obtained HCBS waivers for elderly, blind,
physically disabled, developmentally disabled, and mentally ill
persons. In 1985, Colorado applied for an extension of the HCBS
waiver program for mentally ill persons, but the application was
“The federal reimbursement is referred to as a waiver because the federal
government may waive three requirements applicable to other Medicaid
programs: statewideness, comparability, and community income and
resource rules. See 42 U.S.C. § 1396n(c)(3) (1988).
‘The statute states that the estimated average per capita expenditure
under the HCBS program must "not exceed" the estimated average or per
capita expenditure under the state plan for the same year if the waiver had
not been granted. 42 U.S.C. §1396n(c)(2)(D).
B-6
denied by the Health Care Financing Administration of the
Department of Health and Human Services. The Administrator stated
that regional investigators had determined that a majority of Colorad-
o’s mentally ill HCBS recipients were not eligible for Medicaid
because, absent the waiver, they would be patients in mental
institutions. See Social Security Act § 1905(a), 42 U.S.C. § 1396d(a)
(Medicaid does not include payments for care or services for an
individual between twenty-one and sixty-five years of age who is a
patient in an institution for mental diseases). The Administrator, in
a letter to the Colorado Department of Social Services, which is
incorporated by reference in the stipulations, stated that Colorado had
attempted to circumvent federal HCBS requirements by holding
patients released from mental institutions for fifteen days before
placing them in the HCBS waiver program for the mentally ill. The
State’s "holding" procedure was insufficient to make the individuals
eligible for Medicaid benefits. The Administrator also noted several
problems with Colorado’s cost effectiveness calculations. The
Colorado Department of Institutions decided not to submit a revised
application and terminated the mentally ill HCBS program. It
continued to operate HCBS programs for elderly, blind, and disabled
persons under renewal waivers it obtained for these programs.
The parties stipulated that HCBS services would greatly benefit
the class.° The Executive Director of the Colorado Department of
Social Services referred to the HCBS services as essential to (1) the
care and treatment of the long-term mentally ill population, and (2)
the cost containment of nursing care for that population. No existing
state program provides the class with the HCBS program services that
are currently provided to elderly, blind, and physically disabled
persons. The stipulation also provided that the class has been and
“The services provided under the existing HCBS programs include:
home health care; personal hygiene; dressing; preparation of meals;
nonmedical transportation; home modification and monitoring; case
management; adult day care; and instruction in self care, independent living,
and nutrition.
B-7
will be denied HCBS services solely because their primary diagnosis
is mental illness. At the time of the stipulation, 635 persons with a
primary diagnosis of mental illness were living in Medicaid-certified
nursing homes in Colorado.
Colorado law previously required respondents to seek HCBS
waivers for the mentally ill and developmentally disabled. See Home
and Community-based Services for Mentally Ill Persons and Persons
with Developmental Disabilities Act, §§ 26-4.5-201 to -212, 11B
C.R.S. (1989) (current version at §§ 26-4-621 to -647 (1991) (Home
and Community-based Services for Persons with Developmental
Lvisabilities Act)).” In 1991, the General Assembly repealed the
‘The legislative purposes of the Home and Community-based Services
for Mentally Ill Persons and Persons with Developmental Disabilities Act
were as follows:
(1) The general assembly hereby finds
and declares that it is the purpose of this
article to provide services for the
developmentally disabled and the mentally ill
which would foster the following goals:
(a) To maintain eligible persons in the
most appropriate settings possible and to
minimize admissions to institutions;
(b) To recognize the unique services
requirements of the mentally ill and the
developmentally disabled;
(c) To provide optimum accessibility to
various important social, habilitative, reme-
dial, residential, and health services that are
available to assist in maintaining eligible
persons in the least restrictive settings;
(d) To provide that eligible persons who
have the capacity to remain outside an insti-
B-8
Statutory language that authorized respondents to seek an HCBS
waiver for mentally ill persons.* See Home and Community-based
Services for Persons with Developmental Disabilities Act, ch. 217,
1-8, §$§ 26-4.5-201 to -209, 1990 Colo. Sess. Laws 1380-82
(current version at §§ 26-4-621 to -631, 11B C.R.S. (1991 Supp.)).
Secs.
The new statute states:
It is the intent of the general assembly to
provide cost-effective services in the
least restrictive setting to individuals
who are mentally ill.
It is from that
tutional setting have access to appropriate
social, habilitative, remedial, residential, and
health
services,
without
which
institu-
tionalization would be necessary;
(e) To provide the most efficient and
effective use of funds in the delivery of
these social, habilitative, remedial, residen-
tial, and health services to eligible persons;
(f) To coordinate, integrate, and link
these social, habilitative, remedial, residen-
tial, and
health
services
into existing
community-based service delivery systems
for the developmentally disabled and the
ill, to avoid unnecessary and
expensive duplication of services;
mentally
(g)
To allow
the
state substantial
flexibility in organizing and administering
the delivery of social, habilitative, remedial,
residentia!, and health services to eligible
citizens.
§ 26-4.5-202(1), 11B C.R.S. (1989).
“The respondents in this case drafted the repealing legislation.
B-9
philosophy that the general assembly
authorized and the state implemented a
home and community-based services
program under the auspices of a federal
medicaid waiver. /nasmuch as the
federal government has been unwilling
to continue Colorado’s waiver for
mentally ill persons, the enabling State
statutory provisions for that medicaid
funded program are hereby removed.
However, the general assembly has an
ongoing interest in examining the needs
of those who are in need of long-term
care because of their mental illness and
in the most cost-effective mental health
and supportive services as may be
necessary to allow the greatest degree of
independence. In furtherance of this
intent, the department of institutions is
charged to report to the general
assembly on or before January 1, 1991,
on any additional statutory, budget, or
administrative modifications that will
facilitate the goal of home and
community-based care for the mentally
ill.
§ 26-4-622(1) (emphasis added). The remainder of the new statute
retains the same purposes and provisions as before, but is limited to
developmentally disabled persons. The state is also required by
statute to seek an HCBS waiver for elderly, blind, and disabled
persons. See §§ 26-4-601 to -612.
The parties stipulated that the United States Department of
Health and Human Services’ position on Colorado’s ability to obtain
an HCBS waiver for the mentally ill was set forth in a May 17, 1990,
B-10
letter from the Administrator to United States Representative Patricia
Schroeder. The Administrator stated that the federal statutes did not
prohibit the mentally ill from obtaining HCBS benefits. He
explained, however, that other provisions of the Medicaid statute limit
the availability of HCBS benefits for the mentally ill. Under section
1905(a), Medicaid is not available for individuals between twenty-one
and sixty-five who are inpatients in mental institutions. Most of the
recipients of the benefits under Colorado’s HCBS program for
mentally ill persons were previously inpatients in mental institutions
and, as such, were not receiving Medicaid benefits prior to entry into
the HCBS program. An HCBS program that included these
individuals, therefore, would not be budget neutral. The
Administrator stated that the Health Care Financing Administration
applies the same standards to waivers for the mentally ill that it does
on all other waivers.” He said, "If Colorado wishes to request a[n
HCBS waiver] for the mentally ill, it must show that its proposal
meets the statutory requirements, including a showing of budget
neutrality." The Administrator noted that at that time only Vermont
had an operational HCBS waiver for the mentally ill.
Finally, the parties stipulated that petitioner and the class
members are protected handicapped persons within the meaning of
section 504 of the Rehabilitation Act of 1973.
The Trial Court Order
The trial court heard testimony from three local HCBS
providers and the Assistant Director of the Division of Mental Health
of the Colorado Department of Institutions, who prepared the 1985
HCBS waiver application for the mentally ill. The trial court
incorporated the stipulated facts into its findings and made the
"However, the Medicaid limitation for the twenty-one to sixty-five year
old age group does not apply to individuals institutionalized in other
facilities.
B-11
following additional findings based on the testimony. First, the trial
court found that an HCBS program similar to the one provided for
elderly, blind, and disabled persons was "necessary to maintain
[petitioner] and class members in stable condition in the community,
and to avoid institutionalization of such persons in hospitals and
nursing homes." Second, without HCBS benefits, the class "will
continue to experience the revolving door syndrome of
hospitalization, nursing home placement, placement in the
community, de-stabilization and re-hospitalization." Third, the state
"failed to exercise reasonable diligence to seek out federal financial
assistance, which is currently available" because it made no attempts
to correct and resubmit its rejected 1985 waiver application or to
challenge the rejection. Fourth, the cost burden of providing HCBS
benefits to the mentally ill is insignificant in Jight of the benefits to
the class ($46 per day for HCBS benefits prevents hospitalization at
a rate of $400 per day). Fifth, there are sufficient funds to provide
HCBS benefits to the class because the state is not utilizing all the
funds allotted to the HCBS programs for the elderly, blind, and dis-
abled. Finally, the trial court found that the petitioner and the class
members meet all the medical and financial qualifications for HCBS
benefits and are, therefore, “otherwise qualified handicapped persons"
within the meaning of section 504 of the Rehabilitation Act of 1973.
The trial court determined that section 1915(c) of the Social
Security Act "establishes a single, unified HCBS waiver program for
all otherwise eligible persons who, without the provision of such
services, would require hospitalization, or skilled or intermediate
nursing home care." Section 1915(c) states that it establishes the
waiver program for approved state HCBS plans of
care to individuals with respect to whom
there has been a determination that but
for the provision of such services the
individuals would require the level of
care provided in a hospital or nursing
facility or intermediate care facility for
B-12
the mentally retarded the cost of which
could be reimbursed under the State
plan.
42 U.S.C. § 1396n(c)(1). The triai court found that petitioner and
the class were such individuals and, therefore, could not "be excluded
from receiving HCBS program services solely by reason of their
disability." The trial court also rejected respondents’ contention that
mentally ill persons could be denied HCBS services on the basis of
“scarce public dollars" because it found that federal funds were
equally available for the mentally ill HCBS program as for the other
HCBS programs.
Applying strict scrutiny and rational basis review, the trial
court found that respondents failed to show either a compelling or a
legitimate governmental interest for the denial of HCBS benefits to
mentally ill persons. It stated that petitioner and the class “are
entitled to meaningful access to the same HCBS programs which are
currently provided to elderly, blind, and physically disabled persons. "
The trial court concluded that respondents discriminated against
petitioner and the class in violation of the Equal Protection Clause of
the United States Constitution and section 504 of the Rehabilitation
Act of 1973. See 45 C.F.R. § 84.4 (1991). Consequently, the
'°45 C.F.R. § 84.4 provides, in relevant part:
(a) General. No qualified handicapped
person shall, on the basis of handicap, be
excluded from participation in, be denied the
benefits of, or otherwise be subjected to
discrimination under any program or activity
which receives or benefiis from Federal
financial assistance.
(b) Discriminatory actions prohibited.
(1) A recipient, in providing any aid, bene-
fit, or service, may not, directly or through
B-13
contractual, licensing, or other
arrangements, on the basis of handicap:
(i) Deny a qualified handicapped person
the opportunity to participate in or benefit
from the aid, benefit, or service;
(ii) Afford a qualified handicapped
person an cpportunity to participate in or
benefit from the aid, benefit, or service that
is not equal to that afforded others;
(iii) Provide a qualified handicapped
person with an aid, benefit, or service that is
not as effective as that provided to others;
(iv) Provide different or separate aid,
benefits, or services to handicapped persons
or to any class of handicapped persons
unless such action is necessary to provide
qualified handicapped persons with aid,
benefits, or services that are as effective as
those provided to others;
(v) Aid or perpetuate discrimination
against a qualified handicapped person by
providing significant assistance to an agency,
organization, or person that discriminates on
the basis of handicap in providing any aid,
benefit, or service to beneficiaries of the
recipients program;
(vii) Otherwise limit a qualified handi-
capped person in the enjoyment of any right,
privilege, advantage, or opportunity enjoyed
by others receiving an aid, benefit or ser-
vice.
(2) For purposes of this part, aids,
B-14
trial court enjoined respondents from basing any denial of HCBS
benefits to the class on the ground that their primary diagnosis was
mental illness. The trial court ordered that so long as respondents
provide HCBS benefits to elderly, blind, and physically disabled
persons, respondents must provide the same benefits to petitioner and
benefits, and services, to be equally
effective, are not required to produce the
identical result or level of achievement for
handicapped and nonhandicapped persons,
but must afford handicapped persons equal
opportunity to obtain the same result, to gain
the same benefit, or to reach the same level
of achievement, in the most integrated
setting appropriate to the person’s needs.
(3) Despite the existence of separate or
different programs or activities provided in
accordance with this part, a recipient may
not deny a qualified handicapped person the
opportunity to participate in such programs
Or activities that are not separate or
different.
(4) A recipient may not, directly or
through contractual or other arrangements,
utilize criteria or methods of administration
(i) that have the effect of subjecting qualified
handicapped persons to discrimination on the
basis of handicap, (ii) that have the purpose
or effect of defeating or substantially
impairing accomplishment of the objectives
of the recipient’s program with respect to
handicapped persons, or (iii) that perpetuate
the discrimination of another recipient if
both recipients are subject to common
administrative control or are agencies of the
same State.
B-15
the class members."
Il
The Federal HCBS Medicaid Waiver
Before 1981, Medicaid provided little coverage for long-term
noninstitutional care, but offered full or partial coverage for similar
care in an institution. [1981-1982 Transfer Binder] Medicare &
Medicaid Guide (CCH) ¢ 31,532, at 9603-04. Many elderly,
disabled, and chronically ill people lived in institutions, not to receive
medical care, but to receive home health care and social services that
they were unable to pay for without Medicaid coverage. Jd. at 9604.
To remedy the situation, Congress enacted section 1915(c) of the
Social Security Act 42 U.S.C. § 1396n(c) (1988) (current version at
42 U.S.C.A. § 1396n(c) (West 1992)), which authorized the
Secretary of the Department of Health and Human Services to waive
certain Medicaid statutory limitations,’ so that a state could be
reimbursed for providing a broad array of home and community-
based services to individuals who would otherwise require the level
of care provided in a hospital, nursing, or intermediate care facility.
''The trial court rejected respondent Henry Solano’s contention that he
was not responsible for providing HCBS benefits to mentally ill persons.
'2Section 1915(c)(3) of the Social Security Act provides in part:
A waiver granted under this subsection
may include a waiver of the requirements of
section 1396a(a)(1) of this title (relating to
statewideness), section 1396a(a)(10)(B) of
this title (relating to comparability), and
section 1396a(a)(10)(C)(i)(1) of this title
(relating to income and resource rules appli-
cable in the community).
42 U.S.C. § 1396n(c)(3) (emphasis added).
B-16
Social Security Act § 1915(c)(1), 42 U.S.C. § 1396n(c)(1).°
The Medicaid statutes and regulations allow states to target
eligible population groups. The Health Care Financing
Administration described the flexibility of state HCBS programs under
a section 1915(c) waiver in the following manner:
Under the waiver, home and
community-based services do not have
to be provided throughout the State.
Also, a State can choose to provide
home and community based services to
a limited group of eligibles, such as the
developmentally disabled. The State is
not required to provide the services to
all eligible individuals who require an
*Section 1915(c)(1) of the Act provided:
The Secretary may by waiver provide
that a State plan approved under this
subchapter may include as "medical
assistance" under such plan payment for part
or all of the cost of home and community-
based services (other than room and board)
approved by the Secretary -which are
provided pursuant to a written plan of care
to individuals with respect to whom there
has been a determination that but for the
provision of such services the individuals
would require the level of care provided in
a hospital or a nursing facility or
intermediate care facility for the mentally
retarded the cost of which could be
reimbursed under the State plan.
42 U.S.C. § 1396n(c)(1).
[intermediate care facility] or [skilled
nursing facility] level of care.
[1985 Transfer Binder] Medicare & Medicaid Guide (CCH) 4 34,532,
at 9588. Thus, a state may target patients in a class defined by a
specific illness or disability. 42 U.S.C. § 1396n(c)(7)(A);“
Beckwith v. Kizer, 912 F.2d 1139, 1140 (9th Cir. 1990). However,
a request for a waiver must be limited to one of three target groups
or any state-defined subgroup: (1) aged or disabled, or both; (2)
mentally retarded or developmentally disabled, or both; or (3)
mentally ill. 42 C.F.R. § 441.301(6)(6) (1990).
Before the federal government will grant a waiver, the state
must assure and convince the Department of Health and Human
Services that: (1) it will protect the health and welfare of individuals
provided services under the waiver and will be financially accountable
for the funds expended; (2) it will evaluate the need for inpatient
services in hospitals, nursing facilities, and intermediate care facilities
‘Section 1915(c)(7)(A) of the Act provides:
In making estimates under paragraph
(2)(D) [relating to cost effectiveness] in the
case of a waiver that applies only to
individuals with a particular illness or
condition who are inpatients in, or who
would require the level of care provided in,
hospitals, nursing facilities, or intermediate
care facilities for the mentally retarded, the
State may determine the average per capita
expenditure that would have been made in a
fiscal year for those individuals under the
State plan separately from the expenditures
for other individuals who are inpatients in,
or who would require the level of care
provided in, those respective facilities.
42 U.S.C. § 1396n(c)(7)(A).
for the mentally retarded; (3) it will inform individuals who are likely
to need the level of care provided in a hospital, skilled nursing
facility, or intermediate care facility of available feasible alternatives
and will allow the individuals to choose the method of care; (4) it will
be able to prove by estimation that the yearly average per capita
expenditure for an HCBS waiver program does not exceed the
average per capita expenditure if the waiver had not been granted;
and (5) it will provide yearly data on the impact of the waiver. 42
U.S.C. § 1396n(c)(2)(A)-(E). Regulations describing the Health Care
Financing Administration waiver requirements relating to the state
assurances are provided at 42 C.F.R. § 441.302 (1990). The federal
government uses a complex formula involving fourteen variables to
assure the federal government that a proposed HCBS program will be
cost effective. See 42 C.F.R. § 441.303. In addition, the Health
Care Financing Administration publishes guidelines for obtaining an
HCBS waiver. See State Medicaid Manual, HCFA-Pub. 45-4,
$§ 4440-4446 (Sept. 1988 & Aug. 1991), reprinted in 3 Medicare &
Medicaid Guide (CCH) 4 14,625, at 6328-40; State Medicaid
Manual, HCFA-Pub. 45-2, § 2110 (Sept. 1989), reprinted in 3
Medicare & Medicaid Guide (CCH) ¢ 14,625, at 6324.
The trial court arrived at two legal conclusions that are not
supportable in light of the federal statutes and their attendant
regulations and guidelines. First, the trial court concluded,
This statute [Social Security Act
§ 1915(c)(1), 42 U.S.C. § 1396n(c)(1)]
does not limit participation in the HCBS
waiver program to any specific category
of persons who would otherwise be
institutionalized. Indeed, there is no
provision in the statute which authorizes
states to offer HCBS programs for the
elderly, blind and physically disabled
while discriminating against eligible
mentally ill persons solely on the basis
B-19
of the nature of their disability. To the
contrary, the statute establishes a single,
unified HCBS waiver program for all
otherwise eligible persons who, without
the provision of such services, would
require hospitalization, or skilled or
intermediate nursing home care.
(Emphasis added.) We disagree.
Section 1915(c)(7)(A) of the Social Security Act contemplates
that cost effectiveness calculations will be made for waivers that apply
to "individuals with a particular illness." 42 U.S.C.
§ 1396n(c)(7)(A). Similarly, the implementing regulations require a
separate waiver application for the mentally ill. See 42 C.F.R.
§ 441.301(b)(6). The Medicaid HCBS waiver plan, when viewed in
its entirety, provides an incentive, by way of financial assistance and
waived general requirements, for states to create flexible HCBS
programs for discrete target groups.
Second, because federal financial assistance is available to
provide HCBS benefits to the mentally ill, and because the Health
Care Financing Administration applies the same standards to mentally
ill HCBS waivers that it applies to all other requests, the trial court
concluded, "federal funds are equally available for HCBS programs
for the mentally ill as for HCBS programs for the elderly, blind and
physically disabled." We do not agree that the existence of funds and
similar application requirements compel such a conclusion. The
application process is complex and requires many calculations specific
to each target group. On the record before us it is impossible to
determine whether respondents would, upon reapplication, be able to
obtain a section 1915(c) waiver for the mentally ill, in general, or for
the specific class in issue. Moreover, although many states have
HCBS waivers for the mentally retarded and developmentally
disabled, no state currently has an HCBS waiver for the mentally ill.
See 3 Medicare & Medicaid Guide (CCH) 4 14,625, at 6340 to 6349-
B-20
3. Consequently, the trial court’s conclusion that federal funds are
equally available for the mentally ill is unsupportable. The record
merely shows that federal funds, regardless of the target group, are
evaluated under the same criteria, and that Colorado’s application for
a waiver was denied in 1985.
il
The Colorado HCBS Statute
The federal HCBS waiver statute and regulations do not require
a State to institute HCBS programs as part of a state Medicaid plan.
However, respondents were required by state statute to provide HCBS
benefits to the mentally ill as well as the developmentally disabled.
See §§ 26-4.5-201 to -212, 11B C.R.S. (1989). In May 1990, three
months before the district court order, the act was amended and the
mentally ill were excluded. See Home Community-based Services for
Persons with Developmental Disabilities Act, ch. 217, 1990 Colo.
Sess. Laws 1380-82 (currently codified at §§ 26-4-621 to -631, 11B
C.R.S. (1991 Supp.)). The current statute does not require
respondents to provide HCBS benefits to the mentally ill and,
therefore, cannot be the basis of injunctive relief requiring the
provision of HCBS benefits to the class.
Under the prior statute, respondents were to use a variety of
funding sources for HCBS mentally ill programs, including federal
financial assistance under Medicaid. § 26-4.5-204(1)(a), 11B C.R.S.
(1989). However, HCBS benefits were to be provided to eligible
mentally ill persons "[sJubject to the availability of federal financial
participation." § 26-4.5-208(1), 11B C.R.S. (1989).
B-21
Iv
Equal Protection
Petitioner and the class contend that their rights to equal
protection under the Fourteenth Amendment of the United States
Constitution were violated by respondents’ denial of HCBS benefits.
They contend that mentally ill persons are a suspect class and,
therefore, that the state’s unequal treatment must be subjected to strict
scrutiny Petitioner and the class contend that strict scrutiny is also
proper because they have a fundamental liberty interest in being free
from the undue bodily restraint inherent in institutionalization.
Alternatively, petitioner and the class contend that the denial of HCBS
benefits is not rationally related to any legitimate government interest.
We disagree.
The rational basis test is the proper standard for review because
mentally ill persons are neither a suspect nor a quasi-suspect class and
petitioners and the class do not have a fundamental right to receive
HCBS benefits. Furthermore, petitioners have not met their burden
of showing that respondents lacked a rational basis for discontinuing
the HCBS program for the mentatly ill.
In City of Cleburne v. Cleburne Living Center, Inc., 473 U.S.
432, 446 (1985), the Supreme Court held that mental retardation is
not a suspect or quasi-suspect classification for the purposes of equal
protection review. Consequently, legislative decisions relating to
mentally retarded persons will be upheld so long as the classification
is rationally related to a legitimate state interest. /d.; see State v.
DeFoor, No. 90SA351, slip op. at 10 (Colo. Feb. 3, 1992). The
Court in Cleburne reasoned that, "where individuals in the group
affected by law have distinguishing characteristics relevant to interests
the State has the authority to implement, the courts have been very
reluctant ... to closely scrutinize legislative choices as to whether,
how, and to what extent those interests should be pursued." 473 U.S.
B-22
at 441-42. Mental retardation differs from classifications requiring
enhanced scrutiny because a state has a legitimate interest in treating
mentally retarded persons differently due to their "reduced ability to
cope with and function in the everyday world." Jd. at 442.
Requiring a state to justify its legislation under a heightened scrutiny
Standard may result in less beneficial legislation for the mentally
retarded. /d. at 444.
The Cleburne analysis applies equall y to persons suffering from
mental illness. Mentally ill persons, to varying degrees, also may
have a reduced ability to cope and function in the everyday world.’
Recognizing this, the General Assembly has sought to enact
legislation beneficial to, rather than harmful to. the mentally ill. See
Care and Treatment of the Mentally Ill Act, §§ 27-10-10i to -129.
11B C.R.S. (1989 & 199] Supp.). Indeed, the Court in Cleburne
indicated that the mentally ill are Similarly situated, for equal
protection purposes, to the mentally retarded, who it declined to
qualify as a suspect or quasi-suspect class:
[i]f the large and amorphous class of the
mentally retarded were deemed quasi-
Suspect for the reasons given by the
Court of Appeals, it would be difficult
to find a principled way to distinguish a
variety of other groups who have
perhaps immutable disabilities setting
them off from others, who cannot
themselves mandate the desired
legislative responses, and who can claim
some degree of prejudice from at least
‘°The General Assembly has defined a "mentally ill person" as "a person
with a substantial disorder of the cognitive, volitional, or emotional processes
that grossly impairs judgment or capacity to recognize reality or to control
behavior." § 27-10-102(7), 11B C.R.S. (1989).
B-23
part of the public at large. One need
mention in this respect only the aging,
the disabled, the mentally ill, and the
infirm. We are reluctant to set out on
that course, and we decline to do so.
473 U.S. at 445-46 (emphasis added).
Petitioners claim that the mentally ill are a suspect class as a
result of the Americans with Disabilities Act of 1990, Pub. L. No.
101-336, 104 Stat. 328 (codified at 42 U.S.C.A. §§ 12101-12213
(West Supp. 1991)), which states:
The Congress finds that ... individuals
with disabilities are a discrete and
insular minority who have been faced
with restrictions and __ limitations,
subjected to a history of purposeful
unequal treatment, and relegated to a
position of political powerlessness in our
--—society, based on characteristics that are
beyond the control of such individuals
and resulting from _ stereotypic
assumptions not truly indicative of the
individual ability of such individuals to
participate in, and contribute to,
society...
42 U.S.C.A. § 12101(a)(7). The Americans with Disabilities Act is
not applicable here because this case was not brought under that Act
and that Act was not in effect at the time of trial.
To declare the mentally ill to be a suspect or quasi-suspect class
would be contrary to previous decisions of the United States Supreme
Court that have interpreted the Equal Protection Clause of the United
States Constitution. -The Supreme Court has thus far set out only
B-24
three categories which it terms Suspect classes: race, alienage, and
national origin. 473 U.S. at 440. Classifications based on those
factors are subjected to strict Scrutiny because those "factors are so
seldom relevant to the achievement of any legitimate state interest that
laws grounded in such considerations are deemed to reflect prejudice
and antipathy ... and because such discrimination is unlikely to be
soon rectified by legislative means.". Jd. The Court identified
Classifications based on gender and illegitimacy as quasi-suspect and
deserving of an intermediate standard of review. Id. at 440-41. It
distinguished classifications based on age and mental retardation on
the ground that individuals in those groups “have distinguishing
characteristics relevant to interests the State has the authority to
implement." Jd. at 441. The Court stated that "[iJn such cases, the
Equal Protection Clause requires Only a rational means to serve a
legitimate end." Jd. at 442. Thus, the rational basis test is
appropriate here unless petitioner can demonstrate that he is being
deprived of a fundamental right. See Colorado Dept. of Social Servs.
v. Board of County Comm’rs, 697 P.2d 1, 13 (Colo. 1985); see also
Shapiro v. Thompson, 394 U.S. 618 (1969), overruled in part on
other grounds by Edelman v. Jordan, 415 U.S. 651 (1974).
Dandridge v. Williams, 397 U.S. 471, 484-85 (1970), stated
that while public welfare assistance "involves the most basic economic
needs of impoverished human beings," it is not a fundamental right.
Respondents do not have a duty to provide services to prevent the
institutionalization of petitioner or the class. The provision of
services requested here is distinguished from the infringement on
liberty involved in the commitment of a person to an institution, see
People v. Stevens, 761 P.2d 768 (Colo. 1988), or the deprivation of
Services to persons so confined, see Youngberg v. Romeo, 457 U.S.
307 (1982). In Youngberg, the Court determined that the state had
a duty to provide certain services to an institutionalized individual,
but stated, "As a general matter, a State is under no constitutional
duty to provide substantive services for those within its borders." Jd.
at 313.
Since mental illness is not a suspect Or quasi-suspect
classification and no fundamental interest is involved, the
classification here is subject to rational basis review. Under rational
basis review, we must uphold a classification if it is rationally related
to a legitimate governmental interest. 473 U.S. at 446. The trial
court determined that respondents did not show that the classification
based on mental illness was rationally related to a legitimate
governmental interest. In so concluding, the trial court erroneously
placed the burden on the respondents. The burden to prove "beyond
a reasonable doubt that the classification is not rationally related to a
legitimate state objective" properly lies with the party challenging the
constitutionality of the classification. See Parrish v. Lamm, 758 P.2d
1356, 1370 (Colo. 1988). We find that petitioner and the class did
not meet their burden.
Petitioner has not shown that respondents lacked a rational basis
for their 1985 decision not to reapply for an HCBS waiver for the
mentally ill. At that time, only Vermont had a waiver for the
mentally ill. According to the testimony of the Assistant Director of
the Division of Mental Health of the Colorado Department of
Institutions, who prepared the 1985 application, the cost of
reapplication was approximately $30,000. The Assistant Director
testified that a federal official said that Colorado had little chance of
receiving an HCBS waiver for the twenty-two to sixty-four-year-old
mentally ill population. See Beckwith v. Kizer, 912 F.2d 1139, 1144
(9th Cir. 1990) ("Definition of any waiver class necessarily involves
difficult policy judgments concerning where the services would most
efficiently be used."). Due to the cost of reapplication and the slight
chance of obtaining a waiver, it was not irrational for respondents to
make a policy judgment to discontinue the HCBS program for the
mentally ill and the petitioner has not proven an equal protection
violation.
B-26
Vv
Section 504 of the Rehabilitation Act
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794
(1988), provides in relevant part:
No otherwise qualified handicapped
individual in the United States ... shall,
solely by reason of his handicap, be
excluded from the participation in, be
denied the benefits of, or be subjected to
discrimination under any program or
activity receiving Federal financial
assistance ....
The parties here stipulated that petitioner and the class are
“otherwise qualified handicapped individuals" who were denied the
benefits of the HCBS program solely because they are mentally ill.
Thus, we need not address these elements and we deal only with the
last requirement: Section 504 applies only for programs receiving
federal funds. The Supreme Court said:
Congress limited the scope of
§ 504 to those who actually "receive"
federal financial assistance because it
sought to impose § 504 coverage as a
form of contractual cost of the
recipient’s agreement to accept the
federal funds. "Congress apparently
determined that it would require
contractors and grantees to bear the
costs of providing employment for the
handicapped as a quid pro quo for the
receipt of federal funds." ... Under ...
B-27
§ 504, Congress enters into an
arrangement in the nature of a contract
with the recipients of the funds: the
recipient’s acceptance of the funds
triggers coverage under the
nondiscrimination provision.... By
limiting coverage to recipients, Congress
imposes the obligations of § 504 upon
those who are in a position to accept or
reject those obligations as a part of the
decision whether or not to “receive”
federal funds.
United States Dep’t of Transp. v. Paralyzed Veterans of America, 477
U.S. 597, 605-06 (1986)."°
Respondents did not make the decision to receive federal funds
for the HCBS program for the mentally ill and, therefore, were not
in a position to accept or reject the obligations of section 504. Under
section 1915(c) of the Social Security Act, states must apply
individually for HCBS program waivers for each of the following
target groups or subgroups thereof:
(i) Aged or disabled, or both.
(ii) Mentally retarded or
*Paralyzed Veterans held that section 504 “applies only to those
commercial airlines receiving direct federal subsidies." Tallarico v.
TransWorld Airlines, 881 F.2d 566, 570 (8th Cir. 1989). Concerned about
the practical effect on handicapped air travelers, "Congress amended the
Federal Aviation Act of 1958 to specifically prohibit discrimination against
otherwise qualified handicapped individuals." Jd.; Anderson v. US Air, Inc.,
818 F.2d 49, 53 (D.C. Cir. 1987); see Air Carrier Access Act of 1986, Pub.
L. No. 99-435, 100 Stat. 1080 (1986). However, the Supreme Court’s
interpretation of section 504 of the Rehabilitation Act was not affected by the
statutory amendment of the Air Carrier Access Act.
B-28
developmentally disabled, or
both.
(ili) Mentally ill.
42 C.F.R. § 441.301 (1990). The HCBS waiver program is thus
divided into at least three different programs. Although respondents
receive federal funds for other HCBS programs, the HCBS program
for the mentally ill has not received federal funds since 1985. That
year respondents applied for and were denied an HCBS waiver for the
target group of mentally ill persons. Respondents discontinued the
HCBS program for the mentally ill only after the federal government
denied funding for the program. Therefore, under the Supreme
Court’s reasoning in Paralyzed Veterans, since respondents did not
accept funds for an HCBS program for the mentally ill, the
nondiscrimination provision of section 504 was not triggered.
Moreover, the 1990 amendment of Colorado’s home and community-
based services statutes eliminated the enabling statutory provisions for
the Medicaid-funded HCBS program for the mentally ill.
We hold that section 504 is not applicable here because the
HCBS waiver program at issue does not receive federal funds.
Therefore, respondents did not violate section 504 in denying HCBS
benefits to petitioner and the class.
VI
We conclude that the respondents did not violate the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution or section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794 (1988), by denying HCBS benefits to the petitioner and
the class. We, therefore, reverse the trial court judgment requiring
respondents to provide HCBS benefits to the petitioner and the class
menibers. Since we reverse the trial court judgment, it is unnecessary
for us to address whether respondent Solano should be dismissed from
this class action.
B-29
JUSTICE QUINN dissents and JUSTICE LOHR joins in
dissent.
B-30
Duc Van Le v. Ibarra, No. 91SC189
JUSTICE QUINN dissenting:
"’The moral test of government is how it treats those who are
in the dawn of life, the children; those who are in the twilight of life,
the aged; and those who are in the shadows of life, the sick, the
needy, and the handicapped.’" Arnold v. Dep’t of Health Services,
7713 P.2d 521, 537 (Ariz. 1989) (quoting Hubert H. Humphrey). The
mentally ill certainly fall within the latter category.
The majority’s rejection of Duc Van Le’s and the class
members’ challenge to the state’s denial of Home and Community-
based Services (HCBS) to low-income mentally ill persons who
qualify for skilled or intermediate care under the S>cial Security Act,
42 U.S.C. § 1396 et. seq. (1988), fosters the perpetuation of a
substantial underclass of mentally ill citizens whose continued state of
dependency is caused by governmental indifference to or neglect of
basic human needs. Because I cannot square the state’s action in this
case with either the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution or with section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988), I dissent.
I.
The purpose of the Medicaid Assistance Program, authorized
by Title XIX of the Social Security Act, is to enable each state, as far
as practicable, to furnish medical assistance to families with
dependent children and to the aged, blind, or disabled whose income
or resources are insufficient to meet the costs of necessary medical
services and to help such families and individuals to attain or retain
a Capacity for independence or self care. 42 U.S.C. § 1396 (1988).
The Medicaid program is jointly financed by the federal and state
governments and is administered by the state. "Within broad Federal
rules, each State decides eligible groups, types and range of services,
payment levels for services and administrative and operating
B-31
procedures. Payments for services are made directly by the State to
the individuals or entities that furnish the services." 42 CFR § 430.0
(1991).
As part of the Medicaid program, the federal government
pays a portion of the costs of twenty-one categories of services
including, but not limited to, inpatient hospital services other than
services in an institution for mental diseases,’ outpatient hospital
services, nursing facility services for individuals twenty-one years or
older other than services in an institution for mental diseases, other
medical care recognized by state law, home health care services,
private duty nursing services, services in an intermediate care facility
for the mentally retarded other than in an institution for mental
diseases, and case-management services. 42 U.S.C. § 1396(d)
(1988). Medicaid benefits thus are available for mentally ill persons
who receive some level of health-care services at facilities other than
institutions for mental diseases. See Connecticut Dept. of Income
Maintenance v. Heckler, 471 U.S. 524, 529 (1984) (noting that
Congress chose to exclude institutions for mental diseases from
Medicaid reimbursement because these facilities were already being
funded by the state).
In order to encourage flexibility in Medicaid services, the
federal statutory scheme permits states to apply for waivers of
administrative requirements for federal financing of a state’s Medicaid
program. 42 U.S.C. § 1396n(b) (1988). These waivers are intended
to enable states to try new or different approaches to the efficient and
cost-effective delivery of health care services, to adapt the programs
to the special needs of particular areas or groups of recipients, and to
permit states to implement innovative programs or activities on a
‘An institution for mental diseases means "a hospital, nursing facility, or
other institution of more than 16 beds, that is primarily engaged in providing
diagnosis, treatment, or care of persons with mental diseases, including
medical attention, nursing care, and related services." 42 U.S.C. § 1396d(i)
(1988).
B-32
EE es sess fee sss see a nes
time-limited basis, subject to specific safeguards for the protection of
recipients in the program. 42 CFR § 430.25(b) (1991). Under the
waiver provisions, the federal government funds the cost of all or part
of HCBS benefits to those persons who but for the HCBS benefits
would require more expensive health care ina hospital or other health
care facility. The cost of providing services pursuant to the waiver
thus must be less than the cost of providing the same services absent
the waiver. The HCBS program, therefore, provides an alternative
method of delivering health-care assistance by allowing qualified
persons to receive nursing care in their own homes and thus avoid
hospitalization or institutionalization as long as the cost of the HCBS
benefits is less than the cost of hospitalization or institutionalization
The Colorado General Assembly in 1980 passed the "Home
and Community-Based Services and Home Health Act," § 26-4.5-101
to -116, 11B C.R.S. (1989), in order to allow the Department of
Social Services and the Department of Institutions to administer
HCBS benefits funded by the Medicaid Assistance Program. Part two
of the statute, which is entitled "Home and Community-Based
Services for Mentally Ill Persons and Persons with Developmental
Disabilities Act," §§ 26-4.5-201 to -212, 11IB C_RS. (1989), was
intended to provide services to mentally ill persons and persons with
developmental disabilities in order to accomplish the following goals:
(a) To maintain eligible persons
in the most appropriate settings
possible to minimize admissions to
institutions;
(6) To recognize the unique
service requirements of the mentally
ill and the developmentally disabled:
(c) To provide optimum
accessibility to various important
social, habilitative, remedial.
residential, and health services that
are available to assist and maintain
B-33
the eligible persons in the least
restrictive settings;
(d) To provide that eligible
persons who have the capacity to
remain outside an institutional setting
have access to appropriate social,
habilitative, remedial, residential,
and health services, without which
institutionalization would be
necessary;
(e) To provide the most efficient
and effective use of funds in the
delivery of these social, habilitative,
remedial, residential, and health
services to eligible persons;
(f) To coordinate, integrate, and
link these social, habilitative,
remedial, residential, and health
services into existing community-
based service delivery systems for
the developmentally disabled and the
mentally ill, to avoid unnecessary
and expensive duplication of
services;
(g) To allow the state substantial
flexibility in organizing and
administering the delivery of social,
habilitative, remedial, residential,
and health services to eligible
citizens.’
In 1991 the Home and Community-based Services for Mentally Ill
Persons and Persons with Developmental Disabilities Act was repealed and
replaced by the "Home and Community-based Services for Persons with
Developmental Disabilities Act", § 26-4-622 to -631 11B C.R.S. (1991
Cum. Supp.). The legislative purpose of this new act states in pertinent
B-34
§ 26-4.5-202, 11B C.R.S. (1989).
Colorado has participated in the Medicaid waiver program
since 1982, and HCBS benefits historically have been provided to the
elderly, the blind, the physically disabled, and the developmentally
disabled. Colorado also provided HCBS benefits to the mentally ill
pursuant to the Medicaid waiver program from 1982 to 1985. The
meiitally ill included those persons whose need for long term care was
part:
It is the intent of the general assembly to provide cost-
effective services in the least restrictive setting to
individuals who are mentally ill. It is from that philosophy
that the general assembly authorized and the state
implemented a home and community-based services
program under the auspices of a federal Medicaid waiver.
Inasmuch as the federal government has been unwilling to
continue Colorado’s waiver for mentally ill persons, the
enabling state statutory provisions for that Medicaid funded
program are hereby removed. However, the general
assembly has an ongoing interest in examining the needs of
those who are in need of long-term health care because of
their mental illness and in the most cost-effective mental
health and supportive services as may be necessary to
allow the greatest degree of independence. In furtherance
of this intent, the department of institutions is charged to
report to the general assembly on or before January 1,
1991, on any additional statutory, budget, or administrative
modifications that will facilitate the goal of home and
community-based care for the mentally ill.
§ 26-4-622, 11B C.R.S. (Cum. Supp. 1991). The legislative declaration of
purpose then lists the identical goals provided in the repealed statute and
quoted in the text above, but omits any reference to mentally ill persons,
thereby effectively including only developmentally disabled persons within
the scope of the statutory scheme. Because the events and trial of this case
preceded the enactment of the 1991 act, the 199] legislation is without legal
significance to the issues raised in this case.
B-35
based on the diagnosis of mental disease -- that is, those who are
psychiatrically disabled -- but did not include persons suffering from
chronic alcoholism, chronic dementia, or organic brain syndrome.
HCBS services for the mentally ill included case management, partial
care directed to the restoration of living skills, vocational
rehabilitation, individual and group therapy, and certain residential
services. In 1985, however, the U.S. Department of Health and
Human Services denied Colorado’s request for a renewed HCBS
waiver for the mentally ill for the following reasons, which were set
forth in a letter to the Colorado Department of Social Services:
This is in reference to your request
for a home and community-based
services waiver as authorized by
section 1915(c) of the Social Security
Act for mentally ill Medicaid
recipients who would otherwise
require skilled nursing facility
services Or intermediate care facility
services.
We are sympathetic to and wish to
support your desire to find more
cost-effective methods of providing
and reimbursing for medical
assistance. However, we believe that
the waiver request does not fully
comply with all of the statutory and
regulatory requirements necessary for
approval. Accordingly, we cannot
approve this waiver request under
section 1915(c) of the Social Security
Act. For your information, we have
enclosed a report on those aspects of
the waiver request which present the
B-36
major barriers to approval.
Colorado took no further steps whatever to develop an acceptable
waiver program, and as a result the mentally ill have been deprived
of all HCBS benefits since 1985.
In November 1988 Duc Van Le. who suffers from mental
illness and was eligible for skilled or intermediate care under Title
XIX of the Social Security Act, filed an action on benalf of himself
and other similarly situated mentally ill persons. Duc Van Le. as
relevant here, claimed that Colorado’s failure to provide HCBS
benefits to the mentally ill violated the Equal Protection Clause of the
United States Constitution and section 504 of the Rehabilitation Act
of 1973. The case was tried to the court on stipulated facts and other
testimonial evidence. On August 23, 1990, the trial court ruled that
Colorado’s failure to apply for HCBS benefits for Duc Van Le and
the class of similarly situated mentally ill persons violated the Equal
Protection Clause of the Fourteenth Amendment and also violated
section 504 of the Rehabilitation Act. In Support of its legal
conclusions, the court made the following critical findings of fact:
1. Personal care services, homemaker
services, medication monitoring in the home, and
non-medical transportation, which are services
currently provided under the HCBS Program for the
elderly, blind and physically disabled, are services
which are necessary to maintain plaintiff and class
members in stable condition in the community, and
to avoid institutionalization of such persons in
hospitals and nursing homes.
2. No public or private agency currently has
a program to provide these essential services to
plaintiff and class members, although such services
are provided by the Department of Social Services to
elderly, blind and physically disabled adults whose
incomes and medical needs are virtually identical
B-37
with those of plaintiff and class members.
3. Without these home and community based
services, plaintiff and class members will continue to
experience the revolving door syndrome of
hospitalization, nursing home placement, placement
in the community, de-stabilization and_ re-
hospitalization. Thus, the availability of HCBS is an
essential ingredient of normal living patterns for a
substantial number of persons who are mentally ill.
The failure to provide such services operates to
exclude persons who are mentally ill from living in
the community, and to return them to more restrictive
environments.
4. The mental health services currently
provided through the Mental Health Corporation of
Denver (MHCD) and other community mental health
centers are not sufficient by themselves to avoid the
revolving door of re-institutionalization of chronically
mentally ill persons. As an example, there is cur-
rently a 200-person waiting list for case management
services in the MHCD alone. Even under optimal
conditions, case managers, with the existing
resources, could only spend, on average, slightly
more than one hour per week with chronically
mentally ill clients. Such case management services,
alone, cannot provide the community supports
necessary to avoid re-institutionalization of plaintiff
and other mentally ill ... class members.
5. Although the State claims that the federal
government will not fund a HCBS waiver for
mentally ill persons, the evidence of record shows
that the State in the last five years has not applied for
such a waiver, has not requested in writing any
assistance from the federal government to develop a
waiver which would be acceptable under the existing
regulations, and has not made any attempts to correct
B-38
its rejected 1985 waiver application or to challenge
the rejection of that waiver application in 1985.
6. The cost burden to the State of providing
HCBS program services to the mentally ill is
insignificant in light of the benefits to plaintiff and
class members, and the federal government’s
contribution of between 50% and 75% of the cost.
The evidence indicates that provision of such services
would prevent unnecessary hospitalizations at a cost
of $400.00 per day, as compared to the $46.00 per
day average cost of HCBS services.
7. According to the testimony there are
currently approximately 300 persons in nursing
homes in the Denver metropolitan area alone who
have been designated as mentally ill.
8. Many of these persons could live in the
community if community supports provided through
the HCBS program were made available to them.
9. In addition, there are substantial numbers
of class members who are currently residing in the
community, either in substandard boarding homes or
homeless shelters, who would benefit from home and
community based services identical to those that are
currently provided to the elderly, blind and physically
disabled.
10. Despite these facts, the State of
Colorado, through the Department of Institutions and
the Department of Social Services, has simply failed
to exercise reasonable diligence to seek out federal
financial assistance, which is currently available, to
provide these home and community based services to
plaintiff and class members.
11. As plaintiff and class members meet all
of the medical and financial qualifications for the
Home and Community Based Services Program
currently operated by the State, other than the fact
B-39
that they are mentally ill, they are otherwise qualified
handicapped person[s] under Section 504 of the
Rehabilitation Act of 1973.
12. The evidence of record establishes that
plaintiff and class members require the very same
home and community based services, which the State
currently makes available to the elderly, blind and
physically disabled, and that plaintiff and class
members are deprived of these services solely by
reason of the nature of their disability.
13. The State is currently underspending its
authorized funding for home and community based
services for the elderly, blind and physically disabled;
therefore, there is sufficient funding within the HCBS
Program to accommodate the provision of home and
community based services to plaintiff and class
members.
In my view, the trial court’s ruling is in accord with federal
equal protection standards applicable to governmental classifications
having an adverse impact on the mentally ill and is also in accord
with federal statutory law.
Il.
The purpose of the Equal Protection Clause is to ensure
equality and even-handedness in governmental action. In the absence
of a classification burdening a fundamental constitutional right or
creating a suspect class, the United States Supreme Court has applied
a rational basis standard of review in evaluating governmental action.
Under that standard, the Court has often evaluated the constitutional
validity of various forms of economic and social classifications by
considering whether there is any rationally conceivable set of facts to
support the classification. E.g., Lyng v. Castillo, 477 U.S. 635, 642-
43 (1986); Allied Stores of Ohio v. Bowers, 358 U.S. 522, 528
(1959); see L. Tribe, American Constitutional Law § 16-3 (1988).
B-40
In City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432
(1985), however, the Court employed a more demanding standard of
rationality in evaluating a governmental classification applicable to the
mentally retarded. There is no principled reason not to apply the
Cleburne standard to the mentally ill adversely affected by the
governmental conduct at issue here.
In Cleburne the Supreme Court reviewed the constitutionality
of a zoning ordinance that required a special use permit for group
homes for the mentally retarded but did not require a similar permit
for a variety of other uses including, but not limited to, hospitals,
nursing homes, sanitariums, fraternity and sorority houses, apartment
houses, and multiple dwellings. Although declining to attribute
Suspect-class status to the mentally retarded, the Court stated that a
classification adversely affecting the mentally retarded will withstand
constitutional scrutiny only if the relationship between the classifica-
tion and the asserted governmental goal is not so "attenuated as to
render the distinction arbitrary or irrational." 473 at 446. That
degree of scrutiny, the Court reasoned, "affords government the
latitude necessary both to pursue policies designed to assist the
retarded in realizing their full potential, and to freely and efficiently
engage in activities that burden the retarded in what is essentially an
incidental manner." Jd. (emphasis added). The Court then proceeded
to reject the government’s four asserted reasons for treating group
homes for the mentally retarded differently from other uses -- i.e., the
negative attitude of nearby property owners, the proximity of the
facility to a junior high school, its location in a five hundred year
flood plain, and the size of the facility - and concluded that singling
out the group homes by requiring a special use permit rested on “an
irrational prejudice against the mentally retarded." Jd. at 450.
I read Cleburne to prohibit a state from depriving the
mentally ill of essential services made available to other handicapped
groups in need of similar services, unless the following conditions
exist: first, there must be a demonstrably rational basis in fact --
rather than any “reasonably conceivable" basis in fact -- for the
B-41
governmental action; second, there must be a demonstrably rational
nexus between the classification and a significant governmental
objective; and third, the adverse impact on the mentally ill must be
no more than an incidental burden on, and not a total deprivation of,
essential services. See Cleburne, 473 U.S. at 458 (Marshall, J.,
concurring in part and dissenting in part) (rational-basis test applied
by majority is "most assuredly" not the traditional and minimal
version of the rational-basis standard); see generally M. Minow,
When Difference Has Its Home: Group Homes for the Mentally
Retarded, Equal Protection and Legal Treatment of Difference, 22
Harv._C.R.-C.L. L. Rev. 111. 116 (1987) (Cleburne majority
"actually offered a beefed up version" of the rational-basis test).
Applying Cleburne to this case leads me to conclude that there is no
rational reason for the state to refrain from seeking a waiver in order
to secure HCBS benefits for the mentally ill. The trial court, faced
with the state’s claim that federal funding might be difficuit to obtain,
found as a fact that since 1985 Colorado has not applied for a
Medicaid waiver for the mentally ill, has not requested assistance
from the federal government to develop an acceptable waiver, and has
not attempted in any way to correct its unsuccessful 1985 waiver
application. In light of these findings, the state’s assertion that
federal funding is not available for HCBS benefits for the mentally ill
is disingenuous at best. The letter from the U.S. Department of
Health denying the state’s 1985 renewal application left open the
possibility of approval upon full compliance with statutory and
regulatory requirements, but the state made no effort to resubmit a
curative application.
The majority categorizes the state’s decision to discontinue the
HCBS program for the mentally ill as a policy decision and, on that
account, presumably a matter of governmental discretion entitled to
some deference. Maj. op. at 28; see Beckwith v. Kizer, 912 F.2d
1139, 1144 (9th Cir. 1990). Governmental discretion in the
allocation of benefits to the mentally ill, however, is not the measure
of the equal protection guarantee. To be sure, the Medicaid waiver
provisions authorize a state to apply for HCBS benefits for distinct
B-42
groups -- the aged or disabled, or both; the mentally retarded or
developmentally disabled, or both; or the mentally ill. 42 CFR
§ 441.301 (1991). The fact that the state may apply for an HCBS
program waiver for an individual group or subgroup does not
constitute a warrant for arbitrary and irrational policy decisions that
have the effect of totally depriving an entire class of mentally ill
persons of any meaningful access to benefits which the state has
chosen to make available to the other groups or subgroups with needs
similar to the needs of the deprived class.
The majority also seems to attach constitutional significance
to the fact that no other state has a Medicaid waiver program for the
mentally ill. See maj. op. at 8. The frequency or infrequency of a
practice does not determine its validity, since "[iJt is possible for
many to commit the same mistake." Curtis v. Taylor, 625 F.2d 645,
651 (Sth Cir. 1980). Simply put, the motive or intent underlying
Colorado’s failure to seek a Medicaid waiver for the mentally ill is
more a matter of speculation than anything else and certainly does not
measure up to the demonstrably rational basis in fact for the state’s
decision to treat the mentally ill differently from other similarly
situated groups of handicapped persons.
Moreover, whatever might be the underlying reason for the
state’s failure to seek a Medicaid waiver for the mentally ill, there
does not appear to me to be any demonstrably rational nexus between
the state’s inaction and any significant governmental objective.
Although the majority attaches constitutional significance to the
$30,000 cost of a waiver reapplication, maj. op. at 28, I am at a loss
to see any rational link between the reapplication cost and any
significant governmental objective to be achieved by excluding the
class of the mentally ill from HCBS benefits.
Finally, the state’s inaction on this matter causes far more
than an "incidental burden" on the mentally ill. The effect of the
State’s failure to seek a Medicaid waiver totally deprives Duc Van Le
and the similarly situated class of mentally ill persons of those
B-43
|e _
essential HCBS benefits which the state has made available to other
handicapped groups in need of similar services. The majority’s
approval of the state’s complete termination of HCBS benefits for the
mentally ill regrettably will be viewed by the state as a license to
continue a course of discrimination that the Equal Protection Clause
was intended to prohibit.
Iii.
I also dissent from the majority’s holding that the anti-
discrimination provisions of section 504 of the Federal Rehabilitation
[sic] of 1973, 29 U.S.C. § 794 (1988), do not apply to Duc Van Le
and similarly situated mentally ill persons because the State of
Colorado is not a "recipient" of federal funds for HCBS programs
within the intendment of section 504. Section 504 provides in
pertinent part that "[n]o otherwise qualified handicapped individual in
the United States ... shall, solely by reason of his handicap, be
excluded from the participation in, and be denied the benefits of, or
be subjected to discrimination under any program or activity receiving
Federal financial assistance...."° The federal regulation
implementing section 504 defines a recipient as "any state or its
political subdivision, any instrumentality of a state or its political
subdivision, any public or private agency, institution, organization,
or other entity, or any person to which Federal financial assistance is
extended directly or through another recipient." 45 CFR § 84.3(f)
(1991). The federal regulations prohibit a recipient of federal funds
*The federal regulations implementing this statute define a handicapped
person as “any person who (i) has a physical or mental impairment which
substantially limits one or more major life activities, (ii) has a record of such
an impairment, or (iii) is regarded as having such an impairment." 45
C.F.R. § 84.3(j) (1991). A mental impairment is further defined as "any
mental or psychological disorder, such as mental retardation, organic brain
syndrome, emotional or mental illness, and specific learning disabilities."
45 C.F.R. § 84.3(i)(iv)(B) (1991). The parties stipulated that Duc Van Le
and the class of low income mentally ill persons fall within the definition of
qualified handicapped persons.
B-44
from excluding from participation in, and denying the benefit of, or
otherwise discriminating against any qualified person on the basis of
a handicap. 45 CFR § 84.4(a) (1991). Specifically, a recipient
cannot:
45 CFR § 84.4(b)(1) (1991).
(i) Deny a qualified handicapped person the
Opportunity to participate in or benefit from the aid,
benefit, or service;
(ii) Afford a qualified handicapped person an
Opportunity to participate in or benefit from the aid,
benefit, or service that is not equal to that afforded
others;
(iii) Provide a qualified handicapped person with
an aid, benefit, or service that is not as effective as
that provided to others;
(iv) Provide different or separate aid, benefits, or
services to handicapped persons or to any class of
handicapped persons unless such action is necessary
to provide qualified handicapped persons with aid,
benefits, or services that are as effective as those
provided to others;
(vii) Otherwise limit a qualified handicapped
person in the enjoyment of any right, privilege,
advantage, or opportunity enjoyed by others receiving
an aid, benefit, or service.
B-45
Nothing in the federal regulatory
scheme justifies exempting Colorado from the federal anti-
discrimination requirements solely because the state, although
receiving federal funds for other groups of handicapped persons
protected against governmental discrimination by section 504, was not
federally funded for HCBS programs for the mentally ill. What we
have in this case is state action that has an egregiously adverse impact
on the mentally ill by denying them any meaningful access to HCBS
benefits available to others under a program funded in whole or in
part by the federal government.
In Alexander v. Choate, 469 U.S. 287 (1984), the Supreme
Court considered whether Tennessee’s decision to reduce Medicaid
coverage for hospital stays from fourteen to twelve days was a
violation of section 504 because the reduction had a disparate
discriminatory impact on qualified handicapped persons who spent
more time in hospitals than nonhandicapped persons. Faced on the
one hand with the state’s argument that section 504 reaches only
intentional discrimination against the handicapped and on the other
with the Medicaid recipients’ argument that section 504 proscribes all
disparate impact discrimination, the Court "“assume[d] without
deciding that § 504 reaches at least some conduct that has an
unjustifiable disparate impact upon the handicapped." Jd. at 299.
The Court then concluded that "an otherwise qualified handicapped
person must be provided with meaningful access to the benefit that the
grantee offers," id. at 301, and that the benefit itself "cannot be
defined .n a way that effectively denies otherwise qualified
handicapped individuals the meaningful access to which they are
entitled." Jd. at 301. Because the record in Choate showed that the
reduction in inpatient coverage would leave "both handicapped and
nonhandicapped Medicaid users with identical and effective hospital
services fully available for their use, with both classes of users subject
to the same durational limitation," id. at 302, the Court rejected the
recipients’ claim that Tennessee’s action violated section 504.
In contrast to the state action in Choate, Colorado’s refusal
to apply for HCBS benefits for the mentally ill is violative of section
504 because it deprives that class of handicapped persons of any
"meaningful access" to the same benefits provided to the elderly, the
blind, and the developmentally disabled Medicaid recipients. The
trial court’s finding that no public or private agency has a program to
provide the essential services to Duc Van Le and similarly situated
B-46
class members and the trial court’s further finding that Duc Van Le
and the class members require the very same services as are provided
to other handicapped recipients of HCBS benefits leave no doubt, in
my mind at least, that the State of Colorado, as a recipient of
Medicaid benefits under section 504, has discriminated against the
mentally ill in violation of section 504 by totally denying them any
meaningful access to the very same HCBS benefits available to other
similarly situated classes of handicapped persons.‘
Just as we are not at liberty to construct subtle arguments for
the purpose of avoiding an expansive construction required by the
Statutory text and purpose, so too are we not at liberty to recast a
Statute in a manner that narrows its application to the point of
eliminating its central core of meaning. The majority errs on both
counts by rejecting Duc Van Le’s section 504 challenge to what is
clearly discriminatory state action against the mentally ill.
I dissent because I believe the trial court correctly held that
the state’s denial of HCBS benefits to mentally ill persons violates
both the Equal Protection Clause of the United States Constitution and
section 504 of the Rehabilitation Act of 1973.
‘I acknowledge that, based on the waiver provisions which allow the
state to be out of compliance with the Medicaid requirements of
statewideness, comparability, and community income and resource rules, 42
U.S.C. § 1396n(c)(3) (1988), it can be argued that because the state can
discriminate within a class by providing HCBS benefits to persons in one
geographical area and not in another, the state can also discriminate between
classes by choosing to provide HCBS benefits to the elderly, the blind, the
physically disabled, and the developmentally disabled, but not to the mentally
ill. The state, however, is justified in making intra-class distinctions on the
basis of its authority to provide Medicaid benefits to those most in need.
Martinez v. Ibarra, 759 F. Supp. 664 (D. Colo. 1991). There is no
comparable justification for the state, as a recipient of Medicaid funding, to
totally deny an entire class of any meaningful access to HCBS benefits when,
as here, the state provides HCBS benefits to the elderly, the blind, and the
physically and developmentally disabled.
B-47
JUSTICE LOHR joins in this dissent.
B-48
APPENDIX C
SUPREME COURT OF COLORADO December 14, 1992
NO. 91SC189
DUC VAN LE, on behalf of himself and the
class of persons similarly situated, Petitioner,
Vv.
IRENE M. IBARRA, in her official capacity as the
Executive Director of the COLORADO DEPARTMENT OF
SOCIAL SERVICES; HENRY SOLANO, in his official capacity
as Executive Director of the COLORADO DEPARTMENT OF
INSTITUTIONS; ROBERT BAUSERMAN, ROBBIE L. BEAN,
SUSANNE D. DOSH, DENNIS FISHER, MARY KYER, PEGGY
STOKSTAD,
JOHN P. STONE, and RICHARD F. WALKER in their official
capacities as members of the COLORADO BOARD OF
SOCIAL SERVICES, Respondents.
Certiorari to the Colorado Court of Appeals
Pursuant to C.A.R. 50
EN BANC JUDGMENT AFFIRMED BY OPERATION OF LAW
PER CURIAM.
JUSTICE VOLLACK does not participate.
This case has been heard and reviewed by the court. Justice
Lohr, Justice Quinn, and Justice Kirshbaum favor affirmance of the
judgment of the Denver District Court. Duc Van Le v. Ibarra, No.
88CV22641 (Aug. 23, 1990). Chief Justice Rovira, Justice Erickson.
and Justice Mullarkey favor reversal. Justice Vollack did not
participate
Accordingly, the judgment of the district court is affirmed by
operation of law because of an equally divided court. C.A.R. 35(e)
APPENDIX D
SUPREME COURT, STATE OF COLORADO
CASE NO. 91SC189
Rule 50 Certiorari to the Colorado Court of Appeals 90CA 194]
ORDER OF COURT
DUC VAN LE, on behalf of himself and the class of persons
similarly situated,
Petitioner,
vi
IRENE M. IBARRA, in her official Capacity as the Executive
Director of the COLORADO DEPARTMENT OF SOCIAL
SERVICES; HENRY
SOLANO, in his official capacity as Executive Director of the
COLORADO DEPARTMENT OF INSTITUTIONS; ROBERT
BAUSERMAN, ROBBIE L.
BEAN; SUSANNE D. DOSH; DENNIS FISHER: MARY KYER,
PEGGY STOKSTAD:
JOHN P. STONE and RICHARD F. WALKER in their Official
Capacities
as members of the COLORADO BOARD OF SOCIAL SERVICES,
Respondents.
Upon consideration of the Petitions for Rehearing filed in the
above cause, and now being sufficiently advised in the premises,
IT IS THIS DAY ORDERED that said Petitions for
Rehearing shall be, and the same hereby is, DENIED.
BY THE COURT, EN BANC. JANUARY 11, 1993,
Chief Justice Rovira. Justice Erickson, and Justice
Mullarkey would grant the petitions.
Justice Erickson dissents to the denial of the Petitions
for Rehearing.
Justice Vollack does not participate.
Duc Van Le v. Ibarra, No. 91SC189
JUSTICE ERICKSON dissenting to the denial of the petitions for
rehearing:
In this class action, the trial court held that the respondents,
administrators of state social service programs, violated Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988) (section
504), and the Fourteenth Amendment to the United States
Constitution (Fourteenth Amendment) by failing to provide Duc Van
Le and the members of the class of low-income mentally ill persons
(petitioners), with the same Home and Community-Based Services
(HCBS) program that is provided to elderly, biind, and physically
disabled persons. The trial court entered an injunctive order that
required the respondents to provide HCBS benefits to the
petitioners.. The respondents appealed the judgment of the trial
*The trial court’s order provides:
IT IS THEREFORE ORDERED that
plaintiff Duc Van Le and members of the
class, as previously certified, are entitled
to meaningful access to the same HCBS
program services which are currently
provided to the elderly, blind and
physically disabled persons.
IT IS FURTHER ORDERED that:
1. State defendants, their agents
and employees are permanently enjoined
from denying plaintiff and class members
HCBS benefits solely on the basis that
their primary diagnosis is mental illness.
D-2
court to the court of appeals and we granted certiorari before
judgment.
We were equally divided on the resolution of the issues in this
case and the judgment of the trial court was affirmed by operation of
law because. See C.A.R. 35; People ex rel. Link v. Tucker. 96 Colo.
273, 42 P.2d 472 (1934). As a result of the affirmance, the August
23, 1990 trial court order has become the controlling document in this
case. The respondents filed petitions for rehearing, which are
directed to the trial court’s order. In my view, the trial court erred
in ordering the respondents to provide HCBS benefits to the
petitioners so long as they provided the same benefits to the elderly,
blind, and physically disabled. The respondents are allowed to target
Medicaid benefits to discrete groups of disabled individuals and
because the targeting of Medicaid benefits under an HCBS waiver
program does not violate the Fourteenth Amendment.* The petition
for rehearing submitted by the respondent Colorado Department of
Social Services demonstrates that there were, and presently are, no
funds appropriated or available for the HCBS services sought by the
2. So long as state defendants
provide HCBS benefits to elderly, blind
and physically disabled persons, they
shall provide the same services for
plaintiff and class members.
“The imposition of liability on respondent Henry Solano, Director of the
Colorado Department of Institutions, based on his failure to provide HCBS
services to mentally disabled persons was also affirmed by operation of law.
Because I would resolve the section 504 and equal protection issues in favor
of the respondents, I perceive no need to address the liability of Solano. |
note, however, that there is nothing in the record of this case which supports
the trial court’s conclusion that Solano or the Department of Institutions ever
provided HCBS services to the elderly, blind, or physically disabled.
Therefore, I perceive no basis in either fact or law for the trial court's
conclusion that Solano is liable to the petitioners or should be enjoined as
ordered by the trial court.
D-3
- =
mentally ill in this case.’ I would therefore grant the respondents’
petitions for rehearing.
In fiscal year 1989, the Generai Assembly appropriated approximately
$450 million for Medicaid expenditures, an amount representing 10% of the
entire state budget. 1988 Colo. Sess. Laws, ch. 1, Part XXI, pp. 86, 91.
In fiscal year 1991, the amount of funds allocated to Medicaid increased to
over $665 million, or almost 13% of the state budget. 1990 Colo. Sess.
Laws, ch. 1, Part XXI, pp. 83, 88. In the 1992 fiscal year, the amount
appropriated to Medicaid expenditures has increased to over $1.1 billion, or
almost 18% of the entire state budget. 1991 Colo. Sess. Laws, ch. 340, part
XX, pp. 2639, 2648.
D-4
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.