[nfbmi-talk] the past hasn't gone anywhere

[joe harcz Comcast]

Now to this date even the public hearings letdon't meet the program access requirements or the effective communications requirements of the ADA, 504 or even Title I ov the VR rules.

The past has gone nowhere!

The State Plans rummied up as they are of MCB, MRS and MISIL are invalid on their face.

Joe Harcz

Effective Communications Case in Part Important Van Trapp NFB Monitor December 

http://www.nfbnm.org/content.asp?CustComKey=296977&CategoryKey=296978&pn=Page&DomName=nfbnm.org1992

 

The real problem of blindness is not the loss of eyesight. The real problem is the misunderstanding and lack of information which exists. If a blind person

has proper training and opportunity,blindness is only a physical nuisance.

 

Braille Monitor

 

December, 1992

 

    FEDERATIONISTS JOIN IN ADA LAWSUIT TO BLOCK MEDICAID CUTS

 

by Greg D. Trapp

 

     From the Associate Editor: Greg Trapp is one of the leaders

 

of the National Federation of the Blind of New Mexico. He is also

 

an attorney with the Protection and Advocacy System in the state.

 

Last May he and his colleagues brought what appears to have been

 

the first lawsuit ever in a State District Court claiming

 

violations of the Americans with Disabilities Act. Those of us

 

who have watched and worked for passage of this legislation know

 

that there are very real limits to what it can do to assist

 

disabled people. It is a tool, and we must learn to use it wisely

 

and appropriately. This case is instructive and serves as an

 

example of what the ADA can and cannot do in difficult and

 

complex legal and fiscal situations. Here is the story as Greg

 

Trapp told it:

 

     A recent Americans with Disabilities Act (ADA) lawsuit is of

 

special interest to blind people. The lawsuit was decided on

 

issues related to the ADA Title II provision on "effective

 

communications." It was an effort to block Medicaid cutbacks in

 

the state of New Mexico. Several members of the National

 

Federation of the Blind were deeply involved in the lawsuit,

 

including Albuquerque board member Marcella Gallegos, who was one

 

of the three plaintiffs; NFB of New Mexico president and

 

Information Access Coordinator Joe Cordova, who testified as an

 

expert witness; other NFB members who were prepared to testify as

 

fact witnesses; and many more Federationists who came to the

 

hearing to demonstrate their support. In addition, I was a member

 

of the team of eight attorneys from the organization Protection

 

and Advocacy System (P&A) which litigated the case.

 

Protection and Advocacy Systems are familiar to many as the

 

state-appointed, mostly federally-funded entities usually charged

 

with representing the developmentally disabled and (through the

 

Client Assistance Program, CAP) with representing state

 

rehabilitation agency clients. However, the New Mexico Protection

 

and Advocacy System is one of only eleven state agencies to

 

include a Protection and Advocacy for Individual Rights (PAIR)

 

project along with its other services. PAIR provides advocacy to

 

recipients of services from Rehabilitation Act Title VII

 

Independent Living Centers, including the section C, older blind

 

adult programs.

 

Like Medicaid programs in other states, the New Mexico

 

program has a budget deficit caused by the national recession and

 

Medicaid expansions. This past March the New Mexico Human

 

Services Department (HSD) published legal notice of proposed

 

cutbacks in the state Medicaid program. HSD also published legal

 

notice of a public hearing on the proposed cutbacks, which was to

 

be held in Santa Fe on April 10, 1992. The purpose of this

 

hearing was to enable HSD to gather public comment on the

 

proposed cuts so that these concerns could be considered prior to

 

the adoption of the final rule.

 

There are 170,000 Medicaid recipients in New Mexico, most of

 

whom are low-income, elderly, or disabled persons. The proposed

 

cuts would have limited these Medicaid recipients to just two

 

doctor's visits and three prescriptions per month. Non-emergency

 

dental care and elective surgical procedures would have been

 

eliminated. Recipients would have been required to make co-

 

payments for each doctor's visit and prescription. Medicaid

 

payments for important items such as eye glasses, hearing aids,

 

and other durable medical equipment (as well as diapers and adult

 

protective undergarments) would have been eliminated altogether.

 

One of the ironies of the proposed cutbacks was that, rather

 

than saving the state money, a strong case can be made that the

 

cuts would ultimately have cost the state more than the six

 

million dollars HSD projected it would save. The restrictions on

 

doctor's visits and the newly-imposed co-payments would have

 

forced many Medicaid recipients to defer needed early medical

 

treatment, which often results in medical complications that can

 

lead to expensive hospital treatment. Additionally, Medicaid

 

payments allow many severely disabled persons to live outside of

 

costly medical care facilities. The cutbacks would have forced

 

many of them into nursing homes or hospitals.

 

When the devastating impact of the proposed cuts became

 

known, Protection and Advocacy began to formulate a strategy to

 

oppose them. Our first plan was to file a lawsuit seeking a court

 

order requiring the Human Services Department Secretary to

 

rescind the cuts. We had to show that he had failed to comply

 

with his "mandatory non-discretionary duty" to abide by state and

 

"other applicable" law. We argued that the Secretary failed to

 

abide by New Mexico statutory laws concerning the rule-making

 

process and that he failed to comply with the requirements of the

 

Americans with Disabilities Act.

 

The ADA is comprised of five divisions: Title I currently

 

covers private employers with twenty-five or more employees;

 

Title II covers state and local governments; Title III covers

 

private sector public accommodations; Title IV covers

 

telecommunications; and Title V includes miscellaneous provisions

 

of the Act.

 

Title I currently covers employers with twenty-five or more

 

employees and prohibits discrimination based on disability. It

 

requires employers to provide reasonable accommodations for

 

disabled and prospective employees. It mandates that disabled

 

employees be required to perform only the "essential functions"

 

of a job and makes illegal job requirements such as having a

 

driver's license if the job requires only occasional driving and

 

if the driving can be assigned to other employees. It makes

 

illegal job application questions which would tend to elicit

 

information about a person's disability.

 

Title II covers all activities of state and local

 

governments. These must be operated so that, when viewed in their

 

entirety, they are "readily accessible to and usable by" disabled

 

people. Communication with these individuals must be as effective

 

as communication with others. Title II does not require

 

elimination of barriers in existing buildings. However, newly

 

constructed buildings and facilities must be free of

 

architectural and communication barriers, and substantially

 

remodeled portions of existing buildings or facilities must be

 

accessible. A Title II public entity need not make a fundamental

 

alteration in a facility, service, or program or be required to

 

make alterations or modifications which would result in an undue

 

administrative or financial burden.

 

Title III covers private entities that operate public

 

accommodations such as hotels, restaurants, and theaters. It

 

requires that public accommodations provide goods and services in

 

an integrated setting, eliminate discriminatory eligibility

 

standards, and make reasonable modifications in policies,

 

practices, or procedures, provided that a fundamental alteration

 

would not result in a change in the nature of the goods and

 

services provided. Although Title II does not require state and

 

local governments to remove barriers in existing facilities,

 

Title III does require that public accommodations remove barriers

 

in existing facilities, where "readily achievable," that is,

 

"easily accomplishable and able to be carried out without much

 

difficulty or expense." Public accommodations must furnish

 

auxiliary aids when necessary to ensure effective communication,

 

unless an undue burden or fundamental alteration would result.

 

Public accommodations must provide equivalent transportation

 

services, maintain accessible features of facilities and

 

equipment, and design and construct new facilities and alter

 

existing ones in accordance with the Americans with Disabilities

 

Act Accessibility Guidelines (ADA-AG). (The infamous truncated

 

domes discussed at length in the October, 1992, issue of the

 

Braille Monitor are contained in the ADA Accessibility

 

Guidelines.) Private entities offering examinations for

 

educational or professional purposes must offer them in an

 

accessible place and form or offer alternative accessible

 

arrangements.

 

The ADA can be understood better by looking at the areas

 

which it does not cover. Religious organizations are generally

 

exempt unless they rent facilities to a Title III public

 

accommodation or unless they employ twenty-five or more persons,

 

in which case they are covered by Title I. Indian tribes are also

 

not covered. The Rehabilitation Act of 1973 covers the Federal

 

Government, and therefore the ADA does not apply to it. The Fair

 

Housing Act was amended in 1988 to protect against discrimination

 

based on disability, so therefore the ADA does not cover housing

 

or apartment rentals. Likewise, the ADA does not cover airports

 

or airlines because they are already covered by the Air Carrier

 

Access Act.

 

It is at this point, when looking at the interplay between

 

the various laws, that the ADA gets a little tricky. For example,

 

private vendors located in airports are not covered by the Air

 

Carrier Access Act and are therefore covered by Title III of the

 

ADA. The Fair Housing Act does not cover hotels and other places

 

of temporary lodging, so therefore Title III covers them. While

 

most state and local governments receive federal funds and

 

therefore have long been covered by Section 504 of the

 

Rehabilitation Act of 1973, not all governmental entities receive

 

federal funds. Therefore, Title II of the ADA, which is basically

 

a restatement of Section 504, is intended to reach those

 

previously uncovered governmental entities and applies ADA

 

requirements to even the smallest local governments. Thus, an ADA

 

complaint against a small town which receives no federal funds

 

will be investigated as a Title II complaint. If, on the other

 

hand, an ADA complaint is filed against a state agency which

 

receives federal funds, it will be treated as a 504 complaint and

 

routed to the federal agency which disperses funds to the

 

department in question.

 

Any individual who believes that he or she is a victim of

 

discrimination may file a complaint. Complaints on behalf of

 

classes of individuals are also permitted. They should be

 

submitted in writing, signed by the complainant or an authorized

 

representative, contain the complainant's name and address, and

 

describe the alleged discriminatory action. Eight federal

 

agencies are designated to receive ADA complaints. A complaint

 

filed with the wrong agency will eventually be routed to the

 

proper one. The Department of Justice is designated as the

 

primary ADA enforcement agency; so, when in doubt, complaints

 

should be sent there. ADA complaints must be filed with a

 

designated agency (even if it is the wrong one) within one-

 

hundred-eighty days of the discriminatory act, unless there is

 

good cause for delay.

 

In addition to the federal complaint process, private

 

lawsuits may be brought to enforce the ADA, and these may be

 

brought prior to exhaustion of administrative remedies. It was

 

this provision that permitted Protection and Advocacy to raise

 

ADA violations in our lawsuit against the New Mexico Human

 

Services Department.

 

Although Title II of the ADA reiterates the provisions of

 

section 504 of the Rehabilitation Act, it does elaborate upon the

 

earlier legislation in several important areas, including

 

additional definition of the provision concerning communications.

 

Section 35.160 of Title II of the ADA regulations requires state

 

and local governments to communicate with the public in a manner

 

that is "as effective" for disabled persons as for the non-

 

disabled. Section 35.160 reads as follows:

 

                   SUBPART E - COMMUNICATIONS

 

     35.160 GENERAL.

 

35.160(a) A public entity shall take appropriate steps to

 

ensure that communications with applicants, participants, and

 

members of the public with disabilities are as effective as

 

communications with others.

 

35.160(b)(1) A public entity shall furnish appropriate

 

auxiliary aids and services where necessary to afford an

 

individual with a disability an equal opportunity to participate

 

in, and enjoy the benefits of, a service, program, or activity

 

conducted by a public entity.

 

35.160(b)(2) In determining what type of auxiliary aid and

 

service is necessary, a public entity shall give primary

 

consideration to the requests of the individual with

 

disabilities.

 

     The New Mexico Human Services Department, however, ignored--

 

or perhaps more accurately was oblivious of--these provisions of

 

the ADA. We argued that the HSD announcements of the proposed

 

cuts, the publication of the regulations implementing the

 

proposed cuts, and the April 10 public hearing on the proposed

 

cuts failed to comply with the Section 35.160 provisions

 

requiring "as effective communications for the disabled as for

 

the non-disabled." We also argued that the public hearing itself

 

was inaccessible. It had originally been scheduled in a room

 

which seated one-hundred-twenty-eight persons and which was

 

largely wheelchair-inaccessible, having only a small handicapped

 

section at the back. It had an inaccessibly steep ramp leading to

 

the front, where the microphones were located, and no provision

 

was made for a person using a wheelchair to travel to the

 

microphones. HSD had made no provisions for sign language

 

interpreters and had to scramble to locate several at the last

 

minute. None of the written information on the cutbacks was

 

prepared in alternate formats such as Braille or audiotape. Over

 

five hundred persons appeared at the public hearing, and as a

 

result HSD decided to move it across the street to the State

 

Capitol Building. The hundreds of persons--many of whom were on

 

crutches, in wheelchairs, or on stretchers--had to make their way

 

through two parking lots and across a busy street in order to

 

reach the Capital Building.

 

The cuts were scheduled to take effect on May 1, 1992. On

 

April 29 we filed our court order in State District Court,

 

expecting that a hearing would be scheduled in a couple of weeks.

 

The judge issued a temporary order granting our Writ and, to our

 

surprise and that of the HSD attorneys, scheduled a hearing for

 

the next day. After the judge granted the temporary Writ, we met

 

with the HSD attorneys into the evening. We were trying to agree

 

on certain facts so that we would not have to contest them at the

 

hearing. Three attorneys represented P&A at this meeting. It

 

concluded with an exchange of witness lists, and I announced our

 

intention to call Fred Schroeder, director of the New Mexico

 

Commission for the Blind, and Joe Cordova, president of the

 

National Federation of the Blind of New Mexico and NFB

 

Information Access Coordinator for the state, as expert witnesses

 

on the ADA and issues related to blindness. Notice of intent to

 

call an expert witness is usually required to be given to the

 

other side in a lawsuit so the attorneys can prepare their cross-

 

examination. Both Mr. Schroeder and Mr. Cordova have amassed

 

impressive credentials. When I recited them, a task that took

 

several minutes, Shannon Broderick, HSD's lead attorney, sat back

 

and said, "I'm beginning to think that it isn't realistic to have

 

this hearing tomorrow."

 

We returned to our office at about 8:00 p.m., and shortly

 

thereafter Ms. Broderick called to request that we agree to an

 

extension of the temporary Writ and a new hearing date. This

 

seemed to be in our interest, so we agreed. However, no one knew

 

whether the judge would agree to the postponement, so we had to

 

be prepared to present our case the next day. Consequently, Joe

 

Cordova and Marcella Gallegos, who was one of the plaintiffs and

 

a member of the board of directors of the NFB's Albuquerque

 

chapter (Fred Schroeder was out of town), made the first of what

 

turned out to be three hour-long trips to Santa Fe. This one

 

proved to be unnecessary because the judge agreed to the

 

postponement and rescheduled the hearing for May 12, 1992.

 

During the interim we made plans to pack the court with

 

people who had obvious disabilities. As a result about fifty

 

persons with disabilities, including nearly a dozen

 

Federationists, were present at the start of the hearing. Several

 

newspaper reporters along with news crews from all three local TV

 

news organizations were also present to record the events.

 

I had been given responsibility for formulating the ADA

 

arguments, so we decided that I would present the majority of the

 

ADA case at the hearing. Our plan was twofold: 1. argue that the

 

ADA had been violated; and 2. argue that the process by which the

 

rule enacting the proposed cutbacks was promulgated and

 

eventually adopted was not in accordance with statutory

 

requirements. We had a small parade of sympathetic witnesses, who

 

were to testify that the public hearing was inaccessible and not

 

conducted in accordance with the statutory requirements for a

 

public hearing.

 

The judge began by disparaging our entire case and

 

especially casting severe doubt upon our ADA arguments, saying

 

that he didn't think the ADA applied, but if it did, he would

 

give it only slight weight. After this discouraging introduction,

 

the judge called the case, and the lead attorneys presented

 

opening arguments. HSD argued that they had complied with all

 

relevant New Mexico statutes governing the adoption of agency

 

regulations and the holding of public hearings and that the ADA

 

did not impose any additional requirements above those contained

 

in the New Mexico statutes.

 

We began to call our witnesses and elicited testimony about

 

the inadequacy--even complete lack--of accommodations provided by

 

HSD. We took every opportunity we could find to elicit testimony

 

about the harm that would result from the proposed cuts, and HSD

 

quickly objected each time. We called several witnesses who

 

testified to the inadequacy of the sign language interpretation

 

arrangements and to the need to publicize the availability of

 

sign language interpreters. The ADA clearly requires that steps

 

taken to comply with the Act be publicized.

 

I called our first expert witness, Anne Thomas, an attorney

 

who is knowledgeable about the ADA. My first job was to have her

 

recite her qualifications as an expert. Ms. Thomas has extremely

 

impressive ADA credentials, including being the Director of Equal

 

Opportunity Programs and ADA Coordinator at the University of New

 

Mexico, serving five years as a staff attorney at the Equal

 

Employment Opportunities Commission, serving on several

 

disability- and ADA-related boards and commissions, and writing

 

numerous scholarly articles on the ADA. Ms. Thomas also uses a

 

wheelchair. Needless to say, the effect was quite dramatic. Also

 

needless to say, Ms. Broderick vociferously objected to Ms.

 

Thomas's being allowed to testify. However, the judge overruled

 

her objections and allowed the testimony.

 

An expert witness is permitted to give an opinion on an

 

ultimate question of law. Ms. Thomas was thus able to state her

 

opinion that the Human Services Department had failed to comply

 

with the Americans with Disabilities Act. She testified that

 

Section 35.160 of Title II required HSD to communicate the notice

 

of the proposed cuts and the notice of the public hearing in a

 

way that was "as effective for the disabled as for the non-

 

disabled." Specifically, she testified that HSD was required to

 

provide the notice in Braille and on audiotape as well as take

 

steps to communicate directly to organizations representing the

 

blind. Most important, she was also able to convince the judge of

 

the applicability of the ADA to HSD and of the Act's supremacy

 

over the narrow public-hearing and rule-making requirements

 

listed in the New Mexico statute. This testimony countered the

 

HSD argument that it was required to abide by the statutory rule-

 

making requirements only and that it therefore did not have to

 

take steps to accommodate persons with disabilities. The

 

transformation in the judge's thinking was evident at the end of

 

the day's testimony when he referred to the ADA and said, "It's a

 

whole new world."

 

I called Marcella Gallegos to testify on the second day of

 

the hearing. The presence of Ms. Gallegos, who was one of our

 

named plaintiffs and an active Federationist of many years

 

standing, was very important to our case. She gave us clear

 

reason to assert that Section 35.160 of Title II had been

 

violated. The lawsuit claimed that her Title II rights were

 

violated because HSD had taken no steps to make the notice of the

 

cuts and public hearing comply with the Section 35.160

 

requirements that such notices be effectively communicated. Ms.

 

Gallegos had been unaware of the proposed cuts. I asked her to

 

describe how she would be harmed by them. This question was

 

objected to, although the objection was overruled on the basis

 

that the question addressed the importance of Ms. Gallegos'

 

receiving adequate notice and the likelihood that she would want

 

to attend the public hearing.

 

Our last witness on the second and final day of the hearing

 

was state NFB president Joe Cordova. We called him as an expert

 

witness on effective communications for the disabled and on

 

blindness. The judge knew of Mr. Cordova from a letter which he

 

had recently sent to all New Mexico judges pointing out that

 

blind persons should not be kept from jury duty based solely on

 

their blindness. The judge's reaction to Mr. Cordova and his

 

letter seemed positive. He listened closely as the witness

 

testified to the number of blind persons in New Mexico who

 

receive Medicaid and his opinion on the ineffectiveness of the

 

HSD communications. Mr. Cordova, who is the state NFB's

 

Information Access Coordinator, described the steps necessary to

 

assure effective communication with the blind and hearing-

 

impaired.

 

The HSD attorneys put on a rebuttal argument and called the

 

director of the Medicaid program. It was clear by this time that

 

HSD officials were in difficulty. The legal team was trying to

 

construct the argument that abiding by the ADA would have

 

resulted in an undue financial or administrative burden. Upon

 

cross-examination, however, the Medicaid director admitted that

 

HSD had taken no steps to make the notices of the proposed cuts

 

and public hearing comply with the ADA. After our cross-

 

examination the judge himself questioned the Medicaid director

 

asking him "how much would it cost to make audiotape copies of

 

the regulation?" The director could only respond, "Not much." The

 

director gave a similar answer when the judge asked how much it

 

would have cost to place a sentence on the notices stating that a

 

TDD number was available and that copies of the notices were

 

available in Braille and other accessible formats.

 

It was obvious to all that the judge was about to rule in

 

our favor. However, he threw out the arguments we had made

 

concerning HSD's failure to abide by the statutory rule-making

 

requirements. Instead, he found that HSD did not comply with the

 

Title II ADA requirements for provision of effective

 

communications, making the hearing fundamentally unfair.

 

The decision caught many state officials off guard. HSD

 

initially threatened to appeal the decision and even challenge

 

the constitutionality of the ADA. The Governor, however, was

 

quoted as saying that he did not want to be perceived as being

 

against the disabled by challenging the ADA. Finally, the

 

attorney general decided against an appeal on the basis that the

 

facts of the case were too sympathetic to our side and that the

 

result might be a decision against the state which would have

 

even broader legal precedent.

 

State agencies, however, have taken notice of the decision.

 

The New Mexico Commission for the Blind, which reflects the

 

Federation philosophy of its director Fred Schroeder, is busy

 

filling requests for ADA information and providing Braille

 

services. The Newsline for the Blind (telephone newspaper-reading

 

service) director, Mike Santullo, has even had to create a new

 

legal notices category on the Newsline system. Mr. Cordova is

 

also now responding to requests for information on how to provide

 

more effective communication for blind people. As a result of

 

this lawsuit, the positive philosophy of the National Federation

 

of the Blind is being disseminated by many people in New Mexico.

 

Best of all, it is all being done with nary a mention of a

 

truncated dome.

 

     There you have Greg Trapp's description of this important

 

ADA case. Here are two of the newspaper articles published at the

 

time it was making news. Jackie Jadrnak was the reporter who

 

wrote both stories. The first was published in the Albuquerque

 

Journal on Thursday, May 14. Here it is:

 

            JUDGE HALTS MEDICAID CUTS, SAYS DISABLED

 

KEPT FROM HEARINGS

 

     Medicaid cuts won't be allowed to take effect under a court

 

ruling Wednesday--a ruling that could have a major impact on

 

public accommodations that must be made for people with

 

disabilities.

 

The decision effectively means the state Human Services

 

Department can't count on any savings from the cuts in its budget

 

before the June 30 end of the fiscal year, according to Secretary

 

Dick Heim.

 

State District Judge Art Encinias ruled the department

 

didn't go far enough to make a public hearing on Medicaid cuts

 

accessible to people with disabilities. Because the process to

 

enact the cuts didn't comply with the federal Americans with

 

Disabilities Act, the cuts themselves couldn't take effect, he

 

said.

 

Heim said he would decide today what course the department

 

would take next. It's possible the department could both appeal

 

the decision and begin a round of new hearings to cut Medicaid

 

coverage, he said.

 

One option might be to challenge the constitutionality of

 

the Americans with Disabilities Act itself on the grounds that

 

the federal government is interfering too closely with powers

 

reserved to the state government, said Judith Ferrell, attorney

 

for Human Services.

 

That could set the state in the forefront in challenges to

 

the act, which toughens requirements for making public buildings

 

and events accessible to people with disabilities. The act took

 

effect January 26.

 

As it is, Encinias' ruling was the first in New Mexico on

 

the effect of the disabilities act. "There are going to be very

 

serious implications to state government," Heim said.

 

Encinias said the department failed to give effective notice

 

of the public hearing on the Medicaid cuts to people with

 

disabilities, especially those who couldn't see.

 

In addition, the notice of the hearing failed to mention

 

what special steps would be taken to make it easier for people

 

with disabilities to participate, he said.

 

Testimony showed the notice of the hearing was available

 

mainly in written form and didn't mention that sign language

 

interpreters would be available.

 

Without offering details of what should have been done at

 

the hearing, Encinias said adequate accommodations weren't

 

offered for people with visual, hearing, or mobility impairments.

 

Saying he didn't believe the department acted in bad faith,

 

Encinias said, "It treated the disabled without thought...as

 

invisible men and women."

 

Under the Americans with Disabilities Act, they can be

 

invisible no longer, he said. "They are absolutely entitled to

 

participate in public life," Encinias said.

 

The Medicaid cuts, which were to take effect May 1, would

 

have reduced payments to various health-care providers and scaled

 

back coverage for the 170,000 low-income people receiving

 

Medicaid in New Mexico. For instance, Medicaid would have stopped

 

paying for hearing aids, glasses, or dental care for adults and

 

would have limited the number of doctor office visits and

 

prescriptions it would pay for.

 

The cuts would have saved $4.3 million in state and federal

 

spending during the last two months of this fiscal year.

 

Without those savings Heim estimated that state funds are

 

short $2.9 million to $6.9 million this fiscal year for the

 

Medicaid program. The gap between the two figures represents

 

money the state hopes counties will contribute to the program.

 

Donna Smith, director of the New Mexico Association of

 

Counties, said at a legislative hearing Wednesday that she might

 

know after meetings this week how much counties might ante up.

 

Do¤a Ana County already has agreed to give about $1 million, but

 

several counties may have to donate to make it worthwhile for any

 

of them to do it, she said.

 

Otherwise, only one or two counties would end up subsidizing

 

the program statewide, according to Smith.

 

Odis Echols, lobbyist for Bernalillo County, said county and

 

University Hospital officials are discussing whether they want to

 

give Medicaid $2.5 million to help keep it out of the red this

 

fiscal year.

 

Counting the federal match--the state gets about $3 in

 

federal funds for every $1 it spends on Medicaid--the program's

 

shortfall is running between $11.5 million and $27 million. The

 

department estimates this fiscal year's spending will total about

 

$500 million.

 

Next fiscal year expenses under Medicaid could run up to

 

$565 million, while funding would be only about $500 million,

 

according to department estimates. For the next fiscal year the

 

department still has to figure out either how to cut spending or

 

find new money.

 

     There you have the first article. A little more than a month

 

later, Ms. Jadrnak completed the story. Here is the Albuquerque

 

Journal article of Tuesday, June 23:

 

               STATE WON'T APPEAL MEDICAID RULING

 

     The state won't appeal a court ruling that blocked Medicaid

 

cuts and interpreted some requirements of the new federal

 

Americans with Disabilities Act, officials said Monday.

 

Attorney General Tom Udall said he was trying to practice

 

preventive law instead.

 

Noting that his office is trying to develop guidelines for

 

all of state government to comply with the disabilities act,

 

Udall said, "After we have a chance to work at them a little

 

more, we'll be able to resolve some of these issues rather than

 

resolve them through litigation."

 

Last month state District Judge Art Encinias ruled that

 

planned cutbacks in Medicaid couldn't take effect because a

 

public hearing on the cuts didn't comply with the disabilities

 

act. For example, public notices didn't state that interpreters

 

for the deaf would be available, nor was any effort made to

 

notify blind people of the hearing, he said.

 

The decision now specifically affects Human Services, but an

 

appeal could set a strong precedent for all of state government,

 

said Human Services Secretary Dick Heim.

 

Udall indicated it might have been hard for the state to win

 

the case, "The courts, under the set of facts we had here, might

 

well find against us," he said. "The facts could be very

 

sympathetic to the plaintiffs and the judge's ruling."

 

Also, the decision on whether to appeal had no real effect

 

on Human Services' battle against a budget deficit, said Deputy

 

Secretary Aug Narbutas.

 

It would be too late for program cuts to save the department

 

any money for the current fiscal year, which ends next Tuesday,

 

he said. Meanwhile, the department is working on a set of cuts

 

that would go through a hearing process and might take effect

 

about September, he said.

 

The department hasn't settled on a list of proposed cuts,

 

Narbutas said, but added that the Medicaid program could be $65

 

million or more short next fiscal year. In New Mexico Medicaid,

 

which pays medical bills for some low-income and disabled people,

 

gets almost three-quarters of its money from the federal

 

government.

 

"There are only two ways to deal with this: to increase

 

revenues or reduce expenditures," Heim told members of the

 

Legislature's Health and Human Services Committee Monday. "We

 

most probably will go with another round of cuts.

 

"We can't avoid being sued, but we hope to avoid losing," he

 

added.

 

"If we don't find another way to finance Medicaid growth,

 

we're inevitably going to see significant cuts in the Medicaid

 

program," said Sen. Janice Paster, D-Albuquerque. "Medicaid is

 

just eating the general fund up....

 

"This is a gigantic train wreck--and I think it's coming

 

next legislative session," she said, noting that program costs

 

have grown thirty percent in each of the past two years. "This is

 

a disaster of major proportions."

 

     That is what the newspapers were saying, and there is no

 

question but that the Medicaid program is in deep trouble. All

 

citizens with a concern about this crisis should have an

 

opportunity to be a part of the discussions being conducted by

 

state governments across the country in an effort to find

 

solutions. This case has demonstrated the new legal necessity to

 

insure that no disabled citizens shall be prevented from taking

 

part in the discussion. The Americans with Disabilities Act is no

 

panacea, but in the right hands it is a tool that can help to

 

insure justice.