Institutional bias: some change, some resistance still

June 25, 2002 -- "Progress is slowly but surely being made to turn around the institutional bias in Medical Assistance's long term care (Medicaid Title XIX)," writes disability attorney Steve Gold, who recently issued a 10-year look at changes that have occurred in the federal Medicaid program. Over 14 percent of Medicaid dollars -- $18 billion -- were shifted from institutional to in-home support, he notes. The bulk ($13 billion) went to increases in Medicaid waivers to allow people to remain in their homes.

Gold attributes these changes to disability rights movement advocacy efforts. "The aged and disabled community could learn a lot from MR/DD advocates about using the Medicaid waiver process to get and keep folks out of nursing homes, "he writes. ""We need to celebrate our victories, recognizing we still have a long way to go to reform the system so no person is forced into a nursing home or other institution."

While advocacy efforts DO seem to be moving the federal Medicaid program into an understanding of the superiority of remaining in one's home, in the private sector this seems a lesson yet to be learned. In a pivotal lawsuit -- which watchers say could go to the Supreme Court -- a federal appeals court refused to uphold the rights of a man seeking to avoid institutionalization, ruling that his health insurer was under no obligation to offer in-home alternatives.

In the lawsuit, known as Fay v. Oxford Health Plan, the court's interpretation of the contract between Fay and Oxford Health "concluded the plan did not offer to cover full-time private duty home nursing unless medically necessary, and ruled that the insurer had no obligation to provide Fay with this alternative to institutionalization," say AARP legal staffers Sarah Lenz Lock and Dorothy Siemon. The court "also ruled that 'medically necessary' was, in the contract, left to the discretion of Oxford Health's plan administrator, and gave the administrator great leeway in exercising his or her discretion."

Louis Fay who has multiple sclerosis, is a quadriplegic using a ventilator and "requires assistance with all elements of daily living," said the AARP who filed a brief in the case. "Studies have documented that people on respirators with conditions like Mr. Fay who live at home have a dramatically higher survivability rate than their counterparts in institutions." When Oxford Health Plans in 1998 began requiring, as a condition of continued coverage, that Fay be admitted to skilled nursing facility instead of receiving care at home," he sued. Because Fay's coverage was provided through the health plan his wife receives at work, the dispute fell under the federal Employee Retirement Income Security Act (ERISA), the federal law governing employer-provided health benefits, not the Americans with Disabilities Act. In March, the Second Circuit Court sided with Oxford.

Siemon and Lock can be reached at (202) 434-2060.

Read Gold's latest Bulletin onlline at http://www.stevegoldada.com/stevegoldada/cgi/getlink.cgi?55R (look at Gold's archives at http://www.stevegoldada.com).

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