9th Circuit Hears Health Care Plea From Islanders

by Tim Hull, Courthouse News Service

(CN) - An attorney for the the disease-prone residents of Pacific island nations where the United States once tested nuclear bombs decried discrimination before the 9th Circuit.

Micronesia, the Marshall Islands and Palau each were used by the U.S. military to test its developing nuclear arsenal in the 1940s and 1950s. Many residents claim that resulting health issues have lingered through the generations.

These countries have enjoyed a Compact of Free Association (COFA) with the United States since 1986, a relationship that allows their natives to live in Hawaii and other states as nonimmigrants, eligible for government assistance, including Medicaid.

In 1996, however, the Welfare Reform Act cut off Medicaid benefits for the islanders. States had the option to keep providing health care under their own programs, but Hawaii stopped giving COFA residents the benefits to which they were previously entitled in 2010.

That year marked the start of the Basic Health Hawaii (BHH) program, to which it switched most of the COFA residents. The move cut the care provided to the islanders quite severely, limiting patients to no more than 10 days of hospital care per year, 12 outpatient visits per year, six mental health visits and a maximum of four medication prescriptions per month.

A group of islanders, many of whom have persistent and serious health conditions, filed a class action against the state, alleging that the cut in benefits violated the equal-protection clause of the U.S. Constitution and the Americans with Disabilities Act.

Finding that Hawaii had "failed to identify any particular state interest that is advanced by their decision to exclude COFA Residents from the old programs," U.S. District Judge J. Michael Seabright granted an injunction and ordered Hawaii to reinstate the former benefits.

Hawaii appealed to the 9th Circuit, a three-judge panel of which heard oral arguments in the case on Tuesday in San Francisco.

Judge Richard Clifton tried to focus the argument for Hawaii Deputy Attorney General Lee Anne N.M. Brewer.

"You are willing to pay Medicaid for a citizen; you are not willing pay Medicaid for a noncitizen from the Marshall Islands," Clifton said. "Why doesn't that present a vulnerability to exactly the same argument we have here in that you are discriminating against these aliens?"

Brewer countered that the equal-protection clause forces the state to fund aliens in the same way.

"The discrimination, if there is any, is by the federal government," Brewer said. "The federal government makes the classification based on alienage, which it is definitely empowered to do."

Hawaii complied with the federal requirements of welfare reform and was not required to continue offering Medicaid-level benefits to the islanders, she continued.

"They are not discriminating against anyone, they are merely complying with the federal directive," Brewer said.

Paul Alston, an attorney for the islanders, disagreed. He contended that the 9th Circuit had previously found that welfare reform "reflects no uniform federal policy."

"The state has in fact targeted not all aliens, but narrowly tailored groups of aliens from the COFA countries," Alston said. "At that point the question becomes, can the state discriminate based simply on the existence of a federal subsidy, against certain aliens who the federal government has said they may cover?"

The case is simply "a situation where the state could extend benefits to a variety of different groups; the state of Hawaii has chosen to extend benefits to a wide range of aliens, but has singled out people from the COFA countries, the disfavored countries," he said.

"Hawaii has isolated a particular subgroup of a people that it has discretion to serve."

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Related:

Nov 2, 2010: Abercrombie admits responsibility for costing Hawaii millions under Compact of Free Association

Micronesians: “Its just better in Arkansas”