Health Law Daily Colorado Medicaid did not discriminate by denying driving time reimbursements
Wednesday, January 27, 2016

Colorado Medicaid did not discriminate by denying driving time reimbursements

By Mary Damitio, J.D.

A Medicaid recipient (recipient) did not sufficiently state a claim that the Colorado Medicaid agency (state agency) discriminated against her based on her disability by refusing to pay an attendant to drive her to medical appointments, the U.S. Court of Appeals for the Tenth Circuit ruled in affirming the dismissal of her lawsuit. The state agency offered per-mile reimbursements for all recipients under 60 years old and was not required to alter its program because it offered the same benefits to every recipient regardless of disability (Taylor v. Colorado Department of Health Care Policy and Financing, January 26, 2016, Bacharach, R.).

Colorado programs. The recipient was entitled to assistance through two Colorado programs: one that subsidized the costs of in-home attendants, and another that compensated recipients for mileage they use when driving to medical appointments. The recipient owns a car but cannot drive due to a disability. She asked the state agency to combine her benefits through the two programs so that her attendant could be paid for driving her to her medical appointments. The agency refused because the attendant support service program did not provide for compensation for the attendant’s driving time.

The state’s Non-Emergent Medical Transportation program provided a wheelchair accessible van for Medicaid recipients over 60 years old and a per-mile reimbursement for other recipients. The recipient, who was under 60, did not qualify for the van and could only obtain a per-mile reimbursement. She subsequently filed suit alleging that the state agency was discriminating against her due to her disabilities in violation of the Americans with Disabilities Act (ADA) (42 U.S.C. § 12132) and the Rehabilitation Act (29 U.S.C. § 794 (a)). The district court dismissed the claims and the recipient appealed (see Failure to provide reimbursement for driving recipient to medical care is not discriminatory, February 28, 2013).

Dismissal affirmed. The enrollee did not allege sufficient facts to state a valid claim for discrimination under the ADA or the Rehabilitation Act. The state agency had flexibility in determining whether it would pay attendants for their driving time and the agency provided identical Medicaid benefits to every similarly situated recipient, whether or not they were disabled. The per-mile reimbursement was not discriminatory even if it did not fully compensate the recipient for her transportation costs because neither federal law requires Medicaid programs to compensate disabled individuals for all of their transportation costs. Additionally, no Medicaid enrollee within her county could obtain compensation for a driver and the recipient was therefore treated in the same manner as every other similarly situated Medicaid recipient.

No modification. The state agency was also not obligated to modify its Medicaid program to accommodate the recipient’s disability under 28 C.F.R. Sec. 35.130(b)(7) because the agency is required to alter its program only if an enrollee could not otherwise obtain the same benefit that is available to non-disabled individuals. No Medicaid recipient was entitled to have attendants receive payments for driving time, so the recipient was not denied benefits available to others.

The case is No. 14-1161.

Attorneys: Andrew Christopher Montoya (Colorado Cross-Disability Coalition Legal Program) for Leslie Taylor. William Eric Kuhn, Office of the Attorney General for the State of Colorado, for Colorado Department of Health Care Policy and Financing.

Companies: Colorado Cross-Disability Coalition; Colorado Department of Health Care Policy and Financing

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