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From Health Law Daily, October 17, 2017

Medicaid recipient, caregiver fall short in proving contractor discrimination on basis of disability, race

By Lindsey Firnbach, J.D.

A Medicaid recipient and her Medicaid approved Personal Care Assistance (PCA) caregiver failed to convince a federal district court in New Jersey to deny a motion to dismiss brought by the Medicaid contractor, whom they claimed discriminated against them out of retaliation as well as because of their disability and race. The court granted the motion to dismiss, declaring that the recipient and her caregiver failed to demonstrate that the contractor was a public entity, that discrimination occurred by the contractor, and that the two failed to exhaust the required administrative remedies prior to filing in federal court. Although the motion was granted, the court gave the recipient and her caregiver an opportunity to amend the complaint (Carman v. Horizon New Jersey Health, October 10, 2017, Vazquez, M.).

Background. The recipient, who suffers from epilepsy and seizures, received PCA care from an African American caregiver at her home. In 2015, she filed a claim against the New Jersey Department of Health and Human Services and the New Jersey Department of Developmental Disabilities, alleging that they violated the American Disability Act (ADA). Four months after she filed this action, her approved PCA hours were reduced by Horizon New Jersey Health (Horizon), a company that contracted with the New Jersey departments. The recipient and her caregiver filed a suit against Horizon, claiming that the contractor violated the ADA and the Civil Rights Act when it reduced the PCA approved hours, alleging that this reduction was because of her disability, the race of the caregiver, and was also retaliation for filing an ADA claim. After filing notice of appearance, Horizon filed a motion to dismiss the amended complaint.

Complaint. The complaint alleged that Horizon reduced the amount of approved PCA hours because of the disability of the recipient and the race of the caregiver, and they denied her equal opportunity of benefits. Although a public entity is prohibited from discriminating on the basis of disability, and must treat those with a disability the same as other persons, the court noted that the complaint failed to demonstrate that Horizon was a public entity and that the recipient was discriminated on the basis of her disability. Additionally, the complaint did not show that she received fewer approved PCA hours than other recipients that received similar care. The complaint also lacked evidence that Horizon had discriminated on the basis of race—there was not any information that showed that the caregiver was employed by Horizon or that the denial of additional hours had a connection to the race of the caregiver. Finally, the court noted that the recipient and the caregiver failed to follow the ADA and Civil Rights Act required administrative proceedings prior to filing in federal court.

Retaliation. The recipient also alleged that the reduction of her PCA hours by Horizon was an effort by the contractor to cause her physical hardship and financial hardship to her caregiver, and was therefore an attempt to intimidate her to withdraw her earlier ADA claims. Although retaliation is prohibited under the ADA, the accuser must demonstrate that there was a relationship between the conduct and the adverse action—the recipient must have demonstrated that there was a link between the filing of the claim and the denial of the service hours—which was not demonstrated in this case.

The court noted that the complaint lacked any connection—it merely showed that the hours were reduced four months after the filing—and there was no evidence as to pattern of antagonism as a response to the filing of the ADA claim. Additionally, there was no evidence to demonstrate that Horizon knew about the filing of the ADA claim. Equally unpersuasive to the court was the argument that evidence was provided showing Horizon violated the ADA by denying the recipient effective communication with others. The ADA requires public entities to furnish services to make sure that disabled individuals have effective communication with others, but the complaint failed to demonstrate that Horizon was a public entity, and it did not state what deficient communication the recipient suffered.

The case is No. 15-7932.

Attorneys: Jean Young Kim (Fernandez & Karney, APLC) for Susan Carman. Thomas M. Blewitt (Connell Foley LLP) for Horizon New Jersey Health.

Companies: Horizon New Jersey Health

MainStory: TopStory CaseDecisions CMSNews MedicaidNews EligibilityNews NewJerseyNews

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