(from the Hawai'i Appleseed Center for Law and Economic Justice)
Re: Korab v. Fink, April 1, 2014, Opinion of the Ninth Circuit Court of Appeals
You all may know that Hawai'i Appleseed is one of the law firms involved with the Basic Health Hawai'i case. We wanted to send out this update to let you all know what the decision means and to emphasize the importance of continuing to do what you all are doing in terms of building public support and political will for policy changes that will ultimately be necessary to ensure that COFA residents are covered by Medicaid.
Background on the Case
On April 1, 2014, the U.S. Court of Appeals for the Ninth Circuit issued an opinion that the State of Hawai‘i is not required to provide state-paid health care to people residing in Hawai‘i under the Compact of Free Association. Hawai‘i Appleseed believes that members of our community living here under the Compact deserve equal treatment under the law, including access to quality health care, and we are very disappointed and concerned by this ruling.
This lawsuit was brought in September 2010 because of the State of Hawai‘i’s decision to discontinue Med-QUEST coverage of eligible COFA residents and replace it with the Basic Health Hawai‘i plan (BHH), which provided very limited and inadequate health care coverage. In December 2010, the U.S. District Court in Hawai‘i granted a preliminary injunction that prevented BHH from replacing the more comprehensive Med-QUEST coverage. The State appealed to the Ninth Circuit, which has authority over the U.S. District Court in Hawai‘i. The appeal was argued in September 2012. Unfortunately, in its April 1 decision, the Ninth Circuit ruled that the state of Hawai‘i is not constitutionally obligated to provide state health insurance with the same level of coverage as the federally-funded Medicaid program.
The Effect on Health Care for COFA Residents
Although the Ninth Circuit issued a decision that vacated the District Court’s preliminary injunction, it has not yet issued a mandate to the District Court to lift the injunction. Therefore, Basic Health Hawai‘i is not yet in effect. According to a statement made by Attorney General David Louie on April 8, Governor Abercrombie’s administration will not make a decision about whether or not to implement BHH until after the lawsuit is finally resolved. This means that it is likely BHH will not be implemented for at least a few more months.
At this point, we are discussing with our clients and community members the potential impact of the court decision and how to best address it. We are also consulting national legal experts about the potential impact of further appeals, which could result in further harm to COFA residents and other disadvantaged groups throughout the nation if the U.S. Supreme Court were to use the case as an opportunity to overturn law that is currently favorable legal non-citizens residing in the U.S.
We will be filing a petition to the Ninth Circuit Court asking for a re-hearing by the panel of judges, as well as a hearing before all of the judges on the Ninth Circuit. This petition must be filed by April 15 to preserve the opportunity for any further hearings; it does not mean that we will necessarily continue with the appeal. Hawai‘i Appleseed will continue to consult with our clients, the community, our co-counsel, and national experts to identify the next steps for the lawsuit.
The lawsuit is only a small part of the advocacy on this issue. Ultimately, it is critical that the community pursue a broader strategies to build the public support and political will to stop BHH from replacing the more comprehensive Med-QUEST coverage. Many are already working toward this end. You can go tohealthypacific.org to learn more about the latest happenings and how to get involved. The implementation of Basic Health Hawai‘i will have a devastating effect on the health of Hawai‘i’s residents—taxpayers, workers, students, and members of our community—and the community must make clear that denying equal access to life-saving healthcare on the basis of cost is wrong. It will only cost lives and hurt the entire community. To keep this from happening, it is important to get as many people as possible involved with this effort.