Archive for August, 2011

In 2003, Arizona requested a waiver from the Secretary of Health and Human Services (“the Secretary”) to expand its mandatory Medicare co-payments for (1) childless, nondisabled adults who earn up to 100% of the federal poverty level and (2) former recipients of state health care benefits in order to lower health care costs and close a $1 billion budget gap. The Secretary granted the waiver in 2004.

After the waiver was granted, a group of "economically vulnerable" Arizonans filed a class action against the Secretary and the director of Arizona’s Medicaid agency, alleging that (1) the increased and expanded mandatory co-payments violated the Medicaid Act’s cost-sharing restrictions, (2) the waiver was illegal, and (3) they had received inadequate notice of the changes. The trial court ruled that the plaintiffs, while vulnerable, were not defined as a "medically needy" population under the Medicaid Act. Because Arizona’s state health care plan does not cover them, the trial court found that the state was exempted from the law’s cost-sharing provisions as an "expansion population."

On appeal, the Ninth Circuit Court of Appeals agreed on this point, but remanded the case for a new look at the waiver and notice issues because of the following:

There is little, if any, evidence that the secretary considered the factors [federal statute] requires her to consider before granting Arizona’s waiver. . . . The record is not sufficient for this court to review the agency’s consideration of the impact Arizona’s demonstration project would have on the economically vulnerable.

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According to a complaint, a nine-year-old known old known only as Jane Doe in the court documents was checked out of Covington County Elementary School at least six times by an unauthorized stranger during the 2007-08 school year. The stranger, Tommy Keyes, signed the child out as her father and at least once as her mother. The complaint alleges that Keyes raped, sodomized, and molested Jane during these sessions and then returned her to school. The complaint further alleges that school officials never asked Keyes for identification or checked the "permission to check-out form" that each parent or guardian submitted to the school with the names of adults authorized to pick up their children.

Jane’s father and grandmother, Daniel and Geneva Magee, filed the complaint against the Covington County School District, several educators, and Keyes. The trial court dismissed the case against the school and its officials, however, holding that they had no duty to protect the girl.

On appeal, the Fifth Circuit Court of Appeals agreed with the Magees that the school had a "special relationship" with Jane:

[She] was required to attend the school throughout the entire school day, out of the presence of her legal guardian and without any ability to leave; and Jane’s exclusive confinement by the school, entirely without the protection of her legal guardian, in combination with her young age, made Jane wholly dependent on the School for her safety.

After finding that a special relationship existed, the court then concluded that the school and its officials acted with deliberate indifference to Jane’s safety by checking her out to an unauthorized adult (whom they did not know) without verifying his identity to confirm that he was authorized by Jane’s legal guardian to check her out of school. The court then reversed the dismissal of the school district to allow the family to proceed in its case against the school district for possible violations of her substantive due-process rights. The court agreed, however, that qualified immunity protects the school officials from liability.

For the full story, click here.

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Gregory Lowrey, owner of the Happy Valley Tattoo parlor, challenged the Utah Department of Workforce Services Appeals Board’s decision that the wages of a former employee, Jacklyn Johnson, were subject to unemployment insurance. Lowry argued that the business was part of his church, UBU Ministries, which includes tattooing among its religious tenets.

On appeal to the Utah Court of Appeals, Lowrey contended that Johnson was an employee of UBU and was fired for just cause. The court found that Lowrey failed to prove any of his claims, including the point that UBU qualified as an exempt religious organization:

Lowrey does not identify anything in the record besides his testimony as to UBU’s religious nature that would establish UBU as an exempt organization under the statutory definition.

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In March 2010, New Jersey physician Mario Criscito, one of his anonymous patients, and New Jersey Physicians Inc., a nonprofit health care organization, filed suit against the U.S. government, arguing that the individual mandate provision of the Patient Protection and Affordable Care Act was unconstitutional. The trial court dismissed their complaint for lack of standing.

On appeal, the Third Circuit Court of Appeals agreed, noting that the three plaintiffs lacked standing because they failed to allege any injury in fact:

These allegations are factually barren with respect to standing. The first apparently suggests that Roe pays for his own health care. The second reveals only that, before Roe pays, he chooses his doctor and his method of payment. It provides no specifics as to whom Roe chooses or how Roe pays.

The court affirmed the lower court ruling, holding that, because the mandate will not be enforced until 2014, the plaintiffs could not show they were currently experiencing any financial harm or pressure.

For the full story, click here.

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