BAYONNE, NJ – It is regrettable that the HME industry, throughout a decade of high pitched lobbying against the bidding program, never once challenged Congress to examine its potential impact on the civil rights of the disabled. With each trip to Washington, the mantra we always presented was how damaging the program would be to community providers and patient access to services.

Much later on, when it became apparent our campaign was failing, I finally reached out to the American Association for People with Disabilities (AAPD), and entered into several revealing conversations with its attorney, David Heymsfeld. Although, regrettably, Dave retired recently, he changed my worldview on disability rights and how the bidding program blatantly trampled on decades of progress. To better understand this, please bear with me while we review some history.

Congress Finally Acts
It all began with passage of the 1973 Rehabilitation Act. For the first time in our history Congress granted anti-discriminatory protection to the nation’s disabled and guaranteed that no disabled person should be “excluded from, denied benefits or be subjected to discrimination under any program or activity conducted by an executive agency of the federal government.”

Thus the nation’s disabled citizens were finally recognized as a disadvantaged minority with a history of suffering discrimination in both public and private institutions. This was a huge leap forward, but not far enough for many. As the full scope of public and private discrimination became evident, it soon was obvious that much more needed to be done if disabled citizens were to ever achieve social equality.

Clearly, the disabled needed full physical access to public facilities and guarantees that they would not be segregated into “separate but equal” groups for the receipt of public and private services, or within places of employment. The principal that any “separate but equal” doctrine was inherently discriminatory had been already in place since the landmark Brown vs Board of Education Supreme Court decision in 1954 which struck down school segregation. Therefore Congress recognized that vastly broader legislation was needed, and finally, 17 years later the Americans with Disabilities Act was passed.   

Everyone associates the 1990 Americans With Disabilities Act (ADA) with parking spaces, ramps, wide doorways and a guarantee against job discrimination. The real surprise is the conviction with which this legislation relates a past history of public and private discrimination and how it grants sweeping power to Congress to take corrective action. For example, in “Findings,” the Act discusses the broad nature of discriminatory practices against the disabled and admits the lack of legal recourse these individuals have suffered for decades. Unlike other vulnerable groups, no comprehensive laws ever existed prior to the ADA to grant protection. Finally, the disabled were a recognized minority, somewhat similar to ethnic and racial groups.

Scope of the ADA
The types of violations cited deal with second-class treatment, social disadvantage, exclusion and most significantly: “Relegation to lesser services, programs… benefits etc.” The stated purpose of the Act is to provide 1) a national mandate, 2) enforceable standards 3) a central role for the Federal Government in enforcing standards and 4) the sweep of congressional authority, including the power to enforce the 14th Amendment (Equal Protection) and to regulate commerce.

Item 4 is of particular interest to us because it invokes both the Equal Protection and Commerce Clauses of the Constitution to address the day-to-day discrimination faced by the disabled. For our concerns, Section 12132 in particular prohibits discrimination, “ by any agency of a State or States against a disabled individual in the receipt of public services.” In every respect the ADA reinforced and broadened the principles laid out in the Rehabilitation Act.

How the Bidding Program Violated the ADA
It may be difficult to understand how the competitive bidding program for DME could foster discrimination against disabled Medicare beneficiaries, so it might be best to offer an analogy:

For example, what if New Jersey were to create a state health care program for disabled residents, but (unlike all other health plans) leave them NO RECOURSE for administrative or judicial review if the beneficiaries found that the program was inadequately constructed both in the selection of products, number of service providers and their ability to provide timely and competent service? Would not these disabled be entitled to file a discrimination suit under the ADA?  

Why should this group be denied relief in the courts if they believe the program denied their citizen’s rights, reduced them to second-class citizenship and threatened their health, safety and freedom? How could any government program deny disabled residents a due process venue to challenge unfair treatment, without being seen as discriminatory in nature?

Both the 1973 Rehabilitation Act and ADA prohibit any “second class” treatment of the disabled or inequality of access to public services. Clearly, a federal lawsuit would quickly shut down any such state program for the disabled that sought to deny full citizen’s rights. Therefore, why should it be different for federal programs? (Chief Justice Warren actually used this argument in a case of federal racial discrimination).
                                                                                                                                                                                                                                                       Recourse to the Department of Justice
The HME industry, hard hit by the bidding program and low on cash, may not be in any shape to fund large-scale federal lawsuits to reclaim justice and fairness. Yet there may be a cost free approach to resolve the situation.  The DOJ maintains a network of agencies specifically designed to enforce the anti-discrimination statutes. If the HME industry were to organize a petition among various disability rights organizations for the disabled, a formal complaint could be submitted to the Civil Rights Division, Disability Rights Section of the Department of Justice, 950 Pennsylvania Ave Washington DC 20530. It would be advisable to have a disability attorney draft the actual complaint.

Of course there is no guarantee of success, but such an action would be highly revealing of our government’s regulatory apparatus and could garner substantial media attention, thus leading to an actual Constitutional challenge by foundations like the ACLU.

Herb Paserman, a 30-year-veteran of the HME industry, is marketing manager at Jerrys Drug and Surgical, Bayonne, NJ. Paserman can be reached via e-mail: [email protected]