Monthly Archives: October 2016

Criminalizing Juvenile Female Sexuality By Alexis Killough

Criminalizing Juvenile Female Sexuality

By Alexis Killough

It is an all-too-familiar story in modern American society. A teenage girl falls for the attractive young coach at her high school and the relationship soon turns sexual.[1] Inevitably, her parents discover the relationship and object to the seven-year age difference.[2] In this case, however, the girl ends up entering the criminal justice system as a child in need of supervision when her father files a petition with the court.[3] Because she is sixteen, this is not a case of statutory rape, so bringing the girl under the control of the court is the only way to force the relationship to end.[4]

Alabama’s juvenile justice system allows a juvenile court to declare a juvenile to be a child in need of supervision if that juvenile “disobeys the reasonable and lawful demands of his or her parent…and is beyond the control of the parent.”[5] At that point, the juvenile is labeled a status offender under Alabama law and is subject to the control of the court, much like a juvenile who is adjudicated delinquent.[6] While this process comports nicely with the idea of protecting juveniles and allowing the juvenile justice system to assist parents in need, it has been warped to allow the criminalization of sexuality in juvenile girls by “transforming female sexual interest and activity into female delinquency”.[7] The standards used by the status offense system, in Alabama and across the United States, criminalize sexual activity in girls, using the legal system to shame and force them to comply with social norms as determined by the prior generation.

From its inception, the juvenile justice system has functioned as a place where society engages in “largely unchecked and curiously intrusive social control strategies.”[8] Specifically, this has included subjecting juvenile girls to decisions that reflect and reinforce traditional ideas of gender and age appropriate behavior.[9] As part of their traditional role as parens patriae, juvenile courts take a very protective view over teenage girls, declaring them a child in need of supervision for being ungovernable due to sexual activity.[10] Courts reserve heaviest judgement for young girls who “stray from the feminine ideal,” most often by becoming sexually active and losing the perception of virginal innocence.[11] Society usually sees these girls as having a “deeper set of problems” that can only be cured by the intervention of the juvenile justice system.[12] The system then tries to reform them into more “‘appropriate’ young women,” by punishing their sexual behavior.[13]

Girls face a confounding double standard in juvenile courts.[14] Of the juveniles referred to courts for the status offense of ungovernability, the majority are girls being referred for taking part in sexual behavior that their parents percieve as promiscuous.[15] Society generally condemns female promiscuity while celebrating the same behavior in males.[16] The sexual activity leading to the reports is not usually considered extreme or deviant when engaged in by teenage boys.[17] This shifting standard could be an explanation for the disparities between male and female status offenders. A 1995 survey found that 27.5% of arrests of girls were for status offenses, but only 10.5% of arrests of boys were based on status offenses.[18] A study in Connecticut showed that nearly twice as many girls faced status offender cases for sexual activity than boys, though Connecticut law does not specify between the sexes in its status offense law relating to sexual activity.[19] An inordinate number of girls are entering the juvenile justice system for being sexually active while boys taking part in the same activities are left to continue with their childhood uninterrupted.

The status offense system is used to control girls whom their parents suspect of promiscuous behavior.[20] Generally, juvenile status offender cases against sexually active girls start when a parent refers their own child to the courts.[21] These parents experience what has been referred to as a “reflexive reliance” on the courts to straighten out the girls.[22] This ideal is complicated by the function of the juvenile system itself, wherein juveniles are deprived of their liberty like an adult in the traditional criminal system, but they are also treated as children in the deprivation of due process rights.[23]

Once they enter the system for a status offense, it is all too easy for a girl to be adjudicated delinquent. Juveniles who commit status offenses cannot be incarcerated, but judges often “bootstrap” charges and incarcerate girls for violating court orders, transforming them from a status offender to a traditional delinquent.[24] The status offense court order will typically include provisions relating to attending school, following a curfew, and obeying parental authority, but judges have discretion to include “almost anything” in those orders, as long as it fits with the admittedly broad standards of the best interests of the child.[25] Girls who fail to comply fully with the status offender system are subjected to “increasingly punitive interventions” from the court, allowing charges to stack up against them.[26] Something as simple as staying out a few minutes past curfew or skipping class can lead to a girl being incarcerated as a delinquent, right alongside other juvenile delinquents.[27] The process of “bootstrapping” by juvenile judges has transformed the status offense system into a quasi-criminal system throughout most of the United States.[28]

Sexually active girls can quickly be labeled juvenile delinquents just by nature of being sexually active, while sexually active boys still receive a “boys will be boys” treatment regarding their own sexual activity. It is unacceptable to treat girls any differently than boys, just because society expects boys to be sexually active and girls to remain pure and innocent. That double-standard is impossible to enforce and leads to girls being shamed for a natural part of growing-up.

[1] See, e.g., Dixon v. State, 579 So. 2d 29 (Ala. Crim. App. 1990).

[2] Id.

[3] Id.

[4] Id.; Ala. Code § 13A-6-62(a)(1) (LexisNexis 2016).

[5] Ala. Code § 12-15-102(4) (LexisNexis 2016).

[6] Ala. Code § 12-15-201(4) (LexisNexis 2016).

[7] Kim Taylor-Thompson, Girl Talk – Examining Racial and Gender Lines in Juvenile Justice, 6 Nev. L.J. 1137, 1154 (2006).

[8] Id. at 1138.

[9] Id.

[10] Soma R. Kedia, Creating An Adolescent Criminal Class; Juvenile Court Jurisdiction Over Status Offenders, 5 Cardozo Pub. L. Pol’y & Ethics J. 543, 552 (2007).

[11] Taylor-Thompson, supra note 7, at 1138-39.

[12] Id. at 1140.

[13] Cynthia Godsoe, In Search of Meaningful Systemic Justice for Adolescents in New York: Contempt, Status, and the Criminalization of Non-Conforming Girls, 35 Cardozo L. Rev. 1091, 1109 (2014).

[14] Taylor-Thompson, supra note 7, at 1138.

[15] Kedia, supra note 10, at 546.

[16] Taylor-Thompson, supra note 7, at 1144.

[17] Kedia, supra note 10, at 552.

[18] Joyce London Alexander, Aligning the Goals of Juvenile Justice With The Needs of Young Women Offenders: A Proposed Praxis For Transformational Justice, 32 Suffolk U.L. Rev. 555, 569 (1999).

[19] Godsoe, supra note 13, at 1102.

[20] Taylor-Thompson, supra note 7, at 1144.

[21] Kedia, supra note 10, at 557-58.

[22] Taylor-Thompson, supra note 7 at 1139.

[23] Alecia Humphrey, The Criminalization of Survival Attempts: Locking Up Female Runaways and Other Status Offenders, 15 Hastings Women’s L.J. 165. 169 (2004).

[24] Id. at 1093-1100.

[25] Id. at 1100-01.

[26] Id. at 1093.

[27] Id. at 1101.

[28] Id. at 1104.

Advertisements

Female Coaches Are On the Verge of Extinction in College Sports By Barry Burkett

Female Coaches Are On the Verge of Extinction in College Sports

By Barry Burkett

Over this past summer, our nation mourned the loss of the legendary women’s basketball coach and human being Pat Summit. Never settling for the status quo, she inspired young men and women to give the best of themselves in the classroom, their communities, and on the playing field.[1] Her intensity and competitiveness were unrivaled by any coach whether male or female, proven by her eight national championship victories at the University of Tennessee. [2]

We have seen the impact that women in head coaching positions have made in their respective sports and the NCAA in general. So, the big question to ask now is: Why do we not see more women coaching on the sidelines at the collegiate level? Unfortunately, some women who continue to ask this question and challenge the current structure of collegiate athletics are either labeled as feminists or ignored. Now, it is time for men as well to start challenging colleges and universities to stop brushing this question aside and address the inequities faced by women who seek jobs in coaching or those already situated in coaching positions.

It is unacceptable that this problem persists because Title IX of the Education Amendments of 1972 is in place to prevent gender inequities that women face in educational institutions.[3] From a positive perspective, Title IX has been powerful for female student-athletes in their pursuit to make huge strides in collegiate athletics. As of 2015, around 209,472 female student-athletes are competing in collegiate athletics[4] compared to less than 30,000 in 1972[5] and this number will continue to climb. For female coaches, the inverse has actually happened. Since 1972, the number of women in head coaching positions has decreased from 90 percent to 40.2 percent, and only 43 percent of women’s teams are coached by women.[6] In fact, for all the college hoops fan who watched the 2016 NCAA Women’s Division I Basketball Tournament, you may have noticed that all of the teams that advanced to the final four were coached by men.[7] These are not the only top programs that have male coaches hoisting trophies for women’s teams, click here to see what some of the other top Division I athletic programs score in gender equity for coaching.[8]

Certainly, there is nothing wrong with male coaches aspiring to lead a team of young women. Nevertheless, there are inequities when our female coaches face strong barriers to entry if they want to coach for men’s teams and must clear huddles just to coach women’s teams.[9] It is true that a number of factors can be attributed to men making up the majority of the coaching positions for men’s and women’s teams than discrimination per se. Women’s sports have become more lucrative to men as schools create more employment opportunities and the earning potential continues to rise.[10] However, it would be naïve to deny that gender does not play a substantial factor in hiring decisions for athletic directors when only 20.3 percent of collegiate athletic directors are women.[11] Another justification for men dominating coaching positions that has been proposed for years is that women just do not have the same level of interest as men to coach.[12] This justification is definitely without merit given the growing participation rate for female student-athletes in collegiate athletics meaning female interest in coaching should be growing as well.

For the women already in head coaching positions, the current system is far from being a utopia. Over the last decade, several women have claimed that they were fired for speaking up about their athletic department’s discriminatory practices like unequal pay or coaching standards compared to their male counterparts.[13] A recent illustration is the former University of Iowa’s hockey coach Tracey Grisbaum who was fired for the alleged verbal abuse of two female student-athletes although there was “insufficient evidence to substantiate a violation of university policy”.[14]

Grisbaum has a pending lawsuit against the University of Iowa claiming gender discrimination, but the pending Title IX lawsuit filed by four of her former players against the university may prove more groundbreaking for collegiate athletics.[15] The players assert that firing a female coach for using the exact same coaching methods as a male coach compromises the right of female student-athletes to receive the same experience as male athletes due to their sex and/or their coach’s sex.[16] Not only are they brave, these young women are playing an instrumental role in the push for equality in collegiate athletics by raising awareness regarding the different standards set for female coaches to actually coach their players.[17]

Finally, some people may question why increasing the number of women in coaching positions matters. There are several reasons but I will only highlight one. Today, the same inequities that exists in athletics and coaching, like unequal pay and opportunities to lead, are true for women in other male-dominated industries as well where the status quo continues to be accepted. If our colleges and universities can come together and work toward shattering the status quo in collegiate athletics, which has historically been littered with gender stereotypes, there will be positive spillover effects for women in other professional industries.

As we watch our favorite college teams compete this year, we should support our female coaches just as we did the legendary Pat Summit and celebrate them for the competiveness that they contribute to collegiate athletics.

 

[1] Kate Fagan, Whether or Not You Played for Her, Pat Summit Inspired a Generation of Basketball Players, Espn: Espn W (June 28, 2016), http://www.espn.com/womens-college-basketball/story/_/id/16519567/pat-summitt-inspired-generation-basketball-players.

 

[2] Id.

 

[3] Title IX, Education Amendments of 1972, 20 U.S.C. § 1681 (1972) (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…”).

 

[4] Sports Sponsorship and Participation Research, Nat’l Collegiate Athletic Ass’n, http://www.ncaa.org/about/resources/research/sports-sponsorship-and-participation-research (last visited Sept. 18, 2016).

 

[5] Title IX and Athletics Proven Benefits, Unfounded Objection, The Nat’l Coal. For Women And Girls In Educ. 2 (2012), http://www.ncwge.org/TitleIX40/Athletics.pdf.

 

[6] Mary Pilon, Less Than Half of Women’s College Sports Teams Are Coached by Women, Fortune (September 14, 2015), http://fortune.com/2015/09/14/womens-college-sports-coaches/.

 

[7] John Walters, You’ve Got Male: For the First Time, Only Men Are Coaching the Women’s Final Four Teams, Newsweek (March 30, 2016), http://www.newsweek.com/2016/04/15/youve-got-male-first-time-only-men-coaching-womens-final-four-teams-442213.html.

 

[8] Annie Brown, A Man’s Game: Inside the Inequality that Plagues Women’s College Sports, Reveal (May 5, 2016), https://www.revealnews.org/article/a-mans-game-inside-the-inequality-that-plagues-womens-college-sports/.

 

[9] Erin E. Buzuvis, Barriers to Leadership for Women in College Athletics, Introduction to Intercollegiate Athletics, at 275-76 (Eddie Comeaux, ed., 2015).

 

[10] Pilon, supra note 6.

 

[11] Alexandria Vollman, Female Athletic Directors: A Scarce but Positive Influence, Insight Into Diversity, http://www.insightintodiversity.com/female-athletic-directors-a-scarce-but-positive-influence/ (last visited Oct. 19, 2016).

 

[12] Buzuris, supra note 9, at 281.

 

[13] Brown, supra note 8.

 

[14] Brown, supra note 8.

 

[15] Kate Fagan, Why the Iowa Field Hockey Title IX Complaint Is a Huge Deal, Espn: Espn W (Feb. 5, 2015), http://www.espn.com/espnw/news-commentary/article/12283119/why-iowa-field-hockey-title-ix-complaint-huge-deal.

 

[16] Id.

 

[17] Id.

 

Lack of Anti-SLAPP Legislation Prevents Environmental Justice in Alabama by Gonzalo E. Rodriguez

Lack of Anti-SLAPP Legislation Prevents Environmental Justice in Alabama

by Gonzalo E. Rodriguez

 

On December 22, 2008, the Kingston Fossil Plant–a coal-burning power plant operated by the Tennessee Valley Authority–became the site of what experts coined “the largest environmental disaster of its kind.”[1] The containment dike of a waste landfill collapsed, releasing 5.4 million cubic yards of coal ash–a coal-burning byproduct containing carcinogenic toxics such as mercury, cadmium, and arsenic, which can pollute both water and air.[2] Nearby towns were forced to evacuate, the delivery of electricity and gas was disrupted, and 300 acres of the Watts Bar Reservoir were covered with toxic sludge.[3]

 

In 2010, the Environmental Protection Agency, tasked with overseeing the coal ash cleanup efforts, identified the Arrowhead Landfill as the ideal disposal site for the toxic sludge.[4] Approximately three million cubic yards of coal ash were to be transported 350 miles from Kingston, TN, a predominantly white town, to Uniontown, AL, a poor and over 91 percent black town in the Black Belt.[5] Concerned for their well-being and with the intent to oppose the decision to turn their town into a toxic dumpsite, several Uniontown residents formed Black Belt Citizens Fighting for Health and Justice.[6]

 

On April 6, 2016, Green Group Holdings, LLC, and Howling Coyote, LLC, owners and operators of the Arrowhead Landfill, filed a complaint before the District Court of the Southern District of Alabama against Black Belt Citizens and its members.[7] The complaint sought $30 million in damages for libel and slander, alleging that certain posts published in Black Belt Citizens’ Facebook page were false and defamatory.[8] This lawsuit was filed as a result of Black Belt Citizens’ refusal to enter into a proposed settlement offered by Green Group.[9] The proposed settlement stipulated that Green Group would not bring legal action against the Uniontown residents in exchange for access to their electronic devices and access to the group’s social media pages.[10] The proposed settlement would have also required Black Belt Citizens to disclose information about their membership, release all communication with all other environmental groups, and the withdrawal of a pending Title VI claim filed in connection to the landfill permit application.[11]

 

These types of legal actions have become so commonplace as to earn their own catchy acronym: SLAPPs–Strategic Lawsuits Against Public Participation. The purpose of a SLAPP is simple: to “deny vocal citizens their constitutional right to petition the government.”[12] While many states have passed anti-SLAPP statutes to prevent this sort of coercion, Alabama remains silent.[13] This silence not only jeopardizes the Constitutional speech protections of Uniontown residents, but potentially the very health and well-being of every Alabamian.

 

The Anatomy of a SLAPP

 

SLAPPs are frivolous lawsuits often filed by large organizations with deep pockets in order to silence citizen groups whose political activism threatens the organization’s business interests.[14] Typically, SLAPPs involve legal claims such as libel or slander, conspiracy, or a tort action for economic interference.[15] The ultimate goal of a SLAPP is not to seek judicial remedy, but rather to send a message to activists: “that there is a ‘price’ to pay for speaking out politically.”[16] As George Pring–one of the scholars who coined the term–said, the price paid by SLAPP defendants is “a multimillion-dollar lawsuit and the expenses, lost resources, and emotional stress such litigation brings.”[17] This price is not only paid by the immediate defendants to a SLAPP but also by the public at large, as the looming threat of legal action is intended to have a chilling-effect on public participation.[18]

 

Block and Counter: Anti-SLAPP and SLAPPback Statutes

 

A majority of states have enacted statutes aimed at protecting private individuals and citizen groups from SLAPPs. Recognizing that the inherent danger of SLAPPs lays in their ability to force defendants into costly litigation, Anti-SLAPP statutes allow defendants to file a special motion to strike the complaint.[19] Once the defendant files the special motion to strike, all discovery is suspended–absent a showing of good cause by the plaintiff–until the court rules on the motion.[20] Further, most Anti-SLAPP statutes provide for the recovery of attorney fees and costs to a prevailing SLAPP defendant.[21]

 

California, often regarded as having the strongest Anti-SLAPP protections, also provides defendants with a proverbial sword. Intended to deter SLAPP plaintiffs from bringing such actions in the future, a prevailing SLAPP defendant may file a SLAPPback action for punitive damages.[22] SLAPPback awards have been anything but nominal. In the case of a hospital worker who was SLAPPed for criticizing the incinerator operations of an infectious-waste disposal company, the jury awarded punitive damages of $86.5 million.[23]

 

Insufficient Measures: The Alabama Litigation Accountability Act (“ALAA”)

 

In 1987, the Alabama legislature passed the ALAA, empowering courts to award attorney’s fees and costs against an attorney or party who brings an action “without substantial justification.”[24] The ALAA, however, fails to protect private individuals and citizen groups from SLAPPs for several reasons. First, a SLAPP defendant may not receive ALAA relief until the lawsuit is adjudicated.[25] This leaves SLAPP defendants who do not possess sufficient resources to mount a legal defense no option but to hope for benevolent pro-bono counsel to save the day. Second, an award under the ALAA depends on an affirmative finding by the court that the plaintiff’s claim was asserted “without substantial justification.”[26] This requirement focuses on the plaintiff’s motive, instead on protecting the SLAPP defendant’s First Amendment rights.[27] Lastly, the mere threat of attorneys’ fees may ultimately be a reasonable business cost for the SLAPP plaintiff to bear in exchange for discouraging future public participation.

 

Environmental Injustice: Maintaining the Status Quo

 

In Uniontown, a town with barely 2,500 residents and a median income per capita of $8,000,[28] a $30M lawsuit stands as a reminder of the State’s failure to protect the rights of the most vulnerable. Residents of frontline communities such as Uniontown may not have the financial wherewithal nor the political power to influence the State legislature. Our legal and regulatory framework provides these individuals certain avenues through which they may demand their right to breathe clean air, drink water free of deadly contaminants, and raise their children in a safe environment. Yet, without protection from SLAPPs, the voices of frontline communities are silenced. Anti-SLAPP protections stand for the proposition that private individuals and citizen groups should be protected from harassment and intimidation when voicing their concerns in regards to matters of public interest. These protections are particularly crucial to frontline, low-income communities of color, who are often the unwilling hosts of toxic waste dumps and “bear the most severe consequences of environmental degradation and pollution.”[29]

 

“We are tired of being taken advantage of in this community. The living around here can’t rest because of the toxic material from the coal ash leaking into creeks and contaminating the environment, and the deceased can’t rest because of the desecration of their resting place.”[30] Even though Green Group claims this statement to be false and defamatory,[31] the everyday impacts that the coal ash landfill has had on Uniontown residents are undeniable. As Esther Calhoun, a life-long resident of Uniontown and defendant in the lawsuit said: “It used to be that living in the country you could sit on the front porch, hang your clothes out to dry, [and] barbecue. All that has changed since the landfill.”[32]

[1] Shaila Dewan, Tennessee Ash Flood Larger Than Initial Estimate, N.Y. Times (Dec. 26, 2009), http://www.nytimes.com/2008/12/27/us/27sludge.html.

[2] Coal Ash Basics, EPA, https://www.epa.gov/coalash/coal-ash-basics (last visited Oct. 4, 2016).

[3] Sites in Reuse – TVA Kingston Removal Site, EPA, https://semspub.epa.gov/work/04/11015034.pdf (last visited Oct 4, 2016).

[4] Frequently Asked Questions Regarding the Disposal of Coal Ash at the Perry County Arrowhead Landfill – Union Town, Alabama, EPA, https://archive.epa.gov/pesticides/region4/kingston/web/pdf/tvaperrycountyfaq.pdf (last visited Oct. 4, 2016).

[5] Matthew Teague, Opponents of Huge Alabama Landfill Fight Company’s $30m Defamation Suit, The Guardian (June 2, 2016), https://www.theguardian.com/us-news/2016/jun/02/uniontown-alabama-landfill-defamation-suit-green-group.

[6] See Our History, Black Belt Citizens, http://blackbeltcitizens.wixsite.com/blackbeltcitizens/about_us (last visited Oct. 4, 2016).

[7]  Complaint, Green Group Holdings, LLC. v. Schaeffer, No. 1:16-cv-00145 (S.D. Ala. Apr. 6, 2016).

[8] See Id. at 11-14.

[9] Id.

[10] Green Group Holdings v. Schaeffer – Proposed Settlement Previously Offered to Defendants at 3, ACLU, https://www.aclu.org/other/green-group-holdings-v-schaeffer-proposed-settlement-previously-offered-defendants (last visited Oct. 4, 2016).

[11] Id. at 3-4.

[12] Victor J. Cosentino, Strategic Lawsuits Against Public Participation: An Analysis of the Solutions, 27 Cal. W. L. Rev. 399, 400 (1991).

[13] See SLAPP Stick: Fighting Frivolous Lawsuits Against Journalists, The Reporters Comm. for Freedom of the Press 1, 4 (2011), http://www.rcfp.org/rcfp/orders/docs/ANTISLAPP.pdf.

[14] See Consentino, supra note 12 at 402.

[15] Id. at 401.

[16] George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 6 (1989).

[17] Id.

[18] Consentino, supra note 12 at 404-05.

[19] The defendant may make a special motion to strike the complaint, unless the court determines that the plaintiff has established a probability that the claim will prevail. Additionally, Anti-SLAPP statutes set time limits for the court to rule on the special motion to strike. See, e.g., LSA-C.C.P. Art. 971(A)(1); Cal. Civ. Proc. Code § 425.16(g); Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003, 005 (referring to the motion as a “motion to dismiss”).

[20] See, e.g., LSA-C.C.P. Art. 971(D); Cal. Civ. Proc. Code § 425.16(b)(1); Tex. Civ. Prac. & Rem. Code Ann. § 27.003(c).

[21] See, e.g., LSA-C.C.P. Art. 971(B); Cal. Civ. Proc. Code § 425.16(c)(1); Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1).

[22] Cal. Civ. Proc. Code § 425.18.

[23] George W. Pring et al., “Strategic Lawsuits Against Public Participation (“SLAPPs”): An Introduction for Bench, Bar, and Bystanders, 12 Bridgeport L. Rev. 937, 955 (1992).

[24] Ala. Code § 12-19-272(a).

[25] See Id. (stating that “the court shall award, as part of its judgment and in addition to any other costs assessed, reasonable attorneys’ fees and costs[.]”) (emphasis added).

[26] Ala. Code § 12-19-272(a).

[27] See Carol Rice Andrews, Motive Restrictions on Court Access: A First Amendment Challenge, 61 Ohio St. L. J. 665,722 (2000).

[28] Matthew Teague, Opponents of Huge Alabama Landfill Fight Company’s $30m Defamation Suit, The Guardian (June 2, 2016), https://www.theguardian.com/us-news/2016/jun/02/uniontown-alabama-landfill-defamation-suit-green-group.

[29] Rachel Massey, Environmental Justice: Income, Race, and Health, Global Dev. and Env’t Inst. – Tufts Univ. page number? http://www.ase.tufts.edu/gdae/education_materials/modules/Environmental_Justice.pdf (last visited: Oct. 5, 2016).

[30] Id. (statement by Benjamin Eaton, defendant in the lawsuit).

[31] Complaint, Green Group Holdings, LLC. v. Schaeffer, No. 1:16-cv-00145 at 8 (S.D. Ala. Apr. 6, 2016).

[32] Teague, supra note 28.

Medicaid Waivers: Internal Threats to the Entitlement By Zachary King

Medicaid Waivers: Internal Threats to the Entitlement

By Zachary King 

Over fifty years ago, the new Medicaid statute created a statutory right to health insurance coverage for some of the most medically vulnerable populations of Americans, even for those without the financial ability to obtain such coverage in the private insurance market.[1] Over the past decade, Congress and the Obama administration have taken steps to increase access to health insurance even further. The Affordable Care Act (ACA) effected much of this change, revolutionizing the private health insurance market for the middle class.[2]

The ACA also included a new Medicaid eligibility category, guaranteeing medical assistance to all Americans below an income threshold.[3] In 2012, however, the Supreme Court gutted this provision, finding that the new eligibility category illegally coerced states into covering populations against their will.[4]

Since NFIB, many states have tried to leverage the Centers for Medicare and Medicaid Services (CMS) into approving illegal funding for programs that are advertised as alternatives to Medicaid expansion.[5] These programs are usually state demonstration plans, or “§ 1115 waivers” (so called because they were passed as § 1115 of the Social Security Act).[6] However, states are using  demonstration plans in ways that are clearly contrary to the program’s purpose of providing coverage to medically and financially needy individuals and families, and CMS often faces a choice between an illegal demonstration plan covering part of the population to a less than ideal extent, or no Medicaid coverage at all for that population.

State Demonstration Plans

Demonstration plans allow states to receive federal matching funds to test new mechanisms and aspects of Medicaid while ignoring some of the program’s usual requirements. Plans can only ignore certain Medicaid requirements.[7] Further, plans are only permissible if they are “likely to assist in promoting the objectives of” the Medicaid program.[8] Because federal funding is involved, CMS oversees demonstration plans, and plans require the bureau’s approval.

State demonstration plans are not ACA Medicaid expansion. Medicaid expansion is a specific program creating an eligibility category for people living below 133 percent of the federal poverty level (FPL) who are not otherwise eligible for Medicaid, as described above. The federal government pays almost all of the cost for state implementation of Medicaid expansion.[9] In contrast, federal matching for state demonstration plans are negotiated between CMS and the state government, but the state can expect to be responsible for a greater portion than if they implemented Medicaid expansion.

Dangerous Precedents and Recent Developments

Some demonstration plans proposed by states include waiver requests for some of Medicaid’s most fundamental requirements; even more disturbingly, CMS has approved some of these requests.[10] Waivers that CMS has approved negate the requirements that eligible individuals be enrolled in the program with reasonable promptness, that benefits be comparable for all enrollees, and that enrollees living in poverty not be charged premiums.[11]

Indiana, which received approval for the above waivers for its Healthy Indiana 2.0 program, previously had a state demonstration project in place with fewer waivers.[12] It is possible that the political threat of discontinuing the existing program unless CMS approved additional waivers proved too serious for the bureau to enforce the law and deny the proposal.

Two states recently submitted proposals similar to Indiana’s. The Kasich administration in Ohio proposed a plan, the terms of which were largely dictated by the state legislature, that CMS rejected this month. The Healthy Ohio Plan included requests for waivers of Medicaid’s requirements that eligible applicants be enrolled into the program with reasonable promptness and that they have the opportunity for a fair hearing, among others.[13] Combined with eligibility provisions, these requirements form the backbone of due process in the Medicaid application and enrollment processes. [14] Without the protection these requirements provide, states would have no statutory obligation to enroll people eligible for Medicaid, despite the clear intent of the statute.[15]

Fortunately, CMS rejected Ohio’s proposal, and at least some of the rights inherent in the Medicaid program remain intact.[16] Ohio is notable because it has implemented Medicaid expansion, and rejection of the Healthy Ohio Plan had no effect on the expansion.[17] So, Ohio’s proposed demonstration plan would have rolled back Medicaid coverage, rather than covering more people, and CMS’s rejection protected existing enrollees.

Kentucky also recently proposed a new demonstration plan, which included a request for approval of a work requirement for enrollees to enjoy the full benefits of the program (effectively a waiver of 42 U.S.C. § 1396a(a)(10)(A)).[18] At present, CMS has not decided to approve or disapprove Kentucky’s proposal. Like Ohio, Kentucky has expanded Medicaid.[19] However, Kentucky’s governor ran on the platform of repealing the expansion.[20] So, CMS must choose between approving dangerous waivers, or likely sitting by idly as thousands of Kentuckians lose their health insurance coverage.

Constitutional Overcorrection

If the NFIB Court feared coercion of the state government, they have created an environment that allows for coercion of the federal government. The NFIB decision was meant to allow states to decide whether their Medicaid programs would cover the new statutory population (those with household income below 133% FPL). It did not remove the new population from the statute, and programs are required to cover all members of a statutorily described eligibility group.[21] However, states are able to use demonstration plans that are clearly contrary to the objective of the Medicaid program to cut back coverage, or impose cost and work requirements on enrollees. While this goes on, CMS must either sign its approval of the corruption of a successful, decades old program or sit by helplessly as it watches Medicaid reform, which is still the law of the land, simply disappear state-by-state.

[1] See generally Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286 (codified as amended in scattered sections of 42 U.S.C.).

[2] See generally Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat. 119 (codified as amended in scattered sections of 26 and 42 U.S.C.)

[3] 42 U.S.C. § 1396(a)(10)(A)(i)(VIII) (2015).

[4] See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2607 (2012) (“[T]he Secretary cannot apply § 1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion.”).

[5] See, e.g., H.B. 64, 131st Gen. Assemb. §§ 5166.40-409 (Ohio 2015).

[6] See generally Leonardo Cuello, Medicaid Expansion Section 1115 Demonstrations Update, Health Advocate, Aug.  2016, http://www.healthlaw.org/publications/search-publications/2016-8-health-advocate#.V9tpma2lxR8 (follow “Download Publication” hyperlink).

[7] See 42 U.S.C. § 1315(a)(1) (2014).

[8] 42 U.S.C. § 1315(a) (2014).

[9] 42 U.S.C. § 1396d(y) (2012).

[10] See Cuello, supra note 6, at 1-2.

[11] Id.

[12] Maureen Groppe, Indiana lawmakers OK bill to protect Healthy Indiana Plan, Indy Star (Mar. 11, 2016), http://www.indystar.com/story/news/politics/2016/03/10/indiana-lawmakers-ok-bill-protect-healthy-indiana-plan/81607038/.

[13] See Ohio Dep’t of Medicaid, Healthy Ohio Program 1115 Demonstration Waiver 39 (2016), http://www.medicaid.ohio.gov/RESOURCES/PublicNotices/HealthyOhioHSA.aspx (follow the “Healthy Ohio Program 1115 Demonstration Waiver – Final Submission). See generally 42 U.S.C. § 1396a(3), (8) (2015).

[14] See 42 U.S.C. § 1396a(3), (8), (10) (2015).

[15] National Health Law Program, Comment Letter on Healthy Ohio Program Section 1115 Demonstration (Aug. 5, 2016), http://www.healthlaw.org/publications/search-publications/comments-healthy-ohio-program-2016#.V9wxk62lysk (follow the “Download Publication hyperlink). [then proceed with the quote

[16] See Jim Provance, U.S. rejects Ohio proposal to require Medicaid premiums, Toledo Blade (Sept. 9, 2016), http://www.toledoblade.com/Medical/2016/09/09/U-S-rejects-Ohio-proposal-to-require-Medicaid-premiums.html.

[17] Status of State Action on the Medicaid Expansion Decision, Kaiser Family Found (July 7, 2016), http://kff.org/health-reform/state-indicator/state-activity-around-expanding-medicaid-under-the-affordable-care-act/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D.

[18] See Ky. Dep’t of Medicaid Services, Kentucky HEALTH 26, 37 (2016), http://kff.org/medicaid/fact-sheet/proposed-changes-to-medicaid-expansion-in-kentucky/ (Kentucky follow the “waiver application” hyperlink).

[19] Status of State Action on the Medicaid Expansion Decision, supra note 17.

[20] Gov. Matt Bevin: Medicaid overhaul will be in place by start of 2017, Lexington Herald-Leader (Dec. 30, 2015), http://www.kentucky.com/news/politics-government/article52259315.html#storylink=cpy.

[21] 42 U.S.C. § 1396a(a)(10)(A)(i) (2015).

%d bloggers like this: