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Three Micronesians living in Hawaii are asking the U.S. Supreme Court to hear their case about being denied health benefits by the state.
The appeal, which was submitted Sept. 9, is being described by attorneys for the plaintiffs as an urgent matter.
“We are hopeful that the court will understand that this is truly a matter of life and death for some of the class members,” said attorney Margery Bronster.
Paul Alston, another attorney in the case, agrees.
“Why should the court take this? The answer is very simple,” Alston said. “People are going to die if they implement Basic Health Hawaii. This is not something that we can simply ignore.”
“They” is the state of Hawaii and Basic Health Hawaii (BHH), a form of health coverage that limits patients to 10 days of inpatient hospital care a year, 12 outpatient visits per year and four prescriptions per month. The plan does not cover organ transplants or surgeries like heart surgery, and it covers dialysis only as an emergency service.
That’s particularly unfortunate for people from Micronesian islands who come to Hawaii seeking medical care. Many suffer from cancer, diabetes and reproductive abnormalities that have been linked to the effects of U.S. nuclear testing in the Marshall Islands between 1946 and 1958.
In 2010, the state designed BHH specifically for migrants from Micronesia who are allowed to live and work in Hawaii under treaties known as the Compact of Free Association (COFA). The island nations covered by this treaty include the Republic of Palau, the Republic of Marshall Islands and the Federated State of Micronesia.
The plaintiffs — Tony Korab, Tojio Clanton and Keben Enoch — are three COFA migrants who were previously eligible for medical benefits through Hawaii’s managed-care program “but were either enrolled in BHH or denied coverage altogether,” according to the petition to the high court.
According to the petition, the migrants “suffer from serious illnesses that could not be treated in their home countries and now, because of BHH, will not be adequately treated in Hawaii.” The petition continues:
For example, petitioner Tony Korab, a dialysis patient, was not able to receive the dialysis services and the numerous prescription medications he needs in his home country of the Marshall Islands. But because of his transfer to BHH, Mr. Korab could no longer afford all of his medications and was ineligible for a kidney transplant. Similarly, petitioner Tojio Clanton came to Hawaii to receive necessary dialysis and eventually underwent a kidney transplant. But because of his transfer to BHH, he had to stop taking necessary medications, went into kidney failure as a result, and had to spend two weeks in the hospital. Mr. Clanton used up all of his BHH-allotted doctor visits and could not afford to pay for further visits or medications.
The state, under the administration of then Gov. Linda Lingle, offered fewer benefits because the increase in COFA migrants in Hawaii — they currently number at least 12,000 — placed a burden on state resources estimated at about $100 million a year. The figure is 10 times larger than the amount reimbursed by the federal government.
Korab and the other petitioners filed suit in U.S. District Court in 2010 against the director of Hawaii’s Department of Human Services and the administrator of its medical-assistance division. They alleged that Hawaii violated the equal protection clause of the 14th Amendment by providing fewer health benefits to COFA residents than to citizens and to other legal aliens.
The case is today known as Korab v. McManaman because Pat McManaman is the current DHS director under the administration of Gov. Neil Abercrombie, which took the same position as the Lingle administration.
Korab v. McManaman eventually went to the 9th U.S. Circuit Court of Appeals, and in April of this year it ruled that the state is not required to fund Medicaid for migrants from the COFA nations.
The plaintiffs said they would appeal. Meanwhile, Attorney General David Louie said at the time that the state would continue to provide benefits to COFA residents “until a full and final resolution of the issues in Korab v. McManaman is reached.”
The attorney general’s office declined to comment on Friday.
Alston said the U.S. Supreme Court typically only accepts 100 writ of certiorari or writ petitions out of 5,000 submitted every year. But he believes Korab has a good chance of being selected, in no small part because the case is being helped by Kannon Shanmugam, an attorney with Williams & Connolly, a Washington, D.C., firm.
Shanmugam clerked for Supreme Court Justice Antonin Scalia, was an assistant to the Solicitor General in the Department of Justice and has argued 14 cases before the Supreme Court.
“He says this is the kind of case that attracts the court’s attention,” said Alston.
The Supreme Court begins its new term Oct. 1, and Alston said the court would probably decide on the cert petitions by the end of the year. The court’s term ends in June.
Meanwhile, even if the petition is not successful, the plaintiffs may be considering taking the case to the Hawaii Supreme Court, an action that could come as early as this month, possibly with the assistance of the attorney general.
Advocates for Hawaii’s Micronesian community are anxious that the issues facing them will be resolved soon.
“It’s time to grow up and acknowledge the reality and not play politics with this community,” said Victor Geminiani, executive director of the Hawaii Appleseed Center for Law and Economic Justice, which is also involved with Korab v. McManaman. “This is not an issue we can look the other way on. The have a legal right to be here, and they should have a moral right.”
Geminiani added: “We are all immigrants. These people are here to live — let’s accept that. And once you accept that, we ought to help to integrate them into our family.”