Welcome! Available online and to our email subscribers, The Reporter supplements the Bazelon Center for Mental Health Law’s Action Alerts and Updates by providing a periodic, in-depth bulletin on significant policy and law developments that affect people with mental disabilities.
Vol. XI, No. 2, April 10, 2012
Advocates Press on in New York, Supreme Court Scenarios and Ryan's Redux
In This Issue:
It has been a very busy spring. Breaking news on our DAI case has the mental health and disability worlds buzzing with questions about next moves, literally, for thousands of people with mental disabilities in New York State. Again, the U.S. House of Representatives recently voted along party lines to pass a highly controversial budget resolution, which would only worsen the real-life struggles of many Americans. In the same week, the U.S. Supreme Court's three days of marathon oral arguments fueled much speculation about the future of the nation's two-year-old health reform law, the Affordable Care Act. As these and other stories in this issue of The Reporter illustrate, our work has only just begun.
On a technical ground, the Court of Appeals for the Second Circuit vacated a ruling that New York’s practice of segregating thousands of people with mental illnesses in large adult homes constitutes discrimination and violates the Americans with Disabilities Act (ADA).
In Disability Advocates, Inc. (DAI) v. Cuomo, the Second Circuit held that plaintiff DAI did not have “standing” to bring the lawsuit. The Bazelon Center serves as counsel in this case, along with DAI, MFY Legal Services, Inc., New York Lawyers for the Public Interest, the Urban Justice Center, and Paul, Weiss, Rifkind, Wharton & Garrison, LLP.
The Second Circuit acknowledged that its decision is unlikely to be the judiciary’s last word on the issue, which could end up back before U.S. District Judge Nicholas Garaufis. “Should that situation arise,” the appellate court wrote, “we are confident that the experienced and able district judge, as a consequence of his familiarity with prior proceedings, can devise ways to lessen those burdens and facilitate an appropriate, efficient resolution.”
In the decision on appeal, Judge Garaufis concluded that over 4,000 people with mental illnesses who live in New York City’s adult homes are being denied the opportunity to live in their own homes. Although the Second Circuit vacated Judge Garaufis’ decision, it did not question his findings that adult homes are institutions and that New York State is violating the ADA.
The Bazelon Center and our partners will work with the state to end the unnecessary institutionalization of adult home residents, hopefully without the need for future litigation.
From March 26 to 28, the Supreme Court heard oral arguments in Florida v. U.S. Department of Health and Human Services (HHS) on the constitutionality of the Affordable Care Act (ACA), including the ACA's expansion of Medicaid eligibility. On behalf of 78 organizations and former Surgeon General David Satcher, the Bazelon Center for Mental Health Law submitted an amicus (friend of the court) brief on this issue. In light of the justices' questions and comments during the hearings, it appears that several of the justices—including swing voter Anthony Kennedy—are seriously considering the state's arguments for striking down the Medicaid expansion. Other justices expressed skepticism about the state's arguments.
There is some cause for concern about the future of the Medicaid expansion. However, it is important to remember that five trial courts and four appellate courts have reviewed this question on its way to the Supreme Court, and none of them found that the expansion was unconstitutionally coercive. Moreover, according to a recent poll by the Kaiser Health Foundation, 70% of Americans support this part of the ACA.
Although more controversial among the general public, the ACA's "individual mandate" that every American obtain health coverage is also strongly supported by legal precedent. If, however, the Supreme Court strikes down the individual mandate, the Medicaid expansion–even if held to be soundly constitutional–could also fall. That is because the Court may determine that the individual mandate is so integral to the entire ACA that without it, the law’s more popular provisions cannot remain intact.
A majority decision that the individual mandate is unconstitutional and not severable from the rest of the law could undo all or some of the rest of the ACA. This could include the Medicaid expansion, the new bans on denying coverage or charging higher premiums to people with preexisting conditions and the provision allowing parents to maintain their adult children in their insurance plans up to age 26.
A ruling that any part of the ACA is unconstitutional will underscore the critical importance of elections and of the presidential power to nominate federal judges. In addition, we will all have our work cut out for us when the time comes to help Congress craft another health reform law that adheres to the Court’s new requirements. For more information, see our online resources on Florida v. HHS, health reform and judicial nominations.
On March 29, the U.S. House of Representatives approved Budget Chairman Paul Ryan’s (R-WI) Fiscal Year (FY) 2013 Budget Resolution (H. Con. Res 112), by a near-party-line vote of 228-191 (all Democrats and 10 Republicans voted against the measure). The plan is similar to Ryan’s FY 2012 budget, which the House passed last year. The FY 2013 Ryan budget calls for $5.3 trillion in cuts over 10 years, as compared to President Obama’s FY 2013 budget.
The plan would achieve these cuts by making major structural changes to Medicaid, Medicare Supplemental Security Income (SSI) and other important federal programs. More than 65% of the cuts would come from programs serving lower-income Americans. The plan would limit discretionary spending to $1.028 trillion in FY 2013. This is much stricter than the already strict funding caps Congress and the president agreed to in last summer’s deficit spending law, the Budget Control Act of 2011. The budget plan would also repeal the health reform law, the Affordable Care Act (ACA).
Proposed Repeal of the Affordable Care Act
The ACA celebrated its second anniversary on March 23 and has already provided a host of benefits to Americans, including allowing young adults to remain covered on their parents’ health insurance plans through age 26. Eliminating the law, as proposed under the Ryan budget, would also eliminate ACA's many consumer protections, such as the prohibition on pre-existing condition exclusions and the expansion of Medicaid to people with incomes up to 133% of the federal poverty level starting in 2014. The Medicaid expansion will provide health coverage for more than 17 million Americans. For more information, see the Bazelon Center report The Affordable Care Act at Year Two.
Proposed Changes to Medicaid
Medicaid is a critical safety-net program for low-income Americans, seniors and people with physical and mental disabilities. In addition, Medicaid is the primary funder of vital community-based mental health services that help people live full lives in the community and avoid costly and often traumatic institutionalization. Yet, the Ryan budget proposes deep cuts in Medicaid, $810 billion over ten years, and proposes additional "savings" of $1.6 billion by eliminating the ACA's Medicaid expansion. The budget proposal also includes harmful changes to Medicaid's financing structure by converting it to a block grant to states.
For more information, see the Consortium for Citizens with Disabilities letter and the March 20 Bazelon Center statement, House Republican Budget Proposal a Path to Instability, Not Prosperity. Both express opposition to structural changes to Medicaid and cuts that would jeopardize millions of low-income Americans' ability to obtain needed health coverage.
Proposed Changes to Children's SSI and Other Crucial Supports
The House-passed proposal would cut low-income children’s Supplemental Security Income (SSI) disability supports significantly, totaling $3.5 billion over 10 years, by creating a sliding scale benefit for families with more than one child. SSI is a lifeline for low-income families struggling to care for a child or youth with a severe physical and/or mental disability. This resource helps to keep families together and helps to keep them from falling deeper into poverty. For more information, see the disability and child advocacy groups' letter opposing these proposed cuts and House Report 112-421.
In addition, starting in 2023, the Ryan budget would make fundamental changes to Medicare’s current fee-for-service system by replacing the current guarantee of coverage for new beneficiaries with a premium-support approach. The changes would include fixed-amount payments to help beneficiaries pay for coverage from private insurance companies or traditional Medicare. This proposal, however, would shift more costs to beneficiaries. Additionally, the proposal would raise the eligibility age for Medicare from 65 to 67 by 2034. The Ryan budget would also exacerbate the current “doughnut hole” gap in Medicare prescription drug coverage by repealing the ACA, which otherwise would phase out this problem by 2020.
The House-passed budget plan would convert the Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps) into a block grant to states by 2016. Furthermore, the proposal would cut SNAP by over $134 billion over a ten year period.
A budget resolution is a framework that guides powerful congressional committees in their work of writing the laws of the country and making important spending decisions. Though the budget resolution does not have the effect of regular legislation, it can still have a very real effect on federal "authorizing" legislation (a.k.a. non-spending legislation) and "appropriations" (a.k.a. spending legislation).
The Ryan budget is not likely to advance in the Senate, which is also not expected to craft its own budget resolution this year because of the agreements forged in last year's Budget Control Act. Thus, lawmakers will need to bridge the gap between the enacted Budget Control Act and the House-passed Ryan budget in order to advance appropriations bills this year. This could result in another lengthy process this session.
Advocacy throughout the appropriations process is critical to ensure the best possible outcomes in this tight fiscal climate. Additionally, advocates are encouraged to stay informed of the work of authorizing committees that have jurisdiction over key programs targeted by the Ryan budget. See the letter from civil rights groups opposing the Ryan budget.
Resources from the Center on Budget and Policy Priorities
Changes in Medicaid Eligibility
On March 16, the Centers for Medicare and Medicaid Services (CMS), within the U.S. Department of Health and Human Services (HHS), released rules implementing changes to Medicaid eligibility and enrollment made by the Affordable Care Act (ACA). The ACA expands Medicaid eligibility to cover all Americans with incomes at or below 133% of the federal poverty level beginning in 2014.
CMS proposed rules in the summer of 2011 outlining how HHS intended to streamline Medicaid application and eligibility determinations. The rules proposed first determining applicants' eligibility based on income, without regard to other factors that may allow people to qualify under an existing optional Medicaid eligibility category, including disability. However, states can provide people who become newly eligible for Medicaid (because of the ACA's income eligibility changes) with a different, potentially more limited package of benefits than people who qualify under other categories. Applicants deemed eligible for Medicaid based on income would not be evaluated for eligibility under another category, and would be provided with benefits that are potentially more limited. Thus, advocates were concerned that the proposed rules' income-first approach to eligibility determinations would prevent some people from receiving the appropriate benefit package.
In response to comments submitted by the Bazelon Center and other advocates, CMS has now clarified in the final rule that people with disabilities, or who are in need of long-term care services and supports, may enroll in full Medicaid if eligible under an existing Medicaid eligibility category. This will help to ensure that they are enrolled in coverage that best meets their needs. While waiting for their eligibility to be determined based on disability or another category, people who are newly eligible for Medicaid under the ACA based on income may receive the more limited package of benefits intended for newly eligible individuals while alternative eligibility is being determined.
The final rule also underscores the importance of coordination across the states’ new Health Benefits Exchanges (the marketplaces through which individuals and small businesses can purchase health insurance coverage, Medicaid and the Children's Health Insurance Program (CHIP)). Under the rule, people will be able to use a single streamlined application process for both Medicaid programs and the Exchanges. The rule also ensures that states make eligibility determinations in a timely manner.
Improved Standards for Exchanges
In addition, CMS released a complementary final rule on the creation and operation of the Health Benefits Exchanges. This, too, follows proposed rules released in the summer of 2011. The final rule provides states with a structure to establish Exchanges, and outlines the way states will operate the Exchanges. Plans will need to meet certain standards to qualify for sale through the Exchanges, and the rule describes how eligibility determinations and enrollment in qualified health plans should occur.
The final Exchange rule includes a significant addition to the proposed regulation that represents another success for people with mental illnesses. In order to participate in state Exchanges, qualified health plans must maintain a network of providers that is sufficient to meet the needs of all enrollees. The rule explicitly states that this includes providers who specialize in mental health and substance abuse services. Network adequacy has been a perennial problem for Americans in need of mental health services, and the rule provides a welcome recognition of the importance of adequate access to mental health care.
The final rule also requires Exchanges to consult regularly with stakeholders, including advocates for hard-to-reach populations. This requirement explicitly mentions people with mental illnesses as a hard-to-reach population. Additionally, the rule requires states to cultivate partnerships with at least two organizations, one of which must be a community or consumer-focused non-profit organization, to serve as “navigators” to educate and assist consumers with the health insurance enrollment process.
These rules are an important step in fulfilling the promise of the ACA for people with mental illnesses. CMS issued several sections of each final rule as "interim final," with the opportunity for public comment by May 7.
Housing programs are currently in dire straits and under Rep. Paul Ryan’s (R-WI) budget plan, which recently passed in the House, things would only get worse. Last year, Congress increased the numbers of housing vouchers for the current fiscal year to reduce homelessness, especially among veterans. At the same time, Congress cut the administrative fees that pay for the staff to administer the vouchers and capital funds that keep buildings in decent repair. As a result, 18 public housing agencies (PHAs) have told the U.S. Department of Housing and Urban Development (HUD) that they are no longer financially capable of administering the Section 8 Housing Choice Voucher (HCV) program, according to the March 29 issue of Housing Affairs Letter. Section 8 provides tenant-based vouchers to extremely low-income individuals and is a critical housing assistance resource for people with mental illnesses, who face a disproportionate risk of homelessness compared to the general population.
Although HUD has yet to respond to requests for information regarding the 18 PHAs dropping out of the HCV program, HUD did issue a statement decrying the cuts to its programs in last year's budget when it submitted its 2013 budget proposal. "The Department believes that the Housing Choice Voucher program is at substantial risk in 2012 of numerous PHAs 'turning in the keys' and giving up administration of the HCV program due to the severity of the 2012 cuts," the statement reads.
HUD’s 2013 budget appropriations request described the need for additional funding: "In the month of January 2012 alone, 13 PHAs have had their programs transferred by HUD (or are in the process of having their programs transferred by HUD) to other agencies, as these agencies have determined they are unable to sustain operations in the coming year."
The Ryan budget proposes to cut spending on the program below its current level. This would have severe consequences for people who rely on the Section 8 HCV program, including many people with mental illnesses.
On March 8, the American Association of School Administrators (AASA) released “Keeping Schools Safe: How Seclusion and Restraint Protects Students and School Personnel.” The report quickly drew criticism from disability advocates supportive of enacting national minimum standards that would protect all students from the use of restraint and seclusion.
Among many troubling assertions in the report, disability advocates rejected the position that school staff are well trained in the appropriate methods of restraining or secluding students and that 99% of school personnel use seclusion and restraint safely and only when needed. In 2009, the General Accountability Office found hundreds of cases of alleged abuse and even deaths of children–most of them with disabilities–due to use of restraint and seclusion in schools. Currently, no federal laws regulate the use of restraint and seclusion in schools, and state laws vary widely.
See disability groups' letter criticizing this report and urging lawmakers to enact legislation currently before Congress.
On March 20, the Social Security Subcommittee of the House Ways and Means Committee held the third in a series of hearings examining Social Security Disability Insurance (SSDI). The Consortium for Citizens with Disabilities, of which the Bazelon Center is an active member, submitted comments to the subcommittee on how disability insurance eligibility decisions are made. For more information on the hearing, see the subcommittee advisory here.
The Commonwealth Fund issued a status report reviewing state progress on implementing the Affordable Care Act. See Implementing the Affordable Care Act: State Action on Early Market Reforms.
In early March, the Bazelon Center convened a planning meeting for participants in the Performance Improvement Project (PIP). The PIP explores ways to strengthen the role of community mental health agencies, by identifying and filling the gaps in mental health and related services that lead to police intervention. Since January 2010, we have been working with organizations in Travis County, TX; Allegheny County, PA; Wayne County, MI; Multnomah County, OR; and Westchester County, NY. Representatives from each of the five sites attended and discussed the progress they have made. See our PIP webpage for more information on the initiative.