Bazelon Center Mental
Health Policy Reporter
Welcome
to the Bazelon Center Mental
Health Policy Reporter. Available exclusively online and to
our email subscribers, the Reporter supplements the Bazelon Center's
Action Alerts by providing a periodic bulletin on significant
policy developments that affect people with mental illnesses.
Volume VI, No. 4, August
6, 2007
Congress Gets Busy on Issues Important to People with Mental Disabilities;
CMS Issues Final Medicaid Rules for Documenting Citizenship
In this issue:
Action Alert
Newsbyte
Despite Congress’ intense focus on the Iraq war, immigration
and the Justice Department, people with disabilities could benefit
from a spate of recent legislation—bills that could improve
their access to needed healthcare and income support and restore
protections against discrimination based on disability. Now comes
the August recess, when advocates have a chance to meet Senators
and Representatives at home to urge their support of these bills
(see the What You Can Do section at the end of each description).
Also positive is the loosening of citizenship-documentation requirements
for Medicaid eligibility, reflecting thousands of public comments.
Thank you, advocates! Still, there are thorns among summer’s
roses: proposed ID requirements for low-income people who seek
housing assistance—a major barrier for homeless people. Action
is needed to delete this amendment to an important housing bill.
Mental Health Parity Edges Closer
Enactment of parity for mental health and substance abuse coverage
in the group health insurance market grew closer in the House
with the Education and Labor Committee’s 33-9 approval of the
Paul Wellstone Mental Health and Equity Addiction Act of 2007 (H.R.
1424). Members rejected by 16-27 an effort to substitute an amended
version of the (weaker) Senate bill (S. 558, sponsored by Senators
Edward Kennedy, Pete Domenici and Mike Enzi). (See coverage in
the Bazelon Center’s February 2007 Mental
Health Policy Reporter.)
Two other committees (Ways and Means and Energy
and Commerce) share jurisdiction over H.R. 1424 and it is unclear
when
they will consider the legislation. A recent cost estimate
by the consulting firm Milliman, Inc. found that the cost for
employers
would increase by only 0.6 percent or less if H.R. 1424 becomes
law.
For additional information see the press
statement by the chairman
of the House committee.
Meanwhile, S. 558 continues its struggle to Senate
passage. Prior to adjournment for the August recess, sponsors unsuccessfully
sought to bring a modified version to the floor for passage.
The modification
drops language that would have preempted state parity laws,
vastly
improving the Senate bill.
What You Can Do
Contact your Senators and Representative and urge them to support
enactment of comprehensive mental health parity legislation
that will truly end the health insurance discrimination that
today
deprives children and adults of needed mental health treatment.
SCHIP Would Expand Children’s Healthcare
Despite Presidential threats of a veto, the House and Senate
both succeeded in passing slightly differing legislation to
renew the
State Children’s Health Insurance Program (SCHIP), despite
efforts by some Republicans to derail the process through committee
stall tactics and alternative proposals and amendments that
would undermine access to healthcare for uninsured children
in America.
The Senate bill (H.R. 970) passed by 68-31 on August 2. It would
provide $35 billion over five years and includes mental health
parity benefits for children enrolled in SCHIP plans. The parity
provisions would prohibit discriminatory limits on mental health
care in SCHIP plans by directing that any financial requirements
or treatment limitations that apply to mental health or substance
abuse services be no more restrictive than those that apply
to other medical services. It also eliminates a provision in
current
SCHIP law that allows states to lower the amount of mental
health coverage they provide to children in SCHIP to 75 percent
of the
coverage provided in the benchmark plans listed in the statute
as models for states to use in developing their SCHIP plans.
(See Bazelon policy director Chris
Koyanagi’s testimony on the
subject.) Senators John Kerry (D-MA) and Gordon Smith (R-OR)
led efforts in the Finance Committee to include the parity
provisions
that were part of the bill (S. 1337, the Children’s Mental
Health Parity Act) they introduced with Senators Edward Kennedy
(D-MA) and Pete Domenici (R-NM).
The House passed the Children’s Health and Medicare Protection
Act (CHAMP Act, H.R. 3162) by 225-204, providing $50 billion
over five years. As called for by Representative Tammy Baldwin
(D-WI),
Patrick Kennedy (D-RI) and Jim Ramstad (R-MN), it too would
end the discrimination facing children in states that have
chosen to
reduce mental health benefits in benchmark plans
The House bill has a bonus for adults, in the form of welcome changes
to Medicare. It would update Medicare’s mental
health benefit. A significant number of Medicare beneficiaries
are non-elderly,
have a disability, and qualify through the Social Security
Disability Insurance (SSDI) program. Up to 40 percent have
a mental disorder.
They face discriminatory 50-percent co-payments for outpatient
mental health services, compared to 20 percent for other outpatient
services. The CHAMP Act would end that discrepancy by making
Medicare responsible for 80 percent of the cost of outpatient
mental health
services.
The House bill would also put a welcome hold on the Administration’s
efforts to limit reimbursement of services under Medicaid’s
Rehabilitation Option and to end Medicaid reimbursement of
school-based administration or transportation costs. It would
do this by placing a
one-year moratorium (from the date of enactment) that prohibits
the Secretary of the Department of Health and Human Services
from issuing any rules or taking any administrative action
to restrict
coverage of or payment for rehabilitation services or school-based
administration, transportation or medical services that would
be more restrictive those in effect as of July 1, 2007. This
provision
is a victory for people who rely on Medicaid’s rehabilitation
services option for critical intensive community services that
promotes recovery and the ability to thrive in the community.
SCHIP expires September 30, so there will be pressure for a
conference as soon as Congress returns after Labor Day. The
President has
threatened to veto SCHIP expansion on grounds that the added
cost would increase taxes and unduly expand the federal government's
role in health care. House and Senate lawmakers chosen to reconcile
the two SCHIP-renewal bills will face a tough challenge to
produce legislation that will be approved in both chambers
and withstand
a Presidential veto.
What You Can Do
The August recess offers an opportunity to urge support in
conference. Ask your Senators and Representative to support
SCHIP legislation
as outlined in the House bill to:
- provide $50 billion in new funding to allow eligible children
to access health care;
- mandate Medicare mental health parity for outpatient co-payments;
and
- include language curtailing the Administration’s restriction
on reimbursement for Medicaid’s Rehabilitation Option
and Medicaid’s school based transportation/administration
services.
Also encourage them to support the Senate’s language
providing mental health parity in all plans that enroll SCHIP
children.
Support Needed for TANF Legislation
Senators Gordon Smith (R-OR) and Kent Conrad (D-ND) have introduced
legislation that would give states the flexibility to provide
services that help move TANF beneficiaries with disabilities
into gainful
employment. The Pathways to Independence Act, S. 1730, would
make modest changes to the current Temporary Assistance to
Needy Families
(TANF) law.
Under current law, states must satisfy high work-participation
standards for welfare recipients, including individuals with
disabilities. A state receives TANF credit when recipients
participate in a narrow
set of activities for a specified number of hours each week.
At the same time, the Americans with Disabilities Act (ADA)
and the
Rehabilitation Act of 1973 require states to provide modified
work requirements for individuals with disabilities. The result
is that
a state may provide the ADA-required modification for people
with disabilities only to find that the modified work requirements
did
not meet the narrow criteria for TANF credit. A state that
has complied with the ADA and ensured that TANF recipients
with disabilities
are actively engaged in activities designed to help them secure
employment—the goal of the TANF statute—has thus
increased the likelihood that it will fail to meet its TANF
work-requirement
standard and face fiscal penalties.
The Smith-Conrad Pathways to Independence Act would reward,
rather than penalize, states that engage individuals with disabilities
in work activities. Under S. 1730, an individual with a disability
who complies with his or her ADA-modified employment plan would
count as credit toward a state’s TANF work-participation
rate, regardless of whether the nature of the activities or
the number of hours match the federal TANF requirements.
The Pathways to Independence Act defines a disability as a
mental or physical impairment, including a substance abuse
disorder.
People who have been determined by a professional to have a
disability—or
individuals caring for someone with a disability—who participate
in a modified employment plan will count toward a state’s
TANF credit. Two specific groups of people would be limited
from the TANF work-participation rate: individuals who qualify
for Social
Security Income (SSI) or who have SSI applications pending,
and people with severe temporary illnesses related to recovery
from
a serious surgery.
The Pathways to Independence Act is a modest proposal and would
incur no federal cost. It simply gives states more flexibility
in selecting how to spend their fixed TANF block grant.
What You Can Do
S. 1730 was referred to the Senate Committee on Finance. Support
is needed from all Senators to get this important legislation
enacted this year. Please contact your Senators and urge them
to co-sponsor
the Pathways to Independence Act.
CLASS Act Would Pay for Long-Term Assistance
Senators Edward Kennedy (D-MA) and Tom Harkin (D-IA) and Representatives
Frank Pallone (D-NJ) and John Dingell (D-MI) have introduced
the Community Living Assistant Services and Supports (CLASS
Act, S.
1758, H. R. 3001). The CLASS Act would create a nationwide
public insurance program to help pay for the long-tem services
and supports
required by the millions of Americans who become functionally
disabled.
Approximately 10 million adults in America currently need long-term
services and supports, and studies indicate that aging baby
boomers will double that total by 2040. The services
and
supports they need include buying a wheelchair, making modifications
to a home, hiring a driver or hiring a personal assistant or
attendant.
The CLASS Act would provide cash benefits of up to $100 a day
(adjusted annually for inflation and based on a disability
determination) to purchase the services and supports a recipient
needs to retain
independence and remain active in community life. The program
would
supplement, not replace, benefits from public or private insurance
programs. Structurally, it would create an “Independence
Fund,” into which all program premiums are paid.
Enrollment in the CLASS Act program would be available to working
individuals age 18 and older who are employed or self-employed
and to their non-employed spouses. An individual’s premium
level would be determined by when the person enrolls into the
CLASS Act program. A person who enrolls during the first year
of eligibility
(whether the first year of the program, the year the person
turns 18 or when the person is first employed) would pay a
flat, low-level
premium not to exceed $30 a month. Someone who enrolls after
the first year of eligibility would pay a higher premium. An
individual
need only be employed at the time of enrollment. Someone who
retires or becomes unemployed will can remain a participant
by continuing
to pay the monthly premiums.
Under the proposed legislation, a CLASS program participant
must make premium contributions into the Independence Fund
for at
least five years (60 months) before qualifying to receive the
benefits.
Eligibility for benefits is based on an individual’s
need in performing activities of daily life, including eating,
toileting,
transferring, bathing, dressing and continence. Significantly,
the CLASS Act does not differentiate between individuals with
physical disabilities and mental health disabilities. So long
as a CLASS
program participant is determined to need assistance in performing
at least two daily activities, he or she would qualify for
benefits regardless of cause. Benefits would range from $50
to $100 a day,
based on need; the greater the need, the larger the benefit.
Disability determinations are made by the State Disability
Determination Services,
contracted by the Department of Health and Human Services.
Once a determination of need has been made, a participant would
receive the cash benefits in a Life Independence Account, deposited
monthly. CLASS benefits may be rolled over from month to month
to pay for larger purchases, but not year to year. At the end
of a 12-month period, any money remaining in a participant’s
Life Independence Account would be returned to the Independence
Fund.
The bill imposes no lifetime limit on the amount an individual
can receive. So long as the need continues for assistance in
performing two or more daily activities, the participant would
remain entitled
to CLASS Act benefits.
“
The CLASS Act is a cost-effective way to ensure that individuals
maintain freedom of choice throughout every stage of life,” said
Senator Harkin. “This bill paves the way for more Americans
to live independently and with dignity.”
What You Can Do
The CLASS Act is a bipartisan, comprehensive approach to financing
long-term services and supports for the people who need them,
while also emphasizing choice, independence and empowerment.
Support
is needed from members of Congress to get this important legislation
enacted this year. Advocates are encouraged to contact your
Senators and Representative and urge them to co-sponsor the
CLASS Act:
S. 1758 in the Senate and H.R. 3001 in the House.
Bill Would Restore Disability Rights
On the Americans with Disabilities Act’s 17th anniversary,
bipartisan sponsors in both houses of Congress introduced legislation
to restore the protections that courts have gradually eroded, largely
at the behest of businesses. (See the Bazelon
Center’s
July 23 Action Alert.) In the House, Rep. Steny Hoyer (D-MD)
introduced
the ADA Restoration Act of 2007, H.R.
3195. To date it has
153 co-sponsors, led by Rep. James Sensenbrenner (D-WI). The
Senate
version, S. 1881, was introduced by Tom Harkin (D-IA) and Arlen
Specter (R-PA).
The bill points out that Supreme Court decisions “have unduly
narrowed the broad scope” of the ADA, “eliminating
protection for a broad range of individuals who Congress intended
to protect.” It therefore proposes amendments “to reinstate
original congressional intent by clarifying that ADA protection
is available for all individuals who are subjected to adverse treatment
based on actual or perceived impairment, or record of impairment,
or are adversely affected by prejudiced attitudes…” The
language makes clear that these amendments cover participation “in
all aspects of society,” not just employment. And they would
eliminate the
Catch 22 created by Supreme Court decisions holding
that if a disability is managed by “mitigating measures” like
medication, the individual is not considered disabled for purposes
of the ADA.
What You Can Do
Both bills have been referred to committees. As you contact
your legislators during the August recess, please urge them
to sign
on as co-sponsors if they haven’t already done so, and
to press for passage of the ADA Restoration Act in September.
Positive Behavior for Effective Schools Act Introduced
Representatives Phil Hare (D-IL), David Loebsack
(D-IA), Lynn Woolsey (D-CA) and Danny Davis (D-IL) introduced legislation
to help schools meet the twin challenges of improving academic
achievement and fostering a school climate that promotes learning.
The Positive
Behavior for Effective Schools Act (H.R. 3407) takes a proactive
approach to help education systems meet these challenges through
the promotion of school-wide positive behavior supports (PBS),
shown to reduce disciplinary problems and increase test scores.
(See a description of the Bazelon Center report, Way
to Go, for details about PBS.)
The Positive Behavior for Effective Schools Act will give schools the tools
and opportunity to change how they respond to students, reinforce desired behaviors
and eliminate inadvertent reinforcements for problem behavior. These steps
can help realize the goals of academic and social success for all students.
Specifically, through amendments to the Education and Secondary Education Act,
the legislation would allow and encourage schools and localities to support
PBS. It would also support research, technical assistance and related school-reform
activities that improve school climate. The bill would also establish a new
office in the Department of Education to help coordinate and administer assistance
to mental health and related service professionals who work with students on
PBS and other evidence-based approaches to help improve their academic and
behavioral outcomes.
The Coalition for Promoting School Success for All Students (chaired by the
Bazelon Center) has been meeting regularly this Congress to interject PBS into
the debate on renewal of the No Child Left Behind Act. (See our support
letter.) We are pleased that Representative Hare has taken the lead on
this important issue and hope for a Senate version.
What You Can Do
Contact your Representative during the August recess and ask him or her to
co-sponsor the Positive Behavior for Effective Schools Act (H.R. 3407). See
the letter sent by
Rep. Hare to his colleagues, urging support.
Mental Health in the Schools Act Introduced
in House
Representative Janet Napolitano (D-CA) has introduced
the companion version to S. 1332, the Mental Health in Schools
Act sponsored by Senators Edward Kennedy (D-MA), Pete Domenici
(R-NM) and Michael Enzi (R-WY) (see the Bazelon
Center’s June 29 Policy Reporter). The bill would increase
funding for the Safe Schools-Healthy Students program to enable
states to expand school-based mental health services for children
in K-12. It allows for a flexible, state-based approach to creating
a comprehensive mental health school-program and promotes formal
collaboration between families, schools, welfare agencies, and
substance abuse and mental health systems. The legislation also
encourages schools to implement positive behavioral interventions
and supports (PBIS) into their school curriculum. See a summary
of the bill and an organizational
support letter.
Action Alert
ID Requirements Threaten Access to Housing
The Congressional fever to exclude illegal immigrants reached
beyond healthcare entitlements, into the realm of housing.
The Federal
Housing Finance Reform Act, H.R. 1427, aims to increase affordable
housing for low-income and homeless individuals through the
regulation of housing-related government enterprises. On May
22, 2007, while
the bill was on the House floor, Amendment No. 8 was attached.
This amendment ostensibly seeks to prevent illegal immigrants
from owning or renting housing built from the affordable housing
fund,
by imposing an identification requirement on anyone receiving
housing or assistance under the Act.
Under Amendment No. 8, acceptable identification includes a
Social Security card with photo identification, a REAL ID card,
a passport
or photo-identification card issued by the Department of Homeland
Security. Unfortunately, this amendment would hurt the same
population the bill seeks to help: the homeless.
Because homeless people usually have no place to store possessions,
they often lose their belongings, including their identification
cards. Without documentation, such as a birth certificate,
it is impossible to obtain a state-issued ID. An April 2004
report
by
the National Law Center on Homelessness and Poverty (NLCHP)
surveyed 25,000 homeless individuals in 16 states, finding
that they have
great difficulty providing such documentation. The NLCHP described
their plight as a classic Catch-22, “needing an ID to get
an ID.” The identification requirement of Amendment No. 8
would keep many homeless people from accessing the housing they
desperately need—the very housing that the Act seeks
to provide.
H.R. 1427 passed the House with Amendment No. 8 attached and
is now before the Senate Committee on Banking and Housing.
The Bazelon
Center asks you to help us defeat this harmful amendment.
What You Can Do
Call or email your Senators and encourage them to support the
Federal Housing Finance Reform Act, but seek removal of language
that would
deny many homeless people access to the housing they desperately
need (the Amendment 8 barrier).
Set up a visit with your Representative in his or her district
office in August when Congress is in recess to discuss Amendment
No. 8 and to explain the difficulties that homeless people
in your district have with identification.
Newsbyte
Medicaid
Citizenship Requirements Finalized
Responding to concerns expressed in more than
1,400 public comments, the Centers for Medicare and Medicaid Services
(CMS) exempted more Medicaid recipients from having to document
their identity and citizenship, as required by the Deficit Reduction
Act (DRA), and made it easier for others to do so. (See the Bazelon
Center’s July 19, 2006 Action Alert.) The final
rules, published in the July 13, 2007 Federal Register, also
reflect changes enacted as part of the Tax Relief and Health Care
Act of 2006 (TRHCA).
Final rule expands exemption
Until last year, Medicaid applicants in most states were only required to self-attest
to U.S. citizenship under penalty of perjury. The new Medicaid requirement
was enacted with the support of policymakers who asserted that illegal immigrants
were falsely claiming citizenship.
Under the DRA, all new Medicaid applicants and all beneficiaries undergoing
their first redetermination after July 1, 2006 must provide documentation of
citizenship and identity. The interim rule, issued on July 12, 2006, exempted
individuals receiving Medicare and Social Security Income (SSI) because they
had already met documentation requirements. The final rules significantly expand
this exemption to include individuals who have been found eligible for Social
Security Disability Insurance (SSDI).
In addition, responding to concerns that many children in foster care would
have a hard time documenting citizenship and would therefore be at risk of
foregoing necessary health care coverage under Medicaid, the final rule also
exempts children receiving adoption assistance or foster care payments under
the Adoption Assistance and Child Welfare Act.
Final rule expands acceptable documentation
Medicaid eligibility is conditioned on evidence of both citizenship status
and identity. The rules list a hierarchy of acceptable documents, starting
with a U.S. passport or naturalization certificate as primary documents that
verify both citizenship and identity. A second level, for which separate proof
of identity is required, includes such items as a birth certificate or adoption
decree or a record of military service that shows a U.S. place of birth. The
interim rules list various other documents as third- or fourth-level proof.
The final rules expand the list of acceptable documents. As third-level evidence
of citizenship, an individual may now provide religious records recorded in
the U.S. within three months of birth, as well as early school records. The
Roll of Alaska Natives was also approved as fourth-level evidence of citizenship,
specifically documents issued by a recognized Indian Tribe that evidence membership,
enrollment or affiliation with that tribe.
.
In addition to proving citizenship, individuals must document their identity.
Various photo-ID cards are acceptable, including driver’s licenses and
school and other government-agency IDs. The final rules approved the use of
three or more corroborating documents, such as marriage licenses, divorce decrees,
high school diplomas and employer ID cards, to document an individual’s
identity.
Notably, the final rules also expanded the use of identity-affidavits, which
could only be used in rare circumstances under the Interim rules. Identity-affidavits
may now be used for children up to age 16 (18 in limited circumstances) and
for disabled individuals in residential care facilities.
The final rule also makes final a CMS policy change that will extend Medicaid
benefits for up to the first year of life to a newborn whose mother was receiving
Medicaid on the date of the child’s birth, regardless of the mother’s
immigration status.
The new law does not apply to applicants and recipients who are legal immigrants.
Such individuals must continue to provide documentation of their immigration
status, as previously required.
Independent studies find high cost for both citizens
and government
Alarmingly, two independent reports have found that Medicaid’s citizenship
documentation requirements under the interim rules caused eligible citizens
to lose Medicaid coverage, while not achieving their ostensible goal of saving
taxpayers money. The first, an investigation by the Government Accountability
Office (GAO), entitled States
Reported That Citizenship Documentation Requirement Resulted in Enrollment
Declines for Eligible Citizens and Posed Administrative Burdens (GAO-07-889),
details the barriers to access that eligible citizens have faced when trying
to secure Medicaid coverage under the new documentation requirements. Twenty-two
of 44 states studied blame the new requirements for a decline in eligible citizens’ Medicaid
enrollment and delays in obtaining coverage.
The second study, led by the majority staff of the House Committee on Oversight
and Government Reform, based its findings on an investigation
of nine states. Committee Chairman Henry A. Waxman (D-CA) said that the
study that found for every $100 spent by federal taxpayers to administer the
documentation requirements, the federal government saved only 14 cents. “By
way of comparison,” Representative Waxman explained, “for every
$100 the Office of the Inspector General of the Department of Health and Human
Service expends to investigate waste, fraud and abuse, the federal government
recovers nearly $13,000.”
Both studies raise serious questions about the citizenship-documentation requirements.
Both suggest that the new Medicaid requirements do not reduce the “fraudulent
use of taxpayer resources due to the use of Medicaid benefits by illegal aliens,” as
proponents argued when the proposal was inserted in the 2005 Deficit Reduction
Act, but actually bar eligible U.S. citizens from the receiving coverage they
need.
SCHIP bills would also loosen citizenship requirements
The State Children’s Health Insurance Plan (SCHIP), up for reauthorization
September 30, 2007 (see above), includes the Medicaid citizenship-documentation
requirement in Subtitle E section 143. Under the program, Medicaid’s
final documentation rule applies to SCHIP beneficiaries, but with greater flexibility
and options that aim to lower administrative barriers to enrollment.
In both the House and Senate SCHIP bills, all newborns within their first year
of life are extended SCHIP eligibility through Medicaid, regardless of the
mother’s immigration status. Both SCHIP reauthorization bills also allow
Tribal Membership documentation to be used as satisfactory evidence of nationality
or citizenship.
Most important, both versions of the SCHIP reauthorization bill give states
the option of returning to pre-July 1, 2006 citizenship-documentation requirements
for children, so long as the state submits to an audit of a sample of cases
to demonstrate compliance. This option ultimately allows states to determine
criteria, no more restrictive than the final Medicaid requirements, for citizenship
determinations.
The Senate SCHIP reauthorization goes a step further in reducing administrative
barriers to enrollment. It encourages states to standardize their enrollment
procedures and eliminates the requirement for face-to-face interviews to complete
enrollment in public health programs.
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