The Reporter Bazelon Center for Mental Health Law
Vol. XI, No. 4, September 13, 2012
Breaking New Ground
Though the 112th Congress may go out with a whimper, advocates have ensured that 2012 will go out with a bang. The Judge David L. Bazelon Center for Mental Health Law and our allies recently chalked up two historic victories for people with mental disabilities in Virginia and North Carolina. These breakthroughs, described below, lay the groundwork for thousands of Americans to live in their own homes and communities and to lead fuller lives. We continue to work with Members of Congress and their staff on legislation to advance opportunities for children and adults with mental disabilities. However, many obstacles remain in such a deeply divided Congress. That is why we chart a multipronged approach to advocacy--and we are getting results!
Also in this issue of The Reporter, help us stop a threat to Olmstead, read health reform's newest achievements, access new and updated voting rights tools, and more.
Olmstead Breakthroughs in North Carolina and Virginia
On August 23 and 24, Bazelon Center advocates and allies achieved two historic victories in the fight for real opportunities for people with mental disabilities. First came word that the U.S. Department of Justice (DOJ) and the state of North Carolina reached an agreement to end that state's reliance on large, segregated adult care homes for people with mental illnesses.
The North Carolina settlement followed months of advocacy after a DOJ investigation found that the state is violating the Americans with Disabilities Act (ADA) and the US Supreme Court's 1999 Olmstead decision, by failing to afford many people with mental illnesses the opportunity to live in integrated settings.
A diverse stakeholder group, represented by the Bazelon Center, urged the state to resolve these violations and to avoid a lawsuit from DOJ. The stakeholder group includes some of the state's largest providers of community services for people with disabilities, as well as national and state mental health consumer and family organizations, and a former North Carolina mental health Commissioner.
Some of the requirements of the agreement include the following:
- North Carolina must develop 3,000 new units of supported housing over 7 years for people with serious mental illnesses living in large adult care homes with significant numbers of residents with mental illnesses, coming out of state hospitals, or diverted from admission to adult care homes.
- The housing units must be permanent, afford tenancy rights, and enable people with disabilities to interact with people without disabilities to the fullest extent possible and must not limit access to the community.
- Virtually all of these housing units must be scattered throughout the community.
- The state must provide the array and intensity of services and supports necessary for these individuals to live in integrated settings.
Not long after the news on North Carolina, we learned that the U.S. District Court for the Eastern District of Virginia had announced its approval of a settlement agreement to transform Virginia's service system for people with intellectual disabilities. This comprehensive agreement will provide a long-overdue opportunity to thousands of individuals with intellectual and other developmental disabilities to receive the services they need to live successfully in their homes and communities.
Similar to the North Carolina work, Bazelon Center attorneys represent a diverse coalition of 72 Virginia stakeholders to win final approval of that settlement agreement, reached in January 2012 between DOJ and Virginia. Coalition members are organizations composed of and/or representing thousands of Virginians with intellectual and other developmental disabilities and their family members, as well as community service boards, service providers, and independent living centers. The Richmond office of the law firm Williams Mullen and the Bazelon Center represented the stakeholders group.
Under the court-enforceable agreement, Virginia will expand community services and supports--including Medicaid-funded home and community-based waivers, crisis services, housing and employment supports--and will establish a comprehensive quality management system.
Paging Governor Gregoire: Don't Appeal!
Washington State Governor Chris Gregoire (D) is considering whether to appeal the M.R. v. Dreyfus case to the U.S. Supreme Court. The case challenged the state's Medicaid cuts that would have forced the twelve named plaintiffs from their homes and into institutions. The plaintiffs won an order preventing cuts in their community services from going into effect.
An appeal now could place at risk one of the most fundamental civil rights of individuals with disabilities: the right to avoid needless institutionalization. If the case goes to the Supreme Court, the activist conservative majority could do damage to Olmstead and the Americans with Disabilities Act.
The Supreme Court’s 1999 Olmstead v. L.C. decision is one of the most effective tools that the disability community has to fight against state budget cuts to home and community-based services that would force people with disabilities into unwanted and unwarranted institutionalization. For more details, see the sign-on letter here.
What You Can Do
"Governor Gregoire should support the right of people with disabilities to live in the most integrated setting in the community. Settle M.R. v. Dreyfus! No appeal to the U.S. Supreme Court!"
- Marty Loesch, Chief of Staff for Governor Gregoire, 360-902-0499, Marty.loesch @ gov.wa.gov
- Kareem Dale, White House, Kareem_A._Dale @ who.eop.gov
- Democratic Governors Association, 202-772-5600, http://democraticgovernors.org/contact/
Not Quite Platinum: Record Review of the 112th Congress
With only a few legislative days remaining before Congress leaves Washington for the campaign trail, little action is expected. Activity in the post-election "lame duck" session will depend on the outcome of the presidential and congressional elections.
The 112th Congress is one of the least active in many years in terms of legislation that has become law. Key legislation (see the In Congress section of our website) regarding children and adults with mental health disorders has been stalled in committee. In addition, the few proposals that have moved have drawn opposition or strong concern from the disability community. Yet, Congress has continued to debate important issues such as possible repeal of the Affordable Care Act and various funding cuts--many of them drastic--to vital social programs. Deficit reduction legislation has long stalled.
Below is a summary of some of the major legislation that could affect people with mental disabilities. You will find links to charts that show how Members of Congress voted on those bills.
- The Repealing the “Job Killing” Health Care Law Act (H.R. 2, sponsored by Rep. Eric Cantor (R-VA)) would repeal the health care reform law (a.k.a. the Affordable Care Act or ACA) and would restore certain provisions of law that were amended by the ACA. The Bazelon Center opposes this legislation. See theHealth Care Reform section of our website to learn more. The House of Representatives passed the bill on January 19, 2011 (245 to 189). See House vote on H.R. 2.
- The Repeal of “Obamacare” Act (H.R. 6079, sponsored by Rep. Eric Cantor (R-VA)) is similar to H.R. 2. The House passed this bill on July 11, 2012 (244 to 185). See House vote H.R. 6079.
- The State Flexibility Act (H.R. 1683, sponsored by Rep. Phil Gingrey (R-GA)) would repeal the Medicaid maintenance of effort provisions (MOE) in the ACA that require states to keep their current eligibility rules for health coverage until the new system of Health Care Exchanges is in place in 2014. The State Flexibility Act would allow states to roll back eligibility, potentially cutting off 400,000 people, about two-thirds of whom are children, according to a Congressional Budget Office (CBO) report. Additionally, the CBO estimates “approximately 300,000 of those individuals would become uninsured.” The Bazelon Center opposes this legislation. See the Centers for Medicare and Medicaid Services guidance on MOE under the ACA. The House Energy and Commerce Subcommittee on Health approved this legislation on May 6, 2011. The full House Energy and Commerce Committee has not considered the legislation yet. See Subcommittee vote on H.R. 1683.
- The Fiscal Responsibility and Retirement Security Act of 2011 (H.R. 1173, sponsored by Rep. Charles Boustany (R-LA)) would repeal the CLASS program (Community Living Assistance Services and Supports) enacted under the ACA. The CLASS program would establish a national, voluntary insurance program for individuals with functional limitations to purchase long-term services and supports in order to maintain their personal and financial independence and live in the community. The Bazelon Center opposes the repeal of CLASS. The House passed the legislation on February 1, 2012 (267 to 159). See House vote on H.R 1173.
- The Budget Control Act (S. 365 sponsored by Senator Tom Harkin (D-IA)), which passed Congress, raised the nation’s debt limit to $2.4 trillion and capped discretionary spending at nearly $1 trillion over 10 years. It also established a 12-member bipartisan, bicameral Joint Select Committee on Deficit Reduction, also known as the “supercommittee,” to produce recommendations for further federal savings and/or revenues. However, the Supercommittee was unable to reach agreement.
The Bazelon Center worked to protect entitlement programs in the initial Budget Control Act and advocated for a balanced approach to deficit reduction with the “Supercommittee. The Supercommittee’s failure results in a sequestration and across-the-board spending cuts that are scheduled to go into effect January 2013.
The Senate passed this bill on August 2, 2011 (74 to 26) and the House passed this bill on August 1, 2011 (269 to 169). See Debt Ceiling Lifted, But Cuts Loom (The Reporter, Vol. X, No. 3, August 19, 2011) andDefault Averted, But Threats Persist to Medicaid, SSI, Other Key Supports (Bazelon Center press release, August 5, 2011). See Senate vote on S. 365. See House vote on S. 365.
- The Ryan Budget FY 2012 (H.Con.Res. 34, sponsored by Rep. Paul Ryan (R-WI)) proposal calls for $6.2 trillion in cuts over 10 years to be achieved through major structural changes to Medicaid, Medicare and other important federal programs. The resolution proposes $750 billion in savings by revamping federal Medicaid payments (currently an entitlement program requiring state match) into a block grant to states. Turning the Medicaid program into a block grant would remove federal rules, such as those governing eligibility and benefits, and would greatly increase the number of people who are uninsured and do not have access to vital medical and mental health care.
The budget proposal also includes a cut of $1.4 billion over 10 years in the children’s Supplemental Security Income (SSI) disability benefit program. According to the Budget Committee documents, these savings would be achieved by reducing “incentives to medicate children,” although there is no evidence that this problem actually exists. A General Accountability Office (GAO) report dismissed this assertion. See the SSI advocates' statement on the GAO report. The Bazelon Center opposes this budget resolution.
The House passed the budget proposal on April 15, 2011 (235 to 193) but the Senate rejected it on May 25, 2011 (40 to 57). See Amid Action on 2011 and 2012 Budgets, Congress Debates What to Do About the Long-Term Deficit (Bazelon Update, April 29, updated June 13, 2011). See House vote on H.Con.Res. 34.See Senate vote on H.Con.Res. 34.
- The Ryan Budget FY 2013 (H.Con.Res. 112, sponsored by Rep. Paul Ryan (R-WI)) proposal calls for $5.3 trillion in cuts over 10 years, as compared to President Obama’s FY 2013 budget. The proposal has passed the House. As in the previous year, Ryan’s plan would achieve these cuts by making major structural changes to Medicaid, Medicare, SSI and other important federal programs.
More than 65% of the cuts would come from programs serving lower-income Americans, including cuts to the children’s SSI disability program totaling $3.5 billion over 10 years. SSI is a lifeline for low-income families struggling to care for a child or youth with a severe physical and/or mental disability. The Bazelon Center opposes this proposal. See "Ryan Budget" Redux: House Passes Harmful Proposals to Key Federal Programs (The Reporter, Vol. XI, No. 2, April 10, 2012). The House passed the budget on March 29, 2012 (228 to 193) but the Senate rejected it on May 16, 2012 (41 to 58). See House vote on H.Con.Res. 112.See Senate vote on H.Con.Res. 112.
- The Sequester Replacement Reconciliation Act of 2012 (H.R. 5652, sponsored by Representative Paul Ryan (R-WI) would provide instructions to committees regarding cuts that would be an alternative to the across-the-board cuts in sequestration (see above). H.R. 5652 would repeal ACA provisions, repeal the Social Services Block Grant, and make major cuts in many programs that assist low-income Americans, including the food stamp program. The House passed the legislation on May 10, 2012 (218 to 199). See House vote on H.R. 5652.
The Bazelon Center and allies have developed new and updated tools on voting rights for people with mental disabilities. See the Voting > Policy Documents page of our website.
Additional data from the U.S. Department of Health and Human Services show how health reform has improved Americans’ lives and the health care system. Some of the Affordable Care Act's achievements include the following:
- Nearly 5.4 million seniors and people with disabilities saving more than $4.1 billion on prescription drugs as a result of the Affordable Care Act;
- 18 million people with traditional Medicare receiving at least one no cost preventive service in 2012;
- 47 million women receiving access to free preventive services including wellness visits and screening and counseling for domestic and interpersonal violence;
- Establishing 89 new Accountable Care Organizations serving 1.2 million people with Medicare in 40 states and Washington, D.C;
- A revolutionary health care fraud prevention partnership involving the federal government, state officials, several leading private health insurance organizations, and other health care anti-fraud groups;
- Providing a $275 million competitive funding opportunity for states to design and test innovativemulti-payer payment and delivery models that deliver high-quality health care and improve health system performance; and
- Expanding community health centers by awarding grants to support centers in 219 communities, serving an additional 1.25 million patients, and creating over 5,000 health care jobs.
In its effort to encourage health reform's implementation, the U.S. Department of Health and Human Services (HHS) recently announced additional grants for states making progress in establishing Affordable Insurance Exchanges. Exchanges are the new state-based insurance marketplaces where individuals and small businesses will be able to purchase affordable health insurance coverage beginning in 2014.
Forty-nine states received planning grants shortly after enactment of the Affordable Care Act (a.k.a. health reform). Over half of all states have applied for and received additional funding to help them establish Exchanges. The newest awards go to California, Connecticut, Hawaii, Iowa, Maryland, Nevada, New York, and Vermont. For more information on the implementation of Affordable Insurance Exchanges in your state, visit healthcare.gov.
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