New Senate HELP Committee Report on Olmstead Implementation

I'm going to go dark again later today, but I'll break radio silence for a few posts.

Just out: This important report on Olmstead implementation, issued by the Senate HELP Committee.  The executive summary:

 The Supreme Court’s 1999 decision in Olmstead v. L.C. put states on notice that unnecessary segregation of individuals with disabilities is a violation of the Americans with Disabilities Act (ADA) of 1990. The ruling was hailed as the disability civil rights equivalent to Brown v. Board of Education, which ordered the desegregation of the nation’s public schools.

 The Olmstead decision clearly articulates that ensuring individuals with disabilities are able to exercise their right to participate as citizens of the state and the country is a protected civil right under the ADA. Olmstead envisioned that states will provide appropriate long-term services and supports (LTSS) to individuals with disabilities through home and community-based services (HCBS) and end forced segregation in institutions.

 Previous testimony before the Committee illustrates the discriminatory nature of institutionalization. One individual stated simply: “People need to have high expectations for people with disabilities because then they’ll give them opportunities to learn and grow. People don’t grow in…institutions.”

 Nationally, there has been a fundamental rebalancing of spending on individuals with disabilities in institutions as compared to spending on HCBS in the years since the Olmstead decision. Between 1995 and 2010, states reduced the share of Medicaid spending on institutions, including nursing homes, mental hospitals, and institutions for people with intellectual and developmental disabilities, from 79 percent to 50 percent.

 However, these numbers fail to paint a complete picture. In reality, only 12 states spent more than 50 percent of Medicaid LTSS dollars on HCBS by 2010. Further, the population of individuals with disabilities under 65 in nursing homes actually increased between 2008 and 2012. This is true even though 38 studies over the past seven years have clearly demonstrated that providing HCBS is more cost-effective than providing services in an institution.

 Last year, on the 13th anniversary of the Olmstead decision, Chairman Harkin requested information from all 50 states on the progress being made to ensure that all individuals with disabilities have the opportunity to live independently in the community through the use of HCBS.

 The result of the survey demonstrates that, with a few exceptions, state leaders continue to approach decisions regarding Medicaid from a social welfare and budgetary perspective. For the promise of Olmstead to be fully realized, state leaders must also approach decisions about Medicaid delivery options from a civil rights perspective. To do so, states must create an Olmstead plan with enforceable benchmark targets—one that fully evaluates whether a state can take advantage of new federal options to better ensure that individuals can live in community-based settings where they can fully participate and be granted the power of individual decision making and choice.

The report also contains extensive recommendations -- definitely worth a look!

Fourth Circuit Upholds PI in Personal Care Cut Case

Yesterday, the United States Court of Appeals for the Fourth Circuit issued an opinion in Pashby v. Delia, --- F.3d ----, 2013 WL 791829 (4th Cir., Mar. 5, 2013).  In this case, North Carolina had tightened the eligibility requirements for in-home personal care services (PCS) under Medicaid.  A number of PCS recipients filed suit under the Medicaid Act, the ADA, and Section 504 of the Rehabilitation Act.  The district court granted a preliminary injunction to halt the cuts and certified a plaintiff class.  The state appealed.  Yesterday's decision addressed the state's appeal from the preliminary injunction.

Upholding the district court's conclusion that the plaintiffs were likely to succeed on the merits of their ADA/Section 504 claims, the Fourth Circuit held that the district court had not abused its discretion in concluding that the new eligibility standards placed them at a significant risk of institutionalization.  After the new eligibility standards were put in place, the plaintiffs argued, it would be easier to obtain personal care services in a congregate "adult care home" than in one's own home.  The state argued that the ADA does not prohibit placing people with disabilities at risk of institutionalization.  The Fourth Circuit, deferring to the views of the Department of Justice, disagreed:

Because Congress instructed the DOJ to issue regulations regarding Title II, we are especially swayed by the DOJ's determination that “the ADA and the Olmstead decision extend to persons at serious risk of institutionalization or segregation and are not limited to individuals currently in institutional or other segregated settings.” U.S. Dept. of Justice,Statement of the Department of Justice on the Integration Mandate of Title II of the ADA and Olmstead v. L.C.,http://www.ada.gov/olmstead/q & a_ olmstead .htm (last updated June 22, 2011); see also Olmstead, 527 U.S. at 597–98 (“Because the Department is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.” (citation omitted)). Moreover, the Tenth Circuit has held that “there is nothing in the plain language of the regulations that limits protection to persons who are currently institutionalized.” Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir.2003). In sum, individuals who must enter institutions to obtain Medicaid services for which they qualify may be able to raise successful Title II and Rehabilitation Act claims because they face a risk of institutionalization.

The state also argued that adult care homes are not institutions.  But the Fourth Circuit, again deferring to the views of the Department of Justice, disagreed.  And the state argued that "continuing to offer in-home PCS to the class members and named Appellees constitutes a fundamental alteration due to the administrative and financial burdens it entails."  The Fourth Circuit rejected that argument, too.  The court "join[ed] the Third, Ninth, and Tenth Circuits in holding that, although budgetary concerns are relevant to the fundamental alteration calculus, financial constraints alone cannot sustain a fundamental alteration defense."

The Fourth Circuit also concluded that the plaintiffs satisfied the other three requirements for a preliminary injunction (irreparable harm, balance of hardships, and the public interest), so it agreed that a PI was warranted.  The court remanded, however, because it concluded that the preliminary injunction issued by the district court failed to satisfy Rule 65's specificity requirement.  It thus directed the district court to describe the enjoined conduct in greater detail.

Judge Agee dissented.  He concluded that the plaintiffs had not shown a sufficient risk of institutionalization to establish a likelihood of success on the merits.  He also concluded that the state had presented a sufficient fundamental alteration defense to make the plaintiffs unlikely to succeed.

Pew's Stateline on Mental Health Funding and Medicaid Expansion

See this interesting article, which begins:

The recent mass killings in Tucson, Aurora and Newtown have sparked public conversations about the deficiencies in state-run mental health systems across the United States. But few states are poised to spend their own money to reverse as much as a decade of budget cutbacks in those areas. 

Instead, many of them are counting on an infusion of federal mental-health dollars. Because Medicaid includes mental-health benefits, those states that opt into the Medicaid expansion included in President Obama’s Affordable Care Act will be able to make mental health coverage available to thousands of their citizens who do not now have it. 

For the first three years that additional coverage would cost the states nothing: Under terms of the Affordable Care Act, the federal government will cover 100 percent of the costs of new Medicaid enrollees for the first three years and 90 percent after 2020.

So far, 20 governors, some of them Republicans who opposed the health care law, have committed their states to the Medicaid expansion. Ten Republican governors have announced they will not participate. If all states opted into the expansion, an estimated 13 million more Americans would receive mental health benefits through Medicaid next year, according to a report by the Congressional Budget Office. The number would rise to 17 million in 2022.

ThinkProgress on Medicaid Cuts and the ADA

It's always good when health wonks in the progressive media/activist world notice the ADA.  Here's a good post over at ThinkProgress Health about the ADA and cuts to Medicaid.

Updates on Medicaid Cuts Litigation

Today's news brings two articles on key challenges to state Medicaid cuts.  One is from the New York Times, reporting on a preliminary injunction issued to block certain cuts to Medicaid personal care services in New York City and state.  The article begins:

Charles Strouchler, a former publicity agent for classical-music management companies, has such severe multiple sclerosis that he has to be washed, fed, secured in a wheelchair during the day and turned in bed at night. For the past 15 years, he said, he has been able to live at home only because Medicaid pays for aides to take care of him around the clock. 

Earlier this year, he received a notice saying that his help was being cut to one live-in aide per day, who would sleep through the night, rather than two aides working for 12 hours each. Mr. Strouchler and others like him filed a class-action lawsuit, challenging reductions in care. 

While not ruling on the merits of the case, a federal judge in Manhattan decided on Tuesday that the plaintiffs had a “substantial likelihood” of proving that New York City and New York State had violated federal law in cutting back on Medicaid-financed personal care for hundreds of New Yorkers like Mr. Strouchler since last year.

The other, from KOMO in Seattle, reports on efforts by disability rights activists to convince Washington Governor Christine Gregoire not to seek cert. to review the Ninth Circuit's decision in M.R. v. Dreyfus, which blocked certain Medicaid cuts.  (I've blogged about M.R. before.)  From the story:

"There are a lot of vulnerable folks who rely on this service," Ganapathiraju said. "It's unfair, of course, that the situation is how it is. It's understandable that there are political forces at work." 

Ganapathiraju is referring to state-mandated budget cuts, which slashed in-home personal health care services for the elderly and the disabled. A judge upheld that the cuts are legal, but the 9th Circuit Court of Appeals overturned that decision, arguing that the cuts violate the Americans with Disabilities Act. 

The state has until September 17 to appeal the case to the U.S. Supreme Court, said Carl Peterson with the Autistic Self-Advocacy Network. Peterson joined with other advocates for the disabled Wednesday to call on the state and the governor to not appeal the decision. 

"What really is at stake here is the ability for somebody with a disability to stay and live fruitfully and as a positive part of the community instead of living in an institution," Peterson said. "We understand that the governor needs to save money and stuff but this is not the way to do it."

Two New Articles on the Spending Clause and the Healthcare Cases

As both of my readers know (Hi, Mom!), since the day the Supreme Court decided the healthcare cases, I have been saying that the Court's Spending Clause decision was likely to be the most consequential part of the ruling for disability law and lots of other federal statutes.  That decision decoupled the Affordable Care Act's Medicaid expansion from the rest of the Medicaid program, and it, for the first time, held that a conditional federal spending program unconstitutionally coerced the states. The Court's decision on the Spending Clause issue was fractured; there was no majority opinion on the question.  And Chief Justice Roberts's pivotal opinion itself requires some work to understand.  I expect we'll see a fair amount of litigation and scholarship on the question.

Now up on SSRN are two pieces that will begin that conversation.  One, my own piece entitled The Anti-Leveraging Principle and the Spending Clause after NFIB, forthcoming this spring in the Georgetown Law Journal, tries to assess what the Court's decision means for Spending Clause doctrine generally.  Here's the abstract:

This article offers an initial assessment of the Supreme Court’s Spending Clause holding in National Federation of Independent Business v. Sebelius, which addressed the constitutional challenge to the Affordable Care Act. As Justice Ginsburg pointed out, NFIB marks “the first time ever” that the Court has held that a spending condition unconstitutionally coerced the states. The implications of that holding are potentially massive, and some of the language in the decision, if read broadly, would seriously threaten the constitutionality of a broad swath of federal spending legislation. 

Notwithstanding some of the Court’s language, this article contends that the case is not best read as rendering federal spending conditions unconstitutional simply because they are attached to large amounts of federal money, change the terms of participation in entrenched cooperative programs, or tie together separate programs into a package deal. Rather Chief Justice Roberts’s pivotal opinion is best read as adopting an “anti-leveraging principle” that will find coercion only where all three of these conditions are present at the same time. The anti-leveraging principle both makes the most sense of what the Chief Justice actually said in NFIB and does a better job of accommodating the relevant constitutional values than do alternative readings of the case. Although that principle threatens the constitutionality of far fewer conditional-spending laws than do those alternative readings, it raises challenging questions about the constitutionality of certain spending conditions. And it gives states an important new tool in negotiations with federal administrators.

The other piece, by health law mavens Nicole Huberfeld, Elizabeth Weeks Leonard, and Kevin Outterson, is entitled Plunging into Endless Difficulties: Medicaid and Coercion in the Healthcare Cases.  It focuses more specifically on the implications of the Court's decision for Medicaid.  Here's the abstract:

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes by the joint dissent) decided that the Medicaid expansion created by the ACA was a “new” program to which Congress could not attach the penalty of losing all Medicaid funding for refusing to participate. NFIB signals the Roberts Court’s interest in continuing the Federalism Revolution. The Court relied on, seemingly modified, and strengthened at least two existing elements of the test for conditional spending articulated in South Dakota v. Dole. Clear notice and germaneness now appear to be folded into the newly fashioned yet undefined coercion doctrine, which relied on quantitative as well as qualitative analysis to determine that the Medicaid expansion was unconstitutionally coercive. The Court is now actively enforcing the Tenth Amendment to protect states from federal spending legislation. 

NFIB raises many questions regarding implementation of the Medicaid expansion as well as the ACA. The dockets will experience the reverberations of these open questions, as well as the Court’s invitation to explore the coercion doctrine. Thanks to their success before the Court, states are no longer plaintiffs claiming coercion, powerless with a “gun to the head.” The Court’s decision grants them the option to expand Medicaid or not, leaving them with the difficult political choice upon which the lives of some of our most fragile, disenfranchised citizens will rely. We are plunged into Justice Cardozo’s “endless difficulties.”

Roberts on Health Law as Disability Law

Up on SSRN: Jessica Roberts, Health Law as Disability Rights Law (Minn. L. Rev., forthcoming).  The abstract:

When asked to name the most substantial civil rights victory for people with disabilities in recent years, many would choose the Americans with Disabilities Act Amendments Act of 2008. However, this Article contends that the Affordable Care Act (ACA) also represents a significant — albeit unconventional — advance for disability rights. Historically, health law and civil rights law have operated separately with respect to disability. People with disabilities have thus enjoyed two distinct, mutually exclusive areas of substantive legal protection: those designed to provide benefits and care (health paradigm) and those designed to achieve equality (civil rights paradigm). The ACA bridges this schism. Through its expansion of Medicaid and support for on-going health services, its changes to the underwriting and risk assessment practices of the private health-insurance industry, and its recognition of people with disabilities as a health disparity population, the new law promotes equality for people with disabilities. Thus, health legislation also performs the work of civil rights. 

The Article begins by analyzing the traditional division between the health and civil rights paradigms. It then examines how civil rights legislation has failed to improve access to health services for people with disabilities. Next, the Article explores health-care reform as an issue of disability rights, both in terms of the role of the disability rights advocates in lobbying for the legislation and the impact of the ACA on individuals with disabilities. Finally, it concludes with the proposition that achieving meaningful equality for people with disabilities mandates an integrated approach that moves beyond the confines of the civil rights model.

Okay, given what else is happening today, I probably should have specified in the title that the Roberts to whom I referred was Jessica, not John. Oops.

Mike Ervin (aka Smart Ass Cripple) in NYT on Medicaid Cuts and People with Disabilities

See this op-ed.  It begins:

TIMES are hard. The states are broke, and some say it’s the fault of people like me, sucking up Medicaid dollars. 

Last week, here in Illinois, the governor signed into law $1.6 billion worth of Medicaid “reform.” The ax came down on disabled children and young adults who are M.F.T.D. — medically fragile, technology dependent — those who have tracheostomies, are ventilator-dependent or need central intravenous lines. New co-payments and income caps could mean that many of these young people will no longer be able to receive care at home and will have to be institutionalized. No more free lunch for them!

CMS Issues Rule to Implement Community First Choice Option, Punts on What is a Community-Based Setting

Hot off the presses:  The final rules to implement the Community First Choice Option, a provision of the Affordable Care Act that will enable states to expand their provision of community-based services to people with disabilities.  The final rules, which were a long time coming, will provide a framework for states to now begin submitting plan amendments that will include this new option.  It's unclear how many states will choose to do this, but the new option can be a major tool in assisting states in complying with their Olmstead obligations.

There is one dark cloud, though.  After all these months, CMS decided not to issue the portion of its rule that defined what constitutes a community-based setting.  This is obviously a crucial omission.  CMS explained its decision this way:

In consideration of the comments received, we are not finalizing the setting provisions of proposed §441.530 at this time. The comments received indicated to us that the proposed provisions caused more confusion and disagreement than clarity and we believe further discussion and consideration on this issue is necessary. In addition, similar language proposed in the notice of proposed rulemaking for revisions to the 1915(c) waiver program garnered significant public comment. Therefore, we intend to issue a new proposed regulation that will provide setting criteria for CFC that we developed in light of the comments received and to invite additional public comment on our proposal. We plan to propose home and community-based settings shall have all of the following qualities, and such other qualities as the Secretary determines to be appropriate, based on the needs of the individual as indicated in their person-centered service plan:

● The setting is integrated in, and facilitates the individual’s full access to, the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, in the same manner as individuals without disabilities;
● The setting is selected by the individual from among all available alternatives and is identified in the person-centered service plan;
● An individual’s essential personal rights of privacy, dignity and respect, and freedom from coercion and restraint are protected;
● Individual initiative, autonomy, and independence in making life choices, including but not limited to, daily activities, physical environment, and with whom to interact are optimized and not regimented;
● Individual choice regarding services and supports, and who provides them, is facilitated.;
● In a provider-owned or controlled residential setting, the following additional conditions must be met. Any modification of the conditions, for example, to address the
safety needs of an individual with dementia, must be supported by a specific assessed need and documented in the person-centered service plan: 

++ The unit or room is a specific physical place that can be owned, rented or occupied under another legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord tenant law of the State, county, city or other designated entity;
++ Each individual has privacy in their sleeping or living unit:
-- Units have lockable entrance doors, with appropriate staff having keys to doors;
--Individuals share units only at the individual’s choice; and
--Individuals have the freedom to furnish and decorate their sleeping or living units;
++ Individuals have the freedom and support to control their own schedules and activities, and have access to food at any time;
++ Individuals are able to have visitors of their choosing at any time; and
++ The setting is physically accessible to the individual.

We also plan to propose that home and community-based settings do not include
the following:

1) A nursing facility;
2) An institution for mental diseases;
3) An intermediate care facility for the mentally retarded;
4) A hospital providing long-term care services; or
5) Any other locations that have qualities of an institutional setting, as determined
by the Secretary. The Secretary will apply a rebuttable presumption that a setting is not a home and community-based setting, and engage in heightened scrutiny, for any setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment in a building on the grounds of, or immediately adjacent to, a public institution or disability-specific housing complex. CMS will engage States in discussion and review any pertinent information submitted during the SPA review process to determine if these facilities meet the HCBS qualities set forth in the proposed rule.

While we are proposing the aforementioned setting requirements in a new proposed rule, the CFC option is in full effect. CMS will rely on the proposed setting provision as we review new 1915(k) State plan options and we will fully expect States to comply with the setting requirements and design and implement the benefit accordingly. To the extent there are changes when this language is finalized, we are committed to permitting States with an approved section 1915(k) State plan amendment a reasonable transition period, at a minimum of one year, to make any needed program changes to come into compliance with the final setting requirements. We are committed to minimizing disruption to State systems that have been established based upon compliance with these proposed regulations. 

It is our intent to and to apply this criteria to sections 1915(c) and 1915(i) of the Act authorities. 

As expressed earlier, we believe further discussion is necessary and we believe this can be accomplished by soliciting public comments on the modified criteria. Therefore, we are not finalizing the setting provision at this time.

The decision to punt on the standards for what constitutes a community-based setting will be quite disappointing to disability rights advocates, and it might greatly limit the degree to which the CFC Option promotes real integration.  The proposed regulation to define what constitutes a community setting appears here.  The proposed rule should appear in the Federal Register on May 3, and the comment period on that rule will close 30 days later.

Supreme Court Punts in Douglas v. Independent Living Center

A few minutes ago, the Supreme Court issued its opinion in Douglas v. Independent Living Center.  The case presented a question of great significance to Medicaid and other litigation:  Whether the Constitution's Supremacy Clause provides a basis for suing a state for injunctive relief to challenge an action that conflicts with a federal statute that Congress did not otherwise provide a private right to enforce.  The federal statutory provision at issue here was the provision of the Medicaid Act that requires states to set rates at a sufficient level to enlist enough providers to ensure that services are generally available.  A number of plaintiffs relied on this statutory provision, as implemented by the Supremacy Clause, to argue that certain rate cuts implemented by California were preempted by federal law and should be enjoined.  The Ninth Circuit agreed with the plaintiffs, and the Supreme Court granted cert.  Just after oral argument, though, the federal Center for Medicare and Medicaid Services (CMS) determined that California's rate cut complied with the Medicaid Act.  In a 5-4 decision written by Justice Breyer, the Court today concluded that CMS's approval of the rate cut changes the posture of the litigation sufficiently that the case should be sent back to the Ninth Circuit for further proceedings.  Accordingly, the Court did not decide the question on which it had granted certiorari.  Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, dissented.  They would conclude that, where Congress did not otherwise provide a right of action to enforce a federal statute, the Supremacy Clause could not provide an independent cause of action for injunctive relief.

I would put this in the category of:  Bullet dodged.  For now.

Other Disability-Related Briefs in the ACA Case

Both of my readers may also be interested in a couple of other disability-related briefs filed today in the Affordable Care Act case: this one, filed by and on behalf of the Disability Rights Legal Center; and this one, filed by the National Health Law Program and the Disability Law Center of Alaska, on behalf of NHELP and a bunch of organizations, including a number of disability organizations.  Enjoy!

Amicus Brief in Supreme Court Health Care Suit

Today, along with co-counsel from the Bazelon Center for Mental Health Law, I filed this amicus brief on behalf of former Surgeon General David Satcher and 78 child welfare, disability, education, health care, women’s sports, veterans, and other organizations in the Supreme Court's case considering the constitutionality of the Affordable Care Act. The brief addresses a piece of the case that hasn't gotten a ton of public attention -- the challenge to the constitutionality under the Constitution's Spending Clause of the ACA's expansion of Medicaid to cover everyone with an income up to 133% of the poverty line. Our brief argues that the challenge to the Medicaid expansion, if accepted, could put in constitutional jeopardy a range of statutes enacted pursuant to the Spending Clause, both inside and outside of the medical care context.

New Kaiser Commission Policy Brief on Medicaid Managed Care and People with Disabilities

The Kaiser Commission on Medicaid and the Uninsured has just issued a very interesting policy brief on issues for people with disabilities in designing Medicaid managed care plans.  Check it out!

Connecticut Medicaid and the Habilitation/Rehabilitation Distinction

See this article, which begins:

When she was younger, Natalia Caraballo used some words and sign language to communicate. But around her 2nd birthday, Natalia, who has Down syndrome and autism, stopped speaking and started making less eye contact with those around her. 

Her parents hoped to continue the intensive therapy Natalia, now 4, had received through an early intervention program. 

But their insurance, HUSKY, the state's Medicaid program, denied coverage for the services, known as applied behavioral analysis, saying that the services were for "habilitation" purposes, not rehabilitation.

Will Florida's Shift to Private Managed Care for Medicaid Push People into Nursing Homes?

This article says it will.  The article begins:

When the Legislature decided last year to cap Medicaid funding and turn long-term care over to private managed care companies, some experts warned that growing waiting lists would drive people into expensive nursing homes. 

A study released Tuesday by the Legislature's own policy analysts underscores that fear.

DOJ Finds Olmstead, EPSDT, and IDEA Violation in Mississippi

Just out:  The DOJ's letter of findings in its Mississippi Olmstead investigation, dated yesterday.  The first paragraph:

The United States has completed its investigation of the State of Mississippi’s system for delivering services and supports to thousands of persons with mental illness and/or developmental disabilities1 (“DD”). This letter is a report of our findings. Our review reveals that the State of Mississippi has failed to meet its obligations under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134, and its implementing regulations, 28 C.F.R. pt. 35, by unnecessarily institutionalizing persons with mental illness or DD in public and private facilities and failing to ensure that they are offered a meaningful opportunity to live in integrated community settings consistent with their needs. The United States looks forward to working with the State of Mississippi to develop an appropriate remedy to resolve these concerns.

In addition to finding violations of the ADA, the letter also finds violations of the Early and Periodic Screening, Diagnosis, and Treatment provisions of the Medicaid Act, as well as of the Individuals with Disabilities Education Act.  This case has the potential to be very big, whether it's litigated or results in a settlement. 

Schools Ask for Easier Access to Medicaid for Special Education Services

See this post by that title from Ed Week's On Special Education Blog.

AAPD and UCP Defend Medicaid

See this opinion piece in Roll Call from Mark Perriello and Stephen Bennett.

Huberfeld on Medicaid and Section 1983

Up on SSRN: Nicole Huberfeld, Bizarre Love Triangle: The Spending Clause, Section 1983, and Medicaid Entitlements. The abstract:

The first two terms of the Roberts Court signal a willingness to revisit precedent, and the Court appears poised to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the Rehnquist Court would not revisit the rule. Last term, the Roberts Court granted a petition for certiorari that would have required reconsidering Gonzaga. Before it could be heard on the merits, the respondents mooted the case, but petitions for certiorari regularly arise in similar Medicaid enforcement cases. Thus, Gonzaga is likely to be revisited in the context of enforcement of Medicaid statutory entitlements. Medicaid does not contain an enforcement mechanism, but the Supreme Court facilitated enforcement of federal statutory rights against state officers through section 1983. However, this paper highlights recent events that increasethe fragility of Medicaid.

The first part of this paper explores the structure of Medicaid and key provisions of the Deficit Reduction Act of 2005 that change Medicaid from a program of promised care and benefits into one of no enforceable promises. The second part of this paper discusses Supreme Court decisions that reveal hostility to enforcement of conditions on spending legislation by beneficiaries under section 1983. This part also explores how changes in the Court's composition may allow this view to become the prevailing rule. Additionally, this section demonstrates the narrowing ability of individuals to enforce Medicaid entitlements through section 1983 due to two distinct but related splits in the circuit courts. The final part of this paper analyzes the Court's hostility to enforcing conditions on spending by section 1983 and proposes legislative responses to the impending demise of the Medicaid entitlement.

Brief in Brown v. Tennessee Dept. of Finance and Administration

Today, along with my cocounsel from the Disability Law and Advocacy Center of Tennessee, the National Health Law Program, and the Nashville law firm of Brewer, Krause, Brooks, Chastain & Burrow, I filed this brief for the plaintiffs-appellees in Brown v. Tennessee Department of Finance and Administration. The case is a class action brought on behalf of Tennessee residents with developmental disabilities who were eligible for but denied enrollment in home-and-community-based waiver programs. The state entered into a consent decree a couple of years back, but now it wants out of the deal. Our brief argues that there's no basis for vacating the decree.