Wednesday, December 07, 2005

Jacobi on Medicaid

New on SSRN: John Jacobi, Dangerous Times for Medicaid. The abstract:

Medicaid has become a cornerstone of our health finance system. It covers over 50 million Americans. Many are otherwise uninsurable because of their poverty and/or their disabilities. Others rely on Medicaid because the deteriorating employment-based insurance system increasingly fails to cover low income workers and their families. Medicaid's costs are rising in large part due increased enrollment, and not increasing per-person costs. This paper examines proposed short and long term cost-cutting "reforms" to Medicaid, including those that would shift programmatic power from the federal to the state level, and "ownership society" measures that would reduce or abolish Medicaid's assurance of coverage of a defined array of medically necessary services. This paper argues that some (although not all) of the proposed reforms would lessen our commitment to care for the poor and disabled, in some cases pushing vulnerable people out of public coverage. It argues that the state of private coverage is such that these ejected beneficiaries would become uninsured. Ironically, the Medicaid reforms would, in addition to weakening Medicaid, also weaken the safety net for the uninsured. Some of the long term structural reforms threaten to push Medicaid beneficiaries out of the program to a reduced safety net.


Blogger EquiisSavant said...

Why isn't anyone asking if this violates (1) Title II of the Americans With Disabilities Act (Congressional objectives expressly address lesser health care as a form of discrimination), (2) the International Covenant on Civil and Political Rights, (3) the Convention against Torture, Cruel, Inhumane, and Degrading Treatment, and (4) the Convention Against Genocide. The latter three treaties have all been ratified, 1992, 1994, and 1998.

It seems to me if disabled people are going to be cut of necessary medical care they will get sicker and die. Disabled people are already suffering housing funds that have been cut to the bone, SSI disability benefits that do not cover food and medication, much less housing, and disabled people who need a car as a reasonable accommodation, well that is not even in the picture. We see the Supreme Court now says a severely disabled person's SSI necssary for food and medication can be taken (about 15%) to repay student loans. Disabled people are many times the people who we all see eating out of garbage cans. Leaving disabled people to what? Just die off?

So are Americans to believe all other countries in the international community have to abide by those three human rights treaties, and not the United States?

We let aliens enforce these treaties through the Alien Tort Claims Act, and they are not even brn here. E.g., Filartega v. Pena-Irala.

For far too long disabled people have suffered treatment described in the Solicitor General's Briefs in Medical Board of California v. Hason and Tennessee v. Lane which would clearly qualify as violations of all three of these treaties if the victim were an alien bringing suit under the Alien Tort Claims Act.

Supposedly Title II of the ADA and the Rehabilitation Act of 1973 are meant to address some of this wrongful treatment of the disabled, but some courts have read lesser health care right out of the express language in the ADA's Congressional findings as included in the type of things constituting "forms of discrimination" as the Supreme Court characterized it in Olmstead v. L.C. Aren't courts supposed to give effect to the plain language of the statute, and not render any part of a statute mere surplusage?

The problem I have with this trend to eliminate the disabled population, the ruling of the Supreme Court on raiding survival SSI to repay federal student loans, and even the ridiculous issue recently raised about the rule conflict between No Child Left Behind and the IDEA, is -- hasn't anyone at the relevant Federal agencies bothered to ensure their rulemaking and statutory interpretation accords with international law? See, Charming Betsy. They were able to do so when it came to Migratory bird treaties and federal law, but I guess not when it comes to the disabled.

The student loan case obviously reached the wrong result, but not on account of the Supreme Court; the problem there was the disabled person's lawyers evidently did not know how to apply the ADA and its express conflict preemption provision (preempting State laws and "other federal laws"), together with the ADA's "independent living" and "economic self-sufficiency" mandate, into the mix. Under the type of reasoning set forth in a California Supreme Court case, Ora Peatros, the ADA would have under an appropriate construction incorporated the Social Security bar on offset, and applied it through the ADA to conflict preempt out (partial repeal)the offending provision of the Debt Collection Act and HEA. A lost opportunity, unfortunately.

As far as the other problem of all this new trend to let disabled people get sick and die by eliminating their housing, food supply, medical care, transportation, and everything one needs to survive -- well, it would seem to me, the ADA has an incorporation clause of Congressional powers enforceable under the Act as indicated by the use of non-exhaustive language in 42 U.S.C. Section 12101(b)(4), which appears to allows the ADA to serve as pre-existing legislation to enforce these human rights treaties domestically in the United States on behalf of the disabled and against the States who want to eliminate the disabled.

How are policies certain to lead the disabled to die from cutting off their medical care not a violation of the Convention Against Genocide? Why are people in all other countries protected by these human rights treaties, but not Americans in their own country?

And these people who are drafting this legislation and elected to political office, are any of them lawyers who passed a "moral character" evaluation? It constitutes good moral character to ensure the sickness, disease, and death of potentially hundreds and thousands of disabled people, the most vulnerable of all American citizens?

I really have a problem with this, and those responsible for such reprehensible policies against the disabled population should be voted out of office and hang their heads in the shame of their tax cuts for the rich.


11:16 PM  

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