July 21, 2017

We Need 2017 Health Care, Not 1933

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By Sean Pevsner, J.D. / 07.21.2017
Brewminate Legal Analyst

The Statue of Liberty is a symbol of freedom and compassion.  The inscription on it states “Give me your tired, your poor, Your Huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!”[1]  The current occupant of the presidency is the antithesis of this idea.  During his campaign, he called for a ban of Muslims from entering the United States of America.  He mocked a New York Times reporter with a disability, Serge Kovaleski, because the reporter said that one of his stories did not report any Arabs celebrating the September 11, 2001 terrorist attacks as Trump claimed.[2]

In the United States of America, we value liberty, dignity and compassion.  A prime example of how America shows these values is ensuring that Americans with disabilities have an opportunity to live in the community instead of institutions.  Americans with disabilities require services such as personal care attendants, nursing/medical care and accessible housing.  Medicaid programs provides these services to eligible individuals with disabilities.  Disability rights advocates have fought very hard to secure these services both by convincing their elected officials to appropriate funds for community based services and by seeking legal relief from the courts.  Advocates have engaged in peaceful protests at states’ capitols as well as our nation’s capital.[3]  These advocates won a big victory in the Supreme Court’s 1999 ruling in Olmstead v. LC.  Writing for the 6-3 majority, Justice Ruth Bader Ginsburg ruled that states must provide community based services to eligible people with disabilities to avoid institutionalizing these individuals.  Justice Ginsburg found that the State of Georgia violated the ADA by refusing to provide two women with mental health disabilities with community based services to avoid institutionalizing them.  Specifically, Ginsburg ruled that Georgia violated the Justice Department’s ADA integration regulation, which states “[a] public entity shall administer services … in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” After the Olmstead decision, the Justice Department began to vigorously enforce this decision.[4]  The main tool that the Justice Department and disability rights attorneys use to implement Olmstead is Medicaid home and community based services.

When Congress passed the Affordable Care Act in 2010, representatives agreed to create the Community First Choice program (“CFC”) to provide states with extra community based services funds.[5]  The CFC is an optional program in which states can participate.  If states participate in this program, the federal government provides a 6-percentage point increase in Federal matching payments to States for service expenditures related to this option.[6]  The CFC funding provides certain services and supports to individuals living in the community who are enrolled in the Medicaid program and meet CFC eligibility requirements. This funding gives people with disabilities with life-supporting services such as personal care attendants and habilitation services.[7]

Trump and Congressional Republicans want to repeal the Affordable Care Act, which includes vital Medicaid services for people with disabilities.  Senate Republicans are proposing their so-called Better Care Reconciliation Act that would essentially gut Medicaid.  Under the current proposed law, the government would cut around 8 billion dollars from Medicaid, while at the same time transforming Medicaid into block grants.[8]  With block grants, states would be forced to divide Medicaid funds for people with disabilities between institutions and community-based services.  States, such as my home state of Texas, put more of its Medicaid funding for people with disabilities towards institutions rather than community-based services.  If the proposed Medicaid cuts pass, most states including Texas will most likely not choose to participate in the CFC.  The reason for this decision is that the CFC provides federal matching funds.[9]  The Republicans want to cut these funds in their proposed law.   Without these services, a significant percentage of people with disabilities cannot live in society. These cuts would roll back almost all the progress that disability rights advocates have made obtaining community based services. Republicans are demonstrating their irrational views towards people with disabilities, unabashedly so.

According to the Congressional Budget Office (“CBO”), The proposed health care law would terminate the increase in the federal matching funds beginning in calendar year 2020.[10] The CBO estimates that the proposed law would decrease direct spending by about $19 billion over the next 10 years.[11]  These cuts would force a significant percentage of the disability population into institutions, segregated from society.

On July 26, 1990, President George H.W. Bush signed the Americans with Disabilities Act into law, forever changing the way the government cares for its citizens with the greatest needs. Back then, Republicans and Democrats worked together to establish the single greatest bipartisan advancement in disability rights; nearly 27 years later, those hard-won rights are under attack. The so-called Better Care Reconciliation Act would gut Medicaid funding by almost 8 billion dollars, essentially eliminating important state funding that allows people with disabilities to live in their communities instead of being placed in institutions.

If the Republicans pass this so-called Better Care Reconciliation Act, people with disabilities would have to compete with the elderly and low-income people for Medicaid funding.  With states shouldering most of the financial responsibility of Medicaid assistance, they might very well decide to ration funding.  Given states like Texas that is already institutionally bias with its Medicaid funding, people with severe disabilities probably would be warehoused in institutions.  As time goes on and their budgets get tighter, states might very well decide to establish panels to determine which groups receive life-supporting Medicaid services.  These panels might very well assist people with end of live options to save the government’s money.  This very argument was put forth by US Senators and House of Representatives in the Republican Party against the Affordable Care Act. [12] The difference between their argument and mine is that my argument could become a reality.  My argument has real facts whereas they had fake facts from a raving lunatic named Sarah Palin.

These draconian cuts that would go into effect under the so-called Better Care Reconciliation Act do not represent the American values.  They represent a government in 1933.  This government viewed people with disabilities as drains on governmental resources and having unworthy lives.  This government soon believed it was in the best interest of people with disabilities and the government to euthanize them.[13]

We must resist the forces that would make our great country like the 1933 government.  As Winston Churchill said while fighting the Nazis, “[n]ever give in–never, never, never, never, in nothing great or small, large or petty, never give in except to convictions of honor and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy.”[14]


[1] https://www.statueoflibertytickets.com/Statue-Of-Liberty/?show=history
[2] https://www.nytimes.com/2015/11/27/us/politics/donald-trump-says-his-mocking-of-new-york-times-reporter-was-misread.html?_r=0
[3] https://vimeo.com/224763857?ref=fb-share&1
[4] https://www.ada.gov/olmstead/olmstead_cases_list2.htm
[5] https://www.medicaid.gov/medicaid/hcbs/authorities/1915-k/index.html and https://hhs.texas.gov/doing-business-hhs/provider-portals/resources/community-first-choice-cfc
[6] https://www.medicaid.gov/medicaid/hcbs/authorities/1915-k/index.html
[7] https://hhs.texas.gov/doing-business-hhs/provider-portals/resources/community-first-choice-cfc
[8] http://www.thearc.org/what-we-do/public-policy and https://www.cbo.gov/publication/52849
[9] http://www.thearc.org/what-we-do/public-policy and https://www.cbo.gov/publication/52849
[10] https://www.cbo.gov/publication/52849
[11] Id.
[12] http://www.npr.org/2017/01/10/509164679/from-the-start-obama-struggled-with-fallout-from-a-kind-of-fake-news, http://www.politifact.com/truth-o-meter/article/2009/dec/18/politifact-lie-year-death-panels/,
[13] https://www.ushmm.org/collections/bibliography/people-with-disabilities
[14] https://quotecatalog.com/quote/winston-churchill-never-give-in–baVn5oa