On June 29, a federal judge ruled that Kentucky’s proposed waiver, which included work requirements, monthly premiums, lockouts for non-payment, limits on retroactive eligibility and non-emergency medical transportation, and penalties for non-emergency use of emergency rooms was arbitrary and capricious. The judge ruled that the waiver was invalid because the Department of Health and Human Services did not take into account the primary objective of the Medicaid statute: “to furnish medical assistance.” However, the ruling did leave open the possibility that a waiver including work requirements might pass legal muster if its impact is more carefully considered. The Arc is very concerned about potential barriers to health care created by work requirements and other policies.
On June 7, the Department of Justice announced that it will not defend key provisions of the Affordable Care Act (ACA) in a lawsuit challenging the law’s constitutionality. The lawsuit filed by Texas and 19 other states, argues that since the Tax Cuts and Jobs Act reduced the penalty for not purchasing insurance to $0, it no longer raises revenue, and is therefore no longer constitutional under the tax powers of Congress. Furthermore, they argue that if the court strikes down the individual mandate, the rest of the ACA must also be struck down. The Department of Justice response argues that the individual mandate is unconstitutional but other provisions of the ACA should remain intact. The Administration further asserts that two critical protections for people with pre-existing conditions, guaranteed issue and community rating provisions, are unenforceable. Guaranteed issue is the provision that prevents denial of coverage based on health status and community rating helps keep insurance affordable for people with health conditions. California and sixteen other states have filed a motion to intervene, which would allow them to defend the law. Peter Berns, CEO of The Arc submitted a declaration in support of California’s motion to intervene. Read The Arc’s statement here.
In a packed courtroom, at a hearing last week, US District Court Judge John Gibney announced that he would approve the settlement agreement negotiated between the Department of Justice (DOJ) and the Commonwealth of Virginia contingent on the parties agreeing to certain changes. If approved, the settlement will mark a significant development in Virginia’s transition to a community-based system of services and supports for individuals with disabilities. As part of the agreement, Virginia plans to close four of its five training centers (intermediate care facilities for individuals with intellectual and developmental disabilities).
In addition to DOJ and the Commonwealth, the Judge allowed a third party to participate in last week’s hearing. Parents of individuals who live in the training centers and who oppose parts of the settlement agreement were permitted to offer witness testimony and arguments during the hearing. Virginia and DOJ asked the judge to approve the settlement which would provide services to thousands of individuals who are on waiting lists and build in appropriate safeguards.
The proposed changes sought by Judge Gibney would consist of the following: (1) a requirement that a death of any individual who has left a Training Center be immediately reported to the Independent Reviewer, (2) a clarification about who has the ability to provide consent for discharge from a Training Center and a requirement that consent must be provided prior to discharge (3) a provision that residents of training centers can insist on remaining in state-run facilities and that state officials cannot remove residents without the consent of their authorized representatives.
On technical grounds, the US Court of Appeals for the Second Circuit overturned a lower federal court ruling that New York’s practice of segregating individuals with mental illness in large, congregate settings called adult homes was discrimination. The lower court had ordered the state to provide smaller community-based settings for over 4,000 individuals who live in the adult homes. The reason the appeals court overturned the decision was its finding that Disability Advocates, Inc. (DAI), a private non-profit agency that contracts with the state’s protection and advocacy system to provide legal services to individuals with mental illness, did not have standing to file the lawsuit.
The United States Supreme Court remanded the California Medicaid challenge, Douglas v. Independent Living Center of Southern California et al., to the Ninth Circuit Court of Appeals, delaying a decision on whether Medicaid providers and beneficiaries can bring lawsuits against state Medicaid officials. The Douglas case arose when California severely reduced Medicaid provider rates. Medicaid providers and beneficiaries sued, arguing that the rate reduction violated federal law. Since the Supreme Court agreed to hear the case, the Centers for Medicare and Medicaid Services (CMS) determined that California’s rate reductions did not violate federal law. The Ninth Circuit will rehear the case to determine if Medicaid providers and beneficiaries can maintain their cause of action in light of the decision by CMS.
A class action lawsuit, filed in U.S. District Court, charges Oregon state officials with violating the Americans with Disabilities Act and the Rehabilitation Act by failing to provide supported employment services to more than 2,300 state residents with disabilities who currently work in segregated sheltered workshops. The lawsuit, Lane v. Kitzhaber, seeks an injunction requiring the state to provide “an adequate array of integrated employment and supported employment services, as to avoid unnecessary segregation” and to provide supported employment services in integrated settings for all state residents currently employed in sheltered workshops. Review the complaint.
The Supreme Court will hear oral arguments in a case on Monday, October 3, that The Arc and the disability community are watching very closely. The case, Douglas v. Independent Living Center of Southern California, concerns whether individuals and providers can sue states to block cuts to Medicaid rates. California maintains that only the federal government can enforce the portion of the law concerning payment rates. The case began in California when the state planned to cut provider rates, some as much as 10%. The Justice Department and National Governors Association filed briefs taking the side of the state in the case, while House Minority Leader Nancy Pelosi (D-CA) and Representative Henry Waxman (D-CA), both from California, have sided with the respondents.
Medicaid law requires states to keep their payment rates high enough to attract an adequate supply of providers. The argument in the case before the Supreme Court involves whether individual beneficiaries and providers have the right to enforce that mandate while overriding the state law reducing provider rates. The respondents argue that under the Constitution’s Supremacy Clause, individuals have the right to sue a state to ensure that provider rates are adequate. The 9th Circuit Court of Appeals ruled in their favor in 2008, blocking the cuts.
If the Court finds that individuals do not have the right to sue a state to enforce the payment provision of Medicaid law, The Arc and other disability organizations fear that the federal government alone would not have the capacity to monitor over 51 different Medicaid programs to make sure that provider rates are adequate to ensure an adequate supply of providers. A decision could come at any time during the Court’s term, which runs until June 2012.
The US Fourth Circuit Court of Appeals dismissed two challenges to the Affordable Care Act: Virginia v. Sebelius and Liberty University v. Geithner. Virginia Attorney General Ken Cuccinelli’s suit claimed that the Affordable Care Act’s (ACA) requirement that most people buy health insurance, the so-called individual mandate, violated Virginia law. At the same time the ACA was passed, the Virginia legislature passed a law saying that state residents could not be forced to purchase insurance. The Court held that Virginia did not have the right to sue because “the sole provision challenged here — the individual mandate — imposes no obligations” on the state itself. In the Liberty case, the court said the law cannot be challenged before the mandate goes into effect. Appeals to the U. S. Supreme Court have been promised in both cases.
There is a divide among the circuit courts which most likely will have to be resolved by the Supreme Court. The 6th Circuit upheld the individual mandate in a June decision, while the 11th Circuit, which heard the high-profile challenge filed by 26 state attorneys general, ruled that the mandate is unconstitutional.
Under its Project Civic Access, The Department of Justice entered into an agreement with Montgomery County, Maryland and the Maryland National Capital Park and Planning Commission under Title II of the Americans with Disabilities Act (ADA). Montgomery County agreed to make its facilities, program, services, and policies accessible to people with disabilities, including buildings, parking lots, 911 service, sidewalks, emergency shelters, and employment policies. Read the agreement.
The Department of Justice (DOJ) and local New Mexico law enforcement brought the first charges under the Matthew Shepard and James Byrd J. Hate Crimes Prevention Act of 2009. Three men have been charged with assaulting a 22-year-old Navajo man with a developmental disability. The defendants admitted to covering the victim’s body with white supremacist and anti-Native American symbols, including shaving a swastika in the back of his head and using markers to write the words “KKK” and “White Power” on his skin. They recorded the incident on cell phones. Learn more about the case from DOJ.