On September 26, President Trump nominated Judge Amy Coney Barrett to be an Associate Justice on the Supreme Court of the United States. Judge Coney Barrett, a Chicago-based federal appeals court judge, would replace the late Justice Ruth Bader Ginsburg, if confirmed by the Senate. Issues important to people with disabilities often come before the U.S. Supreme Court. They span such important concerns as rights under the Americans with Disabilities Act; the right to fair, non-discriminatory treatment in health care settings; and the death penalty.
On September 18, U.S. Supreme Court Justice Ruth Bader Ginsburg passed away. Justice Ginsburg served on the Supreme Court for 27 years. She authored the majority opinion in the landmark case Olmstead v. L.C. in which the court ruled that people with disabilities have a right to be free from inappropriate institutionalization and to be served in the “most integrated setting appropriate to the needs.” See The Arc’s statement.
On June 30, the Supreme Court issued a ruling in Espinoza v. Montana Department of Revenue. Montana’s tax credit scholarship program allows a dollar-for-dollar tax credit for donations to an organization that provides private school scholarships. The state’s supreme court invalidated the program because of a provision of the state constitution prohibiting the use of government funds for religious schools. The United States Supreme Court reserved that decision on the grounds that the state constitutional provision in question violated the First Amendment’s Free Exercise Clause. While the ruling does not require states to operate private school voucher programs, it does require that all states that do operate such programs make them available to religious as well as secular schools. The Arc is disappointed in this ruling because it is likely to lead to an increase in public funding for schools that are not subject to the Americans with Disabilities Act or the Individuals with Disabilities Education Act. See The Arc’s statement.
On June 27, the Supreme Court issued a ruling in the Department of Commerce v. New York. The Court ruled that the Administration’s decision to add a question about citizenship to the 2020 Census violates the Administrative Procedures Act. The White House has argued that the question will increase protections for minority voters while opponents (including The Arc) are concerned that it will deter immigrant households from taking part in the census. The decennial census provides information to states in order to determine Congressional districts and to help allocate federal funding. Undercounting of households would result in under-representation in Congress and fewer federal dollars for health, education, housing, employment, transportation and other programs. The Administration now has a limited amount of time to develop a new rationale if they seek to include the question in the census.
On October 6, the Senate approved the nomination of Judge Brett Kavanaugh to serve as an Associate Justice on the Supreme Court by a vote of 50 to 48. Read The Arc’s statement on Judge Kavanaugh’s appointment here.
Last week, the Senate Judiciary held a four-day hearing on the nomination of Brett Kavanaugh to be an Associate Justice on the Supreme Court. The first three days involved questioning on Judge Kavanaugh himself. The fourth day involved additional witnesses, including Elizabeth Weintraub, Advocacy Specialist at the Association of University Centers on Disabilities, and Jackson Corbin, a 13-year-old with Noonan Syndrome. Ms. Weintraub testified about the importance of self-determination to her as a woman with intellectual disability and Judge Kavanaugh’s ruling in Doe Tarlow v. District of Columbia, in which he concluded that people with intellectual disability who have “never been competent” do not have a right to even have their wishes heard or considered in medical decisions (see and share video of her testimony). Jackson’s testimony related to the importance of the Affordable Care Act to his mother, his brother, and himself, all of whom have Noonan Syndrome, which comes with multiple pre-existing conditions. Visit the Committee web site (Day 1, Day 2, Day 3, Day 4) for more information or to view archived video of the hearing. The Arc opposes Judge Kavanaugh’s nomination.
The U. S. Supreme Court upheld the Affordable Care Act (ACA) again in deciding King v. Burwell. The justices, in a 6-3 ruling, said that Congress intended for federal subsidies to be available in every state, regardless of whether the state created its own marketplace. The Arc applauded the decision as a major victory for people with disabilities and others who need access to affordable health care.
The ACA is important to people with disabilities. It expanded coverage and reformed insurance to end discrimination against people with disabilities and enhance access to health care. The private health insurance marketplaces allow individuals or small businesses to shop for coverage and potentially receive subsidies to help offset the cost of insurance. The subsidies are key to ensuring affordable coverage. The health insurance reforms, the protections from high premium increases or out-of-pocket costs, and the coverage of “essential health benefits”, including mental health care and rehabilitative/habilitative services and devices, help assure that people with disabilities have affordable health care that meets their needs. To read The Arc’s statement visit our blog.
On March 31, in Armstrong v. Exceptional Child Center, Inc., the U.S. Supreme Court decided that the Constitution’s Supremacy Clause cannot be used by private providers of Medicaid-funded community services for people with developmental disabilities to sue the state of Idaho for setting payment rates too low. The providers of habilitation services had sued Idaho for violating a provision of the Medicaid program that requires states to set rates that ensure adequate access to services. The United States Court of Appeals for the Ninth Circuit upheld the providers’ right to sue Idaho under the Supremacy Clause.
The issue of provision of adequate rate-setting is a major one for Medicaid beneficiaries, including people with I/DD. Unfortunately, the Supreme Court decided that the Supremacy Clause does not confer a private right of action, and that Medicaid providers cannot sue to enforce the Medicaid provisions requiring states to “assure that payments are consistent with efficiency, economy, and quality of care” while “safeguard[ing] against unnecessary utilization of … care and services”. Some court observers believe that this decision could further narrow the rights of beneficiaries to use other means to protect individual rights. It remains to be seen how this decision will be interpreted in the lower courts and in future Supreme Court decisions.
Today, the Supreme Court will hear arguments in an important case involving Medicaid. At issue in the case (Armstrong v. Exceptional Child Center, Inc.) is whether there is a judicial process to ensure that Medicaid beneficiaries have equal access to care as required by the law. Specifically, this case involves Medicaid providers suing the state over inadequate reimbursement rates. The Arc will be following the case closely as judicial action by private parties has been an important advocacy tool in enforcing aspects of the Medicaid law. The Arc is also very concerned that inadequate provider reimbursement rates create barriers to accessing health care and living in the community.
Last week, the Senate Committee on Health, Education, Labor and Pensions held a hearing on “Moving Toward Greater Community Inclusion – Olmstead at 15,” in recognition of the anniversary of the Supreme Court’s June 26, 1999 decision in Olmstead v. L.C. In its decision, the Supreme Court held that the unnecessary segregation of people with disabilities violates their civil rights under the Americans with Disabilities Act of 1990. Witnesses included Ricardo Thornton and Donna Thornton, two self-advocates from Washington, DC who have a long history of working closely with The Arc. The Thorntons shared their experience of living at DC’s former public institution for people with intellectual and developmental disabilities – and subsequently leaving the institution, getting married, and raising a family together. Other witnesses included Emmanuel Smith, PABSS (Protection and Advocacy for Beneficiaries of Social Security) Advocate, Disability Rights Iowa, Des Moines, IA; Norma Robertson-Dabrowski, Director of Nursing Home Transitions, Liberty Resources, Philadelphia, PA; Gail Godwin, Executive Director, Shared Support Maryland, Baltimore, MD; and Dr. Troy Justesen, Director of Public Policy, Utah Developmental Disabilities Council, Orangeville, UT. Visit the Committee web site to view video of the hearing and written testimony.
At the hearing, Committee Chairman Tom Harkin (D-IA) announced his introduction of the Community Integration Act (S. 2515), to ensure “people with disabilities can choose to live in the community and receive the same supports and services they would receive in institutional settings.” As summarized in Chairman Harkin’s announcement, the Act would:
- Eliminate the Nursing Home Bias in Medicaid by clearly allowing the provision of similar care or services in home- and community-based settings.
- Prohibit states from making anyone ineligible for home- and community-based services based on a particular disability.
- Require states that have found an individual to be eligible for nursing or institutional care to similarly find those same individuals to be eligible for care in home- and community-based settings.
- Set clear requirements for states regarding the provision of services in home- and community-based settings.
- Require annual reporting by states about the number of individuals with disabilities in institutional settings and the number that have been transitioned to home- and community-based settings.