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.
Earlier today, the U.S. Supreme Court ruled in favor of Freddie Lee Hall in the case Hall v. Florida, a death penalty case concerning the definition of intellectual disability (ID) that Florida uses in deciding whether an individual with that disability is protected by the Court’s decision in Atkins v. Virginia. In 2002, the Supreme Court ruled in the Atkins v. Virginia case that executing inmates with ID is unconstitutional as it violates the Eighth Amendment ban on cruel and unusual punishment.
The Supreme Court ruled 5-4 in favor of Hall. The justices stated that Florida cannot rely solely on an IQ score to determine whether an inmate has ID. Justice Anthony Kennedy stated that IQ tests have a margin of error and those inmates whose scores fall within the margin must be allowed to present other evidence. Additionally, Justice Kennedy modified the 2002 Atkins decision by adopting the term “intellectually disabled” and abandoning “mentally retarded,” which has previously been used by the court in its opinions.
To read The Arc’s statement visit our blog.
Earlier this month, the U.S. Supreme Court heard oral arguments in the death penalty case Hall v. Florida concerning the definition of intellectual disability (“mental retardation” is used in court cases) which states use in deciding whether an individual with that disability is protected by the Court’s 2002 decision in Atkins v. Virginia, that execution of people with intellectual disability (ID) is unconstitutional. The oral arguments are now available online.
The U.S. Supreme Court heard oral arguments in Harris v. Quinn on January 21, 2014. The case concerns whether a state can consider direct care workers, who are reimbursed through Medicaid, state employees and compel them to pay union fees exclusively to one private organization in exchange for negotiating better reimbursement under Medicaid. The Supreme Court will consider whether the constitutional rights of those workers are violated by Illinois laws that require them to pay dues to unions designated by the State to serve as their exclusive representative. In 2003 Illinois recognized personal assistants (PAs) who are reimbursed through a Medicaid rehabilitation waiver as state employees, designated SEIU as the exclusive bargaining agent, and required all PAs to pay mandatory union fees. In 2009, Illinois recognized direct care workers who provide services for individuals with disabilities under a home based support services Medicaid waiver as public employees. However, those workers voted against unionization.
The plaintiffs in the case, a group of eight direct care workers who do not want the union to represent them and do not believe they should have to pay partial union fees, argue that they are not public employees and that their First Amendment rights are being violated by being required to support a union to speak on their behalf. (The named plaintiff in the case, Pam Harris, provides in-home personal care services to her son who has a developmental disability.) Plaintiffs lost in the federal district court and in the U.S. Court of appeals for the Seventh Circuit. The appeals found the Illinois PAs to be public employees whom the state could compel to pay union fees to SEIU as their exclusive bargaining agent. (The court said that it would not decide the issue for direct care workers reimbursed through the home based support services Medicaid waiver because those workers had not agreed to union representation and were not being compelled to pay union fees.) Both the U.S. Government and the State of Illinois urged the court not to hear the case. The case has piqued the interest of labor unions and right to work advocates and could have far reaching consequences for public unions across the county. The case is also of interest to disability advocates.
The U.S. Supreme Court sent the Liberty University v. Geithner case back to the Fourth Circuit Court of Appeals. Liberty University had been challenging both the individual mandate and the employer mandate in the Affordable Care Act (ACA) based on claims of violation of religious freedom and claims that it was beyond Congress’s powers under the Constitution. The Fourth Circuit had previously ruled on procedural grounds that Liberty could not sue to stop the mandates. The Supreme Court’s order means that the Fourth Circuit must review the case given the Supreme Court’s decision earlier this year that the individual mandate was constitutional. The Supreme Court has not addressed the employer mandate.