The House Report included concerning language stating "as a result of enactment of the ADA and the Supreme Court decision in Olmstead, there has been a national trend towards deinstitutionalization..." The report went on to say because of this "individuals residing in institution-like facilities have been pressured to move into the community against their wishes" and that the Committee is "concerned about the adequacy of community-based housing." In addition, the Committee expressed concern regarding "higher rates of abuse and mortality in community settings and the adequacy of opportunities for residents to express views and preferences."
AUCD is in the process of gathering information in order to work with Members on updating this language to more accurately reflect the current state of inclusion and safety of people with disabilities living in the community.
Action Step: Please send [email protected] suggested citations to counter the assertion of higher rates of abuse and mortality. Advocates can also share personal stories about the support you are receiving in your community and the importance of comprehensive person-centered planning.
Health Care
Home Health
On July 2, the Centers for Medicare & Medicaid Services (CMS) proposed significant changes to the Home Health Prospective Payment System. In short, CMS is considering paying home health agencies for remote patient monitoring (which involves the use of digital tools to collect health data such as vital signs, weight, blood pressure, blood sugar, blood oxygen levels, heart rate, electrocardiograms, etc.).
Specifically, CMS is proposing changes to "improve access to solutions via remote patient monitoring technology, and to update the payment model for home health care." As required by the Bipartisan Budget Act of 2018, this proposed rule would also implement a new Patient-Driven Groupings Model (PDGM) for home health payments, which would begin January 2020. The current system pays for 60-days of care and relies on the number of therapy visits a patient receives to determine payment. The PDGM would eliminate the use of "therapy thresholds" in determining payment and changes the unit of payment to 30-day periods of care.
Some groups are concerned that the rule invites fraudulent behavior, negates the importance of promoting independence, and uses cost reports that lack accuracy. AUCD has begun reviewing this proposed rule.
Action Step: Public comments are accepted through August 31, 2018. To assist stakeholders in commenting on this proposed payment change CMS has shared several resources: a provider-level impact estimate file can be downloaded, as well as a grouper tool that can be used to understand how the proposed payment grouping parameters would be used to determine case-mix assignments that are part of the payment calculation.
Affordable Care Act
On July 7, CMS announced that it is halting payments required under the ACA's "risk adjustment" program, drawing swift protest from the health insurance industry. Risk adjustment provides financial support for insurance companies to cover consumers who require significant, sometimes expensive, medical care by pooling risk among all insurers to expand access to care for high-risk consumers (learn more here). Advocates including AUCD are concerned that halting risk adjustment will undermine access to affordable coverage, particularly for those who need medical care the most.
Action Step: Contact your Members of Congress to advocate for continued implementation of the ACA as intended to ensure access to care for all.
Civil Rights
Department of Justice
On July 3, Attorney General Jeff Sessions announced that he is rescinding (getting rid of) 24 guidance documents that were "unnecessary, outdated, inconsistent with existing law, or otherwise improper." Some of these documents provided guidance on juveniles in adult jails, federal protection against national origin discrimination, fair employment, language assistance, diversity in post-secondary education, avoiding racial isolation in elementary and secondary schools.
Most concerning to many advocates were seven Obama administration guidance statements from 2011 to 2016 regarding affirmative action (a policy in which an individual's color, race, sex, religion or national origin are taken into account to increase opportunities provided to underrepresented groups). The Trump administration stated that colleges/universities and public schools should not consider race in admissions. Secretary of Education Betsy DeVos stated "the Supreme Court has determined what affirmative action policies are Constitutional, and the Court's written decisions are the best guide for navigating this complex issue... Schools should continue to offer equal opportunities for all students while abiding by the law."
Action Step: Advocate within your state and communities for policies support diversity and avoid racial isolation.
Work Requirements - Native Populations
Six days after inviting states to submit Section 1115 Medicaid work demonstrations and five days after approving Kentucky's proposal last January, CMS notified Indian tribal leaders that federal civil rights laws that bar discrimination based on race or national origin prevented the agency from exempting the American Indian and Alaska Native population from work requirements. Four months later, CMS Administrator Seema Verma signaled a partial reversal, suggesting that states could exempt the Indian population at their option: "We believe we can give states flexibility and discretion to implement the community engagement requirements with respect to local tribal members."
Many advocates are concerned that CMS has failed to recognize the interplay between Medicaid waivers and the federal laws safeguarding Indians' health. This relationship is grounded in what is known as the U.S. government's "trust responsibility," one that the Supreme Court has recognized, which ensures special benefits to Indian tribes and tribal members in accordance with treaties or laws. Advocates argue that choosing whether to honor federal commitments to Indian health is not a state option. The Common Wealth Fund states, "Should a Medicaid work requirement result in a mass loss of eligibility among American Indians, it would likely have spillover effects on the IHS, which relies on Medicaid revenue. The potential injury that could come from Medicaid work requirements cannot be measured only in terms of the numbers likely to lose coverage, but also the viability of the health care system on which a large part of the American Indian and Native Alaskan population depends."
Action Step: Educate your Medicaid agency about 1) the historical purpose of the "trust responsibility;" 2) the importance of the Indian Health Care Improvement Act, which strengthened health care under the Indian Health Service (IHS); 3) the significance of the 1976 amendment to Medicaid, which ensures that the federal government assumes 100 percent of the costs from IHS clinics and hospitals; and 4) Medicaid being a central part of the federal government's Indian health policy, representing 13 percent of total IHS program operations and providing care to 50 percent of Indian and tribal children.
Action Step: Local, state, and national organizations are encouraged to sign on to the Inclusive Higher Education Committee (IHEC) letter to Education Secretary DeVos.
Electric Shock Devices in School
Today AUCD made a public statement strongly opposing the decision to continue allowing the use of electric shock in schools. See previous In Brief for background.
Money Follows the Person (MFP)
AUCD signed on to a letter drafted by the Aging and Disability Advocacy Work Group urging action on the reauthorization of the MFP program. The letter was sent to Chairman Walden and Ranking Member Pallone of the House Energy and Commerce Committee, and Chairman Burgess and Ranking Member Green of the Health Subcommittee on June 22, 2018.
Action Step: Continue to educate your Members on the importance of MFP.
Environmental Protection Agency (EPA)
On July 6, Scott Pruitt resigned from his position leading the EPA, following months of high-profile controversies regarding his spending, ethics, and management at the agency. Andrew Wheeler, who the Senate confirmed in April to be deputy administrator at the EPA, will become acting administrator.
Tuesdays with Liz: Disability Policy for All
Supreme Court decisions affect EVERYONE, which is why Liz thought this week, in response to President Trump's nomination of a new Justice, it would be helpful to look back at her interview with AUCD Executive Director Andy Imparato from the last time a Court spot needed to be filled. Also see previous In Brief for background on Justice Anthony Kennedy's retirement.
A network of interdisciplinary centers advancing policy and practice for and with individuals with developmental and other disabilities, their families, and communities.
