AUCD Legislative News In Brief

December 7, 2009

Congressional Schedule
Congress will be very busy over the next two weeks trying to finalize the annual appropriations bills, a package of financial regulations in the House, and completing work on health care reform in the Senate. House and Senate Congressional leaders have signaled that they may keep Congress in session until December 23 if needed to work on health care reform proposals and to pass appropriations legislation. Last week, Majority Leader Steny Hoyer released the House legislative schedule for the second session of the 111th Congress. The schedule is available at:

 Health Care
The Senate is in its second week of debate on its health care reform bill, the Quality, Affordable Health Care for All Americans Act (HR 3590).  .  Last week the main issue being debated are Medicare reform provisions, including cuts to Medicare Advantage and optional home health services. However, the CLASS Act was also debated extensively (see below).  This week, it is expected that the difficult topics of abortion and the public option will be debated.  The Kaiser Health News summarizes the big remaining issues that will be debated. Any of these issues could lead to killing the whole bill if they prevent the Democrats from achieving 60 votes to pass the bill.

The Democratic Leadership still hopes to complete its work on the Senate bill before the holiday recess in two weeks.  If the bill is approved by the Senate, a conference committee will still have to reconcile the differences between the two bills.   Both chambers will then have to vote on the amended version before the President can sign the bill. At this point no one expects a bill to be signed into law before February.

On Friday, Sen. John Thune (R-SD) offered an amendment to strike the CLASS Act provision from the Senate health care reform bill. The amendment needed 60 votes to pass. Thankfully, the amendment only garnered 51 votes and the amendment was withdrawn.  It was disappointing that 11 Democrats voted for the Thune amendment. Unfortunately, other variations of the amendment could still be brought forward, so advocates need to continue to educate targeted members about why this program is important.  AUCD staff joined other disability and aging advocates at the Capitol to continue educating members as they entered the chamber just before the vote.  Advocates were able to personally thank Sens. Harkin, Dodd, and Casey for their favorable remarks on the floor.  See the link to the roll call.  Please thank your members who voted against the Thune amendment and continue to educate those that voted for the Thune amendment, especially Baucus (D-MT), Bayh (D-IN), Carper (D-DE), Conrad (D-ND), Landrieu (D-LA), Lincoln (D-AR), McCaskill (D-MO), Nelson (D-NE), Udall (C-CO), Warner (D-VA), and Webb (D-VA).  During the debate, opponents claimed that the CLASS Act is "not a solvent program" despite the fact that the Congressional Budget Office has shown the CLASS plan to be financially sustainable for the long term.  In fact, CBO has projected that it would be solvent for at least 75 years, even using the most conservative data. CBO further estimated that the program would reduce the deficit by $72 billion over 10 years, saving $1.6 billion for Medicaid during the first four years of the program. See AUCD's health care policy site for a two-page Q&A on the CLASS Act, a side-by-side of the health care reform bills, and full text of the House and Senate bills.

Autism and Health Care
Sen. Robert Casey (D-PA) plans to offer an amendment to the Senate health care reform bill (HR 3590) that will provide major opportunities to build our nation's capacity to correctly diagnose and provide evidence based services to children and adults with autism spectrum disorders and other developmental disabilities. Thanks to an amendment by Rep. Doyle (D-PA), this provision is already included in the America's Affordable Health Choices Act of 2009 (HR 3200) approved by the House of Representatives.  It is unclear when the amendment will be offered.  AUCD sent a letter to Sen. Casey in support of his efforts to include this provision in the Senate bill.  AUCD also developed a CCD Autism Task Force support letter signed onto by 17 task force member organizations.

Children's Health
AUCD signed on to a letter to Sen. Robert Casey (D-Pa.) in support of his proposed amendment to the Senate health reform bill, the Patient Protection and Affordable Care Act (H.R. 3590), to
fully fund and improve the successful and cost-effective Children's Health Insurance Program (CHIP). Among other things, the amendment will fund CHIP through 2019, streamline enrollment procedures, and ensure that coverage for children remains affordable.

HIPAA & Employer Wellness Programs
AUCD and a number of national health organizations, including the American Heart Association and the American Cancer Society, have grown increasingly concerned about provisions in the Senate health reform bill (H.R. 3590) that would codify regulatory changes promulgated in 2006 to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

As originally enacted, HIPAA prohibited group health plans from discriminating against members based on health status. However, the law contained a narrow exception for employer-sponsored wellness programs, allowing those group plans to give "wellness discounts" to program participants. Regulations issued by the Clinton Administration stipulated that the discounts could be based on participation only, not health status. However the 2006 regulations were written to allow wellness discounts to be applied on the basis of health status and weaken the standards for what would constitute a bona fide wellness program. The Senate bill would also allow employers to vary each employee's health premium by up to 50%, rather than the 20% variation limit in the law.

A concern arises because, under current HIPAA regulations and the proposed provisions in the Senate bill, discounts paid to healthy employees can be financed through penalties or surcharges on those who are less healthy, making premiums unaffordable for those with chronic health conditions. Other concerns center around privacy issues and a lack of peer-reviewed research evidence documenting the validity of these premium "incentives". Several health organizations prepared a Frequently Asked Questions document for more information.

FY 2010 Appropriations
Congress is likely to pass one or multiple smaller omnibus packages to close the FY 2010 appropriations process. More than two months into the new Fiscal Year, Congress has passed 5 of the 12 appropriations bills - Legislative Branch; Agriculture; Energy and Water; Homeland Security; and Interior and the Environment. All have been signed into law by the President. In November, the Senate cleared two more bills from its backlog of un-passed appropriations bills when it passed the Commerce, State, Science and the Military Construction-VA bills. Now those bills and two others previously passed by both chambers-Defense and Transportation-HUD-are in various stages of conference negotiations. Each could eventually serve as a vehicle to carry the remaining appropriations bills, including Labor-HHS-Education. Not surprisingly, according to hill news sources, such packages may also include other outstanding legislation, such as an increase in the debt limit, a one-year fix to prevent a cut in Medicare payments to physicians, and a short-term extension of expiring provisions of the Patriot Act. The remaining federal agencies-including HHS, Education and Labor-are being funded at FY 2009 levels under the terms of a Continuing Resolution which ends on December 18. 

Olmstead Update
The National Disability Rights Network recently published a report reviewing the progress made in the 10 years since the Olmstead decision, entitled "A Decade of Little Progress Implementing Olmstead: Evaluating Federal Agency Impact After 10 Years." In 1999, the U.S. Supreme Court, in Olmstead v. Lois Curtis and Elaine Wilson, held that it is a violation of the civil rights of Americans with disabilities to require a person to be institutionalized in order to receive necessary disability supports and services, if these services are more appropriately provided in the community. Unfortunately, according to the report, there has been almost no progress in reducing the numbers of Americans with disabilities, nationwide, who live in institutions since the decision. The report evaluates the efforts of key federal agencies to enforce the Olmstead decision over the past decade.