[NYAPRS Enews] Bazelon: Health Reform Case May Risk Host of Federal-State Programs, Antidiscrimination Laws

[Harvey Rosenthal]

The Reporter

Bazelon Center for Mental Health Law  

Vol. XI, No. 1, February 10, 2012

 

While the administration continues to implement health reform, the U.S.
Supreme Court prepares to consider several challenges to that law with
much more at stake than just health care. The second session of the
112th Congress is also underway. The House has passed a bill to repeal
health reform's long-term care services and supports program. Lawmakers
oppose a proposal to consolidate mental health and criminal justice
programs. And the debate over education reform intensifies. Also in this
issue of The Reporter, the Supreme Court and the administration consider
"disparate impact" discrimination under the Fair Housing Act.

 

Health Reform Case May Risk Host of Federal-State Programs,
Antidiscrimination Laws

The U.S. Supreme Court's upcoming review of the Affordable Care Act
(ACA) in March has generated a great deal of buzz, primarily about
health reform's individual mandate. Much less attention has been paid to
ACA's expansion of Medicaid eligibility and, according to some experts,
the challenge to this expansion is the most serious attack on federal
programs in years, with far-reaching implications.

The ACA requires states that choose to participate in Medicaid to
provide Medicaid services to individuals whose income is 133% of the
federal poverty level or less. This is an expansion of Medicaid
eligibility over previous federal law. The U.S. Constitution's "spending
clause" provides Congress with the authority to make this kind of
conditional gift to states. The Medicaid expansion accounts for about
half (14 million people) of the newly insured as a result of the ACA.

If the Court decides that the ACA's Medicaid expansion is
unconstitutional, then an array of cooperative federal-state spending
programs -- that make up much of the country's safety net -- and
important antidiscrimination laws may become subject to constitutional
challenge. Even if the Court does not strike down the Medicaid
expansion, the Court could use language or reasoning that, for the first
time, places at risk the constitutionality of other spending clause
enactments.

Examples of what is at stake:

*	Access to appropriate health care, including for mental health
and substance-use disorders
*	Federal funding for public schools (The Individuals with
Disabilities Education Act (IDEA) and Title I of the Elementary and
Secondary Education Act (ESEA))
*	Federal foster care and child support enforcement programs
(Titles IV-E and IV-D of the Social Security Act)
*	The Religious Land Use and Institutionalized Persons Act, which
grants prisoners the right to worship as they please and provides
churches and other religious institutions protection against zoning law
restrictions on their property use
*	Antidiscrimination protections based on race, gender and
disability by entities that receive federal funds (Title VI of the Civil
Rights Act, Title IX of the Education Amendments of 1972, and Section
504 of the Rehabilitation Act)
*	The Boy Scouts of America Equal Access Act, which requires
schools that receive federal funds to provide meeting space for local
Boy Scout troops

The Bazelon Center has been organizing a broad array of organizations to
sign onto an amicus brief, a.k.a. a "friend of the court" brief, in
support of the ACA's Medicaid expansion. The lead author of the brief is
Professor Samuel Bagenstos, who is a new Bazelon Center trustee. The
brief directly refutes arguments made by Florida and 25 other states in
Florida v. U.S. Department of Health and Human Services (HHS)
<http://www.bazelon.org/LinkClick.aspx?link=523&tabid=542> that the
Medicaid expansion is unconstitutional. The brief also is designed to
try to prevent the Court from doing damage to the above spending clause
enactments. The brief does not take a position on or say anything about
the individual mandate.

 

Lawmakers Oppose Proposal to Consolidate Mental Health and Criminal
Justice Program

Thirty-eight representatives sent a letter
<http://www.bazelon.org/LinkClick.aspx?fileticket=m285zaemTqs%3d&tabid=5
42>  to the U.S. Department of Justice and the Office of Management and
Budget in support of the Mentally Ill Offender, Treatment and Crime
Reduction Act (MIOTCRA) programs. The letter expresses support for
funding the programs for Fiscal Year 2013 without merging them into a
problem-solving courts initiative, as was proposed by the administration
in its FY 2012 budget proposal. MIOCTRA provides flexible use of funding
for a comprehensive array of services and programming -- including
crisis intervention teams, transitional services and pre-booking
diversion programs -- to respond to the high number of people with a
mental illness who come in contact with law enforcement and the criminal
justice system. 

 

House Repeals CLASS Long-Term Care Program; Senate Is Anyone's Guess

Last week, the U.S. House of Representatives voted 267-159 (all
Republicans and 28 Democrats voted yes) on legislation (H.R. 1173)
sponsored by Representative Charles Boustany (R-LA) to repeal the
Community Living Assistance Service and Supports (CLASS) program. The
CLASS program was included in the Affordable Care Act to help address
the growing long-term care crisis in America. The administration decided
last year to halt efforts to implement the program after announcing it
was not financially sustainable.  

Efforts to repeal the program now moves to the Senate where Senator John
Thune (R-SD) has a companion bill (S. 720). The fate of the CLASS
program is uncertain. However, 60 votes would be needed to overcome a
filibuster in the Democrat-majority Senate. See the Bazelon Center
January 30, 2012, Action Alert
<http://www.bazelon.org/What-You-Can-Do/Take-Action/Alerts/Alerts-Archiv
e/1-30-12-House-to-Repeal-CLASS-Act.aspx>  for details.

 

Advocates Oppose Chairman Kline's New Education Bills

Last month House Education and Workforce Committee Republicans decided
to abandon bipartisan talks with Democrats on rewriting the Elementary
and Secondary Education Act (ESEA), last reauthorized as No Child Left
Behind. Instead, Chairman John Kline (R-MN) released draft legislation
called the Student Success Act
<http://edworkforce.house.gov/UploadedFiles/The_Student_Success_Act.pdf>
that drew criticism from Democratic leaders and civil rights, disability
and education organizations. Among its controversial provisions, the
draft legislation lets schools off the hook for improving achievement
for students with disabilities and other disadvantaged populations. See
the letters from Leadership Conference on Civil Rights
<http://www.bazelon.org/LinkClick.aspx?fileticket=ciRLVZ7bEdU%3d&tabid=5
42>  and the Consortium for Citizens with Disabilities
<http://www.bazelon.org/LinkClick.aspx?fileticket=ev_2C_iM6UM%3d&tabid=5
42> . See Ranking Member George Miller's (D-CA) statement
<http://democrats.edworkforce.house.gov/press-release/miller-partisanshi
p-means-end-nclb-reform-congress> .

 

Concerns about HHS Essential Health Benefits Bulletin

The bulletin on the essential health benefits
<http://cciio.cms.gov/resources/files/Files2/12162011/essential_health_b
enefits_bulletin.pdf>  (EHB) released by the U.S. Department of Health
and Human Services (HHS) on December 16, 2011, has drawn criticism from
a range of organizations on the wide flexibility the approach offers to
states and insurers. See the Bazelon Center January 17, 2012, Action
Alert <http://www.bazelon.org/LinkClick.aspx?link=516&tabid=542>  for
more details.

The Bazelon Center joined over 50 other national mental health and
substance use advocacy groups in making recommendations to ensure health
care consumers benefit from the health reform's nondiscrimination,
preventative care and mental health parity provisions. The organizations
also expressed support for a comprehensive EHB package that provides a
clear federal minimum standard. See the letters from the Mental Health
Liaison Group
<http://www.bazelon.org/LinkClick.aspx?fileticket=BIzw2AlS2Jk%3d&tabid=5
42>  and the Coalition for Whole Health
<http://www.bazelon.org/LinkClick.aspx?fileticket=cqpHKh1uYnw%3d&tabid=5
42> , and the consensus principles
<http://www.bazelon.org/LinkClick.aspx?fileticket=hOFMAaXG5mc%3d&tabid=5
42> . Representatives Henry Waxman (D-CA), Sander Levin (D-MI), George
Miller (D-CA), Frank Pallone (D-NJ), Pete Stark (D-CA), Robert Andrews
(D-NJ) and John Dingell (D-MI) sent a letter to HHS Secretary Kathleen
Sebelius
<http://www.bazelon.org/LinkClick.aspx?fileticket=L6QTdfM20AE%3d&tabid=5
42>  also raising concerns with the flexibility granted by the approach
outlined in the EHB bulletin.

 

"Disparate Impact" Discrimination under the Fair Housing Act

Bazelon Center staff are collaborating with allied organizations on a
dual-pronged effort to address questions raised by the Supreme Court and
the administration on whether the Fair Housing Act prohibits actions
that have an adverse, disparate impact (as opposed to intentional
discrimination) on people protected by the law, such as people with
disabilities.

Property owners filed the case, Magner v. Gallagher, arguing that code
enforcement activities would have an adverse, disparate impact on
African-American tenants. The owners won in the Court of Appeals.
However, the city petitioned the U.S. Supreme Court to review the
question of whether the owners could bring a "disparate impact" claim
under the Fair Housing Act. The city argued that if this type of claim
were permitted, then the city's efforts to reduce blight would be
severely hampered. In November 2011, the U.S. Supreme Court agreed to
review the case. In response, the civil rights community sprang into
action, organizing amicus briefs, or "friend of the court" briefs,
supporting the availability of disparate impact claims under the Fair
Housing Act.

Just one week after the Supreme Court agreed to review the case, the
U.S. Department of Housing and Urban Development (HUD) proposed a
regulation to permit disparate impact claims under the Fair Housing Act.
The HUD rule reflected the Department's long and consistent history of
prohibiting housing practices that have a discriminatory effect, even
where there has been no intent to discriminate. The Bazelon Center
worked with partner organizations and coalitions to file comments
supporting the proposed regulation.

Both the Supreme Court case and the proposed HUD rule are significant
for people with disabilities. Policies and practices that seem benign on
the surface may in fact have the effect of denying housing opportunities
to people with disabilities. The Supreme Court will hear arguments on
Magner this year and HUD intends to issue a final rule before the
November election. 

 

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