What's Happening in Washington?
Federal Disability Policy Updates
by Alison Barkoff and Erin Shea, Center for Public Representation
Congressional Response: Congress has already passed three bills in response to the COVID-19 outbreak. The first was an emergency funding bill. The second bill, Families First Coronavirus Response Act (H.R. 6201), was an important first step in responding to the needs of people with disabilities. It included increased funding for states’ Medicaid programs and federal nutrition assistance programs and provided emergency paid leave and free coronavirus testing.
The latest response bill, Coronavirus Aid, Relief and Economic Security (CARES) Act (H.R. 748) included some of the disability community’s priorities as well. It ensured that direct cash assistance to people during the crisis is available to all people (including people on SSI and SSDI) and won’t count against means tested programs like Medicaid; and provided additional funding for education, housing, nutrition, Centers for Independent Living (CILs) and some aging programs.
However, many of our priorities were not included, such as additional grant funding for the home and community-based services (HCBS) on which many people with disabilities rely; paid leave for all caregivers; recognition of direct care workers as essential personnel; and additional funding for Medicaid, Social Security, and SSI. We are advocating for these priorities to be included in the next round of coronavirus relief legislation, which Congress has already begun developing.
Medical Rationing Guidance: We have seen increasing concern about disability discrimination in medical treatment during the coronavirus pandemic, particularly when it comes to accessing treatment and the quality of treatment provided. In response to extensive advocacy, including complaints filed by the Center for Public Representation (CPR) and partners, the US Health and Human Services Office of Civil Rights (HHS OCR) issued guidance on March 28 affirming that federal disability rights laws apply to decisions about access to care during the coronavirus pandemic. CPR and other national advocates have issued this document to assist state advocates working on this issue, and we are working hard to ensure the rights of people with disabilities are not violated when they seek treatment for COVID-19.
Updates on Medicaid Policies with Impacts for Georgia:
Block Grant Guidance: On January 30, the Centers for Medicare and Medicaid Services (CMS) announced new guidance that gives states the option to fund their Medicaid programs using block grants or per capita caps for certain populations through Section 1115 waivers. Block grants and per capita caps both provide states with a set amount of money, rather than funding for the actual cost of services provided, as Medicaid normally does. This pressures states to cut benefits, eligibility or both if they spend more than the set amount.
People with disabilities will be impacted by this new policy. Even though people who qualify for Medicaid on the basis of disability (for example, because they qualify for Social Security Disability Insurance) are not among the groups that the new policy can apply to, many people with disabilities on Medicaid are eligible for other reasons and are among the groups targeted by the guidance. Also, if these funding caps cause shortfalls in states’ Medicaid budgets, all Medicaid participants could see their services cut.
Georgia has expressed interest in submitting an 1115 waiver under this new guidance. Georgia Council on Developmental Disabilities (GCDD) and CPR have created a fact sheet to help Georgians understand the potential impact. We will monitor those efforts and continue to keep you updated.
Medicaid Work Requirements in Georgia: On February 7, GCDD and CPR submitted joint comments opposing Georgia’s application to CMS seeking an 1115 waiver to allow the state to, among other things, impose work requirements as a condition of expanding Medicaid. Work requirements have been shown to cause people to lose their healthcare. Georgia’s work requirements proposal is particularly harmful because it does not even attempt to exempt from work requirements people with disabilities or their caregivers as other states have done (although even with exemptions, people with disabilities can still be impacted). It is likely that if Georgia’s application is approved, it will be challenged in court, as other work requirements have been. We will keep you updated as CMS considers Georgia’s application.
HCBS Settings Rule: As we’ve written about in this column before, Georgia is in the process of implementing their statewide transition plan to comply with the Medicaid Home and Community Based Services (HCBS) Settings Rule. The rule ensures that all people receiving HCBS have the full benefits of community living, including access to the broader community, opportunities for competitive, integrated employment and control over their daily lives. States have until March 2022 to fully implement the rule. In February of this year, Georgia put out for a 30-day public comment its final plan for complying. GCDD and partner organizations submitted comments raising concerns about the plan. Georgia will have to respond to those comments before it submits the plan to CMS for approval. We will keep you updated as Georgia finalizes, and CMS considers the plan.
Affordable Care Act Lawsuit: On March 2, the Supreme Court agreed to review the lawsuit challenging the Affordable Care Act (ACA). The lawsuit was brought by a group of states challenging the constitutionality of the ACA’s individual mandate and argues that the entire ACA, including its protections for people with pre-existing conditions, should be struck down. A decision is not expected until next year because the court declined to expedite its review and hear the case this term. As we’ve noted previously, the ACA remains fully in place while the lawsuit is ongoing.
Public Charge Litigation: Disability and immigration advocates across the country continue to fight to overturn the federal government’s new public charge rule. The rule prohibits people who use or might use public benefits (now including Medicaid HCBS) from getting a visa or green card, which disability advocates argue is illegal disability discrimination.
While advocates had initially succeeded in stopping the new rule while the lawsuits move forward, on January 27, the Supreme Court issued an order allowing the rule to go into effect while the litigation continues and on February 24, it went into effect nationwide. It is vital that people understand what it does and does not mean, and we encourage everyone to check out our updated fact sheet and explainer to make sure they understand the rule.
Thankfully, in response to COVID-19, US Citizenship and Immigration Services (USCIS) announced last month that it “will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19” in making public charge determinations even if it’s paid for by federally-funded programs, like Medicaid. This means that immigrants can receive treatment without an impact on their immigration status.
GAO v. Georgia (GNETS): On March 19, a federal judge denied a motion to dismiss the lawsuit filed by the Georgia Advocacy Office, CPR, The Arc Georgia and other partners, that claims Georgia is illegally segregating students with disabilities in the Georgia Network for Educational and Therapeutic Supports Program (GNETS) in violation of the Americans with Disabilities Act, Olmstead and the US Constitution. The judge decided the plaintiffs had stated a claim for violations of federal law and that the case can now move forward. We’ll keep you updated as this case proceeds.
Other Medicaid Updates:
Money Follows the Person (MFP): As we noted in our last column, a bipartisan drug pricing agreement was announced in December that would use cost savings to fund a permanent reauthorization of the Money Follows the Person (MFP) program, which helps people with disabilities and older adults move out of institutions and into the community.
MFP was ultimately only given a short-term extension in the budget Congress passed, which was intended to create pressure to pass a larger healthcare package, including prescription drug reforms, before their Memorial Day recess. However, because of the unexpected need for Congress to focus its energies this spring on responding to the coronavirus pandemic, MFP received another short term extension until November 30 in the CARES Act, which we discussed earlier. We will need your help later this year to help push for permanent funding for this important program.
HCBS Infrastructure Improvement Act: Disability and aging advocates have been working for over a year developing this new legislation, which we discussed briefly in our last column. It would provide additional funding to states to build up the infrastructure of their Medicaid-funded HCBS systems. On February 12, Senator Bob Casey (D-PA) introduced the Senate version of the bill (S. 3277), and we expect the House version, which will be bipartisan, to be introduced shortly. Sen. Casey’s office released a brief fact sheet on the Senate version of the bill. Find more information on that bill and the House version when it’s released, along with other resources and media.
Alison Barkoff and Erin Shea work on policy and litigation related to community integration and inclusion of people with disabilities, including Olmstead enforcement, Medicaid policy, employment, housing and education.
Note: information current as of 4/8/20
Get more information about:
- CARES Act (what was and was not included)
- COVID-19, the Federal response & issues related to disability discrimination
- Block Grant Guidance
- GCDD-CPR fact sheet on 1115 Waiver
- Medicaid Work Requirements in Georgia
- HCBS Settings Rule
- Affordable Care Act litigation and what it means for people with disabilities
- Public Charge Rule and the litigation challenging it
- GAO v. Georgia (GNETS) Case
- Money Follows the Person