Fall 2020 - WHAT’S HAPPENING IN WASHINGTON? Federal Disability Policy Updates
These past few months have seen a number of starts and stops in negotiations on a new Congressional COVID-19 relief package, and we expect a busy fall ahead as this Congress wraps up.
Congressional Response: Congress passed three COVID-19 relief bills and an interim bill early this spring. In May, the House passed a new relief package, the HEROES Act, which included many disability priorities, most importantly, additional funding for the home and community-based services (HCBS) on which many people with disabilities rely. However, the Senate declined to consider the HEROES Act and instead, Senate Republicans released their own proposals, the HEALS Act in July and the “skinny bill” in early September.
Both proposals fail to include disability priorities, like HCBS funding. They also contain “liability shields” that would give any business, nonprofit, school or medical provider immunity from liability for significant harm related to COVID-19 in many cases. This would threaten the safety of people with disabilities and older adults in congregate settings; make it easier for employers to escape liability for discrimination and safety violations in the workplace; and allow businesses to refuse to accommodate people with disabilities.
The Senate failed to pass the “skinny bill” in a vote in late September and negotiations appeared dead. But on October 1, the House passed a revised version of the HEROES Act. The bill includes increased funding for Medicaid and HCBS, as well as enhanced unemployment insurance; another round of recovery rebates; and funding for education, housing and food assistance. Negotiations between House leadership and the White House are continuing, but it remains unclear if or when the Senate will take up any new bill. For the latest updates and what you can do to ensure any future coronavirus relief bill includes disability priorities, check out our advocacy page.
Medical Rationing: We’ve previously discussed efforts to address disability discrimination in access to medical care during COVID-19, including complaints CPR and partners have filed with the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services. In August, OCR announced a resolution in response to a complaint filed by CPR and partners alleging that Utah’s Crisis Standard of Care Guidelines illegally excluded certain people with disabilities from accessing life-saving treatment like ventilators and deprioritized others based on their disabilities.
The resolution for the first time makes clear that hospitals must provide information on the full scope of available treatment alternatives and cannot steer people towards or condition treatment on “do not resuscitate” (DNR) policies. It also weighs in on the discriminatory impact of a number of other provisions common in many states’ rationing plans.
Updates on Health Care Policies with Impacts for Georgia:
1332 Waiver: Georgia recently resubmitted an application for a waiver that would allow it to change how many Georgians purchase health insurance. The waiver would allow Georgia to stop using the federal marketplace to enroll Georgians in health insurance without replacing it with a state-based marketplace. Instead, Georgians would enroll in health insurance through insurers themselves or web brokers, which is likely to lead to confusion and coverage losses. GCDD and CPR submitted comments in opposition to the proposal, and we will keep you updated as the Centers for Medicare and Medicaid Services (CMS) considers Georgia’s application.
United States v. Georgia: The Independent Reviewer of the Olmstead settlement agreement between Georgia and the Department of Justice (DOJ) recently issued a compliance report. While the scope of the report was limited due to COVID-19, the report discusses areas of progress and concerns in the adult developmental disabilities (DD) and mental health systems. Concerns regarding the DD system include the impact of recent budget cuts; ongoing issues with support coordination; lack of clinical supports for people with DD and complex medical or behavioral needs; and failure to implement provider corrective action plans.
GAO v. Georgia (GNETS): This spring, both of the judges overseeing the two lawsuits challenging the Georgia Network for Educational and Therapeutic Supports (GNETS) – one brought by DOJ and the other by private advocates including the Georgia Advocacy Office and CPR – denied motions from Georgia attempting to dismiss the cases. Both cases are now in the “discovery” phase, where the parties formally gather information to use in a trial. We are interested in continuing to hear from families and other stakeholders about their experiences with GNETS.
On the Fall Horizon:
Money Follows the Person: After the coronavirus pandemic hit, the Money Follows the Person (MFP) program, which helps people with disabilities and older adults move out of institutions and into the community, was given another short-term extension until November 30. On October 1, a larger government funding bill needed to avoid a government shutdown was signed into law to extend current government funding until December 11, including for MFP. This means that any discussion of a long-term or permanent extension, which we had been advocating for throughout this Congress, is unlikely until a new Congress begins in January 2021. Also, in September, CMS announced that states with operational MFP programs, including Georgia, can apply for additional funding that had been allocated by Congress.
Supreme Court Vacancy: Justice Ruth Bader Ginsburg, the author of the majority opinion in Olmstead v. L.C. affirming the rights of people with disabilities to live, work and participate in their communities, passed away on September 18. President Trump has nominated Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals to replace Justice Ginsburg, and the Senate is expected to quickly consider her nomination.
As with all Supreme Court nominations, the disability community is examining her record on issues important to people with disabilities. Of note, Judge Barrett has publicly expressed opposition to the Affordable Care Act (ACA), raising concerns about how she might rule when the Supreme Court hears argument in November.
Note: information current as of 10/5/20
By Alison Barkoff and Erin Shea, Center for Public Representation