//  7/14/17  //  Commentary

Hundreds of people in wheelchairs, with walkers, and using ventilators protested in Senators’ offices and Republican National Committee offices across the country in the past two weeks. Many traveled far from their homes, suffered blazing temperatures, and were denied access to bathrooms and elevators, to make their voices heard. And Senators and RNC staff refused to meet them, had them forcibly ejected, and called police to arrest them.

They follow in the tradition of disability advocates who staged the longest sit-in of a federal government building 40 years ago, as they demanded the issuance of federal regulations to implement the first major federal disability civil rights law - Section 504 of the Rehabilitation Act.

Today’s protestors literally risked their health and their lives to tell their Senators and RNC leaders that the Senate Republicans’ proposal to replace the Affordable Care Act is a death threat to people with disabilities. The protestors come from all walks of life - from lawyers to stay-at-home parents. The one thing they all share is that their health depends, or has depended, on Medicaid. Over 10 million people with disabilities, including 7 million non-elderly adults, rely on Medicaid. And more are on waiting lists for Medicaid services across the country because there is already insufficient Medicaid funding to meet the need. But the current Senate healthcare bill proposes to cut nearly $800 billion from Medicaid in the first ten years and would cut over $2 trillion by 2036. And without Medicaid, these people with disabilities will be devastated; they will be sicker, lose their jobs, and be forced to leave their families and enter nursing homes. They see nursing homes as a death sentence - both because people live longer when they remain in their communities and because people so often lose the meaning of their lives - friends, family ties, jobs, social activities of their choice, and freedom - once they enter a nursing home. But, above all, people with disabilities under these proposed Medicaid cuts will die young – and unnecessarily.

You see, Medicaid is not simply for people who are poor. It is a primary source of health care for people with disabilities. 13% of Medicaid recipients are people with disabilities- and they account for 40% of Medicaid costs. Cost-cutting will cut them first and most dramatically. Medicaid is essential for people with disabilities because it covers many services other insurers don’t cover sufficiently, such as personal care services, long-term services and supports, and even prosthetics. Because of the coverage limitations for uncommon healthcare needs, much employer-sponsored or private insurance simply does not meet the needs of people with disabilities. In addition, many people with disabilities cannot afford insurance premiums or the additional expenses of healthcare needs that private insurance will not cover. Finally, Medicaid covers preexisting conditions. While the Affordable Care Act promised to require private insurance to cover preexisting conditions, the new Senate proposal makes continued coverage of preexisting conditions unlikely.

The current Senate Republican healthcare proposal cuts Medicaid spending and allows states to impose per capita caps and cut benefits coverage. Both cuts and caps will most seriously impact people with disabilities, whose health care needs are more expensive and longer-term. If states want to cut costs without being voted out of office, they will want to cut expensive services that not many voters need. That means many of the services relied on by people with disabilities will be restricted. And people with disabilities will suffer and die. In addition, as the gap between federal Medicaid spending and the cost of needed care grows, people with disabilities will have to give up their lives in the community and enter nursing homes and other institutions. This is not because nursing homes are more effective or less expensive than community-based care, but because Medicaid makes nursing homes a mandatory service, while community-based services are optional. So community- based Medicaid services can be cut and nursing home services cannot.

Proposed Medicaid cuts will also harm children with disabilities, and, thus, the very future of the country. The Individuals with Disabilities Education Act (IDEA) requires state and local education agencies to provide special education and related services necessary for students with disabilities to receive an appropriate public education. These services make it possible for children with disabilities to learn, grow, graduate, and go on to careers that improve their lives and the lives of their families and communities. The IDEA provides federal funding for less than 20% of the cost of these services (although the IDEA itself promised federal funding of 40%). States must provide the rest. To the extent the services are health-related, states have used federally matched Medicaid funds to cover some of the costs for Medicaid-eligible children. Medicaid cuts will threaten the ability of schools to pay for required IDEA services, likely condemning children with disabilities to lives of dependence and poverty.

States should be just as concerned about these proposed cuts as people with disabilities are. States and school districts have legal obligations under the IDEA, ADA, Olmstead caselaw, and the Constitution to provide services to people with disabilities and to provide them in the most integrated setting appropriate for each person. This does not mean the least expensive setting or the setting that most people can live with, or even the setting the federal government will subsidize. Many states are already facing serious problems complying with their obligations. Federal Medicaid cuts will push more of the costs of special education and integrated services onto states. They will have to find new sources of funding. And in the meantime, adults and children with disabilities, along with their families and communities, will suffer.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP