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 ofThe Reporter, the Supreme Court and the administration consider “disparate impact” discrimination under the Fair Housing Act.
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 arrayof 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 enforcementprograms (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 disabilityby 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 inFlorida v. U.S. Department of Health and Human Services (HHS)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 representativessent a letterto 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 CenterJanuary 30, 2012, Action Alertfor 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) releaseddraft legislation called the Student Success Actthat 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 fromLeadership Conference on Civil Rightsand theConsortium for Citizens with Disabilities. See Ranking MemberGeorge Miller’s (D-CA) statement.
Concerns about HHS Essential Health Benefits Bulletin
Thebulletin on the essential health benefits(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 CenterJanuary 17, 2012, Action Alertfor 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 theMental Health Liaison Groupand theCoalition for Whole Health, and theconsensus principles. 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 aletter to HHS Secretary Kathleen Sebeliusalso 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.