June 29, 2012

June 29 Washington Update

 The health care reform law was upheld!!!  (But the Medicaid expansion was weakened.)

Supreme Court.  Today was the day when the U.S. Supreme Court finally announced its ruling on the constitutionality of the landmark health care reform law, the Affordable Care Act (ACA).  Chief Justice John Roberts wrote the opinion, upholding most of the law, which was joined in various combinations of other Justices on the different issues under consideration.

To see Family Voices' press release about the decision, go to http://www.familyvoices.org/news/latest?id=0199.

Individual mandate.  The biggest issue of the case was the so-called "individual mandate" of the ACA - requiring most people to either have health insurance or pay a penalty.  The Court had been expected to judge whether this key provision of the law was constitutional based on the "Commerce Clause" of the Constitution, which gives Congress the power to regulate interstate commerce and is the basis for civil rights laws and numerous other acts of Congress. 

Indeed, the Court found that the individual mandate did exceed Congress' power under the Commerce Clause.  But then the Court delivered a surprise:  they deemed that the "penalty" for failure to have insurance is a "tax" that Congress was constitutionally authorized to impose under its taxing power.  This legal theory had been offered by the U.S. Solicitor General (government's lawyer before the Supreme Court) as a back-up justification for the law.  (Whew!)

Interestingly, the Court determined that the "penalty" was not a tax for purposes of the Anti-Injunction Act, under which a court cannot consider a case that challenges a tax until the tax has been collected, which in this case would be April 2015.

Medicaid expansion.  Disappointing, however, was the Court's decision on the ACA's expansion of Medicaid to cover all individuals with incomes below 133% of the Federal Poverty Level (FPL) (effectively 138% of the FPL due to a disregard of 5% of income). 

The penalty for a state's failure to comply with a Medicaid mandate is, theoretically, the withholding of all of the state's Medicaid matching funds (although this sanction has never been imposed).  The Court found that this penalty was so drastic -- since the federal match is such a large portion of state budgets - that it essentially puts "a gun to the head" of states, forcing them to adopt the expansion.  Thus, the Court deemed the Medicaid provision to be an unconstitutional "coercion" of states, violating the principle of federalism reflected in the Tenth Amendment to the Constitution (which reserves for the states powers that are not given to the federal government). 

Instead of striking down the expansion, however, the Court decided that the law could be made constitutional by invalidating the penalty for noncompliance. This apparently leaves the federal government without recourse if a state does not cover the new "mandatory" eligibility group. 

In addition, it appears that, in states that do not cover the expansion population, some or all of the people with incomes below 133% of FPL will be unable to get subsidies to purchase insurance; the ACA assumed those people would be covered by Medicaid so did not provide premium subsidies for them.  We're still trying to figure out the scope of this problem, since subsidies are provided for at least some people with incomes between 100% and 133% of the FPL.

The Medicaid expansion was estimated to make about 17 million more people eligible, more than half of the 30+ million that are expected to gain coverage under the ACA.  This population is primarily low-income, childless adults, and may include some people with disabilities who do not get Medicaid on some other basis, such as those who can work but have jobs that do not offer insurance coverage.

All is not lost, however.  It is possible that the Department of Health and Human Services (HHS) can figure out ways to encourage the states to adopt the mandate, and/or invoke less drastic measures to enforce compliance, thus eliminating the "coercion" factor. 

Moreover, many states will likely adopt the expansion anyway.  There is likely to be pressure to do so from providers who serve large numbers of uninsured patients, and it is a very good deal for states -- the federal government pays 100% of the cost for covering the new population in the first three years (2014 through 2016), gradually decreasing the federal share to a 90% match beginning in 2020.  That said, governors and experts have varying predictions about how many states will adopt the expansion.  See http://www.nytimes.com/2012/06/29/us/uncertainty-over-whether-states-will-choose-to-expand-medicaid.html?_r=1.

Other provisions.  Experts seem to agree that the Court's decision on the Medicaid eligibility expansion does not threaten the ACA's maintenance-of-effort provision, which requires states to maintain (until 2014 for adults and 2019 for children) their Medicaid and CHIP eligibility levels and processes in place on March 23, 2010, when the ACA was enacted.  The ruling also does not seem to jeopardize the provision (effective January 2014) allowing former foster children to qualify for Medicaid until age 26.  And, since Chief Justice Roberts made a point of distinguishing the ACA's Medicaid expansion from other Medicaid mandates, it does not appear that HHS has lost its enforcement power with respect to other provisions of the Medicaid program.

Repeal?  Republican leaders in Congress have vowed to seek repeal of the ACA.  House Speaker John Boehner (R-OH) indicated that the House would vote on a repeal bill immediately after the 4th of July recess.  Such legislation will not be moved by the Senate this year, however.  After the election, though, the ACA could be in peril.  If the House, Senate and White House are all Republican-controlled, the chance of repeal is significant.  If the House and White House are Republican-controlled, and the Senate has only a slim Democratic majority, it is also possible for a repeal measure to advance under certain circumstances. 

Below are some good resources for learning more about the impact of the Court's ruling.

On Friday, June 29 at 1:00 PM ET, Families USA will be holding an hour-long conference call, along with a "tweet chat" at 2:00 PM.  You can RSVP for the call at http://fusa.convio.net/site/Calendar?id=100921&view=Detail. To join the chat "live," follow #HealthJustice on Twitter.

Kaiser Health News - good overview of decision and its implications, including the Medicaid issue.  http://www.kaiserhealthnews.org/Stories/2012/June/28/supreme-court-upholds-individual-mandate.aspx

The Catalyst Center, What's Next for Children and Youth with Special Health Care Needs? http://hdwg.org/catalyst/

Kaiser Family Foundation, Who Benefits from the Medicaid expansion?  http://www.kff.org/medicaid/quicktake_aca_medicaid.cfm

SCOTUSblog, about the Medicaid ruling. http://www.scotusblog.com/2012/06/court-holds-that-states-have-choice-whether-to-join-medicaid-expansion/

National Health Law Program, legal analysis. http://www.healthlaw.org  


GAO report on SSI for childrenThis week the Government Accountability Office (GAO) issued a report, Supplemental Security Income:  Better Management Oversight Needed for Children's Benefits. The report was requested by two Members of Congress after a Boston Globe series suggesting that some children who should not (or no longer) be eligible for SSI are receiving it anyway, particularly children with behavioral problems or mental health needs.  The SSI Coalition for Children and Families, in which Family Voices participates, plans to issue a statement about the report, emphasizing legitimate reasons for increases in the number of children receiving SSI (increase in poverty, better access to health care), and the need for more resources for the Social Security Administration to conduct reviews to determine if continued eligibility is warranted.  Report highlights can be found at http://www.gao.gov/products/GAO-12-497?source=twitter.


F2F funding bills (S. 2123 and H.R. 4083).  There are no new cosponsors this week, so the tally stands at nine Senate cosponsors, in addition to Senator Menendez, and 10 House cosponsors, in addition to sponsor Representative Pallone (D-NJ).  The policy team continues efforts to garner congressional support for the legislation by meeting with additional Hill staffers. 

If we hope to get the F2Fs re-funded, Members of Congress will need to hear from F2Fs about how effectively they are spending their federal grant funds, and from families about how important F2F services have been in their lives.

If your Members of Congress have not yet cosponsored the legislation, please contact them to ask that they do so.  See the guidance at the end of this update or click here now to send a pre-drafted letter to your Representative. 

Also, please forward this information to your family, friends, and health care providers, and ask them to contact their Members of Congress as well.  And, if you haven't done so already, please thank your Senator(s) and Representative who have cosponsored the legislation. You can find their contact information by clicking on their names on the list of cosponsors at the end of this update.


As always, please feel free to contact us with any questions. 

Brooke Lehmann, MSW, Esq.

Janis Guerney, Esq.

NOTE:  Past issues of the Washington update can be found on the Family Voices home page by scrolling down in the "News Feed" section.


Cosponsors of House F2F funding bill, H.R. 4083, sponsored by Rep. Frank Pallone (D-NJ):

Rep Langevin, James R. [RI-2] - 2/17/2012
Rep Norton, Eleanor Holmes [DC] - 2/17/2012
Rep Pingree, Chellie [ME-1] - 2/17/2012
Rep Cicilline, David N. [RI-1] - 2/17/2012
Rep Michaud, Michael H. [ME-2] - 2/17/2012
Rep Engel, Eliot L. [NY-17] - 2/17/2012
Rep Green, Gene [TX-29] - 3/5/2012
Rep Rangel, Charles B. [NY-15] - 3/8/2012
Rep Roybal-Allard, Lucille [CA-34] - 3/20/2012
Rep Carson, Andre [IN-7] - 4/26/2012

Cosponsors of Senate F2F funding bill, S. 2123, sponsored by Senator Robert Menendez:

Sen Bingaman, Jeff [NM] - 2/17/2012
Sen Conrad, Kent [ND] - 2/17/2012
Sen Snowe, Olympia J. [ME] - 2/17/2012
Sen Whitehouse, Sheldon [RI] - 2/17/2012
Sen Lautenberg, Frank R. [NJ] - 2/17/2012
Sen Kerry, John F. [MA] - 3/13/2012
Sen Klobuchar, Amy [MN] - 5/8/2012
Sen Akaka, Daniel K. [HI] - 6/4/2012
Sen Franken, Al [MN] - 6/5/2012

Contacting your Members of Congress about F2F funding bills

All of you who are concerned about the future of F2Fs should contact your Members of Congress to urge that they cosponsor the Menendez or Pallone bill. You can call them through the Capitol switchboard at 202-224-3121.  (To find the names of your Members of Congress, go to http://www.congressmerge.com/onlinedb/index.htm.)  When you speak to the receptionist, state that you are a constituent and ask to speak to the staff person who handles health issues.  If that person is not available to talk, you can leave a BRIEF message identifying yourself as a constituent who has a child with special health care needs (if applicable) and asking that the Representative/Senator cosponsor a bill that would extend funding for Family-to-Family Health Information Centers.  Refer to the appropriate bill number and sponsor - in the Senate, S. 2123, sponsored by Senator Menendez; in the House, H.R. 4083, sponsored by Rep. Pallone.  Leave your home phone number and email address.

You can also write to your Representative (even if you call) via the "Advocacy" section of the Family Voices website, where you will find a pre-written letter that you fill in with your personal information.  (You do not need to know the name of your Representative.)  Please ask families you have worked with, friends, and relatives to write their Representatives through the Family Voices website also.  The URL is http://www.familyvoices.org/action/advocate.   At this time, the website is not configured to automatically send the letter to Senators, but simple instructions about how to contact your Senators, and text to copy and paste, can also be found on that page.  (You do not need to know the names of your Senators.)

Remember:  Federal resources may not be used for lobbying activities.

Please feel free to call Brooke or Janis (contact information above) if you have any questions.