The Kaiser Family Foundation has released an issue brief on the role of Olmstead v. L.C., a Supreme Court case holding that the Americans with Disabilities Act requires states to provide services in the most integrated setting appropriate to a person’s needs, focusing on community integration of people with disabilities receiving Medicaid coverage. The brief, which marks the 15th anniversary of the Supreme Court’s ruling in Olmstead, analyzes the crucial role that state Medicaid programs have played in Olmstead enforcement and implementation. Although Medicaid programs have historically been structurally biased toward institutional provision of long-term services and supports (LTSS), Olmstead-based litigation and advocacy in the past 15 years has played a key role in encouraging states to rebalance toward providing LTSS, including supports for employment, in community settings – often funded through Medicaid as home- and community-based services (HCBS). Today, although most Medicaid spending on LTSS still goes toward institutional care, the proportion of LTSS funding spent on HCBS has increased from 32 percent in 2002 to 45 percent in 2011.

As noted in the report, Olmstead enforcement and increased spending on HCBS have had a significant impact on workers with disabilities. Living in the community, with adequate support, is often a prerequisite to attainment of competitive integrated employment. People with disabilities may need personal care services, attendant services, habilitative services, or supported employment services in order to gain and maintain employment in the community. In addition, Olmstead enforcement efforts have increasingly acknowledged the importance of employment, and of services that facilitate employment, as a necessary element of comprehensive community-based services. For example, settlements of Olmstead lawsuits in New Hampshire and Rhode Island this year both required states to provide supported employment services.

Download the full Olmstead issue brief from the Kaiser Family Foundation: http://kaiserfamilyfoundation.files.wordpress.com/2014/06/8602-Olmstead_s-role-in-community-integration-for-people-with-disabilities-under-medicaid.pdf 

On Tuesday, July 22, two United States Courts of Appeals issued contradictory rulings on consumers’ ability to obtain subsidized health insurance through the Affordable Care Act (ACA). The ACA authorized states to create statewide health insurance marketplaces that allow people to buy health insurance for themselves and their families. If a state decides not to run its own marketplace, the federal government takes the lead in managing the state’s marketplace instead. Under the ACA, people who buy insurance on statewide exchanges can receive tax credits to help cover the cost of insurance if they earn between 133 percent and 400 percent of the Federal Poverty Level (FPL) and who do not have access to affordable insurance through some other source such as their employer.

Individuals who did not want to buy health insurance filed lawsuits in D.C. and Virginia, arguing that the federal government could give tax credits to people who buy health insurance in a state-operated marketplace, as opposed to one operated by the federal government. The plaintiffs in these lawsuits were people who lived in states that did not operate their own marketplaces and who did not want to purchase health insurance, but would be subject to a tax penalty under the ACA unless they could show that they lacked access to a health insurance plan that cost less than 8 percent of their yearly income. Because the health insurance tax credits reduced their out-of-pocket cost for insurance purchased on the marketplace, they would be subject to a tax penalty for not purchasing insurance unless the court struck down the credits.

In the D.C. lawsuit, Halbig v. Burwell, the D.C. Circuit held that, under the ACA, the federal government could only give tax credits to people who bought insurance through state-operated marketplaces, and not federally-operated marketplaces. In the Virginia Lawsuit, King v. Burwell, 7 the Fourth Circuit came to the opposite conclusion and held that tax subsidies were available to people in any state. The federal government plans on appealing the D.C. Circuit’s ruling by asking for an en banc review, which would require all 11 judges of the D.C. Circuit to review the decision. In the meantime, the tax credits will continue to be available to eligible individuals regardless of where they live.

The ultimate outcome of these lawsuits, however, has the potential to affect access to health insurance in 36 states that decided not to operate their own health insurance marketplaces. Lack of access to tax credits may render health insurance out of reach to numerous workers with disabilities with incomes below 400 percent of FPL, and who do not have access to insurance through their employers or a Medicaid “buy-in” program. Faced with possible loss of coverage, individuals with disabilities – especially those with significant and ongoing health care needs – may be forced to reduce their hours to preserve their eligibility for Medicaid coverage or may forego work altogether.

Further coverage of the cases, as well as the text of the D.C. Circuit and Fourth Circuit opinions, is available via the Washington Post: www.washingtonpost.com/national/health-science/federal-appeals-court-panel-deals-major-blow-to-health-law/2014/07/22/c86dd2ce-06a5-11e4-bbf1- cc51275e7f8f_story.html

The Protection and Advocacy agency for the state of Ohio, Disability Rights Ohio (DRO), has sent a letter to state officials detailing its findings after an 18-month investigation of institutions and state-funded facilities serving people with disabilities, including large residential facilities, sheltered workshops, and day programs. DRO stated in its letter that Ohio was out of compliance with the ADA’s requirement that people with disabilities be served in the most integrated setting appropriate to their needs, as set forth by the Supreme Court in Olmstead v. L.C. The Center for Public Representation (CPR), a nationwide nonprofit advocating for the rights of disabilities, and Sam Bagenstos, a professor at the University of Michigan Law School and former Deputy Assistant Attorney General for the U.S. Department of Justice, joined in the letter.

DRO, CPR, and Bagenstos cited instances in which people with disabilities living in institutions have waited up to 12 years to receive services that would allow them to live and work in the community. While living in institutions, these individuals lack access to employment opportunities as well as opportunities to participate in other aspects of community life. The authors further reported that Ohio had not taken meaningful steps to implement its Employment First policy, and found that individuals with disabilities received day services primarily in sheltered workshops and other segregated day settings instead of receiving supported employment services. The authors recommended that Ohio remediate these issues through a variety of actions, including eliminating institutional bias in the state’s Medicaid waiver funding system and helping providers of supported employment services to increase their capacity to serve more people.

Read the full DRO letter to Ohio state officials:   www.dispatch.com/content/downloads/2014/07/DRO_to_Governor_Kasich_et_al_re_ICFs-IID.pdf