Are you ready for a real fight?

Are you ready for a real fight? Information Bulletin # 325 (11/2010)

Anyone notice the number of articles announcing “Ending Medicaid”? A number of Governors, with Texas’ Rick Perry in the lead, huff and puff that their states will withdraw from Medicaid. It’s been reported that the “soaring cost of Medicaid” was a prime issue at the recent Republican Governors Association meeting. Add these Governors and “Ending Medicaid” takes on a life of its own.

The threats run the gamut from (a) entirely dropping out of Medicaid to (b) wanting to block grant Medicaid to (c) avoiding all federal requirements to (d) eliminating or significantly reducing Medicaid’s “optional” programs

Let’s remember that Medicaid includes and reimburses many institutional forces. What will hospitals that received $63 billion in Medicaid payments in FY 2009 do? Not treat and turn away patients? What about the $71.6 billion in Medicaid Managed Care Premiums? Managed Care companies are big contributors to Governors and state legislators. How about Medicaid’s $50 billion to the nursing home industry?

Okay. So the threat of ending Medicaid is really only a first salvo for Governors to attack Medicaid and especially “optional” Medicaid services.

For older people and people who are disabled, advocates had better be worried at a state level, because the Medicaid services people need to live in the community are those classified as “optional,” i.e., they are not mandatory under Medicaid.

Optional Medicaid services include all Waivers, Personal Care, drugs/medications, mental health, targeted case management – many of the services people need to stay out of nursing homes and Intermediate Care Facilities. Medicaid mandatory services include nursing homes and ICFs.

No question that since the Olmstead decision, Medicaid’s Home and Community-Based Services have increased significantly, and no doubt your Governor will target them, especially since HCBS are not as politically well connected as the nursing home industry.

Nevertheless, advocates should remember, organize around and point out the following

First, compliance with the Americans with Disability Act is not “optional.” As long as your state provides institutional services in nursing homes and ICFs, your state must also provide services “in the most integrated setting” – a person’s home or apartment. Moreover, as the Centers for Medicare and Medicaid Services has written, compliance with Medicaid is not the same as compliance with the ADA. Both must be complied with, and the only way to comply with the ADA is with adequate and appropriate services in the community.

Don’t let your state get around the ADA by reducing HCBS reimbursements so that no one will work at low wages. Don’t let them reduce the number of personal assistance service hours so people must go into an institution. Don’t let them keep a shell without any meaningful contents,

Second, under the ADA, a State cannot condition receipt of an optional service (for example, medications) on a person going into an institution to receive those services, instead of receiving the exact same services in the community. The United States Department of Justice has written a number of briefs supporting this.

Third, nationally, nursing homes and ICFs are a much higher percentage of Medicaid’s long-term care than community-based services. (You must know the data for your State.)

Also, remember that when the Supreme Court issued its Olmstead decision, the institutions received a far, far disproportionate allocation of Medicaid’s LTC than community-based services received. In the past 11 years, we have been trying albeit too slowly to rebalance a system that in 1999 was extremely institutionalized and blatantly segregated people in these institutions. So of course HCBS has increased a lot since Olmstead.

Fourth, nursing homes and ICFs in most states still receive a far larger percentage of the LTC than community-based services. Therefore, when talking about “reductions,” make sure that the institutions are the primary focus of reductions, especially when so many people in them do not want to live there and could reside in the community. Otherwise, we will be back to 1999.

Fifth, it is far cheaper to provide services in the community than in institutions. There is data galore. If your Governors are so interested in saving Medicaid funds, go after the expensive Medicaid expenditures – to nursing homes and ICFs – not to the less expensive services in the community. There will be people for whom it may be more expensive in the community, but they are a small minority.

Sixth, no one ever said this Odyssey would be easy or smooth. The draconian threat to end of Medicaid is not at the federal level, but at the individual state level. Reduction of “optional” Medicaid services is also only at the state level. Therefore, state advocates for older people and people with disabilities had better be strategically positioned TOGETHER for the 2011 struggles.

Steve Gold, The Disability Odyssey continues

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