• On Olmstead’s anniversary, a conversation about disability policy, ADA, and health reform

    Today marks the 14th anniversary of Olmstead v. L.C., possibly the most important Supreme Court decision on disability policy in my lifetime (OK at in Austin’s or Aaron’s at least). Because of that decision, my brother-in-law and hundreds of thousands of others are able to live on a human scale within their own communities.

    Sam Bagenstos

    This year marks the 23rd anniversary of the Americans with Disabilities Act. ADA hasn’t been in the news so much of-late. In ratifying and extending America’s broad consensus regarding the rights of disabled citizens, ADA is one of the most important and worthy—if not entirely successful—social policy initiatives in recent history.

    Over at healthinsurance.org, I sat down for a long-form conversation with the distinguished disability law scholar Sam Bagenstos to discuss ADA’s legacy, the impact of health reform for the disability community, and related matters.

    Some issues will be familiar to TIE readers—such as the importance of ACA’s Medicaid expansion. Other issues are less familiar, and less subject to the usual partisan frame. For example we discuss why ADA had a disappointing impact on labor force participation rates among the disabled, and how federal disability programs might be modified to raise employment among people with disabilities.

    I think this is worth a look.

    • I would like to add some numbers to a point Harold raised. Harold argues that Medicaid is institutionally biased: its coverage of institutional care is much better than that for community-based services. People entering Medicaid for LTSS are more likely to end up in an institution, because that’s the default choice in a number of ways.

      I think in the past this was indisputably true. But it is not clear that this is universally true at present. In 2009, Medicaid programs served about 1.7 million older adults or adults with physical disabilities through HCBS waivers or the personal care option in 2009 (another 0.9m are served through Medicaid home health, but this is a relatively limited personal assistance benefit). In contrast, Medicaid programs served about 1.6 million people in nursing facilities, which are institutions for people with developmental disabilities.

      Data on institutional providers from the Medicaid State Information SYstem, my tabulations

      We could improve the ratio, and we could especially improve the rate at which new LTSS entrants get served in the community. Nationally, the median state only puts half of its new entrants to Medicaid LTSS in the community first. This is important, because someone getting put into a nursing facility first might lose the ability to live independently. You get used to having your food served to you, you get used to not making our own schedule, you lose touch with friends and neighbors, etc. There are some states which serve over 70% of new LTSS entrants in the community first (e.g. California, DC, Michigan, Minnesota). (AARP, which developed this measure, doesn’t precisely document their definitions, but I am pretty sure this is for aged/disabled populations and doesn’t include the DD population.)


      That said, it is not clear to me that there is a pervasive institutional bias throughout Medicaid programs in the US. It is clear that some states are very institutionally biased (e.g. Indiana, Mississippi). It is clear that some states are doing their level best not to be biased (e.g. California, Vermont, Arizona).

      For people with developmental disabilities, I count about 103k served in institutions and 570k served in HCBS waivers. At first glance this sounds great. Harold already alluded to the fact that society has been pretty sympathetic to the DD population. The numbers would appear to bear this out. Is there room for improvement? Not sure we can tell.

      I am not aware of comparable statistics among Medicaid behavioral health users. I think they would look something like of all Medicaid beneficiaries diagnosed with severe mental abuse, substance use disorder or both during the year (denominator), how many were first served in a regular hospital or psych hospital (numerator).

    • Very interesting comment.