Government Report 

A politically divided nation elected a politically divided government in the November 7 national elections. Although Republicans retained a majority in the House, they will be ruling with one of the narrowest margins in congressional history.

The House Republicans will hold a five vote majority of 221 to 212 (compared to 222-209 with two vacancies, a seven vote majority in the 106th Congress) with two independents ,one who generally votes with the Republicans and one who generally votes with the Democrats.

When Maria Cantwell (D) was finally declared the winner over incumbent Slade Gorton (R) in Washington state, the Senate count became 50 Republicans and 49 Democrats (it was 55-45 in the 106th Congress). If George Bush wins the presidency, Democratic vice-presidential candidate, Joe Lieberman (D-Conn.), will return to the Senate as the 50th Democratic Senator. This means that the tie-breaking vote would fall to Vice President Cheney. If Gore wins the presidency, Lieberman’s seat will likely be taken by a Republican and the count will be 51 Republicans and 49 Democrats. If there is a 50-50 Senate split, changes will have to be made in how the Senate organizes itself in relation to leadership and committee structures. To make it even more confusing, during the first seventeen days of the new Congress, Democrats will have the majority in the Senate because Gore will still preside over the Senate as Vice President.

107th Congress begins reorganization

Following the elections, the usual reorganization of the new Congress began. House Democrats and Republicans reelected their leaders. Rep. Dennis Hastert (R-Ill.) will remain as Speaker with Rep. Dick Armey (R-Texas) as Majority Leader and Rep. Tom Delay (R-Texas) as Majority Whip. Rep. Richard Gephardt (D-Mo.) will remain Minority Leader, with Rep. David Bonior (D-Mich.) maintaining his Minority Whip role. The Senate scheduled leadership elections for Dec. 5. Democrats and Republicans also ceremoniously welcomed the newly-elected Members of Congress and held orientation activities. There are 42 new Representatives and 11 new Senators in the 107th Congress.

Due to the undecided presidential contest and several contested congressional races, committee assignments and full and subcommittee chairmanship selections will not begin until January. The number and ratio of members for each committee will also have to be decided at that time. In the Senate, if Governor Bush wins the presidency, there will basically be no majority or minority, except in the case of a tie vote when the Vice President can step in. Senate Democrats are demanding equal representation on committees, bigger staff budgets and even discussed the possibility of co-chairmanships. Republicans dismissed the idea of co-chairmanships. None of these issues will be resolved until mid-January.

The delay in reorganizing the committees has not prevented lobbying by Members for the best assignments. There are several coveted spots open in the Senate due to retirements and election losses. In the House, the six-year term-limits for many committee chairs self-imposed in 1995 as part of the “Contract With America” are now up, forcing a change in leadership on almost every committee.

Following are some of the important committee leadership decisions that are being watched closely by The Arc.

In the Senate, the election defeat of Sen. William Roth (R-Del.) leaves the chairmanship of the powerful Finance Committee open. This committee has jurisdiction over Social Security, Medicaid, Medicare, and welfare. Roth received the distinguished Chafee Award from The Arc just last year for his work on the Ticket to Work and Work Incentives Improvement Act. Sen. Charles Grassley (R-Iowa) is the next Republican in line and will most likely be selected for this position. Max Baucus (D-Mont.) is next in line to replace retiring Daniel Patrick Moynihan (D-N.Y.) as ranking minority member. There are at least three other Democratic and one Republican vacancy on that committee, depending on the new committee ratios.

Up in the air is also the important chairmanship of the Appropriations Committee’s Labor, Health and Human Services and Education Subcommittee with jurisdiction over most programs important to people with mental retardation. Due to the frustration of the L-HHS-ED appropriations bill being held hostage, current Chairman Arlen Specter (R-Pa.) indicated a willingness to switch committees.

The Constitution Subcommittee of the Senate Judiciary Committee lost its chairperson with the defeat of Sen. John Ashcroft (R-Mo.). This committee deals with civil rights issues, including the Americans with Disabilities Act, Fair Housing Act, juvenile justice legislation and the proposed Hate Crimes Prevention Act. Sen. Robert Smith (R-N.H.) is next in line for this position, although it is rumored that he would prefer another post.

The House Republican leadership will begin two full days of interviews the week of Dec. 4 with potential chairmen for the dozens of vacant committee and subcommittee leadership posts.

With Rep. Bill Archer (R-Texas) retiring, Reps. Phil Crane (R-Ill.), Bill Thomas (R-Calif.), and Clay Shaw (R-Fla.) are jockeying for chair of the Ways and Means Committee. This committee works on Social Security, Medicare, health care, and tax and revenue issues.

There are also a number of vacancies on the House Commerce Committee with jurisdiction over public health, community-based supports and services and developmental disabilities programs. With Chairman Thomas Bliley, Jr. (R-Va.) retiring, Billy Tauzin (R-La.) and Michael Oxley (R-Ohio) are vying for that coveted spot. There are four other Republican vacancies and at least one Democratic vacancy on that committee.

The House Appropriations Committee will also see changes. Rep. John Porter (R-Ill.), who retired, was chairperson of the Labor, HHS, and Education Subcommittee. Rep. Ralph Regula (R-Ohio) may be urged to take the position; however, Rep. Ernest Istook (R-Okla.), the lead author of legislation to silence the advocacy voice of nonprofits, has also expressed an interest. There are at least two other Republican vacancies on that committee. There is also the possibility of a change in the chairmanship of the HUD-VA Appropriations Subcommittee. It looks like current chairperson, Rep. Jim Walsh (R-N.Y.) may take over the leadership of another subcommittee and Rep. David Hobson (R-Ohio) may become chairperson of HUD-VA.

Since Rep. Bill Goodling (R-Pa.) also is retiring, the House Education and the Workforce Committee will also be governed by a new chairperson Rep. Tom Petri (R-Wis.) is next in line, but Reps. John Boehner (R-Ohio) and Peter Hoekstra (R-Mich.) have also expressed an interest in the job. Ranking Democrat Rep. William Clay (D-Mo.) is retiring and Rep. George Miller (D-Calif.) is expected to move into that spot. This committee will be tackling the stalled reauthorization of the Elementary and Secondary Education Act where further debates about weakening amendments to IDEA could take place.

House Budget Committee Chairman John Kasich (R-Ohio) also retired leaving that position open. Reps. Jim Nussle (R-Iowa), Saxby Chambliss (R-Ga.), John Sununu (R-N.H.) and Nick Smith (Mich.) are vying for that position. Several other vacancies must also be filled on that committee.

There will be lots of reshuffling on the House Banking and Financial Services Committee with jurisdiction over housing issues. There are at least six Republican and two Democratic vacancies on that committee. Reps. Marge Roukema (R-N.J.) and Richard Baker (R-La.) are jockeying to replace Chairman Jim Leach (R-Iowa). Leach must leave the post because of the six-year term-limit rule for chairmen. The Housing and Community Opportunity Subommittee also lost its chairperson, Rep. Rick Lazio (R-N.Y.), who ran for the Senate in New York and lost. Lazio is also a recent recipient of The Arc’s Chafee Award.

Finally, the House Judiciary Committee must also select a new chairman due to term limits. Rep. James Sensenbrenner (R-Wis.) is next in line to replace Rep. Henry Hyde (R-Ill.). The Constitution Subcommittee will also have to replace the retiring Charles Canady (R-Fla.). Like its Senate counterpart, this committee may reconsider the juvenile justice bill that contained amendments to IDEA as well as the Hate Crimes Prevention Act.

Bipartisan cooperation or gridlock

Members of Congress returned to Washington following the November 7 elections for an unusual “lame duck” session (see side bar) but decided to put off work on the big issues until after Thanksgiving. Blaming the distraction of the as yet undecided presidential election, the House and Senate passed a 16^th continuing resolution (CR) to keep the government agencies without appropriations running until Dec. 5. Congress then recessed for a three-week Thanksgiving holiday beginning on Nov. 14.

Congress returned the week of Dec. 4 to finish the unresolved work of the 106^th Congress which includes passing four of the thirteen annual appropriations bills (including the bill that funds the Departments of Labor, Health and Human Services and Education), a $30 billion Medicare “giveback” bill; and a tax cut bill.

On November 13, 2000, President Clinton signed into law the “America’s Law Enforcement and Mental Health Project” Act, P.L. 106-515. The act amends the Omnibus Crime Control and Safe Streets Act of 1968 to add a new Section V entitled “Mental Health Courts.”

The new Mental Health Courts provisions authorize the Attorney General to make grants to state and local entities to place non-violent offenders with mental illness, mental retardation, or both mental illness and substance abuse disorders into judicially monitored treatment programs.

States, state courts, local courts, units of local government, and Indian tribal governments, acting directly or through agreements with other public or nonprofit entities, are eligible to apply for up to 100 program grants. The programs must involve:

1. Continuing judicial supervision, including periodic review, over preliminarily qualified offenders with mental illness, mental retardation, or co-occurring mental illness and substance abuse disorders who are charged with misdemeanors or non-violent offenses; and

2. A coordinated delivery of services.

Services to be provided include:

• Specialized training of law enforcement and judicial personnel to identify and address the unique needs of offenders with mental illness or mental retardation;
• Voluntary outpatient or inpatient mental health treatment (in the least restrictive manner appropriate, as determined by the court) that carries with it the possibility of dismissal of charges or reduced sentencing upon successful completion of treatment;
• Centralized case management involving the consolidation of all of a defendant's cases (including violations of probation) and the coordination of all mental health treatment plans and social services, such as life skills training, housing placement, vocational training, education, job placement, health care, and relapse prevention for each participant who requires such services; and
• Continuing supervision of treatment plan compliance for no longer than the maximum allowable sentence or probation for the offense and, to the extent practicable, continuity of psychiatric care at the end of the supervised period.

The act defines "preliminarily qualified offender with mental illness, mental retardation, or co-occurring mental and substance abuse disorders" as a person who: (1) previously or currently has been diagnosed by a qualified mental health professional as having a mental illness, mental retardation, or co-occurring mental and substance abuse disorders or who manifests obvious signs of mental illness, mental retardation, or co-occurring mental and substance abuse disorders during arrest or confinement or before any court; and (2) is deemed eligible by designated judges.

The act directs the Attorney General to issue necessary regulations and guidelines, including the methodologies and outcome measures for evaluating each applicant program. The act also sets forth provisions regarding application requirements, the Federal cost share (up to 75 percent), geographic distribution of grants, reporting requirements, technical assistance, training, and evaluation. Implementation will require annual appropriations.

The Arc Participates in White House Ceremony Commemorating the 25th Anniversary of IDEA

A number of health related issues have been front and center in spite of the post-election and pre-lame duck confusion that has engulfed the country. The U.S. Department of Labor published two important final rules related to health insurance and other employee benefits in the Federal Register on Nov. 21. Families USA, a national health care consumer organization, the Health Insurance Association of America (HIAA) and the American Hospital Association announced a joint health care reform proposal on Nov. 20. On Dec. 1, HIAA, which represents insurance companies, and the American Association of Health Plans, which represents the managed care industry, announced preliminary merger plans. In addition, it is reported that the so-called Medicare give-back bill remains high on the agendas of Congress and the Clinton Administration. However, the Administration continues to push for changes to the bill, such as the inclusion of the Family Opportunity Act.

DOL Regulations

The Department of Labor recently published a final rule that is designed to speed up claims and appeals in relation to group health plans. These protections will apply to claims filed under a health plan after Jan. 1, 2002.

The rule covers the approximately 131 million people who are in health plans covered by the Employee Retirement Income Security Act (ERISA). The rule does not apply to workers who receive coverage through public sector employment for a federal, state or local agency or those covered by health plans sponsored by churches. The major importance of this rule is that it assures that individuals will receive faster and fairer reviews. For example, rather than the 90 days or more that are allowed under the current rule, the new rule would require decisions on initial claims for benefits for urgent care claims and for decisions on appeals of denied urgent care claims within 72 hours. Individual claimants would have more time to file appeals also (180 days) rather than the current 60 days, and plans will have to consult with health care professionals in deciding appeals involving medical judgment. In addition, plans are required to provide consumers with more detailed information on their claims procedures.

Reaction to this rule has been mixed. Health care reform and consumer advocates believe that it is a step in the right direction but does not negate the need for a strong and enforceable Patient’s Bill of Rights. Health plan and insurance industry representatives give it mixed reviews. Some employers and employer groups think the rule is too onerous.

The DOL published another final rule on the same day that implements information disclosure changes recommended by the President’s Advisory Commission on Consumer Protection and Quality in the Health Care Industry. This rule specifies the information that health plans offered by private employers must disclose within a plan’s “Summary Plan Description”. Some of the new health plan information required is: any cost-sharing provisions (including premiums, deductibles, co-insurance and co-payment amounts) for which a plan participant is responsible; any annual or lifetime caps or other benefit limits; provisions governing the use of net-work providers and, under what circumstances coverage is provided for out-of-network services; the extent to which preventive services are covered; and whether, and under what circumstances, existing and new drugs are covered. This rule also finalizes an interim rule that was issued in 1998 that requires that Summary Plan Descriptions also explain consumer’s rights under the Newborns’ and Mothers’ Health Protection Act of 1996. This bill requires plans to cover hospital stays of at least 48 hours after normal childbirths and 96 hours after cesarean sections.

Families USA/HIAA/AHA Proposal

Families USA is a national organization that advocates on behalf of health care consumers. The Health Insurance Association of America (HIAA) is a national trade association representing almost 300 health insurance companies and some managed care plans. The American Hospital Association is an association of long- and short-term hospitals, health plans and health education institutions. Together, these three organizations recently released a proposal that is characterized as a bipartisan effort with the goal of increasing health care coverage for a portion of the 43 million people who are uninsured in the nation.

The proposal is targeted at workers and their families with incomes below 200 percent of poverty (see chart below) and has three main components.

• The first is a Medicaid expansion to provide coverage for all people under age 65 with annual incomes below 133 percent of poverty. Eligibility would be based strictly on income and would apply equally to parents, children, and childless adults. This type of expansion would be subsidized with enhanced federal Medicaid matching funds.
• The second component would give states the option to provide coverage for parents and childless adults with incomes between 133 and 200 percent of poverty through Medicaid or the State Children’s Health Insurance Program. This expansion would also be subsidized through an expanded federal match.
• The third component would be a tax-credit to employers to help them defray the out-of-pocket premium costs of employees with incomes between 133 and 200 percent of poverty.

Reviews of this proposal are mixed. It is admittedly another incremental step towards coverage targeting a limited group of people. Providing people with access to Medicaid is an idea that has benefit because of the potential for access to a wide range of important health supports and services. Providing access to a CHIP package of benefits can be less helpful for individuals with disabilities since, in numerous states, CHIP benefits are not as expansive as those provided through Medicaid. Enacting a tax credit for employers to help cover employee’s insurance costs may be seen as a positive step if the benefit package that employees receive actually meets their needs and the needs of their families.

The future of this and any other health care reform proposal is up in the air. However, the future of this proposal may face additional uncertainty since the HIAA and the American Association of Health Plans (AAHP) are reportedly trying to negotiate a merger. Such a merger would link the lobby for traditional insurance companies (HIAA) with the lobby for most managed care plans (AAHP). Neither group has been supportive of a major overhaul of the nation’s health care system. In fact, the HIAA was behind the “Harry and Louise” commercials that helped sink the Clinton health plan. The AAHP, in reaction to the fact that people want managed care reform and have made this known to their Members of Congress, has recently begun to speak positively about some managed care consumer protections. However, on the issue of liability and medical necessity, neither group is seen as consumer-friendly and a merged organization will be a very strong adversary in the battle for health care reform.

Medicaid

A number of regulatory activities are also taking place in relation to Medicaid. The Arc provided comments to the Health Care Financing Administration’s proposed rule to give the states more flexibility in relation to Federal Financing Participation Limits. This rule would allow states to relax some of its Medicaid income eligibility requirements. This change would benefit both people and the state because more people could be eligible and a state would not be penalized by a cut in federal matching funds. The comments of The Arc urge swift publication of the final rule because with this additional flexibility, states could better meet the individualized needs of children and adults with mental retardation in relation to both acute health care as well as long term supports and services. This proposed rule has been characterized by the Clinton Administration as a new $960 million initiative for people with disabilities. That figure refers to the additional federal costs that could be incurred over ten years if states decide to use this flexibility.

President Signs Oath Waiver Into Law

On November 9, President Clinton signed into law P.L. 106-468, legislation to authorize the Justice Department to provide grants to organizations to assist families in locating missing adults.

The grants could be used to maintain national databases for tracking missing adults endangered due to age, diminished mental capacity, or the circumstances of the disappearance, when foul play is suspected or the circumstances are unknown. The funds could also be used to notify the public and establish a national clearinghouse for missing adults.

The new law's definition of "diminished mental capacity" includes people with mental retardation. The new program is modeled after the current Center for Missing and Exploited Children and will include new informational resources and referrals for families of missing adults.

On Nov. 20, the U.S. Court of Appeals for the Fifth Circuit affirmed the trial court’s decision in the case of Groome Resources Ltd. v. Parish of Jefferson, a Louisiana fair housing case. In doing so, the Court of Appeals upheld the constitutionality of the Fair Housing Amendments Act and the applicability of the reasonable accommodation provisions of the Act to state and local governments. The Chief Judge for the Court of Appeals wrote “we join three circuits in concluding that Congress acted under its Commerce Clause power in enacting the FHAA…”

In February, The Arc of the United States joined in an amicus (friend of the court) brief in the Groome case because the case raised important questions involving the constitutionality of the Fair Housing Act and the ability of Congress to impose the reasonable accommodation provisions of the Act on state and local governments. The decision in this case would have an impact on the ability of people to live in the community in all the states in the Fifth Circuit.

In this case, Groome Resources, Ltd., a for-profit provider of group homes, proposed a five-person group home for people with Alzheimer’s disease in Jefferson Parish, Louisiana. According to the law, “by-right” zoning (meaning the entity has the right to do this) would allow for four unrelated people to live together. Groome, Ltd. requested a reasonable accommodation to have five residents. The city council took a long time to approve this request because of strong neighborhood opposition. As Groome, Ltd. was about to lose its option on the house, it sued for declaratory and injunctive relief, which was granted by the U.S. District Court for the Eastern Division of Louisiana. Initially Jefferson Parish said it would accept the court’s decision but then changed its mind due to increased neighborhood opposition. Jefferson Parish then filed an appeal to the U.S. Court of Appeals.