Disabilities and the End of Chevron Deference

Uncertainty and complexity are major themes of The Politics of Autism.

ASAN:

The Autistic Self Advocacy Network (ASAN) condemns the United States Supreme Court ruling on two combined cases, Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce. The decision overturns a decades-old legal principle known as the Chevron Doctrine, which gives federal agencies the authority to reasonably interpret ambiguous laws when they create federal regulations. These regulations are made legally binding through a rulemaking process that is shaped by the public servants within federal agencies, the input of subject area experts across fields, and anyone who chooses to share their opinion. Instead, federal courts will now have the final say in circumstances where knowledge of highly specialized, complex, and technical issues is required. This ruling will weaken the regulatory authority of all federal agencies, including the Departments of Labor (DOL), Education (ED), Health and Human Services (HHS), the Social Security Administration (SSA), the Environmental Protection Agency (EPA), and the Food and Drug Administration (FDA).

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This decision invites challenges to the forty years of legal precedents relying on Chevron. While these cases and the existing Code of Federal Regulations are not automatically overturned by Loper and Relentless, many will be challenged in the months and years to come. Future regulations are also under threat. Agencies may be less ambitious in fulfilling their mandates, protecting the public, and using taxpayers’ resources well in the face of increased risk that courts will undo their work. The endangered regulations include the Home and Community Based Services (HCBS) Settings Rule, the final rule implementing Section 504 of the Rehabilitation Act, the final rule implementing Title IX of the Education Amendments, and the final rule regarding section 1557 of the Affordable Care Act (ACA).

Parties and Premature Death

 In The Politics of Autism, I analyze the discredited notion that vaccines cause autism. This bogus idea can hurt people by allowing diseases to spread.   And among those diseases could be COVID-19.

Unfortunately, Republican politicians and conservative media figures are increasingly joining up with the anti-vaxxers.   Even before COVID, they were fighting vaccine mandates and other public health measures.

A release from Brigham and Women's Hospital:

A new study highlights how closely connected politics and health outcomes have grown over time. Investigators from Brigham and Women’s Hospital examined mortality rates and federal and state election data for all counties in the U.S. from 2001 to 2019. The team found what they call a “mortality gap” — a widening difference between age-adjusted death rates in counties that had voted for a Democrat or a Republican in previous presidential and governor elections. The team found that mortality rates decreased by 22 percent in Democratic counties but by only 11 percent in Republican counties. The mortality gap rose across top disease areas, including heart disease and cancer, and the mortality gap between white residents in Democratic versus Republican counties increased nearly fourfold during the study period. Results are published in the British Medical Journal.

“In an ideal world, politics and health would be independent of each other and it wouldn’t matter whether one lives in an area that voted for one party or another,” said corresponding author Haider Warraich, MD, of the Division of Cardiovascular Medicine at the Brigham. “But that is no longer the case. From our data, we can see that the risk of premature death is higher for people living in a county that voted Republican.”

Warraich and colleagues used data from the Wide-ranging OnLine Data for Epidemiologic Research (CDC WONDER) database and the MIT (Massachusetts Institute of Technology) Election Data and Science Laboratory. They classified counties as Democratic or Republican based on the way the county had voted in the previous presidential election and adjusted for age when calculating mortality rates.

Overall, the team found that mortality rates in Democratic counties dropped from 850 deaths per 100,000 people to 664 (22 percent), but in Republican counties, mortality rates declined from 867 to 771 (11 percent). When the team analyzed by race, they found that there was little gap between the improvements in mortality rates that Black and Hispanic Americans experienced in Democratic and Republican counties. But among white Americans, the gap between people living in Democratic versus Republican counties was substantial.

The mortality gap remained consistent when the researchers looked only at counties that had voted Republican or Democratic in every presidential election year studied and when they looked at gubernatorial elections. Democratic counties experienced greater reductions in mortality rates across most common causes of death, including heart disease, cancer, chronic lower respiratory tract diseases, diabetes, influenza and pneumonia, and kidney disease.

The authors note that the widening gap in death rates may reflect the influence of politics on health policies. One of the inflection points detected in the study corresponds to the Affordable Care Act (ACA), which was passed in 2010. More Democratic states than Republican states adopted Medicaid expansion under the ACA, which expanded health insurance coverage to people on a low income.

The study detects an association between political environment and mortality but does not definitively determine the direction of the association or the specific factors that may explain the link between the two. The authors did not study the effect of flipping political environments — that is, counties that switched from voting Democratic or Republican to voting for the other party — on health outcomes, which could be an area of future study. The study period ended in 2019, before the start of the COVID-19 pandemic, which may have had an even more profound impact on the mortality gap.

“Our study suggests that the mortality gap is a modern phenomenon, not an inevitability,” said Warraich. “At the start of our study, we saw little difference in mortality rates in Democratic and Republican counties. We hope that our findings will open people’s eyes and show the real effect that politics and health policy can have on people’s lives.”

Disclosures: Warraich is an advisor for Embrace Prevention Care; co-author Rishi Wadhera receives research support from the National Heart, Lung, and Blood Institute (grant K23HL148525-1); co-author Karen E. Joynt Maddox previously did contract work for the U.S. Department of Health and Human Services.

Paper cited: Warraich HJ et al. ” BMJ DOI: 10.1136/bmj-2021-0693

Medicaid Expansion and the Workforce for ASD

The Politics of Autism includes an extensive discussion of insurance and  Medicaid services for people with intellectual and developmental disabilities.

Ryan K. McBain and colleagues have a brief report at the Journal of Autism and Developmental Disorders titled "Medicaid Expansion and Growth in the Workforce for Autism Spectrum Disorder."  The abstract:

Over 700,000 children throughout the U.S. have received insurance coverage through welcome mat effects of Medicaid expansion, including children with autism spectrum disorder (ASD). Utilizing health workforce data from the Health Resources and Services Administration, we examined workforce growth (2008–2017) among three types of health providers for children with ASD as a result of Medicaid expansion: child psychiatrists, board-certified behavioral analysts (BCBAs) and pediatricians. We found that state Medicaid expansion was associated with a 9% increase in BCBAs per 100,000 children one year after enactment, a 5% increase in child psychiatrists, and was not associated with growth in pediatricians. Results indicate the importance of new policies that directly address a shortage of providers for children with ASD.

From the article:

ACA Medicaid expansion has extended insurance benefits to millions of Americans. While direct beneficiaries of Medicaid expansion are typically lower-income adults, there is also evidence that over 700,000 children throughout the U.S. have received health insurance coverage through “welcome mat” effects of Medicaid expansion (Hudson & Moriya, 2017). This has been the result of information campaigns about Medicaid eligibility, and many states having adopted a “no wrong door” policy of determining eligibility across programs.

 Hudson, J. L., & Moriya, A. S. (2017). Medicaid expansion for adults had measurable ‘welcome mat’ effects on their children. Health Affairs, 36(9), 1643–1651. https://doi.org/10.1377/hlthaff.2017.0347

 

Bureau of Disability Rights

In The Politics of Autism, I write:

“Civil rights” usually referred to the fight against racial segregation.  In several ways, this struggle set the template for other civil rights issues, including disability rights. First, cases such as Brown v. Board of Education demonstrated that disadvantaged groups could gain protections in the courts.  Second, movement leaders found that nonviolent protests could gain public sympathy and put pressure on elected officials. Third, civil rights statutes that helped African Americans would also point to means by which the government could protect other excluded groups. 

President Biden has nominated California Attorney General Xavier Becerra to be Secretary of Health and Human Services.  On his way out, Becerra has made an important announcement.

 From the California Department of Justice:

California Attorney General Xavier Becerra today announced the establishment of the Bureau of Disability Rights (Bureau) within the Civil Rights Enforcement Section (Section) of the California Department of Justice. The Bureau will focus on matters that seek to ensure that the rights of persons with disabilities are advanced through specific investigations and litigation. The Bureau will also expand on the Section's work to vindicate the rights of persons with disabilities on issues including discrimination in education, healthcare, employment, access to public services, and with regard to law enforcement involvement.

“If we are going to make meaningful progress towards protecting the rights of Californians with disabilities, we must devote attorneys and resources to work specifically on these issues,” said Attorney General Becerra. “The establishment of the Bureau of Disability Rights marks an important step toward ensuring that the rights of persons with disabilities are considered in all of our work here at the California Department of Justice. I look forward to seeing all that the Bureau is able to accomplish.”

Already, Deputy Attorneys General in the Civil Rights Enforcement Section, who will be staffed to the Bureau, have secured relief for persons with disabilities through the inclusion of specific corrective measures in judgments which require reforms. These judgments, for example, advance the rights of students with disabilities, including students who are disciplined for behavior resulting from their disability, and mandate reforms of law enforcement practices relating to officer involvement with individuals experiencing mental health crises, those with disabilities, and the profiling of individuals perceived to have disabilities.

The California Department of Justice is committed to protecting the rights of Californians with disabilities. Since taking office, Attorney General Becerra has:

• Reached an agreement with the Stockton Unified School District and its police department to address discriminatory treatment of minority students and students with disabilities;
• Secured settlements with school districts in Barstow and Oroville to address discriminatory treatment of students based on race and disability status;
• Announced a $600,000 settlement with an online special education services provider aimed at protecting schools and students with learning disabilities;
• Co-led a coalition in filing a lawsuit challenging the Trump Administration’s rule undermining Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of race, color, national origin, sex, disability, and age in federal health programs;
• Joined a bipartisan coalition in submitting a letter to the U.S. Department of Veterans Affairs opposing its decision to reverse a decades-long policy that allows Veterans Service Organizations 48 hours to review decisions on veteran disability claims; and
• Issued an alert to all school districts in the state reminding school leaders of their obligation to protect the civil rights of students, especially in the face of reports indicating that implicit bias among school administrators leads to students of color and those with disabilities being disproportionately subjected to disciplinary action.

Fearing the Loss of ACA

The Politics of Autism includes an extensive discussion of insurance and  Medicaid services for adults with intellectual and developmental disabilities

Last month, Texas argued before the U.S. Supreme Court that when Congress in 2017 eliminated the individual mandate, the rest of the Affordable Care Act became unconstitutional. People with disabilities worry that Texas will prevail.  Trinady Joslin at The Texas Tribune:

Without the Affordable Care Act, disabled Texans stand to lose programs that have allowed more people to stay in their homes, rather than state-run institutions. And like many Americans, they fear they could again face insurance companies that would deny them coverage because they have preexisting conditions.
...

Texas is one of eight states that opted into the Community First Choice Option program, made possible by the ACA. The Medicaid program gives states funding to help keep disabled people in their homes who might otherwise end up in nursing facilities or other institutionalized care.

“It can provide personal assistance services to [have] someone in your home to help you with cooking and cleaning, to help you with personal tasks like toileting or grooming,” said Silvia Yee, senior attorney at Disability Rights Education. “It can help with support systems that a person with a disability might need to stay in the community.”

Sheena Walter, 35, lives in Austin and has used the Community First Choice program for four years. Walter is autistic and needs personal care attendants that help with tasks like cooking and laundry five days a week.

For years, she’s had personal care attendants paid for by Medicaid, but they didn’t always show up. Sometimes, Walter waited over a week for someone to arrive and sustained herself on cold sandwiches.

“It would be continual frustration, pretty much, because you would call the agency and they would say there’s no one to send,” Walter said.

Now her CFC service coordinator helps her advocate for the care she needs and acts as a mediator when attendants aren’t doing their jobs.

“What I found is sometimes agencies don’t listen directly to a disabled individual,” Walter said. “That’s been my experience. But the service coordinator, they would most of the time listen to them. So it does help to have an extra person to be an advocate, especially if it’s a stressful situation.”

ACA and People with Disabilities

The Politics of Autism includes an extensive discussion of insurance and  Medicaid services for people with intellectual and developmental disabilities.

MaryBeth Musumeci  and Kendal Orgera at KFF:

On November 10, 2020, the Supreme Court will hear oral argument in a case that could invalidate the entire Affordable Care Act (ACA), including the Medicaid expansion. Without the ACA, most people who gained coverage through the Medicaid expansion would likely become uninsured, and states would lose access to the enhanced federal matching funds to finance this coverage. Many people who qualify for the ACA Medicaid expansion have a disability, despite that they do not meet the strict medical standard to qualify for federal Supplemental Security Income (SSI) cash assistance benefits and therefore do not qualify for Medicaid on that basis.

Disability Groups Oppose Trump's SCOTUS Nominee

In The Politics of Autism, I discuss court cases involving the  civil rights of people with autism and other disabilities. 

From the Autistic Self-Advocacy Network:

The Autistic Self Advocacy Network opposes the confirmation of Amy Coney Barrett to the Supreme Court. In light of the critical role that the Supreme Court plays in interpreting and enforcing laws that affect people with disabilities, all nominees to our nation’s highest court must be evaluated carefully based on their known record. Judge Barrett’s record on the Seventh Court of Appeals and her writings and presentations as faculty at Notre Dame Law School expose her hostility to the laws that protect people with disabilities and our ability to live fulfilling lives in the community, including the Affordable Care Act and the Americans with Disabilities Act. Our community is likely to experience serious harm if Barrett is confirmed for a lifetime appointment to the Supreme Court. We further oppose efforts to rush confirmation on an impossibly short timeline in the midst of the COVID-19 pandemic.
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ASAN urges the Senate to reject Barrett’s nomination. The next Supreme Court Justice should be someone who honors the work, life, and legacy of Justice Ginsburg by protecting our access to health care and protecting civil rights. For more information on ASAN’s positions on any of the issues discussed in this statement, please contact Sam Crane, our Legal Director, at scrane@autisticadvocacy.org.

From the Center for Public Representation:

Today, CPR joined more than 50 other national, state, and local disability advocacy organizations in a letter sent to Senate leadership and Senate Judiciary committee leadership in opposition to the nomination of Judge Amy Coney Barrett to the Supreme Court to fill the seat left open by the passing of Justice Ruth Bader Ginsburg.

Justice Ginsburg was a strong advocate for people with disabilities and author of the majority opinion in Olmstead v. L.C., which affirmed that people with disabilities have a civil right to live, work and participate in their communities and found that unjustified segregation of people with disabilities is a type of discrimination prohibited by the Americans with Disabilities Act (ADA). Her replacement should be one that furthers, rather than damages, her legacy.

Judge Barrett’s record raises significant concerns for the disability community. Of particular note, she has written that she views the Affordable Care Act (ACA), which provides critical protections for people with preexisting conditions and has drastically improved access to and quality of care for millions of people with disabilities, as unconstitutional. The Supreme Court is scheduled to hear arguments in a case challenging the law, California v. Texas, on November 10, and the Senate’s currently extremely expedited schedule to confirm Judge Barrett means she would participate in that argument. CPR, along with 18 other national disability rights organizations, filed an amicus brief in the Supreme Court in that case, defending the ACA and explaining its importance to disabled people.

In her current role as a judge on the Seventh Circuit Court of Appeals, she also recently dissented from an opinion that determined that the Department of Homeland Security’s (DHS) public charge rule “inescapab[ly] . . . penalizes disabled persons in contravention of the Rehabilitation Act.” The public charge rule puts in place a new test for people who are applying for visas or green cards. It looks at people’s health, including whether they have a disability, and whether they have used or might one day use public benefits, including Medicaid-funded home and community-based services on which many people with disabilities rely. CPR and other disability organizations filed an amicus brief in the case, detailing the discrimination disabled immigrants may face as a result of the rule. Litigation is likely to make its way to the Supreme Court shortly.

Despite her concerning record, Judge Barrett’s nomination process has been extraordinarily rushed. A nomination that, if confirmed, would result in a lifetime appointment, should be considered carefully and given appropriate scrutiny. The speed with which this process has moved is a disservice to the institution of the Supreme Court and is particularly concerning given the Senate’s inability to pass desperately need coronavirus relief during a pandemic that has killed over 200,000 people in the US.

Read the letter in full here. More detail on Judge Barrett’s disability record is available here.

Emerging Democratic Consensus on Disability

In The Politics of Autism, I discuss the issue's role in presidential campaigns.

Harold A. Pollack and Samuel R. Bagenstos at JAMA Health Forum write of "the emerging consensus" among Democratic candidates about disability policy.

Three of the leading Democratic contenders—Senator Warren, Senator Sanders, and Mayor Buttigieg—present particularly detailed and actionable plans. Some of what they propose will only be possible with the (unlikely) passage of their ambitious and comprehensive health care plans. Whatever the fate of their overall proposals, many of their specific disability provisions could be readily translated into discrete pieces of legislation should a Democrat win the presidency. Some of what they propose might be legislated right now, with at least some possibility of bipartisan support.

A short commentary cannot engage the full complexity of these proposals. Some components to address social determinants bear brief mention. Most Democratic candidates endorse full or greatly expanded funding for the Individuals with Disabilities Education Act (IDEA) to address educational barriers faced by students who live with disabilities. The underfunding of IDEA has been a persistent problem for Americans with disabilities, and one is entitled to be skeptical that—finally, this time—the candidates will truly follow through on their promise of full funding. But the broad consensus on the issue in the Democratic primary suggests that the proposal now has its strongest chance in recent history of being enacted.

....
Democrats’ 2020 proposals also mark a departure from the curiously marginalized role of disability policy and disability constituencies within prior health reform efforts.2 In retrospect, the ACA must be regarded as a substantial missed opportunity to address many gaps in our current disability system. Democrats don’t want to make the same mistakes again.

Many Democrats’ positions appear to have been crafted in response to questions raised by leaders within the disability community itself—particularly the influential questions raised by the Center for American Progress’s Rebecca Cokley

NY Post Calls on Maloney to Apologize for Past Antivax Stand

In The Politics of Autism, I discuss the discredited theory that vaccines cause autism. 

That theory has taken some hits lately.

An editorial in The New York Post:

Rep. Carolyn Maloney has finally seen the light about vaccines — sort of.

The Upper East Side/Queens congresswoman for years bought into the myth that vaccines can cause autism.

So it’s good that a Maloney spokesman on Sunday announced that she’s dropped the lunacy: 

“Congresswoman Maloney believes in the efficacy and safety of vaccines. She was at the forefront of efforts to protect funding for vaccines in the Affordable Care Act.”

Yet even after passage of the ACA, she compared — in congressional testimony — those who reject the supposed autism-vaccine link to those Big Tobacco apologists who denied that smoking causes cancer.

To be fair, that was partly because she has a heart, citing “verbal evidence coming from parents where they break down, [and say], ‘I had a normal child, I gave him a vaccination, and then they came down with autism.’ ”

But playing to that sentiment has led all too many parents to skip immunizations for their children — putting them and other kids at risk.

This, when medical experts long ago utterly debunked the connection: The Lancet, the journal that published the original study “proving” a vaccination-autism link, retracted it as utterly flawed back in 2010.

It’s a small win for science that Maloney’s admitting the truth. It’ll be a bigger one if she (and others who did the same) apologizes for promoting a deadly myth.

The Arc v. Senate Tax Bill

The Politics of Autism includes a discussion of tax issues.

From the Arc:

“Today the Senate took a big and dangerous step closer to cutting the services and supports that people with disabilities rely on to be a part of their community.

“The Arc’s longstanding position on tax policy is that it should raise sufficient revenues to finance essential programs that help people with disabilities to live and work in the community. The Arc also supports tax policy that is fair and reduces income inequality; people with disabilities are twice as likely to experience poverty.

“Both the House and Senate versions of the Tax Cuts and Jobs Act fail to meet either standard. By reducing federal revenue by at least $1.5 trillion, the Senate bill turns up the pressure on Congress to cut Medicaid and other programs that are critical to people with intellectual and developmental disabilities.

“Additionally, the repeal of the Affordable Care Act’s individual mandate will have a dire impact on nearly 13 million Americans, including those with disabilities, and will increase premiums for people buying insurance on the health insurance exchange.

“The disability community has fought against threats to vital programs and won several times this year, and we are prepared to do it again. As the House and Senate finalize the bill, we encourage our advocates across the country to act now. We’ve shown again and again this year our strength, and now we have to do it again, or we will be right back where we started in the coming new year,” said Peter Berns, CEO, The Arc.

National Call-In Day

The Politics of Autism includes a discussion of tax issues.

From the Autistic Self-Advocacy Network:

Right now, Congress is trying to ram through their tax reform bill — and if it passes, it’ll be devastating to people with disabilities. We can still stop this bill from passing, but only if we take action together. This Wednesday, November 29, is a national disability community call-in day. We need your voice.

Here’s a recap of what the bill does:

• Repeals the “affordable” part of the Affordable Care Act. Getting rid of the individual mandate means 13 million people will lose health insurance, and premiums will increase by 10% on average.
• Raises the deficit, creating an excuse to slash Medicaid and more. The tax bill raises the deficit by $1.5 trillion. Congress’ proposed budget tells us exactly how they plan to pay for this: by cutting Medicaid and health care funding by between $1.3 trillion and $1.9 trillion.
• Automatically guts vital services. If this bill passes, it will trigger automatic cuts to services and programs that many people with disabilities depend on, including food stamps, special education funding, and Medicare.

No matter what talking points come out of Congress, their end goal is clear: to give massive tax cuts to billionaires and corporations by decimating basic services that everyday Americans depend on. That’s why we’re participating in Wednesday’s national call-in day. Here’s how to join us:

Use ContactingCongress.org to find your Senators’ phone numbers. When you call, you can use our script below, and if you don’t speak, you can call using your AAC device, or get a friend to call in and read your message.

ALSO SEE THE FACEBOOK PAGE 

Autism Society v. GOP Tax Bills

The Politics of Autism includes a discussion of tax issues.

The Autism Society opposes the GOP tax bills:

Background

On November 16, the House of Representatives passed its version of a tax bill. Now the Senate is finalizing its own version. Both bills are extremely damaging because they:
Pave the way for cutting Medicaid, Medicare, Supplemental Security Income, and other critical programs for people with disabilities in order to pay for the tax cuts later.
Increase the deficit significantly to provide tax cuts that disproportionately benefit the wealthiest Americans and corporations.

But the Senate bill is even worse. It also repeals the “individual mandate” for people to have health care coverage. If this happens, nearly 14 million people will lose health coverage and it will increase premiums for people buying insurance on the health insurance exchange by 10% per year. The individual mandate is a central part of the Affordable Care Act (ACA) which greatly benefits people with disabilities by eliminating pre-existing condition exclusions, banning annual and lifetime limits, prohibiting discrimination based on health status, and much more.

The Senate is scheduled to vote on its Tax Cuts and Jobs Act the week after Thanksgiving.

We must stop this very harmful and unpopular legislation NOW. TAKE ACTION

• Call your Senators. Call the Capitol Switchboard number 202-224-3121 and ask for your Senators.
• Attend a Town Hall Meeting.
• Participate in a Tax Plan Rally Event.

WHAT TO SAY:

• I am a member of Autism Society of America.
• Please vote NO on the Tax Cuts and Jobs Act.
• We cannot afford these tax cuts that go mainly to the wealthiest Americans and large corporations.
• Tax reform should not be rushed. People should have time to understand the bill and how they will be affected.

Senate Tax Bill Would Repeal the ACA Individual Mandate

The Politics of Autism includes a discussion of tax issues.

From the Autistic Self Advocacy Network:

ASAN remains strongly opposed to the elimination of the individual mandate to purchase health insurance under the Affordable Care Act (ACA), and condemns the inclusion of repeal within the latest versions of the tax bills.

The individual mandate helps make insurance more affordable, especially for people with disabilities. The bipartisan Congressional Budget Office has shown that 13 million people could lose access to affordable coverage if the mandate is repealed, with premiums rising an average of 10%. The American people have strongly rejected such proposals three times in this year alone. Taken in conjunction with the Budget resolution which cut $5 trillion dollars over the next decade from Medicaid, Social Security, and other essential services that allow people with disabilities to live good lives in our communities, the tax bill and the repeal of the individual mandate amount to a full-scale attack on people with disabilities.

It is reprehensible and immoral to take health care away from 13 million people in order to let corporations and the wealthiest Americans avoid paying their fair share of taxes. The lives and liberty of people with disabilities are worth more than this. ASAN urges Congress to heed the clear voice of the disability community–and many others–and abandon this umpteenth attempt to force a destructive and partisan agenda.

Proposed Rule Could Hurt Mean Less Treatment for Autistic People

The Politics of Autism includes an extensive discussion of insurance issues, including the impact of the Affordable Care Act.

 Paige Winfield Cunningham at The Washington Post:

Let’s just say that if we were waiting for the other shoe to drop, it may just have done so. A humongous, 365-page rule proposed late last week by the Centers for Medicare and Medicaid Services is the agency’s biggest attempt to put a conservative stamp on the Affordable Care Act by rewriting its rules in a way that gives insurers and states as much leeway as possible from the law’s mandates.

The proposed rule, which suggests an array of changes to how the individual and small-business marketplaces are run, most notably gives states wide latitude in carrying out the ACA’s “essential health benefits” — 10 categories of care that individual market insurers must cover to ensure consumers can access a full range of benefits.
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Here’s how EHBs work: States must select a “benchmark” plan to set the standard for how generously insurers must cover essential benefits, which include categories such as maternity care and mental-health services. The benchmark plan is typically chosen from among employer-sponsored plans in order to ensure individual plans are comparably generous.

Marketplace insurers must provide the same value of services within each of the 10 categories as the benchmark plan. So if the benchmark plans covers treatment for autism or speech-language therapy, for example, insurers must cover that too, or substitute a service with equivalent value. You get the idea.

If CMS goes ahead with its proposed changes, states won’t have to choose from a limited, fixed menu of benchmark plans. Instead, they can select a la carte. For example, Ohio could choose the maternity care standards from one benchmark plan and the mental-health services from another. Wisconsin could choose the benchmark plan from North Dakota or New Jersey or Virginia.

Nicholas Bagley has more at The Incidental Economist. 

Trump's Executive Order

In The Politics of Autism, I discuss health care issues and state Medicaid services for people with intellectual and developmental disabilities.

Yesterday, Trump signed an executive order on health care.

Kyli Rodriguez-Cayro writes at Bustle:

[On] Oct. 12, Trump signed a health care executive order meant to undermine and dismantle Obamacare. According to CNN, the executive order “would allow consumers to buy short-term policies, which don't have to comply with Obamacare's protections for those with pre-existing conditions.” Essentially, with this executive order, many disabled people, and the protections they receive through the ACA, will be seriously impacted.

Trump’s executive order is predicted to be part of a larger plan to gut Obamacare — a plan being called a “synthetic repeal.” The term was coined on Twitter by Andy Slavitt, who served as Acting Administrator for the Centers for Medicare & Medicaid Services during the last two years of Obama’s presidency. Slavitt believes following the Oct. 12 order, the Trump administration will continue to destabilize the health marketplace — without the help of Congress — until the ACA fails. In response to Trump’s executive order and the possible backdoor repeal, Bustle spoke with Stacy Stanford, a disability rights advocate and community organizer who works with Utah Health Policy Project.

 Follow

Andy Slavitt 

✔@ASlavitt

One thing is very clear: tomorrow the ACA is officially no longer Obamacare. It's Trumpcare. https://twitter.com/aslavitt/status/918278371011854336 …

7:37 PM - Oct 11, 2017

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Though the executive order and possible “synthetic repeal” will negatively affect many marginalized communities, it poses an especially great risk to people with disabilities. Stanford tells Bustle, “Introducing more options for healthy people to buy less-comprehensive coverage, removed from the protections of the Affordable Care Act, only increases the burden on sick and disabled people.” By effectively giving non-disabled people the choice to buy insurance plans that include less coverage, premiums for disabled people will increase dramatically.

From ASAN:

The Autistic Self Advocacy Network (ASAN) condemns the executive order issued by President Trump today attacking critical protections for people with disabilities in the Affordable Care Act (ACA). The executive order would make it easier for insurance companies to discriminate against people with pre-existing conditions, and could allow insurers to sell junk coverage that doesn’t cover critical services and won’t protect people from soaring health care costs. The American people have clearly and repeatedly rejected this kind of proposal. As ASAN has stated in the past, any future attempts at health care reform must meet the needs of all Americans, leave the Medicaid program intact, and proactively include the disability community from the beginning of the process. ASAN calls on the Trump administration to listen to the voices of everyday Americans, stop attempting to sabotage the ACA, and support a bipartisan process in Congress. Our government must work to develop thoughtful and carefully considered proposals that make healthcare better for everyone and increase access to quality, affordable coverage rather than endangering the lives of people with disabilities.

Effects of Insurance Mandates

The Politics of Autism includes an extensive discussion of insurance and the regulation of autism service providers.

Colleen L. Barry, Andrew J. Epstein, Steven C. Marcus, Alene Kennedy-Hendricks, Molly K. Candon, Ming Xie, and David S. Mandell have an article at Health Affairs titled "Effects Of State Insurance Mandates On Health Care Use And Spending For Autism Spectrum Disorder."

The abstract:

Forty-six states and the District of Columbia have enacted insurance mandates that require commercial insurers to cover treatment for children with autism spectrum disorder (ASD). This study examined whether implementing autism mandates altered service use or spending among commercially insured children with ASD. We compared children age twenty-one or younger who were eligible for mandates to children not subject to mandates using 2008–12 claims data from three national insurers. Increases in service use and spending attributable to state mandates were detected for all outcomes. Mandates were associated with a 3.4-percentage-point increase in monthly use and a $77 increase in monthly spending on ASD-specific services. Effects were larger for younger children and increased with the number of years since mandate implementation. These increases suggest that state mandates are an effective tool for broadening access to autism treatment under commercial insurance.

From a release by the Johns Hopkins University Bloomberg School of Public Health:

"The hope of patient advocates and policymakers was that these insurer mandates would increase care for children with autism, and they seem to have done that—in fact, the impact was even larger than we had expected," says Colleen L. Barry, PhD, MPP, the Fred and Julie Soper Professor and Chair of the Department of Health Policy and Management at the Bloomberg School.

The results, Barry adds, are important for states that have enacted such mandates to understand their impact, and also helpful for states considering whether to broaden mandates that are already in place. Barry is also affiliated faculty with the Johns Hopkins Wendy Klag Center for Autism and Developmental Disabilities at the Bloomberg School.

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Recent federal laws including the Affordable Care Act have introduced nationwide coverage mandates, including "parity" mandates requiring that coverage of mental health care be equal to coverage of general health care. But how closely these regulations apply to behavioral therapies for ASDs is still being debated—even litigated—among insurers and patient advocacy groups.

"Concern that children with autism were not able to access services through private insurance even in the context of parity laws was one reason why patient advocates have pushed for these state mandates that apply specifically to autism coverage," Barry says.