Bredesen’s Drug Cap Violates the ADA Five Scrip limit
for people in the community, unlimited free drugs for those in institutions
By Tim Wheat
(BOULDER, COLORADO) Governor Phil Bredesen’s Medicaid prescription drug proposal treats people in institutions to an unrestricted supply of free prescription drugs while citizens with disabilities attempting to live in the community are limited to five medications.
The 1990 Americans with Disabilities Act defines institutionalization as a unique area of discrimination directed toward people with disabilities. The five-prescription limit of medications is illegal discrimination for TennCare enrollees with disabilities.
In Fisher v. Oklahoma Health Care Authority, the state of Oklahoma attempted to limit medications to people living in the community, but because their was no limit on the drugs given to people in nursing homes, the state’s program was ruled illegal discrimination by the 10th Circuit Court in Denver.
Since the 1990 Americans with Disabilities Act people with disabilities have won the right to full participation in civic life, and cannot be unnecessarily locked away or blocked from equal participation. The 1999 Olmstead decision and the US Department of Justice’s ruling on the Laguna Honda Nursing Home further clarified the principal of institutionalization as discrimination: "The Supreme Court [in Olmstead] has made clear that unnecessary isolation of individuals with disabilities in institutions, including nursing homes, is discrimination that diminishes individuals' ability to lead full and independent lives. The [ADA] requires, and we will ensure, that people with disabilities, like all Americans, have equal access and opportunity to participate in community life."
The governor suggests his drug limit will cut costs, but it also isolates and injures people with disabilities in Tennessee. The policy makes nursing homes the prime providers for people with disabilities, while those that struggle for equality in the community have more barriers placed in front of them by the state. Bredesen discriminates against people with disabilities by making institutionalization and isolation the state policy of Tennessee.
Tennessee is already the worst of all 50 US states at providing alternatives to nursing homes. One dollar is provided for home and community alternatives for every $149 spent on facilities. Institutions are the most expensive and least desirable form of long-term care. The governors proposed drug policy, which favors institutions, would undoubtedly result in more expensive unnecessary confinement.
Federal Medicaid policy was developed in the 1960s and has an institutional bias because, at the time, that was the only delivery system for people with disabilities. The Nursing Home Industry has profited from this bias by dominating the market in every Tennessee County. Even though 70% of their funding comes from government sources, the nursing home industry has one on the largest lobbies in the state to keep the public funds flowing to facilities. Every other US state has some level of cost saving alternatives to nursing homes. By waiving institutional requirements states may offer optional home and community services at huge savings to the state. Each person who is eligible for a nursing home level of care, that is served in the community instead, will save the state about $23,000.00, or about one-third of institutionalization.
The real reason for this unique definition of discrimination is that people with disabilities don’t want to be hidden away any longer. People with disabilities are stepping out of the shadows of the dark discrimination of seclusion and into the light of public participation. They are leading the protest of Bredesen’s TennCare cuts and people with disabilities will be seen on the landscape of local, state and federal policy. Get used to it, disability is part of life. - Tim Wheat
DAY SEVENTEEN: People with HIV and AIDS Join the Protest
Gov. Bredesen created consent decree changes he is going to court to overturn.
(NASHVILLE, July 6, 2005) Yesterday, people with HIV and AIDS joined the demonstration outside Tennessee Governor Phil Bredesen’s office. People infected with HIV or who have AIDS have much to fear if they are trapped in the governor’s massive healthcare cuts.
"It's like a double whammy," said one of the HIV/AIDS patients losing prescription coverage. "You find a treatment that works, but many people will be worse off after stopping treatment than if they had never been on it."
TennCare spokeswoman Marilyn Elam said unlimited prescription benefits are a major reason for the program's increasing costs. "If I get sick and put in the hospital,” said Tim Vance of Dowelltown, “then it's going to cost the state a lot more than my medicines."
Gov. Bredesen has blamed the need for enormous cuts in enrollment on consent decrees made rather than admit the state was involved in illegal activity. Testimony in the Grier case however, shows that Gov. Bredesen directed all of the changes and approved the consent decrees. Bredesen’s website states: Following a full year of study, the Governor in 2004 proposed a comprehensive TennCare reform strategy designed to preserve full enrollment by placing reasonable limits on benefits. The plan won broad support from legislators, providers and enrollees, but public-interest lawyers thwarted it by refusing to lift legal roadblocks to reform. [
The governor praised the consent decrees at the time, but now Bredesen condemns the decrees and has gone back into court at the taxpayers expense to change the settlements. His own declaration that TennCare must undergo massive enrollment cuts appears to be because of his own negligence and mismanagement.
"I think what this shows is that the governor has been distracting the public with talk of the consent decrees," said Michelle Johnson of the Tennessee Justice Center. "
The problem for the taxpayers is that if we have the wrong diagnosis for the problem, we are going to get the wrong treatment." "There were always financial problems in the TennCare program,” said Manny Martins who oversaw the TennCare program last year for Bredesen, “but I did not relate them to the consent decree."
Today the Grier testimony has been made over changing the definition of what is "medically necessary." The governor is proposing to restrict the definition, which advocates for enrollees say will significantly lessen the effect of doctors' opinions on treatment. Dr. Stephen Cha said making the definition more restrictive would eliminate important and necessary care that doctors know to be effective but haven't been the subject of clinical trials. "We're not talking about what's cost effective,” said Dr. Cha, a clinical scholar in the Department of General Internal Medicine at Yale University, “we're talking about what's less adequate.” -Tim Wheat
DAY THIRTEEN: Bredesen ignores real savings with TennCare http://www.mcil.org/mcil/log/2005/070205s.asp
Governor’s Medicaid plan fails to offer real cost-savings
(NASHVILLE, July 2, 2005) Nursing home care is a requirement of the Medicare program. Every US state asks the federal government to waive this Medicaid policy so that citizens may receive home and community based services to remain in their own home. Institutional care is the most expensive and least desirable form of long-term care, but Tennessee offers almost no alternatives to institutions. For every dollar Tennessee spends on alternatives to nursing homes, the state spends $149 on costly institutions.
Tennessee is last in the nation in providing home and community long-term care services. Faced with few alternatives, many Tennesseans do without healthcare rather than live in a nursing home. The TennCare system is burdened with the huge cost of institutional services, while not providing cost-saving alternatives. Activists have occupied the governor’s office day and night since June 20. The coalition of TennCare supporters is demanding that the governor stop the massive disqualification of citizens in need of healthcare, and openly discuss the issues. Governor Bredesen has refused to meet openly with the demonstrators; he has offered only closed-door meetings. TennCare is the Tennessee Medicaid program that offers additional healthcare coverage beyond the federal minimal requirements.
Governor Bredesen’s “plan” is to return to the federal minimum, terminating healthcare to over 300 thousand citizens. Yesterday activists were pushed out of the office and into the adjacent hall. “We have always had someone in the room,” said Don DeVaul. “I was away at the bathroom when they strong-armed the door closed and refused to let anyone back in for the day.”
The Nursing Home Industry and their powerful lobby work to keep a strong hold on the public funding. Although most nursing homes are for-profit, nearly 70% of their income is from government funds. This corporate welfare inflates the cost to taxpayers and weights TennCare down. To keep the nursing home lobby satisfied, the governor’s plan does not offer any cost-saving alternatives to institutionalization.
State governments across the US are replacing institutional services with home and community based alternatives that allow citizens to remain in their own homes. Typically home services cost a third of institutional care. Tennessee knows of 6,458 people currently incarcerated in nursing homes that wish to leave, but because the state has virtually no home support, they stay in expensive facilities costing the taxpayers more about $150 million.
Testimony this week in the Grier case shows that the governor’s plan, which ends healthcare coverage for 323,000 citizens, will cost an additional $100 million dollars. “The State Troopers here are watching DVD’s all night,” said Don DeVaul a TennCare enrollee outside the governor’s office. News reports over the past week have said that the demonstration at the governor’s office is costing about $2,000 per day. The figure, however, is completely artificial; the protest is a peaceful, non-violent demonstration and organizers have not asked for additional security. The decision to spend money on security is completely Gov. Bredesen’s, and the choice not to meet the demands continues the demonstration.
“Why doesn’t Bredesen station National Guard jets overhead?” asked one supporter, “the way he wastes our tax money and spins public-relations, I expect to see a large marble statue of ‘Phil the Great’ out here next week
Letter: TennCare disenrollment a ‘death sentence’
To the Editor:
My father, Kennith Hodge of Gray, Tenn., is a self-employed electrician who relies on TennCare for medical coverage. Due to his income, he could not afford private health insurance. Up until this year, he only used TennCare for emergencies and regular check-ups.
In April of this year he was diagnosed with Burkitt’s lymphoma, a rare cancer of the blood and bone marrow. He was admitted to Johnson City Medical Center, and later transferred to Vanderbilt, for intensive chemotherapy. Doctors said that if he were to have any chance of survival, he would need at least 6-8 chemo treatments over the next few months. They also told him that due to the chemo side effects and weakening of his immune system that he would be out of work for at least one year and would be considered disabled. He began applying for governmental assistance for help with household bills. He was approved for foodstamps, but we are still waiting to hear from the Social Security Disability office.
In the meantime, he received notice from the state that he was one of the people whose TennCare coverage would be terminated. We filled out all the proper paperwork and sent in statements from his doctors, etc., thinking that they wouldn’t possibly disenroll him during the middle of his treatments. Boy, were we wrong. He received another notice on June 29 that he did not qualify to remain on TennCare and that his coverage would terminate on July 17th. We have filed an appeal, but unless they change their minds or he can get approved for SSI, he will have to stop receiving the treatments he needs if he is to have any chance of beating this disease. The state is basically sentencing him to die.
What I can’t understand is how young, healthy people can remain on TennCare while people who are actually sick get kicked off during the middle of their treatments and basically told that their lives are meaningless. If my dad were able to get his remaining four treatments, he would have a good shot at going into remission. If he doesn’t get them, it’s not a question of if he will survive, but when he will die. Because that is what is going to happen in 6-12 months.
We are holding out hope that he will be approved for SSI before his next round of chemo is to take place. That is in about four weeks. If that doesn’t happen, then I will hold the state, and Gov. Bredesen, responsible for my dad’s death. I urge the citizens of this state to do whatever it takes to keep Mr. Bredesen from getting re-elected. I know that I will definitely not be voting for him, and I will be urging others I know not to vote for him as well.
The state made people dependent upon TennCare. The state sat around and watched it balloon out of proportion and did nothing until it was falling apart. And now the state wants to just cut people off and decide which people deserve treatment? That is totally irresponsible and inhumane, and the state will have to answer for it.