MINORITY VIEWS OF THE DEMOCRATIC MEMBERS
OF THE COMMITTEE ON COMMERCE
ON TITLE II, SUBTITLE A - MEDICAID

[pp. 2018 - 2022 of House Report 104-651 filed on June 27, 1996
to accompany H.R. 3734, Welfare and Medicaid Reform Act of 1996]

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."
"The question is," said Alice, "whether you can make words mean
so many different things."
"The question is," said Humpty Dumpty, "which is to be master -- that's all."

--- Lewis Carroll, Through the Looking Glass (1872)

The portion of this bill reported by the Commerce Committee repeals the Medicaid program less than four months from now, and substitutes in its place a block grant of Federal funds to the Governors of the several States. The Majority says their block grant will provide a guarantee of health care to current Medicaid patients. We say it won't. The central question is: does the word "guarantee" have any real meaning to the Majority?

Medicaid is America's second largest health care program, covering almost as many Americans as Medicare. According to the Congressional Budget Office (CBO), Medicaid this year will cover 36.8 million poor senior citizens, disabled people, women, and children at a total cost of $168 billion ($80.8 billion Federal, $72.2 billion State). By way of comparison, CBO estimates that Medicare will cover 37.5 million Americans in FY 1996 at a total cost to the Federal government of $199 billion.

Medicaid is America's largest single purchaser of nursing home services and other long-term care. The Federal government, through Medicaid, will spend an estimated $30 billion on long-term care this fiscal year, the States another $22.7 billion. Most of the long-term care paid for by Medicaid is delivered in nursing homes; Medicaid pays for more than half the nursing home care provided in this country. Of the 1.5 million nursing home residents nationwide, about two- thirds, or one million, are covered by Medicaid, mostly at State option.

This year more than 4 million adults 65 and over will receive services from Medicaid. About one-third of these are eligible because they are receiving cash assistance through the Supplemental Security Income (SSI) program. Others have lost nearly all their assets to the high medical or long-term care expenses that often accompany illness or disease later in life. An estimated 1.9 million seniors are eligible as Qualified Medicare Beneficiaries; their incomes are below 120 percent of the poverty level, and they receive Medicaid assistance to pay their Medicare premiums, co-insurance, and deductibles (but not nursing home care or prescription drugs).

About 6 million disabled individuals and about 7.4 million low-income women are eligible for Medicaid in 1996. And Medicaid covers about one-fourth of America's children -- 70 million in number. Under current law, by the year 2001, all American children under 18 who live in families with incomes below the Federal poverty line will be eligible for Medicaid coverage. Early preventive care, diagnosis, and treatment for poor children has traditionally been viewed as a sound investment, because it saves on much more expensive and longer term adult care and treatment later.

The Republicans argue that they can cut $72 billion in Federal spending from Medicaid over six years -- and as much as $250 billion overall in combined Federal and State spending -- and still provide a guarantee of health care in their block grant. They assert that their bill "guarantees" health care coverage for the same poor elderly, disabled, women, and children for whom Medicaid now provides. Can they be right?

Webster's Third New International Dictionary defines a "guarantee" as "an agreement by which one person undertakes to secure another in the possession of something; an expressed or implied assurance of the quality of goods offered for sale or the length of satisfactory use to be expected from a product offered for sale; something given by way of security." It is, in other words, a contract -- a promise made and kept. Where are the guarantees in this bill? Where, for example, does it assure that poor elderly Americans will get medically necessary nursing home coverage as they do now? Nowhere. In fact, the bill's fine print goes out of its way to shred any assurance that such coverage must be provided.

The bill repeals the health care guarantee in current law, found in Title XIX of the Social Security Act. The bill states that effective October 1 -- less than 4 months from now -- neither Title XIX nor the Majority's new block grant may be construed "as providing an entitlement, under Federal law in relation to the Federal government, to an individual or person (including any provider) at the time of provision or receipt of services." The bill gives States virtually total discretion to specify the amount, duration, and scope of the benefits they offer to any individual. In short, there is absolutely no assurance that medically necessary physician, hospital, or nursing home care will be covered; there is no assurance, to paraphrase Webster's, that the "quality or the length of use to be expected" is guaranteed. The Republican guarantee, if it exists at all, is entirely illusory.

In case there might be any lingering doubt whether this bill guarantees anything to the elderly or other poor Americans, the bill explicitly prohibits any person from trying to enforce any such guarantee against a State in Federal court. This bill removes the private right of action that our elderly and vulnerable citizens have under current law. This right of action is not a provision of the Medicaid law itself, but rather is codified at 42 U.S.C.  1983. Passed during the 1870s as a Reconstruction statute, section 1983 provides a private cause of action against anyone who, under color of state law, deprives an individual of "any rights, privileges, or immunities" secured by the Constitution and Federal laws. The Supreme Court has held that in enacting section 1983, Congress intended to override state legislation limiting individual Federal rights, to offer a remedy where state laws were inadequate to protect those rights, and to provide a cause of action "where the remedy, although adequate in theory, was not available in practice." Private parties have invoked section 1983 to challenge state implementation of a wide variety of Federal statutes. In other words, people who are not receiving a service or protection to which Federal law entitles them have a right of action in Federal court to secure that service or protection. If this bill is enacted, Medicaid beneficiaries will be denied that right.

The Committee's mark-up provides ample evidence that the Republicans have no intention of guaranteeing medical care to anyone. We offered several amendments that would have clarified the Republicans' bill and put them on record as promising a real guarantee for Medicaid patients -- a real Contract with America, for America's most vulnerable citizens and their families. Over and over, we asked the Republicans simply to "put it in writing." Over and over, they refused. We asked them to provide:

(A) A real guarantee of coverage for the elderly needing nursing home care. The Republican bill repeals the current Federal guarantee of coverage for medically necessary nursing home services for eligible elderly individuals. The amendment would have fully restored the current law guarantee for elderly individuals who (1) require nursing home services and (2) meet the Medicaid eligibility standards in effect in the State as of June 1, 1996. It was defeated on a party-line vote.

(B) A real guarantee of coverage for elderly Alzheimer's victims. It was defeated on a party-line vote.

(C) A real guarantee of coverage for veterans needing nursing home care. It was defeated on a party-line vote.

(D) A real guarantee of coverage at least for those elderly beneficiaries NOW living in nursing homes. It was defeated on a party-line vote.

(E) A real guarantee that the elderly can choose their own nursing home, so long as the home is Medicaid-eligible, rather than having the Governor of a State make that decision for them. Even this amendment was defeated on a party-line vote.

(F) A real guarantee of coverage for children. The Republican bill repeals the current law Federal guarantee of coverage for medically necessary physician, hospital, and related basic health services for poor children, including the guarantee of treatment services necessary to correct a condition identified during a medical screening under the Early Periodic Screening, Diagnosis, and Treatment (EPSDT) program. The amendment would have fully restored the current law guarantee for eligible children, especially by putting the "T" for Treatment back in EPSDT. It was defeated on a party-line vote.

(G) A real guarantee of coverage for pregnant women and infants. It was defeated on a party-line vote. (H) A real guarantee of coverage for Native Americans, to whom the Nation owes special obligations and responsibilities. This amendment, too, was defeated on a party-line vote.

And there were more amendments, including continuation of coverage for breast and cervical cancer services; continuation of parity in benefits for residents of rural areas; continuation of the current section 1115 waiver program to allow states continued flexibility in trying new approaches to providing health care; restoration of current law minimum payment standards for hospitals, nursing homes, rural health centers, Federally qualified health centers, and managed care plans. These were all defeated along party lines.

The Republicans even defeated an amendment that would have curtailed fraud and abuse in at least two respects. The amendment restored existing limitations on States treating provider "donations" and taxes as State Medicaid funds for purposes of increasing their Federal dollar match, and it extended to State officials handling Federal block grant funds the same conflict of interest and ethics rules that now govern Federal officials. Instead, the Majority voted to order yet another two-year study of these fraudulent State financing schemes. They ignored the conflict of interest problem altogether. Then, they "compromised" with themselves and chose to adopt an amendment that would allow the Secretary after the two-year study is complete to waive the prohibition on these ripoffs. Governors will soon be returning to the Federal trough for health care money that they will use not for health care but to pave roads, build prisons, reduce State taxes, and make State deficits look smaller while the Federal deficit grows larger.

Our Republican colleagues last year proudly touted their "Contract with America." This year's Medicaid legislation, like their bill last year, clearly illustrates their unwillingness to maintain Medicaid's 30-year old contract with the 36 million elderly and vulnerable Americans who depend on it. The Majority talks a good game about "guarantees," but their bill provides none. Theirs is an empty promise, a contract full of loopholes. It does not fulfill a single promise -- no real guarantee of long-term care for senior citizens; no real guarantee of health care for poor women and children, or disabled people; no assurance that health services will be provided fairly and equally throughout each State, or across the country. Instead of providing health security to people in desperate need, the Republicans want to provide money with few if any meaningful strings attached to the Governors in a block grant and let them spend it as they please.

At the same time, they are saying to middle-class families with elderly parents or grandparents in nursing homes, and to the other Americans served by Medicaid, that Congress has reneged on its commitment to help them. The Majority is saying, "You're on your own." Today approximately 40 million Americans have no health care coverage. The Republican plan will inevitably increase this number by taking away the real guarantee of health security for 36 million of America's seniors, disabled people, women, and children.

"Impenetrability! That's what I say!" "Would you tell me please," said Alice, "what that means?" "Now you talk like a reasonable child," said Humpty Dumpty, looking very much pleased. "I meant by impenetrability' that we've had enough of that subject, and it would be just as well if you'd mention what you meant to do next, as I suppose you don't mean to stop here all the rest of your life." "That's a great deal to make one word mean," Alice said in a thoughtful tone. "When I make a word do a lot of work like that," said Humpty Dumpty, "I always pay it extra." "Oh!" said Alice. She was too much puzzled to make any other remark.

Signed By,

JOHN D. DINGELL, HENRY A. WAXMAN, EDWARD J. MARKEY, CARDISS COLLINS, BILL RICHARDSON, JOHN BRYANT, RICK BOUCHER, THOMAS J. MANTON, EDOLPHUS TOWNS, GERRY E. STUDDS, FRANK PALLONE, JR., SHERROD BROWN, BART GORDON, ELIZABETH FURSE, PETER DEUTSCH, BOBBY L. RUSH, ANNA G. ESHOO, RON KLINK, BART STUPAK, ELIOT L. ENGEL

104th Congress: Democratic Perspectives
103rd-107th Congress Committee Activity