DAY NINETEEN: 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.

Governor Bredesen may respond that unlike Oklahoma, waiver services in Tennessee will not have a limitation either. But this defense is pure deception. Not only is Tennessee dead last of US states in providing waiver services to decrease costly institutionalization, but the waiver services are optional parts of the TennCare program that the governor is eliminating. For every dollar Tennessee spends on home and community programs, the state spends $149.00 on expensive facilities.

For example the “sitter services” and “private duty nursing” are both getting the axe. While there is some state money providing home-health services, Tennessee has never embraced cost saving attendant services that would help people move out of nursing homes, as well as prevent citizens going into institutions. Other US states use these waiver programs to cut costly Medicaid institutional long-term care.

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.

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. But more important, it is discrimination. To steer people with disabilities toward separation from the community, and to directly support segregation of people with disabilities over inclusion in the community is contrary to the principles of the ADA.

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