By Raul Carranza
At first blush, campaign finance reform and the rights of the disabled appear to be two unrelated issues. However, a deeper look reveals why money in politics affects our most vulnerable citizens.
In 1999, the United States Supreme Court handed down a historic decision in the form of Olmstead v. L.C.. The case involved two women, known as L.C and E.W., who were diagnosed with mental illness and retardation. They had been living in a Georgia state psychiatric facility until their doctors deemed them fit to be integrated back into the community.
However, the state of Georgia already had a long waiting list and very few community placement opportunities. As a result, L.C and E.W. were forced to stay institutionalized for years, despite being having received clearance from their doctors to leave the institutional setting.
The two women filed suit against Tommy Olmstead, commissioner of the Georgia Human Resources Department. They argued that, by keeping them unnecessarily institutionalized, the state was violating the Americans with Disabilities Act’s integration mandate, which states that public entities must “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”
The Act further defines that setting as one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” The state argued to be let off the hook, claiming that it was lack of adequate funding and not discrimination that prevented the women from being placed in the community.
Additionally, the State argued that immediate placement would fundamentally alter the program. The Supreme Court rejected their arguments, ruling that Georgia was indeed guilty of discrimination against the two women. This was a landmark case for the disability community, as it opened the door for many who were still trapped in nursing homes against their wishes and the advice of doctors to move back into their communities.
Over a decade later, in 2010 the Supreme Court ruled in favor of Citizens United, a nonprofit corporation, in the now infamous Citizens United v. Federal Election Commission. As most know, the court ruled that money equals speech, and that corporations as well as unions are entitled to the same free speech rights as individual citizens.
While this made it easier for corporations, unions and wealthy private individuals to openly (or in many cases clandestinely) support candidates by giving to their campaigns and/or “Super PACs,” it only exasperated an already existing problem. The issue of “soft money” had been a problem ever since the Clinton years, as Mark Schmitt writes.
“The Republican challenger to President Clinton in 1996, Bob Dole, hardly got out of the starting gate, thanks in large part to a huge advertising push by the incumbent in late 1995…What made all this possible was the phenomenon of ‘soft money’—funds raised by political party committees from corporations, labor unions and wealthy individuals. Soft money itself wasn’t new; the innovation was in using the money not to fill party coffers but to run ads supporting or opposing specific candidates.”
This has created a sort of quid pro quo system between major donors and candidates. The more money they get from an entity, the more likely they’ll listen to that entity – lest a onetime ally decide to pull support and fund an opposing candidate in an upcoming election. Money has inundated our political system and contaminated every issue under the sun. Olmstead is no exception.
One of the top lobbies in the 2012 elections was the American Health Care Association. According to Open Secrets, a website dedicated to tracking money in politics, they’ve contributed over 2 million dollars to candidates, parties, PACs and outside spending groups. That’s good enough to rank 135 out of over 21,000 organizations that make political contributions. Additionally, 19 of their 28 lobbyists held previous positions in government.
The ACA website describes the group as follows: “The American Health Care Association is a non-profit federation of affiliate state health organizations, together representing more than 11,000 non-profit and for-profit nursing facility, assisted living, developmentally-disabled, and sub-acute care providers that care for approximately one million elderly and disabled individuals each day.”
While they do operate at the federal level, a lot of their lobbying happens in statehouses across the country. The California ACA affiliate goes by the moniker California Association of Health Facilities (CAHF).
In 2012, CAHF spent over $200,000 giving to 99 candidates. They gave $148,844 to Democrats and $88,069 to Republicans, a fairly even spending rate per capita given the legislature’s largely Democratic makeup. While that may not sound like much, consider the fact that, in 2010, the median amount raised for state house campaigns across the country was $21,140, and $42,968 for state senate campaigns. ACHF also gave $8,415 to Governor Jerry Brown in 2010, plus $5,000 to Lt. Governor Gavin Newsom in 2012, even though Newsom wasn’t up for reelection. To say they have influence in Sacramento would be an understatement.
CAHF has successfully lobbied for numerous bills over the group’s long history. In 2012, they opposed AB 217, which would have restricted smoking in nursing facilities to designated areas. The bill ended up being vetoed by Governor Brown . That same year, CAHF lobbied against a 1% reduction in base pay rates for skilled nursing facilities, along with a quality assurance fee in the state budget. They managed to block the reduction in base rates, and got an extension on the Quality Assurance fee.
Lastly, the CAHF launched an 8 million dollar campaign in 2002 to, “… [limit] damages under California’s Elder Abuse laws and limiting the use of quality assurance data and surveyor compliance data in elder abuse civil cases.”
In a recent article on CNN Money, researchers found that the cost of nursing homes has risen from roughly $67,000 to about $83,000 in the past 5 years, which equates to a 24% increase. The cost of homecare has only risen 5% in the past 5 years, however, and remains significantly cheaper at $44,479/year. But the rise in costs isn’t resulting in higher quality care.
One nurse, who wishes to remain anonymous, described her experience working in a facility as “good and bad . . . good because I liked the patients, but bad because the management didn’t care about them.”
She went on to describe how she was responsible for 35 patients, would routinely find discrepancies in the narcotics log (meaning patients may have been improperly medicated or not received medication at all), not have necessary supplies or medications, and how Certified Nursing Assistants would often leave patients laying in their own urine and feces. She claims management took no action when she reported these incidents.
There’s a waiver in California for people with severe disabilities. It gives proper care in the home for people that currently reside in nursing homes, or who are at risk of being institutionalized. In other words, it aims to provide care in the most integrated setting possible, as the Olmstead ruling mandates.
The Nursing Facility / Acute Hospital (NF/AH) waiver not only offers people with disabilities an opprotunity to be an active members of their community, but it’s also cheaper and safer for the patients. The waiver operates under a concept of cost caps and cost neutrality. There are three levels in the waiver, each corresponding to the severity of an individual’s disability. The more severe the condition of the individual, the more money that’s available to fund their care, but only so long as the total cost does not exceed the cost of a nursing home.
Or at least that’s how it’s supposed to work in theory. Below is a table comparing each level’s cost cap with the actual cost for the state to put the individual in a nursing home:
As the chart illustrates, California offers to pay significantly higher sum to facilities like those represented by CAHF in Sacramento than it makes available for comparable in-home treatment.
Furthermore, this author obtained an internal document written by California Health and Human Services which was likely not meant for the public (the lone file linked here was publicly accessible, but the rest of the directory is not. No links on their website point to it), that gives further credence to the state’s bias towards institutionalized care.
Above is an Excel graphic detailing the number of people receiving services at each level of the waiver. There were 249 available slots at the A/B level, which had a waiting list of 455 people wanting to stay in (or be returned to) their respective communities. Those individuals stayed on the waiting list for an average of 232 days. By comparison, there was no one waiting for placement in an institutional facility. While the argument could be made that this could be due to a combination of inefficient bureaucracy and low interest in being placed in a facility, the fact is that states are not allowed to keep waiting lists for nursing homes because they are considered an “entitlement” which states are obligated to provide .
Of course, the winners in all of this are organizations like the CAHF and AHCA, whose members get a guaranteed flow of taxpayer dollars regardless of the quality of care they provide. As long as organizations like these keep funding our representative’s campaigns, that’s not going to change anytime soon.
Raul Carranza is a full-time activist and a college student (when he has the nursing hours). When he is not blogging about the evils of budget cuts and private insurance, he competes in Strongman bouts and is a tactical planner for the A-Team.