The 'imperial presidency' reaches long-term care.

As of mid-July, Congress had taken a lot of vacation time. In fact, the 109th session of Congress is threatening to become one of the least productive congressional sessions of the past 50 years.

There are two reasons for this. The first is the rise of parliamentary party discipline. It was not long ago that the party identification of a member of Congress did not necessarily predict the member's votes. Individual legislators allowed themselves to be convinced by arguments, by evidence uncovered through legislative hearings, and by the pressure of constituents "back home." Today, a member of the House of Representatives rarely votes against his party's leadership.

Under these circumstances, it's hard to get any real policy making done because there are few opportunities for the members of the two parties to negotiate. Things are only a little better in the Senate, in part because majority leader Bill Frist (R-Tenn.) is retiring this year and has not tried as hard to force his Republican colleagues to maintain ranks.

The other reason is that the President and his administration, with the apparent permission of the Republican majority in Congress, have largely taken over the job of legislating policies. Of course, most Americans have become aware that the federal government adopted policies of reviewing overseas telephone calls and international money transfers without any explicit congressional authority. And there was the Supreme Court decision that the President had overreached in determining Guantanamo prisoner-of-war policies. Less well-known are the dozens of "little" policy innovations made by administrative fiat, such as one that quickly became a long-term care industry favorite: the effective repeal, without congressional authority, of a portion of recent legislation mandating that states obtain documents proving U.S. citizenship or legal residence for all Medicaid recipients.

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The specific congressional legislation affected by this informal "repeal" is the Deficit Reduction Act of 2005. Until passage of the act, most states allowed Medicaid recipients, including nursing home residents, to make a sworn declaration of legal citizenship or resident status. This was, of course, Congress's response to fears of illegal aliens swarming across the border to take advantage of Medicaid services. Stating that" [s]elf-attestation of citizenship and identity is no longer an acceptable practice," Congress required states to implement an effective process for ensuring compliance with documentation of citizenship or risk losing all of their federal Medicaid match.

One problem with this legislation is that proof of "citizenship and identity" can be easier to obtain for immigrants than for low-income native-born older Americans. In letters to the Bush administration following passage of the legislation, AHCA President Bruce Yarwood noted that many older Medicaid beneficiaries born in rural homes may not have been issued birth certificates, while others may have lost all their records during hurricanes, floods, or fires. Nursing home residents are especially vulnerable to lack of proof of citizenship because many have cognitive impairments so severe that it is not feasible for them to assist in locating the required documentation, and not a few lack families to help them this process. If residents have never traveled overseas and applied for a passport, their typical documents--church records, driver's licenses, Social Security cards--would not meet the requirements for proof of citizenship.

Yarwood might have addressed this problem by asking Congress to repeal the thoughtlessly drafted legislation altogether, or asked a friendly Republican congressman to propose an appropriate amendment. But in today's Washington, as it turned out, letters to the leadership of CMS were more effective. In response, CMS's legal eagles found a legislative clause that they claim allows CMS to ignore the documentation requirement for millions of elderly Americans.

Specifically, section 1903(x)(2) of the Deficit Reduction Act exempts an "alien" who is eligible for Medicaid and entitled to or enrolled in Medicare, or else eligible for Medicaid by virtue of receiving Supplemental Security Income (SSI), from having to present legal documentation of citizenship. That's thoughtful, perhaps, but certainly pointless: foreign citizens can't provide legal proof of U.S. citizenship because they aren't citizens. Perhaps suppressing a giggle, CMS claimed that the reference to "alien" had to be a clerical mistake (or "scrivener's error," in quaint legalese). CMS attorneys wrote in the interim rule implementing the legislation:

    While the Congress chose to use words that have a logical English
  meaning, those words lead to absurd and counter-intuitive results. An
  exemption applying only to "aliens" who declare themselves citizens
  would amount to an absurd result for aliens (who, by definition,
  cannot provide documentation of citizenship) and no exemption at all
  for those whom the Congress clearly intended to benefit with the
  exemption. Under the absurd results doctrine, it appears reasonable
  for CMS to interpret the statute so that the exemption under
  subsection 1903(x)(2) of the Act applies to "individuals" rather than
  "aliens."

With that stroke of a pen, states will not be required to obtain documentary proof of U.S. citizenship or birth for Americans who are dually eligible for Medicare and Medicaid, or for Americans who receive Medicaid because they also are receiving SSI.

CMS's bold interpretive stroke has the effect of exempting roughly one out of seven Medicaid recipients from the new requirements. And long-term care leadership is grateful. Yarwood, in a July press release, thanked the administration "for this intelligent public policy correction," and declared that "[r]eason and fairness have prevailed in this case." (Yarwood also stated incorrectly that Medicare recipients "had established their citizenship when they applied for Medicare"; in fact, Medicare, as a Social Security benefit, is available to any legal resident who has worked several years in the United States.)

CMS's action also represents a slap at Congress. It implies that the institution is not competent to perform its basic task of crafting legislation that reflects its own policy choices. It also suggests that CMS Administrator Mark McClellan and his staff know best about what Congress really wanted, and have the right to change language that does not agree with their interpretation.

As of press time, though, all was well. When Capitol Hill and the White House are controlled by the same political party, there are unsurprisingly few objections when federal officials disregard the literal meaning of recently enacted legislation--especially when it means making life easier for millions of our most vulnerable elderly during an election year. If Democrats, however, realize their fond hope of regaining control over one or both houses of Congress this November, the Bush administration's cavalier attitude toward congressional intent may hit a wall. Whatever implications that might hold for future domestic and international policy, long-term care can at least say that it salvaged a small victory from the constitutional imbalance while it lasted.

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