Making the Law More ABLE: Reforming Medicaid for Disability

Abstract

Passed on the eve of Medicaid's fiftieth anniversary, the Achieving a Better Live Experience (ABLE) Act was a hard-fought victory for individuals with significant disabilities and their families. The law, which creates a new form of tax-preferred savings account, represents an invaluable work-around for highly restrictive Medicaid eligibility requirements. Medicaid eligibility is crucially important for individuals with intellectual, developmental, and other significant disabilities because it provides nearly exclusive access to government- coordinated habilitative care, such as in-home assistance, job supports, and adaptive equipment. These services are necessary to maintain a base-level quality of lfe, facilitate independent living, and preserve the dignity of individuals with disabilities. Despite their importance, they are difflicult to purchase and coordinate in the private market, and due to income and asset holding restrictions on eligibility, only the very poor can access them through Medicaid, even after passage of the Affordable Care Act. This Article argues that despite their facial neutrality, income and asset holding restrictions, commonly referred to as means testing, result in undue hardship when they are applied to the provision of government-coordinated habilitative care for individuals with significant disabilities. Congress's attempts to mitigate this hardship, including the recently passed ABLE Act, are important steps forward, but they also can impose economic, dignitary, and emotional harms on individuals with disabilities.

Based on the distinctive needs of individuals with significant disabilities, this Article takes the counterintuitive position that these individuals should be afforded access to government-coordinated habilitative care through Medicaid without regard to income or wealth. Under current market conditions, non-means-tested access to habilitative care is a normatively superior solution because it preserves the autonomy and dignity of individuals with disabilities and may be simultaneously cost-neutral and utility-increasing. Granting unrestricted access to government-coordinated habilitative care to individuals with significant disabilities would eliminate perverse employment and financial planning incentives created by Congress's past attempts to broaden access. Finally, it would create parity among parents who plan for the future of children with disabilities and those whose children are typically-abled, as well as parity for retirement savings among workers with significant disabilities and those without. As a result, Congress should revisit and revise means-tested access to disability-related services through Medicaid.