From: Helene Gelber-Lehman [mailto:hgltraveling@gmail.com] 

Sent: Tuesday, June 02, 2009 11:55 AM 

To: EBSA, E-OHPSCA - EBSA 

Subject: Comments re: Mental Health Parity Act

To Whom it May Concern: 

Attached is a download-able and printable version of our comments re: the Mental Health 

Parity Act as well as some related legislative proposals. [They are also pasted into the 

text below] 

These comments were originally forwarded to Adam M. Shaw, Senior Technical Advisor 

for CMS on May 28, 2009, who today advised that they be forwarded to you. 

Please confirm that you received them. 

Thank You for your expedient attention to this matter, 

Yours Truly, 

H.G. Lehman,Executive Director, 

Association for the Rights of Disabled Consumers, Inc. 

Association for the Rights of Disabled Consumers, Inc.

ARDCinc@gmail.com

2621 Avenue W, Brooklyn New York, 11229-; (718) 676-6925

45 North Street, Bay Point CA. 94565 ; (925) 818-1899

Helene Gelber-Lehman, Executive Director

 

To: U.S. Dept. of Health and Human Services 

Attention: Adam Shaw, Senior Technical Advisor, or [CMS-4137-NC] 

 7500 Security Blvd., Baltimore MD. 21244 

BY EMAIL: adam.shaw@cms.hhs.gov

 

May 28, 2009 

 

We are grateful for the opportunity to comment on the Paul Wellstone and Pete Dominici 

Mental Health and Addiction Equity Act of 2008 [MHPAEA]. 

 

The comments and proposals annexed, represent the collective feedback, ideas and 

experiences of members of the disabled community, compiled by the Association for the 

Rights of Disabled Consumers, Inc., [ARDC, Inc.] a non-profit 501C3, grass-roots 

organization established in New York City in 1974 by members of the disabled 

community who were dedicated to advocating for, and providing information and 

assistance to, others with physical and mental disabilities and their families. 

 

Because certain aspects of the MHPAEA involve the Paperwork Reduction Act and the 

Regulatory Flexibility Act re: costs of administering the relevant treatment programs, etc. 

in addition to our comments re: the MHPAEA we have taken the liberty of including 

sketches of other related legislative proposals that—over the long term—could help to, a) 

restore Medicare [and Medicaid] portability to provide much-needed continuity of mental 

health-care to those who require continuous/ongoing treatment, and who are currently 
denied care; b) create a “cyber-infrastructure” to substantially reduce the “paperwork” 

and costs and ease of administering, reporting, record keeping, billing and tracking lab 

tests and RX Medications, facilitating federal oversight and compliance requirements; c) 

allow aid [paying premiums and co-payments] to those who are economically challenged 

but not income-eligible for “poverty” benefits, by re-defining “poverty”, providing taxincentives to health care professionals who accept Medicare and Medicaid assignment; d) 

reduce the long-term burden of mental health/ addictions treatment through prevention 

vis-a vis mandatory nationwide emotional education and psychological support in our 

public schools, K-12; and e) protect the legal rights of those with “mental disability or 

illness” to obtain proper treatment; especially when they are economically challenged due 

to mentally and physical disabilities, and may not be entitled to a Guardian ad litem, 

because they are not “mentally incompetent” but “psychically injured or traumatized” 

and without equal access to justice, they will not get treatment and will be further 

traumatized by recent/ insidious forms of PTSD, caused by chronic homelessness and 

legal abuse, known as the “Legal-Abuse-Syndrome” * 1 

*1 The Legal Abuse Syndrome is outlined and described by Karen Huffer, M.S. M.F.T. “Legal Abuse Syndrome(LAS) is 

a psychological trauma (a form of post traumatic stress disorder (PTSD)...that develops in individuals assaulted by 

ethical violations, legal abuses, betrayals...abbuse of power and authority and a profound lack of accountability in our 

courts....This stress can and does lead to physical illness. AMA statistics show that around 85% of all physical illness 

is directly attributable to stress. Legal Abuse Syndrome... leads to massive medical intervention costs, burdens 

insurance companies, and adds to Medicare and Social Security costs... whether it is regarding divorce, child custody, 

parental support, probate matters, personal injury, property disputes, legal or medical malpractice, criminal charges 

or other deeply personal issue.. Legal Abuse Syndrome(LAS) is a subcategory of PTSD.

Yours Truly, 

 

H.G. Lehman, Executive Director 

INDEX

 

PART I: COMMENTS RE: MHPAEA: pp 2-3 

PART II: RE-DEFNING POVERTY; pp.4 

PART III: MENTAL DISABILITES PREVENTION ACT of 2009. pp.5 

PART IV: CIVIL GIDEON or QUASI-GUARDIAN AD LITEM ACT OF 2009, or pp.5-

7 

PART V: [PROPOSED] MEDICARE PORTABILITY ACT OF 2009; pp. 7-11 

 

PART I

COMMENTS ON THE MHPAEA OF 2008.

Unless those who need Mental Health care can access proper treatment, and 

obtain treatment at the cost, frequency and consistency needed, Mental Health 

Parity may never become a reality, despite the enactment of the MHPAEA.

PROBLEMS OF TRUE PARITY IN MENTAL HEALTH SERVICES

• Currently, most MEDICARE + CHOICE PLANS typically serve the 

aged and appear to only employ mental health professionals qualified 
to provide short-term “geriatric care” or in the use of psycho-tropic 

drugs. 

• Unless all private and government health care plans are required to 

employ psychologists or other trained professionals, qualified to treat a 

full range of long-term Mental Disabilities –listed in the current 

Diagnostic and Statistical Manual of Mental Disorders [DSM] --and if 

there are none in the area, to allow for “remote” out of plan care to 

those who have special needs that are not otherwise provided for by 

the plan-- then many who desperately need mental health care, will 

never get proper care or proper diagnostic evaluation and despite the 

good intentions of the MHPAEA, Mental Health Parity will remain an 

unrealized ideal. 

• Not every mental disability responds well to psycho-tropic drugs. 

• Those with Mental Disabilities who require long-term specialized care, 

and cannot be treated with psycho-tropic drugs, are frequently refused 

proper care-- --or worse-- given improper treatment –and left to suffer 

from life-long iatrogenic disease, because proper treatment and 

qualified professionals are unavailable through the “provider groups”. 

• For Example, The State of California passed the KNOX KEENE ACT, 

as it’s local form of MENTAL HEALTH PARITY. *3 However, only 

certain diagnoses are covered. Those with diagnoses other than those 

listed in KNOX-KEENE, are not entitled to treatment under current 

California law.

______________________________________ *3 The Knox Keene Act only mandates treatment of specific “mental” conditions, leaving those who 

are diagnosed with conditions not listed in the KNOX_KEENE ACT, virtually with no right or access 

to treatment.

• In California, Mental Health Providers currently charge 2 1/2 times 

more for their co-payments as do any other specialist or the primary 

care physician, , [$25.00 as opposed to $10.00] thereby creating 

massive economic disincentives for those who most need treatment, to 

obtaining it.

PRESERVATION OF THE THERAPEUTIC ALLIANCE IS ESSENTIAL TO 

QUALITY CARE 

 

• Many who require ongoing care for Mental Disabilities, require 

continuity of care. It is elemental in the field of psychology, that 

maintenance of a “bond” between treatment professional and patient - 

known as the “therapeutic alliance”--is one the most powerful and 

critical tools to healing those with life-long Mental Disabilities. 

• Those who require long-term therapy, due to psychic injury or trauma, 

often require more frequent visits than one would ordinarily make to 

their primary care physician or other specialists and therefore even if 

the co-payments were on par with those charged by other specialists, 

patients who need more frequent care, are less able to afford 
appropriate treatment and may never get any treatment or inadequate 

treatment. 

• Additionally, if the treatment of a person with a mental disability is 

interrupted or terminated because the patient must travel outside the 

“service area” of the plan, for extended periods, [or is too ill or is injured 

and cannot appear personally for treatment] this ruptures the 

necessary therapeutic alliance and continuity of care that is needed for 

success of the healing process. Currently none of the health care 

providers have any billing code or provision for providing remote, 

telephonic counseling or therapy, to maintain the therapeutic alliance 

and provide ongoing support, when the patient cannot, for whatever 

reason, appear personally.

• Furthermore, if a patient has a mental disability for which there is no 

qualified provider in their “plan” the plan must provide “out of plan” care 

for this individual, regardless of the geographic area of the qualified 

provider. 

• And if the patient has no means of traveling to the office of the 

qualified provider, remote access to therapy and treatment must be 

provided. Without doing so, the patient would be effectively denied 

proper care.

 

REGULATIONS FOR MENTAL HEALTH PARITY

9 ALL PRIVATE HEALTH PLANS, MEDICARE + CHOICE PROGRAMS, 

MEDIC-GAP, MEDICARE SUPPLEMENTS OR MEDICARE FEE-FORSERVICE-PLANS MUST PROVIDE QUALIFIED PROFESSIONALS to 

treat each and every mental disability or condition listed in the Diagnostic 

and Statistical Manual of Mental Disorders[DSM] .

9 If there are no qualified professionals in the geographic area served by the 

“plan” the either vouchers must be provided so that the patient can seek 

out proper care, or “remote-access” to telephonic or video consultations 

must be facilitated.

9 Remote telephonic treatment must be made available, also to those who 

begin treatment at their residence, and then travel temporarily outside of 

the geographic sphere of their “provider group”, to maintain the 

“therapeutic alliance”. 

9 Medicare Co-payment schedules for frequent therapy must either be 

reduced to those similarly charged by the primary care physician, or 

“capped”, so as to avoid providing a dis-incentive to receiving proper 

treatment, regardless of the frequency of care needed. 

Without these changes, those suffering from Mental Disabilities who most 

need care, will be unable to access proper care and will face massive 

economic dis-incentives to obtaining treatment.
While there is an erroneous presumption amongst lay people that any 

licensed mental health professional is qualified to treat any mental health 

disorder, this is a false belief tantamount to the fallacy that any general 

practitioner is qualified to treat a rare form of cancer or genetic disorder.

THOSE DENIED PROPER MENTAL HEALTH CARE OR GIVEN IMPORPER 

CARE, MUST HAVE READY ACCESS TO PRO BONO LEGAL COUNSEL TO 

PROTECT THEIR RIGHTS TO TREATMENT. [See CIVIL GIDEON ACT of 2009, pp. 

10-12] 

 

PART II:

REDEFINING POVERTY: UPDATING THE OBSOLTE STATISTICAL MODEL

 

The current statistical model that defines poverty in the USA is obsolete, and must be 

updated. 

 

Background

 

In 1963 during the Johnson Administration a woman named Mollie Orshansky devised a 

statistical model to define poverty based on a then- appropriate-ratio of cost of food 

[Dep’t of Agriculture’s Economy Food Plan] and cost-of -shelter [then used for prequalification for mortgages or rents]. 

 

Ms. Orshansky received several Congressional honors for devising this statistical model, 

however years later she acknowledged that her model had become obsolete due to the 

disproportionate increases in cost of housing, to food. 

 

Notwithstanding Ms. Orshansky’s efforts to correct the problem, Congress has, to date, 

refused to update the model used to define poverty. 

 

The Department of Health and Human Services (HHS) still uses the original Orshansky 

Model to determine eligibility for MEDICAID, to determine “qualified” Medicare 

Beneficiaries” [for assistance with Medicare Preimums, etc] and other poverty-based 

benefits such as food stamps and scholarships. 

 

Because eligibility for poverty-based benefits continues to rely on this obsolete statistical 

model, there is an alarmingly large portion of our nation, the working poor and those who 

are living with incomes marginally above the income-eligibility level for poverty 

benefits, that are truly living in poverty but remain ineligible for assistance. 

 

Patricia Galbraith –an economist with the Madison Poverty Institute, wrote a book 

entitled, THE POVERTY LINE, suggesting that more appropriate calculations of 

poverty are employed by the Department of Housing and Urban Development (H.U.D.) 

and are used to determine eligibility for the Section 8 housing voucher program, in lieu of 

the Orshansky Model. Use of this more appropriate model is long overdue. 
Proposed Solution

 

The Department of Health and Human Services (HHS) must take action to update the 

Orshansky Model and/or adopt policies defining poverty, similar to those employed by 

the Department of Housing and Urban Development (H.U.D.) to determine eligibility for 

MEDICAID, to determine “qualified Medicare Beneficiaries” and other poverty-based 

benefits such as food stamps and scholarships. 

 

 * * * 

 

 

PART III: MENTAL DISABILITES PREVENTION ACT of 2009

EMOTIONAL EDUCATION MUST BE REQUIRED IN EVERY PUBLIC SCOOL 

IN THE USA

Our public school education currently fails to adequately prepare our citizens for 

life or to become responsible voters, parents and productive members of society. 

By Mandating all public school curriculum [and private school curriculum, if any 

federal monies are received by them] to provide an emotional education 

curriculum, K-12 , Many mental and physical disabilities caused by “psychic 

injury” in early childhood, could be prevented. 

The reactions of children to “psychic injury” often result in substance abuse, 

addictions, and life-long mental and/or physical disabilities which drain our 

economy, fill our prisons and welfare rolls, and destroy the bodies, minds and 

spirits of our children who are the future of our country.

MANDATED EMOTIONAL EDUCATION, INCLUDING CRITICAL THINKING 

SKILLS, K-12 to include ongoing classes and discussions re: a) Healthy Family 

Systems, b) critical thinking skills, geared towards discerning truth in rhetoric; 

improving the “emotional IQ” re: social relationships with peers, family members, 

members of the community at large; c) age-appropriate social skills, and 

parenting skills; d) age-appropriate skills in analyzing political and religious 

rhetoric... will give our children the kind of ongoing emotional education that they 

need to prepare them for being the future of our country.

Mandatory EMOTIONAL EDUCATION would also facilitate “intervention” and 

psychological and social support by school teachers, counselors, and peers 

through the open dialogue encouraged in support groups and classes.
Those children who are being abused or victimized at home or in their 

communities by dysfunctional family systems or dysfunctional environments, can 

quickly be identified and provided with necessary counseling and intervention. 

Abuse by dysfunctional family systems, is often is underlying causation for 

substance abuse; unwanted pregnancies; mental disabilities; and gang activity.

Because children are not taught at an early age to identify --or appropriately 

articulate their feelings—they have not ability to deal with seriously dysfunctional 

or abusive environments.

BY REQUIRING EMOTIONAL EDUCATION IN OUR PUBLIC SCHOOLS, MANY 

LIFE-LONG MENTAL DISABILITIES AND SUBSTANCE ABUSE PROBLEMS 

WILL BE PREVENTED

PART IV:

CIVIL GIDEON [OR QUASI GUARDIAN AD LITEM] ACT OF 2009

The judicial system in this country fails to protect the rights of the disabled --

especially those with Mental Disabilities -- in our civil court system [and also in 

our or Federal Immigration System] by failing to provide pro bono counsel to 

those who can not otherwise defend their rights in civil matters. Especially their 

rights to obtain proper treatment for a mental disability.

All citizens have a constitutional right to inherit, and to defend their rights to 

property; to their families; to their rights for appropriate treatment; but those with 

physical or mental disabilities, don’t have any practical way to obtain equal 

access to justice.

Current Probate and Civil law-- only allows a court to appoint an attorney for a 

disabled beneficiary or potential heir to an estate—or in other civil matters-- if and 

only if they are determined to be mentally incompetent. Many people who suffer 

from mental disabilities are not mentally incompetent, but are severely 

“psychically and emotionally injured or traumatized”.

Only in the instance of finding one “mentally incompetent” [or if the party is a 

child, alcoholic, in prison, or overseas in the military and considered “Under 

disability”], will the Court be required by law to appoint a guardian ad litem [GAL] . 

However-- because the GAL is not required to take the persons’ who’s rights they 

purportedly are assigned to protect, into account--the GAL has in inherent conflict 

of interest and will often settle against the best interests of their charge, just to 

make a quick and easy buck.
All too often, GAL’s are assigned by Courts from attorney-pools that are 

populated by a patronage-driven system. These attorneys stand in line for cushy 

fiduciary appointments, and rarely act in the best interest of the person who’s 

rights they are appointed to protect. 

Because of this Conflcit-of-Interest, most people who suffer from mental and 

physical disabilities [but who are perfectly mentally competent] do not want a 

GAL assigned to protect their interests.

If a disabled heir or defendant is not determined to be mentally incompetent-- 

they are not eligible for a guardian ad litem [GAL], even if they are unable to 

afford counsel and cannot, due to extreme “psychic or emotional injury or trauma, 

adequately defend their rights in court, without competent counsel to assist them.

OUR JUDICIAL SYSTEM IS ARCHAIC IN THE WAY IT VIEWS MENTAL 

ILLNESS!

JUDICIAL LAW RE: APPOINTMENT OF PRO BONO COUNSEL MUST BE 

REVISED.

If an attorney who represents a client in court is determined to have been 

incompetent in their representation of the client, that attorney is liable for suit 

against him/her and a new trial can be granted based on attorney incompetence.

However, if a disabled person who is found to be mentally competent but is 

obviously not emotionally or physically able to represent their own interests in 

court --by virtue of lacking sufficient legal training or knowledge—and having 

disabilities that create insurmountable obstacles to obtaining that information or 

training, these folks have no similar legal recourse to obtain a new trial if they fail 

to adequately protect their own rights in a civil legal proceeding.

LAWYERS OFTEN CHERRY-PICK THEIR CASES

Many of the so-called “super-lawyers”, with glowing reputations for success, get 

their glowing reputations by cherry-picking their cases to insure a good “win 

record” and decline case that are not a “sure and easy win”.

Any case that would require hours of research or preparation--when it is not 

certain that the statutory fees and commission would warrant an aggressive 

defense—are often abandoned.

Along with those cases, go the rights of the disabled person. For without counsel 

in most civil or probate proceedings, the average disabled persons has little 

chance of properly defending their rights. 
Knowing this, unscrupulous probate attorneys often deliberately create 

complications that dissuade court assigned GAL’s from aggressively defending 

the disabled client’s rights, because litigating the matter may not yield the best 

result for the attorney. 

PUNITIVE DAMAGES AND HEFTY SANCTIONS MUST BE ASSESSED 

AGAINST ATTORNEYS WHO ABUSE THE LAW IN CIVIL ARENAS !

Currently there are new ethical guidelines coming into play for attorneys who act 

in opposition to pro se litigants. But there must be pro bono attorneys available to 

those who cannot afford to retain counsel, to enforce these new guidelines and to 

protect the rights of disabled people in civil matters, when they are unable to do 

so themselves, but are not mentally incompetent.

For CONGRESS to continue to avoid this critical issue, is to make a mockery of 

our judicial system, because equal rights under the law will remain a joke in a 

country where those who most need protection of their rights to property and their 

inheritance, are not treated equally under the law.

Without a CIVIL GIDEON--OR QUASI GUARDIAN AD LITEM LAW that would 

allow the client to direct the litigation--the fabric of a democratic society will 

continue to erode, because there will be no equal access to justice or due 

process rights for those who are economically challenged due to disability.

CIVIL GIDEON is necessary to protect a disabled person’s right to proper health 

care. All too often, those with mental or physical disabilities who most need care, 

go without treatment, because they are unable to protect their own rights and 

cannot obtain counsel to defend them.

For there to be true MENTAL HEALTH PARITY, our judicial system must be 

brought into the 21st century in it’s posture and in it’s laws re: those who are 

psychically injured or traumatized. 

 

 * * * 

 

MEDICARE PORTABILITY ACT OF 2009

PART V:

SYNOPSIS: 

 

Clearly, the original legislative intent for Medicare was to provide affordable, portable 

and nationwide health-care for our most vulnerable citizens, our aged and disabled. 

 

This corrective legislation is proposed to remedy problems created by recent Medicare 

Legislation, [ie. the Balanced Budget Act of 1997 and the Medicare Modernization Act 

of 2003]. These errors eliminated the portability of Medicare Services by locking 
Medicare recipients into Medicare+Choice-plan-contracts for an entire year and 

legislatively enabling these plans to have “residency requirements” for enrollment. 

 

Prior to 2006 when the Medicare Modernization Act instituted the Nationwide 

Enrollment period, [Nov. 15-Dec. 31] Medicare recipients could “opt-out” of any plan 

within a month and default to “original” Medicare or enroll in a different plan. 

 

After the enactment of the Nationwide Enrollment and “lock-in” period in 2006, if a 

Medicare recipient should move-- or have to travel outside the area of their residence—

they are denied all rights to their Medicare benefits [save Emergency Room treatment] 

for up to a full year. 

 

The subsequent legislation, appears to not only have contravened the original legislative 

intent by effectively extinguishing the portability of Medicare, but alos has had the 

constructive effect of denying Medicare recipients --who enroll in one of the 

“affordable” Medicare+Choice Plans because they require continuous care-- their 

constitutional right to travel; their Medicare rights; their rights to due process and equal 

protection; and rights to anti-discrimination under the ADA and the ADA Amendments 

Act of 2008. 

 

While it may appear on the surface, that every Medicare Recipient is given a free 

“choice” of plan or “non-plan”, this is not so, in practical reality. 

 

Most Medicare beneficiaries living on fixed incomes who require ongoing care—and 

who are not currently income-eligible for Medicaid or other “poverty-based” aid—are 

economically coerced into enrolling in a Medicare+Choice Plan. 

 

Because they do not have access to a crystal ball—that would allow them to foresee the 

future a year in advance-- they have no way of knowing at the time of choosing a plan, 

whether their lives will take a turn that will require them to leave the geographical area 

serviced by their “Plan”. 

 

Those who must leave the geographic area served by their “plan” are [under the current 

legislation] are faced with a choice of going without life-or health sustaining treatment 

for up to a full year, or remaining virtual hostage to the “provider plan”. 

 

The (proposed) MEDICARE PORTABILITY ACT OF 2009 will facilitate compliance 

with the MEDICARE MENTAL HEALTH PARITY ACT OF 2008; foster healthy 

competition amongst federally funded health care providers, to improve the quality of 

mental and physical health care in this country, allowing those with rarer conditions, to 

seek proper treatment wherever it is available, through vouchers for out-of-network 

providers and through video or telephonic conferencing. 

It will allow aged and disabled Medicare recipients [as well as those who qualify for 

Medicaid] to use and enjoy their Medicare benefits at their residence – or wherever they 

travel in the USA, without undue delay, as was originally intended by Congress-- 

regardless of economic status or whether they opt for a private Medicare+Choice 
Program, Medi-Gap Policy; Medicare supplement; Supplemental Medicaid; straight, feefor-service Medicare or any other Medicare program. 

 

LEGISLATIVE HISTORY OF THE PROBLEM

• Medicare was originally enacted by congress to provide affordable, portable 

health care nationwide, to any aged or disabled U.S. citizen, eligible for 

Social security- which is a tax-based program. 

• Several decades later, Congress enacted THE BALANCED BUDGET ACT 

OF 1997, which enabled private health plans to act as primary providers of 

MEDICARE+CHOICE PROGRAMS and created “residency requirements” 

for enrollment. 

• Then, in 2003 the MEDICARE MODERNIZATION ACT of 2003, inter alia, 

created a nationwide “lock-in” enrollment period, [Nov. 15-Dec. 31]. This 

aspect of the Medicare Modernization Act became effective Jan. 1, 2006. 

• From thereon in, Medicare recipients who opted to enroll in these plans 

have been, 

a) obligated to pay monthly Medicare Premiums to the Federal 

Government; 

b) contractually obligated to pay monthly premiums to the private 

MEDICARE+CHOICE PLAN for the full calendar year; 

c) must comply with a “residency requirement” to join a plan; and 

d) must relinquish all rights to their Medicare benefits for a full year to 

the “plan” and if they leave area served by “the plan”, they forfeit all 

their Medicare Rights, with the exception of Emergency or Urgent 

care.

• ________________________________ • 1Until 2006--when the “lock-in” enrollment period was implemented--those who opted for a 

MEDICARE+CHOICE PLAN, could “opt-out” at any time and revert back to the Original Medicare feefor-service program.

• Those Medicare recipients who require life/health sustaining continuous care, were 

put in an unimaginable dilemma, rendered hostage to their “plan, unable to exercise 

their right to travel. 

 

• By enacting the 2003 legislation, it appears that congress not only contravened it’s 

original intent to create Medicare as a Nationwide, affordable and “portable” health 

care program for our most vulnerable citizens, but appears to have impermissibly 

infringed on Medicare recipients’ “constitutional right to travel”; due process rights; 

equal protection rights and anti-discrimination rights as protected by the ADA and 

the ADA Amendments Act of 2008. *2 See Shapiro v Thomson. 

 

 
*2 In Shapiro v. Thomson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 the U.S. Supreme Court 

ruled that imposing a one year residency requirement for receiving public benefits, was 

unconstitutional. In Shapiro v Thomson and 2 other related cases, three families who were 

receiving welfare, disability benefits and aid to families with dependent children [AFDC], were 

denied benefits in the state to which they traveled because those states imposed one year 

residency requirements before allowing them to receive public benefits, to which they were 

otherwise entitled. “ The majority [of the U.S. Supreme Court] held that the waiting-period 

requirement is unconstitutional because it 'has a chilling effect on the right to travel.' Id., at 336. 

The majority also held that the provision was a violation of the Equal Protection Clause of the 

Fourteenth Amendment because the denial of relief to those resident in the State for less than a 

year is not based on any permissible purpose... This Court long ago recognized that the nature of 

our Federal Union and our constitutional concepts of personal liberty unite to require that all 

citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, 

rules, or regulations which unreasonably burden or restrict this movement? ...Congress is 

without power to enlist state cooperation in a joint federal-state program by legislation which 

authorizes the States to violate the Equal Protection Clause... the Court holds that 

congressionally imposed requirements violate the Due Process Clause of the Fifth Amendment. 

It thus suggests that, even if residence requirements would be a permissible exercise of the 

commerce power, they are 'so injustifiable as to be violative of due process.' Ante, at 642. 

While the reasons for this conclusion are not fully explained, the Court apparently believes 

that, in the words of Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 694, 98 L.Ed. 884 

(1954), residence requirements constitute 'an arbitrary deprivation' of liberty. Katzenbach v. 

Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 1723, 16 L.Ed.2d 828, n. 10 (1966). ...”

 

 

• The “residency requirement” also renders it impossible--for a Medicare Recipient 

who must travel frequently or for extended periods, outside of the area of their 

residence--to acquire health care from a plan more geographically appropriate to 

their needs, or a plan that may have providers in another part of the country that 

specialize in treating their medical condition; 

• The residency requirement also denies the Medicare Recipient the opportunity to 

obtain a 2nd opinion from a specialist outside of the service area of the plan, and 

effectively removes all incentives to healthy competition to provide quality health 

care. 

 

• If a Medicare recipient is severely economically challenged-- but ineligible for 

Medicaid or other poverty based programs *3 See Part II, REDEFINING 

POVERTY. Pp.4—they are effectively deprived of treatment...or at the very least, 

face extreme economic dis-incentives to accessing proper care. 

__________________________________________ 

MANDATING A TIME-LINE TO CREATE A CYBER-INFRASTRUCTURE TO 

FACILITATE PORTABILITY AND COST-SAVINGS 

 

By creating CYBER-INFRASTRUCTURE and directing the Department of Health and 

Human Services to establish a fixed timeline [5-8 years] for requiring all licensed Health 

Care Professionals [not just those who currently accept Medicare or Medicaid 

assignment] to computerize their Medical Records and Billing systems, using software 

that will be easily integrated into a nation-wide network, the ease of record-transfer and 
cross billing of Medicare [and Medicaid] will facilitate the portability of Medicare and 

Medicaid; will ultimately reduce the administrative costs of all health-care, nationwide; 

will create a mandatory, Federal qualitative standard for health care in this country; will 

create incentives for healthy competition for excellence of service amongst providers; 

and increase the mobility, economic and social advantages of those who suffer from 

disabilities that require ongoing or continuous care and will allow for true Mental Helath 

Parity by allowing continuity of care vis a vis telephonic or video therapy to preserve the 

essential “therapeutic alliance”. 

 

We have been advised by health care professionals, that the two largest dis-incentives to 

accepting 

Medicare or Medicaid Assignment, are, a) the paperwork involved in billing and record 

keeping, and b) the reduced rates at which health care professionals are permitted to bill 

for services. 

 

Creating cyber-infrastructure for Health Care is geared towards removing these disincentives by using Federal Stimulus monies and graduatally-declining tax incentives be 

to induce health care providers nationwide, to rapidly computerize all their medical and 

billing records, giving greater incentives, the sooner they get their medical records and 

billing “on-line”. 

 

Once an integrated cyber-infrastructure is in place, medical records, lab tests; billing, etc. 

can instantly be transferred via e-mail with one click of the mouse; lab tests can easily be 

billed by copying the insurance provider and CMA through e-mail, cc:’s thereby 

reducing the eventual cost of paperwork and documentation. 

 

As a result of this cyber-infrastructure, the burden of accepting Medicare Assignment by 

“providers” will be lessened and tax incentives will compensate health-care providers for 

accepting Medicare and Medicaid assignment, for the lost income due to lower billing 

rates. 

PROPOSED SOLUTIONS TO REMEDY THE LACK OF PORTABILITY AND 

REMOTE ACCESS TO TREATMENT

 

9 Repeal the portion of the 1997 Balanced Budget Act that created a “residency 

requirement” for enrollment in Medicare+Choice Programs; 

9 Repeal the portion of the 2003 Medicare Modernization Act that mandates a 

yearly “lock-in period. 

9 Enact legislation creating “stimulus” incentives and “tax” incetives to Providers 

to rapidly computerize their records and billing procedures; 

9 Enact legislation that will allow Medicare+Choice Plans and Medicaid to provide 

“vouchers’ for out of plan providers, when the travel outside the area served by 

the “plan”. 

9 Or alternatively, allow rapid dis-enrollment and re-enrollment in a more 

geographically suitable “plan” so every Medicare or Medicaid recipient can 
access ongoing care in the area to which they have traveled, without interruption 

in treatment; 

9 Update the statistical model used to calculate poverty for the purpose of 

providing financial assistance to those Medicare beneficiaries who currently are 

not income eligible for Medicaid but are too economically challenged to pay 

“plan premiums”, Medicare Premiums and co-payments for ongoing care. 

 

 

COST-SAVING CYBER-INFRASTRUCTURE WILL FACILITATE 

PORTABILITY AND OVERALL MEDICARE ADMINISTRATION 

By using a portion of the “FEDERAL STIMULUS MONIES” to assist Health Care 

Providers in meeting a Federally Mandated time-line [between 5-8 years] during 

which, all health care professionals and all Private Health Plans [not just those 

who currently accept Medicare or Medicaid Assignment] will be required to 

computerize their medical records, coding and billing systems; using computer 

software that can be integrated with a Nationwide Network [such as the program 

and software currently used by the VA, nationwide] , we can create a Nationwide 

Cyber- Infrastructure that will : a) facilitate the overall administration of Medicare 

in conjunction with any private or state-licensed health-care programs, anywhere 

in the USA; b) make fluid the rapid transfer of records/medical information 

nationwide between private, state or federal providers instantaneously, thus 

easing the burden of implementation; c) facilitate billing, cross billing or “outof-area- or out-of-plan providers, via a “voucher system” to enable Medicare [and 

Medicaid] recipients to easily obtain care by providers, specialists or to obtain 2nd

and third opinions re: their treatment plan, wherever they travel ; d) facilitate 

remote-video and/or telephonic consultations for treatment; e) facilitate Mental 

Health Parity and continuity of the “therapeutic alliance”; f) foster healthy 

competition in the Health Care Industry generally, by increasing healthy 

competition amongst providers, giving incentives for them to attract patients 

outside their “provider group”, allowing them to have financial incentives to, once 

again, begin to strive for excellence in their specialty. and g) this ACT-- and 

nationwide use integratable software-- will provide a vehicle for much needed 

“transparency”, enabling FEDERAL OVERSIGHT of all private and governmental 

MEDICARE+CHOICE PLANS, MEDICARE SUPPLEMENT PLANS, MEDI-GAP 

POLICIES, MEDICAID PROVIDERS and PHARMACIES nationwide-- without 

having to disrupt the ongoing “partnership” between private and government 

sectors that currently share the costs of health care delivery to our most 

vulnerable citizens; facilitate Federal Oversight re: billing to avoid fraud and 

duplication; tracking of RX pharmaceuticals, and will prevent conflicting RX’s or 

abuses of “controlled substances”.