Last month we published an article called Obamacare Provision: “Forced” Home Inspections. Our exclusive went viral and received different reactions. Many Americans are concerned that this provision is another way the government can intrude on their rights and privacy. Others were skeptical that this measure is “forced” or “mandated” by the federal government.
Politifact.com picked up the story and ruled that the claim that a provision of the new health care law will allow “forced” home inspections by government agents as false. “We rate the claim Pants on Fire” stated the article.
Joshua Cook asked Kent Brown, constitutional attorney and expert on Obamacare, to respond to Politifact.com’s claim. Brown provides even more disturbing facts regarding this controversial Obamacare provision and responds to PolitiFact.com below:
It was amusing to read Politifact.com’s article about the hue and cry raised over Federally-mandated and financed home visits under the Patient Protection and Affordable Care Act (“Obamacare”). Politifact.com does not just provide its opinion, of course, it provides a “ruling.” It is the self-proclaimed neutral and final authority on statutory interpretation. In this case, its ruling was that the Obamacare provision regarding home visits does nothing more than “provide grants for voluntary help to at-risk families for trained staff like nurses and social workers.”(1)
To arrive at that ruling, Politifact.com interviewed two ardent advocates of Obamacare, Sara Rosenbaum and Kay Johnson, as well as Samantha Miller, “a spokeswoman for the U.S. agency administering the program.” Rosenbaum touts herself as the author of some of the Clinton Health Security Act. (2) Those three persons discussed their past experiences with the Maternal, Infant and Early Childhood Home Visiting Program, all of which are totally irrelevant to the discussion of any new program prompted by the Obama administration. Politifact.com then pointed to Section 511(e)(7)(A) of Obamacare which states that, in applying for a grant to serve as the agency that conducts such home visitations, “the entity [applying] will establish procedures to assure [the Secretary of the U.S. Department of Health and Human Services (“Secretary”)] that…the participation of each eligible family in the program is voluntary….” Voluntariness is left solely to the discretion of the Secretary. On the basis of that – and that alone – Politifact.com “ruled” that citizens’ concerns about Federally-financed home visitations are not well taken. (3)
It is not necessary to delve into Politifact.com’s bias; that is well known. It has been known to cover for groups like ACORN while attacking Michelle Bachman, and has been found rating statements by Republicans false at three times the rate it does Democrats. One study discovered Politifact.com finding Republicans lie nine times more than the left. (4) But beyond Politifact.com’s notorious bias, its “ruling” in this matter is astonishingly naive and flatly wrong.
Rosenbaum presents an interesting case. In 1993 and 1994, I was the lead counsel in a case in the U.S. District Court in Washington, D.C. which sought to open the meetings and records of the Clinton Health Task Force. AAPS et al. v. Hillary R. Clinton, et al., Civil Action No. 93-399. Brought under the Federal Advisory Committee Act, 5 U.S.C. App., I had to illustrate that the task force was not composed of “entirely full-time officers and employees of the Federal government” in order to prevail. I found that the working groups of the task force contained hundreds of individuals who were not Federal officials or employees. One of those individuals found in Working Group 22, Subpart D, “Population-Based Public Health and Prevention,” was Sara Rosenbaum of George Washington University Center for Health Policy Research. She still works there. In an effort to make it appear as though she was a Federal official or employee, she repeatedly signed in as “White House.” Her phone number on the logs, however, gave her away as I found that it was a number at George Washington University Center for Health Policy. The ruse didn’t work.
To begin, Obamacare unleashes a dizzying array of “social transformation” programs which have received almost no attention when compared to the absolutely catastrophic health insurance aspects of the monstrous bill. Among the social transformation aspects of Obamacare are: the creation and funding of school-based clinics (which are nothing more than contraception and abortion counseling centers) designed to “reduce pregnancy and birth rates for youth populations” so as to meet “State-established goals;”(5) the requiring of “digital electronic quality data” from every physician, (6) the grouping of physicians into Federally-authorized “accountable care organizations;”( 7) the mandating that private not-for-profit hospitals provide what likely will be a prohibitive amount of free and discounted health care as a condition of they maintaining their 501(c)(3) tax exempt status; (8) and the providing of grants to States and community-based organizations to “create the infrastructure to support active living and access to nutritious foods in a safe environment,” and to create “statewide needs assessments” to assess and implement “worksite wellness programming and incentives, highlight healthy options in restaurants and other food venues and implement strategies to reduce racial and ethnic disparities, including social, economic, and geographic determinants of health.”(9)
Then comes the “Maternal, Infant and Early Childhood Home Visiting Program.” (10) Under that program, payments to the States under Medicaid will be conditioned upon the States conducting yet another “statewide needs assessment” that “identifies communities” with concentrations of various birth issues, poverty, crime, domestic violence, high rates of high school dropouts, substance abuse, unemployment or child maltreatment, the quality and capacity of existing home visitation, etc. (11) Grants are then made to entities, public or private, that illustrate to the Secretary they will, “with respect to eligible families,” demonstrate that the program will result in “improvements in prenatal, maternal and newborn health,” including improved pregnancy outcomes,” “improvements in cognitive, language, social-emotional, and physical developmental indicators,” “improvements in parenting skills,” “improvements in school readiness and child academic achievement” and “improvements in family economic self- sufficiency.” (12) Once the needs assessments are made, the statute calls for interventions – home visits – which will continue until “improvements” are made!
The entity making the home visits must take into consideration the statewide needs assessment created under the Maternal, Infant and Early Childhood Home Visiting Program, but it must also take into consideration “other appropriate needs assessments conducted by the State, as determined by the Secretary.” That would include the needs assessment for “community transformation.”(13)
An “eligible family” includes any woman who is pregnant and the father” if available, or “any parent or primary caregiver of a child.” There is no reference to the eligible families being those receiving Medicaid, or any other public assistance. (14) The definition of an eligible family literally includes everyone who has a child or children. Targeted for home visits are those “eligible families” that have “users of tobacco products,” “children with low student achievement,” “children with developmental delays and disabilities, and those families “serving in the armed forces.” (15)
The fact of the matter is, home visits under this program have been employed by the Federal government before and are being employed now. They have been, and are being, made without any prior announcement or notice to the eligible family. The entity receiving the grant to perform the home visits was, and is, required to identify the eligible families to be visited and intervene so as to meet the improvement benchmarks. It is a Federally-mandated and financed home visitation program. These are not visits “requested” by eligible families; they are visits to eligible families that have been identified by the contracting entity, and the entity must show the Federal government its intervention has shown improvement. These are visits mandated from the top, not requested from below.
Contrary to Politifact.com, there are no standards established by the statute for those who make the home visits. All it requires for the grantee to illustrate is that it “employs well-trained and competent staff…such as nurses, social workers, educators, child development specialists or other well-trained and competent staff.” The standards are entirely left up to the Secretary to determine.” (16)
If the entity conducting the home visits fails to demonstrate “improvement” with respect to the eligible families being visited, the statute calls for it to submit a “corrective action plan” to “improve the outcomes.” That plan must be approved by the Secretary, and the Secretary will monitor its implementation. Thus, there is a perverse economic incentive for the home visitor to illustrate he/she has brought about improvements with respect to each eligible family. (17)
If all of the foregoing is not enough, Congress appropriated a whopping $400,000,000.00 for fiscal year 2013 to carry out the program. Another $400,000,000.00 is appropriated for 2014. Between 2010 and 2012, Congress spent $700,000,000.00 on the program. (18)
Are these visits only to eligible families on some public assistance program? No. Are these visits required by the statute to be announced ahead of time? No. Does the statute provide for a home visit only if it is requested? No. Does the statute provide to the eligible families any rights for their protection of their privacy? No. Does the statute even define what is and what is not a “voluntary home visit?” No. A voluntary home visit is what the Secretary and her bureaucrats say it is. There are absolutely no objective standards in the statute for the protection of the eligible families being visited.
A homeschooling family may be subject to “intervention” in “school readiness” and “social-emotional developmental indicators.” And what if the home visitor, without prior notice, knocks on the door of a homeschooling family, informs the person answering the door that he/she is investigating the premises pursuant to a Federal program, and, out of fright or intimidation, the person answering the door lets him/her inside? Is that voluntary? And what if the home visitor, once inside the home, sees a shotgun in the corner of a room, or an open liquor cabinet? What if the home visitor sees a child eating fatty foods, or, in the case of a farm family, a child riding on a tractor with his father? What then? Does that call for intervention? Yes. Those “deficiencies” call for intervention under the statute.
Inspections of this nature may be friendly; they may even be supportive. But, as one person who home-schooled her children and who was subject to similar inspections in another country remarked: “They made us feel controlled, dissatisfied, and unsafe.” (19) That person and her family fled their country just before the situation turned ugly.
The fact remains, the purpose of Obamacare is to “transform communities;” its provisions are directed to what we eat, how and where we work, how we live, how we raise our children, how and from whom we get our health care, what our children are taught in school and a host of other things. The wording of the new section is loose; it is so loose that it is mischievous. No matter what its proponents say it is, the home visitation program will be used by the Federal government for whatever ends it determines.
I have been a litigator, challenging the validity of Federal statutes, regulations and conduct, for forty years. I can say with complete confidence that the Secretary will define the powers granted to the Department of Health and Human Services by this provision in any way that expands its authority or achieves its ends. The Federal courts give deference to those interpretations in the vast number of cases. That is the sad state of our Republic these days. All the Secretary needs is the open door; the agency will make of it whatever it desires. With this provision, I see nothing but danger ahead, particularly in the lawless era of the Obama administration that does what it pleases with the enforcement of the laws.
1 http://www.politifact.com/truth-o-meter/statements/2013/aug/21/blog-posting/bloggers-say-obamacare-provision- will-allow-forced/.
2 Id.; http://www.linkedin.com/pub/kay-johnson/47/145/2b9; http://www.healthreformgps.org/about-2/authors/sara- rosenbaum-j-d/.
3 http://www.politifact.com/truth-o-meter/statements/2013/aug/21/blog-posting/bloggers-say-obamacare-provision- will-allow-forced/.
http://www.humanevents.com/2012/08/30/politifact-bias-does-the-gop-tell-nine-times-more-lies-than-left-really/; and see http://blog.lib.umn.edu/cspg/smartpolitics/2011/02/selection_bias_politifact_rate.php.
5 Affordable Care Act, §§ 4101, 2953. This the federal codification of the very liberal Robert Wood Johnson Foundation Grant Program, “Making The Grade,” which began in the 1990s.
6 Id, §3002.
7 Id, §3022.
8 Id, §9007. Charitable hospitals, the bedrock of America’s health care delivery system, are in real danger of being eliminated.
9 Id, §4201.
10 Id, §2951, amending the Social Security Act, 42 U.S.C. §701 et seq., by adding a new Section 511.
11 Id, §511(b)(1).
12 Id, §511(c) and (d).
13 Id, §511(b)(2).
14 Id, §511(k)(2).
15 Id, §511(d)(4).
16 Id, §511(d)(3)(B).
17 Id, §511(d)(1)(B)(ii).
18 Id, §511(j).
19 Jenny Lantz, “Leave My Country to Home School? Yes. We Did it.” Home Education Magazine, vol. 30, No. 5 (September-October 2013).