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US: Failure to Pass Build Back Better Act Imperils Rights

Can Advance Economic Justice, Fix Broken Safety Net, But More Needed

Children and teachers complete a mural in celebration of the launch of the Child Tax Credit on July 14, 2021 at the KU Kids Deanwood Childcare Center in Washington, DC.  © 2021 Photo by Jemal Countess/Getty Images for Community Change

(Washington, DC) – The Build Back Better Act would bring the United States closer to meeting international human rights standards and begin to repair a badly broken social safety net, Human Rights Watch said today. The Senate should strengthen components of the bill and promptly pass this legislation, or lose a critical chance to build a rights-respecting economy.

The bill, a major component of President Joe Biden’s social policy, passed the US House of Representatives on November 19, 2021 and is pending before the US Senate. It would dedicate $1.7 trillion over 10 years to critical social programs that would significantly advance multiple human rights. They include the rights to social security, an adequate standard of living, housing, sanitation, and water, as well as the rights of children, older people, people with disabilities, and workers. A previous version of the bill had allocated $3.5 trillion to these programs over 10 years, but its size was reduced during negotiations.

“The Build Back Better Act could help reverse decades of underinvestment in social protection – from health and childcare to labor protections and affordable housing, which has created serious deficits in the US social safety net,” said Arvind Ganesan, business and human rights director at Human Rights Watch. “The US has long accepted widespread poverty and restricted access to basic benefits, but this bill could be pivotal break with this approach in favor of protecting people’s economic and social rights.”

Human Rights Watch analyzed the bill and examined how key investments in social protection and the right to social security would also improve other human rights. The bill includes investments that could have positive human rights impacts in multiple areas. These international human rights standards and corresponding investments are summarized as follows.

International Human Rights Standard

Build Back Better Act

Children’s right to an adequate standard of living and to education

  • $400 billion for free universal pre-school
  • $200 billion for child tax credits
  • $100 billion for childcare expansion

Right to a healthy environment

  • $555 billion to fight climate change

Right to adequate housing

  • $150 billion for affordable housing

Right to the highest attainable standard of health

  • $165 billion on healthcare spending
  • Expanded scope and scale of subsidies for health insurance plans purchased through the Affordable Care Act’s marketplace
  • Authorization for Medicare to negotiate the prices it pays for certain prescription drugs

Rights of older people and people with disabilities

  • $150 billion for improved access to home- and community-based services (HCBS)

Rights to water and sanitation

  • $225 million for low-income household water assistance

Workers’ rights to safe working conditions, living wages, and freedom of association

  • Increased penalties for minimum wage and workplace safety violations, as well as violations of workers’ rights to organize and join unions.
  • Measures to improve wages and working conditions for HCBS direct care workers

Right to paid leave

  • $200 billion for four weeks of paid leave

Public social spending is critical to combating poverty and reducing inequality. Before the coronavirus pandemic, in 2019, social expenditures in the US were about 18.7 percent of GDP, below many other high-income economies. Spending in the US was particularly low on benefits for those who are unemployed or have a disability, illness, or occupational injury, as well as on family benefits including financial support for families and children. Of 37 countries with available data on spending on unemployment, the US ranks last but one, just above Chile. In addition to low spending, social programs in the US are often very narrowly targeted and, historically, have utilized exclusionary eligibility criteria.

To illustrate these disparities, Human Rights Watch analyzed data from the Organisation for Economic Co-operation and Development (OECD), a group of high-income countries, and found that comparatively low social spending and tax rates make the US the sixth least redistributive of 32 OECD member states with available information, referring to measures which reduce inequality, and less redistributive than all of its peer countries in the OECD from North America and the European Union. This contributes to persistently high poverty and income and wealth inequality. This also harms communities already marginalized by other forms of oppression and discrimination, including based on race, ethnicity, and gender.

© 2021 Human Rights Watch
© 2021 Human Rights Watch

The Covid-19 pandemic placed the inadequate social protection system and structural racism in the US into stark relief, with low-income people especially likely to face housing and food insecurity and Black and brown people more likely to suffer illness and death. The crisis triggered the largest expansion of the safety net in decades, with stimulus checks, increased child benefits, and expanded unemployment insurance preventing millions of people from falling into poverty. But these pandemic relief measures were temporary. In some cases, implementation has been slow, and many of the programs have concluded or lack sufficient funds to meet needs.

The Build Back Better Act would extend some pandemic-related provisions and introduce additional programs, substantially expanding social protection and providing a step toward a more equitable economy, Human Rights Watch said. However, at around 0.6 percent of estimated US GDP, the funding provided would only increase public social spending by a modest 3.2 percent, still inadequate to fully protect human rights.

“The US has to do more to create a social safety net that protects human rights and advances equity, while reducing poverty and inequality,” Ganesan said. “The Build Back Better Act is a start, but far more investment is required to build an economy in which basic rights are genuinely respected.”

For a more detailed analysis of the bill, please see below.

Human Rights Watch examined key provisions in the Build Back Better Act that would bring the US closer to international human rights standards, based on the bill passed by the House. This legislation is being modified as it moves through the Senate. Human Rights Watch believes that there should be further action and changes to the current version, such as extending the right to join unions to all workers, removing exclusionary eligibility requirements for certain social programs, including paid leave and subsidized childcare, and making permanent certain temporary provisions in the legislation, such as universal preschool and the expanded child tax credit.

The US has signed but not ratified the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of Persons with Disabilities. As a signatory, the US must refrain from actions that undermine the object and purpose of these treaties. In addition, as a party to International Covenant on Civil and Political Rights and as a member of the International Labour Organization, the US is obligated to protect workers’ rights to organize, form and join unions, and collectively bargain.

The US has also ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). As a party to ICERD, which prohibits practices that have a discriminatory “purpose or effect,” the US is obligated to acknowledge and remedy structural discrimination in all aspects of society, including access to health care, housing, education, and a healthy environment.

Children’s Rights to an Adequate Standard of Living, Education

Before the Covid-19 pandemic, about 20 percent of US children lived in poverty, compared with the OECD average of 13 percent, illustrative of the US government’s failure to guarantee children’s right to an adequate standard of living. Children of color are most likely to live in poverty.

As a Covid-19 economic relief measure, Congress temporarily expanded eligibility for the child tax credit for 2021 and increased its value, providing most US families with monthly payments of $300 per child under age 6, and $250 per child between 6 and 18. This measure was a tacit admission of the longstanding inadequacy of family support. Within months, the expanded credit lifted an estimated three million children out of poverty.

Permanently expanding the child tax credit could cut child poverty in the US by 40 percent, with the greatest benefit for children of color. However, the bill would only extend the increased credit value through 2022, potentially forcing millions of children back into poverty. In an important measure, though, the act would permanently expand eligibility for the credit, making it available to even the poorest families, who do not earn enough to file a tax return. This change alone could reduce child poverty by nearly 20 percent.

The bill also includes $110 billion in grants to states to fund universal free preschool for over six million 3- and 4-year-olds and $270 billion in grants to subsidize childcare costs for most families. Early childhood learning furthers children’s right to education and has long-term benefits for children’s cognitive and social development. Expanded access to childcare supports employment opportunities for parents, particularly for mothers, who are more likely to stay home with young children.

States can choose whether to participate in preschool and childcare programs. Some states may opt out, especially since they must pick up part of the program’s cost after the first three years and since the program is only authorized until 2027. Consequently, many families would most likely not benefit from the programs.

Moreover, parents would have to meet a work requirement to receive subsidized childcare, potentially excluding over four million otherwise-eligible children and forcing low-income families to assume their childcare costs. The Senate should repeal this requirement, and failing this, states and federal agencies should interpret them to minimize their exclusionary impact.

The bill would also expand free school lunches to 8.9 million children, helping address the food insecurity experienced by nearly 15 percent of US households with children in 2020.

Rights of Older People and People with Disabilities

The act includes a $150 billion investment in Medicaid home- and community-based services (HCBS) and the related workforce. These services can enable millions of older people and people with disabilities to live at home in their communities, if they choose, rather than in nursing homes or other institutions. The vast majority of older people in the United States say they prefer to live at home. States are required to cover nursing home costs through Medicaid, while most home- and community-based services are optional.

The act would create financial incentives for states to improve the quality of and increase access to HCBS. Participating states should adopt policies to reduce barriers to these services, expand mental health services, cover personal care services, and provide support to family caregivers, among other steps to expand Medicaid eligibility or benefits for HCBS. States would also be required to establish an ombudsperson program to monitor spending and delivery of these services.

These provisions would begin to address decades of underinvestment in these HCBS. Approximately 820,000 people with disabilities and older people are on waiting lists for these services nationwide. The demand for the program is projected to further increase.

The successful Money Follows the Person (MFP) program, which has enabled over 100,000 people to move out of residential institutions to live at home in their communities since 2007, would become permanent under the act.

States would also receive support to address historically low wages and benefits for the 4.6 million HCBS direct care workers, who are overwhelmingly women, immigrants, and people of color. States should increase pay rates to ensure workforce recruitment and retention; strengthen qualification and training opportunities; and expand support for family caregivers.

The act also addresses certain aspects of nursing home accountability, including increased penalties for inaccurate nursing home data and improvements in accuracy of cost reports, nursing home surveys, and staffing requirements and enforcement of compliance.

Right to Health

Under international human rights law, everyone is entitled to the enjoyment of the highest attainable standard of health, which includes the right to health care without discrimination, regardless of income. For many in the US, however, health care is a privilege they cannot afford. The bill includes reforms to help address this healthcare affordability crisis.

The act would allow Medicare – the government program providing health insurance to 61 million older adults and people with long-term disabilities – for the first time to negotiate the prices its pays for certain prescription drugs and insulin. Medication costs can be prohibitive for the uninsured or underinsured, and the US is an outlier among high-income countries regarding the amount people spend on prescription drugs. The act does not include the price regulations and affordability measures used in other countries. Nonetheless, it is a positive step and would establish a framework to further improve the affordability of essential medicines, especially for those with chronic health conditions who depend on lifesaving medication.

Even those with insurance may face exorbitant insulin costs if their plan does not adequately cover medications, causing many insulin-dependent people to resort to potentially lethal medicine rationing. The bill would help these people by capping monthly copayments for insulin prescriptions at $35. This cap would help protect underinsured patients, particularly those on high-deductible health plans, but would do nothing for those most vulnerable to high insulin prices, the uninsured, who are disproportionately from Black, Indigenous, and other communities of color.

The bill also would include provisions to improve the affordability and availability of health insurance for millions of low- and middle-income earners by building on components of the Affordable Care Act.

The act would subsidize private health insurance plans purchased through the Affordable Care Act marketplace by people who are ineligible for Medicaid in their state but would have qualified had their state adopted the so-called Medicaid expansion. This would provide a protection floor for some of the most economically vulnerable people. More than two million uninsured adults fall into this coverage gap.

The act would extend through 2025 Covid-19 relief measures that changed the system of subsidies for private health insurance plans purchased through the Affordable Care Act marketplace by low- and middle-income earners. During summer 2021, over 40 percent of the nearly three million people who signed up for a new health insurance plan through this marketplace qualified for fully subsidized premiums under this program.

Right to Adequate Housing

The US has persistently failed to guarantee the right to adequate housing under international law. According to the National Low Income Housing Coalition, there are just 37 affordable and available homes for every 100 people with extremely low incomes, a shortage disproportionately affecting people of color. Housing funding in the bill was cut from $327 billion to $150 billion but would still be a major investment in housing.

The act would allocate $65 billion for repairs to long-underfunded public housing. Public housing facilities need at least $70 billion in major repairs, but have instead faced decades of federal disinvestment. That has jeopardized the right to adequate housing for the nearly two million public housing residents, forcing them to endure conditions that threaten their health and safety.

To try to offset the loss in public funds, public housing authorities have resorted to privatizing the management and, in some cases, the ownership of public housing, allowing private companies to profit from tenant rents and significant public subsidies. While these programs have financed some repairs, they pose risks to resident rights. Public housing is one of the few forms of housing affordable to those with the lowest incomes, and is a crucial source of housing stability for Black and brown people. If augmented by consistent annual appropriations, the bill can ensure that these homes are affordable and habitable for decades to come.

Far greater investments are needed to end the shortage of affordable and adequate homes in the US. Because of insufficient funding for subsidies to help tenants afford rent on the private market, only about 25 percent of eligible households receive assistance. Housing voucher waiting lists in major cities have been closed for decades, and those lucky enough to be on the lists often wait months before receiving assistance.

Funding for rental assistance programs was cut during negotiations over the bill from $90 billion to just $25 billion, enough to increase the total number of federally subsidized households from 5.1 million to about 5.4 million. More is needed, as over 10.3 million low-income households are severely burdened by the rents they pay, spending over half of their income on rent.

Right to Paid Leave

Workers have the right under international law to paid family leave, including for sickness and caregiving responsibilities, but currently, the US is the only OECD country without a national paid leave program.

The bill would create a permanent paid leave program, giving all workers – including independent contractors – four weeks of paid family and medical leave, which can be used for caregiving or personal illness. Under the act, workers who request paid leave starting in 2024 would receive a percentage of their income starting at about 90 percent and scaling down for higher earners.

This provision is a step in the right direction, though aspects of the program’s design could impede some from realizing this right. The proposed scheme imposes a work history requirement, has no minimum benefit level, and the exact amount of benefit depends on prior earnings. This means that people with low or irregular incomes, such as part-time or minimum wage workers – who are disproportionately women and people of color – could either be ineligible for benefits or receive benefits too low to guarantee an adequate standard of living. The Senate should amend this provision to establish a minimum benefit, equal to at least the federal minimum wage.

Right to a Healthy Environment

The Build Back Better Act contains $555 billion to combat climate change, which is crucial to ensuring the right to a healthy environment. The Biden administration sees this act as key to reaching their goal of halving emissions by 2030. The United States is currently the second-largest global greenhouse gas emitter, but is, historically, the largest contributor to the climate crisis, which disproportionally affects those with low incomes and Black, Indigenous, and other people of color, exacerbating existing structural inequities.

Clean energy tax incentives form the bulk of the act’s investment and aim to reduce emissions while reducing energy costs. Incentives are supposed to help increase electric vehicle uptake, solar panel installation, manufacturing of wind turbines, and other clean energy equipment, and optimize buildings’ energy consumption to lower emissions.

Unfortunately, the proposed fee for methane emissions, a measure that would provide for the greatest reduction of greenhouse gas emissions in the act, has been weakened and now is at risk of being dropped.

The bill would also take steps to eliminate government subsidies for fossil fuels, including eliminating a loophole that excluded US companies’ foreign oil and gas extraction income from taxation. However, the act does not go far enough to eliminate domestic fossil fuel subsidies.

The bill would also invest in environmental justice, support monitoring of pollution and other environmental impacts, and provide grants for community-led emissions reduction and climate impact adaptation efforts.

It would also allocate significant funds to restore forests, fight wildfires, and sequester carbon through nationwide tree-planting and primary forest protection programs. In 2020, the direct death toll from fires in the western US was at least 43 people, but the indirect death toll due to inhalation of wildfire smoke was most likely in the thousands.

The act would also invest in urban and community forests. Urban communities with lesser tree cover experience significantly higher temperatures than their more forested counterparts, leading to increased vulnerability to heat-related illness and death. Communities of color have 33 percent less tree canopy, and lower-income communities have 41 percent less.

The act would also protect against drilling in the Arctic National Wildlife Refuge, crucial for protecting the Porcupine Caribou herd and the rights of Indigenous communities in Alaska who rely on the herd for food and to maintain culture.

Rights to Water and Sanitation

The US government does not recognize the human rights to water and sanitation. Millions of people across the country lack access to safe, clean, and affordable water and adequate sanitation. While disconnecting water for inability to pay is inconsistent with international human rights obligations, it is standard practice across the US.

Covid-19 exacerbated the human rights impact of this crisis, leaving many people without access to water for good hygiene, which is one of the most basic forms of disease prevention. In June, 2021, the Department of Health and Human Services initiated an emergency water assistance program, the country’s first federal water assistance program. It was aimed at expanding access to affordable water for low-income households affected by the Covid-19 pandemic, ensuring they can pay their water and wastewater bills, avoid utility shut-offs, and enable reconnection of water systems disconnected for nonpayment.

The $1.1 billion program is only now being implemented and funding is insufficient to meet the needs of low-income families. California estimated that household debt from unpaid water bills in that state alone equaled about $1 billion through January 2021.

On November 15, 2021 President Joe Biden signed into law the Infrastructure Investment and Jobs Act, which included $55 billion for water infrastructure improvements. This is a landmark investment in water and wastewater infrastructure across the US and will fund replacement projects for lead service lines in communities around the country at risk of poisoning, as seen in Flint, Michigan. It also includes more than $11 billion for investment in drinking water and wastewater treatment capital upgrades, and a combined nearly $10 billion to address emerging contaminants in drinking water and harmful Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), with half reserved for small, underserved, and disadvantaged communities.

While these investments will enable safer and more affordable water and sanitation for households, continued investment in household water affordability is needed. The bill provides a one-time $225 million grant to the Environmental Protection Agency to establish a low-income household water affordability program. But it does not provide ongoing assistance for those unable to afford water.

Workers Rights

Workers have the right to organize and join unions, as well as to living wages and safe working conditions. However, under current US law, the consequences for violating these rights are so insignificant that companies frequently see them as a cost of doing business.

The bill would impose civil penalties on employers who violate workers’ rights to unionize and collectively bargain and provide funding to restore the federal government’s capacity to enforce these rights. This is a significant improvement over the status quo, which does not effectively deter companies from violating workers’ rights. Currently, illegally fired workers can only receive lost wages, less the amount they could have earned in the interim, and the process for obtaining this paltry relief can take years.

The bill would also substantially increase the penalties that the Labor Department can issue against employers for abusive working conditions and violations of minimum wage and overtime law. In addition, it would increase the enforcement capacity of the Labor Department, which has long suffered from insufficient staffing.

Human Rights Watch research has shown that the department’s Occupational Safety and Health Administration (OSHA), which enforces worker safety and health regulations, has been unable to effectively deter businesses from violating workers’ rights. This is partly because of meager penalties for employers that maintain abusive working conditions. Human Rights Watch reporting on the meat and poultry slaughtering and processing industry found that, in 2018, the average fine imposed by OSHA was under $5,000. According to the Economic Policy Institute, violations of wage and overtime laws cost workers $15 billion annually.

The bill would give federal agencies the ability to better protect workers’ rights, but the impact of these increased penalties would depend on the Biden administration’s willingness to use them.

Moreover, further reforms are needed. The act would not extend the rights to organize, join unions, and collectively bargain to independent contractors, including many app-based workers; nor would it reverse the US Supreme Court decision that denies relief to illegally fired undocumented workers. Protections for the right to strike, which prohibit employers from permanently replacing striking workers, were also dropped from the act. Additional legislation, like the Protecting the Right to Organize (PRO) Act, is needed to bring US law up to international standards.

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