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National Disability Institute's Washington Insider is a monthly newsletter highlighting key federal policy news that impacts the financial futures and economic empowerment of all people with disabilities. The Washington Insider tracks legislative and policy initiatives gaining momentum on Capitol Hill, specifically in the areas of taxation, asset building and economic development.

 

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September/October 2013 | Vol. 5, Issue 8
CONTENTS
ABLE Act Update
How the Government Shutdown Impacted Americans with Disabilities
Commission on Long-Term Care Releases Recommendations
U.S. Department of Labor Issues Final Rule on Federal Contractor Compliance
NGA Summer Meeting
Senate Finance Committee Leadership Hints at Tax Reform Bill
Credit Score Screening of Job Applicants May Be Discriminatory
Health Insurers Must Accept Prepaid Cards to Pay for ACA Coverage
Briefing on the ADA and Community Integration
August Employment Profile


 
ABLE Act Update

During the week of October 7th, national disability organizations and advocates, including National Disability Institute, coordinated to advocate for the passage of the Achieving a Better Life Experience (ABLE) Act (S. 313/HR. 647). Advocates believe this legislation has a chance at gaining traction in the 113th Congress. This important legislation would utilize the 529 college education saving account program to establish a savings tool for individuals with disabilities and families. The bill currently has an impressive 269 cosponsors in the House and 46 cosponsors in the Senate. This bipartisan, bicameral legislation is being led by Reps. Van Hollen (D-MD), Crenshaw (R-FL), Sessions (R-TX), and McMorris Rodgers (R-WA) and Sens. Casey (D-PA) and Burr (R-NC).

Please continue to contact your Senators and Representatives that have NOT cosponsored the ABLE Act by doing the following: 

  • Make Phone Calls to Congressional offices
  • Tweet and Facebook your Members via Social Media

Find out if your two senators and representative are cosponsoring the ABLE Act of 2013 by clicking the links below:

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How the Government Shutdown Impacted Americans with Disabilities

The  recent government shutdown had a measureable negative impact on people with disabilities. The fallout from the nearly two weeks of work stoppage is yet to be determined. Individuals with disabilities can likely expect expanded delays in processing benefits claims, say most sources, while a number of other programs such as Medicare, Medicaid, Social Security, Vocational Rehabilitation and Special Education, were less likely to be immediately affected because they have advance or independent funding sources as a result of mandatory spending and grants to states. Hearings for new disability claims were stalled. In addition, developmental disability surveillance programs, which track the prevalence of such conditions, came to a halt during the shutdown, said Barbara Reynolds of the U.S. Centers for Disease Control and Prevention.

In housing, while new money for local housing agencies was unavailable, according to the U.S. Department of Housing and Urban Development (HUD), most local housing agencies had enough money to fund rental assistance vouchers through October, a key source of assistance to elderly individuals and people with disabilities.

Government enforcement of laws to protect people with disabilities, such as the Americans with Disabilities Act, was “curtailed or postponed,” according to the U.S. Department of Justice. In education, the Individuals with Disability Education Act (IDEA) is forward funded through the 2013-2014 school-year as part of the regular congressionally approved 2013 appropriation.

In addition, the shutdown and its workflow backlog posed a significant threat to compensation payments for millions of veterans and has also set back the effort to reduce the extensive backlog of such claims, according to Secretary of Veterans Affairs Eric Shinseki. “The momentum achieved over the past six months has now stalled with the government shutdown,” Shinseki said in testimony delivered before the House Veterans’ Affairs Committee, as reported by the Washington Post.

While Congress has reached an agreement to raise the debt ceiling until January 15, 2014, the big question that remains is what steps will be taken in the next few months to prevent another such shutdown in 2014. The impact on people with disabilities, as well as the nation as a whole, will be far more catastrophic.

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Commission on Long-Term Care Releases Recommendations

On September 18, 2013, the congressionally mandated Commission on Long-Term card issued their recommendations on how to improve the availability of long-term services and supports for individuals who are elderly and/or disabled and in need of assistance to perform activities of daily living. The Commission has held four public hearings since June and received extensive comments from the general public. The recommendations offered can be divided into three areas: service delivery, workforce and financing. Among the recommendations is an endorsement of the need to allow individuals with disabilities and their families to set up tax advantaged savings accounts to pay for needed long-term series and supports (LTSS) in the future. This approach among other financing recommendation is an endorsement of the current ABLE Act legislative proposal pending before Congress.

The Commission recognized that there are more than 12 million Americans assisted daily through a web of long-term services and supports. However, with the aging of the Baby Boom population and increasing expectations of individuals with disabilities of all ages to live independently and participate in community life, the current LTSS system is highly fragmented and difficult to access. Paid LTSS are expensive and can be financially catastrophic. The Commission’s report recognizes the need for new approaches to bring LTSS care integration, technology and innovative workforce strategies together to reduce cots and improve outcomes. The Commission recommends the need for alternative financing mechanisms that ensure people can access the quality services they need in the least restrictive environments at a lower overall cost of care.

The report also urges HHS to develop a national strategy to maintain and strengthen family caregiving. The Commission members did not agree on a common vision to finance a comprehensive LTSS system with different opinions on public responsibility for a social insurance system versus private options to strengthen family ability to finance service needs. Five members of the Commission offered an alternative set of recommendations that would require government to commit significant resources to develop social insurance financing for a “comprehensive, coordinated, and high-quality system” for LTSS for individuals in need across the life span. Five members of the Commission also suggested that the Medicaid Buy-In Program for workers with modest earnings be expanded and a new programs or workers with higher earnings must be piloted.

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U.S. Department of Labor Issues Final Rule on Federal Contractor Compliance

The U.S. Department Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced its Final Rule on regulations implementing Section 503 of the Rehabilitation Act of 1973, which prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities.  The new rule was adopted in part because a substantial disparity in the unemployment rate of individuals with disabilities continues to persist despite years of technological advances that have made it possible for people with disabilities, sometimes severe, to apply for and successfully perform a broad array of jobs.

The Rule changes the responsibilities of federal contractors in several ways, including: establishing a seven (7) percent utilization goal for individuals with disabilities; creating affirmative active recruitment and hiring plans; requiring contractors to document and update annually several new data collection measures involving quantitative comparisons of the number of individuals with disabilities who apply for jobs and the number hired; including pertaining to applicants and hires; and requiring contractors to invite voluntary self-identification of disability from employees, and from applicants at both the pre-offer and post-offer stages.

The Final Rule also implements changes to the definition of “disability” and certain non-discrimination provisions necessitated by ADA Amendments Act of 2008.

The Department of Labor noted that although Section 503 has been in place since the 1970s, the unemployment rate of working age individuals with disabilities and the percentage of working age individuals with disabilities that are not in the labor force remain significantly higher than for those without disabilities. BLS data indicate that the unemployment rate for working age people with disabilities in 2012 was 15 percent, compared with 8 percent for working age individuals without disabilities. The workforce participate was 31.6 percent for working age people with disabilities, compared with 76.5 percent for those without disabilities. The rule will go into effect six months after publications in the Federal Register.

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NGA Summer Meeting

Meeting in Milwaukee, Wisconsin, last month for its annual Summer Meeting, the National Governors Association, led by Delaware Gov. Jack Markell, kicked off its three-day gathering with a session on employing people with disabilities.  "We want to raise awareness about how the untapped talents of people with disabilities can contribute to a business' bottom line and define ways both state government and businesses can partner to bring opportunities to individuals with disabilities in the competitive labor market," Markell said.

During the session, which was broadcast by C-Span, governors discussed employment challenges for individuals with intellectual and physical disabilities and the roles both state governments and businesses could play in advancing employment opportunities for people with disabilities. 

The effort to focus attention on, and strengthen opportunities for employment of people with disabilities has been Markell’s signature initiative as chairman of the NGA. The group published a report, A Better Bottom Line: Employing People with Disabilities, which “looks at ways both state government and businesses can partner to bring opportunities to individuals with disabilities in the competitive labor market. We’re making strides on this front,” he noted, “but the work is far from over.”

During the meeting, Markell released a second report, A Blueprint for Governors, which includes a number of ways governors can advance employment opportunities for people with disabilities in their states.

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Senate Finance Committee Leadership Hints at Tax Reform Bill

The chairman and ranking member of the Senate Finance Committee are suggesting to their colleagues that this fall will include an effort to pass comprehensive tax reform legislation. According to Chairman Max Baucus (D-MT) and the ranking member Orrin Hatch (R-UT), they would be operating on a “blank slate” approach, meaning that all special provisions would be eliminated and senators would have to make the case for special tax breaks.  Such broad legislation appears to be the best opportunity for passage of the Achieving a Better Life Experience (ABLE) Act, which has broad bipartisan support. The bill has 254 cosponsors in the House 43 in the Senate.The future of the ABLE act, along with other provisions is unclear because, as one tax expert commented, “lawmakers always talk about everything being on the table [but] the challenge is in making it happen.”

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Credit Score Screening of Job Applicants May Be Discriminatory

At a recent conference on Employment Discrimination sponsored by the American Conference Institute (ACI) in New York City, Constance Barker, one of the Equal Employment Opportunity Commission’s (EEOC) two Republican Commissioners, discussed four issues she expects will appear as formal, written Enforcement Guidance in the coming years.  These include reasonable accommodations of disabilities, reasonable accommodation of pregnancy under Title VII, unemployment as a protected class under Title VII, and review of credit history as a protected class under Title VII.

Following an EEOC hearing in 2010 on the issue of credit history being used to make decisions on hiring or firing of employees, the Wall Street Journal wrote at the time, “The underlying concern is that poor credit could become a barrier to landing a job, [while] employers contend credit checks help them evaluate candidates and protect against fraud. Another concern is the potential discriminatory impact on hiring…. Opponents of the practice cite studies showing that African-Americans and Latinos tend to have lower credit scores. They also dispute whether credit reports are an accurate way to measure an employee’s qualifications. Proponents of credit checks, which include fraud examiners and credit-reporting groups as well as employers, contend the histories are an important screening tool for employers and tend to be used sparingly.”

The EEOC cautions that the review of credit scores is disadvantaging applicants and employees on the basis of race and color who tend to have significantly lower credit scores than the general populations. Similar challenges would apply to individuals with disabilities. Review of financial information in background checks of applicants would only be allowable if the information being reviews is job-related and consistent with business necessity.

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Health Insurers Must Accept Prepaid Cards to Pay for ACA Coverage

On August 28th, the Centers for Medicare and Medicaid Services (CMS) published a new rule that will require insurers to allow prepaid debit cards as health-insurance payment. In an effort to help low-income families buy health insurance, the White House proposed new federal rules requiring insurance companies that sell policies through the state exchanges opening in October to accept prepaid debit cards, along with checks, money orders and bank wire transfers.

With 10 million U.S. households lacking bank accounts (including one in four of the uninsured eligible for federal insurance subsidies), the White House sought an alternative means for these individuals to pay their insurance premiums. The new rules won’t require insurers to accept automatic monthly transfers from prepaid debit cards, so those using the method will have to make a new payment each month or risk a coverage lapse.

Potential costs to insurance companies are set off by the millions of new customers they are acquiring through the exchanges as a result of the new health care law.

The Washington Insider has previously reported on the potential problems surrounding the creation of a Direct Express Master Card, which in March 2013 became the sole means to receive federal benefits for more than 2.5 million people who received payments from Social Security, SSDI, VA, SSI, the Railroad Retirement Board, Department of Labor (Black Lunc) or OPM benefit checks. The reported problems include the ability of consumers to track funds and consumers’ knowledge of fees and other costs related to card use.

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Briefing on the ADA and Community Integration

A recent briefing timed to the 23rd anniversary of the Americans with Disabilities Act, hosted by the Consortium for Citizens with Disability Rights Task Force and the Bipartisan Congressional Disabilities Caucus, discussed issues including the law’s history and current and future questions concerning the integration mandate that flowed from the law and the Supreme Court’s decision in Olmstead v. L.C. interpreting it.

Chai Feldblum, a member of the Equal Opportunities Employment Commission (EEOC), suggested that there is no difference between people with hidden and visible disabilities in terms of access to civil rights, and stressed the importance of raising expectations for everyone. This doesn’t necessarily mean treating everyone the same, she explained, but in treating all people as equals with equal dignity and respect. She noted that the EEOC is working to educate and, where necessary, litigate to make sure people understand their obligations and rights.

A second panel addressed the history and development of the integration mandate. Panelists including Clyde Terry, a council member from the National Council on Disability, and Eve Hill, Principal Deputy Assistant Attorney General for Civil Rights discussed the dramatic changes in how people with disabilities live and are treated in society.  Terry noted children with disabilities used to be left in baskets on the side of the road to die. Hill explored some of the legal history after Olmstead, including cases involving nursing homes, state-operated institutions, and privately run but state-funded institutions.She stressed that persons with disabilities should not be seen as fundamentally different and suggested that battles for things like “reasonable modifications are meaningless if persons are not integrated into the community.

Ira Burnim, the legal director of the Bazelon Center for Mental Health Law, highlighted the danger resulting from holding people with disabilities to “a tyranny of low expectations.”  People with disabilities should live like people without disabilities, he said.

Sam Bagenstos, the former Principal Deputy Assistant Attorney General for Civil Rights, suggested that a key takeaway from Olmstead is that the settlements deal with people of all kinds of disabilities and have generally been resolved amicably.  What is clear, he noted, is that most people don’t understand their obligations after Olmstead, so it’s up to advocates for people with disabilities to educate decision makers, which in turn leads to great legal compliance.

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August Employment Profile

Disability.gov reported that the U.S. Department of Labor’s Bureau of Labor Statistics has reported that the unemployment rate last month was little changed at 7.3 percent from 7.4 percent. Disability employment statistics for August show an unemployment rate among people with disabilities that dropped to 14.1 percent. The percentage of people with disabilities in the labor force was 20.5 percent, and the percentage of people with no disability in the labor force was 69.1 percent. A year ago the unemployment rate among people with disabilities was 13.9 percent.

Data on people with disabilities covers those over the age of 16 who do not live in institutions. The first employment report specific to this population was made available in February 2009 and are now released monthly.

U.S. Disability Employment Profile
Statistic
With Disability
Without Disability
 
Aug
2012
Aug
2013
Aug
2012
Aug
2013
Percent of Population in the Labor Force
20.9
20.5
69.4
69.1
Employment-Population Ratio
18.0
17.6
63.8
64.2
Unemployment Rate
13.9
14.1
8.0
7.1
As reported by the U.S. Department of Labor's Bureau of Labor Statistics, Table A-6

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