Legal – Legislative Issues « Disabilities – Legal Issues
National Council on Disability – Report to President Obama – 10/31/11
- National Disability Policy: A Progress Report
- Patti's Comments: The National Council on Disability issued a report to the President on the current state of people with disabilities in American earlier this fall and provides a range of recommendations for reforms. This is important and essential reading for all folks with disabilities and their families. In the section near and dear to my heart entitled "Community Living, There is no Place Like Home" the report assets: “ No disability policy is in greater need of reform than the antiquated Medicaid rules that favor institutional settings over home and community-based services (HCBS)” …
“The institutional bias in Medicaid not only is fiscally irresponsible but also violates one of the most cherished American values — the right to live in the community. On June 21, 2011, NCD and the Bipartisan Disabilities Caucus provided a congressional briefing on a landmark Supreme Court decision, Olmstead v. L.C.,5 and the benefits of HCBS, delivered primarily under Medicaid. In Olmstead, the Supreme Court ruled that under the ADA, unnecessary institutional segregation of the disabled constitutes discrimination. In recent years, the U.S. Department of Justice has focused enforcement efforts on requiring states to offer HCBS instead of confining people in institutions. Although many individuals have successfully transitioned to community settings in recent years, waiting lists for community services have grown considerably, and many who would opt for community services are not able to obtain them. Recent state budget crises have compounded the problem and threaten to erode the gains made in recent years as many states short-sightedly cut home- and community-based services in an attempt to balance their budgets. Although states are prohibited by the Affordable Care Act from limiting Medicaid eligibility, other state policies have reduced HCBS by lowering reimbursement rates to HCBS providers and reducing the number of approved HCBS hours per beneficiary. Additionally, the expiration of the enhanced Medicaid Federal Medical Assistance Percentage (FMAP) made available to states through the American Recovery and Reinvestment Act (ARRA) has led to state expenditures on HCBS dropping to pre-recession levels.
Many people have turned to the courts to prevent states from cutting essential home and community-based services, given that the effect of these cuts is often a guaranteed path for Medicaid beneficiaries to an institutional placement, which is at odds with the Olmstead decision. This is a tragic waste of scarce resources. Home and community-based services need federal protection that does not force people with disabilities to litigate in order to stay in their homes.
As Congress and the Administration grapple with the federal debt crisis, the elimination of the institutional bias in Medicaid is both a moral and a fiscal imperative. Data show that people ages 31 to 64 now make up 14 percent of the nursing home population,10 up from 10 percent just a decade ago. The data do not show why this age group is entering nursing homes in higher numbers, but reversing this alarming trend must become a national priority.” (emphasis added from PEKD).
I agree 100% with this assertion and others in the report and I encourage each of you to encourage the advocates you work with to support this recommendation in your ongoing efforts to assure people with disabilities have the freedom to live, work and play freely in their communities and their right to life, liberty and the pursuit of happiness is protected!
Community Choice Act
Legal Issues related to People with Disabilities
- AARP Asks Court to Keep the Insurance Playing Field Level (AARP – Dec. 19, 2007)
AARP has filed a “friend of the court” brief in a disability benefits case that threatens to tilt the playing field against disabled claimants once again. - A Disability Policy for the 21st Century (The Hill's Congress Blog – 1/19/12)
Of the roughly 17.5 million working-age people in the United States living with a disability, nearly 70 percent receive disability benefits. A recent study revealed that 12 percent of all federal spending goes to supporting this population—$357 billion in 2008. Just 33 percent of working-age people with disabilities are employed, compared to 73 percent of those with no disability. This costly system is failing both people with disabilities and taxpayers. - Disability Rights Laws – Overview (Work World)
This topic provides a brief description of the purposes and provisions of some of the most significant Federal legislation related to the rights of people with disabilities. Because of the interrelated nature of many benefits programs, both with respect to each other as well as to legislation, a description or explanation of one often references the other. - Five Things You Should Know About Judge Sonia Sotomayor and Disability Rights (Bazelon Center for Mental Health Law – 7/7/09)
Judge Sonia Sotomayor, President Obama’s first nominee to the United States Supreme Court, understands that disability rights are civil rights. As a judge on both the district court and circuit court, she has demonstrated that she recognizes the importance of Congress’ role in enacting major disability rights laws, including the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Individuals with Disabilities Education Act (IDEA). The Bazelon Center and other disability organizations support her nomination and ask you to help ensure her confirmation by the Senate. - Historic Housing Discrimination Settlement (Disability Blog 1/19/11)
Recently, the federal government reached an unprecedented $1.25 million settlement in U.S. v. Warren Properties, Inc., a housing discrimination case that the U.S. Department of Housing and Urban Development (HUD) charged in 2009. Jeremiah Stadtlander has paraplegia and relies on leg braces and crutches to get around. He lived in a second-floor apartment owned by Warren Properties, and made repeated requests for a transfer to a first-floor apartment because of his disability. Warren Properties refused to honor his accommodation request and Mr. Stadtlander suffered serious injuries on the stairs that increased the severity of his disability and eventually forced him to move out of the development. - Important Case: James Courts v. Agency for Health Care Administration (Florida Court of Appeals – July 2007)
The case of a 59 year old quadriplegic whose plan of care was reduced by the state and his subsequent appeal. - S.3895 – Keeping All Students Safe Act (Our Children Left Behind)
Our concerns about S.3895 are driven in part by our experiences with the IEP process and with how documentation works in the real school world. We know from our own experiences that the IEP process is heavily weighted toward the views and intentions of school personnel rather than parents. We are not comfortable with a system that relies on the IEP process alone to determine whether restraint/seclusion plan should be embedded into a student’s IEP. - Settlement Agreement Betweeen the U.S. and South Florida Baptist Hospital (ADA.gov – 4/26/06)
The United States alleges that the Hospital discriminated against persons who are deaf or hard of hearing or who have speech impairments as well as others associated with them by failing to provide them with the full and equal enjoyment of the Hospital’s goods, services, programs, and activities, and by failing to provide appropriate auxiliary aids and services when necessary for effective communication. - University Housing and the Fair Housing Act (Disability Blog – 2/28/11)
United States of America v. Millikin University is an important case concerning university housing and a student with disabilities. The Millikin case makes clear that the fair housing protections of persons with disabilities do not end at the university gates.
