Budget Concerns

I haven’t written about politics lately, but I’m moved to do so given the Trump Administration budget proposal announced last month. The proposed budget has met criticism from seemingly everyone, regardless of political affiliation. Indeed, this post is also intended as a critique, though geared specifically toward how the budget is likely to affect Americans with disabilities.

Granted, many people with disabilities, as well as organizations supporting groups of people with disabilities, have been outspokenly opposed to the proposed budget. In fact, the Consortium for Citizens with Disabilities, self-described as “a coalition of approximately 100 national disability organizations,” has firmly called upon Congress to “reject” the proposed budget. Two women who self-identify as disabled, Stacey Milbern and Patty Berne, talk about being “terrified” at the prospect of living under the proposed budget, and suggest that changes demanded by implementation would go to “the core of being able to live.”

Most concerning the majority of people with disabilities are the proposed funding levels for Social Security and Medicaid, despite Candidate Trump’s promises not to revoke social safety nets. Although OMB Director Mick Mulvaney has attempted to explain that the proposed budget works to cease the growth of spending, rather than seriously cut funding, it’s difficult to understand how capping spending will not have an adverse effect on people with disabilities over time. Insurance companies will likely continue to pay exorbitant amounts for medical treatment, which counteracts any government attempt to reduce healthcare spending. Indeed, at this point, this Republican has to conclude that the only ways to seriously reduce medical expenses involves either completely removing the federal government from health insurance or mandating universal coverage.

I am dismayed by multiple Facebook posts friends that say Trump, Mulvaney, and Republicans, either together or individually, are working to kill people with disabilities. I have no doubt in my mind that these posts are hyperbolic and false. Nevertheless, I understand the fears of the Facebook posters. Federal law requires Medicaid to cover nursing homes days for eligible beneficiaries, but does not require Medicaid to cover care in home and community-based settings. This is disturbing, first, because home-based long-term care is generally overwhelmingly cheaper than institutional care. If OMB and Congress is worried about healthcare spending, why not flip this paradigm? Second, an overwhelming number of people with disabilities would prefer to live at home than in nursing homes. However, if States have less money to work with, they may need to reduce home-based care in order to cover the mandatory nursing home coverage. Unfortunately, I doubt that many congressmen understand the nuances of Medicaid statutes and regulations, and fear that these concerns will go under their radar.

Also concerning is the fact that the proposed budget wants to merge multiple disability programs into a single entity. For example, State Council on Developmental Disabilities, the Independent Living Program, and funding for traumatic brain injuries would be merged into a single Partnership for Innovation, Inclusion, and Independence.  Budgets for each would be reduced across the board. So, the proposed budget would reduce the ability of the aforementioned advocacy groups to speak up and address concerns like institutional bias discussed above. Even more concerning, the Independent Living movement and the developmental disability community are not always on the same page when it comes to the implementation of solutions. Should this portion of the proposed budget pass, I anticipate more division in the disability community and greater discord overall.

Certainly, the proposed budget is not completely negative. I’m one of the few people I’m aware of that is not completely adverse to the idea of Medicaid block grants. Many are concerned that block granting will  reduce not only the amounts of services available under State Medicaid programs, but also reduce rights and remedies available to beneficiaries. While this is certainly a possibility, I also believe that Medicaid ripe for reform and the ability to innovate at the local level holds promise.

What do you think?

Review: In Our Hands

You might’ve heard about political scientist and professor Charles Murray recently. He was the subject of a recent campus protest, and is also (in)famous for writing The Bell Curve. I picked up the most recent draft of his call for the creation of a universal basic income (“UBI”), In Our Hands: A Plan for Replacing the Welfare State.  As a person who relies on government welfare programs (e.g., Medicaid), I’m skeptical of most libertarian plans for reform. However, Murray and his book surprised me in a very positive way!

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Unsurprisingly, Murray calls for the elimination of most wealth transfer programs, including Social Security, Medicare, Medicaid, and additional programs that may not initially come to mind when one thinks about welfare (e.g., farming subsidies). However, people – citizens, at least – will not be left completely without government support. Wealth transfer programs will be replaced by UBI. The figure Murray gives is $13,000 per year for each individual aged 21 and older (the amount can be proportionally reduced by up to $6,500, depending upon how much income a given citizen receives each year). Lest you think this is going to cost taxpayers even more than current welfare programs, Murray’s proposal is actually less costly than the status quo!

Unlike current programs that place in enormous restrictions on how each form of wealth transfer may be used, Murray’s UBI has at least $3,000 each year must be used to purchase catastrophic health insurance. This should please Democrats, in that all Americans would have healthcare. It should also please Republicans, in that catastrophic care truly is health insurance. Believe it or not, I am also impressed by Murray’s proposal because he states that long-term care would be included in the mandatory health insurance packages. People with severe disabilities in need of personal care assistance have been looking for a Medicaid alternative for years – could Murray’s UBI be it?

There is much more to discuss in this short book, and perhaps this blog will revisit some of the other benefits of UBI at a later time. I’m intrigued with the idea, and have been mulling over Murray’s proposal all week. Needless to say, this is definitely a book I recommend to anyone interested in government reform.  AEI-affiliated ideas strike again!

5th Annual Fair Housing Conference Debriefing

Last Thursday, I had the pleasure of attending the Fair Housing Center of Central Indiana‘s (FHCCI) Fifth Annual Fair Housing Conference & Anniversary Celebration at the Marriott East in Indianapolis. In full disclosure, I serve as Secretary of the FHCCI  Board, and helped found the organization. Nonetheless, I think everyone in attendance – and this year we set an all-time registration record – enjoyed the event.

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FHCCI Board and Staff

This year’s theme was No Hate in Our Neighborhood: How Fair Housing Laws Combat Hate & Promote Inclusion. (The program’s design credit goes to Projects Coordinator Brady Ripperger.) It highlights both the fact that Indiana is one of only five states without a hate crime law and FHCCI recently received a large grant from the Open Society Foundations to form a coalition combating hatred.

Because of my professional interest, as well as serving as moderator at the first session, both of the breakout workshops I attended addressed fair housing and disability.  At the first session, Indiana Disability Rights’ Managing Attorney Tom Crishon and Relman Dane & Colfax’s Laura Arandes discussed case law/litigation updates from January 2016 to present. The most interesting part of their session, perhaps, came during the question and answer period, when landlords peppered them with questions about the reasonableness of accommodations. At the beginning of the session, Tom joked that perhaps the audience was so crowded due to settlement agreements requiring landlords to get continuing education about fair housing law. By the end of the session, the joke wasn’t so funny as intended.

Indiana Disability Rights was featured in the second disability-related workshop as well, this time by Legal Director Melissa Keyes. Melissa discussed changes required of home and community-based service providers under new rules promulgated by Medicaid. These rules include, for example, that recipients of services are entitled to a lease and a bedroom with a lockable door. Melissa’s co-presenter, Executive Director of HOPE Fair Housing Center Anne Houghtaling, spoke about how people with disabilities are often affected by landlords’ refusal to consider those with criminal records from rental opportunities. Interestingly, she also shared that she is the individual that wrote the original grant for FHCCI startup funding years ago!

The highlight of the conference (aside from getting surprised with a poster in front of the whole audience at lunch, in recognition for five years of service to the organization) was the morning keynote, delivered by Ise Lyfe. I’d heard him speak last summer, at the National Fair Housing Alliance Annual Conference in Washington, D.C. I can’t really explain how awesome his presentations are – they include things like mathematical poetry – and emphasize the importance of the individual, the importance of participation, and of course the importance of our work.

April is Fair Housing Month. If you’re looking for a way to get involved, consider donating to FHCCI, which provides education and enforcement activities regarding fair housing in Central Indiana. Given our commitment to making the conference accessible to those in the community, registration costs do not cover the full expense of the event. Your donation could help further our activities, including the conference.

Gorsuch & Such

Multiple people have weighed in on the pros and cons of Tenth Circuit Judge Neil Gorsuch, President Trump’s nominee to fill the vacant Supreme Court seat left by Justice Antonin Scalia. For years, I’ve attended Federalist Society meetings, and am generally in favor of judicial restraint. However, strict constructionist justices have generally jeopardized the status of disability rights. The intent of this post is to evaluate some of Judge Gorsuch’s opinions in order to anticipate how disability rights may fair should he be approved by the Senate.

Adversaries of Gorsuch’s nomination have been outspoken, particularly in the realm of his previous decisions involving IDEA. As the Bazelon Center reports, Gorsuch has interpreted IDEA extremely narrowly, holding that the law merely requires “the creation of individualized programs reasonably calculated to enable the student to make progress towards the goals within that program….” Thompson R2-J School District v. Luke P., 540 F.3d 1143, 1155 (10th Cir. 2008). More importantly, Gorsuch writes that the standard is “not an onerous one.” Id. This opinion, and others like them, are concerning because it sets a low standard of achievement for students with disabilities. The bare minimum is acceptable, as opposed to fulfilling the full academic potential of the student.

Titles I and II of the Americans with Disabilities Act (and employment-related provisions of the Rehabilitation Act) are other areas in which Judge Gorsuch has routinely ruled against people with disabilities. Perhaps the opinion most routinely cited by Gorsuch critics is Hwang v. Kansas State University. This case involved a professor with cancer, who took a leave of absence to recover from treatment. When the professor was scheduled to return to work, there was an outbreak of the flu at her University. Her doctor recommended an additional period of leave, so as not to jeopardize the professor’s immune system further. This recommendation was denied by the University. Judge Gorsuch opined that a six-month period of leave policy was more than adequate to meet the needs of qualified persons with disabilities, as opposed to requiring the University to determine the particular needs of each individual with a disability. More troublingly, Gorsuch essentially recommends that the professor receive welfare benefits rather than pursue employment, given her situation.

On the other hand, Judge Gorsuch offers hope to the disability community in another very important area: assisted suicide. In 2006, he wrote The Future of Assisted Suicide and Euthanasia, in which he avers that “[a]ll human beings are intrinsically valuable.” Although education and employment are important to people with disabilities (as they are for all people), there is a mounting movement toward assisted suicide, which undermines the value of life with disability, in particular. While I am disturbed by some of Gorsuch’s opinions regarding the government’s role in preserving education and employment rights, it is my right to life that concerns me most today.

Therefore, I think the Gorsuch nomination is a mixed bag for the disability community, despite many on the left clamoring for nay votes. It seems to me the calls to block his nomination from proceeding are silly; his reputation, both academic and professional, is impeccable, and his judicial philosophy is within the mainstream of acceptability. Instead, time would be better spent working on disability rights legislation that is less open to judicial interpretation.

Bound and Gagged?

Yesterday evening, a terrible story broke: a white 18-year-old, described as “having mental health challenges,” was kidnapped in a stolen van by four African-American young people and tortured. The victim was sworn at (“fuck white people” and “fuck Donald Trump”), physically assaulted until he bled, and forced to drink toilet water over a period between 24 and 48 hours. It’s difficult to imagine, but for the actual footage the assailants broadcasted on Facebook. Absolutely sickening.

You’d think that organized minority groups, and justice arms of the government, would come out strong against this behavior. After all, these are the entities that clamor for hate crimes legislation and are supporting one another on the eve of Trump’s assuming office. I expected to go on my own Facebook account and see my liberal friends sharing the story, condemning the unjustifiable behavior of the assailants that demonstrably victimized someone on the basis of his disability and his race. To date, only one of my 900+ Facebook  friends registered as a Democrat has expressed disgust at the story.

Okay, I reasoned. My friend who posted the story is a fellow disability rights attorney. Maybe people simply haven’t heard about the victim and his torture. Not so. I believe they simply fail to see the depravity in the actions. Why? CNN host Don Lemon plainly stated – and then repeated – “I don’t think it’s evil.” Police Commander Kevin Duffin stated, “Kids make stupid mistakes.”

So… Because the perpetrators hated Trump, like their liberal comrades, taking a disabled man, binding and gagging him, and torturing him for hours upon hours, their actions might be justified? Or, at least, understandable? Fathomable? Logical? This boggles my mind!

Speak out, liberal friends. Unlike this tragic victim, you’ve not been bound and gagged – use your voice and condemn this violence!

EEOC’s New Affirmative Action Rule

Today the Equal Employment Opportunity Commission (EEOC) published its final rule on Affirmative Action for Individuals with Disabilities in Federal Employment. It becomes effective 60 days from publication, and its provisions are applicable beginning January 3, 2018. Indeed, federal employees with disabilities – and federal job seekers with disabilities – have some great things to look forward to!

Most importantly, the rule adds two significant requirements to the administration of the Rehabilitation Act. First, those federal employees with targeted disabilities requiring personal assistance (PA) services for work and work-related travel can receive them from their employing agency as a reasonable accommodation. This is huge! People with significant mobility disabilities may now be able to use the restroom at work, eat lunch, and have someone put their coat on before they leave for the day. Importantly, the EEOC expects federal agencies to even provide PA services outside of the agency’s infrastructure for those individuals telecommuting.

I would feel a bit strange about my employer being involved in my toileting routine. Fortunately, the EEOC specifically notes that when hiring a PA service provider, the agency shall “give primary consideration to the individual’s preferences to the extent permitted by law.” This means, for example, that if a female employee with a targeted disability only feels comfortable with the assistance of another female, the agency must consider this request. I am grateful to those submitting comments to the EEOC regarding the intimacy of the relationship between a PA service provider and the recipient of those services.

Second, the EEOC is requiring federal agencies to take specifically-designated steps toward hiring more people with disabilities, and particularly those with severe disabilities. (It should be noted that the EEOC specifically refrained from using the word “severe,” after a commentor indicated the lack of political correctness. You’ll get no political correctness from this crip; consider my succinctness a reasonable accommodation for exhausted vocal muscles.) Specifically, the final rule mandates that the following steps be taken to increase the hiring advancement of those with disabilities:

  • Programs and resources should be used to identify applicants with disabilities;
  • Contracting with disability organizations, including vocational rehabilitation programs, centers for independent living, and employment networks;
  • Ensured availability of sufficient personnel to answer disability-related questions;
  • Creating a plan of action to ensure that disable employees have opportunities for advancement, including information about training opportunities and/or a mentoring program;
  • Inclusion of disability within the agency’s anti-harassment policy and training materials;
  • Adoption of easy-to-understand and easily-available reasonable accommodation policies and rights to accessible technology;
  • Guarantee that the agency evaluate its entire budget when determining whether a reasonable accommodation would constitute an undue hardship; and
  • Provide applicants or employees with a written notice (in an accessible format) of why a reasonable accommodation was denied, along with instructions on how to file a discrimination complaint and appeal.

How’s that for being a model employer?! Any guesses on when we can expect the private sector to get on board?