1) What’s Happening in the Nation’s Capital?
NCIL Joins with ADAPT and SEIU for Community Choice Act Day
2) National News
NCIL Urges Members to Oppose Judge Andre Davis
Justice Department Sues Private School Network for Discrimination Against Children With Disabilities
Ways and Means Subcommittee on Social Security Holds Hearing on ARRA Funds
Social Security Will Not Raise Benefits in ’10, Forecasts Say
Kathleen Sebelius Confirmed as Secretary of Health and Human Services
3) State News
Arizona Trial Court Reaffirms Order Requiring State to Improve Access to Community Based Services
4) Announcements and Additional Resources
NCIL Taskforce on Independent Living in Indian Country Calls for Funding of Native American Independent Living Services through Stimulus Funds
Amerigroup Launches Advisory Board; Releases White Paper on Long Term Care and Healthcare
NCIL Joins with ADAPT and SEIU for Community Choice Act Day
NCIL Policy Analysts Jason Beloungy and Elizabeth Leef joined hundreds of advocates from around the country to promote the Community Choice Act. Wednesday, April 29th, SEIU joined forces with ADAPT to demonstrate solidarity in passage the CCA. The large crowd organized in the pouring rain and marched to the Capitol and Rally point. SEIU provided lunch and singer Johnny Crescendo provided entertainment in the Upper Senate Park. Several speakers from ADAPT and SEIU spoke in support of the CCA and higher wages for personal care attendants. They were followed by a rousing speech from Senator Tom Harkin (D-IA). In his speech, Senator Harkin asked for grassroots advocates to stand with him in support of the CCA, and promised “Senatorial Disobedience” if a healthcare bill is deliberated in Congress without the language of the Community Choice Act included. After the speech, the crowd was fired up to take the message to their elected representatives. Advocates organized into teams and made their way to each House and Senate Office Building to meet with staff and members of Congress. Information about the Community Choice Act was left within each office. NCIL is proud to join with ADAPT in addressing the institutional bias in the United States. Now is the time to include long term care in healthcare reform.
For a full description of events of the Action Week and pictures, visit: http://www.adapt.org/freeourpeople/cca09/.
NCIL Urges Members to Oppose Judge Andre Davis
NCIL is going on the record in opposition the nomination of Judge Andre Davis to Maryland’s Fourth Circuit Court of Appeals. While NCIL does recognize and appreciate Judge Davis’ efforts on civil rights for other marginalized groups of people, NCIL cannot and will not support a nominee to the bench with as bad a record on Disability Employment decisions as Judge Davis.
Your Help is Needed!
Look at the table below to see if your U.S. Senator is on the Judiciary Committee. The voice of the disability community needs to be heard loud and clear that we need judges who respect the laws of the land, including the ADA and the ADA Amendments Act. By calling your US Senator who is on the Judiciary Committee, you will make that voice heard.
Senators on the Judiciary Committee:
- Patrick Leahy, Chair (D-VT)
- Herb Kohl (D-WI)
- Diane Feinstein (D-CA)
- Russ Feingold (D-WI)
- Charles Schumer (D-NY)
- Richard Durbin (D-IL)
- Ben Cardin (D-MD)
- Sheldon Whitehouse (D-RI)
- Ron Wyden (D-OR)
- Amy Klobuchar (D-MN)
- Ted Kaufman (D-DE)
- Arlen Specter (no longer ranking member) (D-PA)
- Orin Hatch (R-UT)
- Charles Grassley (R-IA)
- Jon Kyl (R-AZ)
- Jeff Sessions (R-AL)
- Lindsey Graham (R-SC)
- John Cornyn (R-TX)
- Tom Coburn (R-OK)
The Message: Here is a sample of a statement you can make to your Senator when calling or e-mailing them to oppose the Nomination of Judge Davis to Maryland’s Fourth Circuit Court of Appeals.
I am calling/writing today to ask Senator ______ to oppose the nomination of Judge Andre Davis to Maryland’s Fourth Circuit Court of Appeals, and ask that Senator _____ vote NO to recommend his confirmation to the Senate. I appreciate that Judge Davis has reached decisions favorable to the plaintiffs in cases involving issues such as physical access to courthouses and housing developments, and effective communications with medical providers. These cases do not, however, lessen my concerns about Judge Davis’s record in the area of employment discrimination, in which people with disabilities fare particularly poorly.
The selection of judicial nominees is extraordinarily important to the disability community given the serious obstacles that individuals with disabilities have faced in trying to enforce their rights in the courts, particularly in the context of workplace discrimination. The Fourth Circuit is of concern, since that court has decided many significant disability rights decisions by divided panels.
Advocates in Maryland have reported that as a district court judge in Maryland, Judge Davis has a record of highly problematic rulings in disability rights cases. He has repeatedly imposed inappropriately stringent standards that have prevented individuals with disabilities from enforcing rights under federal antidiscrimination laws, particularly in the area of employment. Disability Organizations have been able to find only one published decision, in nearly 14 years on the bench, in which Judge Davis ruled in favor of a plaintiff on the substance of an ADA employment discrimination claim. In some cases, his rulings are inconsistent with the plain language of the ADA.
Although these cases are fact intensive, and so perhaps subject to differing interpretations, the trend is disturbing: Judge Davis simply appears unsympathetic to the efforts of persons with disabilities to obtain and maintain employment, as a means of becoming independent, fully-participating members of their communities.
The ADA’s protections are critical to the efforts of people with disabilities to obtain and maintain employment and to become independent and fully participating members of their communities. I am very concerned that Judge Davis’s elevation to the Fourth Circuit will do little to ensure that their rights are protected. I hope that Senator _____ will recognize that and will take seriously the concerns of people with disabilities in the Judiciary Committee’s consideration of Judge Davis’s nomination. Thank You.
Justice Department Sues Private School Network for Discrimination Against Children With Disabilities
Source: PR Newswire, US Department of Justice
The Justice Department announced today it has filed a lawsuit in U.S. District Court in Philadelphia against Nobel Learning Communities Inc. (Nobel) alleging the company violated Title III of the Americans with Disabilities Act by excluding children with autism spectrum disorders and other disabilities from its schools and programs.
The complaint identifies children with disabilities denied admission to or removed from Nobel schools in several states. Nobel is a network of more than 180 private preschools, elementary schools and secondary schools in fifteen states, operating under various names including Chesterbrook Academies, Evergreen Academies, Bethesda Country Day School and Merryhill Schools. Nobel also provides child care services and summer programs.
"All parents want their child to have the opportunity to reach his or her full potential," said Loretta King, Acting Assistant Attorney General for the Civil Rights Division. "The Justice Department will vigorously enforce Title III of the ADA to ensure that children with disabilities have a full and equal opportunity to participate in academic and non-academic activities."
Title III of the ADA prohibits public accommodations, including private schools such as Nobel, from excluding individuals with disabilities from programs or services offered by the public accommodation. Covered entities must also make reasonable modifications if such modifications would permit the individual with a disability a full and equal opportunity to participate in or benefit from the programs and services offered. Parents or guardians who believe their child may have been discriminated against on the basis of disability can contact the Justice Department's Civil Rights Division.
Ways and Means Subcommittee on Social Security Holds Hearing on ARRA Funds
On Tuesday, April 28th, Jason Beloungy attended an Oversight Hearing for the Social Security Subcommittee of the House Ways and Means Committee. The hearing was regarding SSA’s implementation of the American Recovery and Reinvestment Act of 2009 (Stimulus funds). NCIL is interested in how SSA will use its funds to reduce backlog, create work incentives, and hire people with disabilities in the massive workforce that is the Social Security Administration. Here are some of the highlights of testimony given at the hearing:
- $90 Million was granted to provide one-time payments of $250 to Social Security and SSI beneficiaries
- $500 Million was granted to process the backlog of increasing retirement and disability workloads. With the 2009 budget appropriation, along with the ARRA funds, SSA will process 30,000 more claims this year than last, and will hold 75,000 more hearings this year (fiscal year). To make this possible, the SSA stated that they will hire 1,500 new people to work in field offices, 550 new employees in hearing offices, 35 new administrative law judges, and 300 new disability examiners throughout the country to speed up the disability determination process.
While NCIL applauds the SSA for making a real effort at hiring staff to reduce the consequences of an unacceptable wait period for applicants to receive a determination or hearing, NCIL will work to ensure that people with disabilities fill a substantial amount of these positions, in meaningful roles.
- 13 new hearing offices will be opened throughout the country this year to speed up the hearing process and lessen the distance to travel for applicants. These offices will be in FL, GA, KS, MI, OH, NC, WI, WA, AZ and IN.
- SSA is increasing the availability of video hearings in remote areas to reduce travel time for claimants and representatives who will now be able to attend remotely
- A new National Computer Center is being planned to increase the volume and protect the data of claimant and beneficiary information.
Social Security Will Not Raise Benefits in ’10, Forecasts Say
Source: New York Times, by Robert Pear
For the first time in more than three decades, Social Security recipients will not get any increase in their benefits next year, federal forecasts show. The absence of a cost-of-living adjustment, calculated under a formula set by law, will be a shock to older Americans already hit by plummeting home values, investment losses and rising health costs. More than 50 million people receive Social Security.
“Most seniors have never been through a year in which there was no Social Security COLA,” said David M. Certner, legislative counsel at AARP, the lobby for older Americans. Beneficiaries have received automatic cost-of-living adjustments every year since 1975. The increase this year was 5.8 percent.
In theory, low inflation is good for people on fixed incomes. But it is creating political and policy problems for Congress, which is just learning of the implications for Social Security and Medicare.
The forecasts, by the Obama administration and the Congressional Budget Office, indicate that Social Security beneficiaries will not receive any cost-of-living increase in 2010 or in 2011. The COLA is intended to preserve the purchasing power of Social Security, by increasing benefits to keep pace with consumer prices. In the last year, overall inflation has been low, largely because of the economic downturn and a decline in energy prices.
A freeze in Social Security benefits would have major implications for Medicare because the COLA, in effect, puts a cap on premiums for Part B of Medicare, which covers doctors’ services.
If there is no cost-of-living adjustment for Social Security, about three-fourths of beneficiaries will not see any change in their basic Part B premiums, federal officials said. But some beneficiaries do not have this protection and could face substantial increases in their Part B premiums.
In addition, millions of beneficiaries could see higher premiums for drug coverage, provided under Part D of Medicare. Read More.
Kathleen Sebelius Confirmed as Secretary of Health and Human Services
On Tuesday, April 28th, The US Senate voted to confirm the nomination of Kansas Governor Kathleen Sebelius as the President Obama’s Secretary of Health and Human Services. The vote was 65-31, with 3 Senators not voting. Shortly after the vote, Secretary Sebelius was sworn in to lead an agency that oversees many of the federal programs that provide health and safety for people with disabilities. Sebelius, 60, is the daughter of former Ohio Gov. John Gilligan. A two-term Democratic governor in a Republican-leaning state, she previously served as a state insurance commissioner and oversaw Kansas' Medicaid program. Former Sen. Tom Daschle of South Dakota, Obama's first choice for Secretary of Health and Human Services, withdrew on February 3 after controversy erupted over his tax records and over his work in a field. View a list of how Senators voted.
Arizona Trial Court Reaffirms Order Requiring State to Improve Access to Community Based Services
Source: BNA
Arizona must continue its efforts under an ongoing injunction to ensure that disabled Medicaid beneficiaries have access to adequate home- and community-based services (HCBS), a federal trial court ruled April 24 (Ball v. Rodgers, D. Ariz., No. 4:00-67, 4/24/09). The U.S. District Court for the District of Arizona ruled that injunctive relief originally ordered in an August 2004 decision should remain in place pending at least a June 1 status conference. The injunction was warranted to ensure HCBS access for disabled individuals and was authorized to remedy their claims alleging the Arizona Health Care Cost Containment System (AHCCCS) violated the Medicaid Act's “free choice” provisions, the Americans with Disabilities Act, and the Rehabilitation Act, the court said.
The ruling continues an injunction that required the state to increase the wages paid to attendant care workers to make the wages more competitive; to implement a grievance process, including a hotline that HCBS beneficiaries could call to report a gap in critical services; and to develop contingency plans so that any reported gaps could be filled promptly, all to ensure that disabled Medicaid recipients have a meaningful choice between living in an institutional or community-based setting.
The ruling was issued on remand from a July 2007 decision by the U.S. Court of Appeals for the Ninth Circuit in which the court found the disabled individuals could pursue their claims challenging Arizona's HCBS program under the Medicaid Act's “free choice” provisions in an action brought under the federal civil rights statute, 42 U.S.C. §1983. The Ninth Circuit in that decision ruled that the free choice provisions, 42 U.S.C. §§1396n(c)(2)(C) and (d)(2)(C), conferred private rights enforceable by the disabled individuals and cleared the way for disabled individuals to continue their efforts to obtain higher quality care under the state's HCBS program.
The disabled individuals, led by named plaintiff Peg Ball, have been pursuing claims since 2000 that the state HCBS program, managed by AHCCCS and its director Anthony D. Rogers, failed to fill in gaps in critical services for a class of disabled individuals eligible under a federal Medicaid waiver for the state program.
Although the Ninth Circuit concluded that the individuals could not enforce the state's alleged duty to comply with the equal access provision in the Medicaid Act—1396(a)(30)(A)—in a lawsuit brought under Section 1983, it found evidence that the free choice provisions were directed at individuals, and created concrete rights that were subject to protection under Section 1983. The court's decision is available at http://op.bna.com/hl.nsf/r?Open=psts-7rjnrk (PDF).
NCIL Taskforce on Independent Living in Indian Country Calls for Funding of Native American Independent Living Services through Stimulus Funds
The taskforce is requesting that NCIL issue a statement to its members encouraging CILs to consider using a portion of the stimulus funding for the purpose of increasing Independent Living services on tribal lands. The taskforce recognizes that this funding is one-time money and therefore CILs will be looking for creative projects that have a lasting impact. This taskforce suggests that the stimulus funding provides a perfect opportunity for CILs to develop collaborative efforts and joint training opportunities with individuals living on tribal lands, including hiring tribal members. The taskforce strongly encourages training topics such as Independent Living Philosophy and self-advocacy training. These collaborative, employment and training efforts can have significant long lasting results increasing further partnerships and potentially the development of Native American Independent Living Projects on tribal lands.
The most important advantage to this approach is opening the lines of communication for further discussion on developing culturally appropriate Independent Living Services for American Indian people and Alaskan Natives with disabilities.
The taskforce has identified at least six models of tribal or collaborative CIL services that have emerged that could assist in this effort. These are:
- Assist! To Independence, Tuba City, AZ
- Three Rivers, Inc., Mayetta, KS
- Living Independently for Everyone, Pocatello, ID
- Native American Independent Living Services (NAILS), Buffalo, NY
- Arctic Access CIL, Kotzebue, AK
- Native American Indian Living Movement, Albuquerque, NM (in development)
- San Juan Center for Independent Living, Gallup, NM
Further, members of the taskforce are available for technical assistance and information. The members are:
- Jim Beck,
Anchorage, AK
- Connie Berg,
Red Lake, MN
- Michael H. Blatchford,
Tuba City, AZ
- Alexandra Enders,
Missoula, MT
- Elizabeth Leef, Washington, DC
- Joe Kelly,
Natchitoches, LA
- Audrey Schremmer-Philip, Wamego, KS
- Michelle Wilson,
Ada, OK
Amerigroup Launches Advisory Board; Releases White Paper on Long Term Care and Healthcare
This is your advance notice about Amerigroup's National Advisory Board to Improve Healthcare for Seniors and People with Disabilities (NAB). This week, they are releasing their new White Paper -- "Declaration for Independence - A Call to Transform Health and Long Term Services for
Seniors and People with Disabilities."
The link below takes you to their site, where you can see highlights and download a full copy of the White Paper: http://www.mydfi.org.
The NAB will also be holding a national "Day of Dialogue" in Washington, DC on May 21, which will feature a Virtual Town Hall accessible on this website. You and your colleagues are invited to attend.
The White Paper presents six principles necessary to modernize health care infrastructure and support independence. It is a Call to Action and a platform for dialogue with other interested groups, advocates, policy-makers, and the public. They'd appreciate any comments, links, and stories you might have, as well as your recommendations to the NAB and Convener Lex Frieden regarding how these principles can translate into policy, research, and programs!
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May 4, 2009