Month: May 2016

Labor and Disability Rights: A Chicken and Egg Problem

Last week, the Department of Labor issued a new rule raising the salary threshold below which workers are entitled to overtime pay. This is a pretty big deal – prior to now, only those making below $23,660, about seven percent of the workforce, were eligible for overtime. Thanks to the Department’s new regulation, as of December 1st workers making below $47,476 will now be eligible for time and a half pay when they work more than 40 hours a week.

More prominent commentators have written about the potential impacts of the rule far better than I, but on balance, it seems like a step forward for working Americans, whose wage growth has stagnated for decades. The rule has a particular disability element, however. The Department of Labor coupled the rule with a time-limited non-enforcement policy applying to most residential based providers of Intellectual and Developmental Disability (I/DD) services. Essentially, for the majority of agencies providing services to people with I/DD, the Department of Labor will decline to enforce this new overtime threshold for the next three years.

The non-enforcement policy (which, full disclosure, ASAN joined other groups in advocating for), raises interesting questions. Why are Medicaid-funded employers different from other ones? What rationale justifies different rules applying to them, albeit only temporarily? Others have written on the hypocrisy of progressive organizations seeking to maintain unfair labor practices inconsistent with their stated principles. Is this just another example of a right for me but not for thee?

On balance, I think not. Agencies providing community services to people with disabilities are uniquely situated among employers, in that virtually all of the funding they receive comes from state Medicaid programs. Unlike private business, for whom added labor costs can be covered by reducing profits, or donation-supported non-profits, who can cultivate new donors, most disability service-providers rely exclusively on Medicaid reimbursements set by state government. Where the state chooses to raise rates in line with new labor regulations, this isn’t a problem. Where it does not, however, small and medium sized providers are forced to scale back services to the people they serve in order to stick around.

This isn’t the first time that this issue has come up. In 2011, the Department of Labor proposed a new regulation drastically narrowing an exemption to the Fair Labor Standards Act known as the “Companionship Exemption”, allowing home care workers to be paid without regard to overtime and minimum wage law. Under the new rules, promulgated in final form in 2013 and having recently come into effect in late 2015 after an extended court battle, the Companionship Exemption no longer applied to the vast majority of workers providing services to seniors and people with disabilities in community-based Medicaid programs. For the first time, federal labor law would apply fully to this population.

While the application of minimum wage requirements was not a significant burden (most states already required this in state law), requiring time-and-a-half for overtime was. State Medicaid rates to agencies (and individual budgets for people with disabilities who self-direct their own services) had never taken into account the need for overtime costs. Furthermore, given the low rate of pay most support workers receive and the difficulty in finding a good interpersonal “match” between worker and client, it has long been commonplace for workers to work well in excess of forty hours a week.

Without access to new Medicaid funds, agencies and self-directing people with disabilities would be unable to cover the cost of overtime, raising the potential of cutbacks in worker hours and/or services received. Such cutbacks could lead to people with disabilities forced into nursing homes and institutions as a result. Disability rights advocates (myself included) were justly concerned, and many fought hard against the new rule. Considerable controversy ensued.

In so far as the Companionship Exemption regulation planned for the likely impact on providers supported by state Medicaid programs, it did so in the expectation that it would force a crisis, triggering necessary state reforms. This way of thinking is simple: if provider agencies were forced to pay overtime on hours worked above forty hours a week, they will successfully pressure their legislators to allocate funds to cover their added costs. Under this formula, new labor law and the additional Medicaid funding needed to pay for it are the proverbial “chicken and the egg”. One has to come first – and proponents of the Companionship Exemption rule hoped to force the new funding by requiring that overtime be paid. And in some cases, this is exactly what happened. Unfortunately, not every state responds the same way to a crisis.

Some states have simply declined to allocate new funds to assist agencies to comply with the rule, working under the assumption that agencies will act on their own to prohibit their workers from working above the 40-hour threshold. Many of these states have directly prohibited worker overtime in self-directed programs, where people with disabilities manage workers without an agency. These worker hours caps cause serious problems for people with disabilities. The new caps threaten long standing support relationships and force many – particularly those in rural areas or with specific cultural and linguistic competency needs – to struggle to find new providers (a problem MySupport, a new tech platform some colleagues and I developed, is designed to help solve, I should add). Workers are also worse off, facing a cut-back in hours and a reduction in income as a result.

And because of a long standing labor law doctrine called “joint employment”, which stipulates that entities that play a significant role in designating working conditions or wages may also be considered employers even if they are not the entity signing paychecks, a number of states realized they had to limit the number of hours a worker could work for any Medicaid-funded recipient of services within a self-directed program. Not only could workers not work more than forty hours a week for a single client under these rules – they can’t work more than forty hours a week for any client funded by the Medicaid program, since the state is considered a “joint employer” with the person receiving services. Since collective bargaining agreements and state-designated wage rates can tip the balance into a state becoming a joint employer, this is causing some states to consider rolling back such measures, leaving labor rights worse off in these jurisdictions.

What lesson should we draw from this? Should Medicaid providers be permanently exempt from overtime obligations and other aspects of labor law? No – such a policy would not only be unfair to workers, it would be terrible for people with disabilities. Already, publicly funded community based services struggle to attract an adequate workforce, with sky-high turnover rates and workers living in almost as much poverty as the people they support.

It is no accident that the Department’s non-enforcement policy represents a delay rather than an exemption of the Department’s enforcement of the new overtime rule. The intent behind this measure is to allow state legislatures sufficient time to allocate new funding, allowing the implementation of these labor protections to be put in place in a responsible way, without harming those receiving services.


In fact, one can argue that the Department’s non-enforcement policy really doesn’t go far enough. After all, the Fair Labor Standards Act is not enforced solely through government action. Private citizens can bring lawsuits for unpaid wages any time they want, and the Department’s non-enforcement of the new rules does not change their applicability to I/DD service-providers. And, of course, eventually, the Department will enforce its own rules, and there is no guarantee states will do the right thing and raise rates before then.

Since the fight over the Companionship Exemption rule (and as efforts to raise state and federal minimum wage laws proceed), disability rights advocates have been discussing the need to tie Medicaid rates to new labor laws. Some more progressive states have passed state statutes doing so already. But this is a national problem, and it requires a national solution.

At the federal level, there are a variety of avenues that could accomplish this. The most reliable would be a change in law. Congress certainly has the authority to require states to adjust Medicaid rates in line with minimum wage and other labor law modifications, and perhaps offering an enhanced Medicaid match rate for labor law changes originating at the federal level (like an increase in the national minimum wage). Should such a measure prove politically difficult, it is possible that more limited progress could be secured through administrative action from the Departments of Justice and Health and Human Services.

After the promulgation of the Companionship Exemption rule, DOJ and the Health and Human Services Office of Civil Rights issued a Dear Colleague letter to the field instructing states that they may need to provide for reasonable modifications to caps on worker hours in order to comply with their obligations under the ADA and the Supreme Court’s 1999 Olmstead v. L.C. decision. The letter states that states must provide for, “reasonable modifications to policies capping overtime and travel time for home care workers, including exceptions to these caps when individuals with disabilities otherwise would be placed at serious risk of institutionalization…[but] whether a reasonable modification is needed and what the modification should be depends on the specific factual circumstances.”

A series of enforcement actions to better articulate the parameters under which states must offer an exceptions policy (and the circumstances under which it would be triggered) would go a long way to making this guidance more meaningful to the lives of people with disabilities. Still, exceptions to worker hours caps won’t fix the bulk of the harm caused by the overtime rule. What’s needed are changes to state and federal law to require Medicaid rates to rise automatically when labor law increases provider costs.

Such a policy would address the conflict between labor and disability rights advocates. We should be able to find a way to protect both of our interests. Labor must realize that forcing a crisis in disability support is an irresponsible and dangerous way to secure new funding – and disability advocates should join forces with unions to build a viable political coalition for planned and responsible increases in worker compensation.

Workers providing disability services deserve the full protections of labor law and people with disabilities deserve adequate access to community support from workers they trust. It’s past time that we put in place policies that protect the rights of both workers and people with disabilities.

Donald Trump Wants the Disability Vote – Don’t Give it to Him

Donald Trump Wants the Disability Vote – Don’t Give it to Him

Late last night, Senator Ted Cruz ended his campaign for the Presidency. While Cruz himself was by no means suited to be President, his departure from the race makes something that would have been unbelievable a year ago a certainty: Donald J. Trump will become the Republican nominee for President of the United States.

Even the once formidable Republican Establishment is rallying around Trump. Shortly after the results of the Indiana primary were announced, the chair of the Republican National Committee, Reince Priebus, tweeted his support and called for the party to unite behind a man who has built his campaign on the rawest kind of hatred, prejudice and xenophobia.  Ari Fleischer, George W. Bush’s Press Secretary, tweeted his support for Trump only two months after condemning his refusal to denounce David Duke and the Klu Klux Klan.

How did we get here? Many are asking that question, and better minds than mine have put forward a wide array of theories. But there’ll be plenty of time later on to try and figure out how a vulgar reality television star who built his candidacy on the most outrageous sort of lies and authoritarianism became a major party nominee for President. Now, our focus must shift to ensuring that he does not win the general election.

Because make no mistake: Trump is dangerous, and while the smart money remains that the Republican party that was foolish enough to select him will lose by historic margins in November, we underestimate him at our peril. He is cunning, shameless and extraordinarily talented at becoming whatever it takes to win. People underestimating Donald Trump is what got him this far. Those of us who see what a disaster Trump would be for the United States of America and the world need to not make that mistake.

At times like this, it’s incumbent upon every reasonable person to do their part. We all have to speak out, to whatever small section of the electorate listens to us, about the danger that Mr. Trump poses to the American republic. Others will speak about how Trump threatens racial and religious minorities, democratic norms, journalistic freedom, basic standards of human rights, long-standing American commitments to our allies abroad and much, much else. As a lifelong disability rights advocate, my role is to speak – solely in the capacity of a concerned citizen – as to how Trump threatens the disability community.

It’s a more important task than many people realize, in part because people with disabilities have not been the main target of Trump’s demagoguery. Despite a reprehensible episode last year where Trump engaged in a cartoonish mockery of a journalist’s physical disability, the bulk of Trump’s attention has not been on the disability community. And this is exactly the danger. To those of us who have been watching closely, there is significant evidence that Trump is likely to make a play for the disability vote before the general election is over.

Already, his campaign has tried to reach out to parents of autistic children who buy into the long discredited myth that autism is caused by vaccinations. As far back as the second Republican primary debate, Trump linked autism to vaccines, going on to spout the long discredited idea that “autism has become an epidemic…Twenty-five years ago, 35 years ago, you look at the statistics, not even close. It has gotten totally out of control.” Never mind the overwhelming scientific consensus against vaccine causation of autism, or the significant evidence that shows that autism has always existed in the general population at comparable rates to the modern day. Never mind the despicable premise that subjecting children to the risk of death from fatal illness is preferable to even a fake risk of having an autistic child. Trump saw an electoral opportunity, and he took it.

With some results, it must be said. Just this past month, Bob Wright, the founder of Autism Speaks, tweeted his enthusiastic support for Trump. Since then, former Autism Speaks executive and failed Republican congressional candidate Elizabeth Emken joined the Trump campaign as a spokesperson, appearing on national television to defend Trump’s comments and claim the vaccine issue was still an open question. Trump has become the enthusiastic candidate of anti-vax parents, receiving endorsement from several blogs associated with the anti-vaccine wing of the autism parent movement.

Trump has also made symbolic gestures towards the veteran community, which includes a significant number of people with disabilities. While these have generally been rejected by the more respectable veterans organizations, he’s doing so because he sees an opportunity and a need. Having nearly won the Republican nomination by showcasing his willingness to trample upon those sectors of society that are weaker than he is, he knows that in order to win a general election he will need a fig leaf. An image as a candidate that stands up for disabled children and wounded warriors is a useful one to project. Every credit he gets in that column will help offset his reputation as a bully displaying his machismo by attacking immigrants, minorities and women. It’s important to deny him that opportunity.

The truth is simple: Donald Trump has an abysmal set of policy positions when it comes to disability. Nowhere is this more clear than in his own campaign website’s policy statement on health care. Here are four areas where even Trump’s meager written statements on policy issues threaten to make things worse for people with disabilities:

Donald Trump will Bring Back Health Insurers Discriminating Against People with Disabilities

“Completely repeal Obamacare. Our elected representatives must eliminate the individual mandate. No person should be required to buy insurance unless he or she wants to.”

When the Americans with Disabilities Act passed in 1990, people with disabilities were protected from most forms of discrimination – with one notable exception: insurance markets. From 1990 to 2014, when the Affordable Care Act came into full implementation, disabled Americans could be denied access to insurance coverage or charged exorbitant rates above the non-disabled population in order to access health insurance. The ACA changed that, banning pre-existing condition discrimination and requiring insurers to serve all who sought their services.

Early in the Republican primary, Trump claimed to want to protect people with pre-existing conditions from continued discrimination. But his health plan includes no such provision to do so – and promises to completely repeal the Affordable Care Act. What’s worse is Trump’s promise to eliminate the ACA’s mandate that individuals buy health insurance. While unpopular, the individual mandate is the only realistic way to make a ban on insurers discriminating against people with disabilities and other pre-existing conditions viable. The House Republican leadership knows this – which is why Speaker of the House Paul Ryan has recently called for bringing back pre-existing condition discrimination in the Republican alternative to the Affordable Care Act.

What the individual mandate – and the use of pre-existing condition discrimination before it – is designed to do is simple: ensure that people don’t wait till they’re already sick to buy insurance. Without it, the health insurance model doesn’t work. Insurance depends on large numbers of healthy, non-disabled people paying premiums against the risk of future illness. By planning to repeal the ACA, Trump shows that he will not keep in place President Obama’s policies protecting people with disabilities from discrimination in the insurance market. By promising to eliminate the individual mandate, Trump proves that he will provide no new such policy himself.

Donald Trump Proposes a Race to the Bottom in Commercial Insurance Benefits

“Modify existing law that inhibits the sale of health insurance across state lines. As long as the plan purchased complies with state requirements, any vendor ought to be able to offer insurance in any state. By allowing full competition in this market, insurance costs will go down and consumer satisfaction will go up.”

Allowing the sale of insurance across state lines is a pleasant-sounding policy idea that’s been rattling around conservative healthcare talking points for years now. It seems superficially positive – after all, increasing competition between insurance providers should serve to reduce prices. Unfortunately, the reality of this proposal would be to set off a race to the bottom for insurers to offer the least comprehensive benefit package possible.

Conservative commentators support the sale of insurance across states lines mainly because it would effectively render impossible meaningful state regulation over insurer benefit packages. State laws requiring insurers to cover particular benefits, like occupational therapy, pregnancy coverage, assistive technology or other health care services or devices would be rendered effectively meaningless by this proposal.

States which maintained these laws would only have their insurance purchased by those who required the benefit – leading to financial insolvency on the part of state health plans. (Once again, the fundamental premise of insurance requires some people to purchase plans that include benefits they don’t yet need and may never need.) Instead, the last plans standing would be those based out of states that allowed for cut-rate, minimal coverage, insufficient to meet the needs of children or adults with disabilities.

Such an approach would force millions of adults with disabilities and families with children with disabilities to limit their work effort in order to qualify for Medicaid or the Children’s Health Insurance Program. Ironically, one of the only things that could prevent such a negative trend is…the Affordable Care Act, which allows the federal government to set basic standards for what insurers must cover that apply nationally.

Donald Trump Promises to Devastate the Medicaid Program which Funds Most Disability Services

“Block-grant Medicaid to the states. Nearly every state already offers benefits beyond what is required in the current Medicaid structure. The state governments know their people best and can manage the administration of Medicaid far better without federal overhead. States will have the incentives to seek out and eliminate fraud, waste and abuse to preserve our precious resources.”

Once again, block-granting Medicaid to the states is a longstanding right-wing policy proposal. Currently, Medicaid works as a partnership between the state and the federal government. For every dollar that a state Medicaid program is willing to commit, the federal government will match it with a dollar of their own (and in most cases much more than a dollar, as the federal match rate is calculated based on the level of poverty within the state – poor states get more federal money). That means that as a state’s commitment increases, so does the federal governments.

This match is critical to ensuring that states are supported to do things like end waiting lists, expand access to critical services to seniors and people with disabilities and continue to maintain support for Medicaid during times of economic downturn. It also means that the federal government can offer incentives for states to change behavior in positive ways – for example, the Money Follows the Person program has helped tens of thousands of people with disabilities escape institutions and nursing homes by offering to pay a 100% match for the cost of their services for their first year in the community.

Unfortunately, Trump’s proposal to block-grant Medicaid would drastically change the nature of the Medicaid program. Instead of states receiving federal funds that match their own commitment, a block grant would lead to states receiving a preset amount of federal funding with no strings attached and no commitment to match additional state investments. This would mean that states would have relatively little incentive to act to cut waiting lists, expand services or maintain their programs when the economy and the state budget was suffering.

According to the Center on Budget and Policy Priorities, the block granting proposals included in the House Republican budget would cut Medicaid funding by $1 trillion over the next ten years. By 2026, funding would be at only two-thirds the level anticipated under existing law. As Medicaid represents the primary funder of aging and disability services in the United States, this is yet another example of the devastating impact Donald Trump’s election would have on disability policy.

Donald Trump Wants to Eliminate Critical Privacy Rights for People with Mental Illness

“Finally, we need to reform our mental health programs and institutions in this country. Families, without the ability to get the information needed to help those who are ailing, are too often not given the tools to help their loved ones. There are promising reforms being developed in Congress that should receive bi-partisan support.”

Over the last few years, as gun violence has become more prominent on the national agenda, many in the Republican party have looked for a scapegoat that can move attention away from gun control measures. They’ve found that in people with mental illness. The “promising reforms being developed in Congress” that Trump is referring to is the Murphy bill, H.R. 2646, the Helping Families in Mental Health Crisis Act.

This legislation would significantly limit the HIPAA privacy rights of people with psychiatric disabilities and would incentivize states to expand forced treatment. The bill also includes provisions that would expand institutionalization of people with psychiatric disabilities and make it harder for the federally-funded Protection and Advocacy rights protection program to provide them with legal representation to secure their civil rights. It’s likely that at some point in the general election, Trump will use this as a talking point to show his “support” for helping people with mental illness. It’s important that we not be tricked when he does.

There’s more to be written about this, to be sure. One can only imagine what the Donald would do to Social Security Disability Insurance or the cavalier attitude with which he would treat the educational rights of children with disabilities. But it’s important to start talking about this now, because the longer the race goes on, the longer Trump and his advisors will try and “evolve” him into a candidate that can win the general election. No doubt promises to be a champion for people with disabilities will play a part in that. When those promises come, be ready and be skeptical. Trump will want to buy the right to trample on the rest of America by offering a mess of pottage for the disability community. If we are so foolish as to accept, he will trample on us too.