On Friday, May 13, HHS released an advanced notice of a final ruleimplementing Section 1557 of the Affordable Care Act (ACA). The final rule clarifies the responsibilities of covered providers and insurers regarding non-discrimination on the basis of race, color, national origin, sex, age, or disability. It applies to Health Insurance Marketplaces and every program or activity administered by HHS, with the exception of Medicare Part B. The Arc will be reviewing the regulations and will provide additional analysis.
The Equal Employment Opportunity Commission (EEOC) is issuing two final rules making changes to the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) regulations as they relate to employee wellness programs. The ADA regulation changes provide guidance on the extent to which employers may use incentives to encourage employees to participate in wellness programs that ask them to respond to disability-related inquiries and/or undergo medical examinations. The GINA regulation addresses the extent to which an employer may offer an inducement to an employee for the employee’s spouse to provide information about the spouse’s manifestation of disease or disorder as part of a health risk assessment (HRA) administered in connection with an employer-sponsored wellness program. The regulations will be published in the Federal Register on May 17 and The Arc will provide additional analysis.
In January, 2016, President Obama announced a set of “New Executive Actions to Reduce Gun Violence and Make Our Communities Safer.” As part of this initiative, the Administration proposed to increase mental health treatment by $500 million and to take several steps to increase reporting to the National Instant Criminal Background Check System (NICS). The NICS is a federal database used to help identify people who are prohibited by law from shipping, transporting, possessing, or receiving a firearm. The law and regulations define who is subject to the mental health prohibition, including individuals who have been:
- Involuntarily committed to a mental institution for reasons such as mental illness or drug use;
- Found incompetent to stand trial or not guilty by reason of insanity; or
- Otherwise determined by a court, board, commission, or other lawful authority to be a danger to themselves or others or unable to manage their own affairs, as a result of mental illness or “marked subnormal intelligence”.
Last Friday, April 29, the White House announced that the Social Security Administration will soon publish a proposed rule to report information to the NICS about individuals who have been found eligible for Social Security or Supplemental Security Income (SSI) disability benefits based on a mental impairment “listing” and who have a representative payee. This would include many beneficiaries with intellectual disability and autism who have representative payees.
The Arc is concerned about the well-being of all Americans. As an organization that protects and promotes the human rights of people with intellectual and/or developmental disabilities (I/DD), The Arc is also concerned about the potential negative impact on people with disabilities and their families. The Arc’s concerns include the likelihood that the proposed rule, if implemented, could deter some people with mental impairments, including people with I/DD, from seeking access to Social Security and SSI disability benefits for fear of being added to the NICS or having their privacy violated. The Arc will be closely reviewing SSA’s proposed rule and submitting comments expressing our concerns.
On April 25, the FDA published a Proposed Rule in the Federal Register banning the use of electrical stimulation devices (ESD) to treat aggressive or self-injurious behavior. In considering the ban, the FDA determined that the risks of ESDs outweighed any potential benefits. The FDA “determined, on the basis of all available data and information, that state-of-the art treatments for SIB [self-injurious behavior] and AB [aggressive behavior] are positive-based behavioral approaches, sometimes alongside pharmacotherapy, as appropriate, and do not include ESDs. We focused on data in the scientific literature, current clinical practices, and information about the evolution of treatments for SIB and AB.”
These devices are believed to be currently in use by only one provider in the country, the Judge Rotenberg Educational Center (JRC) in Canton, MA. The FDA’s proposed rule provides an extensive review of the use of ESDs by JRC and the opposition to it by state agencies in Massachusetts and New York, as well as the United Nations and the U.S. Department of Justice. An Advisory Panel recommended the ban in 2014. The FDA is proposing that the ban apply to devices already in use, as well as devices sold or commercially distributed in the future, although it is willing to allow for some period of transition for some individuals. The agency notes that for “certain individuals currently subject to ESDs, immediate cessation could possibly result in a significant increase of SIB or AB before appropriate alternative therapies are in effect, and a more gradual reduction toward complete removal may be necessary for some patients, especially those who have been subject to ESDs for a considerable amount of time.” The FDA welcomes comment on how long those transitions may take.
Comments on the proposed regulation are due May 25, 2016. The Arc has been involved in advocating against the use of these devices for decades and applauds this proposed rule.
On February 20, 2016 a funeral service was held for Supreme Court Justice Antonin Scalia. Justice Scalia is mourned by the nation and The Arc. Justice Scalia served on the Supreme Court for nearly 30 years and his death leaves the Court with only eight Justices, rather than nine. The process for appointing a new Justice is clear in the Constitution. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.”
Issues important to people with disabilities often come before the U.S. Supreme Court. They span such important concerns as rights under the Americans with Disabilities Act, the right to fair, non-discriminatory treatment in health care settings, and the death penalty. In fact, The Arc has submitted an amicus brief in a death penalty case, Ortiz v. United States, involving an individual with intellectual disability, in which the Court has not yet decided whether to hear arguments. Due to the Supreme Court’s important role as final decision maker in cases involving laws of Congress and interpreting the Constitution, it is important that the Court be fully functioning. The Arc will be observing the appointment and confirmation process with great interest.
Greyhound Lines Inc. has entered into a settlement with the U.S. Department of Justice over alleged violations of the Americans with Disabilities Act (ADA), including failure to maintain lifts and other accessibility features, failure to assist passengers with disabilities getting on and off the bus, and refusing travel reservations made by people with disabilities. The settlement includes a $75,000 fine and $300,000 in compensation to passengers. Additionally, Greyhound has agreed to improve its online booking system and conduct mandatory ADA training.
After years of negotiation, the National Disability Rights Network (NDRN) announced last week they had reached a settlement with the Wage and Hour Division (WHD) of the U.S. Department of Labor. The agreement centers on Section 14(c) of the Fair Labor Standards Act, a portion of the statute that allows organizations to pay below federal minimum wages to individuals whose earning or productive capacity is affected by a physical or mental disability. More specifically, the agreement:
- Strengthens the flow of information between NDRN, the Protection and Advocacy Agencies (P&As), and the WHD regarding potential violations of subminimum wage certificates by employers;
- Leverages P&A resources, knowledge, and expertise concerning disability issues in each particular jurisdiction, such as locations of suspected wage and hour violations; and
- Supports the sharing of information concerning laws and regulations of common interest among NDRN, the P&As, and the WHD.
Should you wish to read more about this important settlement, please do so here.
Two years ago, in recognition of the necessity of curb ramps for people with disabilities, the Department of Justice and the Department of Transportation published their 2013 DOJ/DOT Joint Technical Assistance. This text provides direction on the appropriate placement of curb ramps when streets, roads, or highways undergo resurfacing. Since its release, both agencies have received numerous public inquiries on the matter. In an effort to address these concerns, last week, the agencies released a supplemental technical assistance document entitled “Questions and Answers: Supplement to the 2013 DOJ/DOT Joint Technical Assistance on the Title II of the Americans With Disabilities Act Requirements To Provide Curb Ramps when Streets, Roads, or Highways are Altered through Resurfacing”. If you would like to read this new document, you may do so here. For clarity purposes, it is recommended that these reports be reviewed together.
On Wednesday, December 2, the Department of Justice issued a compliance brief to assist private businesses as well as state and local governments in implementing accessible parking requirements. These guidelines are applicable to all future parking lots as well as restriped lots. Issues addressed include width requirements, minimum number of accessible and van-accessible spaces required, and distance from entrance to facility.
The Department of Health and Human Services has issued a proposed rule to implement protections against discrimination in access to health care. The rule would extend non-discrimination provisions to health insurance plans offered in health care market places created under the Affordable Care Act and would expand non-discrimination provisions already applicable to entities receiving funds from programs such as Medicare and Medicaid. Insurers and providers would be required to provide people with disabilities with reasonable modifications, including sign language interpreters and other communication aids, and accessible information technology. Public comments are due on November 6. The Arc will be working with other disability organizations to submit comments. More information can be found on the Department of Health and Human Services website.