The Equal Employment Opportunity Commission (EEOC) issued its final rule to amend the regulations that require federal agencies to engage in affirmative action for individuals with disabilities. These changes clarify the obligations that the Rehabilitation Act of 1973 imposes on federal agencies as employers that are over and above the obligation to not discriminate on the basis of disability. The regulation does not apply to the private sector or to state or local governments. This final rule will be effective on March 6, 2017.
On January 10, the Senate Judiciary Committee will hold a hearing on the nomination of Senator Jeff Sessions (R-AL) to be the Attorney General. The Attorney General is a cabinet level position in charge of the Department of Justice, which is responsible for enforcing federal civil rights laws, including the Americans with Disabilities Act. Visit the Committee web site for more information or to access live video the day of the hearing.
The U.S. Election Assistance Commission (EAC) is gathering feedback from voters with disabilities about their experiences during the election. Sharing experiences will help the EAC take stock of the 2016 election process, determine what went well, and identify areas for continued improvement to ensure that all people with disabilities are able to vote privately and independently. Please send an email to firstname.lastname@example.org to share your story. All positive and negative feedback is welcome and encouraged.
The Department of Justice has issued a technical assistance document instructing states on how to ensure that people with disabilities have access to polling places. The document is not a formal legal interpretation, but does provide advice on how to remedy certain accessibility barriers. It contains a checklist written to be understandable by people who do not have technical expertise.
The National Resource Center on Supported Decision Making is sponsoring a webinar series, From Theory to Practice. On Wednesday, May 25 at 1:00 pm, EDT, the topic will be Supported Decision-Making in Education. Recent studies have found that educational professionals are the most common source of referrals for guardianship. This webinar will feature attorneys and advocates who have worked to include Supported Decision-Making and self-determination into school curriculums. They will tell stories of triumph and struggle that are applicable to professionals across the country. The presenters are Morgan K. Whitlatch, Legal Director at Quality Trust for Individuals with Disabilities and Project Director of the National Resource Center of Supported Decision-Making and Laura Smith Butler, Research Policy Administrator of National Core Indicators at the Human Development Institute, University of Kentucky. Register here.
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.