On May 24, the Department of Health and Human Services (HHS) released an advance copy of a proposed rule to weaken its regulations implementing Section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health programs and activities receiving federal financial assistance. The proposed rule would narrow protections for all people experiencing discrimination under the law, eliminate protections for LGBTQ people, and roll back protections for people with limited English proficiency, among other impacts. The Arc is reviewing the proposed rule and will provide further analysis.
On March 7, a Federal District Court judge overturned the Education Department’s (ED) decision to delay implementation of the 2016 significant disproportionality rule because it was “arbitrary and capricious” and the department “failed to provide a reasoned explanation” for its decision. The requirement for states and school districts to collect and report data on significant disproportionality, and take certain action if it is found, was added to the Individuals with Disabilities Education Act (IDEA) in 2004. However, since that time, few states and school districts have reported any such significant disproportionality. In response to this problem, documented in a 2013 study by the Government Accountability Office (GAO), the Department of Education issued regulations in 2016 to require a standard methodology to calculate significant disproportionality on the basis of race in identification, placement, and discipline. In 2018, the ED announced it would delay implementation of the rule. The Arc is pleased with the court ruling, which will ensure states and school districts move forward with implementation.
Senators Orrin Hatch (R-UT) and Tim Kaine (D-VA) have introduced the “Fair Housing Improvement Act of 2018” (S. 3612). The bill would expand the Fair Housing Act’s protections to prohibit housing discrimination based on source of income or veteran status. Under the bill, source of income includes a Section 8 housing voucher or other form of federal, state, or local housing assistance; Social Security or Supplemental Security Income; income received by court order, including spousal support and child support; and payment from a trust, guardian, or conservator. The bill has been referred to the Senate Committee on Banking, Housing, and Urban Affairs. The Arc strongly supports this legislation.
On October 10, the Department of Homeland Security (DHS) issued a proposed rule that will greatly expand the what is known as the “public charge” test. The public charge test allows for denying entry to or permanent residency in the United States based upon the likelihood an individual will need government benefits. Currently, the only benefits considered are cash benefits such as Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), comparable state and local programs, and institutional long-term care (including through Medicaid). Under the proposed rule, an individual could be considered a public charge for using or applying for a broader range of benefits including most Medicaid programs, housing assistance, or food assistance. The Arc opposes the proposed rule because it will result in discrimination against legal immigrants with disabilities. Read The Arc’s full statement here.
On June 29, the Department of Education announced that it would delay the regulations that were set to take effect this month to address racial/ethnic disproportionality in the identification, placement, and discipline of students served by the Individuals with Disabilities Education Act (IDEA). The requirement for states and school districts to collect and report data on significant disproportionality, and take certain action if it is found, was added to the IDEA in 2004. However, since that time few states and school districts have reported any such significant disproportionality. In response to this problem, documented in a 2013 study by the Government Accountability Office (GAO), the Department of Education issued regulations in 2016 to require a standard methodology to calculate significant disproportionality. In February, the Department solicited public comment on a proposed delay of these regulations as part of President Trump’ Executive Order 13777, “Enforcing the Regulatory Reform Agenda.” Nearly 400 comments were submitted in response with the vast majority opposing the delay, including comments from The Arc and from school districts already in the implementation process. The Department cited concerns about creating incentives for quotas and the need to study the issue further as justification for postponement. The Arc is very disappointed with the Department’s action and remains very concerned about the disproportionate numbers of minority students being over identified with certain types of disabilities, placed in segregated settings, and suspended and/or expelled.
Last week, the Department of Labor (DOL) announced that it has entered into a conciliation agreement to resolve allegations of disability discrimination by an American Job Center in Burnsville, Minnesota. As noted in the press release, the DOL Civil Rights Center investigated a complaint claiming that the Dakota County Burnsville WorkForce Center required a customer who was perceived to have a disability to attend an orientation for a vocational rehabilitation program before it would permit her to receive services that were not limited to individuals with disabilities. While not acknowledging that it violated the law, the WorkForce Center has agreed, among other provisions, that it will not automatically refer all customers with disabilities to disability-specific services, will not require participation in such services as a condition of receiving any services that are not disability-specific, and will conduct individualized assessments to determine whether a particular customer may be qualified for referral to disability-specific services.
The Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor announced a fifth and final webinar on March 6, 2014, at 2 p.m., that will focus on what contractors and subcontractors must do to meet their obligations under the recently released Section 503 final rule. OFCCP also has posted new Section 503 resources for federal contractors on its website. Section 503 prohibits discrimination in employment on the basis of disability by federal contractors and subcontractors. It sets a utilization goal for federal contractors to ensure that 7% of employees be individuals with disabilities.
The Equal Employment Opportunity Commission (EEOC) released data for fiscal year 2013 with breakdowns by state and by resolution of complaint for the 93,727 charges (complaints) of workplace discrimination filed with the agency. In FY13, there were 25,957 complaints of disability discrimination in employment which represented 27.7% of all discrimination complaints filed with EEOC and a 1.2% increase over FY 2012.
The Departments of Justice (DOJ) and Education (ED) jointly released a school discipline guidance package for schools to ensure that discipline policies do not discriminate against racial or ethnic groups or students with disabilities and help school leaders find alternatives to excluding students from classrooms or schools. The guidance materials cite data from the Civil Rights Data Collection that shows students with disabilities are disproportionately impacted by suspensions and expulsions.
Some of the major findings included data showing that students served by IDEA [the Individuals with Disabilities Education Act] represent 12% of students in the country, they make up 19% of students suspended in school, 20% of students receiving out-of-school suspension once, 25% of students receiving multiple out-of-school suspensions, 19% of students expelled, 23% of students referred to law enforcement, and 23% of students receiving a school-related arrest. Additionally, students with disabilities (under the IDEA and Section 504 statutes) represent 14% of students, but nearly 76% of the students who are physically restrained by adults in their schools.
The guidance emphasizes positive environments, prevention efforts, clear, appropriate, and consistent expectations and consequences, and continuous efforts to ensure equity. It highlights schools’ obligations under civil rights laws and provides numerous resources for their use.
Last Friday, the House of Representatives voted 261-157 to allow health insurers to continue to sell policies that do not meet the standards established by the Affordable Care Act (ACA) for consumer protections and comprehensive benefits. While the House has voted numerous times to repeal all or part of the ACA, this vote received more bipartisan support than previous votes. The ACA’s consumer protections included numerous provisions to prevent discrimination against people with health conditions and disabilities and to ensure fair health insurance premiums for people with health conditions. The law required health plans to provide a minimal level of benefits. The intent of these reforms was to make insurance sold in the individual and small group market more like plans offered by employers. It is not likely that the Senate will take up the legislation at this time, but several Senators have introduced similar bills. The Administration has threatened a veto.
Before the vote, the Department of Health and Human Services announced that it would allow states and insurance companies to renew plans that did not meet the new consumer protections and essential health benefit provisions for a transition period of one year. Insurers would not be allowed, as they would in the House plan, to sell new polices that do not meet the standards. The Administration announced the policy in a letter to state insurance commissions sent on Thursday, November 14th. States and insurance companies will decide if they will use this flexibility to continue to sell plans that do not meet the ACA minimal consumer protection and essential health benefit standards.