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November 2011

*** LEGISLATIVE UPDATE *** 

 

ABLE Act to be Reintroduced November 15th - Disability Stakeholders Meeting to Review Bill Planned for November 7th

 

After several months of intense negotiations and hard work behind the scenes, the Congressional champions of the Achieving a Better Life Experience Act are moving forward with plans to reintroduce a new version of the legislation for the 112th Congress on November 15th. The purpose of the legislation remains consistent: to encourage and assist individuals and families in saving private funds for the purpose of supporting individuals with disabilities to maintain health, independent, and quality of life. In creating ABLE Accounts, the legislative intent is to provide secure funding for disability-related expenses on behalf of designated beneficiaries with disabilities that will supplement, but not supplant, benefits provided through private insurances, the Medicaid program, the supplemental security income program, the beneficiary's employment, and other sources.

 

There are some major differences, however, in the construct of the legislation from previous Congresses. The new ABLE Act for the 112th Congress will create a new subsection (f) ABLE Account within Section 529 of the Internal Revenue Code and has been re-drafted to follow all the requirements and regulations of a traditional 529 qualified tuition program. The new ABLE Act includes the following characteristics:

  • A new savings vehicle for individuals and their families that are easy to open and available in any state
  • Identical annual contribution parameters as the former bill (gift tax rules apply after first $13,000)
  • Similar tax-free treatment of accounts as in earlier versions (Income earned grows tax- free, withdrawals for qualified disability expenses are tax-free)
  • Same reporting requirements apply as to a traditional 529
  • Choice between an ABLE account or a traditional 529 qualified tuition program. (multiple ABLE accounts or multiple 529 plans still allowed)
  • Rollovers allowed from an ABLE account to traditional 529 if beneficiary is no longer deemed disabled. (all other 529 rollovers apply to ABLE accounts)
  • Rollovers allowed to other family member's ABLE account or their traditional 529

ABLE Accounts will differ from traditional 529 accounts in what the money can be spent on. Qualified Disability Expenses that ABLE Accounts can be used to pay for include education, housing, transportation, employment support, health prevention & wellness, assistive technology, and other miscellaneous expenses.

 

In terms of eligibility, any individual qualifies for an ABLE Account who is receiving, deemed to be, or treated as receiving supplemental security income benefits or disability benefits under Title II of the Social Security Act. Additionally, individuals are also deemed eligible if they have a medically determined physical or mental impairment that results in marked and severe functional limitations and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 month or is blind (contingent upon written confirmation of the individual's diagnosis signed by a physician).

 

The new version of the ABLE Act will also continue to ensure that resources saved within the ABLE Act do not jeopardize the eligibility of the individual for SSI or Medicaid. When the assets in an ABLE account reach $100,000, if the beneficiary is receiving Supplemental Security Income (SSI) benefits, any monthly SSI benefits will be placed in suspension. Once the assets in the ABLE account drop back below $100,000, the SSI benefit suspension ceases and any SSI benefit resumes. Additionally, the beneficiary will not have to reapply for SSI benefits once the account drops back below the $100,000 threshold. Under no circumstance will anyone with an ABLE account who is currently receiving Medicaid benefits lose their benefits - even if their SSI benefits are suspended. The beneficiary will never lose their eligibility for Medicaid based on the assets held in their ABLE account.

 

In the event the qualified beneficiary dies (or ceases to be an individual with a disability) with remaining assets in an ABLE account, the assets in the ABLE Account are first distributed to any State Medicaid plan that provided medical assistance to the designated beneficiary.The amount of any such Medicaid payback is calculated based on amounts paid by Medicaid after the creation of the ABLE Account.

 

The new version of the ABLE Act will be introduced simultaneously on November 15th in both chambers of Congress by U.S. Representative Ander Crenshaw (R-FL) and in the U.S. Senator Robert Casey (D-PA). Advocates are strongly encouraged to reach out to their Congressional leaders now to try and generate as many original cosponsors prior to the bill's introduction.   In the 111th Congress, the ABLE Act had 203 cosponsors in the House (H.R. 1205) and 25 cosponsors in the Senate (S. 493). Congressional offices interested in becoming an original cosponsor of the ABLE Act for the 112th Congress should immediately contact either Jennifer Debes in Representative Ander Crenshaw's office (Jennifer.Debes@mail.house.gov) or Jennifer McCloskey in Senator Casey's office (Jennifer_McCloskey@casey.senate.gov). Additionally, a meeting will be hosted by the Congressional champions of the ABLE Act for disability policy stakeholders to answer additional questions about the legislation on November 7th at 10:00 a.m. at the Capitol Visitors Center (SVC 209). Photo ID is required to enter the building.

Introduction of Fair Wages for Workers with Disabilities Act (H.R.3086) Gains Early Bipartisan Support

 

On October 4th, 2011, U.S. Representatives Cliff Stearns (R-FL) and Tim Bishop (D-NY) introduced the Fair Wages for Workers with Disabilities Act of 2011 (H.R. 3086). If enacted, the Fair Wages for Workers Act of 2011 bill would phase out Section 14(c) of the Fair Labor Standards Act (FLSA) of 1938, which currently allows employers holding special wage certificates to pay their workers with disabilities less than the federal minimum wage; this bill would effectively end wage discrimination against workers with disabilities. The practice of paying workers with disabilities less than the Federal minimum wage dates back to the late 1930s, when there were virtually no employment opportunities for workers with disabilities in key industries dominating the American economy (predominately agriculture and manufacturing sectors).

 

The legislation proposes a phase out over a three year period of the use of subminimum wages for workers with disabilities. The legislation enjoys strong bipartisan support and has over fourteen cosponsors thus far. The National Federation of the Blind, partners of the Collaboration to Promote Self-Determination, and twelve of the fourteen national organizations who comprise the National Disability Leadership Alliance's steering committee have all endorsed the legislation.

As Joint Super Committee Deadline Looms Forward, Disability Policy Advocates Provide Thoughtful Feedback About Opportunity for Systems Reform

As the November 23rd deadline for a proposal by the Joint Super Committee (JSC) to reduce the nation's federal deficit by at least $1.2 trillion quickly approaches, mixed feelings continue to persist about whether or not the JSC will be successful in building a comprehensive bipartisan proposal that adequately addresses the government's current financial woes. The potential implications of federal deficit reduction strategies that might be proposed is significant, but the JSC process also creates a tremendous opportunity for Congress to commit to true reformation of the nation's entitlement programs.

 

The continued slowness of reforming public policy and federal programs to reflect the changing trends and expectations of citizens with significant disabilities and their families have had major financial implications for the government, resulting in an estimated $357 billion in federal expenditures in FY2008 alone to assist working-age adults with disabilities. This represents 12 percent of all federal spending. Despite this significant federal and state investment of over $428 billion in total annual spending, services provided to those with disabilities are often fragmented, confusing, and ultimately less effective than they could be.[1] The majority of these funds are focused on providing health care (54.9%) and income maintenance (44.6%), while fewer than 2% of all federal investments in individuals with significant disabilities are focused on education, training and employment needs.[2]These funds have resulted in increased cyclical dependence, disincentives to optimize self-sufficiency, and continual segregation for thousands of Americans with significant disabilities.[3]

 

The Joint Super Committee process may provide the impetus for a meaningful federal policy dialogue on comprehensive system reform. In recent months, NDI has participated in a number of informational meetings with key Congressional staff working for the JSC to educate them on current trends in federal expenditures related to children and working age adults with disabilities. The meetings were also intended to promote a commitment among Congressional leadership to focus on a comprehensive reformation of the nation's key entitlement programs impacting citizens with disabilities within the next 36 months. The discussions provided an opportunity for NDI and other disability policy organizations to offer clear principles focused on realigning publicly financed supports toward supporting optimal independence and self-sufficiency of individuals with disabilities. At the request of several members of the Joint Super Committee, NDI is working with several partners, including the Collaboration to Promote Self-Determination, to outline specific policy recommendations for realigning Federal investments in such a way that promotes greater economic stability for the future of Federal entitlement programs while simultaneously improving the employment status and standards of living of citizens with significant disabilities so as to optimize their self-sufficiency.

 

On November 3rd, a bipartisan group of 100 Members of Congress sent a letter to the leadership of the Joint Super Committee, calling for $4 trillion in deficit reduction and supporting the JSC in putting all options on the table (including mandatory and discretionary spending as well as tax revenues). A copy of the letter and list of signers (60 Dems, 40 Republicans) is below:

 

- - - - - - - - - - - - - - 

 

Wednesday, November 2, 2011

 

The Honorable Jeb Hensarling The Honorable Patty Murray

Co-Chair, Joint Select Committee on Co-Chair, Joint Select Committee on Deficit Reduction Deficit Reduction

129 Cannon House Office Building 448 Russell Senate Office Building

Washington, DC 20515 Washington, DC 20510

 

Dear Congressman Hensarling, Senator Murray, and Members of the Joint Select Committee on Deficit Reduction,

 

We write to you as a bipartisan group of representatives from across the political spectrum in the belief that the success of your committee is vital to our country's future. We know that many in Washington and around the country do not believe we in the Congress and those within your Committee can successfully meet this challenge. We believe that we can and we must.

 

To succeed, all options for mandatory and discretionary spending and revenues must be on the table. In addition, we know from other bipartisan frameworks that a target of some $4 trillion in deficit reduction is necessary to stabilize our debt as a share of the economy and assure America's fiscal well-being.

 

Our country needs our honest, bipartisan judgment and our political courage. Your committee has been given a unique opportunity and authority to act. We are prepared to support you in this effort.

 

Sincerely,

 

          
1. Andrews (D-NJ)
35. Harper (R-MS)

69. Polis (D-CO)

2. Barrow (D-GA)

36. Higgins (D-NY)

70. Price, David (D-NC)

3. Bass (R-NH)

37. Himes (D-CT)

71. Quigley (D-IL)

4. Bishop, Tim (D-NY)

38. Hoyer (D-MD)

72. Rahall (D-WV)

5. Boren (D-OK)

39. Kelly, Mike (R-PA)

73. Reed, Tom (R-NY)

6. Boswell (D-IA)

40. Kildee (D-MI)

74. Ribble (R-WI)
7. Cardoza (D-CA)

41. Kind (D-WI)

75. Roe (R-TN)

8. Carney (D-DE)

42. King, Peter (R-NY)

76. Rooney (R-FL)
9. Carter, John (R-TX)

43. Kingston (R-GA)

77. Ross, Mike (D-AR)

10. Castor (D-FL)

44. Larsen (D-WA)

78. Rothman (D-NJ)

11. Chandler (D-KY)

45. Larson (D-CT)

79. Ruppersberger (D-MD)

12. Cleaver (D-MO)

46. LaTourette (R-OH)

80. Schiff (D-CA)

13. Coble (R-NC)

47. Lipinski (D-IL)

81. Schrader (D-OR)

14. Cole (R-OK)

48. Loebsack (D-IA)

82. Schwartz (D-PA)

15. Connolly (D-VA)

49. Long (R-MO)

83. Sewell (D-AL)

16. Cooper (D-TN)

50. Lummis (R-WY)

84. Shuler (D-NC)

17. Costa (D-CA)

51. Maloney (D-NY)

85. Simpson (R-ID)

18. Crenshaw (R-FL)

52. Marino (R-PA)

86. Smith, Adam (D-WA)

19. Cuellar (D-TX)

53. Matheson (D-UT)

87. Stutzman (R-IN)

20. Davis (D-IL)

54. McIntyre (D-NC)

88. Sullivan (R-OK)

21. DeFazio (D-OR)

55. McKinley (R-WV)

89. Terry (R-NE)

22. DeGette (D-CO)

56. Meehan (R-PA)

90. Thompson, Mike (D-CA)

23. Dent (R-PA)

57. Meeks (D-NY)

91. Tsongas (D-MA)

24. Dicks (D-WA)

58. Moran (D-VA)

92. Turner, Bob (R-NY)

25. Dold (R-IL)

59. Nunes (R-CA)

93. Visclosky (D-IN)

26. Duncan (R-TN)

60. Owens (D-NY)94. Walz (D-MN)
27. Emerson (R-MO)

61. Pascrell (D-NJ)

95. Watt (D-NC)

28. Fattah (D-PA)

62. Paul, Ron (R-TX)

96. Welch (D-VT)

29. Fitzpatrick (R-PA)

63. Perlmutter (D-CO)

97. Whitfield (R-KY)

30. Fortenberry (R-NE)

64. Peters (D-MI)

98. Wolf (R-VA)

31. Garamendi (D-CA)

65. Peterson (D-MN)

99. Yarmuth (D-KY)

32. Gosar (R-AZ)

66. Petri (R-WI)

100.Young (R-AK)

33. Grimm (R-NY)

67. Pingree (D-ME)

 

34. Hanna (R-NY)

68. Platts (R-PA)

 


[1] Livermore, Stapleton and O'Toole (2011, Health Affairs)

[2] Livermore, Stapleton and O'Toole (2011, Health Affairs)

[3] Livermore, Stapleton and O'Toole (2011, Health Affairs)

 

 

Recent Congressional Hearing on State of Supplemental Security Income Benefits for Children Creates Anxiety Among Disability Policy Advocates

A recent hearing of the House Ways & Means Subcommittee on Human Resources to evaluate the status of Supplemental Security Income (SSI) benefits for children on October 27th created anxiety among many disability policy advocates, particularly given the timing of the hearing with respect to current deliberations of the Joint Super Committee. Witnesses included the U.S. Government Accountability Office (GAO) and other experts on SSI benefits for children. 

 

The SSI program supports adults who are aged or unable to work due to disability with monthly cash benefits of up to $674 per person in 2011. The program also provides monthly payments to disabled children. Currently, there are 1.2 million children receiving SSI benefits at an annual cost of $10 billion, not including Medicaid expenses.

 

In November 2010, The Boston Globe ran a three-part series on increases in children's payments under the Supplemental Security Income program, identifying two areas of concern: a lack of program integrity efforts by the Social Security Administration (SSA) and allegations that psychotropic drugs may be improperly prescribed to children with certain mental and behavioral impairments (especially Attention Deficit Hyperactivity Disorder) in order to improve their chances of collecting SSI disability payments.

 

The series prompted the House Ways & Means Subcommittee on Human Resources to request a GAO study to review: trends in the rate of children receiving SSI benefits due to ADHD, depression, and other mental impairments; the role of medical evidence, such as the presence of medication, in SSA disability determinations; and the impact of SSA's not completing continuing disability reviews on current recipients of SSI benefits. While final results and recommendations from GAO are not expected until 2012, the hearing included testimony from GAO on their preliminary findings as well as from other experts on SSI benefits for children, among related issues.

 

In his opening statement, Subcommittee Chairman Geoff Davis (R-KY) stated, "The SSI program provides financial support for families with a disabled child.  But as currently constructed, the program makes no effort to ensure that benefits are used to help children overcome their disabilities and lead productive lives. As a result, too many children on SSI drop out of school, experience poor employment outcomes, and continue receiving year after year of disability payments as adults. This hearing will review how the SSI program is currently coming up short and possible remedies." 

Organizations who would like to provide feedback to the Committee on this topic are encouraged to submit written comments electronically, which are due by the close of business on Thursday, November 10, 2011. Directions for submitting written comments online can be obtained at http://waysandmeans.house.gov/Calendar/EventSingle.aspx?EventID=265128.

 

 

 

**REGULATORY UPDATE**

 

CMS Continues to Boost State Incentives to Increase Focus on Home & Community-Based Services for Working Age Adults with Disabilities 

 

CMS is continuing to optimize its regulatory authority to incentivize state Medicaid programs to realign resources and prioritize home- and community based services. The Community First Choice state plan option, which was authorized as part of the Affordable Care Act to provide home- and community-based services in Medicaid Section 1915(k), became available October 1, 2011. States that take up this option receive a 6 percentage point increase in federal matching payments (FMAP) for costs associated with the program. States currently have an option to provide personal care services through their Medicaid plans, and 35 states currently do that. This option expands on those programs. It allows states to open eligibility to people at higher incomes and to offer additional services. The increased federal matching payment is a strong incentive for states to take up the option and expand home- and community-based care services in Medicaid. The option could pave the way for even broader expansions of home- and community-based services in Medicaid.

 

Eligibility: States may provide services to Medicaid-eligible individuals whose income does not exceed 150% of poverty. States that have set a higher Medicaid income eligibility level for those who require institutional care can use that higher income level. There must be a state determination that, but for the provision of home- and community-based services, the individual would need nursing facility care.

 

Benefits: Home and community attendant services provided in a community setting. Services for each participant must be based on an individual care plan developed through an assessment of the individual's functional need. No restrictions on state program expenditures.

 

Required Services: States taking up this option must provide the following services:

  • Assistance with activities and instrumental activities of daily living (ADLs and IADLs) and health-related tasks, including hands-on assistance, cuing, and supervision.
  • Acquisition, maintenance, and enhancement of skills to complete those tasks.
  • Back-up systems, such as beepers, that will ensure continuity of care and support.
  • Training on hiring and dismissing attendants, if desired by the individual.

Optional Services: States may also provide the following additional services: 

  • Transition costs, such as the first month's rent; rent or utility deposits; and kitchen supplies, bedding, and other necessities for an individual to move from a nursing facility to the community.
  • Coverage for additional items noted in an individual's care plan that will increase independence or substitute for personal assistance.

Services that are not included as part of the Community First Choice state option are: home modifications, room and board, medical supplies, and assistive technology (except items that would meet the definition of back-up systems to ensure care continuity).

 

Providers: Services can be provided under an agency or other model. Family members, as defined by DHHS, can provide services. Providers are to be selected and services controlled by the individual or individual's representative to the maximum extent possible. States must ensure that regardless of care model, services are provided in accordance with the Fair Labor Standards Act.

 

Requirements for states: States who wish to take advantage of the Community First Choice state option must also make the following infrastructure reforms - 

  • Service availability: States must make services available statewide, with no caps or targeting by age, severity of disability, or any other criteria. Services must be provided in the most integrated setting appropriate, given an individual's needs.
  • Maintenance of Effort: During the first year, a state must maintain or exceed its prior year Medicaid expenditure level for optional services provided to elderly individuals and people with disabilities.
  • Implementation Council: States must establish a Development and Implementation Council to collaborate on program design and implementation. The Council must have majority membership of the elderly, people with disabilities, or their representatives.
  • Quality Systems and Data: States must develop quality systems that incorporate consumer feedback and monitor health measures. The state must submit program reports to the Department of Health and Human Services.

Additionally, on September 12th, CMS released guidance on the Balancing Incentive Program.  The Balancing Incentive Program (BIP), authorized by Section 10202 of the Affordable Care Act, enables CMS to award additional federal funds to States to provide financial incentives to increase access to non-institutionally based long-term services and supports (LTSS).  Effective October 1, 2011, the Balancing Incentive Program offers a targeted increase in the Federal Medical Assistance Percentage (FMAP) to States that undertake the following structural reforms to increase access to non-institutional LTSS. 

 

The increased matching payments are tied to the percentage of a State's non-institutional LTSS spending, with lower FMAP increases going to States that need to make fewer reforms.  States in which 25-50% of the total expenditures for Medicaid long-term services and supports (LTSS) are for non-institutionally-based LTSS are eligible for a 2% enhanced FMAP. States in which less than 25% of total expenditures for Medicaid LTSS are for non-institutionally based LTSS, are eligible for 5% enhanced FMAP. 

 

Total funding is not to exceed $3 billion in federal matching payments.  The funding is available once CMS approves a State's application.  The funding is available beginning October 1, 2011 and ending September 30, 2015 or until the full provision of the $3 billion has been expended. Read the Balancing Incentive Program State Medicaid Director Letter and Application. All questions regarding this opportunity, as well as all application materials, should be sent to BalancingIncentiveProgram@cms.hhs.gov.

National Disability Employment Awareness Month Highlights Value of Disability in the Workforce and Challenges Society to Hold High Expectations for Prospective Workers with Disabilities

 

October marked National Disability Employment Awareness Month (NDEAM), and this year's theme focused on improving opportunities that lead to good, meaningful jobs and a secure economic future for people with disabilities. The awareness campaign also emphasized the dividend we all gain by increasing employment opportunities for people with disabilities, and that these profits are achieved only through wise investment. 

 

The U.S. Department of Labor's Office of Disability Employment Policy (ODEP) utilized the month to challenge not only employers but the public at large to "rise to the occasion" in helping break down the misperceptions about workers with disabilities. As DOL Assistant Secretary for ODEP Kathy Martinez stated in the NDEAM blog on October 19th:

 

"The responsibility rests not just with those writing the paychecks...it rests with all of us.  People with disabilities must understand the intrinsic value of work and the important part they play in America's future educational and economic success.  Our nation's young people with disabilities must grow up with the expectation that they can work and assumption that they will.  And parents, educators and others must affirm this by cultivating a clear vision of work and community participation.  And of course, employers must foster inclusive work environments welcoming of the skills and talents of all qualified employees including those of us with disabilities."

 

Although the nation's disability employment statistics for October were not available in time for this issue of the NDI Washington Insider, the following chart outlines the statistics for September 2011.


U.S. DISABILITY EMPLOYMENT PROFILE

STATISTIC

WITH DISABILITY

WITHOUT DISABILITY

Sept. 2010

Sept. 2011

Sept. 2010

Sept. 2011

% of population in the labor force

21.6%

21.1%

69.9%

69.9%

 

Employment-population ratio 

 

18.4%

17.7%

63.6%

63.8%

Unemployment Rate

14.8%

16.1%

9.0%

8.5%


As reported by the U.S. Department of Labor's Bureau of Labor Statistics, Table A-6

 

Vol: 3 Issue: 6
In This Issue
1. ABLE Act to be reintroduced November 15th - Disability Stakeholders Meeting to Review Bill planned for November 7th
2. Introduction of Fair Wages for Workers with Disabilities Act (H.R.3086) Gains Early Bipartisan Support
3. As Joint Super Committee Deadline Looms Forward, Disability Policy Advocates Provide Thoughtful Feedback About Opportunity for Systems Reform
4. Recent Congressional Hearing on State of Supplemental Security Income Benefits for Children creates Anxiety among Disability Policy Advocates
5.CMS Continues to Boost State Incentives to Increase Focus on Home & Community-Based Services for Working Age Adults with Disabilities
6. National Disability Employment Awareness Month Highlights Value of Disability in the Workforce and Challenges Society to Hold High Expectations for Prospective Workers with Disabilities


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