News & Events

Observations From Below: Wrong Way

By: Bryan Dooley

Elder Law Associates Newsletter dated March 7, 2018

Like many people, I find some elements of our current political situation disorienting. For my entire life I have felt safe in the assumption that when it comes to disability rights, there is bi-partisan support. While I still believe that today, I see some signs that there is a dangerous shift away from collaboration. I started to think about that when I got my flu shot at Walgreens recently. One of the heirs to the Walgreens fortune was essential in the drafting and passing of the Americans with Disabilities Act of 1990 (ADA), and a Republican for most of his life, with many conservative friends. His name was Justin Dart Jr.  He was on many early commissions which produced reports that eventually led to the ADA. He is most notably recognized for traveling all 50 states as well as the US territories twice, using his own money, gathering data from people with disabilities to incorporate ideas to craft the Americans with Disabilities Act of 1990. Because of all his work and investment, he garnered the moniker, “The Godfather of the ADA.” After the ADA passed in 1990, he worked until his death in 2002 fighting and protecting it from others trying to weaken its enforcement. 

During his lifetime, Dart was successful in defending the rights of those with disabilities. It is a sure-fire bet that he would be rolling in his grave now due to a new bill gaining bi-partisan support. The bill, known as the ADA Education and Reform Act of 2017 (H.R. 620) would add significant extra hoops to the complaint process for those with disabilities. H.R. 620 has taken away the right for an individual to immediately seek legal action regarding any architectural barrier that may deter them from accessing the community. If the bill passes, it would require the individual to write a detailed letter to the business owner, citing the specific infraction of the ADA. The company has 60 days to reply to the aggrieved and has an additional 120 days to show some “substantial progress” to remedy the situation. 
I agree that a person should talk to the business up front, but I see several problems with this bill. One problem I see is that it would be hard for a non-lawyer to compose such a detailed letter. The second problem is there is no reason for the businesses to be proactive to fix the barrier. As long as the business shows so-called “substantial progress,” it could take years for a barrier to be removed, thus slowing down the process entirely to ameliorate the situation. Thirdly, and most basically, I think most businesses probably have some understanding of accessibility. I believe 27 years (since the passage of the ADA) is enough time to have a basic understanding, so I don’t believe this law is necessary.  
In addition to all the threats to the ADA, there are other signals of bad disability policy ahead of us. Late last year, Congress allowed funding for the Children’s Health Insurance Plan (CHIP) to lapse, and now states are running out of money to administer the program. This means if Congress doesn’t act soon, the roughly 8 million kids who depend on the program for health care will lose their benefits. CHIP has had and continues to garner bipartisan support since it was first established in 1997, but for the first time that I can remember, there has been fighting between both parties about administering the program. I don’t think this is something our Congress should be squabbling about, especially since both sides agree that it’s so important.
The legislative branch is not the only one which has me nervous in the new year. The executive branch is also off on the wrong foot this year. Republicans have long believed in deregulation. They think Washington should not tell businesses and other institutions what to do. The Trump Administration is no different. Last year, the Department of Education began reviewing IDEA regulations and documents. 
As recently reported in the Washington Post, the Department of Education had a total of 72 guidance documents rescinded due to being outdated, unnecessary, or ineffective — 63 from the Office of Special Education Programs (OSEP) and nine from the Rehabilitation Services Administration (RSA). The documents, which fleshed out students’ rights under the Individuals with Disabilities Education Act and the Rehabilitation Act, were rescinded Oct. 2. I have been warned that there will be more sweeps looking for regulations to cut so we might lose even more documents regarding education policy this year. 
On top of that, the Department of Justice used the opportunity of the holidays to cut their policy quietly. Among the 25 revoked documents are some ADA-related items dating as far back as 1995, which offer guidance on topics such as service animals and accessible building practices, as well as a 2016 letter on employment of people with disabilities. What bothers me the most is pulling the 2016 letter, issued by Obama, which stated, “The civil rights of persons with disabilities, including individuals with mental illness, intellectual or developmental disabilities, or physical disabilities, are violated by unnecessary segregation in a wide variety of settings, including in segregated employment, vocational and day programs.” 
As a currently underemployed person with a disability, I would like to see the administration focus less on the fact that it had Obama’s name on it, and focus more on the fact that it’s good policy. Not too long ago, both parties agreed that people with disabilities needed to be better integrated into the workforce. There was a law passed called Workforce Integration and Opportunity Act, which tried to encourage competitive employment in many ways. I don’t know why the Republican administration is now going back on that noble goal. Now we will have an interesting problem. 
Medicaid is the program that enables many people to work. But last week, the Trump Administration decided to allow states to experiment with work requirements. Kentucky became the first state to have a plan approved. Several other states, including my home state of North Carolina, applied to receive the same waiver. That could put people with disabilities in an interesting box. I know I speak with a lot of people with disabilities who are willing to work, but we struggle to find gainful employment. It irritates me because all my disability rights work is done through sitting on different State Boards. I can’t earn money on projects that are funded by them, as that would be a conflict of interest. So even though I work hard most of the week on Disability Rights, it’s not clear to me if my work will satisfy any work requirements that may or may not be placed on Medicaid in North Carolina. 
I spoke with Virginia Foxx, my representative in the House of Representatives. She called me an excellent advocate and gave me her word twice that I would have more services after the Trump Administration then I had in the previous administration. With that in mind, I don’t think this is an attempt to attack people with disabilities. But if our government continues down this road, it will be bad for people with disabilities. I am neither a Democrat nor a Republican. I have been registered unaffiliated since I turned 18. My main concern is good policy. Please don’t mistake this as an attack on all Republicans or all Democrats. But I am asking the country to turn around and reconsider the policy decisions I’ve talked about in this blog. It’s important. 
During his lifetime, Justin Dart Jr. worked with both parties to protect good disability policy. We must learn from his example, and do the same today. 
That’s how I roll. 
Article Source: Huffington Post