Is Managed Care the Answer for Dual Eligibles?

Is managed care the answer for dual eligibles?

More and more persons with disabilities are among the growing number of dual eligibles, i.e. people eligible for both Medicare and Medicaid coverage.  Persons with disabilities are eligible for Medicare either because of age or their disability and are eligible for Medicaid because of the poverty that has been forced upon them. 

There are good arguments both for and against managed care for this population, as can be seen from this article in the LA Times:  http://www.latimes.com/news/local/la-me-healthcare-duals-20111114,0,3197520.story.

Whatever we do to make healthcare better for this population now, we need to be realistic about how this problem came about and decide how to prevent this in the future.  What we do now is focus on one aspect of policy at a time and try to put a bandaid on it.  What we end up with is an unwieldy and unworkable system. 

A disability policy that is based on current reality, that does not force persons with disabilities to live in poverty in order to obtain critical services is needed soon.  Current policy is so expensive the system is about to implode.  It is possible to have a policy that saves government many dollars and still improve the lives of persons with disabilities. 

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Using iPads for Voting

Oregon has begun implementing the use of iPads to assist voters with disabilities. http://www.nytimes.com/2011/11/17/us/oregon-tries-out-voting-by-ipad-for-disabled.html?_r=1 Election workers bring the iPads to the voters’ homes or nursing homes, along with a portable printer.  Because there is the ability to enlarge the view for persons with visual impairments and because there is no need to be able to grasp a pen for marking the ballot, this use of technology has the potential to solve a number of problems for voters with disabilities.  Once the ballot is completed, it can be printed out and approved by the voter before mailing or being brought to election stations.  Screen readers can read back the ballot before printing for those who cannot see it to review it.

As more counties and states try this out, it is likely they will look at it as a way for other voters to cast their ballots as well.  Once again, an accommodation will become an innovation.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Proposed New Rules for Federal Contractors

The Obama Administration has proposed new guidelines for hiring workers with disabilities that would require all federal contractors to set goals of having 7% of their workforce composed of persons with disabilities.

Certainly, this will add some muscle to the Americans with Disabilities Act, since it requires action which is stronger than the passive of not discriminating.  Of course, there will be the ever-present paperwork needed to document this effort and businesses will object to that, as they have objected to paperwork requirements of Affirmative Action and the ADA. 

Some other concerns include how to document this 7% since the ADA does not allow you to ask about disability.  That’s not quite true, though, is it?  AFTER a person is hired, it is allowed to ask disability related questions and, if the response is voluntary, this documentation can be accomplished. 

What I find exciting about these new guidelines is that federal contractors will have to document their efforts to recruit individuals with disabilities.  This outreach is crucial to all successful employment programs and needing to document it will ultimately lead to workforces that are more inclusive of persons with disabilities.

This will not resolve all the employment issues of persons with disabilities, but it is a giant step in the right direction.

You can read the notice of proposed rule-making or submit a comment at http://www.regulations.gov.  Comments will be accepted until February 7, 2012.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Why Disability Policy Needs to Change

We talk about the need for disability policy to change, and people wonder how big the problem is.  Consider this scenario.  It is only one person, but it is a realistic reflection of how disability policy works now.

A woman with a disability makes the decision that working is better than not working, even though she is not able to get health insurance because of her disability.  Of course, since she has no insurance, she never really gets ahead.  However, she considers work to be therapeutic and continues. 

As time goes on, the aging process catches up with her and she is diagnosed with a chronic disease on top of her original disability.  Now there is a significant cost added and she just plain cannot keep up.  Since she is working, she is not eligible for any assistance.  Over time, she loses all that she owns and even becomes homeless.  Ahh!  Now she is eligible for assistance.  She gets disability benefits (since she cannot work during this process), medical assistance (what she most needs) and subsidized housing.  Now she can begin putting her life back together and get back to work.  Right?

Of course, there is the need to continually report and qualify for her benefits.  Every program requires its own reporting, even though they all use the same information.  Some programs even require reports two or three times a year.  This really does nothing to motivate or improve self-esteem.  It is a real downer.  It also forces her to keep her income to a level that does not put her over limits required for receiving assistance.  No way to get ahead.

But, she manages this and is at least grateful that her medical expenses are covered.  She gets the adaptive equipment she needs and takes care of herself medically.  Then it happens.  She turns 65 and it all changes.  Her $700 a month in Social Security benefits gets cut by $115 to pay for Medicare.  Then she finds that her medications are not longer completely covered.   With the extra help available, her plan D provides for a lower copay.  She needs only to pay $1.10 for generic medications and $3.30 for name brand medications, for covered drugs.  And that’s the catch.  “Covered drugs” does not cover all her medications.  Other medical supplies are also cut, mostly in half.  Medicare only covers adaptive equipment that allows her to function in her home.  What is needed to go outside and have any kind of life is not covered.  Added up, her medical expenses again eat up most of her income.  The prospect of again becoming homeless looms.  There is really no way out.

At what point does any of this make sense? 

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Primary Care and Healthcare Access

Another healthcare issue for persons with disabilities is physical access. 

Physical access goes beyond ramps and elevators.  It includes restrooms, exam rooms and any other room or space that is ordinarily accessed by patients.

There are standards for all accessible bathrooms put out by the Federal Access Board.

More recently, this same Federal Access Board has published guidelines for accessible healthcare facilities.  These guidelines include adequate space between and in exam rooms, accessible exam tables, lifts, scales and other equipment.  Almost no healthcare facilities meet these guidelines.

Primary care providers are the ones who see persons with disabilities the most, since they are in charge of coordinating all the other care.  Yet, these very same providers are paid the least and so are least able to afford the equipment needed by persons with disabilities.  This puts all of us who need this type of equipment at a disadvantage.

This is one more reason that this country needs to address the issues related to primary care.  No healthcare system, managed care, fee-for-service, or any other configuration, will work until we can provide stable, quality, accessible primary care.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

High Cost of Low Pay for Primary Care

Something for insurers to consider when setting reimbursement rates is that the shortage of primary care physicians plays a role in raising the cost of healthcare.

When there is no primary care physician available, people tend to go to the more expensive provider – emergency rooms.  While walk-in centers fill the gap for some, many walk-in centers do not take Medicaid, so persons with disabilities usually have to opt for the most expensive service available, simply because it is available.  This should be a real cause for concern since it means that people who use healthcare services the most are using the most expensive services.

This problem is not resolved by health centers and health systems if they have do not retain the same primary care providers.  This is because coverage and continuity of care are not interchangeable.  Coverage may be provided by new primary care physicians, but the time needed to develop the relationship that assures continuity of care is not there.  So, even with new good primary care physicians, the default option for some people will still be the emergency room.

Consider this – a person with a disability feels ill.  This person has not yet really connected with a  new primary care physician after his or her previous one has left a practice.  This person then faces the choice of calling a stranger (new but not yet established primary care doctor), and wait for a call back, with no certainty of whether or when that stranger will be available, or going to an emergency room where he or she will certainly be seen, even by a stranger.  For some disabilities, a minor problem can escalate to a major one quickly so the certainty of care will be the choice in almost every case.  This problem does not get resolved by the instant transfer of medical records either, since that transfer does not establish the relationship that is necessary for true continuity of care.

So, if paying primary care physicians less causes poorer healthcare delivery at a higher price it seems logical that Medicare, Medicaid and all other insurers should re-evaluate the reimbursement structure, looking at the bigger picture.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Shortage of Primary Care Doctors

The United States Department of Health and Human Services Health Resources and Services Administration has designated more than half the states in the U.S. as Primary Care Health Professional Shortage Areas.  Does this scare you?

While the reasons for this shortage are many and complex, one reason for this shortage is that health care providers in this group are paid significantly less than specialists.  The low pay leads to fewer physicians going into primary and the need for some primary care providers to move to other practices more frequently in order to earn more money.

This is a problem for all healthcare consumers, but it puts persons with disabilities in a particularly difficult position. 

Optimal healthcare is usually achieved through a partnership between the patient and healthcare provider.  This partnership takes time to establish.  This partnership then directs the tone and direction of other services.  Then, of course, it is left up to the primary care provider to write referrals and prescriptions and letters of necessity for these other services.  When a person cannot connect with a primary care physician or when primary care physicians come and go, this relationship is disrupted, sometimes for several years at a time, leaving a significant gap in needed continuity of care. 

Persons with disabilities often have to manage several some complex healthcare needs.  With a primary healthcare provider that has become a trusted partner in this management, it’s possible to stay ahead of these needs to set up contingency plans for dealing with them before they get out of hand.  Losing a trusted partner in this management can lead to problems that would be otherwise preventable.  This gets even more complicated when a person with a disability needs a referral to a specialist in order to satisfy some insurance requirement and getting a referral from a stranger who has not had the chance to understand the need is delayed. 

This shortage then sets up a bad relationship since the person with a disability needs to push to get needs met before problems get worse.  Nobody wins.

I will comment on the cost implications of this shortage in another post.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

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Placing Blame Doesn't Work

Don’t you just love it when you find out that gaining your own civil rights puts everyone else’s in jeopardy?  The if-we-give-you-this-it-will-ruin-it-for-everyone-else attitude is alive and well.

I cannot count how many times this excuse is given when dealing with access issues.  How many times do we get told that, if accommodations are provided, the costs will be so high that everyone else will suffer?

A recent example is in New York City, where there is a civil suit filed by the U.S. Attorney’s office against the city because of the lack of accessible taxis.   Mayor Bloomberg claims that the suspension of accessible taxis is bad so other riders will be uncomfortable.  Shame on us for making others uncomfortable so that we can be included.

Another claim that the mayor has made is that it will raise costs because of the cost of the modifications and the increased gas costs.  There we go again, making costs higher for everyone else.  He insists that the drivers won’t like them because the larger size makes it more difficult for the driver to communicate with the rider, leading to lower tips.  We really kill the economy with that one. 

Bloomberg also stated that it is too difficult for wheelchair users to hail taxis and that drivers don’t want to pick them up.  Well, it’s good to know that he’s looking out for us.  Right.

If were not enough, Governor Cuomo also got on the bandwagon, stating that having accessible taxis could jeopardize allowing street hails in the burroughs and upper Manhattan. 

So, it’s really clear that we wheelchair users are a royal pain and will cause the collapse of the New York transportation system. 

Their solution is that residents use designated transportation.  Of course, that will not work for tourists visiting New York.  Separate but equal?  Go to the back of the bus?  Does anyone recognize this rhetoric as blatant discrimination? 

It’s time for people to recognize that persons with disabilities are real people, living real lives, contributing to the economy like everyone else.  This is not charity or compassion, but thinking like a smart businessperson.  Include us and you will benefit.  In this case, it would mean that those of us who use wheelchairs, whether as residents and employees or as tourists, add much more than we take.

In the meantime, it’s just great to know that we are to blame for all the troubles of the world. 

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

The problems with disability policy based on medical model

When disability policy was developed, disability was viewed in the medical model.  The understanding was that the person had a medical problem that was in need of fixing and that, until that medical problem could be fixed, that person was unable to work.  If the medical problem could not be fixed, the person would be considered totally and permanently disabled. 

We put physicians and other medical providers in charge of whether or not a person could work, whether or not a person receives various disability benefits and what services and accommodations a person with a disability needs. 

While we are inundating medical providers with paperwork to attest to these things, no one seems to take into consideration that they are not the ones with all the answers. 

While most disabilities have a physiological beginning, that doesn’t necessarily mean they need or will respond to medical interventions.  For example, if a person is in an accident and incurs a brain injury, the disability can be permanent.  However, the time for effective medical therapy is only for a short period after the injury.  If the person still has the disability after 20 years, what do we expect a physician to do? 

Some disabilities are the result of medical conditions that need ongoing treatment, but many do not need medical intervention.  Yet, we put them all in the same category and require that there be medical documentation of all kinds of things related to disability. 

In the meantime, since most medical providers have the same view of disability as the average population, they are responding with the viewpoint that they are supposed to be able to decide major life issues for these people.  Should the person work?  What are the person’s transportation needs?  Does a person need a roll-in shower?  What about a parking pass?  Should the person be in a nursing home?  If so, can we keep the person out with appropriate services?  What services?  (Read the last three again to note the irony.)

Removing disability issues from the medical establishment could benefit persons with disabilities, ease the burden on medical providers and reduce costs for society.  Since the medical model is now recognized as not appropriate for determining disability, let’s next consider what the basis for disability needs to be.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

The Roles of Design, Attitude and Quality Control

Comments from Niall 3

This is the third of a series of Comments from Niall. It is designed as part of a series that will hopefully raise awareness of the contribution that people with disabilities can make to the community

Design

This is the starting point to achieve accessibility and therefore inclusivity. Architects, interior designers, construction engineers etc.... These are the people that will create our future environments. Yet, how many of them are fully informed of the needs of people with disabilities?

I am certain that the vast majority of them want to get the best result that they could but lack of awareness about accessibility is the main barrier to their achieving a fully inclusive environment.

Attitude

To physically create a fully inclusive environment means little if the people that work in it, or the people that buy or live in it, are not committed to the belief that everybody is welcome. This need for a positive and indeed, creative attitude also extends to people with disabilities. Their awareness of the possible limitations to achieving a fully inclusive environment is vital if a truly harmonious outcome is to be reached.

Quality Control

This may seem obvious but there are many examples, that I have actually seen, where the best intentions of people trying to achieve inclusivity, have failed. The initial design was good, the building appeared to be broadly accessible but the actual building work was altered (due to perceived construction necessities) so as to render the final result of little use to people with disabilities. When the builders move in they are focussed on the main issues: will it stay up, are all the electrics and plumbing in the right place and will it pass the inspections to allow it to open. The needs of people with disabilities are sometimes not their first priority. And, yet, if the concept of a fully inclusive working, selling or living environment were accepted then accessibility would become automatic. Rather than be treated as an additional worry, the building would meet the needs of as wide a range of people as possible. Inclusivity would be part of the Mainstream.

How to Maintain that Inclusivity

Having achieved an inclusive environment it is then all too easy to lose it. For example, extra desks and display stands for products etc. spread onto clear routes and accessibility is then lost.

The next Comment from Niall will cover the ways to maintain Inclusivity and then promote it to all potential users.

Niall can be contacted at tarrell@btinternet.com

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Who Benefits from Inclusivity

Comment from Niall 2

This is the second of a series of Comments from Niall. It is designed as part of a series that will hopefully raise awareness of the contribution that people with disabilities can make to the community

Who benefits from Inclusivity?

First, who are these people who will benefit? The immediate answer is people with disabilities. And yet there are so many more people involved in every interaction in our modern society. What about all the family, the friends, even the representatives (such as lawyers) of those people with disabilities? All of them will also hope and indeed, expect to be able to enjoy life or work together in a fully inclusive environment.

And yet, there are also the owners and people that work in every business. In an inclusive environment everybody benefits. The service or workplace environment is available to all and then everybody is happy, or at least they all share the same experience.  This allows people with disabilities to be an expected and valuable part of the community.

Meeting the needs of people with disabilities

This is often easier than it may at first appear. Most people with disabilities are very aware of what they need to be part of the community and are therefore a main source of information. There is also a wide range of design guides available to assist when building or renovating a building. But the most important thing is common sense. Speak and listen to people that have experience in this area. Best practice and good examples are so much more effective than trying to just achieve compliance with the law.

How to achieve inclusivity – an introduction

This will be covered in more detail in the next Comment from Niall but broadly includes: Design (of a building or a space), Attitude (of builders, managers, staff and users) and Quality Control (are access elements in an environment effective and truly meet the needs of people with disabilities).

The next Comment from Niall will expand on the various ways to achieve as much inclusivity as possible. Followed by an introduction on how to maintain that inclusivity.

Niall can be contacted at niall@btinternet.com

 www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Gong on Disability No Panacea

Social Security Disability, Supplemental Security Income, Medicare and Medicaid are all in jeopardy.  The growth in recipients cannot be sustained.  However, the standards for receiving Social Security Disability and SSI have eased.  At one time, the standard was that the recipient could not engage in any substantial employment at all.  Now there are television lawyers who promise people that they are entitled to these benefits and that they will help them receive them.

What most people do not realize is that “going on disability” is not finding a pot of gold at the end of the rainbow.  In general, it means living in poverty.  Having nothing to do and no money to do it with it is a common complaint from people who are on disability.  Which brings us to the fact that working is a quality-of-life issue at least as much as a need-to-work-to-pay-my-bills issue.

At this time, people legitimately receive disability benefits for three reasons:  1)  They really and truly cannot work (this is a small percentage of recipients); 2) They are unemployed due to discrimination because of their disability (ADA needs more enforcement); and 3) They need to be on disability to receive essential services that are not available unless someone is on disability.

Clearly, we need to address how disability policy works in this country so that people are not forced to live in poverty simply because they have a disability.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

New Mobility Shows Healthcare Access Problems

You would think that healthcare facilities would be the most accessible for persons with disabilities.  You would be wrong.  New Mobility magazine highlights some of the problems locating accessing healthcare at http://www.newmobility.com/articleViewIE.cfm?id=11897.  

One problem is that healthcare providers think in terms of “helping” and not accommodating.  In the case of the woman looking for a mammogram, helping was no help at all.  Other times, “helping”, especially when it takes the form of lifting, can be dangerous, both for the patient and the staff.  If a patient that is being lifted has a full-body spasm, he or she can take out three people!  The result could be a workers’ compensation suit, and ADA suit and a malpractice suit.  I guarantee that would cost a lot more than an accessible table and proper lifting equipment.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Taxi Please!

Why does it have to be so difficult to enforce the federal Americans with Disabilities Act?

In New York City, the city agency that governs taxis doesn’t think that having more accessible taxis is worth enforcing.  http://www.newmobility.com/articleViewIE.cfm?id=11939

Not only would requiring taxi companies to make all new taxis wheelchair accessible not cost the city a single dime, it would save the city significant money since it would reduce the dependence on the Access-a-Ride that is funded by the city.

So, what is the resistance?  This resistance is widespread and truthfully makes no sense. 

Businesses resist providing access since they never look at the benefits, only the costs.  But the truth is that state and city governments turn a blind eye to access issues on a regular basis also.  This blind eye is not only toward their own access responsibilities, but cities are consistently unwilling to enforce access laws in their communities.

A question that all state and city governments should ask is whether they would tolerate discrimination toward any other minority.  Or, would they tolerate businesses that put out signs saying that persons with disabilities are not allowed in?  If they would not tolerate discrimination toward other minorities or businesses that put out signs that verbalize their discrimination toward people with disabilities, they should not tolerate discriminatory actions or omissions.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Surgeon Misses the Point in this Lesson

A story about how a surgeon learned about communicating directly with his patient http://www.kevinmd.com/blog/2011/06/surgeon-point-communicate-patient.html has lessons that were missed.

The surgeon who referred to the patient as “mentally retarded” is from South Africa, where that language may or may not still be acceptable.  In the US it is not. 

However, the bigger lesson is that he really did the right thing, even though he was never convinced of that.  He brushed aside the information being offered by the father when he first met them, making it clear that he preferred to speak with the patient directly.  The surgeon then felt he had painted himself into the corner when he realized the young man had an intellectual disability.  He continually referred to the patient’s limitations and, frankly, seemed to have a very low expectation of that patient.

What the surgeon never realized, even after the father thanked him for respecting his son, was that persons with disabilities often have far more capability than we credit them with and this was an example of that.  The most important thing for healthcare providers to recognize is that they should always communicate directly with their patients.  Patients will understand at their own levels.  Only if decisions are to be made and the patient has not been able to communicate understanding at his or her level should others be brought into the conversation.  Unfortunately, this doctor was focused on his own relief that he was not chastised for brushing off the father. 

He accidentally did the right thing.  Now, if we could only get him to realize that.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Who's Accountable for Leaving Boy on Bus?

In Jersey City, a child with special needs was left on the school bus for more than 4 hours.  http://www.care2.com/causes/boy-with-disabilities-forgotten-on-school-bus.html.

I can’t imagine how this could happen or why he wasn’t missed.  The mother put him on the bus with every expectation he would be brought to school safely.  The driver and aide were both fired.  Nothing is mentioned about criminal prosecution, but I would hope that would follow.  They were in charge of a child who was nonverbal and their only job was to deliver him safely to school.  There were only eight children on the bus.  How hard could it be to count that high?

In most schools, if a child is not in class and a parent had not called to explain that child’s absence, a call is made to the parents.  Why didn’t this happen in this case?  The fact that the child had special needs was well known. 

The first clue anyone had that the child was not where he belonged was when a mechanic found him on the school bus four hours after being picked up.  That he was not baked alive in the bus in 90 degree weather is nothing short of miraculous.

There are budget cuts everywhere and persons with disabilities have had to bear a disproportionate share of these cuts, but someone has to be accountable for things like this. 

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

AHA Takes on Racial Disparities in Care, Leadership

http://www.healthleadersmedia.com/print/LED-268710/AHA-Takes-On-Racial-Disparities-in-Care-Leadership 

This article shows that the AHA is still unaware of a serious gap – persons with disabilities.  While it is important to address racial and ethnic disparities, this group needs to be reminded that persons with disabilities are the third largest market segment in the United States.  At this time, physical access to healthcare is seriously lacking and attitudes toward persons with disabilities range from dismissive to overly solicitous, skipping respect and accommodations.  Medical schools and nursing schools routinely discriminate against applicants with physical disabilities, making it even more difficult to recognize the importance of this demographic. 

One possible solution would be for the healthcare industry to stop looking at disability in the medical model and start looking at this population as a market segment.  For purposes of patient care, employee safety and equal respect and opportunities for all, this needs to be addressed sooner rather than later.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Sixth Rule of Construction Is Very Important

The sixth rule of construction is a big one.  It states: 

The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

This means that if a person has access to and uses either a medication or a device that alleviates the effects of the disability, that person’s disability still exists.  For example, a person who is able to fully control his or her seizures with medication still has a seizure disorder.  Likewise, a person who is able to stand with crutches or a standing frame, still has a mobility impairment.  The fact that a device or medication can control the effects of a disability does not mean that the person no longer has that disability.

Likewise, job accommodations work to remove the effects of a disability in the workplace.  Because the effects of a disability are alleviated to any extent, it does not mean that the disability no longer exists.  Therefore, the person has an impairment that substantially limits a major life activity and that disability is covered under the Americans with Disabilities Act.

The exception to this is ordinary eyeglasses and contact lenses.  If a person’s vision is corrected by ordinary corrective lenses, that person’s vision impairment is not considered to substantially limit a major life activity and, therefore, that person is not considered to have a disability under the Act.

While the ADAAA lists many mitigating measures in its appendix, this list is not considered to be exhaustive and the basic principle continues to be that the effects of mitigating measures is not to be considered when determining whether or not a person has a disability.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

We need a new system before cutting out the old

Both the federal government and individual states are putting on pressure to cut Medicaid benefits to persons with disabilities.

There are some services required by persons with disabilities that are only covered by Medicaid and are too expensive for the average person to afford without assistance.  The way disability policy works in this country and in most states is that persons with disabilities (or the parents of children with disabilities) need to impoverish themselves in order to qualify for these services.  The only other alternative is to work for the sole purpose of paying for these services and living in poverty anyway.  Even then, there is no guarantee that these individuals and families could afford these services without assistance.

After forcing these people to live in poverty in order to have critical services, the government now wants to cut these services.  While that is probably legal (barely), it can hardly be considered moral.  Persons with disabilities have no cushion to fall back upon, since that is not allowed, and so-called work incentives have such limits that they are not the success that was anticipated.  At the very least, a new system should be in place before pulling the plug on the old one.

If anything points out the failure of disability policy in this country, this is it.  No other minority is forced to live in poverty in order to survive.  Add to that living in constant fear that what is needed for survival will be taken away, it’s no wonder work incentives have little power to motivate. 

What we need is a policy that treats persons with disabilities like valued human beings.  Rather than forcing them to live in poverty and then trying to motivate them to get off the system we forced them into, we should avoid putting them in the system. 

There is probably not much we can do about moving persons currently on disability, who have been living in poverty without any cushion, into a new system.  However, we can avoid putting more people into this system that does not work and cannot work. 

The system we have now has no more validity.  It was designed for a different time in history.  There is nothing that can fix it.  Certainly not taking away services without putting in place a system that works for our time. 

The question is whether or not governments have what it takes to build a new, workable system.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

The Fifth Rule of Construction

The fifth rule of construction in determining if a person’s impairment substantially limits him or her in a major life activity states:  The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. Nothing in this paragraph is intended, however, to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.

The purpose of this rule is to make it clear, once again, that the federal Americans with Disabilities Act is to be interpreted broadly.  The person with a disability needs only to show that he or she is restricted in the performance of a major life activity as compared to most people in the general population. 

For example, a person with dyslexia may not be able to read handwritten notes.  This person does not have to provide a physician’s note or statistics about dyslexia.  He is allowed to, but is not required to.  It is sufficient to say that most people in the general population can read handwritten notes. 

It is reasonable to infer that most people can read such notes and that, if this person cannot, his impairment substantially limits him in a major life activity.  Presenting statistics or scientific proof that dyslexia prevents people from reading handwritten notes is not required.

The entire purpose of the ADA is to remove barriers encountered by persons with disabilities while trying to live everyday life.  The Amendments Act of 2008 makes it clear that the Act is not intended to add barriers that make persons with disabilities prove they should be covered by this law.  This rule, like the other eight rules of construction, is intended to clarify this.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Determined Tennis Player

When I first heard there was a story about a one-armed high school tennis player who made it to the Kentucky State High School Tournament, my thought was that was nice.  But, I didn’t think it was a whole lot more than that.  I was mistaken.

Jacob Raleigh had played in the tournament two years before, when he had two arms.  Now he was back playing again with only one arm.  Okay.  This gets a little more interesting.  But there is more. 

Raleigh’s dominant hand was his left hand.  However, the young man developed a rare soft-tissue cancer in his left wrist which eventually led to the amputation of his left arm.  Now, this is a big deal. 

This young man, in the short two years between playing in the state tournament, had cancer, lost his dominant arm, learned to play tennis again with his right arm and still made it to the state tournament.  Oh, and people who lose an arm, no matter the reason, have to learn to balance themselves all over again.  This is huge!

This young man is obviously going to succeed in whatever he chooses to do in life, since he is so determined.  It also goes to show that having a disability does not change the character of the person.  It only changes one characteristic. 

If you are an employer and an applicant with a disability looks to be employed in your business, think of Jacob Raleigh.  I don’t guarantee that your applicant will be that determined, but you need to at least consider that the person in front of you is the same person, with the same education and experience, he or she was before disability and that it is likely that you can accommodate the disability with a simple accommodation. 

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Murray Mann addresses The State of Disability in the Workplace

The Spring 2011 issue of Diversity MBA Magazine has an article by Murray Mann, a principal of Global Diversity Solutions Group LLC, a Chicago based consulting firm titled The State of Disability in the Workplace.

Even though the ADA has been in effect for 20 years and research shows that businesses that hire persons with disabilities and even use persons with disabilities in their advertising benefit greatly, the unemployment rate for persons with disabilities is still extraordinarily high. 

I encourage you to read the entire article, but I will quote some of the statistics cited in this article:

·         More than 54 million persons with disabilities comprise the third largest market segment in the US.

·         In February 2011, one in five (20.6%) persons with disabilities were employed, compared to over two-thirds (69.5%) of persons without disabilities.

·         For every dollar spent on an accommodation, participating companies realized more than $10 in benefits.

·         2% of HR professionals replying to a survey used resources available to find qualified job applicants who are veterans with disabilities.

The sources for his statistics included the Department of Labor’s Bureau of Labor Statistics, the Job Accommodation Network and the Society of Human Resource Management.

Mr. Mann has done a thorough job of defining the problem.  We need to look at the reasons this is happening and see what can be done about it.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

The Fourth Rule of Construction

The fourth rule of construction in determining whether an impairment “substantially limits” a major life activity is:  The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term ‘‘substantially limits’’ shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for ‘‘substantially limits’’ applied prior to the ADAAA.

This is one more way of telling the courts that congress intends for this law to be applied broadly, covering more people than the courts determined in the first 18 years of the Americans with Disabilities Act.

In the Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the issue of “substantially limits” was key.  The court found:  The Court's consideration of what an individual must prove to demonstrate a substantial limitation in the major life activity of performing manual tasks is guided by the ADA's disability definition. "Substantially" in the phrase "substantially limits" suggests "considerable" or "to a large degree," and thus clearly precludes impairments that interfere in only a minor way with performing manual tasks.

As in other court cases, the decision was based on whether or not the individual was covered under the ADA and not whether there was an act of discrimination.  Again, the whole purpose of the amendments is to reverse these priorities. 

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude