Tuesday, December 15, 2009

Hill Update: DPC Weekly Policy Update.

Here are the major updates from the Disability Policy Collaborative.

Fiscal Year 2010 Appropriations

The U. S. Senate yesterday passed the FY 2010 Omnibus Appropriations bill by a vote of 57-35. This action followed a vote of 60-34 on Saturday to end debate on the bill. The House of Representatives had passed the bill on December 10 by a vote of 221-202. The House and Senate votes clear the measure to be signed by President Obama.

The Omnibus bill is a package of six of the twelve appropriations bills. Five other FY 2010 appropriations bills had previously been enacted as separate bills. Passage of the Department of Defense bill is being held back so that last minute provisions such as an unemployment insurance extension and the raising of the federal debt ceiling can be added to that measure.

The Omnibus Appropriations bill contains virtually all federal spending for disability programs. Included in the Omnibus bill are all programs funded under the Departments of Labor, Health and Human Services, Education, Housing and Urban Development and Transportation. These departments are now funded for the remainder of the fiscal year which ends on September 30, 2010.

The Labor-HHS-ED bill contains a $8.5 billion increase for discretionary programs, slightly less than a 5% increase, after the economic stimulus funds are disregarded. The Transportation-HUD bill gets a 16% increase over FY 2009 funding, also excluding stimulus funding. The following link http://2010\final FY 2010 approps table conference.doc contains a table that compares FY 2009 spending with the Obama Administration FY 2010 request and the FY 2010 appropriations. Late this week, the DPC will publish an edition of National Policy Matters that will provide more detailed information on the FY 2010 Omnibus Appropriations bill.

Health Care Reform

As the Senate continued debate on the Patient Protection and Affordable Care Act (H.R. 3590), the Congressional Budget Office (CBO) began its analysis of an alternative to the public option developed by a group of ten liberal and moderate members of the Democratic caucus. Although details of the compromise have not been released, it reportedly includes allowing Americans between the ages of 55 and 64 to buy into Medicare. The proposal also reportedly creates a national health insurance plan to be run by nonprofit private insurance plans and supervised by the Office of Personnel Management. Some moderate Democratic senators are awaiting the cost estimate of this proposal before deciding on whether to support the health reform bill. In an unexpected setback, on Sunday, Sen. Joseph Lieberman (I-CT) formally notified Majority Leader Reid (D-NV) that he would filibuster the bill if it includes a Medicare buy-in. This increases the Majority Leader's challenge of securing the 60 votes necessary to pass the overall bill.

In addition, the CLASS Act continues to come under criticism as some private long term care insurance companies are working hard to have it dropped from the health reform bill. The CLASS Act would establish a national long term services and supports insurance program to assist people in meeting their needs without impoverishing themselves to become eligible for Medicaid. The CLASS Act would also help reduce the pressure on the Medicaid program which has become the default long term services system in the country. As of now, the CLASS Act remains in the bill.

Restraint and Seclusion

On Wednesday, December 9, The Preventing Harmful Restraint and Seclusion in Schools Act, HR 4247, was introduced by Representative George Miller (D-CA), Chair of the Education and Labor Committee, and Representative Cathy McMorris Rodgers (R-WA). (See text of HR 4247 )

Senator Christopher Dodd (D-CT), Chair of the Subcommittee on Children and Families of the Health, Education, Labor and Pensions (HELP) Committee, introduced companion legislation in the Senate on the same day. (See text of S 2860)Although there are minor differences, both bills would prevent and reduce harmful restraint and seclusion in schools. The Obama Administration has made clear its strong support for this legislation.

Two recent reports by the Government Accountability Office (GAO) and the National Disability Rights Network (NDRN) detailed instances of restraint and seclusion that were harmful and even resulted in deaths of children. During a press conference to introduce the legislation in the House, Representatives Miller and McMorris Rodgers introduced parents from Michigan who said that their child, who has autism and a speech delay, had been tied to a chair for up to three hours every day when he attended preschool as a three-year old. He could not tell his parents what was happening to him every day. His mother only found out when she visited the school for a holiday party. DPC staff attended the press conference.


DPC staff participated in two events related to the future of the assessment of students with disabilities under the No Child Left Behind Act and its successor legislation that may be considered by the Congress next year.

DPC staff was one of five disability representatives who met with top leadership of the Department of Education and several leaders of the general education community to discuss the ongoing implementation of the so-called 1% and 2% rules that currently apply to the assessment of certain special education students under No Child Left Behind (NCLB). Participants basically agreed that the 1% rule, which applies to students with the most significant cognitive disabilities, should be maintained. There was also basic agreement that the 2% rule (alternate assessments based on modified achievement standards) is not based on scientifically based evidence and that many states are too slow in implementation or are simply refusing to create assessment instruments to comply. Assessments for some of the students who are academically well behind their non-disabled peers will need to be addressed in the next reauthorization of the Elementary and Secondary Education Act and possibly sooner with an interim revised rule.

DPC staff also participated in a briefing held by the Educational Testing Service (ETS). This briefing concentrated on the challenges to validity and accessibility of the NCLB assessments for students with disabilities.


Thursday, December 10th, the Senate Health, Education, Labor and Pensions Committee voted unanimously to move the nomination of Lynnae M. Rutledge, of Washington State, to be Commissioner of the Rehabilitation Services Administration, for a vote by the full Senate. She is not considered confirmed until the full Senate votes, which has not yet been scheduled.

The Labor Department's Office of Federal Contract Compliance Programs (OFCCP) recently announced that it will be reviewing its regulations regarding hiring people with disabilities and strengthening federal contractors' affirmative action compliance. OFCCP Director Patricia A. Shiu, in an online web chat, said the agency is focusing on strengthening the Rehabilitation Act rules to help federal contractors improve their recruitment and hiring of persons with disabilities.

Emergency Preparedness

Senator Mary Landrieu (D-LA), Chair of the Disaster Recovery Subcommittee of the Senate Homeland Security and Governmental Affairs Committee, held a hearing last week concerning emergency case management services. During the hearing, witnesses from the Department of Homeland Security's Federal Emergency Management Agency (FEMA), the Department of Housing and Urban Development (HUD), and the Department of Health and Human Services' Administration on Children and Families (ACF) testified about emergency case management services that were provided in Louisiana and Mississippi after hurricanes Katrina and Rita. Testimony from the US Government Accountability Office (GAO) concerned lessons learned and recommendations for future emergency case management. To see GAO's testimony.

Witnesses who actually provided case management in the two states explained that vulnerable people, including people with disabilities, have not been able to return to the lives they were living prior to the disasters. All agreed that case management was a critical component of recovery and offered many suggestions for improvements. During the hearing, DPC staff learned that FEMA hopes to have a new Federal Disaster Case Management Program in place by June 2010.


The Supreme Court decision in Olmstead v. L.C. required States to eliminate unnecessary segregation of persons with disabilities and to move persons who could function in the community out of segregated facilities. Earlier this year, President Obama issued a proclamation launching the "Year of Community Living," and directed the Administration to redouble Olmstead enforcement efforts. At the end of November, the US Department of Justice (DOJ) filed three "friend of the court" briefs in Olmstead cases in Virginia, New York and Connecticut.

DOJ is supporting an effort by The Arc of Virginia and the Virginia P&A to block the state from spending $23 million on a new, segregated facility for 75 individuals with intellectual disabilities. An independent review of the individuals found that none of them had needs any more complex than people already living in community settings.

In New York, the P&A won a lawsuit that found placement of persons with mental disabilities in "large adult homes" was in violation of the Americans with Disabilities Act. As a remedy in the case, P&A argued for 6,000 new community-based placements but the State proposed approximately 1,000 new community spaces in the state-run system. DOJ is supporting the P&A's proposed remedy.
In Connecticut, DOJ is supporting a suit brought by the Connecticut Protection and Advocacy (P&A) that challenges the unwarranted confinement of over 200 people with mental illness in three large, private nursing homes. The P&A and DOJ allege that these people could live in more integrated community settings.

These actions by DOJ represent a shift in focus. The previous administration would have supported building new institutions and making existing institutions better rather than pursuing the most integrated setting for people with disabilities. The Arc and United Cerebral Palsy applaud this policy shift.

UN Convention on the Rights of Persons with Disabilities

DPC staff participated in a White House event where officials from the Departments of State and Justice, as well as White House staff, held a listening session on concerns of the disability community regarding the ratification by the U.S. Senate of the UN Convention that was signed earlier this year. One issue that likely needs more consideration is guardianship. Some factions of the disability community reject any form of guardianship while others, including representatives of individuals with significant intellectual disabilities, acknowledge the need for limited forms of guardianship in certain circumstances.

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