Disability, Disability Rights, Law and Lawyers

Common Ground: Can Disability Provide an Angle to Move beyond Partisanship?

I was fairly politically unformed when I worked as a policy intern for United Cerebral Palsy in Washington, but if you asked me, I’m sure I would have told you I was a Democrat. I’m pretty sure that both of my mentors were Republicans, since one of them had worked in the first Bush White House, and the other had a lobbying resume that one does not associate with the liberal agenda, but I honestly didn’t know, because we were avowedly nonpartisan. Disability, we said, was not a partisan issue.

Certainly, the heroes of the ADA include liberal icons like Coelho and Harkin, but also conservative stalwarts like Dole and Hatch. The law was triumphantly signed by a supportive George HW Bush, and aggressively implemented by Bill Clinton. Many like to think that this is because it is a cause so universally good or right that it transcends ideological bounds.

While certainly human sentiment played a role, I think that this is terribly simplistic. Very few people view themselves, or their positions as wrong, or evil. Rather, in the face of conflicting values, people choose based on the ideologies that are most important to them.

For instance, notwithstanding Mitt Romney’s taste for his own foot, I really doubt that he has anything against the idea of helping people in need. he is simply viscerally opposed to that help being provided in the form of government payments. He thinks that not good for society. I disagree, but this post is not about welfare.

So, then, perhaps the unity around the ADA was really a function of the fact that there was agreement upon both the goal, establishing legal equality as a foundation for economic and social equality for people with disabilities, and the means, enacting a broad antidiscrimination law. With neither side objecting to the other’s goal or means, cooperation was not only possible but desirable.

A recent column by Dana Milbank in the Washington Post noted that Ralph Nader and Grover Norquist had found common ground over the minimum wage. Writes Milbank:

Democrats have made the argument that an increase is morally right and that the only thing standing in the way is corporate greed. That may be so, but it hasn’t won them enough Republican support to get the increase through Congress. But what if Democrats were to make a free-market argument that a higher minimum wage would shrink the federal government and reduce the welfare state?

That’s the argument Ron Unz made to Nader’s gathering.

The government spends over $250 billion a year in social welfare programs aimed at the working poor,” he said, addressing the group via Skype. “If we simply made the working poor much less poor by raising their wages to a much more reasonable level, a lot of that money would be saved, probably in the range of $40 to $50 billion a year.” The $250 billion spent on welfare for the working poor, Unz said, amounts to a “massive subsidy for businesses” that are paying less than a living wage and “forcing taxpayers to make up the difference.”

Call me a cynical centrist, but I could paraphrase this long quote by saying, “Liberals ’ argument that this made them feel good was minimally successful at winning over economic conservatives. Once they were able to demonstrate that the apparent feel-good measure was also likely to be economically successful in raising the target population out of poverty, economic conservatives began to get on board.”

Now, I’m no fan of ideologues on either side, and God knows that there are plenty of folks in Washington today who vote ideology regardless of what makes sense, as was sadly demonstrated in the knee-jerk ideological vote against the ratification of the Convention on Rights of Persons with Disabilities (CRPD) in the United States Senate, despite the fact that it was patterned after the ADA, and supported by Senator Dole and the first President Bush. Further, I am liberal, and fundamentally disagree with the conservative positions on issues ranging from gun control to a woman’s right to choose.

That said, I think policy advocates in general, and disability advocates in specific, could use to do work finding common ground among individuals who disagree based not on ideology, but on a differing conclusion as to what makes good policy. Here, political deal making is not so much holding your nose to appease your opponent as addressing your opponent’s valid concerns. This passed the ADA, and, if we are to believe Dana Milbank, Ralph Nader, and Grover Norquist, could create a coalition around the minimum wage. Surely this will not appeal to true libertarians, and will be insufficient to appease true socialists, but, being workable policy for the laudable goal of raising partners out of poverty might be a blueprint to get something done.

Disability advocates should be looking for these points of commonality. As I point out in my Chutes and Ladders post, sliding scale premium, uncapped non-asset tested Medicaid buy-ins for working personal care users with disabilities is such an area. It promotes employment in independence while ultimately lowering costs of government benefits and raising quality of life for people with disabilities. The baseline for universal support among practical minded politicians is that the end is good in the numbers make sense.

We are always going to have areas of ideology where we disagree. My challenge to any advocate reading this is to begin building coalitions by helping reasonable people focus on the items that just make sense. As we come upon 24 years of the ADA, we have living proof of just what that can accomplish.

Law and Lawyers

Obligation Born of Privilege: The Lawyer’s Duty to Enable Civic Access for All

Any lawyer reading this has experienced that moment, when a friend or family member has been confronted with a legal document or procedure, and gets this forlorn, slightly overwhelmed look. If you are a young lawyer, as you are explaining and demystifying, you might feel generous and slightly superior. You know the secret handshake. Your three years of school privileged you with the proverbial keys to the kingdom, and now you get to unlock that mystery for your friend or a loved one. In this piece, I want to explore what that privilege means in the context of those who do not come from a world where they have lawyers for friends and family members. They feel the same forlorn disorientation as does your a loved one, but they do not have you riding to the rescue. I say that the obligatory cost of our privilege is that, at least to some degree, they should.

This idea first occurred to me in March 2012 when I was honored by Young lawyers section of the Connecticut Bar Association with their diversity award. I was asked to exhort the young lawyers to public service. Along with some good-natured ribbing on the idea that I had been asked to give an exhortation, I did my best to explain why I believe that lawyers have an obligation to perform pro bono service, and why I think that the most important such projects are the most humble. I told them this story.

When I was a junior associate, a partner of my then law firm approached me because she had been approached by a judge of the Surrogate’s Court. A mother had come into court seeking a Surrogate’s guardianship for her adult child with intellectual disabilities, so that she and his father could continue to partner with him in making the necessary legal decisions so that he could live his life. Surrogate’s guardianship in New York is a simple process specifically for people with a particular type of intellectual disability. It does not require a lawyer. In this case, the New York County Surrogate determined that the young man was not a good candidate for this type of guardianship, and needed a traditional guardian appointed through the main court system.

Thus was this mother stymied, and reduced to tears at the prospect of a legal proceeding that would require a lawyer, something beyond her means. The Surrogate, who was in my opinion a woman of great wisdom and compassion, was not willing to compromise the legal standards, but reached out to our firm in hopes that she could remove the practical barrier to this family getting what they needed.

I spent the next 6 months going through the mechanical and legalistic process of an uncontested guardianship appointment. Though uncontested, it required multiple filings, and the questioning of witnesses in open court. While no legal ingenuity was required, this simply could not have been accomplished without a lawyer, and I feel that this process was one of the most useful things I have yet done with my law license.

This story is not unique. Everything from buying a house in most states, to obtaining even a no-fault divorce or appointing an uncontested guardian requires a lawyer in our system. We have made critical tasks in individual lives dependent upon our profession. And, rightfully given the need to earn a living, we charge for our services, often quite a bit.

To compensate for these high fees, we donate some of our services pro bono publico, for the good of the public. In fact, we are taught that this is our obligation in exchange for the privilege of being considered professionals. It is an obligation that is becoming increasingly universally accepted. There is no question, that is a good thing.

Most of us, however, want to do sexy pro bono. In my firm must popular pro bono was marriage equality work, followed by some Guantánamo work, and some criminal appeals. People did some domestic relations, but it never felt like it had the same draw. In other firms, armies of associates work on death penalty cases, or impact litigation. All of this work is critical, and world changing. Yet it does nothing to serve the basic needs of people like my clients, who just wanted to be able to help their son.

My exhortation to the Young lawyers, therefore, was more than just to do pro bono. Certainly, I do not want them to cease their important work on the types of cases described above. We can and must move forward as a society on these big issues. What I request, however, is that they take some time to help with the little things.

I do not know if it is particularly desirable that lawyers are necessary for things to be accomplished in our society. I suspect that it is not. That, however, is beyond my ability to change, and largely beyond the ability of even the collective of young people that I spoke to in 2012. What we can do, what we must do, and what I ask any lawyers among my readers to continue doing, is take some time to help people navigate the system, addressing the problem one person at a time.

Disability, Independant Living, Law and Lawyers, Personal Care

Labor Protections for Personal Care: The Money Is Fuzzy, the Morals Are Clear

Since August 1998, when I was 16 years old, I have been dependent upon a unique class of professionals for all of my physical needs. These hard working men and women were integral to my earning two Ivy League degrees, my professional success, and really anything that I have achieved since leaving my parents’ home in 1998. On the East Coast we call them Personal Care Attendants, other regions refer to them as Personal Assistants. They, together with the slightly better trained Home Health Aides and Certified Nurse’s Aides, make up the incredible corps of giving, caring individuals that facilitate the lives of countless people with disabilities in order that they can live independently.

It will surprise few who are familiar with the economic realities of this country that, demographically speaking, this population of workers tends to be only high school educated (if that) and disproportionately minority, immigrant and female. It may be more surprising that, currently, due to a companion care exemption in the regulations implementing the FLSA, these individuals are not provided with mandatory overtime in excess of 40 hours, let alone items like sick time. (Arguably, even the current exemption is over applied, but that is outside of the scope of my post.)

The Obama administration has proposed regulations to end this exception, and they take effect soon. This is causing great consternation in the disability and caregiving communities, and Jeff Rosen, the Chairman of the National Council on Disability, on which I served until recently, has written a letter asking Labor Secretary Tom Perez to delay the implementation. The purported purpose of this delay is to

“allow DOL [Department of Labor] and the Department of Health and Human Services (HHS) more time to work with States as well as the disability and aging communities to understand the policy and operational issues, develop workable solutions on key components, and determine an appropriate course of action.”

With due respect to Chairman Rosen, this is a naked delay disguised with bureaucratic obfuscation. I was one of the moderators of the January 2013 meeting referenced in the letter, and the policy and operational issues could not be clearer.

As I said in the introductory paragraph, we who use these services are deeply aware of the value of the loyal service of these dedicated individuals. None of us want to see them get anything less than the very best, and not a single voice argued that they deserved anything less than that which is promised to other American workers.

Rather, there is a reality that no one wants to talk about. The vast majority of Americans, myself included, receive these services through government programs, the most common of which being Medicaid. Practically speaking, current state Medicaid budgets could not cover time and a half for these workers, and the likelihood of these budgets being changed simply because the Department of Labor changes the regulations is nonexistent. So what would happen?

Every current care attendant, personal assistant, or home health aide would be cut safely below 40 hours per week. I know this argument is often used to attempt to invalidate the goals and protections of the FLSA, but ask the reader to recognize that the incentives are entirely different when the person making the payment decision is completely distinct from the person benefiting from the labor. If a factory owner wants to split shifts to avoid paying overtime, that owner bears the cost of the labor inefficiency of multiple workers in the same job. The choice, whether to pay more or hire more, is a simple economic calculation, made by the decision maker. In this instance, neither the worker nor the beneficiary of the labor is making the decisions. To the budget official making Medicaid decisions, quality and continuity of care is only the most abstract consideration.

Here, essentially, everyone loses. The person with a disability loses because rather than have appropriately designed shifts balancing the needs of worker and consumer for maximum efficiency for both, they must arbitrarily break at the 40 hour line. Further, as the expression goes, good help is hard to find. To remain under 40 hours per week, the consumer may need to hire more people, and face the difficulty of fielding a larger team of staff with good skills and good fit. The person who loses most of all is the worker. There is no question that the worker would be better off working 60 hours where 20 are at time and a half than working 60 hours at time, but the real distinction is 60 hours at time versus 40.

What, then, to do? Most disability advocates are pushing strongly for the status quo, and I agree that the status quo would be better than the scenario that I outlined above. But what about real courage? What about saying to the Department of Labor and to the States “we support the proposed rule, Mr. Secretary, but we demand that part of self-determination is to free up the funds to authorize overtime as we see fit.” This would be a courageous option, protecting the rights of our caregivers while ensuring the needs of our consumers are met.

To my former colleagues, I say this. The answer is not difficult. Frankly, I have outlined our choices in two paragraphs. The hard part is gathering the conviction to push for the right decision, because this letter feels like merely trying to delay it.