January/February 2019

NDI Welcomes New Public Policy Staff

On January 14, National Disability Institute (NDI) welcomed a new colleague, Mark Richert, to serve as its Director of Public Policy working out of the organization’s Washington, D.C. offices. A native of Southern Florida, Mr. Richert is a graduate of the George Washington University Law School and a licensed attorney. He has extensive experience in the disability policy arena having worked for nearly a quarter century for organizations both of and for people who are blind or visually impaired. Most recently, Mr. Richert was the Director, Public Policy and Senior Advisor, Strategic Initiatives for the American Foundation for the Blind where, among many other accomplishments, he spearheaded the enactment of the landmark Twenty-First Century Communications and Video Accessibility Act, legislation heralded as the most comprehensive and significant technology and disability policy to become law since the historic Americans with Disabilities Act (ADA). Mr. Richert has been a long-time leader in the cross-disability policy community serving as a co-chair of the Civil Rights, Technology, Employment and Training, and other task forces of the Consortium for Citizens with Disabilities (CCD), a group of more than 100 national disability organizations. Blind since birth, he is excited to bring his energy, expertise and track record to bear on NDI’s policy agenda to advance economic self-sufficiency for all people with disabilities. To learn more about Mr. Richert, please visit the NDI Staff webpage.

ABLE Age Adjustment Legislation to Be Reintroduced

Advocates are gearing up for reintroduction of federal legislation to dramatically enhance the reach and benefit of the Achieving a Better Life Experience (ABLE) Act. In the U.S. Senate, Senator Bob Casey (D-PA) is leading the charge to reintroduce, and possibly expand upon, legislation that has been before Congress in the past. As of this writing, the new Casey bill is expected to be introduced in a matter of weeks. The bill, commonly called the ABLE Age Adjustment Act, would, at a minimum, significantly expand the number of individuals eligible to open their own ABLE accounts by raising the age of onset of disability to before the age of 46. Currently, to be eligible to open an ABLE account, an individual must have a qualifying disability that began prior to the individual’s 26th birthday. While increasing the age limit is a singularly important priority, NDI has also been advocating for additional critical improvements to the ABLE Act to ensure its success and maximize its utility for all people with disabilities. Specifically, NDI has been calling for a rollback of the so-called Medicaid payback provisions of current law which allows a state to seek reimbursement from a deceased individual’s ABLE account to cover costs associated with Medicaid services provided to the individual by that state. Since the ABLE Act’s enactment into law more than four years ago, a number of states, most notably among them California and Pennsylvania, have fortunately enacted state-level prohibitions against what many advocates refer to as “Medicaid clawback,” and still more states are considering their own bans or limitations on the practice. However, a patchwork of state-level prohibitions, critical though they may be, is an inferior approach to one establishing a clear national policy ensuring that contributions made to an ABLE account will not be possibly subject to seizure upon the death of the ABLE account owner. In addition to an increase in the age of disability onset and elimination of the Medicaid payback provisions, NDI has also been calling on policymakers to, among other things, establish and fund education and outreach grants and similar efforts to promote the use of ABLE accounts, to settle on a central federal hub for information dissemination and cross-agency coordination, and to allow employers to contribute to employee ABLE accounts with similar employer benefits in current practice with 401ks.

Expanded Tax Incentives to Employ People with Disabilities Proposed in Congress

The U.S. Congress is once again being invited to enact expansions to several underutilized tax credits available to employers intended to encourage the hiring and retention of people with disabilities while making workplaces more accessible. In recently reintroducing legislation they put before the U.S. Senate last summer, Senators Bob Casey (D-PA) and Tammy Duckworth (D-IL) and others are calling upon the 116th Congress to promptly enact S. 255, the Disability Employment Incentive Act (DEIA), which would increase the tax credit levels allowable to employers for the Work Opportunity Tax Credit, the Disability Access Expenditures Tax Credit and the Architectural and Transportation Barrier Tax Credit. Together, these tax credits not only reward employers for acknowledging the capabilities of people with disabilities to be full participants in the workforce, but also help to address any costs of reasonable accommodations provided and the need of employers to ensure a physically and programmatically accessible work environment for both employees and customers alike. While a lack of overall awareness of the availability of these tax credits is regularly blamed for employers’ underutilization of these options, S. 255 aims at making them more attractive to employers by increasing their bottom line value.

Update on Community Reinvestment Act Modernization Advocacy and the OCC

NDI continues to advocate for the elevation of the rightful place of disability alongside other socio-economic criteria within the context of investment by banks and other financial institutions in low- and moderate-income (LMI) communities across America. NDI senior leadership and policy staff met with officials of the U.S. Treasury Department’s Office of the Controller of the Currency (OCC) to reinforce, in person, the call NDI made in writing last Fall urging the OCC to infuse disability throughout the regulatory framework OCC uses to assess financial institutions’ success with community reinvestment. The OCC provided an ideal opportunity for NDI to push for the inclusion of disability when the OCC published an Advance Notice of Proposed Rulemaking (ANPRM) last year inviting written comment on Treasury’s intent to “modernize” the Community Reinvestment Act’s (CRA) decades-old requirements for community reinvestment and lending for those low- and moderate-income individuals most in need in economically depressed geographic areas. The senior OCC officials with whom NDI met welcomed the engagement in this critical dialogue and indicated that the formal written comments offered last Fall by NDI and a host of other stakeholder groups, including the American Bankers Association which followed NDI’s lead in calling for the addition of disability for the first time in the CRA regulatory framework, are being fully considered. OCC staff indicated that the next stage of the regulatory process, a formal Notice of Proposed Rulemaking (NPRM) is to be expected, but did not suggest a timeline for such action. NDI will continue to encourage Treasury to move ahead steadily toward formally incorporating disability as a prominent feature of the CRA framework so that financial institutions have proper incentive and recognition for their work to meet the unique needs of all people with disabilities.

Read NDI’s comments on Reforming the Community Reinvestment Act Regulatory Framework.

NDI Builds Bridges with a Little-Known Key ABLE Act Player, the MSRB

In January, NDI’s leadership and policy staff met with officials from a little-known, but critical federal player in the ABLE account arena, the Municipal Securities Rulemaking Board (MSRB). Haven’t heard of them? Well, advocates for the ABLE Act will recall that ABLE accounts are loosely modeled off of 529 accounts, tax-benefited savings and investment accounts authorized under section 529 of the Internal Revenue Code allowing families to set aside and grow funds for their children’s education. The MSRB is the self-regulatory body that provides oversight and develops regulations for these 529 accounts. ABLE accounts are authorized under section 529A of the Internal Revenue Code, and it is the MSRB that similarly exercises oversight and regulatory authority over state ABLE programs. Technically, the MSRB is not fully empowered to have the last regulatory word about the management of ABLE programs by the states to ensure appropriate adherence to applicable investment and related practices; that role resides with the federal Securities and Exchange Commission (SEC). However, the SEC looks to the MSRB to assume primary responsibility for developing regulations for the SEC to consider and adopt and to otherwise ensure that the public interest is served. The MSRB has established an advisory committee of prominent national banking, investment and disability experts to guide the MSRB in carrying out its ABLE Act (529A) functions, and NDI staff were pleased to learn about the MSRB’s intention to promote broader understanding of ABLE accounts and the investment options they can make available to consumers through education and outreach activities that the MSRB is undertaking.

Federal Reserve Requests NDI’s Participation in Invitation-Only Dialogue

On January 31, Michael Morris, National Disability Institute’s Executive Director, was one of only a dozen invitees to a meeting with senior staff at the Federal Reserve Bank to discuss potential future regulatory changes to the Community Reinvestment Act. This was the last of 25 listening sessions held by the Federal Reserve during the past year.

Utilizing the questions asked in the Advance Notice of Proposed Rulemaking, issued by the Office of Comptroller of the Currency last year, the discussion covered a full range of issues being considered as part of “CRA Modernization.” NDI emphasized three key points made in their submission of comments to OCC. Modernization of CRA must explicitly include low- and moderate-income (LMI) individuals with disabilities to be a focus of future investment, loans and services of financial institutions. Federal bank examiners and bank CRA officers will need to be trained to fully understand how CRA activity that benefits LMI individuals with disabilities is an expectation of CRA activities for the future. Finally, what gets measured gets done. There should be a deeper analysis of individual bank LMI-targeted CRA activities that examine investment, lending and saving expenditures to understand more fully and transparently specific focus and results with economically challenged groups defined by race, ethnicity, gender and disability. Without disaggregated data, it is more difficult to understand whether people with disabilities or others are being left out of CRA coverage.

NDI will continue to push forward with an inclusive CRA modernization approach that recognizes the economic and financial challenge of people with disabilities. Meetings with the regulators on Capitol Hill will continue.

NDI Issues 2019-2020 Public Policy Agenda

With a new Congress, NDI has put forward again a framework for further legislative and regulatory action that will continue to expand financial pathways for a better economic future for people with disabilities and their families. A major focus remains on expansion of eligibility criteria for ABLE accounts and other ways to increase awareness, use and growth of ABLE accounts.

Read the National Disability Institute Public Policy Agenda.

U.S. House and Senate Bills Introduced to Eliminate Subminimum Wage and Promote Competitive Employment

In late January, right at the beginning of the 116th Congress, legislation that had been long in the making was virtually simultaneously introduced in the U.S. Senate and House of Representatives intended to both end the practice of paying people with disabilities less than the minimum wage and to promote competitive employment in integrated settings. The Transformation to Competitive Employment Act (S. 260 in the Senate and H.R. 873 in the House), which NDI has endorsed, would accomplish several critical objectives. First, the bill would phase out section 14(c) of the Fair Labor Standards Act over a six-year period. After the six-year phase out, no employer will be allowed to pay individuals with disabilities less than minimum wage and be protected by federal law to do so. Second, the bill would authorize the U.S. Department of Labor (DOL) to make one-time grants to states of between $2 and $10 million over six years for the purpose of assisting states to implement statewide strategies, ensuring competitive integrated employment throughout the state. In states that are not awarded such grants, eligible nonprofit employers that use section 14(c) could apply for one-time grants of between $100,000 and $500,000 over three years for the purpose of transforming their employment opportunities into jobs that are competitive and integrated. Finally, the bill authorizes DOL’s Office of Disability Employment Policy (ODEP) to fund a comprehensive national assessment of progress achieved over the six-year period. The bill funds all of the described activities at $300 million over six years. Unlike other congressional legislation introduced over the years which either repealed section 14(c) outright without any well-developed transition period or incentives for 14(c) utilizers to end the payment of subminimum wages, this new bipartisan legislation aims at transitioning away from 14(c) while assisting states and entities to tackle the similarly significant issue of employment in integrated settings. The Senate version of the bill, S. 260, is being championed by Senators Bob Casey (D-PA) and Chris Van Hollen (D-MD), and the House companion, H.R. 873, is being co-led by the Chairman of the House Education and Labor Committee, Bobby Scott (D-VA-3rd), and prominent House Republican Cathy McMorris Rodgers (R-WA-5).

Advocates on the Lookout for Education Department Proposed Regulations Reopening WIOA and the Meaning of Competitive Integrated Employment

For a while now, disability policy watchers have been expecting the U.S. Department of Education to undertake rulemaking and related action wrestling with the meaning and/or implementation of the definition of competitive integrated employment. As of this writing, all signs point to the Department’s very real intent to reopen soon its vocational rehabilitation regulations implementing the Workforce Innovation and Opportunity Act (WIOA). The cross-disability community has been largely united in its opposition to any effort to reopen the WIOA regulations and has so indicated to the Department in writing. Among the many substantive and emotionally charged concerns about the Department’s current approach to WIOA implementation has to do with its treatment of employment outcomes in AbilityOne jobs. The majority view in the disability community would simply have the Education Department slightly revise its sub-regulatory guidance materials to, among other things, emphasize that AbilityOne-related jobs must be assessed on a case-by-case basis to ensure that such jobs meet the definition of competitive integrated employment. However, the vocal minority view would have the Department revise its regulations altogether in order to, as they see it, eliminate the bias against AbilityOne jobs as a whole. NDI has joined with the majority of voices in our community urging the Department not to reopen the WIOA regulations, and we will be keeping a close watch on developments as they unfold.