Legislative Updates

From Jean Jones
DVR/DVS Legislative Information Representative

2009 ~ 2008 ~ 2007

August 14, 2008

Comment Deadline Nears for DOJ’s Proposed ADA Rules on Accessibility
August 18th is the deadline for submission of public comments on the U.S. Department of Justice proposed new rules for meeting accessibility requirements under the Americans with Disabilities Act (ADA). Response to the proposed rules has been mixed, with most disability advocacy groups approving some changes but opposing others. Many have pointed to changes that could significantly weaken accessibility requirements for government agencies and businesses.

The national Disability Rights Education and Defense Fund (DREDF), a long-standing legal rights and education organization on disability issues, has analyzed the proposed rules and describes potential impacts. DREDF describes some of the DOJ rules as vast improvements but fears other swill have damaging results. Positive changes, according to DREDF, include:

• adoption of the new 2004 ADA Accessibility Guidelines developed by the Access Board;
• stronger hotel reservation and ticketing provisions;
• recognition of psychiatric service animals; and
• additional companion seating in theaters and stadiums.

But other changes could be harmful, DREDF believes. These include:

• a significant reduction of elements required to be accessible in state and local government facilities;
• an exemption for all existing facilities from the new recreation and playground rules; and
• a significant weakening of the readily achievable barrier removal requirement for public accommodations.

The American Foundation for the Blind (AFB) also supplies an analysis of the proposed rules at http://www.afb.org/Section.asp?SectionID=3&TopicID=110&DocumentID=4344 . Key concerns noted by AFB include:

DOJ’s Title III Public Accommodation rules do not provide adequate clarification of what businesses should do to make their information and services accessible to persons with sensory disabilities. AFB points out that almost two decades after ADA enactment, it is still hard to find accessible bank statements, bills, medicine labels or restaurant menus.
The DOJ rules fail to adequately address accessibility to Internet-only goods and services.
Other AFB concerns with the proposed rules center on testing accessibility, video description in movie theaters, and the definition of service animals.

To read the Notice of Proposed Rulemaking (NPRM) go to http://www.ada.gov/NPRM2008/ADAnprm08.htm.

Both DREDF and AFB websites tell how to submit comments on the proposed ADA rules.

Americans with Disabilities Act Amendments
On July 31 U.S. Senator Ton Harkin (D-IA) and Sen. Orrin Hatch (R-UT) introduced the Senate ADA Amendments Act, S. 3406. As introduced, the bill had 56 cosponsors. Harkin and Hatch say the Senate ADA bill builds on the House-passed measure (H.R. 3195) in a way that ‘maximizes” the bipartisan consensus that allowed this legislation to move forward and achieve House passage on a 402-17 vote.

Although the 64 Senate cosponsors show a mix among parties, neither Oklahoma Senator has signed on as a cosponsor of the bill.

H.R. 3195 will restore reasonable ADA coverage for people with significant disabilities who require the use of medicine, prostheses or specialized equipment to improve medical condition or functioning, or to stabilize their conditions. At the same time the bill will clarify the definition of a covered disability to address the concerns of the business community.

All Oklahoma U.S. House members cosponsored H.R. 3195 and voted for it.

Some provisions of the ADA Amendments:

In its findings at the beginning of the bill, Congress notes that it had expected the courts to interpret the ADA definition of disability based on the way the Rehabilitation Act’s Section 504 definition of “handicap” has been interpreted, but this has not happened. Instead, Congress notes, court decisions have resulted in denial of ADA protections for many Americans with disabilities who Congress intended should be protected.

The legislation retains the current ADA definition of disability - “a physical or mental impairment that substantially limits one or more major life activities…” - but defines the term “substantially limits” to mean materially restricts.

The bill defines major life activities to include, but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. It states that a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

H.R. 3195 further states that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Under the bill, the determination of whether an impairment substantially limits a major life activity would be made without regard to the ameliorative effects of mitigating measures such as
- medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;
- use of assistive technology;
- reasonable accommodations or auxiliary aids or services; or
- learned behavioral or adaptive neurological modifications.

Ordinary eyeglasses or contact lenses are defined as those which fully correct a person’s eyesight. Low vision devices are defined as devices that magnify, enhance, or otherwise augment a visual image. These definitions were added to help distinguish between visual impairments that constitute a disability and those that do not.

The legislation states that provision of accommodations by an employer, government agency or business is not required in the case of a person who is regarded as having an impairment under the third prong of the ADA definition of disability, but who does not actually have an impairment.

Transportation
The U.S. House has overwhelmingly passed a bill (H.R. 6532) to transfer over $8 billion from the General Fund to the Highway Trust Fund, to avert a projected shortfall in that Fund in the coming fiscal year. The President’s FFY 2009 budget proposal forecasted a $3.3 billion shortfall in highway funds for the coming year, but the deficit could be greater than that since high gas prices have forced consumers to drive less and buy fewer gallons of gasoline - thus reducing the income to the Fund from gas taxes.

Rep. James Oberstar (D-Minn) who chairs the House Transportation and Infrastructure Committee has billed the $8 billion from the General Fund as a stopgap measure that will get the country through a Highway Trust Fund shortfall until next year, when they will try to craft a long-term fix as part of the surface transportation reauthorization bill.

Some legislators have objected to taking the $8 billion from the General Fund, preferring instead to take money out of the Transit Fund to aid highways.

However, this bill passed the House on a vote of 387-37, more than a two-thirds majority. The bill’s author is Rep. Charles Rangel (D-NY), chair of the House Ways and Means Committee.

The Senate Appropriations committee has included a similar fix for the Highway Trust Fund deficit in its FFY-2009 appropriations bill for the U.S. Department of Transportation. However, this appropriations bill, like many others, is not expected to be enacted this year because there are as yet no signs that the current Congressional majority and the President can come to terms on appropriations levels, and Congressional leadership may not want to risk a likely Presidential veto of the transportation spending bill, since the ability to override a veto is not certain. In addition, the President has also promised to veto H.R. 6532.

In predicting he would veto the House bill, the President called the House provision a gimmick that shifts the cost of highway transportation from users to taxpayers at large. He has recommended addressing the Highway Trust Fund deficit by reducing spending and using money from the Fund’s Transit Account, which is currently in surplus.

Transportation, Pedestrian Safety And Community Access
H.R. 5951 and S.2686 are the Safe and Complete Streets Act of 2008, which would establish national policy for a transportation system that serves the mobility needs of all Americans, including people with disabilities, the aging, children, bicyclists and pedestrians.

This legislation would require states to enact laws or establish policies that promote “complete street” principles that assure

(A) all users of the transportation system, including pedestrians, bicyclists, and transit users as well as children, older people, motorists, and those with disabilities, are adequately accommodated in all phases of project planning and development; and

(B) that the safety and convenience of all users are considered in all phases of street project planning and development.

States or metropolitan planning organizations would have to have laws or policies in place by two years after enactment of this legislation. “Complete street” policies would apply to new construction or renovation projects funded with federal dollars under transportation improvement programs (TIP) that are developed periodically by states and planning districts such as (in Oklahoma) ACOG and INCOG.

H.R. 5951 was introduced May 1, 2008 by Rep. Doris Matsui and was assigned to the
House Committee on Transportation and Infrastructure. Oklahoma Rep. Mary Fallin serves on that committee and also is a member of its Subcommittee on Highways and Transit, which is currently considering the bill. Members are listed at http://transportation.house.gov/about.aspx . S. 2686 by Sen. Tom Harkin was introduced March 3, 2008, and assigned to the Senate Committee on Commerce, Science and Transportation. Members are listed at http://commerce.senate.gov/public/index.cfm?FuseAction=Subcommittees.Subcommittee&Subcommittee_ID=20163057-7b5f-4e7c-9eb9-5d2ef2cab2ee .

House Approves $1.7 Billion for Transit
The U.S. House has overwhelmingly passed H.R. 6052, the Saving Energy Through Public Transportation Act of 2008. The bill allocates $1.7 billion to transit and promotes use of public transportation in other ways.

In 2007, Americans took more than 10.3 billion trips on public transportation, the highest level in 50 years. Public transportation use is up 32 percent since 1995.

Public transportation use saves fuel, reduces emissions, and saves money. In a fact sheet, the House Committee on Transportation and Infrastructure reports that public transportation use saves the United States the equivalent of 4.2 billion gallons of gasoline annually, or more than 11 million gallons of gasoline per day. Public transportation use is estimated to reduce carbon dioxide emissions by 37 million metric tons annually. A commuter who switches from driving to work alone to public transportation can reduce carbon dioxide emissions by 20 pounds per day, or more than 4,800 pounds in a year. Public transportation use provides an affordable alternative to driving, as households that use public transportation save an average of $6,251 every year. As such, increasing public transportation use is a priority of the Committee on Transportation and Infrastructure.

A primary objective of H.R. 6052 is to reduce the United States dependence on foreign oil by encouraging more people to use public transportation.

Provisions in H.R. 6052 include:

• Authorization of $1.7 Billion of Capital and Operating Funds for Transit Agencies to Reduce Fares and Expand Transit Services: This section authorizes $850 million (General Fund) for each of fiscal years 2008 and 2009 to allow public transit agencies to reduce transit fares and expand transit services. These funds will allow transit agencies to provide incentives for commuters to choose transit options, thereby reducing our nation’s transportation-related energy consumption and reliance on foreign oil, as well as decreasing its greenhouse gas emissions. These funds will be distributed under current law urban and rural transit formulas (49 U.S.C. 5307 and 49 U.S.C. 5311, respectively). The Federal share for these grants is 100 percent and funds will only be available for a two-year period.
• Increases the Federal Share for Clean Fuel and Alternative Fuel Transit Bus, Ferry, or Locomotive-related Equipment and Facilities from 90 percent to 100 percent.
• Extends Transit Benefits to All Federal Employees: Under current law, all Federal agencies within the National Capital Region are required to establish a transit pass benefits program and offer transit passes to Federal employees. The bill establishes a nationwide Federal transit pass benefits program and requires all Federal agencies in the United States to offer transit passes to Federal employees.
• Establishes a Vanpool Pilot Program.
• Increases the Federal Share for Additional Parking Facilities at End-Of-Line Fixed Guideway Stations.
  H.R. 6052 has gone over to the Senate where no action has yet been taken on the bill.

Communications Access
The 21st Century Communications and Video Accessibility Act, H.R. 6320, will fill gaps in existing access to telephone, Internet and TV broadcasts by people with disabilities. It also lays groundwork for adjusting to new technologies, so that Americans with disabilities are not left behind in access to emergency broadcasts, phone, Internet and video programming. Especially important to Oklahomans who are deaf and blind, H.R. 6320 requires that weather, disaster and other emergency TV messages be presented so that visually impaired, deaf and hard of hearing people can receive them.

Authors of the legislation are Rep. Ed Markey (D-MA) and Rep. Heather Wilson (R-NM). The Coalition of Organizations for Accessible Technology (COAT) and its 80+ member organizations are supporting this bill.

Provisions include:

• Requires access to televised emergency information via audio output for on-screen text by people who are blind or visually impaired.
• Requires audio access to on-screen program selection menus displayed on video programming devices for people who are blind or visually impaired according to offices that you all have visited or contacted already.
• Restores FCC’s video description rules and applies them to digital programming.
• Requires easy access to user interfaces (controls) on video programming devices by people with disabilities, including audio output for people who are blind and visually impaired and one-button access on remote controls to closed captioning and video description functions.
• Extends closed captioning obligations to television-type video programming distributed over the Internet: covers web-based video services that offer previously shown television programs and live video streaming that would otherwise be covered by the FCC’s captioning rules.
• Requires closed captioning decoder circuitry in all video programming devices, including PDAs, computers, iPods, cell phones, DVD players, TIVO devices and battery-operated TVs. (Current law: Decoder circuitry is only required on TVs with screens at least 13 inches)
• Clarifies scope of relay services to include calls between and among people with disabilities, and requires Internet-enabled service providers to contribute to the interstate relay fund.
• Allocates up to $10 million/year from the Universal Service Fund for equipment used by people who are deaf-blind.
• Requires support for real-time text data transmissions to facilitate access to next generation 9-1-1 systems by people with hearing loss.
• Allows use of Lifeline and Link-up universal service funds (USF) for broadband services.
• Requires access to phone services provided over the Internet.
• The bill is assigned to the House Committee on Energy and Commerce. Oklahoma’s Rep. John Sullivan is a member of the Committee.

COAT is hoping H.R. 6320 can gain enough cosponsors to secure its chances of passage this year.

More information on the bill at COAT’s website: http://www.coataccess.org/

Randolph-Sheppard and JWOD
S. 3112 (Enzi), the Randolph-Sheppard and Javits-Wagner-O’Day Modernization Act, will affect employment opportunities for Oklahomans with blindness and other disabilities. It will make major changes in the vending facility program for the blind. Until now, qualified blind individuals have been given priority to operate vending facilities in public buildings. S. 3112 would remove that priority, and sharply change the way the program is administered. Oklahoma blindness organizations have indicated they cannot support S. 3112 in its current form.

Major elements of the proposed bill:

• Repeals the current Randolph-Sheppard Act and JWOD Act, rewrites the law on these programs, and places both programs under the administration of a new committee, called the Committee for Advancement of Individuals with Disabilities. This new committee replaces the existing Committee for Purchase which has provided federal contracts to nonprofit agencies for the blind and disabled under the Javits-Wagner-O-Day program.
• Expands the Randolph-Sheppard program to include persons with disabilities other than blindness.
• Expands Randolph-Sheppard to promote self-employment and entrepreneurial opportunities in the private sector business world.
• The absolute priority for licensed blind vendors would end. Three years after the law is enacted, state licensing agencies would have to open up the vending facility program to all disabilities, or they could merge with the general VR agency self-employment program.
• 50% of new vending facility locations would be reserved for licensed blind vendors, and the other 50% would be reserved for licensed vendors who may be either blind or otherwise disabled.
• The bill sets forth the duties of vendors, including the duty to employ individuals with disabilities.
  A separate title of the bill deals with Department of Defense (DOD) contracts for military dining facilities. All existing contracts would be rebid when the contract term ends.
• For military dining contracts, DOD would have to give equal priority to licensed vendors under the Randolph-Sheppard program and disadvantaged businesses under several Small Business Administration categories.
• S. 3112 is in the Senate Committee on Health, Education labor and Pensions (HELP).

Caring for the Terminally Ill
H.R. 5510 is the Security for the Terminally Ill Act. It amends Title II of the Social Security Act to eliminate the five-month waiting period for disability benefits for terminally ill individuals. Persons would have to be certified by a doctor as having a terminal illness with life expectancy of 6 months or less.

The bill is assigned to the House Ways and Means Subcommittee on Social Security, and has seen no action as yet.

Medicare Improvements Act Enacted Over President's Veto
On July 15th, the U.S. House and Senate both overrode President Bush's earlier veto of H.R. 6331, the Medicare Improvements for Patients and Physicians Act of 2008.

The bill postpones scheduled cuts in Medicare physician payments to physicians and hospitals. According to many, the legislation was needed to preserve access to health care for millions of Americans on Medicare.

The House voted 383-41 to override the President's veto, while the Senate passed the bill by 70-26.

Specifically, H.R. 6331 prevents a 10.6 percent reduction in the Medicare payment rate for physician services (set to take effect on July 1, 2008) and provides physicians with a 1.1 percent increase for 2009. In order to offset this action on physician fees, the bill reduces reimbursements to Medicare Advantage plans, HMO-type plans often operated by private insurance companies, which the bill's supporters say have been getting overpaid at a rate of 13 percent or more.

Other provisions in the ne law include:

• An 18-month postponement of the Medicare DME competitive bidding initiative (offset by a small reduction in DME rates to vendors, reportedly acceptable to DME vendors if the competitive bidding plan is scuttled)
• Expansion of preventative services under Medicare
• Reauthorization of diabetes programs including one serving Native Americans
• Incentives for doctors to use e-prescribe technology
• Anti-fraud provisions
• Restoration of certain funding for veterans health care
• Provisions to protect patient access to community pharmacies
• Phases-in of a reduction in co-payments for mental health benefits to reach parity with cost-sharing for other Medicare benefits
• Expansion of funding for a Medicare medical home demonstration project that will study the impact on quality and cost of a new program to reimburse primary care physicians for care coordination. This concept has also been promoted in legislation considered by the Oklahoma Legislature this year.

With H.R. 6331 now law, Congress can redirect its attention from just 'stopping the cut' to enacting comprehensive and long-term reforms of Medicare payment and coverage policies. In the medical field, the enactment of this legislation is also being heralded as a critical step to strengthen the foundation for quality health care in America by enhancing the ability to recruit and retain talented doctors for primary and diagnostic care.

H.R. 6331 had earlier received strong bipartisan support in the House, and to a lesser degree in the Senate, which took two tries to pass the bill. Virtually all aging and disability organizations had signaled their support for the bill and most health care industry groups had lobbied for its passage.

Medicaid
H.R. 5613 is the Protecting the Medicaid Safety Net Act. The bill puts a moratorium on proposed Medicaid rules that drop the rehabilitation option, cut Medicaid services for school children and stop the use of Medicaid funds for certain case management services. The rehabilitation and case management options are especially used to provide community-based services. There is fear that, if finalized, these Medicaid rules could close down community-based providers and cut services to citizens with developmental disabilities and mental illness.

H.R. 5613 has passed the House but remains stalled in the Senate.

Interim Legislative Studies
2008 Interim Study Proposals approved by Oklahoma Senate leaders include:

Health Insurance Coverage for Autism. Requested by Senators Bill Brown and Jay Paul Gumm. Assigned to the Senate Retirement and Insurance Committee.

Expanding Passenger Rail Transit. Requested by Senator Constance Johnson. Assigned to the Senate Transportation Committee. Another study on Oklahoma Railroad System was requested by Senator Mike Shulz and also assigned to the Transportation Committee.

Two studies dealing with the health care workforce were requested and approved, both assigned to the Senate Health and Human Resources Committee. The first is a comprehensive assessment of healthcare workforce issues, requested by Senator Susan Paddack. Another is on rural health and medical care, and the healthcare provider shortage, by Senator Ron Justice.

House 2008 interim studies include:

Study 08-042 (Steele) merges several different study proposals. Rep. Steele’s proposed study would look at ways to improve services to children with autism in education, health and social arenas. Other studies melded with 08-042 include: Study 08-004 (Dank) to look at the impact of autism on Oklahoma citizens and the impact of health insurance coverage mandates on access to health care coverage and costs of health care. A proposed study by Rep. Collins to look at cost-benefit issues on coverage of autism, and to let parents speak on this issue. Study 08-066 (Blackwell) on autism as a covered health insurance benefit. Proposal 08-105 (Brown) to study the cost of covering autism in health insurance. Study 08-042 is assigned to the House Economic Development Committee.

Study 08-007 (Collins), to study conditions at Griffin Memorial Hospital in Norman. Assigned to the House Public Health Committee.

Study 08-014 (Enns) will follow up on Rep. Enns’ legislation in 2008, to look at ways of promoting stem cell research using only adult stem cells.

Study 08-015 (Tibbs) to study cell phone use and texting while driving. This study has an injury prevention impact. It incorporates Study 08-097 which addresses cell phone use by teenage drivers. Assigned to House Judiciary Committee.

Study 08-025 (R. McDaniel), to look at higher education costs and tuition assistance programs. Assigned to House Education Committee. Related studies are 08-094 and 08-114.

Study 08-031 (Coody), to study special education and early childhood education licensure as it relates to the teaching of reading. Assigned to House Education Committee.

Study 08-040 (Enns), to study special education litigation in Oklahoma schools. Assigned to House Education Committee.

Study 08-057 (Wright), to analyze the current services provided by the Oklahoma Health Care Authority to children with developmental disabilities. Assigned to the House Public Health Committee.

Study 08-061 (Jones), to study an Oklahoma state school for autism. Combined with Study 08-107 (Winchester), which looks at creating an autism school at USAO at Chickasha. Assigned to the House Education Committee.

Study 08-063 (Steele), to study health care reforms and reducing the uninsured. Assigned to the House Economic Development Committee.

Study 08-072 (Thompson) on transportation and highway safety devices. Assigned to the House General Government and Transportation committee.

Study 08-095 (Pittman) to bring community leaders, state officials and organizations together to study and determine best practices from providing better rehabilitation services, transportation, education, vocational training and employment to individuals who are blind or have vision impairments. Assigned to the House Human Services Committee.

Study 08-096 (Jackson, Coody, Steele, Morgan), to study nursing homes and the Health Care Authority. Assigned to the House Human Services Committee.

Study 08-101 (Dennis Johnson), to study ways to use EBT cards to keep track of sales tax exempt purchases for disabled veterans. Assigned to House Public Health Committee.

A proposal to study light rail for Oklahoma was not approved by the Speaker.

Other House interim studies that could impact vocational rehabilitation or Oklahomans with disabilities include a study of college textbooks and educational materials; use of ATVs on public streets; student behavior and discipline problems in public schools; tax policy; state employee turnover; identifying Oklahoma’s critical workforce needs; and rural medical care.