What's Happening in Washington?: Federal Disability Policy Updates

by Alison Barkoff and Molly Burgdorf, Center for Public Representation

With the 2018 midterm elections behind us and a new Congress beginning in January, we are looking ahead to the challenges and opportunities in 2019. While it’s hard to predict, below are some of the major advocacy issues we expect to work on this upcoming year.

Healthcare, Medicaid and the Affordable Care Act (ACA)

Some observers called November’s election a “healthcare election.” For the last two years, the disability community fought attempts by Congress to cut Medicaid and repeal the ACA. With the newly-elected Congress – the House of Representatives will have a Democratic majority and the Senate will continue to have a Republican majority – bills to repeal the ACA or cut Medicaid will likely be unable to pass both houses.

We likely will see both the Senate and House introduce proposals around “universal healthcare,” expanding the public healthcare options for all Americans. So far, these bills have ranged from “Medicare-for-All” to Medicaid Buy-in programs. While it’s unlikely that these bills will pass in the next Congress, a discussion about improving access to healthcare is underway. Disability advocates are working with Congress to educate them about the services that people with disabilities need – particularly Home and Community-Based Services (HCBS) – to ensure they are included in any healthcare proposals.

You may have heard that a federal judge in Texas recently issued a decision finding the entire ACA unconstitutional, including its provisions protecting people with pre-existing conditions. The decision is still moving through the courts, and we expect it will ultimately go to the Supreme Court (although this process will take some time). The Administration has made clear that the decision will not go into effect until the case is final.  That means the ACA is still the law of the land. Other courts may also rule on the issue before it makes its way to the Supreme Court (for example, there’s currently a case pending in Maryland). The decision has already intensified the healthcare debate and could even create some momentum around new healthcare bills that are even more expansive than the ACA.

The midterm elections made changes in Congress, but not in the federal agencies. We expect to continue to see concerning healthcare policies from the Administration, like the recent expansion of Short-Term Plans (that can exclude people with pre-existing conditions or charge them higher rates); allowance of Section 1332 ACA waivers (which increase state flexibility but may also circumvent protections); and approval of new Section 1115 Medicaid waivers with significant restrictions on access, like work requirements. With a Democratic majority in the House, there may be oversight hearings related to the impact of these healthcare policies.

The midterm energy around healthcare played out at the state level too. Three states (Idaho, Nebraska and Utah) passed Medicaid expansion bills, meaning there are now 37 states that have expanded Medicaid.

Money Follows the Person

The disability community has been working hard to try to get Congress to reauthorize the Money Follows the Person (MFP) program. MFP provides funding to states to help people with disabilities move into the community from institutions. The program has assisted more than 88,000 individuals to return to the community. It expired in 2016, and states have run out of funding or will soon. If a bill to fund MFP doesn’t pass the “lame duck” session (the session from the election until the next Congress begins in January), getting a bill to fund MFP re-introduced and passed in the next Congress will be a priority.

Employment of People with Disabilities

Most of us know from experience that having a job is critical to being able to earn a living, contribute our skills and experience and be part of the community. Competitive, integrated employment (CIE) – jobs where people with disabilities are paid the same wages, have the same opportunities for advancement, and work alongside their co-workers without disabilities – has been a top advocacy priority for the disability community.

Employment of people with disabilities has been the subject of numerous bills in this Congress. There are several proposed bills that could increase opportunities for CIE for people with disabilities, many of which we expect will be reintroduced in the next Congress:

  • The Disability Employment Incentive Act of 2018 (S. 3260): Enhances tax credits for hiring a person with a disability, removing barriers and retaining a worker with a disability for at least two years.
  • Transitioning to Integrated and Meaningful Employment (TIME) Act (H.R. 1377): Phases out Section 14(c) of the Fair Labor Standards Act, which allows the payment of subminimum wages to people with disabilities, over several years.
  • Transitions to Independence (H.R. 4931): Creates a pilot program to provide enhanced Medicaid funding to incentivize states to shift funding and capacity from sheltered workshops and other segregated day services to CIE.
  • Raise the Wage Act (S.1242 and H.R. 15): Raises the national minimum wage to $15 per hour and includes a proposed multi-year phase out of Section 14(c) subminimum wages.

We are also working to protect the gains we’ve already made, such as the Workforce Innovation and Opportunity Act (WIOA) and its regulations. WIOA was passed with overwhelming bipartisan support and expressed a clear policy in support of CIE. We remain concerned about Congressional efforts to roll back the law, particularly the Workplace Choice and Flexibility for Individuals with Disabilities Act (H.R. 5658) that would weaken WIOA’s definition of CIE. In addition, the Department of Education has given public notice that they may open the existing WIOA regulations in early 2019. If the rules are opened, it will be critical for the disability community to submit comments sharing why CIE is so important to people with disabilities.

Home and Community-Based Services (HCBS) Settings Rule

Finally, a Georgia-specific update. We’re expecting Georgia’s transition plan implementing the HCBS Settings Rule to come out for public comment soon, before it’s resubmitted to the Centers for Medicare & Medicaid Services (CMS) for final approval. As we’ve written before, input from advocates and HCBS participants is critical so that the state will implement the HCBS settings rule in ways that ensure HCBS participants are fully included in the broader community.

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Please note: information in this article is current as of January 2, 2019.

Alison work picture 2014Alison Barkoff is the Director of Advocacy at the Washington, DC office of the Center for Public Representation.
She works on policy and litigation related to community integration and inclusion of people with disabilities, including Olmstead enforcement, Medicaid policy, employment, housing and education.



Molly Burgdorf is the Senior Policy Attorney at the Washington, DC office of the Center for Public Representation.
She served as a Civil Rights Analyst with the Office for Civil Rights, Senior Advisor in the Center for Policy and Evaluation in the Administration for Community Living and as Senior Advisor with the Administration on Intellectual and Developmental Disabilities in the Department of Health and Human Services (HHS).


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