NEW YORK STATE 2005
DISABILITY CAUCUS AGENDA

On September 9, 2004, the New York State Independent Living Council (NYSILC) and the New York State Association on Independent Living (NYAIL) sponsored a statewide disability caucus in Albany. Over 120 advocates from across the state participated in the caucus to review and develop a comprehensive agenda for New Yorkers with disabilities. Advocates generally agreed to reprioritize their time to housing, health care, civil rights, inclusive education, and transportation issues, but also had doubts about the proper implementation of the Most Integrated Setting Coordinating Council (MISCC) and the Help America Vote Act (HAVA). In addition, concern was also expressed about funding for the statewide network of Centers for Independent Living (CILs).

I. HOUSING
Goal: To advocate for accessible and affordable housing in New York State, working with local, state and federal agencies to develop and maintain the state's accessible and affordable housing stock, and urge compliance with Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA), the Fair Housing Act and all applicable regulations and laws.

Action  Priorities:

1) Establish a Housing Trust Fund dedicated to people with disabilities. A Housing Trust Fund would provide grants or loans to low-moderate income or very low-income individuals with disabilities in order to obtain accessible housing. Funds could be used for home modifications or rental subsidies. In addition, low-interest loans could be made to housing developers in order to construct or rehabilitate existing housing to make it accessible and affordable to individuals with disabilities. The goal of the Housing Trust Fund is to increase the supply of accessible, affordable, and integrated housing throughout New York State. Placing a $30 surcharge on fines for DWI, DUI, Non-Use of Seatbelts, and other moving violations could fund the Housing Trust Fund. A surcharge on such activities seems logical as such illegal activities could potentially lead to the acquisition of a disability. It is estimated that this additional surcharge could generate $20-$30 million each year.

Status: Draft bill language was not introduced during the 2005 legislative session. Advocates were pleased when Governor Pataki announced the "Access to Home" program in his state-of-the-state address. The state Department of Housing and Community Renewal (DHCR) proceeded with plans to implement the new program, which will be a creative option to help divert and transition New Yorkers with disabilities from institutional settings. However, a Housing Trust Fund is still required to address this need, especially on a long-term basis.

2) Pass legislation to establish a mandatory statewide housing registry of all housing stock (public and private) inclusive of accessible and affordable housing. A statewide mandatory accessible housing registry would assist people with disabilities in locating accessible rental units. Given the scarcity of accessible housing, it is extremely important that individuals with disabilities know where accessible housing is located. The enactment of this resource is consistent with the State’s obligations to implement the 1999 Olmstead U.S. Supreme Court decision.

The legislation would require that all owners/managers of accessible apartments report vacancies to a central registry. Landlords would then be required to hold the apartment for at least15 days in order to attempt to rent the apartment to a person with a disability. If during the 15-day period, a person with a disability does not rent the apartment, the apartment could then be rented to an individual who does not have a disability. This legislation should be modeled after the "Mass Access" housing registry in Massachusetts. More information on the Mass Access program can be found at:

www.massaccesshousingregistry.org

Status: The Assembly introduced a bill to establish a statewide housing registry for individuals with disabilities (A.07868). The bill authorizes the commissioner of the state Department of Housing and Community Renewal (DHCR) to maintain a housing registry of accessible or adaptable housing for people with disabilities called "Access-New York." It also establishes a special advisory panel to assist in the implementation of the program. The bill passed in the Assembly on 05/18/2005. A "same as" bill was introduced in the Senate (S.4875-A) and referred to committee. The Senate did not take any further action on the bill by the end of the legislative session.

3) Expand the Senior Citizen Rent Increase Exemption (SCRIE) for people with disabilities to address the affordable and accessible housing crisis in New York City. People with disabilities in New York City have difficulty finding and maintaining affordable and accessible housing. Expanding the Senior Citizens Rent Increase Exemption (SCRIE) program to include people with disabilities could help to alleviate this problem. It would make New York City residents with disabilities eligible for tax abatement for rent-controlled and rent-regulated property. A SCRIE program for people with disabilities would exempt low-income tenants with disabilities from rent increases if they live in rent-controlled, rent-stabilized, or Mitchell-Lama Housing. Once eligible tenants enter the program, they would continue paying the same rent every year, and their landlords would receive a tax abatement to cover the lost rent. This is less costly than having a tenant with a disability leave home and move to subsidized or public housing, or worse, an institution. It also represents a proactive strategy to demonstrate compliance with the 1999 U.S. Supreme Court’s Olmstead decision.

Status: COMPLETED 07/12/05. The Assembly originally passed A.1092 on 05/18/05. The bill was amended (A.1092-A) and re-passed on 06/23/2005. The Senate passed a "same as" bill (S.5891) on 06/24/2005. The Governor signed the Disability Rent Income Exemption (DRIE) into law on 07/12/2005. DRIE provides rent increase exemptions for persons with disabilities in New York City similar to what is provided to senior citizens (62 years of age or older). The program applies to persons with disabilities receiving Supplemental Security Income (SSI), Social Security Disability Insurance (SSDI), Disabled Veterans Benefits, and qualified Mitchell Lama residents, and persons transitioning to the Medicaid buy-in program.

4) Pass legislation that would make Visitability a part of the NYS Building Code. Currently, only 5% of newly constructed, federally assisted, single-family houses and townhouses must have accessibility features for individuals with mobility impairments. Individuals with disabilities who reside in "non-covered" housing must pay for expensive renovations themselves or try to secure other funding. In many cases, individuals with disabilities are displaced from their own homes into institutions because they are not able to secure funding to make their homes accessible. In other instances, individuals with disabilities become socially isolated because architectural barriers in homes prevent them from visiting friends and relatives. Therefore, the State should enact legislation that would require that ALL newly constructed single-family houses, townhouses, and ground-floor units of duplexes and triplexes meet minimum standards of access or visitability. This would allow individuals with disabilities and seniors to remain in their own homes. New York State must take proactive steps to increase the availability of affordable, accessible, and integrated housing stock to meet the huge projected increase in units needed by 2015 due to the aging "baby boomer" population.

Visit the following NYSILC website link for the position paper, "HOME SWEET HOME…unless you don’t have a home:"

http://www.nysilc.org/primary_source/Housing%20Paper%20March%202004%20Final.htm

Emerging Issues: Housing was prioritized as the top issue at the disability caucus. Additional emerging issues identified for this area included: Restoration of severe cuts to the federal HUD Section 8 housing voucher program, passage of Section 504 of the Rehabilitation Act (as amended) into state law, and creation of a state housing rental subsidy to compliment the new Nursing Home Transition and Diversion Medicaid waiver.


II. HEALTH CARE
Goal: To advocate for changes in policy and legislation that would enable people with disabilities to transition or divert from institutional to integrated community settings.

Action Priorities:

1) Oppose any cuts to Medicaid effecting eligibility, benefits/coverage or access to services. The current administration has continued to express interest in instituting a cap on federal contributions to the Medicaid program. Such a change, whether through a block grant or other capped allotment would be harmful for New Yorkers with disabilities who rely on Medicaid services to make a difference between a life in the community and a life in the institution. Currently, a block grant or capped entitlement approach to Medicaid spending would make New York’s budget more vulnerable, as federal dollars would not increase even if a rising demand for services or an increase in the cost of health care services occurred. Diminished Medicaid payments will shrink the health care workforce, decrease the quality of care, and discourage providers from treating people with disabilities who are Medicaid beneficiaries.

Status: Continue to monitor and address the issue in future years at both the state and federal levels.

2) Support the passage of EPIC, New York’s pharmaceutical assistance program, to people with disabilities under the age of 65. People with disabilities who qualify for Social Security Disability (SSD) under the age of 65 and only receive Medicare are forced to purchase expensive prescription drugs out of their pocket. This places an enormous burden on these individuals. Many are forced to choose between the cost of their medications and basic sustenance needs like food and housing. This results in inconsistent treatment, which is not only inhumane, but also more costly in the long run. This inadequate benefit will not solve access problems to prescription drugs for people with disabilities. The state EPIC program has been helping seniors afford prescription drugs for over 20 years. However, the EPIC program continues to exclude people with disabilities under the age of 65. New York State is one of the only eastern states without this drug benefit in place. New Yorkers with disabilities must be included in EPIC.

Status: Assembly bill A.3074 makes persons meeting certain income requirements, such as Social Security Disability Insurance (SSDI) benefits, eligible for elderly pharmaceutical insurance coverage. The bill was referred to ways and means. The Senate referred a "same as" bill to the Aging Committee. It was amended (S.1357-A) and recommitted to Aging.

3) Ensure that the New York State Most-Integrated Setting Coordinating Council writes and implements a concrete action plan with the Coalition To Implement Olmstead in New York (CTIONY). The U.S. Supreme Court’s 1999 Olmstead decision found that the Americans with Disabilities Act (ADA) requires states to serve people with disabilities in the most integrated setting possible. New York State still has thousands of people with disabilities in institutions that are more restrictive than necessary to meet their needs. There is no acceptable rationale for keeping people in segregated settings. Public policy should support the fullest possible independence, inclusion, and participation. The state must address ending the institutional bias in the Medicaid Long Term Care system and make sure there is adequate affordable and accessible housing for those who will be transitioning from nursing homes into the community.

Overall, these steps will cut government spending because integrated community-based supports are, on average, less expensive than restrictive, segregated programs. The best way to ensure compliance with this U.S. Supreme Court decision is to have the State’s Most-Integrated Setting (MIS) Coordinating Council plan and implement the recommendations made by the Committee To Implement Olmstead in New York (CTIONY). A copy of CTIONYs policy paper can be referenced at the NYS Coalition for Aging website, www.coalitionforaging.org. Click the gray box in the middle of the home page for the CTIONY policy paper.

Status: In the fall of 2004, the Data, Assessment, Community Services, Quality Improvement/Quality Assurance, and Transportation work groups submitted their reports to the full MISCC. When concerns were raised, Commissioner Maul, Chair of the MISCC, authorized interested MISCC appointees to work together and submit recommendations for improving the reports. Some of the MISCC appointees met with advocates from the disability community and established an Ad Hoc Committee. The Ad Hoc Committee met several times, which included discussions with state agency representatives. The Ad Hoc Committee then met with each MISCC committee to put forward their recommendations. After feedback from the committees, final recommendations were presented to Commissioner Maul. The commissioner is sharing the recommendations with the appointed MISCC members and state agency representatives.

4) Passage of Timothy’s Law to provide mental health parity. The lack of mental health and addiction services parity in health insurance is detrimental to thousands of families throughout New York. These circumstances are most commonly seen with regard to children. In the most extreme cases, parents are forced to relinquish custody of their children with a mental illness so that they can obtain the services they need. The break up of the family unit is devastating to the child and parents.

As a result, Timothy’s Law (A.2912) was introduced as a bill to address the parity issue. It is named in honor of Timothy O’Clair, a twelve-year-old who committed suicide because he wasn’t able to get the necessary treatment and services for his emotional disorder. The law mandates that insurance providers covering any health care services must also provide coverage for mental health and substance abuse services, and that coverage and cost must be ‘on par’ with all other health care services covered under such policy.

Timothy’s Law is also business-friendly. Providing parity-based behavioral health insurance benefits to employees helps to reduce absenteeism and increase productivity among employees. Thirty-three other states have passed some form of mental health and/or substance abuse parity legislation into law. It is time for New York State to act.

For additional information, visit the Timothy’s Law Coalition (TLC) at:

http://www.timothyslaw.org/facts.htm.

Status: The Assembly passed A.2912 on 06/20/05. The Senate introduced its own mental health parity bill S.1672. It was referred to committee. In early June 2005, the Timothy’s Law Coalition announced support for a more business-friendly mental health parity legislation for organizations with over fifty employees.

III. CIVIL RIGHTS
Goal: To promote full compliance with the Americans with Disabilities Act (ADA), improve access in all sectors of society, and ensure that all of New York State's citizens are afforded the opportunity to exercise their right to vote privately and independently.

Action Priorities:

Help America Vote Act (HAVA)

1) Eliminate the full-face ballot requirement in New York State Election Law. New York is the only state that has a statutory requirement limiting the selection of voting machines to those meeting the full-face ballot requirements. Repealing the full-face ballot language in state election law would increase choices among voting machine vendors and products that tend to be more accessible to people with disabilities. The expanded group of vendors would also help to drive down the cost of new voting machines and give New York State a greater value for its dollar. A Missouri study found that a full-face ballot was one of the leading factors contributing to voter "fall off." The NYSILC Election Reform Subcommittee conducted voting machine testing at Board of Elections events in April 2003 and May 2005. The survey results for both events revealed that there was no full-face ballot voting machine that is substantially accessible to a wide range of disabilities. It is time for New York State to enter the 21st century!

Status: Both houses of the state legislature were not interested in eliminating the outdated full-face ballot requirement. This is mostly due to a preference to not change a system that perpetuates the existing incumbencies and house majorities.

Instead, the joint HAVA Conference Committee reached agreement on a voting machine bill called the Election Reform and Modernization Act of 2005 (A.8969/S.5877). It passed both the Senate and Assembly on 06/23/05. The Governor promptly signed the Act into law in early July 2005. It primarily establishes the Act; relating to ballots, voting machines or voting systems; contracts for the purchase of voting machines, escrow requirements, elimination of punch cards, procurement process, and audit of voter verifiable audit records; appropriates $190,000,000 therefor.

The Act fails to address three major requirements. First, the list of voting machine features conspicuously omits large print (font size 16-24) and the ability to change text contrast. By not specifying these requirements, the State will deny many New Yorkers with disabilities and seniors the right to vote privately and independently. Second, while the Act does mandate a permanent paper record presented to the voter behind a window before the ballot is cast, it does not mandate that it be made accessible. Fortunately, the language provides the opportunity for use of alternative technology when it adds "or by other device." Third, while the Act provides for the minimum HAVA requirement of at least one accessible voting machine per polling site, New York State should make a commitment to replace all of its outdated lever machines with new and accessible voting technology.

The Act includes several positive provisions for the disability community. The New York State Board of Elections (BOE) must create a Citizens Election Modernization Advisory Committee. There are four appointees from the disability community, including a NYSILC appointee. BOE plans to make the appointments and convene the advisory committee immediately. Members of the advisory committee will have access to each machine or system substituted for examination per state law section 7-202 and HAVA. The committee will make recommendations on voting machine standards to the state BOE, given that the Act provides them with the authority to establish additional regulations for voting machine standards not inconsistent with the chapter.

In addition, BOE must establish a mandatory core curriculum for poll worker training, including assistance for voters with disabilities. The Act also mandates the following accessible features and/or voting machine interfaces: adjustable to accommodation persons in wheelchairs, designed to accommodate persons with limited reach and hand dexterity, a voting device with tactile controls, an audio voting device with voice-only or tactile controls, and a pneumatic switch (sip and puff).

2) Ensure full and equitable implementation of the Help America Vote Act (HAVA) in New York State. The NYSILC Election Reform Subcommittee has identified the following items that must be addressed in order for New Yorkers with disabilities to realize the promise of HAVA:

Visit the NYS Disability Vote Project website link for more details:

http://www.ccfi.us/havamain.html

Status: In reference to polling place access, the Assembly passed A.0120 on 01/25/05. The bill makes appropriate technical language changes to New York State Election Law in order to ensure compliance with polling place access requirements under the federal ADA and HAVA. The Senate passed a polling place access bill (S.5871) on 06/23/05. It makes some of the technical language changes recommended in the Assembly bill and incorporates application procedures for a polling place accessibility fund (5-million statewide).

Unfortunately, the bill also allows for the "extension" of the Act’s "effective date" until 07/01/07 for local BOEs that apply for what is, in effect, a waiver. The bill limits the scope of who can challenge "an extension" to a voter in the particular district and gives discretion to the State BOE to reverse an extension that is challenged, or not. Finally, clause (e) provides a loophole waiver beyond July 2007 for those who chose to go through the lengthy steps to demonstrate "burden." Given these vast differences, the HAVA Conference Committee was not able to reach an agreement on polling place access by the end the 2005 legislative session. As a result, the current polling place access provisions in NYS Election Law remain. These provisions have not complied with the ADA for almost 15 years, as well as a Federal District Court decision won by State Attorney General Eliot Spitzer in February 2000.

3) Include the IL Statewide Network in Help America Vote Act (HAVA) Implementation. Title II HAVA funds are available to each state to help facilitate implementation. The $800,000 in HAVA Title II funds for New York should be matched to provide the statewide network of Independent Living Centers (ILCs) with $1,600,000 over a three year time period to perform the monitoring activities: 1) Verify the accessibility of all statewide polling places, 2) Develop training material and provide training to polling place workers on the topic of accommodating voters with disabilities, 3) Develop and distribute Public Service Announcement (PSA) materials that encourage people with disabilities to register, vote, and be recruited as polling place workers, and 4) Conduct a sample survey to verify that new voting technology allows a person with a disability to vote independently and privately.

Status: The State BOE will distribute HAVA Title II funds to the counties to address the various projects in this section. Advocates will have to make contact with their county BOE to negotiate contracts for services rendered at the local level.

Americans with Disabilities Act of 1990 (ADA)

The Americans with Disabilities Act of 1990 (ADA) provides comprehensive protections for the civil rights of individuals with disabilities. The ADA has made a positive impact on the lives of many disabled Americans and has changed how society views disabilities. However, a current rollback of civil rights at the national level is challenging the original promise of the law, especially toward continued progress in the full integration and equal opportunity of persons with disabilities. This shameful practice is erasing the lessons learned from over two hundred years of American history and jurisprudence. New York State must do its part to preserve these protections at the state level.

1) Reinforce ADA Title II language on obligations of state and local governments in state statute. The New York State Human Rights Law includes some, but not all, of the ADA’s protections, causing needless confusion. Incorporating Title II of the ADA into the New York State Human Rights Law will help to remedy the situation and impose no new or additional requirements upon local governments, since local governments are already responsible for complying with the provisions of the ADA.

Status: The Assembly passed A.6328 on 05/18/05. It clarifies the scope of protections against discrimination on the basis of disability under the New York state human rights law in the areas of employment, public accommodations and government services to be consistent with the federal Americans with Disabilities Act and the current policies and practices of the division of human rights. The Senate introduced a "same as" bill (S.3921), which was committed to the Rules Committee before the end of the legislative session.

2) Reinforce ADA Title III language of public entity obligations in state statute. As noted above, it is important to clarify the scope of protections against discrimination on the basis of disability under the New York state human rights law in the areas of public accommodations, consistent with Title III of the federal Americans with Disabilities Act (ADA) and the current policies and practices of the division of human rights. This can be accomplished by setting forth criteria for making accommodations.

Status: The Assembly passed A.7294 on 05/02/05. It clarifies the scope of protections against discrimination on the basis of disability under the New York state human rights law in the areas of public accommodations to be consistent with the federal Americans with Disabilities Act and the current policies and practices of the division of human rights; sets criteria for making accommodations. The Senate introduced a "same as" bill (S.5074), which was committed to the Rules Committee before the end of the legislative session.

3) Waive sovereign immunity in ADA-related cases brought against New York State. The U.S. Supreme Court has been weakening aspects of several federal civil rights laws, including the Americans with Disabilities Act (ADA) in favor of 11th Amendment states rights. State employees no longer have the right to sue for monetary damages in Federal court as a result of the 2001 Alabama v. Garrett U.S. Supreme Court decision. The Court then upheld the ADA in the 2004 Tennessee v. Lane case. Action is needed to reinstate these rights for New Yorkers with disabilities to protect against future Court inconsistencies. A law must be enacted waiving the state’s sovereign immunity to claims brought against it under the ADA and Section 504 of the Rehabilitation Act. Most individuals need to retain an attorney on a contingency basis. They will be hard-pressed to find representation without the right to sue for damages. It should be noted that State Attorney General Eliot Spitzer signed on to the Minnesota briefs for both the Garrett and Lane cases, which supported the ADA.

Status: The Assembly passed A.2159 on 05/18/05. It waives the state’s sovereign immunity to liability for violations of the Americans with Disabilities Act of 1990; also waives the immunity of all instrumentalities and political subdivisions of the state. The Senate took no action.

IV. INCLUSIVE EDUCATION
Goal: To advocate for quality, inclusive educational services and supports for students with disabilities in public education and post secondary education.

Action Priorities:

1) Respond to draft IDEA regulations: Thirty years ago the Individuals With Disabilities Education Act (IDEA) was passed to ensure all individuals had access to an appropriate public education. In 2004, Congress passed a revised IDEA. This updates the previous statute and aligns it with "The No Child Left Behind Act." The U.S. Department Of Education (DOE) recently drafted regulations on how states should implement IDEA. A draft copy can be reviewed at:

www.ed.gov/policy/speced/guid/idea/idea2004.html.

This link also notes the dates and locations of public meetings scheduled on the new regulations. The DOE is currently seeking feedback and comments. It is strongly urged that advocates contribute to the dialogue to help shape the final regulations.

2) Fully Fund "The No Child Left Behind Act." In an effort to ensure that schools fully educate all children, Congress passed the bi-partisan "No Child Left Behind Act" in 2002. The goal of the law was to eliminate the academic achievement gap among different groups of students. However, the current administration has failed to appropriate nearly $27 billion in authorized funds. In New York State, this translates into a total shortfall of $966 million last year alone – with $67 million earmarked for special education. The failure to fund this Act will result in inadequate services for children with disabilities. The present administration must make good on its commitment to fully fund the "No Child Left Behind Act."

3) Provide an additional $3,000,000 per year in new state funding for Independent Living Centers for the transition of high school students into the community. Academic and life achievement gaps persist for students with disabilities in our education system, with data showing that these students experience significantly worse outcomes than their non-disabled peers. They are less likely to graduate and/or to pursue education or vocational training. Without services to support their successful transition to adult life, they are certain to face lives of dependency on SSI and other benefit programs. Both the federal Individuals with Disabilities Education Act (IDEA) and the New York State education law recognize the importance of transition services for youth to prevent this. CILs pioneered partnerships with schools to provide vital links to the adult world of higher education, vocational training and work for students with disabilities. The pilot projects demonstrated that when schools and CILs collaborate, these students achieve more successful outcomes in transitioning to post-high school life. The partnership needs increased funding, providing incentives to schools to participate, while ensuring compliance with laws and regulations and guaranteeing good futures for our young people with disabilities.

4) Provide an additional $15 million to support the escalating need for quality disabled student services in institutions of higher education. Higher standards in high school are leading to more success and greater expectations on the part of students with disabilities. This has led to significant growth in the number of individuals with disabilities seeking access to postsecondary education. This trend is expected to continue. However, the postsecondary system is not fully prepared for this population. The proposed increase would provide funding to colleges and universities to enable them to expand their capacity to meet the increased need. This is a wise investment because many students will move onto careers with an increased earning potential.

V. TRANSPORTATION
Goal: To advocate for affordable and accessible transportation services throughout New York State that will allow people with disabilities to fully participate in their communities.

Action Priorities:

Federal Legislative Activity

1) Enforce 49 CFR Part 37 "Transportation Services for Individuals with Disabilities" (ADA). A lack of comprehensive and integrated transportation planning, updated regulations and guidelines, funding, staff and enforcement prevents persons with disabilities from fully participating in the economic, health, recreation and employment sectors of the country. As a result, the following actions are recommended:

Visit the following NYSILC website link for the position paper, "WHERE THE RUBBER FAILS TO MEET THE ROAD: A look at the negative impact transportation gaps have on the life of New Yorkers with disabilities and recommendations for reform":

http://www.nysilc.org/travel_brochure/Transportation_Position_Paper.htm

VI. Centers For Independent Living

Provide an additional $5million to the CIL state appropriation. CILs are a strong statewide network, offering adults with all disabilities the opportunity to become self sufficient, earn degrees and find jobs, develop skills for living independently, thus allowing them to reduce their reliance on state and federal benefit programs.

Despite providing these essential services, CILs haven’t received an increase in state funding for the last five years. In fact, in 2004-05, they were cut by 5% totaling $536,000. Demand for centers services has grown 35% from 46,003 individuals/agencies/businesses in 1997-98 to 71,216 in 2002-2003. In addition, CILs assist individuals of all ages with disabilities in transitioning from or avoiding unwanted institutional placement.

During the period October 1, 2001 and September 30, 2003, fifteen CILs diverted 1,216 consumers from institutional placements and transitioned 281 from institutions. Using the most conservative figures, and deducting the entire budgets of centers involved, VESID and the CILs calculate that these efforts result in a savings of $110,508,283 to NY taxpayers (approximately ten times the total state allocation for the centers). CILs are an excellent investment; as a part of the solution to the states budget crisis, centers offer options that will significantly reduce Medicaid expenditures as well as other programs. This $5million increase should be in addition to the existing10.7million state appropriation.

As a result, this $5 million increase should be in addition to the existing $10.7 million state appropriation, elevating the total base state funding to $15.7 million per year.