oklahoma Department of Rehabilitation Services


Legislative Updates

From Jean Jones
DVR/DVS Legislative Information Representative

2009 ~ 2008 ~ 2007

 

August 16, 2007

Contents:

DVD Transition

The Last Day of Analog Broadcasting is February 17, 2009… After this date, consumers who rely on antennas (including outside antennas and "rabbit ears") to receive broadcast signals on TV sets having only analog tuners will need to obtain separate digital-to-analog set-top converter boxes to watch over-the-air TV.

On August 9, 2007, the Coalition of Organizations for Accessible Technology (COAT) submitted comments at the Federal Communications Commission (FCC) on some of the problems the transition to digital television is posing for people with disabilities.

Analog TV transmission ends February 17, 2009 when digital TV transmission should be fully implemented. For people with disabilities, transition problems may include the technical difficulties associated with pass through of closed captioning, industry confusion over the scope of the FCC's captioning regulations, usability of TV remote controls, the barriers to resolving concerns with TV stations and cable companies, and concerns about pass through of video description for persons with vision disabilities.

Other concerns raised by consumers include:

  • Will converter box controls be accessible to the blind and disabled?
  • How will people without print or transportation access be able to find, obtain and hook up converter boxes?
  • Has FCC’s public education initiative on digital conversion been designed to reach blind, deaf, disabled and elderly citizens with accessible and understandable information?
  • How are people without transportation going to engineer shopping for new TV’s or converter boxes?
  • What about the financial burden on low income seniors and citizens with disabilities when problems receiving closed captioning or descriptive video force them to buy new digital TV sets?
  • What are the public safety and disaster response issues involving elderly and disabled individuals who lose TV broadcast access to emergency information because they can’t afford or manage the technology changes required?

See COAT comments at:
http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519610470. If you have trouble with this link, request a copy of COAT comments from Jean Jones, jhjones@drs.state.ok.us.

COAT is a coalition of 45 national, state and community disability organizations representing Tech Act programs, the assistive technology industry, blind, deaf, deaf-blind, parents of the visually impaired, and other disabilities. Members include the Helen Keller National Center, National Association of the Deaf, American Association of People with Disabilities, American Foundation for the Blind, American Council of the Blind and many other groups.

For information on the DTV transition generally, please visit www.dtv.gov/publications.html

Contact Jenifer Simpson, aapdjenifer@aol.com, for added information on this topic.

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Transportation Issues

How will rural public transit systems use funds from three transportation grants -

  • New Freedom grant for going beyond ADA requirements in transportation for people with disabilities
  • Jobs Access and Reverse Commute (JARC), which focuses on transportation to work
  • Section 5310, which helps nonprofit entities purchase vehicles for providing transportation to elderly and disabled individuals

Federal law now requires states and some localities to develop plans for using these funds. The plans must be designed with input from the public, transportation providers and human services transportation providers.

The Oklahoma Department of Transportation (ODOT) is taking the lead in developing the plan for rural Oklahoma - that is, all of Oklahoma except for Oklahoma City, Tulsa, Lawton and Norman. Separate plans will be developed by these urban centers.

ODOT’s plan is called the Locally Coordinated Public Transit / Human Services Transportation Plan. Upcoming public meetings for this planning process are scheduled as follows:

Tuesday, September 4
2:00p Norman, JD McCarty Center, 2002 E. Robinson
3:00p Ponca City, City Hall, McFadden Room, 516 E. Grand

Wednesday, September 5
9:00a Lawton, Museum of the Great Plains, 601 NW. Ferris
9:00a Stillwater, Chamber of Commerce, 401 S. Main
2:00p Weatherford, City Library, 219 E. Franklin
2:00p Claremore, Public Library, 1515 N. Florence Ave.

Thursday, September 6
9:00a Guymon, Methodist Church Family Enrichment Center, 6th and Quinn
9:00a Muskogee, American Legion Post #15, 4021 W. Broadway
2:00p Woodward, Public Library, 1500 Main
2:00p Atoka, Vo-Tech, 1301 W. Liberty Road

Now you can provide comments on transportation needs and download planning information from a new website: www.oklacoordination.net

TULSA… Go to the INCOG website for a list of transportation services in Tulsa: www.incog.org/transportation/coordinatedplan/ProvidersInventory.pdf . The list was compiled for Tulsa’s coordinated transportation plan. To read the plan, go to www.incog.org/transportation/coordinatedplan.htm.

UNITED WE RIDE… Based at the Department of Rehabilitation Services (DRS) and supported by the state departments of Transportation and Commerce, United We Ride (UWR) is a cooperative initiative that brings together human services agencies, transportation providers, community organizations and consumers. The organization promotes coordination among human services transportation providers for more efficient use of transportation dollars.

Now underway, UWR is compiling a statewide inventory of all transportation resources. They want to hear from YOU about transportation services available in your area. This could include transportation provided by

  • Health organizations
  • Religious entities
  • Services for senior adults
  • State agencies
  • Community service organizations
  • Youth programs
  • Programs for people with disabilities
  •  Tribal organizations
  • Schools
  • Public transportation
  • Volunteer services
  • Taxi and commercial transportation services

 UWR staffer Beverly Graham asks that you e-mail her the name of the service or organization providing transportation, a contact name, e-mail address and phone number. She will take it from there! Beverly’s e-mail: bgraham@drs.state.ok.us 

TRANSPORTATION ADVOCACY… Oklahoma communities are severely underfunded in the area of public transportation. The Oklahoma Alliance for Public Transportation (APT) wants to solve that problem. APT is a grassroots coalition whose focus is to increase mainstream awareness and funding for much-needed expansion of public transportation in Oklahoma. Go to the APT website, www.okapt.org, to read positions taken by the organization and to learn how to become a member. APT can also be contacted by calling 405-297-3146 or writing APT, P.O. Box 1022, Oklahoma City, OK 73101. Or contact APT by e-mail at aptsupport@okc.gov.

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Making Medicare more disability friendly

Advocates for disabled and elderly citizens are moving on several fronts to make Medicare more responsive to the medical needs of beneficiaries who have disabilities. National disability groups have banded together to try to end Medicare’s restrictions on power wheelchair coverage, ban on coverage of low vision aids, and policy that limits access to inpatient rehabilitation.

UPDATE on POWER WHEELCHAIR COVERAGE: HR-1809 is perhaps the most succinct, direct and brief bill most of us will ever encounter in Congress. The measure is called the Medicare Independent Living Act of 2007. It is authored by Rep. Langevin (D-RI). It would amend title XVIII (Medicare) of the Social Security Act to eliminate the ”in-the-home” restriction affecting Medicare coverage of power mobility devices for individuals with expected long-term needs. The text reads,

a) In General- Section 1861(n) of the Social Security Act (42 U.S.C. 1395x(n) is amended by inserting “or, in the case of a mobility device required by an individual with expected long-term need, used in customary settings for the purpose of normal domestic, vocational, or community activities” after `1819(a)(1))'.

This provision would be effective upon enactment of the legislation.

H.R. 1809 was referred to the House Energy and Commerce Committee and House Ways and Means Committee, the amount of time in each committee to be decided by the Speaker.

There are 29 cosponsors. No Oklahoman Members have signed on as cosponsors.

LOW VISION AID EXCLUSION: In May of 2006 the Centers for Medicare and Medicaid Services (CMS) proposed a rule to define low vision aids as “eyeglasses,” which are not items covered by Medicare. The blanket exclusion of all vision aids that have one or more lenses means that thousands of Americans with significant vision loss will have no chance to receive Medicare coverage for magnification devices that can enhance their independence and prevent nursing home placement.

After receiving many opposing comments on this proposed rule, CMS has indefinitely postponed final disposition of the proposed devices exclusion provision, meaning that the matter is still very much in play.

Now some key Congress Members have spoken out on this issue. On July 2, the co chairs of the Congressional Vision Caucus sent a letter to Leslie V. Norwalk, Acting Administrator of the Centers for Medicare and Medicaid Services (CMS), expressing their concern over CMS’s proposed exclusion from coverage for all low vision devices. Caucus chairs are Gene Green (D-TX), David E. Price (D-NC), Ileana Ros-Lehtinen (R-FL), and Patrick J. Tiberi (R-OH). The letter reads,

Dear Ms. Norwalk:

Re: 71 FR 25654

As co chairs of the Congressional Vision Caucus, we are writing to express our concern regarding the exclusion of low vision devices in the Competitive Acquisition for Certain Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS). We strongly urge CMS to reconsider the proposed "low vision aid exclusion."

In the proposed regulation, any device with one or more lenses, regardless of its usefulness to the vision-impaired, would fall under the statutory "eyeglass" exclusion. This proposal would have a tremendous negative impact on vision-impaired seniors who rely on devices such as hand-held magnifiers, video monitors, and other technologies that utilize lenses to enhance vision. Without these devices, many vision-impaired seniors are unable to live independently.

We are also concerned with the precedent that would be set by this proposal of limiting the access to assistive technology for people with disabilities. Rather than establishing coverage denials for all lenses, we respectfully recommend that CMS evaluate the medical and functional purpose of each lens device and make coverage decisions based on these evaluations. If a lens device is determined to fall under a Medicare benefit category, then coverage should be established by CMS.

Consistent with all applicable rules and regulations, we respectfully request that CMS reconsider the "low vision aid exclusion." Thank you for your careful consideration of this matter.

Sincerely,

Gene Green
Member of Congress

David E. Price
Member of Congress

Ileana Ros-Lehtinen
Member of Congress

Patrick J. Tiberi
Member of Congress

ACCESS to INPATIENT REHABILITATION

Medicare’s stepped-up enforcement of its “75% Rule” has disability advocates and rehabilitation facilities worried that some Medicare beneficiaries could be denied critical, intensive rehabilitation to improve their medical conditions and functioning.

Medicare's "75% Rule" restricts access to inpatient rehabilitation care by requiring inpatient rehab hospitals or units to treat a particular percentage of patients with one or more of 13 specified medical conditions. (Currently that percentage is 60% and will rise to 65% on July 1, 2007 and eventually 75% in 2008.) In other words, even if a physician finds it medically necessary for an individual to receive inpatient rehabilitative care, a rehab hospital or unit may have to deny that individual access if they do not have the "right" diagnosis.

Diagnoses that are acceptable for meeting the “75% Rule” are

  • stroke
  • spinal cord injury
  • congenital deformity
  • amputation
  • major multiple trauma
  • fracture of femur (hip fracture)
  • brain injury
  • neurological disorders, including multiple sclerosis, motor neuron diseases, polyneuropathy, muscular dystrophy, Parkinson’s
  • burns
  • knee and hip replacements only if the patient had bilateral joint replacement (both hips or both knees) immediately before entering rehab, if the patient is obese, or if the patient is over age 85.
  • some arthritic conditions under limited criteria

The rule is designed to save tens of millions of Medicare dollars each year by rerouting patients to the lowest-cost setting adequate for treating their medical conditions. Disability advocates fear many of those denied rehabilitation will end up in nursing homes, actually costing the government more in the long run. They also point out that denial of intensive rehabilitation at the optimum time often results in chronic functional disabilities which involve a host of added costs to society and government programs.

The American Association of People with Disabilities (AAPD) also predicts the “75% Rule” threatens access for anyone who may need inpatient rehabilitation services. As inpatient rehab hospitals and units struggle to meet their patient "quotas" under the rule, many are being forced to downsize, reduce services and rehabilitation programs, or close their doors altogether. This creates significant access problems anyone who might sometime need intensive rehabilitation in a medical setting.

In addition to the “75% Rule,” the criteria used for determining if inpatient rehabilitation for an individual is medically necessary have also been tightened. Called Local Coverage Determinations or LCD’s, these criteria are issued by “fiscal intermediaries” - often insurance companies - who determine if and what Medicare will pay for medical services in a particular area. Some already issued LCD’s have even further limited Medicare coverage of inpatient rehabilitation for joint replacements, amputations, broken bones, post-op recovery and many other serious medical conditions.

Legislation to temporarily fix the “75% Rule” has been introduced in the U.S. House and Senate. The bills are S. 543 and H.R. 1459.

S. 543 by Sen. Nelson Benjamin (NE) is called the Preserving Patient Access to Inpatient Rehabilitation Hospitals Act of 2007. It would hold rehab facilities to showing that 60% of their patients have diagnoses in the accepted categories. The bill also addresses the problem with LCD’s by requiring that henceforth, all entities connected with Medicare, including “fiscal intermediaries,” shall use and apply the criteria established in HCFA Ruling 85-2, as issued on July 31, 1985 (50 Fed. Reg. 31040), as the sole standard for determining the medical necessity of services provided by inpatient rehabilitation hospitals and units to beneficiaries under the Medicare program. There are currently 59 cosponsors for this bill. Oklahoma Sen. James Inhofe has signed on as a cosponsor. The bill is currently in the Senate Finance Committee

H.R. 1459 by Sen. John Tanner (TN) is similar to S. 543. There are 223 cosponsors as of Aug. 16th. Oklahoma members cosponsoring are Rep. Dan Boren and Rep. Mary Fallin. The bill was referred to House Ways and Means Committee Subcommittee on Health.

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ADA Restoration Act

H.R. 3195 and S. 1881 were introduced on July 26th, the 17th anniversary of the Americans with Disabilities Act (ADA), to restore the intent and protections of the ADA. The bills are in response to a series of court decisions that have made it more difficult for individuals with disabilities to obtain protection against disability-based discrimination.

Sen. Tom Harkin (D-IA) explained as he introduced S. 1881,

‘In recent years, the courts have ignored Congress’s clear intent as to who should be protected under the ADA. And the courts have narrowed the definition of who qualifies as an “individual with a disability.” As a consequence, millions of people we intended to be protected under the ADA, including people with epilepsy, diabetes, and cancer, are not protected any more. In a ruling just t his spring, the 11th Circuit court even concluded that a person with mental retardation was not “disabled” under the ADA.

“Looking back through the legislative history, it is abundantly clear that Congress intended that the protections in the ADA apply to all persons without regard to mitigating circumstances, such as taking medication or using an assistive device.”

As currently written, the ADA prohibits discrimination “against a qualified individual with a disability because of the disability of such individual.” Some courts have taken this to mean that before a person with a disability can be protected from adverse treatment based on that disability, the person must first “qualify” under an every-narrowing definition of disability. The ADA Restoration Act would simply prohibit discrimination “against an individual on the basis of disability,” thus assuring, as Congress intended, that the focus is on whether discrimination occurred.

Both bills also make it clear that a person cannot be excluded from ADA protections just because their disability is being treated or assistive devices are being used to improve functioning.

The principal authors of H.R. 3195 are Rep. Steny Hoyer (D-MD) and Rep. James Sensenbrenner (R-WI). The bill currently has 181 cosponsors. No Oklahoma Members have yet signed on as cosponsors. Read the bill by going to http://thomas.loc.gov/home/gpoxmlc110/h3195_ih.xml  or http://thomas.loc.gov/cgi-bin/query/C?c110:./temp/~c110UuHsmf.

H.R. 3195 is assigned to the following committees:

  • Education and Labor
  • Judiciary
  • Transportation and Infrastructure (Oklahoma Rep. Mary Fallin is a member)
  • Energy and Commerce (Oklahoma Rep. John Sullivan is a member)

Each committee will deal with the parts of the bill that affect its jurisdiction.

S. 1881 authors are Sen. Tom Harkin (D-IA) and Sen. Arlen Specter (R-PA). The bill was referred to the Senate Committee on Health, Education, Labor and Pensions (HELP). Oklahoma Senator Tom Coburn serves on this committee.

Read the Senate bill at http://thomas.loc.gov/cgi-bin/query/C?c110:./temp/~c110cT8Pa2.

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Brain injury bill moves to full Senate

The reauthorization of the Traumatic Brain Injury Act, S. 793 by Sen. Orrin Hatch (R-UT), has been approved by the Senate Health, Education, labor and Pensions Committee and now moves to the full Senate.

The bill addresses the approximately 1.5 million Americans who sustain a traumatic brain injury annually. Provisions include a new study by the Centers for Disease Control and Prevention (CDC&P) and the National Institutes of Health (NIH) to determine the incidence and prevalence of traumatic brain injury, identify common therapeutic interventions, and develop rehabilitation guidelines. The bill also reauthorizes grant programs to coordinate TBI services and continues NIH research programs.

In the House Rep. Bill Pascrell (NJ) has introduced a similar bill, H.B. 1418. This is assigned to the House Energy and Commerce Subcommittee on Health.

Pascrell is also the author of H. Con. Re. 91, expressing the need for enhanced public awareness of traumatic brain injury and support for the designation of a National Brain Injury Awareness Month. Read the text of this bill at http://thomas.loc.gov/cgi-bin/query/D?c110:1:./temp/~c110vmtm0a.

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More disability legislation

Genetic Information Nondiscrimination Act of 2007: H.R. 493 (Louise McIntosh Slaughter, NY) has 224 cosponsors, including Tom Cole and Frank Lucas of Oklahoma. Title I of the bill prohibits a group health plan from adjusting premium or contribution amounts for a group on the basis of genetic information. The prohibition against discrimination based on genetic information is also applied to individual health plans and Medicare supplemental plans. Title II prohibits employment discrimination based on genetic information. A summary of the bill is available at http://thomas.loc.gov/cgi-bin/bdquery/z?d110:HR00493:@@@D&summ2=m& . H.R. 493 has passed the U.S. House and is now on General Order in the Senate.