History and Overview of Disability Rights and Benefits

History

The disability rights movement reflects the contributions of several different constituencies. In the 1960s, the movement focused on the rights of institutionalized persons. By the 1970s, it included persons with severe disabilities in institutions and in the community and expanded in the 1980s to self-advocacy for all persons with disabilities. The movement culminated with the enactment and enforcement of the Americans with Disabilities Act (ADA), 42 U.S.C. �§ 12101 et seq., in the 1990s. In the early 1970s, special interest groups representing a number of distinct categories of persons with severe mental and physical disabilities, for example, individuals with mental retardation, cerebral palsy, and epilepsy, headed the movement for disability rights in the community. The foundations for this revolution are federal legislation that have altered the course of history for all people with disabilities (Berkowitz , 1991).

The Rehabilitation Act of 1973, 29 U.S.C. Ã?§ 701 et seq., offered vocational rehabilitation services on a national scale to qualifying persons with disabilities. The Education for All Handicapped Children Act, Pub. L. No. 94-142, 89 Stat. 773 (1975), now known as the IDEA, offered help educate and train children with severe disabilities who were likely to be placed in institutions (Berkowitz, 1991). In 1997, Congress reauthorized the act and amended many of its key provisions. On May 11, 1999, the Department of Education’s final regulations interpreting the amendments went into effect Fed. Reg. 1,2406 (1999) codified at 34 C.F.R. Ã?§Ã?§300, 303 (Annino, 1999).

The first requirement plaintiffs must meet when filing a disability claim under federal or state law, assuming they have met the applicable statute of limitations and framed their claims in a way that the reviewing body will recognize, is proving they have a disability. This means having a mental or physical impairment that substantially limits a major life activity. Proving the existence of a mental or physical impairment is relatively straightforward. Applicants encounter greater difficulty in establishing that the impairment “substantially limits” a major life activity, such as breathing, working, or walking. The rate of disabilities is on the rise, “At Unum Provident, the leading disability insurer, the incidence rates of disability claims in 2001 and so far in 2002 is 16 percent higher than in the 1989 and 1990. At the same time, death rates for those on disability have declined (Miami Herald, 2002).

Social Security, Vietnam Vet Assistance, Vocational Rehabilitation and Medicaid

The eligibility rules for Social Security disability benefits are even stricter than the rules for many private disability policies. To meet the Social Security program’s definition of disability, claimants must show they have such severe physical or mental impairments that they cannot earn more than about $700 per month doing any substantial work anywhere in the country, according to the Social Security Administration.

Claimants need professional help with organizing and presenting their cases, because the Social Security Administration has a huge, complicated claims system that varies widely from region to region (Derthick, 1990). The Social Security Administration reports that 40% of the consumers who try to bring claims on their own drop out of the system (Social Security Administration, 2002). Paralyzed claimants and other claimants with obvious physical disabilities could have as much difficulty as those with more subtle disabilities, such as mental illness, because the main challenge is getting the right information from the right physicians, in the right format (Social Security Administration, 2002).

The lawyers who specialize in Social Security claims have formed a professional association, the National Organization of Social Security Claimants’ Representatives (http://www.nosscr.org.). The federal government now provides more than eight years of Medicare coverage for disabled people who return to work, to keep worries about health insurance from locking disabled people out of the labor force.

Compared to other public sector policies for disabled persons, those dealing with employment have the longest history. Federal government involvement began just after World War I, From this time, the vocational rehabilitation (VR) program has grown dramatically in terms of expenditures, clients served, and types of services rendered. Long-term congressional support of the program has been based upon several underlying premises. First, VR aids physically handicapped persons, many of whom became disabled as the result of workplace accidents and military service to the nation. Second, the VR program has consistently defended itself as cost-effective; that is, the costs of rehabilitation have been argued to be less, overall, than the tax revenues derived from disabled persons who become employed as the result of the program. And third, employing handicapped persons means that society has fewer persons to support through social welfare programs (Berkowitz, 1991; Bundy & Day, 1987).

Congress passed a law in 1974 relevant to a particular class of disabled persons, veterans of military action in the Vietnam era. The primary purpose of PL93-508, the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), is to increase the educational benefits available to veterans of military service in the post-Korean War period. Included in this bill is a provision, section 402, that requires those with federal contracts and subcontracts in excess of $ 10,000 to take affirmative action to employ, and advance in employment, disabled veterans (Berkowitz, 1991; Bundy & Day, 1987).

The concept of Medicaid buy-in allows people with disabilities who work to pay a premium for Medicaid coverage. The Ticket to Work and Work Incentives Improvement Act became federal law, giving states flexibility in allowing people with disabilities such as psychiatric illness to work while continuing to receive Medicaid benefits (Berkowitz, 1991; Bundy & Day, 1987).

Short Term Disability

Common short-term disabilities are pregnancy (normal), Injuries (excluding back), and Digestive/Intestinal disorders. Of the two forms of short-term disability benefits, sick leave is often considered a continuation of salary and thus is most frequently found among salaried workers. As a result, it covers the large majority of public-sector workers, as well as white-collar workers in the private sector. Sickness and accident insurance plans are more common among blue-collar workers in the private sector, who are often paid an hourly wage rather than a salary. More than 9 out of 10 public-sector workers in short-term disability plans may carry forward unused sick leave benefits, while this feature is available to fewer than one out of four private-sector plan participants (Berkowitz, 1991; Bundy & Day, 1987).

The duration of short-term disability benefits available to employees at specific service intervals is composed of sick leave days, sickness and accident insurance days, and combined benefit days. Combined benefit days are those days on which both sick leave and sickness and accident insurance benefits are received. Sick leave provides income replacement through operating funds of the establishment. The employee’s full salary is generally replaced for a specified number of workdays lost, such number often increasing with length of service. Additional days off at less than full salary may also be available. Sick leave plans typically specify a number of paid days off (Berkowitz, 1991; Bundy & Day, 1987).

Long Term Disability

Long-term disability insurance begins after short-term coverage ends, if the employer offers it. The common plan replaces 60 percent of income after a waiting period, which is often three to six months. Long-term disability insurance can give disabled workers access to a steady, government-guaranteed source of income. Qualifying can also hold down the insurer’s claims costs and, ultimately, the employer’s premiums, because most long-term disability insurers coordinate private benefits with Social Security benefits. Most long-term care insurance policies pay only after a policyholder reaches a stage of disability that calls for specialized long-term care. The level is measured by an inability to perform two or more daily living activities such as bathing, dressing, transferring from a wheelchair or eating with normal utensils. Cognitive impairment requiring specialized supervision can also trigger coverage (Berkowitz, 1991; Bundy & Day, 1987).

A good long- term care policy also will cover all levels of care, including custodial or personal (in-home) care. The custodial sites are: Adult day care, sites that provide personal and skilled care, and recreational services; Assisted living facilities, living quarters that provide individualized personal care and health services for people who need help with personal care; facility care services, licensed agencies that provide skilled nursing care, speech, physical, or occupational therapy, or help from health aides; nursing facilities, residential sites for people who need daily medical care (Berkowitz, 1991; Bundy & Day, 1987).
Private Sector versus Public Sector Benefits

Many private sector workers do not have disability insurance, “Only 25 percent of non-government workers have some sort of disability income insurance through their jobs, according to a study released last June by the National Academy of Social Insurance in Washington, D.C. Although there are few statistics on the subject, the experts assume even fewer people buy individual policies” (Miami Herald, 2002). Twenty-five percent of the full-time employees in medium and large private-sector firms and 14 percent in State and local governments receive both sick leave and sickness and accident insurance. Benefits are coordinated by starting insurance payments after sick leave pay ends or reducing sick leave pay by the amount of the insurance benefit (Berkowitz, 1991; Bundy & Day, 1987).

Annual sick leave plans in the private sector provide greater benefits than do those in government, and the benefits often increase with employee service. In the private sector, average annual sick leave benefits range from 15 days at 1 year of service to over 40 days at 25 years of service. Per-disability plans, while less common, are even more generous and also increase benefits with length of service. Under these plans, benefits average 52 days at 1 year, and 137 days at 25 years of service. The greater number of days in private-sector plans is counterbalanced by the more common provision in government plans for carrying over unused sick leave to future years. In the private sector, sick leave benefits make up about a half to two-thirds of the total days available for white-collar workers, depending upon length of service, but less than a fifth of the blue-collar total. This difference reflects the greater availability of sickness and accident insurance plans for blue-collar workers. In all three occupational groups, the importance of sick leave rises with seniority (Berkowitz, 1991; Bundy & Day, 1987).
HMOs and PPOs

There are two types of Health Maintenance Organization (HMO plans, a group practice plan and an individual practice plan. A group practice plan provides medical services at a health center that is staffed by the HMO physicians. Individual practice plans use private-practice physicians who receive a fee per patient rather than for each service they perform. The biggest drawback to HMOs is the lack of choice. The lack of choice explains why HMOs usually have younger patients as members (Bundy & Day, 1987).

A PPO is a group of doctors in private practice who have agreed to provide medical service at a discount price. The PPO combines certain aspects of the traditional fee-for-service plan and an HMO. It gives the patient more freedom. Both PPOs and HMOs over emergency treatment, prescription drugs, physical examinations, inpatient hospital treatment, obstetrics, home health care, radiation and chemotherapy, gynecological treatment, pediatric care, and vaccinations. Some HMO and PPO plans do not cover mental illness, which is often classified as a long-term disability (Bundy & Day, 1987).

Risks and Benefits

If the employer offers a long-term disability benefit, the worker still might need an individual disability policy. The benefit amount could be too small and the benefit period might be too short. It is also unlikely that the disability benefits are portable. When they are not, it means that the workers cannot take the policy with them when they leave and change their place of employment. As with any policy that requires a person to be healthy in order to buy it, the risk is not qualifying to buy another one. Furthermore, if the employer pays the premium, the benefit is taxable. The worker cannot rely on Social Security to pick up the slack. More people are turned down than succeed in obtaining Social Security disability benefits. In addition, the benefits are unlikely to replace all of the income the worker is losing because of the disability (Bundy & Day, 1987; Berkowitz, 1991).
Insurance carriers will limit the amount of coverage a person can buy. Primarily, the insurance company wants the person to have an incentive to go back to work. In setting a limit on the amount of disability a person can buy, the carrier will also look at the person’s net worth and how much unearned income they are receiving. These extra funds from sources other than working could, when combined with a disability income check, discourage a person from going back to work. Insurance carriers may also be unwilling to sell a worker disability insurance if he/she is engaged in a hazardous occupation. Some carriers avoid selling to persons who are self-employed, because calculating income is difficult. A person’s medical history could also make him/her a less reliable risk to insure (Bundy & Day, 1987; Berkowitz, 1991).

Employers have been shown to be reluctant to actively hire individuals with disabling conditions, because employers, more often than not, appear more inclined to judge handicapped persons on the basis of disability rather than on what they are capable of performing. The reluctance of employers to hire persons with disabilities is rooted in common myths and misunderstandings, which include the ideas that the employment of disabled persons will increase insurance and worker compensation costs, cause higher absenteeism among employees, reduce productivity, harm the morale and productivity of non-handicapped workers, and require costly accommodation measures. The misperceptions, coupled with low employment expectations of disabled persons and significant problems in transportation to work, have had a negative impact on their employment potential. Overcoming these obstacles requires changes in employee and employer attitudes and positive steps to accommodate disabled workers in performance of job tasks. Expanding accommodation efforts was the primary objective behind rights-oriented legislation passed by Congress to remove employment discrimination against and enhance job opportunities for persons with disabilities (Bundy & Day, 1987; Berkowitz, 1991).

REFERENCES

Annino, P. G. (May/June, 1999). The new IDEA regulations. Mental & Physical Disability L. Rep. 439, 9.

Berkowitz, E.D. (1991). America’s welfare state. Baltimore: Johns Hopkins University Press.

Bundy, D. and S. Day. (1987). Total Coverage. New York: Harper & Row.

Derthick, M. (1990). Agency under stress: The Social Security Administration in American government. Washington, DC: Brookings Institution.

Disabilities Act (ADA), 42 U.S.C. �§ 12101 et seq

Education for All Handicapped Children Act, Pub. L. No. 94-142, 89 Stat. 773 (1975), now The Miami Herald. (November 18, 2002). Many workers find the cost of disability insurance crippling.

National Organization of Social Security Claimants’ Representatives. Web site http://www.nosscr.org.

Rehabilitation Act of 1973, 29 U.S.C. �§ 701 et seq

Social Security Administration. (2002). Social security handbook.

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