A Primer on The Civil Rights Act of 1991

Along with the passage of the ADA, another piece of legislation passed about the same time (The Civil Rights Act of 1991) guarantees PWDs the same Constitutional protections as minorities – specifically that they are worth the full “value” of a white man.

The Act was originally passed in the Reconstruction Era and until 1991 only applied to minorities. Ever afterwards, it also applied to the PWD community, even though legal challenges if not a broad understanding of the statute remains oblique and largely untested.

What the statute also essentially does is address not only the “contractual worth” of PWDs, it also ostensibly creates economic “rights” or an economic “floor” for PWDs. This means that, for example, a PWD may not be hired at less than the minimum wage (for example).

What it also does, however, is create mandates for the government where goods and services vital to maintaining that “contractual” worth are provided to this community.

Starting with, of course, healthcare.

While a great many of the failings of the ADA remain to be addressed thanks to aggressive federal push back in the courts (for example), one of the most instructive things to come out of the last twenty years of litigation under the Act was attempts to “define” a covered disability.

The ADA Restoration Act will address many of these issues, we hope, but taking from that line of reasoning, we contend that in fact, since so many people with disabilities require medication to manage their disabilities so as to not meet the federal standards of being “disabled” that this is actually a very interesting legal space right now. Specifically, using that logic, a person with a disability who can manage their disability with medication (starting with diabetes) is therefore guaranteed a certain “floor” of medical service. Without such service (including access to medication, regardless of the ability to pay), such a person very well may be “disabled.” With it, they will be a PWD, able to take their rightful place in society in every place the “able-bodied” now participate. As such, the state has a vested interest if not obligation (starting with a fiscal one if not a civil rights based one) to insure, if not is forced to require, unimpeded access for every PWD to state provided medication to preserve their “contractual value.”

We realize that for the non legal eagles reading this, this may all sound like complicated legal mumbo jumbo.

However in the middle of budget battles, from the federal to the state level, we think this is an important point to raise.

Particularly as we have a service provision model which not only addresses it but creates a very powerful “fix” that will reverberate both directly on the bottom line and in indirect costs that we anticipate will become increasingly obvious as we begin service provision.

The Missing 20%

According to data we have seen, the “disabled” (or PWDs) account for a full 5% (or one third) more of the Medicaid (or government healthcare benefit) recipients in North Carolina than the “elderly” (those over 65). The former are about 15% of recipients, the latter only 10%. We are going to extrapolate this data as a roughly equivalent “national” average even if the numbers in other states are higher or slightly different.

However, in light of just this fact, it boggles the mind that the most frequently cited users of government health benefits are “the elderly.” This is in fact how so much of the current budget debates and fights over “Medicare” or “Medicaid” are framed.

The reality is that the people most affected, for the longest period of their lives by both government benefits and “Medicare” (which is essentially the same as “Disability”) are in fact completely left out of the debate if not invisible. That’s a pretty big exclusion. National figures of PWDs put this population statistically at 20% of the country. About twice as large, we add, as the African-American or LGBT population and certainly one, across all age demographics, that will compete with the Boomers in terms of size if not wealth or relative health.

These are also people that, in fact, the Boomers have systematically ignored for the last 20 years since the passage of the ADA.

As both populations reflected in the data sets are relatively “stable” (in other words, most people over 65 receive Medicare and unfortunately most PWDs under 65 are still kept out of the job market, so this figure is also fairly reflective of overall PWD numbers), these two figures are a fairly reliable indicator of the total size of the population itself and “steady-state” recipients (in other words people who are not likely to move off the roles without significant policy in place to address it). The reason why PWDs have such an appallingly high rate of poverty if not unemployment (90%) is an issue we won’t discuss here, but we want to put our stake in the ground as recognizing it.

However more to the point, PWDs are also the largest “consumer” of government benefits of all those that receive them. Over 40% of the money spent on government healthcare in-state flows to this population. To put this in comparison, the “elderly” only account for about 26%.

This means a couple of things. It means that current efforts to “reform” the system, whatever it is called, must be systematic.

It also means that nobody is going to really affect the budget all that much if the debate only focuses on the recipients of government health benefits over 65. No matter how big and bad the Boomers like to think they are. Specifically, “vouchering” care is a drop in the bucket to the real, ongoing needs of a large segment of the population which statistically also uses such benefits, conceivably, for most of their lives – not just post-retirement.

For the uninitiated, this could seem like one of those “kick the can down the road” discussions. Unfortunately, anyone concerned about the budget these days (and let’s face it, we all are) needs to understand how imperative real reform is. It literally affects the Constitutionally defined “worth” if not “contractually defined value” of many human beings in this country. We’ll skip the wonky discussion of the implications of the 1991 Civil Rights Act in this blog post and how it intersects with the ADA, but we’ll come back to it later. The reality is that government healthcare benefits, particularly for PWDs are in fact part of such individuals’ implied contractual rights with the state if not tie into the perceived “worth” of a PWD per the Constitution.

Starting with, we argue, allowing as many of those currently on “Disability” to have every opportunity, including training, education and structural access to employment (if not real prosecution of their rights under the ADA) so that America may finally address its last great discrimination story. Not to mention start to address budget cuts in a real way and “right” the structural problems with the economy. Nothing close to this mindset exists right now in the official halls of power. One of the many reasons we decided to start this company (apart from the business case that exists) is to also bring attention to the unbelievably horrific realities of most of this population – suffering that is absolutely unnecessary if not immoral.

The reality also is that the many problems of “Medicaid/Medicare” actually work in concert to also rob PWDs of the ability to work, simply because the system is so beyond awful at the moment that it usually takes a significant amount of time to get care – so much so that it could easily impinge on the ability to find and keep employment (of any sort.)

The hidden story of the “missing 20%” in current budget discussions is also one we are working to highlight simply because it is also another “fix” that we support. It’s a far more complicated one to address, however, from the policy level, particularly in such a highly-charged debate where brinksmanship and lack of details about goals seems to be more important than focusing on the underlying issues required to create real change.

For those used to Washington politics, the response to this assertion may very well be “what’s new?”

In such a cynical and jaded echo chamber, we do actually think we do have something new.

We also think however, particularly for an administration that promised “change we can believe in,” that this is a very good place to start listening.