NCD letter for Senate leadership re: COVID-19 legislative package

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Aug. 4, 2020

The Honorable Mitch McConnell
Majority Leader
United States Senate
S-230, U.S. Capitol
Washington, D.C. 20510

The Honorable Charles Schumer
Minority Leader
United States Senate
S-220, U.S. Capitol
Washington, D.C. 20510

Dear Leaders McConnell and Schumer:

I write on behalf of the National Council on Disability, an independent nonpartisan federal agency authorized to conduct objective and comprehensive investigations, research, and analysis on policies that affect people with disabilities, to strongly advise the Senate to include provisions in its COVID-19 legislative package currently in negotiation that promote access to critical home-and-community-based service (HCBS) systems for people with disabilities and those who support them during the COVID-19 outbreak. In addition, I urge the Senate to incorporate language into the SAFE to Work Act (S. 4317) that was introduced as part of the HEALS Act that is consistent with the Americans with Disabilities Act of 1990 (ADA), should S. 4317 be a part of the final negotiated package.

A. The next COVID-19 legislative package should include provisions for HCBS systems during the COVID-19 outbreak

In NCD’s April 24, 2020 letter to congressional leadership, NCD described that throughout the COVID-19 pandemic, we have heard from organizations representing front line direct support professionals (DSPs) and personal care attendants whose jobs are to provide people with disabilities assistance with activities of daily living– which cannot be provided at a six foot distance -- who are endangering themselves and their clients with disabilities due to insufficient protective equipment. Because the current definition of “essential workers” does not include these vital workers, they have no priority in acquiring personal protective equipment (PPE). Again, I strongly encouraged the Senate to pursue this as a “fix” in the legislative package you are currently negotiating.

In addition to the issue of designating these direct care workers as “essential,” I advise that you address their shortage and the tenuous nature of the entire system of which they are a part as a result of the COVID-19 pandemic. With more direct care workers unable to deliver critical services owing to their own illness, their family members’ illness, or their lives and careers impacted and disrupted by COVID-19 in other ways everyone is currently experiencing, the pre-existing worker shortage, high turnover rates, and low wages are culminating into a desperate cause-and-effect situation for scores of Americans with disabilities. 

B. The liability protections in the SAFE TO WORK Act (S. 4317) should not compromise the balance of interests protected by the Americans with Disabilities Act

National groups representing people with disabilities have recently contacted NCD with concern that §181(a)-(b) (LIMITATION ON VIOLATIONS UNDER SPECIFIC LAWS) creates confusion or modifies the civil rights protections provided in the ADA. Advocates have expressed fear this language creates a new analysis to determine discrimination that is inconsistent with the thirty-year, bipartisan congressional intent of the ADA.  

NCD’s own history is inextricably linked to the ADA. In its advisory role to policymakers, in the 1980s, NCD identified the need for broad civil rights legislation that would protect the rights of people with disabilities in employment, public services and public accommodations even during a national pandemic like COVID-19. The bill achieved overwhelming support because a variety of groups, including the business community, civil rights organizations, and legislators from across the political spectrum, worked together to develop legislation and carefully balance respective interests. For the past 30 years, the ADA has improved the lives of people with disabilities in virtually every area of life so that people with disabilities can participate in civic life in ways that were once impossible. NCD strongly cautions against deviating from the ADA’s protections during the COVID-19 pandemic for fear of future unintentional consequences that may lead to fragmented protections for people with disabilities every time a national emergency is declared.  

For reasons stated herein, NCD urges the Senate to include provisions for HCBS and to amend §181(a)-(b) of the SAFE TO WORK Act (S. 4317) to be consistent with the ADA. NCD staff would welcome the opportunity to brief your staff on these issues and answer any questions you may have. I encourage your staff to follow up with Anne Sommers, Director of Legislative Affairs and Outreach, at asommers@ncd.gov or Joan Durocher, General Counsel and Director of Policy, at jdurocher@ncd.gov to discuss these matters further.

Respectfully,

Neil Romano
Chairman