2004 NFB Legislative Agenda and Fact Sheets

2004 NFB Legislative Agenda and Fact Sheets

The Braille Monitor

March,

2004

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2004 NFB Legislative

Agenda and Fact Sheets

by

James McCarthy

From the Editor: What

follow are the documents that Federationists delivered to every congressional

office and discussed with members and their staffs. The agenda briefly lays

out the three issues primarily on our minds this year. Three fact sheets follow

the agenda, each discussing one of the concepts or bills. Here are all four

documents:

Legislative

Agenda of Blind Americans:

Priorities for the 108th Congress, Second Session

Most people know a blind

person, and seventy-five thousand Americans become blind or visually impaired

every year. The blind population in the United States is estimated to exceed

1.3 million with several million more considered to be visually impaired. In

addition, the social and economic consequences of blindness directly touch the

lives of each blind person's family members, coworkers, and friends. Public

policies and laws affecting blind people have a profound impact throughout our

entire society.

Decisions

that result from misconceptions or lack of information about blindness are frequently

more limiting than the loss of eyesight itself. This is why we have formed the

National Federation of the Blind. The Federation's leaders and the vast majority

of its members are blind, but anyone is welcome to join in our effort to win

understanding and equality in society.

Our

priorities for the Second Session of the 108th Congress reflect an urgent need

for action in three areas of vital importance to blind Americans. (For an explanation

of these issues, please see the attached fact sheets.)

1. Congress should enact

legislation amending the Fair Labor Standards Act so blindness cannot be a factor

to permit paying less than the minimum wage. This proposal recognizes that blindness

does not reduce a person's productive capacity, and it makes the law consistent

with actual practice.

2.

Congress should amend the Higher Education Act to improve opportunities for

blind students by promoting self-reliance, giving them responsibility to control

blindness-related services and assuring equal opportunity to participate in

programs and courses. This proposal would result in blind students taking charge

of blindness-related services as part of their academic experience in order

to prepare for success in school and in life.

3.

Congress should eliminate the Social Security earnings penalty placed on blind

people who work. This proposal includes mandated adjustments in the blind persons'

earnings limit to reach $30,000 over the next five years, reducing the disincentive

to work.

Blind

people are asking for your help to address these priorities in the present session

of Congress. By acting in partnership with the National Federation of the Blind,

each Member of Congress can help build better lives for the blind, both today

and in the years ahead. The legislative actions recommended in our priorities

will help blind persons while creating a brighter future for all Americans.

Real

Wages for Real Work:

Blind Employees at Industries for the Blind

Purpose:

The

National Federation of the Blind and National Industries for the Blind urge

Congress to enact legislation amending the Fair Labor Standards Act so blindness

cannot be a factor to permit paying less than the minimum wage.

Background:

Although

most blind people are unemployed, those who have jobs are generally paid the

going rate for the work they do. This was not the case in the 1930's when the

minimum wage in America first became law. It was also at that time, in 1938,

when the Wagner-O'Day Act--now the Javits-Wagner-O'Day (JWOD) Act--was passed

to encourage the federal government to purchase products from nonprofit workshops

employing the blind in broom-making, light manufacturing, and assembly work.

This was the first federally backed jobs program for the blind, which, even

in 2004, is still supported in part by the principle that the employers eligible

to receive government contracts can be exempt under the Fair Labor Standards

Act from paying their blind workers the federal minimum wage.

Today

National Industries for the Blind (NIB) is the "central nonprofit agency"

officially designated to coordinate opportunities for its more than eighty member

industries to supply certain approved goods and services to the federal government.

Commercial sales are also promoted. Yet for the blind workers, approximately

five thousand of them working in production, the federal law still fails to

guarantee the minimum wage.

The

loophole is in Section 14(c) of the Fair Labor Standards Act, which requires

the Secretary of Labor to grant exemptions from the minimum wage in the case

of workers whose "earning or productive capacity is impaired by age, physical

or mental deficiency, or injury." Subminimum wages are permitted "to

the extent necessary to prevent curtailment of opportunities for employment."

According to the law pay rates below the minimum wage are supposed to be based

on individual productivity as compared to standard productivity of unimpaired

people for essentially the same type, quality, and quantity of work performed.

Need for Legislation:

In

1990 the Americans with Disabilities Act (ADA) established the current legal

standard that individuals with disabilities are entitled to equal treatment

in all areas of life. Although more general than the Fair Labor Standards Act,

Title I of the ADA is intended to assure equal employment opportunity for persons

with disabilities, including blindness.

This

is a more enlightened public policy than the 1938 subminimum wage law still

on the books. In the case of blind employees empirical evidence shows that permission

for a subminimum wage is no longer justified. In fact, according to NIB, exemptions

from the minimum wage currently apply to an estimated 317 of the 5,000 workers

at its associated agencies nationwide. Only a few of these agencies actually

request exemptions as a matter of policy and best practice.

Therefore

Congress should acknowledge the industry practice and preferred public policy

by prohibiting use of blindness as a factor for exemption from the minimum wage.

This would be a ringing declaration by Congress that lack of eyesight cannot

be an excuse for substandard pay. Also the employers' burden of justifying particular

subminimum wage payments would be eliminated altogether in the few instances

in which the exemption is currently used.

Action Needed:

Congress

should amend Section 14(c) of the Fair Labor Standards Act to prohibit use of

impaired vision or blindness as a factor for paying less than the minimum wage.

This would require employers to apply the same pay standards to all workers

regardless of visual acuity. In the work settings where subminimum wages are

ordinarily paid, blindness does not reduce productivity. Adopting this proposal

would not block use of the minimum wage exemption in the case of impairments

that do affect productivity.

Support

blind Americans by prohibiting the subminimum wage, and update the law to reflect

the acknowledged best practices of the industry.

Taking

Charge:

Promoting Responsibility for Blind Students in Higher Education

Purpose:

To

improve opportunities in higher education for blind students by promoting self-reliance,

giving them responsibility to control blindness-related services, and assuring

equal opportunity to participate in programs and courses.

Background:

The

Education Amendments of 1972 established the right of blind students to be admitted

to higher education institutions and receive instruction on equal terms with

others. This law, combined with the Rehabilitation Act of 1973 and the Americans

with Disabilities Act of 1990, assures the blind the opportunity to enroll,

but participation in academic and extracurricular programs may be conditioned

on acceptance of "special services," provided on the institution's

prescribed terms rather than the student's expressed needs. Participation in

specific programs or courses of instruction may also be limited based on low

expectations by academic personnel.

For

those who can see, academic instruction presumes the ability to acquire information

by reading print. This means that blind students begin with the challenge of

obtaining the same information presented to others even though they cannot read

the printed texts, handouts, or other documents. Effective planning and marshalling

of resources to meet this challenge are essential qualities for blind students'

success.

Available

resources include a federally funded service called RFB&D which receives

an annual appropriation of approximately $11,400,000 to convert printed texts

into audio and digital recordings for blind and dyslexic students in postsecondary

programs. Established more recently, an online service, Bookshare.org, provides

students with computer access to a steadily growing electronic library, currently

consisting of more than fifteen thousand books. Specially designed software

used on a student's personal computer can also convert printed text into synthetic

speech or Braille. Finally, other students or persons in the community can be

recruited for part-time work as readers, providing vital assistance to blind

students in using the library, taking tests, and meeting other academic needs.

Learning to secure and manage these resources efficiently is important for blind

students in order to achieve success in school and in life.

Existing Law:

Section

504 of the Rehabilitation Act of 1973 (as amended) prohibits discrimination

against persons with disabilities, including blindness. With enactment of the

Americans with Disabilities Act of 1990 (ADA), this law was extended to all

higher education institutions. These laws require reasonable accommodation to

permit participation by persons with disabilities.

As

a result higher education institutions have established campuswide Disabled

Student Services (DSS) Offices to plan, organize, and control accessibility

accommodations. Rather than fostering student responsibility, these offices

have become internal bureaucracies assuming growing control over when and how

the institution will accommodate blind and disabled students. As currently written,

Section 504 and the ADA do not prohibit this practice.

Need for Legislation:

Institutions

of higher education should foster responsibility, creativity, and initiative

in all students to prepare them for future success. By imposing preconceived

one-size-fits-all service plans on blind students, the DSS offices fail to promote

these essential qualities. DSS offices should meet the needs of blind students,

and who knows their needs better than blind students themselves? Serving as

resource centers, these offices should facilitate, but not control, management

of blindness-related services.

Existing

laws clearly prohibit denying admission based on blindness,but once admitted,blind

studentsmay often be subject to restrictions placed on their participation

inprograms or specific courses. This occursmost often when academic

personnel fail to consult blind students and conclude that lack of sight equates

to lack of ability. Rather than planning with students to determine if modifications

are needed, they resort to calling inthe DSS offices to represent the

students. This leaves students out of the process and vulnerable to decisions

made in the name of helping them. Successful program participation is best achieved

when blind students and personnel collaborate to address concerns about participation,

but the laws against discrimination do not clearly require this.

Action Needed:

Congress

should amend the Higher Education Act to improve opportunities for blind students

by promoting self-reliance, giving them responsibility to control blindness-related

services, and assuring equal opportunity to participate in programs and courses.

The amendment should ensure that:

• Higher education

institutions have procedures to encourage responsibility and self-reliance among

blind students in arranging the accessibility accommodations they need;

• Students, not institutions,

must have ultimate control over arrangements for accessibility accommodations;

and

• Decisions concerning

modifications to programs or courses of instruction shall not be made unless

requested by students and shall be planned jointly by blind students and academic

personnel in order to assure equal opportunities to participate.

Removing

the Penalty for Working:

Commonsense Work Incentives for Blind

Social Security Beneficiaries

Legislation:

H.R.

173, "Blind Empowerment Act of 2003," by Congressman Thomas Reynolds.

S. 750, "Blind Empowerment Act of 2003," by Senator John McCain.

Purpose:

To

amend Title II of the Social Security Act to increase the level of earnings

allowed for blind individuals without a penalty for working.

Background:

By

increasing the Social Security earnings limit in 1996, Congress provided a powerful

incentive for seniors age sixty-five and older to work. Advocates made the case

that seniors would continue to work, earn, and pay taxes since they could do

so without fearing loss of income from Social Security. Now the need for a higher

earnings limit for the blind is even more compelling because of an all-or-nothing

penalty for working above it. However, Congress has disregarded this in the

case of the blind while encouraging seniors to work by removing the earnings

limit altogether.

For

blind persons gross earnings exceeding $1,350 monthly ($16,200 annually) cause

a total loss of benefits until age sixty-five. At that point there is no limit

on the amount that same individual can earn. This is the inequity that now exists.

Existing Law:

Like

"retirement age," "blindness" is specifically defined in

the Social Security Act and can be readily determined. By contrast, evaluating

"disability" is more subjective, requiring a finding of "inability

to engage in substantial gainful activity." Reaching this finding is complex

and not clear cut.

Although

blindness is precisely defined, monthly benefits are not paid to all blind people

but only to those whose earnings (from work) are below an annually adjusted

statutory earnings limit. No penalty for personal wealth is derived from any

source other than work. In the case of the blind, work alone is penalized. Recognition

of the earnings limit's impact on seniors prompted Congress to change the law.

The present situation for the blind is the same as it was for seniors prior

to 1996.

Need for Legislation:

For

blind people who find work, earnings will usually not replace lost benefits

after taxes and work expenses are paid. Therefore few beneficiaries can actually

afford to attempt significant work. Those who do often sacrifice income and

the security of a monthly check. The following examples illustrate the penalty

for working.

A

single person with no dependents, having annual cash benefits of $10,300 or

roughly $859 per month (an average benefit) with no other income, receives this

amount tax-free. Gross pay to replace benefits would have to be approximately

$17,850, taking into account taxes and work expenses (such as commuting and

buying appropriate clothing for work). This is $1,650 above the amount allowed.

Earnings below $17,850 would mean a loss. While some individuals will still

choose to work, for most the rational choice is not to work because they can't

afford to lose income.

If

the beneficiary has dependents, the situation is more troublesome. With two

dependents, the family's total benefit is likely to average approximately $16,200

annually. Therefore earnings of $16,500 (just above the limit) will not replace

benefits. Using conservative assumptions, such as taxes figured at 25 percent

of gross pay and childcare for two children at $500 per month, replacing $16,200

in benefits would require about $28,300 in gross pay. When dependents are involved,

the choice to work or not to work is more constrained, and the amount needed

to replace everyone's benefit far exceeds the blind person's earnings limit.

Action Needed:

Increasing

the earnings limit to $30,000 over five years will allow blind people to work

without being penalized financially for doing so, providing more than 100,000

blind beneficiaries with a powerful work incentive. At present a blind individual's

earnings must not exceed a strict monthly limit of $1,350. When earnings exceed

this threshold, the entire sum paid to a primary beneficiary and dependents

is abruptly withdrawn after a trial work period. The economic risk resulting

for a blind head of household is far greater than any economic benefit derived.

An

increase in the earnings limit would be cost-beneficial. With a 74 percent unemployment

rate, the significant majority of working-age blind people are already beneficiaries.

Providing them with a meaningful work incentive would allow them to become taxpayers

as well. Congress raised the earnings exemption for seniors, and only Congress

can do the same for the blind. The chance to work, earn, and pay taxes is a

constructive and valid goal for senior citizens and blind Americans alike.

Congress should remove

the penalty for blind SSDI beneficiaries who work. Please support blind Americans

by cosponsoring legislation requiring mandated increases in the earnings limit

for the blind and request action on this legislation during the Second Session

of the 108th Congress.

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