1. Right to Repair Legislation
Right to Repair legislation requires that manufacturers and providers of some types of such as power wheelchairs make parts, software and repair manuals available to independent repair technicians. Currently, many DME providers require individuals with power wheelchairs only receive repairs at “authorized” repair shops. This leads to long waits for repair and expensive markups for parts and labor. Further, repairs require prior authorization from a medical professional attesting to the need for the use of a power wheelchair, as well as its repair. This incentivizes authorized repair shops to wait to order parts or make repair persons available for repairs until they have received such notice, causing further delays.
This legislation would prohibit private health insurance companies and the state’s Medicaid agency, TennCare, from requiring prior authorization establishing the medical necessity of a person’s power wheelchair before repairs could commence. In addition, the legislation would require wheelchair manufacturers and providers to make parts, software and repair manuals available to all repair technicians.
2. ABLE Estate Recovery Prohibition Legislation
ABLE accounts are tax-advantaged savings accounts for eligible people with disabilities to help build savings to be used for qualifying medical expenses without threatening access to benefits, supports and services. One major drawback of an ABLE account is, upon death of the beneficiary, the account is subject to state estate recovery. Estate recovery is when the state may seek reimbursement for home- and community-based services (HCBS) provided over a person’s lifetime by claiming funds that remain in an ABLE account. The Centers for Medicare and Medicaid Services (CMS) does require that states attempt to recover funds for HCBS provided to individuals after the age of 55. However, the decision to claim estate recovery for services provided prior to age 55 are made by the state.
This legislation would prohibit the state of Tennessee from seeking estate recovery from ABLE accounts beyond what is required by the federal government. This means that for ABLE account holders who may pass away before the age of 55, funds that they have earned and saved over their lifetimes could be distributed to persons of their choice, rather than claimed by the state. This would likely increase the number of people willing to open an ABLE account in the state, providing more individuals with disabilities the freedom and independence to thrive in lives of their choosing.
3. Education Issues
There are a number of different education issues on the table this legislative session that are worth keeping an eye on for the disability community. First, it is important to watch the rollout of the Teacher’s Discipline Act, which went into effect January 1st, 2021. The Teacher’s Discipline Act allows teachers to engage in a process to possibly permanently remove students deemed disruptive from their classroom. There is a requirement in the law that schools collect and report data to the state Department of Education, who will then, upon legislative request, present the data to the General Assembly. This is an opportunity to understand how the law impacted students with disabilities and without good data and reporting, misuse and abuse could go unaccounted for.
Second, the Tennessee Disability Coalition, among other agencies, have received a disturbing number of reports about off-the-books suspensions, sometimes called informal removal, occurring in Tennessee schools. This is a process by which a school calls a parent and requires them to come pick up their child early, sometimes by use of threat, but then does not record the pickup as a suspension. This denies students of their special education due process rights, such as a manifestation determination meeting to propose solutions to resolve the issues underlying the child’s frequent removal. There is no pending legislation or policy changes to address the issue to date, but it’s important that the disability community monitor and record the prevalence of this practice as a means to advocate for change.
Third, we expect legislation to be introduced again this year to fully ban the practice of corporal punishment in Tennessee schools. Corporal punishment is the use of physical punishment to address behavioral issues conducted by a person of authority. In 2018, the Tennessee Disability Coalition was part of a legislative push that banned the use of corporal punishment for students with disabilities, so long as their parents did not opt them in to its use. Almost all empirical evidence shows that corporal punishment is ineffective in resolving behavioral issues, and is conversely harmful to the child’s physical and emotional well-being, and negatively impacts their academic performance.
There are several other education-related issues that may be of importance to the disability community. One is the monitoring of compensatory education funds that have been distributed over the past 2 years to account for pandemic-related denial of special education services. Another issue is the use of the 3rd grade retention clause stemming from the 2021 Learning Loss and Remediation Act. The clause requires students who fail to achieve reading “proficiency” on state standardized tests to either participate in summer learning camps and/or tutoring or be held back from entering 4th grade. This presents a number of conflicts with special education law (including parents’ right to choose), provides parents with few good options for addressing remediation and the research on the effects of retention is mixed.
Other issues include poor implementation of inclusive education practices for students with special needs, long busing delays leading to lost academic and service hours, locked classroom doors that present accessibility issues to students with mobility impairments and the low rates of IEP auditing to monitor for IEP quality for students across the state.
4. Employment Issues
There are two primary expected pieces of legislation related to employment that we’d expect to see in the coming General Assembly session. The first is a return piece of legislation from the past few years that would provide all employees of the state of Tennessee with paid family and medical leave (FML). It’s important that parents have the opportunity to support the needs of their children and to take care of themselves when they are ill. This is especially important for parents of children with disabilities, as well as those have disabilities themselves. Disability presents a number of unpredictable and necessary actions be taken to maintain one’s well-being, including more doctor’s appointments, more frequent illnesses or manifestations of disability and additional family caregiving needs. Paid family and medical leave helps to ensure that people don’t have to make the difficulty choice between maintaining their or their loved one’s health and maintaining employment and financial stability.
Additionally, we expect a piece of legislation from the state that would create a separate separation pathway for state employees with disabilities. Currently, all persons being separated or terminated as a state employee go through a disciplinary hearing, which consists of a set of warnings, problem solving and appeals rights. The bill would create a new pathway for people separated because they were unable to perform their essential duties as a result of their disability. The new pathway would contain different rights and not as many options to appeal. While decoupling termination for cause from separation as a result of a disability makes sense abstractly, it is concerning to create “separate-but-equal” paths to removal. Instead, we’d prefer that the current separation/termination process simply add additional steps, rights and appeals to account for the presence of a person’s disability.