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Congress Passed Legislation That Will Enable Military Members to Name Special Needs Trusts as Beneficiaries of Survivor Benefit Plan; Retiree Action Possible Soon

by: Theresa M. Varnet M.S.W., J.D. (Spain, Spain & Varnet, P.C., Chicago, IL and Fletcher Tilton, P.C., Worcester, MA)

On December 15, 2014, Congress passed the Disabled Military Child Protection Act which allows military families to protect their Survivor Benefit Plans (SBP) by allowing the benefits to be directed to a qualified special needs trust. If there are any funds left in the trust when the disabled beneficiary dies, the funds are paid back to Medicaid for the cost of Medicaid funded services provided to the individual over his/her lifetime.

The Military allows military members who have children with disabilities to participate in the SBP. SBP permits monthly benefit stipends of up to 55% of the military member’s pension to be paid for the benefit of a disabled adult child. Prior to the passage of this Act, benefits had to be paid directly to the adult child. The Disabled Military Child Protection Act will allow the survivor benefit to be paid directly to a “payback special needs trust” for the benefit of a child with a disability. If the benefits are distributed directly to the trust, the beneficiary will remain eligible for needs-based benefits such as SSI and Medicaid.

Beneficiaries of a parent’s SBP can now retain eligibility for Medicaid by assigning the military pension to the qualified special needs trust. A qualified special needs trust is sometimes called a ‘payback’ trust, first party trust, self-settled trust, d4(a), d4(c) trust, or an OBRA’93 trust. It is not the typical 3rd party special needs trust that parents provide in their wills and living trusts. By assigning benefits to a qualified special needs trust, these individuals will now be able to remain eligible for Medicaid which is the primary payer of long term supports and services available to persons with disabilities. Up until now, individuals who received SBP were often locked out of Medicaid funded support programs because their income was deemed too high. If the pension benefits caused him to be over income for Medicaid but did not provide sufficient income for private care, the beneficiary of a SBP was often in a worse off position because of the receipt of this pension. S/he had too much income to qualify for Medicaid but not enough income to meet one’s medical and personal care needs.

It is anticipated that military regulations will be written by the end of this year or by early 2016. Early indications are that the designation to a trust can be made by the military member anytime during his lifetime, but also assignable by the benefit recipient if or when the benefit is being received. Retirees cannot make the assignment now, but hopefully will be able to do so by early next year. We were initially told that there was going to be a narrow window of opportunity to change the beneficiary designation from the disabled child to a trust. We are now told that there will not be a restriction as to when the designation to a trust can be made. Of course, until the regulations are written, we will not know for certain what will be allowed. If you know anyone who may be receiving SBP benefits or could be eligible in the future, it is important to get this information out to them so they are ready to make the change in beneficiary as soon as possible. It is important to meet with an attorney knowledgeable in drafting a ‘payback’ trust. It is critical that the correct type of trust be designated as a beneficiary. If a typical 3rd party special needs trust is used that does not contain the restrictive language required in a payback trust, the assignment will not qualify the beneficiary of the trust for Medicaid and SSI. Parents can find the name of an attorney familiar with drafting qualified payback special needs trusts through the websites for the Academy for Special Needs Planners (ASNP) or the Special Needs Alliance (SNA). ASNP AND SNA are two professional organizations for attorneys who concentrate in this very unique and dynamic area of law.

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October Is National Disability Employment Month

Nicole Jorwic, J.D., Director of Rights Policy for The Arc

October is National Disability Employment Awareness Month, a time to reflect on the advancements in making employment for individuals with disabilities a reality, and also, on how much work is left to be done. As the Employment First movement has been sweeping across the country, it is important to remember why a job is so important to an individual with a disability. My brother is 26 and has autism, I asked him why getting a job is important to him, this was his response:

“I think that a job is essential to a person with a disability because it gives us purpose, and common ground to build on with the rest of the world. All my siblings get so much of their identities from their jobs, I should have the same chance. All my brothers and sisters in disability deserve the opportunities to work in our communities, for fair pay, so that we can fulfill our destinies.”

As we work in Washington, DC and on the state-level to ensure that policies and practices converge to make the road to employment smoother for individuals with disabilities, we must remember that a job is an essential part of what gives someone standing in their community. Individuals with disabilities are succeeding in meaningful careers in a wide range of private businesses, government agencies and nonprofit organizations, while others are becoming entrepreneurs with their own micro-businesses.

We moved from a time when the thought of individuals with disabilities having a job was a dream, through a time when the only options were sheltered workshops, into a new era where there is meaningful and competitive work for individuals with disabilities. The value in having a response to “what do you do?” is immeasurable for individuals with disabilities across the country, including my brother Chris.

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The Arc Reacts to Announcement of No Social Security Increase for 2016

Yesterday, the Social Security Administration announced that inflation as calculated under the Social Security Act did not increase last year, and that as a result, monthly Social Security and Supplemental Security Income benefits will not increase in 2016.

“Nearly 65 million Americans, including over 14 million people with disabilities and their families, will see no cost-of-living adjustment in their Social Security and Supplemental Security Income benefits in 2016,” said Marty Ford, Senior Executive Officer, Public Policy.

“While the official measure of inflation did not change in 2015, at The Arc we know that many beneficiaries, including people with intellectual and developmental disabilities, are struggling to make ends meet. Their Social Security and Supplemental Security Income benefits won’t increase in 2016, but their rent, out-of-pocket medical expenses, and other daily living costs may.

“What’s hard to imagine is that some in Congress think that no cost-of-living adjustment is too much, and want to cut our Social Security lifeline. Shockingly, there’s still talk in Congress of adopting an even lower inflation formula in the Social Security Act, so there would be smaller, and fewer, annual benefit increases. And some in Congress are holding hostage 11 million Social Security Disability Insurance beneficiaries who will face a 20 percent benefit cut at the end of 2016 if Congress fails to act. The Arc calls on Congress to strengthen our Social Security and Supplemental Security Income systems, and to reject any cuts to this lifeline for people with intellectual and developmental disabilities,” said Ford.

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Happy 80th Birthday, Social Security!

This week, The Arc celebrates the 80th anniversary of our nation’s Social Security system.

Signed into law by President Franklin Delano Roosevelt on August 14, 1935, Social Security improves our lives in so many ways. It provides basic economic security for workers and their families – including children and spouses with disabilities – when a worker retires, dies, or acquires a significant, qualifying disability. It helps people with disabilities who work to enjoy a secure retirement. And it provides access to health insurance through Medicare, enabling many people with disabilities to get the health care they need.

Social Security insures nearly all Americans, or an estimated 165 million workers. Its protections are hard to come by anywhere else: roughly 7 in 10 civilian workers have no long-term disability insurance, half have no private pension, and one in three has no savings set aside for retirement.

It’s hard to imagine what life would be like without Social Security. Benefits average just over $40 per day, but lift about 22 million Americans out of poverty. For most beneficiaries, that $40 per day is most or all of what they have to get by. Many people with disabilities tell us that even a small cut in their Social Security benefits would mean facing terrible choices, like whether to take a prescribed medication or buy groceries.

Social Security has never missed a payment since 1935. Workers pay for Social Security, and count on it being there when they and their families need it. The Arc knows how important it is to sustain Social Security’s record of success, and keep our nation’s promise to today’s workers and beneficiaries, and for generations to come.

Over the last year, The Arc has been on the front lines, defending our Social Security lifeline against shocking attacks and speaking out against harmful benefit cuts. We’re fighting to prevent a devastating 20% across-the-board cut in Social Security disability benefits at the end of 2016. And we offer many recommendations for strengthening Social Security so that the system works better for people with disabilities and stays financially strong for decades to come.

Please join us in making sure this vital system is there for people with I/DD and their families!

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Happy Birthday to Two Essential Lifelines!

Millions of Americans with disabilities appreciate the vital contributions of the Medicaid and Medicare programs. They provide access to health care and vital home and community based supports (HCBS). Needless to say, they are essential lifelines for people with disabilities.

As we mark the 50th Anniversary of these important programs we have much to celebrate. Did you know that today for the first time in its history, home and community-based services (HCBS) accounts for a majority of Medicaid long-term services and supports (LTSS) spending? This anniversary gives us the opportunity to celebrate the fact that millions of Americans with disabilities have access health care thanks to Medicare and Medicaid. That’s right, MILLIONS of people. Approximately 9 million low-income seniors and younger people with disabilities are covered by both Medicare and Medicaid, including. These dually eligible beneficiaries have complex and often costly health care needs and rely heavily on these program. The harsh reality is without these lifeline programs, their medical needs would not be met – that alone is a cause to celebrate these essential programs.

For people with intellectual and/or developmental disabilities (I/DD) Medicaid and Medicare are especially critical. Nationwide, state and federal Medicaid together provides over 77.7 percent of the funding for supports and services for people with I/DD. This effective and cost efficient program is essential for people with I/DD, enabling them to live and work in the community.

Medicaid has evolved over the years just as the needs of people with I/DD. We urge Congress and the states to ensure that it can meet the future health and LTSS needs of people with I/DD and other disabilities. Please join The Arc in wishing Medicare and Medicaid a Happy Birthday – cheers to another 50 years of essential supports for people with I/DD across the nation!

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The Arc Celebrates the ADA’s 25th Anniversary

On July 26, we will celebrate the 25th anniversary of the Americans with Disabilities Act (ADA). The ADA affirms the rights of citizens with disabilities by prohibiting discrimination in employment, public services, public accommodations and services operated by private entities, and telecommunications. It is a wide-ranging law intended to make our society accessible to people with disabilities.

The Arc played a leadership role in the passage of the ADA. Our volunteer leadership, state chapters, local chapters, and public policy staff worked closely with others in the disability community to make the ADA a reality. The bottom line is that the passage of this transformative legislation would not have been possible without the hard work of Congressional leaders and disability advocates, like you! As we celebrate this monumental achievement and the 25 years of implementation of this law, we can’t help but reflect on what the ADA really means to individuals with intellectual and developmental disabilities and their loves ones.

To commemorate this special anniversary, we asked members of The Arc’s National Staff to share with us what the ADA means to them. You can read a few of the responses below.

We invite you to visit our social media channels, on Facebook (The Arc US) and Twitter (@TheArcUS) and share with us what the ADA means to you. We want you to be part of the larger conversation so be sure to use the hashtag #ADA25.

“I have been a participant in so many meaningful opportunities. I attended two very highly respected universities; I have travelled extensively, from Kauai to Istanbul to Moscow. And I interned and worked for a prestigious corporation on Wall Street. Each of these experiences has been the product of public policy, for I am an individual with a physical disability. It was through the National Business and Disability Council (NBDC) that I secured a summer internship in New York City. In light of these life events, is it any surprise that I am totally convinced of the power of ADA to transform lives?” – Taylor Woodard, Paul Marchand Intern, The Arc

“I have the ADA to thank for bringing me to The Arc, and introducing me to what has become a life-long commitment to advocating with and for people with disabilities. About 20 years ago, I was hired to direct an ADA project that created materials for criminal justice professionals about accommodations people with intellectual and developmental disabilities need in order to receive fair treatment in the system. This seed money from the Department of Justice eventually led to the creation of a national center in 2013 (see http://www.thearc.org/NCCJD). It’s frightening to think how the lives of people with disabilities would be different today without the passage of the ADA. It’s equally exciting to dream about what the next 25 years may hold!” – Leigh Ann Davis, Program Manager, The Arc’s National Center on Criminal Justice and Disability

“I’ve had the honor of supporting individuals with disabilities and their families since 1978. Back then professionals were taught that we knew best. The idea that a professional would ask a parent, let alone a person with a disability, what they wanted out of life was unheard of. Once the ADA was enacted many professionals were slow to support the paradigm shift from institutionalization to specialized services to full community membership. I’m grateful that my world opened. I count myself as a supporter, listener, and friend. I’m a follower and not a leader. I join in celebrating the fact that more and more people with intellectual disabilities are living full lives in their communities. However, we still have a very long way to go since so many remain ignored and unfilled. So as we celebrate, let’s not forget the 1980 battle cry from Senator Ted Kennedy, ‘For all those whose cares have been our concerns, the work goes on, the cause endures, the hope still lives and the dream shall never die.’” – Karen Wolf-Branigin, Senior Executive Officer, National Initiatives, The Arc

“Having two siblings with I/DD and working as a disability rights attorney, I see the profound value of the ADA in both my personal and professional life. While there is still so much more work that needs to be done to make our systems work better for people with disabilities, much of the progress we have achieved and continue to work towards every day at The Arc and throughout the disability advocacy community would simply not be possible without the vital protections and enforcement mechanisms the ADA provides. I am eager to see what we will achieve over the next 25 years as we continue to use the ADA as a fundamental tool to protect and enforce the civil rights of individuals with disabilities!”- Shira T. Wakschlag, Staff Attorney, The Arc

“The ADA certainly transforms lives, as I can attest to. It has helped me to reach my goals and enabled me to be a trailblazer and set the way for individuals with autism and other developmental or intellectual disabilities. I have had numerous opportunities, one being able to participate in my DD council’s Partners in Policy Making program where I learned how to be a self-advocate and stand up for myself and others. It has also helped me to be employed at one of the most wonderful places to work, The Arc of the U.S.” – Amy Goodman, Director Autism Now, The Arc

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SSDI: Time for Action

A lifeline of financial security for millions of Americans with disabilities, Social Security Disability Insurance (SSDI), is currently under attack. Congress must adjust SSDI’s finances by the end of 2016 to prevent a devastating one-fifth across-the-board cut in benefits. Writing in the Journal of Health and Social Work, The Arc’s T.J. Sutcliffe makes the case for how social workers and other professionals in the field can and should support necessary action to strengthen and preserve this vital support for people with disabilities and their families.

Sign up for The Arc’s Capitol Insider weekly updates and periodic Action Alerts to stay informed on the latest developments and take action to support the SSDI lifeline.

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The Arc on New Study That Highlights Housing Crisis for People With Disabilities on SSI

This week, the Technical Assistance Collaborative (TAC) and the Consortium for Citizens with Disabilities (CCD) Housing Task Force released a study, Priced Out in 2014. This publication is released every two years. The 2014 results show that the national average rent for a modestly priced one-bedroom apartment is greater than the entire average Supplemental Security Income (SSI) benefit for a person with a disability.

Priced Out in 2014 highlights an ongoing barrier to community living for people with disabilities – the lack of accessible, affordable housing. People with disabilities deserve the opportunity to live independently in the community, though as highlighted by Priced Out in 2014, many who rely on SSI face severe obstacles to that opportunity. While progress has been made over the last several years with a new, integrated housing model under the Department of Housing and Urban Development’s Section 811 program, our nation still has a long way to go. Having a place to call home is a basic human right. The Arc is advocating for Congress to adequately fund the Section 811 project rental assistance program to help address the housing crisis for people with disabilities.

SSI provides basic income to people with significant and long-term disabilities who have extremely low incomes and savings. According to Priced Out in 2014:

  • In 2014, the average annual income of a single, non-institutionalized adult with a disability receiving SSI was $8,995, about 23% below the federal poverty level for the year.
  • As a national average, a person receiving SSI needed to pay 104% of his or her monthly income in order to rent a modest one-bedroom unit. In four states and the District of Columbia, every single housing market area in the state had one-bedroom rents that exceeded 100% of SSI.
  • In 162 housing market areas across 33 states, one-bedroom rents exceeded 100% of monthly SSI. Rents for modest rental units in 15 of these areas exceeded 150% of SSI.
  • People with disabilities receiving SSI were also priced out of smaller studio/efficiency rental units, which on a national basis cost 90% of SSI. In eight states and in the District of Columbia, the average rent for a studio/efficiency unit exceeded 100% of the income of an SSI recipient.

The full results of the study can be viewed on the TAC website.

The Department of Housing and Urban Development (HUD) Section 811 Project Rental Assistance (PRA) program is an innovative new model that allows states to effectively target rental assistance to enable people with significant disabilities to live in the community. Section 811 is the only HUD program dedicated to creating inclusive housing for extremely low-income people with severe disabilities, including SSI recipients.

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House and Senate 2016 Budget Resolutions Are an Affront to the Disability Community

The Senate passed its Fiscal Year (FY) 2016 Budget Resolution early this morning, following the House’s approval of its own resolution earlier this week. Budget resolutions set the boundaries for federal spending and tax priorities for the fiscal year and the implications are very scary for people with intellectual and developmental disabilities (I/DD) and their families this year.

The House resolution seeks to balance the budget within nine years by cutting $5.5 trillion, while the Senate resolution would balance it in ten years by cutting $5.1 trillion, reflecting differences that could well be resolved in a conference committee. Substantial portions of these cuts come from block granting the Medicaid program (called “flexible state allotments”) and privatizing the Medicare program. Should a conference agreement pass in both chambers, a process known as budget reconciliation could be triggered to make the proposed changes in the entitlement programs and the tax code alike. This process would likely unravel the social insurance and safety net for our nation’s most vulnerable citizens while simultaneously reducing taxes for those who least need it.

“Bake sales and car washes are simply not an option. Our social insurance and safety net programs require appropriate levels of funding that can only come from the taxes that we pay and from a bipartisan commitment to people with disabilities,” stated Peter V. Berns, CEO of The Arc. “Most Americans support a balanced approach to deficit reduction, and disability is a bipartisan issue. But the budgets approved in Congress don’t reflect that reality with a ‘cuts only’ approach. Creating even larger wealth inequality in this country through the spending and tax policies promoted in these budgets is an affront to people with I/DD, many of whom are already at the bottom rung of the economic ladder. Our government policies should be lifting people up, not pushing them further down.”

To get involved in protecting the rights of people with I/DD, sign up for The Arc’s Action List.

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The Arc Joins Over 70 National Organizations to Speak Out Against Attacks on Social Security, SSDI

Social Security and its disability program are incredibly important to people with I/DD, providing modest support to make living independently a reality.  But this vital system is under attack in Washington, DC. Today, The Arc joined other major national organizations to release a letter with Senator Sherrod Brown (below) to oppose any cuts to the program.  Sign up for The Arc’s action center to stay informed and act to stop Congress from making cuts.

March 17, 2015

The Honorable Orrin Hatch

Chair, Committee on Finance

U.S. Senate

219 Dirksen Senate Office Building

Washington, DC 20510

 

The Honorable Sam Johnson

Chair, Subcommittee on Social Security

Committee on Ways and Means

U.S. House of Representatives

B317 Rayburn House Office Building

Washington, DC 20515

 

The Honorable Paul Ryan

Chair, Committee on Ways and Means

U.S. House of Representatives

1102 Longworth House Office Building

Washington, DC 20515

The Honorable Jeff Flake

U.S. Senate

368 Russell Senate Office Building

Washington, DC 20510

 

The Honorable Joe Manchin

U.S. Senate

306 Hart Senate Office Building
Washington, DC 20510

 

RE:      Opposition to proposals to eliminate or reduce concurrent Social Security Disability Insurance (SSDI) and Unemployment Insurance (UI) benefits

Dear Chairman Hatch, Chairman Johnson, Chairman Ryan, Senator Flake, and Senator Manchin:

The undersigned members of the Consortium for Citizens with Disabilities (CCD), the Coalition on Human Needs, and the Strengthen Social Security Coalition write to express our opposition to proposals to eliminate or reduce concurrent Social Security Disability Insurance (SSDI) and Unemployment Insurance (UI) benefits, including the “Social Security Disability Insurance and Unemployment Benefits Double Dip Elimination Act of 2015” (S. 499; H.R. 918) and the “Reducing Overlapping Payments Act of 2015” (S. 343).

SSDI and UI are vital insurance systems established for different purposes. Receiving UI and SSDI concurrently is legal and appropriate. This has been the long-standing position of the Social Security Administration and of the courts. Individuals qualify for SSDI because they have significant disabilities that prevent work at or above Social Security’s Substantial Gainful Activity level (earnings of $1,090 per month, in 2015). At the same time, the Social Security Act encourages SSDI beneficiaries to attempt to work, and those who have done so at a low level of earnings but have lost their job through no fault of their own may qualify for UI. As highlighted in a 2012 Government Accountability Office report, less than one percent of individuals served by SSDI and UI receive concurrent benefits, and the average quarterly concurrent benefit in fiscal year 2010 totaled only about $3,300 (or an average of $1,100 per month).

These extremely modest benefits can be a lifeline to workers with disabilities who receive them, and their families – and as permitted by law are neither “double-dipping” nor improper payments. We are deeply concerned by any prospect of worsening the economic security of workers with disabilities and their families.

In addition, proposed cuts to concurrent benefits single out SSDI beneficiaries with disabilities, treating them differently from other workers under the UI program.

Finally, proposed cuts to concurrent benefits create new disincentives to work for SSDI beneficiaries, by penalizing individuals who qualify for both SSDI and UI because they have attempted to work, as encouraged by law. The creation of a new work disincentive runs directly counter to our shared goal of expanding employment opportunities for people with disabilities.

For these reasons, the undersigned national organizations strongly oppose the “Social Security Disability Insurance and Unemployment Benefits Double Dip Elimination Act of 2015” and the “Reducing Overlapping Payments Act of 2015.” We urge Congress to reject these bills and any similar legislation.

Sincerely,

9to5

ACCSES*

AFL-CIO

Alliance for Retired Americans

Alliance for Strong Families and Communities

American Council of the Blind*

American Federation of Government Employees (AFGE)

American Federation of State, County and Municipal Employees (AFSME)

American Foundation for the Blind (AFB)*

Americans for Democratic Action (ADA)

Association of Assistive Technology Act Programs*

Association of University Centers on Disabilities*

Autism National Committee*

Autistic Self Advocacy Network (ASAN)*

B’nai B’rith International

Brain Injury Association of America*

Campaign for America’s Future

Center for Community Change Action

Center for Effective Government

Coalition on Human Needs

Community Legal Services*

Disability Rights Education and Defense Fund*

Easter Seals*

Equal Rights Advocates

Every Child Matters Education Fund

Food Research & Action Center (FRAC)

Goodwill Industries International*

Health & Disability Advocates*

Justice in Aging*

Latinos for a Secure Retirement

Lupus Foundation of America*

Lutheran Services in America Disability Network*

MomsRising

NAACP

National Advocacy Center of the Sisters of the Good Shepherd

National Alliance on Mental Illness*

National Association of Councils on Developmental Disabilities*

National Association of Disability Representatives*

National Association of State Directors of Special Education*

National Association of State Head Injury Administrators*

National Committee to Preserve Social Security and Medicare*

National Council of Jewish Women

National Council on Aging*

National Council on Independent Living*

National Disability Rights Network (NDRN)*

National Down Syndrome Congress*

National Employment Law Project

National Employment Lawyers Association

National Industries for the Blind*

National Multiple Sclerosis Society*

National Organization for Women

National Organization of Social Security Claimants’ Representatives*

National Priorities Project

National Respite Coalition*

National Women’s Law Center

NETWORK, A National Catholic Social Justice Lobby

OWL-The Voice of Women 40+

Paralyzed Veterans of America*

Provincial Council of the Clerics of St. Viator (Viatorians)

Racial and Ethnic Health Disparities Coalition

Social Security Works

SourceAmerica*

Special Needs Alliance*

Strengthen Social Security Coalition

The Arc of the United States*

The Jewish Federations of North America*

The John O’Leary Organization

The Judge David L. Bazelon Center for Mental Health Law*

Union for Reform Judaism

United Cerebral Palsy*

United Spinal Association*

United Steelworkers (USW)

USAction

Vietnam Veterans of America (VVA)*

World Institute on Disability*

 

CC:

 

Original cosponsors, S. 499

The Honorable Daniel Coats

The Honorable James M. Inhofe

The Honorable James Lankford

The Honorable Tim Scott

 

Original cosponsors, H.R. 918

The Honorable Todd C. Young

The Honorable Mike Kelly

The Honorable Patrick J. Tiberi

The Honorable Diane Black

The Honorable David G. Reichert

The Honorable Charles W. Boustany, Jr.

The Honorable Adrian Smith

The Honorable James B. Renacci

The Honorable Tom Reed

The Honorable Aaron Schock

 

Members, U.S. Senate

Members, U.S. House of Representatives

 

* Members of the Consortium for Citizens with Disabilities (CCD).

 

The CCD is a coalition of national organizations working together to advocate for federal public policy that ensures the self-determination, independence, empowerment, integration, and inclusion of the approximately 57 million children and adults with disabilities in all aspects of society.