Tagged: Disability

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On Rural-Proofing and Labor Markets

In my last post, I introduced the concept of “rural proofing,” a practice most commonly associated with the antipodean world.  Today, I’m returning (in my final post as outgoing guest blogger) to talk about the benefits of rural proofing in relation to legislation pending in several states and now also a feature of Trump’s budget that would that makes receipt of public benefits (including Medicaid) dependent on being in the workforce. This issue implicates how broadly (geographically speaking) we define labor markets, which is something courts have occasionally weighed in on.  My particular concern is fairness to rural residents whose labor markets are limited, and who may face structural obstacles to participating in the labor market–most obviously the lack of child care and lack of public transportation.  (These are, incidentally, obstacles I noted in this recent Wall Street Journal article about “Rural America is the New ‘Inner City’.“)

Even before Trump’s budget was released a few weeks ago, Arkansas and Maine were considering imposing work requirements on Medicaid recipients.  The New York Times reported here on the Arkansas proposal, and the Wall Street Journal reported here on the Maine proposal.  Jennifer Levitz observed in the latter that this is not Maine’s first effort at making benefits contingent on work:  Governor Paul LaPage ushered in a similar requirement for SNAP (food stamps) in 2014, and it’s drawn criticism:

But Maine’s approach is drawing criticism from advocates for the poor, who say jobs, volunteer positions and transportation to either of them can be hard to come by in rural pockets​with persistent unemployment. They say those losing the assistance turn to charities instead, increasing demand at food banks.

One in four food-pantry users said he or she had lost food-stamp benefits in the past year, according to a statewide study co-released in February by Maine’s largest hunger-relief agency, Good Shepherd Food Bank.

This reminds of this recent report on NPR about increased demands on rural food banks.  By the way, Arkansas has a SNAP work requirement similar to Maine’s:  “able-bodied adults without dependents cannot receive food stamps for longer than three months unless they are working, volunteering or getting job training for 20 hours a week.”  Not surprisingly, perhaps, food pantries also loom large in the Arkansas story.

Here’s an excerpt from this week’s New York Times story on cuts to SNAP and disability benefits under Trump’s proposed budget.  The story quotes Beth Orlansky, advocacy director of the Mississippi Center for Justice, regarding rural and job market struggles among others faced by that state’s poor population.

While asking people to work might sound like a good idea “in the abstract,” [Orlansky] said, a state like Mississippi — with large pockets of poverty, sprawling rural communities and some of the highest rates of people on disability and food stamps — does not have enough jobs in the right places. Most people receiving food stamps and disability are doing some sort of work, but they need better skills and education to rise above poverty wages.

All of these stories feature interesting commentary on work ethics and work norms, and why work is a good idea.  As someone raised in a working class family where work was king and the work ethic was off the charts, I appreciate the sentiments and largely share them.  Here are a few, from folks on both left and right, from the Arkansas story.  One (white) man working part time as a security guard for $10/hour described how he had lost his food stamps when he was unable to work while recovering from surgery:

I went from being able to eat vegetables to eating Hamburger Helper every day.  I think most people want to work, but I also know a lot of people work when it’s not necessarily in their health’s best interest.

That man lives in Blytheville, population 18,272, in the far northeastern corner of the state, some 60 miles from Memphis, the largest major city nearby.  A 55-year-old unemployed white woman who had previously worked as a custodian was interviewed outside a food pantry near Little Rock.  Nancy Godienz said:

I’m glad we have it, but people should have to do something for it.  This is America, right? You’re supposed to work for what you get.

An African-American man who manages operations at the Stewpot, a soup kitchen in Little Rock, said

If you’re of able mind and body, you should be able to make something happen for yourself.  But some people just don’t want to work — they’re too taken care of.

So these quotes show the deep commitment of middle America to work–when it is available.  But the stories also make clear that the line between being employable and not being employable is often a broad and fuzzy one, and that reminds me of recent stories here, here and here about the high(er) rate of disability in rural America.  As Chana Joffe-Walt suggests, the higher rate of disability in rural places seems linked to the narrow, less robust and undiversified nature of rural job markets.  (BTW, that story drew enormous criticism from the left as being anti-disability, including here and here).  Here’s an excerpt that gets right to the issue of rural job markets in relation to disability:

One woman I met, Ethel Thomas, is on disability for back pain after working many years at the fish plant, and then as a nurse’s aide. When I asked her what job she would have in her dream world, she told me she would be the woman at the Social Security office who weeds through disability applications. I figured she said this because she thought she’d be good at weeding out the cheaters. But that wasn’t it. She said she wanted this job because it is the only job she’s seen where you get to sit all day.

Joffe-Walt was initially skeptical that Ethel struggled to imagine a job that would accommodate her pain, but then she started looking at the local job market in Hale County, Alabama (population 15,000) to see what jobs were available:

There’s the McDonald’s, the fish plant, the truck repair shop. I went down a list of job openings — Occupational Therapist, McDonald’s, McDonald’s, Truck Driver (heavy lifting), KFC, Registered Nurse, McDonald’s.

You get the picture.  Rural jobs markets tend to be quite limited.  Combine that with the rural challenges of transportation infrastructure and childcare deficits, and you can see why making the receipt of benefits contingent on work doesn’t make a lot of sense.  (Of course, there are plenty of other reasons it might not make sense even in urban areas, but I’m focusing on rural difference here).  Indeed, this mismatch, if you will, was the focus of my 2007 law review article for a symposium marking the 10th anniversary of welfare reform, PRWORA:  Missing the Mark:  Welfare Reform and Rural Poverty.

So it seems public benefits, including unemployment insurance and social security, is  one arena where rural-proofing would help law- and policy-makers understand and respond appropriately to rural difference.  And in that regard, I refer interested readers to another source here (ponder, in particular, the lede) and to just one case about rural labor markets in relation to unemployment insurance:  Parsons v. Employment Security Commission, 71 N.M. 405 (1953).

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Injured Kids, Injured Parents and Tort Law

When a child suffers a long-term or permanent disability because of someone’s negligent or even intentional act, the child is not the only one whose life changes. The child’s special health care needs become part of the daily caregiving routines of the parents. Those needs might include, for example, taking the child to medical appointments, interacting with health care providers, delivering medical and other therapies, working with a school to develop an educational plan, advocating with social service agencies, etc. On average, a family caregiver for a special needs child spends nearly 30 hours a week caring for the child in ways that other parents don’t confront. Most of the caregiving parents are mothers, and most of them either leave work altogether or reduce their hours of work significantly. Other consequences that caregiving parents face include mental and physical health problems, social isolation, and the deterioration of family relationships.

Let’s say the child’s injuries result from a car accident or from medical malpractice. Does the law require the driver or the doctor to pay damages to the parents for the changes in their lives? Damages for direct costs, such as medical bills, are always allowed. When caregiving reduces the parent’s earning capacity, some states recognize claims for the parent’s lost wages. In others states, responsibility is limited to the cost of employing an unskilled medical aide. In the last group, the tortfeasor owes nothing to the parents.

I call the three approaches “20/20,” astigmatism, and blindness. “20/20” applies to situations where the child is viewed realistically, that is, as a person who, by reason of age and experience, is dependent on parents for direct care and for interacting with the outside world. Law and policy suffer from astigmatism when the child’s connection and dependency are acknowledged, but the consequences that parents face are blurred. (I’ve got astigmatism and can testify to the blurriness!) Blindness is what happens when, as one court argues, parents are responsible for their kids, no matter what – no sharing of costs is appropriate, regardless of the fact that the child would not need unusual caregiving but for the tortious injury.

In my current work, I’m trying to explain why many courts suffer from blindness or astigmatism. One reason is gender. Caregiving is considered women’s work, and women should do it with happiness and generosity, so their losses should not be monetized. If any loss is acknowledged, it should only be those losses that a man might also experience, that is, paying someone else to do the caregiving. Since, for reasons of both gender and race, we pay very little for caregiving jobs, it makes sense to compensate the caregiving parent (i.e., the mother) at the same small rate. Another reason is a lack of foreseeability – perhaps tortfeasors shouldn’t be expected to anticipate that injuring a child would affect a parent’s life, so it isn’t fair to make them pay damages for that harm. This perspective is consistent with a general lack of awareness about the lives of people with disabilities and the lives of their families. That degree of ignorance may have grown over the last half century in light of radical changes in social, legal, and cultural practices around health care generally and disabled kids in particular. Family caregivers now deliver much more medical care at home, for example, and the medical regimes of their special needs children are often more complex. Also, happily, more disabled children are living at home rather than in institutions, and many more are surviving into adulthood and beyond. At the same time, more mothers are now working outside the home. Many parents raising special needs children are doing it alone, so, if a mother has to meet the unusual demands of caring for a child with special needs, her chances of losing her job and falling into poverty increase. A third reason may be horizontal equity. The unusual caregiving demands of special needs children depend on the child’s characteristics, not on whether the source of the child’s special needs is a tort. Covering the lost wages of parents of tortiously-injured children puts those families at an economic advantage compared to families of other special needs children.

I look forward to hearing your thoughts on which of the three rules seems to make the most sense, and why.

 

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Special Kids, Special Parents

First, many thanks to my exceptional and delightful colleague, Danny Citron, for inviting me to blog on Concurring Opinions. My blogging goal is to get you to focus on how law and policy could attend to the needs of family caregivers of special needs children. “Four in ten adults in the U.S. are caring for an adult or child with significant health issues,” according to a new Pew Research Center study. One would think that this large and growing population of family caregivers would command some attention. If they refused to do the job, after all, millions of frail elderly people, permanently-disabled veterans, and chronically-ill and disabled children could be left with nobody to meet their physical, emotional or medical needs. Social welfare organizations and institutions would be overrun, and social provision expenditures would skyrocket.

Refusing to do the job is not an option for many family caregivers, of course, for thousands of reasons, including love, duty and generosity of spirit. But many pay a price in terms of physical health, social isolation, and economic security. In my work about families raising children with special needs, I argue that we need to find ways to spread the costs so that they do not continue to fall almost exclusively on family members who step up.

Here are three examples of law and policy being blind (or at least astigmatic) to the impact of care-giving on these parents. First, when a child’s parents divorce or separate, family law entitles the parent who lives with the child to child support and, in some unusual situations, alimony. Child support is calculated on the basis of the child’s needs, and alimony is determined based on what the payee needs. Both assume that, ordinarily, both of the child’s parents will be economically productive. Where the parent’s special care-giving responsibilities interfere with that parent earning a living, however, child support and alimony are not usually adjusted–there’s no “chalimony.” Second, the public benefits system picks up very little of slack for parents when special care-giving responsibilities interfere with the parent’s earning capacity. Worse yet, since the mid-1990s, states became subject to increasingly stringent requirements in federal law about tying public benefits to the efforts of recipients to get and hold employment. A different route is not unimaginable: in 2009, a stipend was enacted for family caregivers of veterans left permanently disabled during their service in recent wars. Nothing similar, however, exists for parents. Third, if a child’s special needs affect his or her ability to benefit from school, federal law has guaranteed since the mid-1970s that the child will nonetheless be provided with a “free and appropriate public education.” The statute is not blind to the child’s caregivers; in fact, it gives parents specific rights in terms of participating in planning the child’s educational program. What it does not do, however, is make sure that parents can exercise their rights in ways that make sense if their lives are over-stressed because they are caring for special needs children.

As my work continues, I’m looking for additional examples of law and policy that attend to the needs of family caregivers for special needs children, and to those that don’t. If you can suggest a new avenue of research, please let me know.