Congress Gears Up its Legislative Efforts in its Fight Against Age Discrimination

Published in Woonsocket Call on March 3, 2019

With the 116th Congress beginning on January 3, 2019, Congress moves quickly to protect older Americans from rampant age discrimination. It is a key reason why Americans, age 40 and over, are fired or offered buyouts (with younger persons being hired in their place) and why they can’t find work after a period of unemployment and struggle to return to the workforce.

On Valentine’s Day, U.S. Sen. Bob Casey (D-Pa.), Ranking Member of the Special Committee on Aging, with cosponsors Sens. Chuck Grassley (R-Iowa), Patrick Leahy (D-Vt.) and Susan Collins (R-Maine) re-introduced S 485, The Protecting Older Workers Against Discrimination Act (POWADA). The bill was referred to the Senate Committee on Health, Education, Labor and Pensions.

Fixing a Supreme Court Ruling

Over a decade ago, a U.S. Supreme Court ruling in Gross v. FBL Financial Services weakened the Age Discrimination in Employment Act (ADEA) by imposing a significantly higher burden of proof on older workers alleging age discrimination than is required of workers alleging other forms of workplace discrimination. As a result, workers that allege age discrimination must meet an undue legal burden not faced by workers alleging discrimination based on race, sex, national origin or religion. This sent a clear signal to employers: some age discrimination is perfectly fine.

Enacting the bipartisan POWADA bill would restore the pre-Gross standard, recognizing once again the legitimacy of so-called “mixed-motive” claims in which discrimination is a, if not the deciding, factor. It would also reaffirm that workers may use any type of admissible evidence to prove their claims.

Rep. Bobby Scott (D-Va.), Chairman of the House Committee on Education and Labor and seven original cosponsors have introduced a House companion bill, H.R. 1230. Scott’s bill should get traction in the House because it’s referred to his committee.

Rep. David Cicilline (D-R.I), who serves on the House Seniors Task Force, has requested to be added as a cosponsor. “There is no place for age discrimination in this country,” says Cicilline, when explaining his support for POWADA. With the Rhode Island congressman recently being elected to House leadership, taking the position of Chairman of Democratic Policy and Communication Committee, the bill will most certainly get attention.

Here is a sampling of organizations that are lining up to support POWADA: AARP, American Association of People with Disabilities, Leadership Conference for Civil and Human Rights, National Employment Law Project, National Employment Lawyers Association, and National Partnership for Women and Families and Paralyzed Veterans of America.

Efforts Begin in 116th Congress to Tackle Age Discrimination

“As a lawyer I worked on age discrimination cases, and I relied heavily on the ADEA to help workers fight back,” said Casey in a statement released when the bill was thrown into the legislative hopper. “More Americans are continuing to work until later in life and we must recognize and address the challenges they face. We must make clear to employers that no amount of age discrimination is acceptable, and we must strengthen antidiscrimination protections that are being eroded,” said the Pennsylvania Senator.

“The Supreme Court case involving Iowan Jack Gross affected employment discrimination litigation across the country. It’s long past time we clarify the intent of Congress to make sure people like Jack Gross don’t face discrimination due to age,” said Grassley, who served as Chair of the Senate Aging Committee from 1997-2001.

“No matter whether it is a determinative or contributing factor in an employment decision, discrimination is wrong and should be treated as such. I am proud to once again cosponsor legislation that reinforces these fundamental rights for our nation’s seniors,” says Leahy.

Adds, Senator Collins, current Chair of the Senate Aging Committee, “Older employees bring a wealth of knowledge and expertise to the workplace. Individuals who are willing and able to remain in the workforce longer can also improve their retirement security for their golden years. We should do all we can to ensure that these employees are not faced with age-related bias while doing their jobs.”

Adds, Virginia Congressman Scott, who introduced the House companion measure, “Discrimination shuts too many people out of good paying jobs. All Americans – regardless of their age – should be able to go to work every day knowing that they are protected from discrimination.”

AARP Calls for Congress to Act

“We commend these lawmakers for sponsoring this crucial legislation,” said Nancy LeaMond, AARP Executive Vice President and Chief Advocacy & Engagement Officer. “Too many older workers have been victims of unfair age discrimination and are denied a fair shake in our justice system. The time for Congress to act is now.”

According to AARP, the legislation is especially needed with the graying of the nation’s workforce. By 2022, 35 percent of the U.S. workforce will be 50 or older, and workers age 65-plus are the fastest growing age group in the workforce. Three in five older workers report they have seen or experienced age discrimination in the workplace. POWADA would restore the ADE’s longstanding protections and fix the same problem under two other civil rights laws.

An AARP survey, “The Value of Experience: Age Discrimination Against Older Workers Persist,” published in 2018, found that older workers still face discrimination at their workplace.

The researchers noted that more than 9 in 10 of these older survey respondents say they see age discrimination as somewhat or very common. At work, more than 61 percent report they’ve seen or experienced age discrimination on the job, and of those concerned about losing their job in the next year, 34 percent list age discrimination as either a major or minor reason. Only 3 percent report they have made a formal complaint to a supervisor, human resource representative, another organization or a government agency.

On the job hunt, almost 44 percent) of older job applicants say they have been asked for age-related information from a potential employer.

The older AARP survey respondents would support the recently introduced POWADA, too. Nearly 59 percent strongly supported strengthening the nation’s age discrimination laws.

We need vigilance at every regulatory level and awareness and compliance in every workplace,” says AARP Rhode Island State Director Kathleen Connell. “Most workers reach a point in their lives when society wants to diminish their relevance and dismiss their knowledge and abilities by simply adding the prefix ‘older-’ to worker or employee. It’s not acceptable and can be proven to be unlawful. I would add that is can be disturbing to many others in the workplace. We all get older every day. No one – even younger workers – should be comfortable thinking it is okay to deny employment, harass or terminate someone on the basis of age.

“The problem goes beyond hiring and firing or being denied a promotion over a younger, less capable co-worker,” Connell added. “Day to day negative comments that point to age or suggest someone should just retire ‘and give someone younger a chance to advance’ also can make people feel disrespected and vulnerable. POWDA is important because it codifies the notion we all have to take this as seriously as other, more familiar, types of workplace discrimination.

“Age discrimination is a big part of AARP’s effort to ‘Disrupt Aging,’” Connell Concluded. “As promised at http://www.aarp.org/DisruptAging (and in CEO Jo Ann Jenkins’ book of the same title), AARP ‘will celebrate all those who own their age. We will hold a mirror up to the ageist beliefs around us. We will feature new ways of living and aging, and the products and solutions that make this possible. We will partner with companies and communities to create new solutions that work for all of us at any age. And we will get this story — our story — out there. It’s time to change the conversation.’

“Society as a whole needs to be a part of this change. Everyone will benefit now and when they are … older.”

Third Time’s the Charm

In 2009, the initial POWADA bill was introduced in the Senate chamber by Grassley and Sen. Harkin (D-Iowa). No action was taken. In 2015 Casey and Sen. Mark Kirk (R-Illinois) reintroduced it. Again no action was taken. Now, with the POWADA bill again being reintroduced this month, Congress now has the opportunity to make the needed legislative fix to a Supreme Court ruling to restore protections of the ADEA to older workers. Congressional action will put the brakes to an epidemic of age discrimination complaints. Those pushing for passage express the hope that “The third time is the charm.” Yes, it is finally time to pass POWADA once and for all.

Any individual who believes that they have been or are being the victim of age-related employment discrimination can call the RI Commission for Human Rights at (401) 222-2661 or visit the office at 180 Westminster Street, 3rd floor, in Providence, to talk with staff to file a complaint.

Herb Weiss, LRI’12, is a Pawtucket writer covering aging, healthcare, and medical issues. To purchase Taking Charge: Collected Stories on Aging Boldly, a collection of 79 of his weekly commentaries, go to herbweiss.com.

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It’s Time to Pass RAISE Family Caregivers Act

Published in the Pawtucket Times on September 18, 2017

Editor’s Note: Four months after S. 1028, titled the Recognize, Assist, Include, Support, and Engage (RAISE) Family Caregivers Act, was introduced in the Senate, an updated House companion bill (H.R. 3759) gets dropped into the chamber’s legislative hopper. On September 13, Reps. Gregg Harper (R-MS) and Kathy Castor (D-FL) along with original cosponsors Reps Michelle Lujan Grisham (D-NM) and Elise Stefanik (R-NY) introduced the legislation that calls for the development of a strategy to support family caregivers. It was referred to House Committee on Education and the Workforce. At press time, Rep. David Cicilline (D-RI) will shortly become a cosponsor of H.R. 3759.

On May 3, Sens. Susan Collins (R-ME), the Chairman of Senate Aging Committee, and Tammy Baldwin (D-WI) reintroduced the RAISE Family Caregivers Act, with Sens. Lisa Murkowski (R-AK) Michael Bennet (D-CO) signing on as cosponsors. At press time, there are now 12 cosponsors. Sen. Collins and Baldwin and Reps. Harper and Castor first introduced the family caregiver legislation in July 2015, and it passed the Senate unanimously in December 2015.

Eight days later the Senate Health, Education, Labor and Pensions Committee unanimously passed this legislation by a voice vote later that month and the bipartisan legislation will now be considered by the full Senate.

The Nuts and Bolts

The House bill introduced this week is updated from the Senate version introduced in early May. That Senate version is almost identical to the Senate-passed version from 2015.

The RAISE Family Caregivers Act directs the Secretary of Health and Human Services to develop and update a national strategy to support family caregivers. The legislation would also create a Family Caregiving Advisory Council comprised of relevant Federal agencies and non-federal members, also including family caregivers, older adults with long-term care needs, individuals with disabilities, employers, health and social service providers, advocacy organizations engaged in family caregiving, state and local officials, and others with expertise in family caregiving.

The newly established Advisory Council would be charged with making recommendations to the Secretary. The strategy would be updated to reflect new
developments. The Advisory Council’s initial report would include an initial inventory and assessment of federally funded caregiver efforts that would be incorporated into the initial strategy. The strategy would then identify recommended actions that government, providers, communities, and others could take to support family caregivers.

The activities under the bill would be funded from existing funding appropriated for the Department of Health and Human Services. No new funding is
authorized and it would sunset in five years.

This bipartisan caregiver legislation has been endorsed by over 60 aging and disability organizations, including the AARP, the Alzheimer’s Association, the w Michael J. Fox Foundation and the Arc.

Shouldering Caregiver Burdens

“Every day, more than 40 million ordinary Americans take on the challenge of caring for parents, spouses, children and adults with disabilities, and other loved ones so they can live independently at home and in their communities,” says AARP Chief Advocacy & Engagement Officer Nancy A. LeaMond. “The RAISE Family Caregivers Act is a commonsense, bipartisan step to recognize and support our nation’s family caregivers. AARP appreciates the leadership of Representatives Harper and Castor, and we urge Congress to pass this important piece of legislation,” she notes.

According to LeaMond, the nation’s family caregivers assist loved ones with eating, bathing, dressing, transportation, medical tasks, managing finances, and more. Many do this while working full time and raising families. The unpaid care family caregivers provide—37 billion hours valued at about $470 billion annually—helps delay or prevent more costly care and unnecessary hospitalizations, saving taxpayer dollars.

“Caregiving is, in one way or another, now an inevitable part of everyone’s future,” said AARP Rhode Island State Director Kathleen Connell. “It has been said that if you ask people about caregiving they fall into one of three or more categories: They know a caregiver, they are a caregiver or they will require a caregiver. AARP works hard at the state and federal level to direct resources and support to family caregivers. In Rhode Island, we have fought successfully for temporary caregiver insurance (TCI), the CARE Act, accessory dwelling unit legislation and a new fund to help offset the cost of ‘livable’ home improvements that benefit caregiving and make aging in place easier.”

“In the upcoming special session of the General Assembly, another key caregiving bill will be before lawmakers,” Connell added. “Earned Paid Sick Leave will be especially helpful to working family caregivers whose employers do not offer paid time off. Temporary caregiver insurance requires several days advanced notice. That can be helpful, for example, if a family member has a scheduled test or medical procedure. Earned paid sick leave would allow employees to used paid sick time when they are called away to attend to immediate emergencies.”

“The RAISE Family Caregivers Act is intended to provide a policy framework for improving caregiver support from national level down to states, cities and towns. In short, where the caregiver rubber meets the road,” Connell said.

Caregiver Legislative Proposal a Bipartisan Issue

According to AARP’s Public Policy Institute, there are 40 million family caregivers in the United States who provided an estimated $470 billion in uncompensated long-term care in 2013. In the Ocean State at any time during the year, an estimated 134,000 Rhode Island family caregivers step up to provide 124 million hours of care for an aging parent or loved one, most often helping them to live independently in their own homes.

With many caregivers putting their own health at risk, experiencing experience high-levels of stress and have a greater incidence of chronic conditions like heart disease, cancer, and depression, these individuals need the support and assistance that the enactment of the RAISE Family Caregivers Act could help bring about. Both sides of the aisle must put their political differences aside and push for passage. Both Republicans and Democrats shoulder caregiving duties.

Quickly passing the RAISE Family Caregivers Act in the Senate and House and sending it to the desk of President Donald Trump for his signature is the right thing to do.

Search on for GOP Senators to Protect Medicare

Published in Woonsocket Call on January 29, 2017

Since President Donald Trump took the oath of office on January 20, he is making good on some of his hundreds of campaign promises. During his first week in office Trump signed three executive orders declaring new government policies and eight presidential memoranda detailing the priorities of his new administration.

But, for aging groups, with Trumps arrival in Washington, D.C, the skirmish officially begins to protect Medicare in this new session of Congress.

With Trump and Congressional Republican Leadership on record for their support of repealing the 2010 Affordable Care Act, popularly known as Obamacare, President and CEO Max Richtman, of the National Committee to Preserve Social Security and Medicare (NCPSSM), clearly sees the writing on the wall. If successful, Richtman warns that GOP legislative actions will severely damage Medicare impacting 57 million seniors and disabled adults who rely on the program for their health care.

Building A Firewall Against Privatizing Medicare

With the GOP holding a slim majority of the U.S. Senate seats, 52 to the Democrats 48 seats, Richtman sees swaying Republican Senators away from their party’s position on privatizing Medicare to protect the federal health care program.

On January 24, 2017, Richtman urged Senator John McCain (R-AZ), Senator Susan Collins (R-ME), Senator Charles Grassley (R-IA), and Senator Lamar Alexander (R-TN) to be the Senate’s “firewall against Medicare cuts.” His correspondence asked them to vote against proposals to privatize Medicare, raise the Medicare eligibility age from 65 to 67, and repeal provisions in the Affordable Care Act (ACA), President Barack Obama’s landmark health care law, that provided additional benefits to beneficiaries.

Richtman reminded the GOP Senators that the Affordable Care Act (ACA) improved Medicare benefits and extended the solvency of the Part A Hospital Insurance Trust Fund by more than a decade. ACA’s closing of the prescription drug donut hole has put money into the pockets of Medicare beneficiaries. The health care law also added coverage of an annual wellness visit and eliminated copays for preventive services like cancer screenings, he said.

“I am also troubled by “premium support” [GOP] proposals to privatize Medicare,” says Richtman. According the aging advocate who was a former staff director of the U.S. Senate Special Committee on Aging and a 16-year veteran of Capitol Hill, under previous privatization plans, beneficiaries would not enroll in the current program; rather, they would receive a capped payment or voucher to be used to purchase private health insurance or traditional Medicare. Private plans would have to provide benefits that are at least actuarially equivalent to the benefit package provided by fee-for-service Medicare, but they could manipulate their plans to attract the youngest and healthiest seniors. This would leave traditional Medicare with older and sicker beneficiaries whose higher health costs would lead to higher premiums that they and others may be unable or unwilling to afford, reducing the fee for service risk pool even further resulting in a death spiral for traditional Medicare.

GOP Medicare Fix Financially Hurts Beneficiaries

Richtman also told the GOP Senators that NCPSSM opposed the raising of the Medicare eligibility age from age 65 to 67 because the proposal would increase costs for millions of older Americans. Absent the guarantees in the existing ACA, such as requiring insurance companies to cover people with pre-existing medical conditions and limiting age rating, millions of seniors 65 and 66 without Medicare would find private insurance unaffordable. Raising the eligibility age would also increase average costs for Medicare as younger, healthier seniors are eliminated from the risk pool and costs are spread across an older, less-healthy population, he says.

Richtman urged the GOP Senators to oppose efforts underway in the 115th Congress to block grant Medicaid, cap Medicaid payments on a per-beneficiary basis (per capita caps) and/or repeal the ACA’s Medicaid expansion. He noted that these policy changes would “financially hurt states and lead to states cutting services, quality and eligibility for the most vulnerable of our senior population.”

Many seniors would not be able to absorb the loss of coverage and increase in their costs that would occur if these proposals became law. In fact, half of all Medicare beneficiaries in 2014 had incomes below $24,150 and Medicare households spent over two times more than the average American household on out-of-pocket health care costs,” he says.

“If Senate Democrats stand strong, we only need a handful of Republicans to protect the commitment to Medicare,” says Richtman. “We hope Senators McCain, Collins, Grassley, and Alexander to do the right thing for seniors in their states – and across America.”

Richtman correspondence to the four GOP Senators is part of NCPSSM’s pro-active legislative strategy to protect the existing Medicare program. The letters sent quantify the economic impact that proposed Medicare cuts would have on seniors in the four GOP Senators’ states: Arizona (with 1.3 million beneficiaries), Maine (306,000 beneficiaries), Iowa (nearly 572,000 beneficiaries), and Tennessee (1.2 million beneficiaries).

“We know that these four Republican Senators have the wisdom and judgment to protect seniors in their states from legislation that would impose painful Medicare cuts,” says Richtman. “It’s time to slam the brakes on any attempts to pass harmful legislation.”

Senate Democrats Attempt to Block HHS Nomination

Two days before Trump was sworn in as president, the Senate Health, Education, Labor and Pensions (HELP) Committee held confirmation hearing on Rep. Tom Price, (R-Ga), Trump’s nominee to oversee the Department of Health and Human Services, the federal agency that oversees the Medicare program. In confirmed, he is expected to play a key role in the GOP’s efforts to privatize Medicare.

No formal vote was taken at the HELP Committee hearing but the Congressman is scheduled to testify a week later at the Senate Finance Committee, which will vote on his nomination.

During the four-hour heated confirmation hearing, held in 430 Dirksen Senate Office Building, HHS nominee Price dodged questions lobbed by Democrats about the Trump Administrations position on the future of Medicare. They also zeroed in on his personal financial investments in health care companies, calling them conflicts of interest which the denied.

Price, an orthopedic surgeon and a six term congressman, considered to be one of the most vocal critics of Obamacare on Capitol Hill, is expected play a key role in the GOP’s efforts to repeal and replace the Affordable Care Act.

Rhode Island Sen. Sheldon Whitehouse, sitting on the HELP Committee, gave this take on Price after the first of two confirmation hearings: “Price hasn’t been able to win Democratic support for any of his health care legislation [in the House] and today confirmed that he and his allies have no plan that can win support from across the aisle or the millions of Americans who would be affected by tearing down the Affordable Care Act. He conceded that he should not stop Americans under twenty-six from staying on their parents’ insurance, re-open the dreaded prescription drug doughnut hole for seniors, deny coverage to those with pre-existing conditions, and reinstate lifetime limits on care. But he has no plan to make that happen.”

Adds Whitehouse, “Price also failed to reassure the Rhode Islanders I serve who rely on Medicare for their care. He has fought to voucherize the program, which would gradually unload costs onto seniors while eroding their benefits. He needed to tell the American people they could depend on him to faithfully administer Medicare and keep the sacred promise we’ve made to our seniors of a dignified retirement with access to good health care. He did not.”

“Congress must protect Social Security and Medicare, but many Republicans see the latest election results as an opportunity to hollow out these vital programs. President Trump’s pick to oversee Medicare has long championed efforts to privatize Medicare, which I strongly oppose. Cutting benefits and privatizing these programs could hurt millions of Americans and harm our economy,” said Sen. Jack Reed, noting that these programs reduce poverty and improve public health in ways that benefit all Americans.

As NCPSSM’s Richtman continues his effort to sway GOP Senators, rallying the troops at the state-level may well be the path to blocking GOP attempts to privatize Medicare. Voters in states with Republican Senators must send this message to their elected official, “don’t touch my Medicare.” Let the movement to strengthen Medicare in these states begin today.