Universal Inclusion for Lawyers: How Helping Your Client Maximize the Value of Inclusion Can Also Reduce Both Litigation Complexity and Liability

People say to me all the time, “oh, you work inclusion, and you are a lawyer, do you practice disability law?”  The answer is an emphatic no, and I want to start out by saying that nothing in this document is intended as legal advice, or in any way to substitute for consultation with counsel.

And yet, I did train as a lawyer, though I never practiced disability law, and I did study disability law, both in law school, and many years later as a disability policy expert.  It is perhaps only natural that I begin to wrestle with the question of how one informs the other.  At worst, this piece will serve no purpose to an experienced attorney, but I believe that an experienced attorney examining counseling on a disability question might benefit from a reframing of the issue.

In my employment related inclusion work, my basic thesis is simple.  Employers hire potential employees because they hope to benefit from certain skills, talents or labor potential that those employees bring to the table.  For the purposes of this calculus, the relevance of disability is the extent to which it precludes the fullest and best expression of those skills, talents or labor.

I posit, therefore, that the employer-employee negotiating process should be reimagined from “here is a disability, how do we accommodate it?”  to “how do we best capture the value from this employee that is the reason they were hired in the first place?”  Within this framework, all of a sudden no “accommodation” is off the table, if the cost benefit is right.

Throughout my legal career, my employers always started with an idea of what they were looking for, a talented lawyer.  I remember, just before I was to start my first law firm role as a mid-level associate (I had lateraled from an in-house role), I expressed some concern to the partner who had brought me in, because I knew that I was going to have trouble manipulating paper and documents to the extent that they were still relevant to a practice that was still transitioning into the digital age.

Unfazed, he said “I hired your mind, not your hands, if we need to get someone else to handle the paper we will.” 

I recommend that employers look at each employment challenge this way.  Let’s assume that you’ve hired someone because they have phenomenal coding skills.  Let’s further assume that it has always been the responsibility of each individual coder to maintain her work area, organizing papers, creating files, sorting incoming mail.

It’s perhaps a no-brainer that if you hired a coder with a manual dexterity problem, but who was gifted at computer code, and the challenge was that they couldn’t to do those organizational tasks, you would assign them to someone else.  Not only do you not want to lose them, but you probably don’t want to come up with a laborious solution where they now spend 60% of their time cleaning their desk, but, hey, you made it possible.

I picked this example on purpose, because you might readily realize that if each of your coders was spending 10% of their time on organizational tasks, and this coder would need to spend 60, you could hire one administrative individual, and not only enable this coder, but a 10% productivity boost on everybody else.  This is actually my basic concept of universal inclusion, the idea that, anything that we might provide an accommodation to a person with a disability, we should readily provide to another employee, provided that the demonstrated increase in productivity outweighs the cost of the business. 

Other examples: I use voice recognition software because I can’t type at all.  How many senior executives or law firm partners either type very slowly, or still use Dictaphones or even real-time scribes, and would have their productivity improved immeasurably if they could do as I do and have their words appear on screen.  My voice recognition suite, which is the most expensive type, with full support for legal vocabulary, costs less than $600, and that’s when not bought on sale or in bulk.  For industries outside of law or medicine, the cost is only $200.  Further, if this option is already universally available, then an individual who develops a repetitive strain injury can quickly transition. 

Similar arguments can be made for flexible schedules and commutes, if the business permits, and most other accommodations.  The whole point of the theory is that, if value can be shown, then it should be considered.  I can’t imagine an able-bodied person making the case for why they would benefit from my specialized restroom accommodations, but if they could, and their productivity would be increased more than the cost, why not?

That’s all well and good, but what does it mean for lawyers.  Again, I reiterate that this is not legal advice, but I will share that the basic framework for the employment accommodation mandate is that a person with a disability must be hired if they can perform the essential functions of the job, with or without a reasonable accommodation.  A reasonable accommodation is defined as an accommodation that does not pose an undue burden on an employer.  To determine both of these things, the law mandates a good faith negotiating process.

My approach will not eliminate lawsuits, as we all know that unhappy plaintiffs are never going away.  But, let’s explore the application of this standard if you’ve gone through my process.  First of all, by determining the talents that you’ve hired someone deliver, you’ve basically defined the essential functions of the job.  If you would readily give the function to somebody else in order to have a talented individual in the job, then it isn’t an essential function. 

If you wouldn’t, it’s worth asking the question of why not?  Maybe it’s because you haven’t embraced the process defined above to maximize value, or maybe it’s because that function really is essential to the job.  Your lawyer will help you determine that, but if you’ve thought seriously about why you’re hiring people for a particular job, you’re already halfway there.

Now, can they perform the job with or without an accommodation that does not pose an undue burden?  First, can they do the job?  If they can’t, there is your lawyer’s strategy.  Either your recruiter misidentified the talent, or, despite the two of you working together, you are unable to find a way to unlock it.  Again, if you’ve engaged in my process, you’ll know that already, and the process will have been your good faith negotiations.

Or maybe you’ve identified a strategy but rejected it.  If you rejected it because it’s unorthodox, then again you failed to embrace the process that I identified above.  The process envisions offering any accommodation which will allow an employee to contribute the talents that you are looking for, provided that the cost does not outweigh the benefits of those talents.  If, on the other hand, you’ve embraced the procedure, but found that the cost of the strategy outweighs the benefits of employing the individual, your lawyer has a strong start on the cost benefit analysis.

Litigation is uncertain.  Only your lawyer can help you navigate the ins and outs of the particular legal standards in your circuit, your state and your situation.  (In addition to the ADA, most states have their own disability law.)  That said, lawyer or client (or both), if you follow the procedures of universal inclusion, not only will you maximize the talents of your workforce, but you provided yourself with the beginning of a strong legal defense.

The Joy of Purpose: A Hidden Benefit

I’m having a challenging year.  When I left my law firm, at what seemed like a natural moment in my career to part ways, I was looking for in-house work, and also to step up my disability consulting.  I was very excited about my next adventure, and not terribly focused on what I was leaving behind. A year has passed, or near enough, and I have begun to understand what being a lawyer, and by most accounts a successful one, meant to me.  Certainly, it was a source of financial security, and I miss that security keenly.  Until a few weeks ago, however, it was hard for me to verbalize what I was really missing.

In early September, I was approached by an organization to come on board to help them draft a simple contract.  Over the course of the work, I got to flex my mental muscles, practice my craft, be recognized for my skill, and contribute to the needs of the organization.  And yes, I got paid.

But the money, a sum that is less than what I have received for simple research from other, better funded clients, was and is secondary.  For those weeks, I got to feel useful again, talented again, a net creator of value.

And that was what I missed but I could not have articulated.  I missed the sense that my efforts and my skills were providing real value for someone else.

When you get down to it, this is something that I have taken for granted.  I can point to accomplishments from every nonacademic period in my life from age 16 onward.  Whether as an intern pointing to specific projects, a tutor pointing to students, or, later, a lawyer pointing the clients served, I have been able to say that my life was providing particular value to a defined set of beneficiaries.

The sense of being valuable is so central to my identity that I never could have articulated it until I lost it.  It was my solace through times of difficulty, and my source of confidence to maximize times of growth and opportunity.  It framed every challenge, and every justification in my own mind for the massive investment of effort and love that others place in me.  Not because they require it, but because I need it.

As we come to the end of National Disability Employment Month, I encourage folks to explore the question of disability employment through a different lens.  The poverty of people with disabilities is a heart-wrenching but often explored topic.  Absolutely, we need employment to break that cycle.  But there is more.

Rich or poor, disability or no, I feel that there is something fundamental to the human condition about feeling useful.  Though the vast majority of unemployed people with disabilities struggle financially, there are plenty who live comfortably on family wealth, injury settlements, insurance policies or some other source.  I bet if we were to survey them, even if money is not a concern, the vast majority would indicate a preference to add value to the world with their lives.

This, then, is the ultimate value in creating a society where people with disabilities can and do work, and by work I will include anything from top dollar salaries to donated time, provided value is being created.  There is nothing quite like the feeling of being useful, of knowing what you have to offer the world, and having the opportunity to offer it.

For so many people with disabilities, despite having so much to offer, whether strength or smarts, insight or compassion, companionship or fiery activism, today’s world doesn’t offer that opportunity.  And so we are left to feel less, somehow.  Perhaps loved, maybe even cherished, but not needed.

Speaking from experience, feeling valued and needed is a huge component of an increased sense of self-worth and well-being.  Even as society benefits from having its needs met, and people with disabilities benefit from whatever tangible compensations come from their talents, we all benefit as we begin to recognize the value and each and every person.

So let’s continue our efforts.  Employment, yes.  But for those of us for whom compensated employment is either temporarily or permanently unavailable, I recommend, in the words of curmudgeons everywhere, to make yourself useful.  You may be amazed at the benefits, not just to you but to society.  And for those working on the employment of people with disabilities, think outside the box.  We talk about employment first, I want to push the envelope further and include more people by saying value first.

I have no genius solutions, I am merely sharing a little bit of recently earned self-knowledge.  Thanks for reading.

The Employment Puzzle: Maybe It Is a Numbers Game

I have heard some fair criticism lately of the amended regulations around Section 503 of the Rehabilitation Act, requiring all federal contractors to work to bring their work forces up to 7% people with disabilities.  And it’s true, targets and quotas can backfire. On the other hand, I have seen some interesting examples which demonstrate to me the value of increased numbers in promoting the inclusion of minorities in employment, and there is some reason to believe that raising percentages might finally begin to solve the perception problem in disability employment.  To me, this is at least as important as intentional discrimination and failure to accommodate.  Let’s look at some other minorities for a moment.

Nobody that I know is concerned that Joe Biden is a Catholic, and despite all of the drama around the withdrawn candidacy of Susan Rice for Secretary of State, as far as I know, her gender was not a significant topic of discussion.

Yet, when John F. Kennedy was running half a century ago, his Catholicism was a major issue, and when Madeleine Albright became Secretary of State a mere 15 years before Rice’s candidacy, her gender was, if not controversial, at least monumental.

So what changed?

In the case of Catholicism, one could argue about the vast change in American society’s approach to religion in the last 50 years, and, one can make an only slightly less convincing argument about gender since the 1990s.  I’m not convinced by these arguments, however.

I think the changing attitudes are a result of experience and familiarity taking these concepts from uncomfortable and unfamiliar, and thus informed mostly by lack of knowledge, to concepts so familiar that they are barely noticed.  After all, Rice would have been the fourth Secretary of State to be a woman (even the second woman to be Secretary Rice, oddly enough), and, in presidential races, both of the last two Democratic tickets have had a Catholic candidate. (Three if you count Obama Biden twice.)

At a certain point, it becomes unremarkable, and that’s a good thing.

Taking it out of the political arena, I have noticed this trend, albeit more slowly, applying to women Rabbis.  Though my movement of Judaism has been ordaining women since before I was born, and the Conservative movement followed suit before I was five years old, when I was a child, women rabbis were something of a novelty.  I knew several, as my life has always been replete with rabbis, but, even for me, it seemed worthy of notice and comment.

By the time I left home and was traveling more broadly, women rabbis were no longer a novelty in my life, but it was not uncommon to hear people remark that such and such a congregation had hired a new Rabbi and to add, in a surprised tone “She is a woman!”

These days, at least in the Jewish communities in which I have lived in Boston, New York, and Cincinnati, women rabbis, at least in junior and mid-level roles, no longer seem to draw comment.  Only non-Jews ever seem to react with confusion when I tell them that my sister is a Rabbi.

This is not to say that women rabbis don’t still suffer discrimination, as they certainly do.  It’s also not to say that there is not still progress to be made, as their most certainly is, as the dearth of women in senior rabbinic positions demonstrates.  Rather, it is that we appear to have moved beyond a societal perception that the rabbinate is an all-male environment.  Even in the Modern Orthodox circles in which I sometimes travel, while there an unwillingness to ordain women as a matter Jewish law, I think that in countering a woman Rabbi from another movement is considered unremarkable.

So, how does this relate to disability?  Disability employment numbers are abysmal.  As a practical matter, this probably means that the majority of Americans do not have, or at least unaware of, any coworkers with disabilities.

It is not uncommon at social events for people to be quite surprised to find out that I’m a lawyer, not because lawyers don’t hang out in the yuppie Jewish circles that I do, but because people in large power chairs don’t fit their preconception of lawyer.  I have experienced going down 6^th Avenue in a full suit, and been stopped by passersby who try to give me change, because in their worldview, as a person with a disability, I must be destitute, regardless of what my expensive clothing should be telegraphing.

Why, then, should we expect that the perception is any different in a job interview.  Perhaps not even consciously, the interviewer is likely filtering my answers through a perception bias telling him or her that I am not what a lawyer at their firm or corporation looks like.  Some will overcome this, either recognizing their bias or simply privileging my qualifications and answers over vague unease, but many others will find my candidacy inexplicably lacking, in part because that unease prompted them to so find.

Quotas, well administered, and focusing on quality of recruitment and substantive jobs, rather than just second-class box checking, are a huge factor in changing that.  Simply by drawing the connection between disability and coworker in the mind of an interviewer, or disability and gainfully employed in the mind of society, the attitude begins to change.  Familiarity breeds acceptance.

More importantly, if people with disabilities are present in sufficient number, and not set up to fail, they don’t need to be mind-blowing employees, inspiring all with their abilities, to change perception.  (This is not to say that they do not need to be competent.)

The comfort with Susan Rice’s gender was not because the average American made a reasoned decision based on the tenures of Secretaries Albright, Rice, and Clinton, (in fact, I think you’d be hard-pressed to find anyone in the American electorate who is partisan for both Clinton and Rice), but rather because, after three female Secretaries of State, covering about 75% of the time since Albright’s confirmation, the American people have become accustomed to the concept that women can occupy this role.  Those that object now are overtly sexist, rather than unconsciously so from long term associations.

Similarly, though on a much larger scale, (hence the Rabbi example) the quota system could help eliminate the disability discrimination based on unconscious perception, even as the ADA can serve as a remedy for intentional discrimination and discriminatory policies.

I feel that this has worked for women Secretaries of State, and is working, even if still a work in progress, for women Rabbis.  I thus believe that it can work for people with disabilities.  I certainly hope so, because nothing else has yet.

Help Us by Helping Yourselves: The Massive ROI in People with Disabilities

Don't underestimate the economic power of the disability community. I understand what Tim Cook of Apple meant in February when, speaking at a shareholder meeting, he said, “When we work on making our devices accessible by the blind, I don’t consider the bloody ROI.”

He was responding to a question about the cost of "green" efforts, posed by shareholders that felt that the company was spending too much on environmental sustainability, and he was trying to distinguish Apple as a company that would be first concerned with doing the right thing and second concerned with stock value.

This post will not debate the question, best left to economists, of the reputational value of being known as a moral company, and the indirect effect of that reputation on stock value. I think that it is there, and should be discussed, just not by me. Rather, I wish to take issue with his example.

As a rule of thumb, we say that one in five Americans has a disability. That’s somewhere in the neighborhood of 60 million people. Excuse me, I meant to say 60 million consumers.

What’s more, not only are we 60 million and growing all the time, for pure practicality we need to seek out for products and services that meet our needs. We may not be the richest demographic, but we still need to buy things, and they need to be the things that will work best for us.

This means, unsurprisingly, that blind people will seek out devices, goods and services that work well for blind people, the mobility impaired will seek out those that work well with their mobility impairments, deaf people will seek out those optimized for deaf people, etc. Further, we tend to crowd source in finding products that work for our particular needs. This means that being first to market in product advances that revolutionize the experience for people with disabilities will grab a wide swathe of us, millions of consumers.

Once you’ve got us, there is a inertia against change. Just like with any other consumer, a competitor needs to make a substantial advance in quality or price in order to get us to switch. We know that there are people using Apple products today for no better reason than that they had iPhones and iPads when Android devices were primitive, clunky, or just hadn’t been invented yet. Regardless of demographic, the first to market gets a head start.

Obviously, I would love to see every manufacturer of every product designing their products to meet the needs of people with disabilities, but I have no problem with economic rewards going to those who act first. I’m counting on it. It's the main incentive to act

I’m sure that companies do things because they are right. Companies, after all, are filled with human beings, and we like doing nice things.

I’d rather, however, count on a company doing something because it’s smart business. Once in a while, a company might take the high road. If you show them the profitable road, they will take it almost every time, especially if it happens to be perceived as right. When it comes to serving customers with disabilities, the economic opportunity for the first to market is immense.

So, I respect the values that Mr. Cook was expressing, but I have a message for him: Mr. Cook, when you work on making your devices accessible by the blind, please do consider the bloody ROI. Then, let that incentivize you to do even more.

Meaningful Employment for People with Disabilities: Let's Start Making It Happen Now

Today, I have the honor of being the featured writer on Zeh Lezeh, a blog of the Ruderman Family Foundation. For those who do not know, the Ruderman Family Foundation is a fantastic organization based in Boston and in Israel. Their mission statement, in their own words, is that,

Guided by our Jewish values, we support effective programs, innovative partnerships and a dynamic approach to philanthropy in our core areas of interest: advocating for and advancing the inclusion of people with disabilities throughout the Jewish community; fostering a more nuanced understanding of the American Jewish community among Israeli leaders; and modeling the practice of strategic philanthropy worldwide.”

I can personally attest to their impact as I continue to find their philanthropy at the heart of a vast number of initiatives in the Jewish world designed to improve inclusion of people with disabilities.

Today’s honor reminded me of the first time I had the honor of being their featured writer, on January 2, 2012. I wrote a pitch entitled Full Employment for People with Disabilities: If Not Now, When? It is now two years later, and I feel that my call to action remains, unfortunately, as timely as ever. Therefore, I reproduce the following post here, and challenge my readers to think about how they could implement it.

Guest Blogger Matan Koch, Associate at Kramer Levin Naftalis and Frankel, LLP and Member of The National Council On Disability

The below represents the author’s personal views, and not those of the National Council on Disability.

In the Mishneh Torah, the Rambam teaches that, when dealing with tzedakah, or righteousness, “the greatest level, above which there is no other, is to strengthen the name of another Jew by . . . finding him a job in order to strengthen his hand until he needs [tzedakah] no longer.” Archaic language notwithstanding, this simple fundamental truth guides us today. Read properly it should inform and motivate efforts to employ people with disabilities, to lessen or to replace their dependence on lesser forms of tzedakah like Medicare, Medicaid, SSI and community supports, and set them up for long-term meaningful independence.

This is nothing new to most people, but the implications of such a focus might be. We read in Kohelet (Ecclesiastes) 11:1, “Send forth your bread upon the waters; for after many days you will find it.” The rabbis explain this directive to mean that we, the doers and givers of tzedakah, benefit.

American businesses are just beginning to understand the benefits of employing people with disabilities. They are learning that it provides access to a separate and often overlooked talent pool. For example, I am a Harvard Law school graduate. Harvard Law school graduates are in high demand, and it is for this reason that I represent an appealing recruit for many businesses. Those businesses will work hard to accommodate me in order to access that talent. These talents, both those that are evident on resumes and those which are only discovered throughout the course of work, present significant benefits to employers.

Businesses are also learning that hiring employees with disabilities may allow the employer to expand in or even dominate the consumer segment with disabilities. To build from the words of the Rambam, strengthening the name of our brethren with disabilities strengthens us and our businesses. As we seek to emulate this highest form of tzedakah, we build independence, but also stand to reap tremendous benefits. That is a win-win, so, I ask “If not now, when?”

But, even if we agree that this is a win-win scenario, how do we get there?

We learn from Pirkei Avot that “Ben Azzai taught: Do not disdain any person. Do not underrate the importance of anything for there is no person who does not have his hour, and there is no thing without its place in the sun.” Simply, we each have our own special contribution to make to the critical work of tikkun olam. The same idea holds true for a business.

A successful employer would start by identifying needs within his or her organization, and continue by looking among jobseekers with disabilities to find outstanding candidates who could meet those needs. Conversely, people with disabilities seeking jobs need to focus on the skills and abilities that they bring to the table, just as would any other job seeker. Their path to employment involves education and perhaps vocational rehabilitation to hone and highlight these abilities, raising their appeal to employers.

A match made focusing upon the need of an employer and the abilities that the employee brings to bear is a recipe for success. Accommodations in this circumstance become a collective undertaking to best utilize the employees abilities to meet the need for which they were hired.

The law, always intended to be a floor rather than a ceiling for accommodation, drops away in importance as partners join together to find the employee his or her “place in the sun” so that both parties benefit. The employee benefits from the job at which he or she will succeed. The employer benefits from a well-matched worker who, trends show, is likely to stay with the organization longer than his or her able-bodied counterpart, and potentially provides help in accessing the market of people with disabilities. All because each party understood the place of the other.

Tradition teaches us what to do and how to do it, so I ask again, in the words of Rabbi Hillel, “If not now, when?”

Elephants, Taboos, and Poster Children

As anyone reading regularly will know, I am currently engaged in a job search. Recently, a friend who was making some introductions regarding the search asked if it was okay to reference my disability. This touched off a well worn internal conflict. On the one hand, I thought about all of the times that I have experienced prejudice, and I wanted to say no. On the other hand, I thought about the motivators, from compassion to affirmative action, which might drive a contract to be more receptive, and I wanted to say yes.

The momentary conflict subsided. I remembered that my disability was so apparent, even from my resume, that avoiding it was nothing more than ignoring an elephant in the room, making something taboo when it did not need to be. But I could not stop thinking about the implications. Prejudice is a horrible thing, and I cannot blame anyone who, having the option of hiding their disability, chooses to do so. But what about the other side?

I was unquestionably a poster child. Yale used my face on their diversity newsletter when I was a student. I parlayed that into real face time, and used it to work with then President Richard Levin and his wonderful staff to make Yale a more inclusive place. Long before the photo, I concluded that, in light of my good but nor elite numbers, that my admission was in part due to the disability status. Though admited with soft high school numbers, I graduated from Yale cum laude with a 3.79 GPA. So, it seems that I got in in part because I have a disability, and we know that I was used for promotional purposes because of that disability, but I was also hugely academically successful, and was also able to partner with others to actually materially change opportunities for future Yalies with disabilities, something that I would not have been able to do if I were not both at Yale and openly a person with a disability.

What does this mean for my friend’s question? I do not want to be hired at a job at which I will not succeed, but I am a good lawyer, and reasonably confident that I will excell at any job for which I were to be hired. What then the harm if disability gets me through the door, other than that to say so is taboo?

Further, we are, as a society, fast approaching a tipping point in the way that the business world utilizes disability talent and reaches disability consumers. What if, just like at Yale, I have the opportunity to build from poster child status and in so doing gain the opportunity to bring my employer to the leading edge of these trends? This strikes me as a net positive, especially because, given i would also contibute as skilled lawyer in the legal position for which I was hired, it is all added value. Yet, in order to bring that value, I cannot reject being held up, but must rather embrace it. Again, it is easy for me since my large wheelchair makes disability the elephant in the room, ignored only by conscious choice. That said, it is not easy to overcome the taboos to embrace that role. So, sometimes I struggle.

I told my friend to use his judgment in the introductions, even as I will use my judgment should I be offered a job. I am curious, though, have others wrestled with this? Readers, those with disabilities and without, what do you think of embracing these taboos if the result can be real change, or even the less lofty but equally valuable goal of putting food on the table? I know that I will continue to wrestle with these questions each day, and I encourage you to consider them.

Chutes and Ladders: Obstacles on the Journey to Employment For Personal Care Users

I do not actually remember the game Chutes and Ladders. I remember that there were chutes, and I remember that there were ladders, and I remember that there was some method of following a path based on a die roll to get to a finish line. It is entirely possible that both chutes and ladders were positive things, but for the purpose of this blog post, I am going to choose to remember that the ladders were a positive climb up, and the chutes a precarious pitfall that you hoped to overshoot with your die roll. The analogy works for me, so I am going with it. One day a few years ago, I got a call in my New York office from a woman who heard that I was a working professional while using significant amounts of personal care. She was distraught, for she had just been offered a good job, making in the vicinity of $80,000.

Why, you say, should she be distraught? This sounds like good news. Alas, she was an individual with a disability who received her almost $100,000 per year of annual care from New York Medicaid. Further, under New York eligibility rules, if she made more than about $60,000 per year, (this year's number is $59,388) she would lose her Medicaid. $80,000 was not enough to pay for care, let alone care plus living expenses. This Ladder had become a chute which would have made her unable to maintain her life. I did not have a solution at the time, save that my annual salary was $230,000, and that was how I paid out-of-pocket.

Around that time, I made a friend, a resident of New Jersey. He too, had a good job, and though not eligible for New Jersey’s Medicaid buy in, which had an even lower threshold than New York, as a former recipient of SSI meeting certain other conditions in New Jersey, he was eligible for Medicaid through a program under section 1619(b) of the Social Security Act. If you follow the link, you will see that this program allows individualized determinations of eligibility disregarding earned income for certain classes of people, including those dependent upon personal care. A little loophole though, is that, other than an exemption for earned income, he needed to meet all of the eligibility requirements for SSI, including making sure that his assets never exceeded $2000. This is not a typo. $2000, a threshold set in the 1980s and never changed. To receive his care, he could not save for retirement, or even create a decent contingency fund. These well-recognized ladders to financial success would have been chutes. His disability progressed, and he had to leave that job, and is now living primarily on fixed income. I wonder if that would have been the case if he had been able to save prudently, and invest.

I recently moved to Massachusetts, and did so precisely because they it is the only state I have been able to identify where eligibility for the personal care program is not precluded by income or assets. By happy accident, I applied for Medicaid while still officially making my law firm salary of $285,000 per year, so I have some interesting numbers. Massachusetts has a premium for people with disabilities above certain incomes that receive services. By way of example, had I been making $285,000 by the time I actually became eligible for Medicaid, I would have paid the monthly premium of $3650, but I would have had services.

Let us do some math. I submit that, in round numbers, my care will cost the State of Massachusetts $54,000 per year. Incidentally, I am by no means one of the most expensive recipients of care, but my own numbers are the easiest for me to access. I submit that there are few if any jobs that I could get in Massachusetts given my current realities (which still make me more employable than 99% of Americans) that would allow me to part with that much money out-of-pocket per year. As such, Massachusetts will be the guarantor of my care whether I am employed or not. This fact becomes even more immutable for others as care needs rise and income potential drops. Let us assume for a moment that if I were making $200,000 per year, my premium might drop to $3000 in Massachusetts. (I have made up this number, but it is not out of line with the numbers above.)

If I lived in New York, I would likely have to leave my $200,000 job because of difficulties paying for care and all other disability costs, even at 200,000. For instance, the rent on my accessible apartment with 24 hour building staff to limit my need for personal care was almost $3700 per month. If I lived somewhere cheaper, I would probably need more care to make up for lack of services. (Actually 200K might be just enough, but I am trying to work with round numbers.) Thus, New York would be on the hook for $54,000 a year of my care, plus likely subsidized housing, while the federal government would pay SSI or SSDI, and likely Supplemental Nutrition Assistance, all to allow me to live with an income of zero.

In Massachusetts, I would keep the job. I would pay $36,000 a year of my care, with Massachusetts picking up the other $18,000 plus assorted medical costs. Since I would be earning a good salary, I would pay my own rent, or mortgage since I could have assets, and I would not need to collect social security or nutrition assistance. Further, I would be paying taxes, so the net costs to the taxpayer would be even lower.

In this scenario, literally everybody wins. I win because I get the benefits of work, of Independence, and of disposable income, all while receiving the care that I need. In a period of decreased work, like the one I am currently experiencing, I would have savings to get me through. The taxpayers win because my ultimate price tag is probably less than a quarter of what it would be in another state, all while I am paying taxes, reducing the net impact. My employer wins because they get my labor and my talent. Society wins as we add to the population of productive adjusted members, decreasing dependence and poverty while increasing hope. By eliminating the chute, we all get to ride the ladder together.

Most states provide some kind of personal care, and those that do not provide institutional care, which is even more expensive and filled with other horrors and drawbacks that I will write about in another post. Only Massachusetts has set out this path to winning through work. I can literally see no justification for why it has not been adopted in every State save inertia, and ignorance of the financial realities. Unlike the need for more funding inherent in yesterday’s post regarding Personal Care, there is no state that would not save money, they just do not know.

So my reader, I share these facts with you. Share them widely. Share them with decision makers. Push for change. We will all benefit.