NADR National Office PO Box 96503 #30550 Washington, DC 20090-6503
FOURTH QUARTER 2018
IN THIS ISSUE:
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SCOTUS ORAL ARGUMENTS : philip litteral
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NEW MEMBER SPOTLIGHT : hannalore merritt
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NADR 2019 agenda
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Long Term Disability (ltd) BENEFITS : erik berger
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VETERAN MEMBER SPOTLIGHT : CARL GROVES
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CREATE A FACEBOOK COMPANY PAGE : JULIE PHELPS
19 NADR BOARD OF DIRECTORS
NADR NEWSLETTER FOURTH QUARTER 2018
IN THIS ISSUE 3 SCOTUS ORAL ARGUMENTS : philip litteral 4 NEW MEMBER SPOTLIGHT : hannalore merritt 5 NADR 2019 agenda 11 Long Term Disability (ltd) BENEFITS : erik berger
CONTENTS
13 VETERAN MEMBER SPOTLIGHT : CARL GROVES 14 CREATE A FACEBOOK COMPANY PAGE : JULIE PHELPS 19 NADR BOARD OF DIRECTORS
a Note from the President NADR on site for 12/4/2018 SCOTUS oral arguments, Biestek v. Berryhill I had the unexpected, rare, and humbling experience this month of observing NADR take part in a new form of advocacy. Submitting an ‘Amicus Curiae’ brief to the Supreme Court moves NADR, as an organization, squarely into the THIRD BRANCH of lobbying for our Members and their clients. Within about a month we have submitted this brief to the SCOTUS (judicial), will meet with Senate and House staff on Capitol Hill (legislative), and will meet with SSA Deputy Commissioners at their headquarters in Woodlawn, MD (executive). A unique “trifecta” for our lobbying efforts. No matter what you think of the merits of the Biestek case, or the prospect of moving ANY disability case to this level, it cannot be argued that NADR is not there, in the trenches for our Members, helping to promote the best possible spin on process and outcomes. All the work -- from inviting NADR in to the process (Fred Daley), to serving as lead attorney and resource person (Karl Osterhout), to gathering data and composing arguments (Wilkinson, Walsh, and Eskovits) – has been provided graciously and at no cost to our Members! Extra special thanks to Chanakya Sethi of WW/E for outstanding research for and composition of our brief. It’s available in the recent Legislative Newsletter if you haven’t read it. Awe inspiring, this process has provided new insight into, and respect for, our democratic process that will serve our industry well for years to come. Thanks to the associates of WW/E -- who not only crafted the language for our brief, but also got us “tickets” to the oral arguments -- Karl and I were privileged to sit in this most esteemed room in the land and observe. And there they were: Neil Gorsuch,
Sonia Sotomayor, Stephen Breyer, Clarence Thomas, John Roberts, Ruth Bader Ginsburg, Samuel Alito, Elena Kagan, Brett Kavanaugh. That’s the order in which they sit, left to right, with seniority on The Court dictating placement. Daley, former NADR Director at Large, sat at the plaintiff’s table. His associate, Meredith Marcus, in the rows of support staff directly behind. As I pointed out to our Management team, I thought Ishan Bhabha (plaintiff’s lead attorney) got absolutely slaughtered by the caustic wit of the Justices, until Anthony Yang stood up for SSA and was absolutely murdered! Thirty minutes Bhabha, thirty minutes Yang, five minutes Bhabha, NEXT CASE! For the most part you can’t move, talk, leave or yawn during the session, so we got to sit through the second case as well, (some inane patent issue). All in all, the process is grueling and sans any obvious “political bias”. So Biestek either won or lost. Or maybe won with a very narrow ruling only applicable to this one case. We will see, and will share the outcome with you, our Members. When I said before that I didn’t see this honor coming, I had no idea what an eyeopening experience it would be – a once in a lifetime opportunity to promote the NADR brand and position. Sitting before these nine most venerable arbiters, we once again got the chance to …. “Be NADR!” Philip Litteral, NADR President NADR NEWS | FOURTH QUARTER 2018
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NEW MEMBER SPOTLIGHT hannalore merritt What is your vocational background prior to representation?
What made you decide to become an NADR member?
I have worked in advocacy-related fields almost my entire adult life – prior to attending law school I researched juvenile justice issues and worked in community residences with a variety of client populations. During law school I worked for Washington State’s legal aid provider and ever since I have been involved with social justice and advocacy work through both my “day job” and volunteer opportunities.
I joined NADR because I have learned so much about this area from many of the people involved. I have thoroughly enjoyed learning about the administrative level process from those of you that we work with at the federal court level – it has made me a better advocate for our clients.
How long have you been a representative and how did you get involved in representation? I joined Osterhout Berger Disability Law in 2014 and have been practicing exclusively in appellate disability work since that time. It has been a great fit for me both personally and professionally; federal court work is challenging and interesting and I believe our clients deserve someone to keep fighting for them.
What do you hope to get out of your NADR membership? I hope to continue to network with members at conferences, events and through the listserv. I learned a ton and had a wonderful time at the networking event in Providence; I look forward to seeing many of you again in San Antonio!
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NADR NEWS | FOURTH QUARTER 2018
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AGENDA Wednesday, April 3rd (Networking and Service Day) Be sure to come early to pack in some additional networking, learning and to participate in our 2019 Service Project! More details will be announced soon, but here are the times you should note:
12:00pm – Riverwalk Boat Tours Meet in the hotel Lobby at Noon to walk a few blocks down the Riverwalk to take a boat tour. Tours are $20 per person and you can pay there. Also, we’ll be close to The Alamo. You can take a tour, or at least get a picture…you know, so you don’t forget it…
2:00-5:00pm Learning Lounge The best way to get a head start; come to meet other attendees and take in as many 30-minute talks as you can.
4:00-6:00pm 2019 NADR Service Project We are still working out the details, and will announce our service activity within the next few weeks!
7:00pm Meet n’ Greet (cash bar) Let the reunion begin! This is a great time to meet new conference attendees and catch up with old friends!
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Thursday, April 4th Registration Desk and Exhibit Hall are open 7am-5pm. 7:00-8:00 Networking Breakfast
8:00-8:30am Opening, President Phil Litteral
8:30-9:30am Using the A Section to Win Chris O’Connor, Esq. DDS and its consultants often make mistakes that would allow a case to be paid but for the mistake. These mistakes range from misclassification of past work to a phrase in a narrative portion of the MRFC that equals a listing. We call these "It’s unfortunate we are here cases" because had DDS followed agency policy the case would have been paid at initial application. Learn about what to look for in this section to make your best appeal.
9:30-10:30am -The New Normal - Effective Arguments Based on the New Medical Source Regulations Sarah H. Bohr, Esq. SSA has substantially revised its regulations addressing medical source evidence and has abolished the treating physician rule, for all new claims filed on or after March 27, 2017. This session will highlight these changes and include suggestions for potential arguments to make to the ALJ and the Appeals Council based on these recent regulatory changes.
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11:00am-12:00pm 11:00am-12:00pm Effective Effective Social Social Security Security Disability Disability Representation Representation in in Hearings; Hearings; 11:00am-12:00pm Effective Social Security Disability Representation in Hearings; A Former ALJ’s Perspective A Former ALJ’s Perspective A Former ALJ’s Perspective Hon. Hon. David David Hatfield Hatfield Hon. David Hatfieldan effective representative in disability cases before the Learn what Learn what makes makes an effective representative in disability cases before the Learn what makes an effective representative in disability casesJudge’s before the Social Security Social Security Administration Administration from from a a former former Administrative Administrative Law Law Judge’s Social Security Administration fromcontain a former Administrative Law Judge’s perspective. perspective. The The presentation presentation will will contain examples examples of of good good and and bad bad perspective. The presentation will contain examples of good and bad representation that he witnessed in his career, and will give specific representation that he witnessed in his career, and will give specific practice practice tips tips representation that he witnessed in his career, and will give specific practice tips to enhance a representative’s success in this field of law. Judge Hatfield was to enhance a representative’s success in this field of law. Judge Hatfield was a a to enhance a representative’s success in this field of law. Judge Hatfield was a favorite last year! Don’t miss it! favorite last year! Don’t miss it! favorite last year! Don’t miss it! 12:00-1:30pm 12:00-1:30pm Lunch Lunch 12:00-1:30pm Lunch 1:30-2:30pm 1:30-2:30pm VE VE Panel Panel 1:30-2:30pm VE Panel Karen Starr, Starr, Silvio Silvio Reyes, Karen Reyes, Greg Greg Cates Cates and and Gil Gil Spruance Spruance Karen Starr, Silvio Reyes, Greg Cates and Gil Spruance Each Each panelist panelist will will present present a a relevant relevant vocational vocational mini-topic mini-topic and and then then facilitate facilitate a a Each panelist will present a relevant vocational mini-topic and then facilitate a Q&A. Topics will be announced soon! Q&A. Topics will be announced soon! Q&A. Topics will be announced soon! 3:00-4:00pm 3:00-4:00pm Winning Winning Mental Mental Impairment Impairment Claims Claims in in Light Light of of the the Revised Revised Listings Listings 3:00-4:00pm Winning Mental Impairment Claims in Light of the Revised Listings Meredith Marcus, Esq Meredith Marcus, Esq Meredith Marcus, Esq The The 12.00 12.00 listings listings have have changed changed within within the the last last few few years. years. Learn Learn the the new new criteria criteria The 12.00 listings have changed within the last few years. Learn the new criteria and how to best present a mental impairment case with these changes and how to best present a mental impairment case with these changes in in mind. mind. and how to best present a mental impairment case with these changes in mind. 4:30pm 4:30pm Annual Annual Business Business Meeting Meeting 4:30pm Annual Business Meetingmembers and will focus on the state of the This meeting is open to all This meeting is open to all NADR NADR members and will focus on the state of the This meeting is open to any all NADR members and will focus on the state of the organization as well as organization as well as any new new business. business. organization as well as any new business. 7:00pm 7:00pm Annual Annual President’s President’s Banquet Banquet 7:00pm Annual President’s Banquet Get ready to boot, scoot and Get ready to boot, scoot and boogie…or boogie…or at at least least boogie! boogie! Our Our annual annual banquet banquet Get ready to boot, scoot and boogie…or at least boogie! Our annual banquet will not disappoint. We will have an elegant dinner followed by entertainment will not disappoint. We will have an elegant dinner followed by entertainment by by will not disappoint. We of willNADR! have an elegant dinner followed by entertainment by the talented members the talented members of NADR! the talented members of NADR! 11:00pm 11:00pm NADR NADR Afterparty Afterparty 11:00pm NADR Afterpartydown to Durty Nelly's (Hotel Bar)to start the night! The night owls can The night owls can head head down to Durty Nelly's (Hotel Bar)to start the night! The night owls can head down to Durty Nelly's (Hotel Bar)to start the night! NADR NEWS | FOURTH QUARTER 2018
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Friday, April 5th
7:30-8:30am – Gold Sponsor Breakfast
8:30-9:30am – SSA Update Get familiar with the latest SSA policy updates and future plans. Speaker TBA. 9:30-10:30am – OHO Update A lot has changed this year in OHOs around the country. Learn what we can expect down the road! 11:00am-12:00pm Legislative Update: Talk Show Style Jeanne Morin, NADR Public Policy Advisor Scot Whitaker, Legislative Chair Philip Litteral, NADR President Eva Sirman, CAE What is NADR doing to give members a voice in DC? Come to this interview with our legislative leaders to learn what NADR is working on that may affect our future. 12:00-1:30pm Lunch 1:30-2:30pm Breakout Session 1 – Choose One: A. Formulating Hypotheticals and Understanding the Grids Dr. Silvio Reyes Properly formulating hypotheticals could shift the momentum of the case in the favor of the claimant. Attendees will be educated on key terms to be used in hypothetical development, proper formulation of a hypothetical, and addressing the hypotheticals formed by the ALJ. B. A Close Look at SSI Claims and Resources James Redmond Ever feel like you are in the dark in regard to specific rules and regulations pertaining to resources for SSI eligibility? Would you like to gain insights into SSI resource provisions so you can provide expert guidance to your clients? This session will focus on relevant topics such as: Plans for 8
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Achieving Self Support, Burial Fund Exclusions, Conditional Payments, Secrets to Winning Overpayment Waiver Arguments Resulting from Excess Resources, Uniform Gift to Minors Act, Exclusion of Trusts, Time Limits and Spend Down Rules. 2:30-3:30pm Breakout Session 2 – Choose One: A. Enhancing Critical Thinking Skills in Social Security Disability Claims Melissa Smith, ADR An interactive workshop where you will be challenged to look at specific claims scenarios with critical thinking skills. It's easy in this business to get lost in the rules and regulations and forget about applying simple logic to client's cases. This presentation is a lot of fun and is a great way to meet other attendees! B. The Same Old Same Old Karl Osterhout, Esq. Did you know that even though the DOT has 12500 listed jobs, the evidence shows that only 40 of them are regularly relied on by ALJs to deny benefits based on RFCs for light and sedentary simple routine repetitive jobs? This is powerful information. Karl Osterhout will show you a way to attack EVERY SINGLE ONE OF THEM as an appropriate basis to deny benefits. To be clear, your work starts AFTER you’ve attended this presentation.
4:00- 5:30pm Roundtables Bringing back a favorite, this session will give attendees the opportunity to discuss current, relevant topics with other attendees. 5:30 – 6:30pm Sponsor Mixer (cash bar) Door prizes! Come hang out with our sponsors, learn about what services they can provide you and win some awesome prizes!
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Saturday, April 6th 7:30-8:30 Breakfast 8:30-9:30am Enhancing Our Allowances by Using Both Appendixes of the DOT Hon. Gerry Mariani The presentation will consist of actual hearing examples of utilizing both appendixes, the way federal courts have rules when confronting issues related to them, and the actual theory behind the contents of both appendixes. 9:30 – 10:30am Ethics: Professor Robert Rains, Penn State Dickinson Law This course will cover the Ethics requirement for EDPNA credit for 2019 (Topic will be dictated by SSA/CPS) 10:30 – 11:30 Other EDPNA CEU Criteria (TBD – SSA Usually makes this announcement in January) Are you or someone you know planning on taking the EDPNA exam in 2019? This year, we will offer a LIVE study session at the conference! The session will be occurring the same time as the EDPNA courses (9:30-11:30am) and is free to attend.
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LTD Benefits: What You Need To Know erik berger According to a 2016 survey, approximately 40% of Americans have a privately purchased disability insurance policy or a disability policy offered through their employer. Since Social Security disability benefits, on average, provide approximately one third of the amount of the average disabled worker’s paycheck, and since many people live paycheck to paycheck without substantial savings, the successful presentation of a Long Term Disability benefits claim (LTD) is absolutely critical to maintaining the worker’s financial and personal stability. For instance, a 2017 study of bankruptcy court records demonstrated that over 40% of mortgage foreclosures are attributed, at least in part, to disability. LTD benefits obtained as a benefit of employment (and usually paid for by the employer), somewhat like Social Security benefits, are paid to beneficiaries whose disability is expected to last more than a few months; although the terms of the LTD contract control, generally speaking most workers may be entitled to LTD benefits for up to 2 years if they are unable to work at the job they were performing when they became disabled, and even permanently if the worker’s disability results in an inability to perform any gainful employment. In almost all cases involving a disability policy purchased by the company, the worker will be required, as a condition of receiving LTD benefits, that they also apply for Social Security disability. However, if the LTD policy is bought privately most of these policies provide disability benefits on the sole basis that the policyholder is unable to perform their past job. One way that claims for LTD benefits is vastly different from Social Security claims is that they are adversarial cases, where the employer and/or insurance company has claims adjusters, doctors,
vocational experts and other experts who provide evidence against the worker’s interest. So, even though the “HR person” at the company may be, in fact, a very nice person, this should not lull the worker into forgetting that, in the end, the employer/insurance company will always look out for itself first. Again, the terms of disability policies differ, but in most cases an LTD case can only be successfully filed after a claim for Short Term Disability (STD) has been successfully filed; the primary difference between LTD and STD benefits is that the latter only applies in cases where the disability is expected to last less than 6 months, i.e., is only temporary. In most cases the STD claim must be filed within 20-30 days of the date that disability is alleged. A claim for LTD benefits is then filed to coincide with the ending of the short term of disability that has already been awarded. The process for applying for LTD benefits requires strict adherence to the time frames established in the Department of Labor’s regulations, and all evidence and all medical and vocational opinions should be submitted with the application, if possible. If the LTD claim is denied, the claimant has 180 days to file an appeal; this may seem like a long time, but the last chance to submit evidence is when this appeal is filed. If the claim is again denied after the appeal, the worker’s last chance is an appeal to a federal district court. Because of the strict procedural deadlines, the need to submit evidence in a timely fashion, and the need to develop a persuasive narrative establishing that the worker is “disabled” based on the law and the evidence, it takes very careful, long term, strategic planning to anticipate the NADR NEWS | FOURTH QUARTER 2018
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LTD Benefits: continued legal arguments and medical opinions that will be brought to bear against the worker. In other words, a worker who thinks they may be entitled to LTD benefits, in our opinion, needs to be guided from the very beginning by someone knowledgeable and dedicated to solving the difficulties of the disabled worker. Erik Berger has represented hundreds of individuals in their LTD cases, as well as thousands in their Social Security disability claims. Because of his new partnership with Karl and Lindsay Osterhout, he is now able to focus most of his time and effort on LTD cases. If one of your clients, or someone you know, has a claim for LTD benefits or needs to know whether they can file one, please do not hesitate to contact Erik at erik@mydisabilityattorney.com
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VETERAN MEMBER SPOTLIGHT Carl Groves What did you do before you became a representative? I cut my teeth at the Tennessee DDS. Having gotten a couple of music degrees, government work was pretty much my only option after college. (That’s supposed to be a joke—completely true, but a joke nonetheless.) How long have you been representing clients? I resigned from the DDS on Friday, June 1st 2004, and opened Disability Consulting Monday, June 4th. So I’ve been doing this 14 ½ years. What do you enjoy most about this profession? I’m a glutton. My favorite part is arguing with ALJs in the hearing. The DDS gave me an excellent education in being able to navigate medical records and then, later, formulating a vocational theory. Needless to say, winning is also extremely nice, but I’ve gotten to the point where I enjoy the process of getting to a win almost as much. How long have you been involved in NADR and how has it impacted your professional goals? I joined NADR in 2008 and went to my first conference in 2009. Initially, the main benefit of being a part of NADR was just the realization (and comfort) that a representative community even existed. Hearing stories from other reps regarding their experiences with unruly clients, ALJ peculiarities, Field Office trials, etc., let me know that what I was finding wasn’t so unusual. Sharing experiences—mainly mistakes--is also a valuable time-saver…and an ego-saver if you ain’t the one making ‘em!
Currently, I’d say the Talklist and Conference provide me with a connection not only with the Representative community, but essentially with all things SS Disability-related. For example, I read the Biestek arguments from the Talklist. I’d venture to say the vast majority of reps in the nation aren’t even aware of these types of matters unless they’re connected to a professional organization such as ours. What legislative issue or membership benefit would you like to see NADR focus on/offer in the next few years? That’s easy for me. I believe that essentially every policy change, CFR rewrite, new SSR and/ or rescission in the last five years or so has been based on SSA’s presumption that all claimants are trying to game the system and all representatives are charlatans. My personal opinion is that SSA is belatedly overcompensating for their inertia in handling the whole Eric Conn mess until it exploded onto the national stage. So SSA feels they gotta do something to show the Congress they’re keeping Reps in line. I’d like to see some public push back from NADR. Dunno what that’d look like, but I do know that if those of us who hold ourselves to a ridiculously high standard huddle in silence, SSA will plow us over with ever-increasing attacks on our character and also, sadly, on our clients.
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Create a Facebook Company Page in five easy steps by Julie phelps Within the last year, NADR has made a commitment to have an increased online presence. Through Facebook, LinkedIn, and even Twitter, we have connected with disability representatives from across the country as well as members of the public to share the mission of NADR. Through these posts, we aspire to educate representatives and the public about issues that relate to Social Security Disability Representation. Many of you have helped in this effort simply by liking, commenting and especially sharing our post. THANK YOU! In order to get our message in front of more people, we need more of you to share our posts. An easy way to do that is to create a company Facebook page. With a company page, you can post your own messages to your clients and potential clients. Share NADR posts to help fill your page and create your own. You may be surprised at how well this will work for your marketing efforts! With carefully curated content, potential clients and referral sources will view you as an authority on disability representation. Follow these five easy steps to create your own Company Facebook page: 1. From your own Facebook page, select Create at the top right.
2. Select the first option: Business or Brand by clicking “get started�.
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Create a Facebook Company Page in five easy steps continued 3. Enter the name of your business and contact information:.
4. Add a profile picture. This should be a professional picture or company logo..
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Create a Facebook Company Page in five easy steps continued 5. Add a cover photo. View this as an ad, including your company name, website, slogan, etc. This will likely be the first thing people see if they land on your page. The best dimensions for this are 851x315. You can use an image editor or any high schooler that you might know to resize the image.
Now your page is created! You will be prompted to add additional optional information. Start inviting your network to like your page. You network includes friends, clients and referral sources. When you create or share content that make other people want to share your post, your page will grow. You can also run ads through Facebook that will generate more followers. If you are uncomfortable being “friends” with clients on Facebook, decline the request and share your facebook link with them. Include your facebook link (@yourusername) on your website, business cards and anywhere else you advertise. Use your Facebook page as an opportunity to show your community why you are the go-to source for social security disability representation. To share NADR post on your new Facebook company page, click share and select “share to page”. Your network will value your involvement and support of NADR because it shows that you are a professional and are dedicated to learning more and advocating for claimants! Are you following NADR on Facebook? Use the following search terms within Facebook’s search bar to find us! Facebook (Public Page) https://www.facebook.com/NADRCommunity/ Facebook Group (For Reps Only) https://www.facebook.com/groups/NADRreps/ Julie Phelps is a self-proclaimed Facebook junkie. She serves as the Social Media Manager for NADR and is on NADR’s Association Management Team. Email her with any questions about NADR Facebook or setting up your own company page at admin@nadr.org.
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NADR NEWS | FOURTH QUARTER 2018
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nADr MentorInG GUIDe (For Mento r
s and Ment
ees)
Board of Director s 2014-2015 President Robert McDowell Elizabethtown, KY Vice President Steve Skinner Redding, CA Secretary Philip Litteral Ashland, KY Treasurer Michael Wener Memphis, TN Directors-at-Large Karen Starr Grand Rapids, MI
Marchand, and the following folks on her Committee for their hard work on the production of the NADR Mentoring Guide. Please consider signing uptio as a Mentor or a NADR Na
Patty Sexton Wauna, WA
Mentee after
NADR National Offi ce Administrators Eva Sirman 202-822-2155 eva@nadr.org Julie Phelps 202-822-2155 admin@nadr.or g
NADR PO Box 96503 Washington, DC 20090-6503 Phone: (202) 822 -2155 Fax (972) 245-67 01 Web Site: www.n adr.org
NADR NEWS | FOURTH QUARTER 2018
Mentor Guide Sub-Committee, Earline
Greg Cates Memphis, TN
Barbara Manna Pittsburgh, PA
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NADR would like to thank the chair of the
nal Office PO Box 96503 #3 0550 Washithrough reading the guidelines. ngton, DC 2009 0-6503
We are hopeful that this will be another invalualbe NADR member benefit. Mentor Guide Sub-Committee Earline D. Marchand Carol Balderee Sherrell Rodgers Steven Gragg Brandy Bowdry Dedra Wood
a Sirman 2-822-2155 a@nadr.org
lie Phelps 2-822-2155 min@nadr.org
ADR
Box 96503 ashington, DC 20090-6503 one: (202) 822-2155 x (972) 245-6701 eb Site: www.nadr.org
Board of Directors 2018 - 2019
President Philip Litteral, ADR Ashland, KY
Vice President C. Greg Cates, EdD., ADR Memphis, TN
Secretary Karen Skinner, ADR Redding, CA
Treasurer Christopher Mazzulli, ADR Baltimore, MD
Director At Large Clifford Berkley, ADR Fullerton, CA
Director At Large Marilyn Hamilton, Esq. Atlanta, GA
Director At Large Michael Wener, ADR Memphis, TN
Director At Large Kelly Blad, ADR Cook, MN
Director At Large Melissa Smith, ADR St. Louis, MO
NADR News is published by NADR and is the property of the National Association of Disability Representatives. Copyright 2016, NADR. The articles appearing in the NADR News do not necessarily reflect the opinions of NADR. The accuracy and content of each article is the responsibility of the individual writer.
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