Chapter 2

One in five Americans has some type of disability and may ultimately be a victim of discrimination.[1] With the goal of eliminating this type of discrimination, Congress enacted the Americans with Disabilities Act of 1990.[2]

The mission of the ADA is to assure equality of opportunity, full participation, independent living, and economic self-sufficiency to persons with disabilities. [3] While the ADA has spawned litigation and evoked heated discussions, very little systematic research has been done on the impact the ADA has upon those it was intended to help.[4]

In this chapter, the Commission explores the practical effects of the ADA. By understanding and addressing the issues surrounding the actual effects of the ADA, policymakers, legislatures, and private organizations will be better able to embrace the ADA and strive to eliminate discrimination against people with disabilities. To achieve this objective, the Commission addresses the effects of the ADA on people with disabilities, how businesses and employers have implemented and complied with the demands of the ADA, the relation between federal disability benefits programs and the ADA, and the legislative and executive changes it generated.

People with disabilities agree that life has improved since the passage of the ADA.[6] The United Cerebral Palsy Association in a 1996 poll of persons with disabilities, their friends, and family members, found that the ADA had made a great difference in the lives of those who have disabilities.[7] The survey demonstrated that the ADA prompted better access to buildings, greater access to transportation, and fuller inclusion in the community.[8] Employment, however, was an area where people with disabilities experienced less change.[9]

In 1998, the National Organization on Disability/Louis Harris & Associates (Harris Poll) released a U.S. survey of 1,000 individuals finding that only about 33 percent of individuals with disabilities polled stated they were very satisfied with life, as opposed to 60 percent of individuals without disabilities.[10] It also found a large gap between the employment of people with disabilities and people without disabilities.[11]

In passing the ADA, Congress intended to eliminate discrimination in the workplace and create more employment opportunities for individuals with disabilities.[12] According to the most recent U.S. Census Bureau statistics, 25.4 percent of people with a work disability [13] between the ages of 16 and 74 years are employed and 22.7 percent are employed full time.[14] Of the people with a severe work disability, [15] 7.9 percent are employed and 2.7 percent are employed full time.[16]

According to the 1998 Harris Poll, only 29 percent of individuals with disabilities of working age (18 64 years old) worked full or part time compared with 79 percent of working-age people without disabilities.[17] This survey also reported that 72 percent of the unemployed individuals with disabilities of working age stated they would prefer to work.[18] The Harris Poll found that the proportion of employed working-age adults with disabilities had declined since 1986, when 34 percent of people with disabilities were working.[19]

At the Commission's ADA hearing, Mark Weber, professor of law at DePaul University in Chicago, pointed out that the employment rate for people with disabilities had decreased since 1986.[20] He said, however, that this decline may or may not be meaningful. [21] In the early 1990s, he noted, the economy was in a recession, which hampered employment opportunities for many people. [22]

Addressing the effects of the ADA on the employment of people with disabilities, John Bound, professor of economics at the University of Michigan, testified that while it is natural to look at aggregate statistics to determine the effects of the ADA on the employment rate, it is a dangerous exercise given that there are many other reasons contributing to the employment rate.[23] Dr. Bound believes that even though the decline in the employment rate of individuals with disabilities was contemporaneous with the enactment of the ADA, there were a variety of other plausible reasons for that decline, and therefore, it would be unwise to jump to the conclusion that these aggregate statistics reflect the effects of the ADA.[24] Dr. Bound opined that the decline in the employment rate could be correlated to the growth of disability benefits programs in the 1990s.[25] He based this opinion on the fact that historical survey data indicated that when Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) expanded during the 1970s, the employment rate of people with disabilities dropped and it tended to stabilize when these programs were not being expanded.[26] The employment rate declined again when SSI and SSDI started to expand in the 1990s.[27] In other words, when greater benefits were provided, the aggregate statistics showed more people left the work force and joined the SSI/SSDI rolls.

Sally Weiss, special projects coordinator of the United Cerebral Palsy Association, testified at the Commission's ADA hearing about the association's efforts of job placement for people with disabilities.[28] She stated the United Cerebral Palsy Association has been very successful in placing people with multiple and severe disabilities in jobs in approximately 40 cities nationwide, where the jobs were restructured or other types of accommodations were made.[29] Ms. Weiss stated many of the jobs were found in small businesses and half of the people placed were people of color.[30] She explained that by conducting a vocational profile on a person to determine the person's strengths, and incorporating what he or she likes and dislikes doing, the United Cerebral Palsy Association placed many people with severe disabilities in jobs.[31] The association found that it works better when jobs are restructured based on ability rather than placing individuals with disabilities into existing conventional jobs.[32]

A study of Manpower, Inc., provides additional proof of successful job placement of individuals with disabilities. Peter David Blanck, professor of law at the University of Iowa School of Law, conducted a case study of Manpower, Inc., one of the largest temporary employment services companies in the United States.[33] Testifying on behalf of Dr. Blanck, Michael Morris, said Manpower had been very successful in placing people with disabilities.[34] The study examined the employment opportunities available to individuals with physical and mental disabilities.[35] It explored the importance of hiring and job-training opportunities as strategies that provide a bridge to full-time employment for qualified persons with disabilities. [36] The findings of the study showed that Manpower effectively and promptly placed unemployed people with disabilities.[37] The study revealed that 90 percent of the individuals studied were employed within 10 days of applying to Manpower.[38] Sixty percent of the individuals with disabilities moved from temporary positions to full-time employment.[39] Ninety percent of the people studied were placed in a job or industry consistent with their skills and interests.[40] Dr. Blank stressed that these findings suggest important implications for policymakers, employers, health professionals, and others in expanding employment opportunities for qualified individuals with disabilities in ways that are consistent with the goals of the ADA. [41]

While the ADA has no doubt increased employment opportunities for people with disabilities and changed the public's perception of them, some believe more must be done. Mr. Weber believes discrimination persists against people with disabilities and that it is demonstrated by both statistical and anecdotal information.[42] He testified at the Commission's ADA hearing:

Mr. Weber went on to explain that people with disabilities are less competitive due to their disabilities, which limit activities they can do and put them at an economic disadvantage.[44] He also believes that the ADA's protection for individuals with disabilities is minimally effective and that it tends to favor people at the margins of the ability spectrum those who can be made more competitive with reasonable accommodation or who are only perceived to be disabled.[45] The ADA, he said, leaves a lot of people out in the cold. [46] He believes that laws protecting individuals with disabilities need to be enforced, strengthened, expanded in scope, and supplemented with a system of job set-asides for people with severe disabilities.[47]

Most people with disabilities agree that access to public accommodations and public services has improved for people with disabilities since the ADA.[49] Seventy-six percent of those polled by the United Cerebral Palsy Association stated the ADA had brought the greatest change in access to public accommodations.[50] Eighty-eight percent of the respondents said local businesses were more accessible, and 80 percent thought government buildings and other public facilities (parks, recreation centers, and libraries) were more accessible.[51] The Harris Poll confirmed the United Cerebral Palsy Association's results, finding that 63 percent of people with disabilities felt that their access to public facilities had improved over the past 10 years.[52]

Certainly, making public transportation accessible to all is a goal of the ADA.[54] Both Titles II and III of the ADA include provisions on transportation.[55] The transportation provision in Title II is applicable to public transportation provided by public entities, and Title III is applicable to public transportation provided by private entities.[56] Under these provisions, both public and private entities providing public transportation are mandated to make transportation readily accessible and usable to individuals with disabilities.[57]

According to the United Cerebral Palsy Association's 1996 survey, 45 percent of respondents said more people with disabilities were using public transportation.[58] The survey reported that 34 percent of the people surveyed believed that access to transportation had improved since the ADA.[59] The survey found, however, that 32 percent of the individuals polled felt that access to transportation was an area where they noticed the least change.[60] Ms. Weiss reiterated at the Commission's ADA hearing that along with employment accommodations, transportation is the area of least change.[61] This transportation problem was also found by the Harris Poll. Thirty percent of the individuals with disabilities responding to the Harris Poll believed that inadequate transportation was a problem, while only 17 percent of individuals without disabilities considered transportation a problem.[62] The Harris Poll also found that 60 percent of the people polled reported that access to public transportation had improved since 1994.[63]

The employment provisions of the ADA became effective and binding on businesses with over 25 employees in 1992 and for businesses with 15 or more employees by 1994.[64] When the ADA was enacted, the Equal Employment Opportunity Commission (EEOC) was given enforcement authority for the employment provisions under Title I.[65] According to Christopher Kuczynski, director of the ADA Policy Division for the EEOC, between 1992 and 1998, the EEOC received more than 91,000 charges alleging discrimination based on disability.[66] The EEOC successfully resolved over 11,000 of these ADA charges, resulting in more than $225 million in monetary relief for individuals with disabilities.[67] Mr. Kuczynski testified that of the approximately 300 cases that were litigated, the EEOC was successful in 95 percent of the approximately 200 cases that have been resolved as of June 30, 1998.[68] He added that when [EEOC] decides to bring litigation under the ADA, the EEOC is overwhelmingly successful. [69] In addition, he pointed out that as a result of many of the discrimination cases, employers have changed their policies, resulting in increased access for people with disabilities.[70]

There are some criticisms that EEOC's enforcement of the ADA has fallen short of the statute's intent to increase hiring of individuals with disabilities.[71] As Mr. Kuczynski acknowledged at the Commission's ADA hearing, more than 52 percent of discrimination charges the EEOC received under the ADA were termination charges and hiring charges comprised only 10 percent.[72] Thus, the fact that there are more termination charges than hiring charges has led some critics to argue that the EEOC's enforcement of the ADA is inadequate. However, Mr. Kuczynski does not believe that these statistics on hiring charges and termination charges demonstrate that the ADA's intended purpose is not being enforced.[73] He argued, There's a number of reasons under all the statutes why hiring claims are often difficult to bring and to prove, and it's not surprising that the numbers might be lower. [74] Mr. Kuczynski explained that to the extent the percentage of charges alleging unlawful termination is somewhat higher under the ADA than under the other laws the EEOC enforces, that difference may be attributed in part to individuals who develop disabilities while working.[75] He believes people with disabilities or people who develop a disability on the job want to continue to work rather than receive disability benefits.[76] Mr. Kuczynski opined, I think that an intended purpose of the ADA is to keep people working rather than receiving benefits. It doesn't necessarily mean . . . that the cases are less in the spirit of what the ADA intended simply because they involve discharge. [77]

Under Title I of the ADA, all covered employers are mandated to provide reasonable accommodation for employees with disabilities to the extent that it does not cause undue hardship.[79] Critics of the ADA argue the ADA has placed a financial burden on businesses by forcing them to comply with its mandate.[80] According to Ann Reesman, general counsel of the Equal Employment Advisory Council (EEAC),[81] some employers are doing everything they can to try to comply with the ADA.[82] Some employers, she said, have gone as far as establishing special positions, such as reasonable accommodation coordinator or ADA coordinator, or establishing reasonable accommodation committees.[83] She stated many of these employers make accommodations because of the ADA.[84] In her opinion, [t]he ADA has promoted some great strides, both in fueling technology and empowering people who didn't otherwise feel that they could come forward and compete for a job, that they are able to do that now. [85]

Ms. Reesman also said many of EEAC's 300 member employers are firmly committed to nondiscrimination and equal employment opportunity the principles underlying the ADA.[86] Many of these companies are federal government contractors who have been subject to Section 503 of the Rehabilitation Act.[87] Therefore, these companies already had considerable experience in providing equal employment opportunities for individuals with disabilities when the ADA was passed.[88] Ms. Reesman stated:

Ms. Reesman, however, maintained that while many of EEAC's member employers have been committed to complying with the ADA, accommodations are not without costs to employers.[90] She acknowledged that some of the typical accommodations are inexpensive.[91] However, she stated that although some accommodations do not require physical adaptation, this does not mean that they are free.[92] She explained that some of the accommodations are difficult to quantify, such as a change of work schedule, job restructuring, restructuring a work team, and providing extra supervision.[93] Ms. Reesman testified that an average large corporation has no problem making reasonable accommodations and is willing to absorb some of those expenditures as a part of doing business.[94]

Many proponents of the ADA maintain that most job accommodations are inexpensive. Dr. Blanck believes that it is more expensive to terminate a person with a disability than to accommodate him or her.[95] According to John Lancaster, executive director of the President's Committee on Employment of People with Disabilities, the average cost of an accommodation in the 15 years of running the Committee's Job Accommodation Network (JAN) has been $200.[96]

Dr. Blanck's study of Sears, one of the largest corporations in America with about 300,000 employees, revealed that more than 75 percent of accommodations for people with disabilities required no cost.[97] During this study period of 1978 to 1998, the average direct cost for accommodations was less than $30.[98] Michael Morris explained that Dr. Blanck's study of Sears showed there were many positive unintended economic consequences of accommodations. [99] The study found that some accommodations were applied universally to employees with and without disabilities, which increased overall productivity and improved morale.[100] Mr. Morris believes that this positive outcome has often gotten . . . lost or has not . . . come forward as people have pretty much been swayed with the anecdotal story of a particular accommodation that was so large in terms of cost. [101] Mark Weber testified:

Mr. Weber added that employers who are going beyond the legal requirements of the ADA are finding that it is not as expensive as they thought and that there are unexpected economic benefits.[103]

At the time the ADA was passed, some critics argued that the ambiguity and vagueness of its terms would cause overwhelming compliance and litigation costs, and that this would be especially harmful to small businesses.[104] They believed that the costs of defending a lawsuit could force small businesses into bankruptcy.[105] The proponents of the ADA, however, argued that under the Rehabilitation Act, the predecessor to the ADA, only 265 lawsuits were filed between 1973 and 1990.[106] This means that in the 17 years preceding the ADA's enactment, there were relatively few cases litigating similar provisions under the Rehabilitation Act. Therefore, these concerns for increased litigation under the ADA were unfounded.[107]

However, some panelists at the Commission's ADA hearing contended the ADA has spawned costly litigation. Christopher Bell, a managing partner of the Minneapolis office of Jackson, Lewis, Schnitzler & Krupman, explained that the experience of many employers, unfortunately, is as the recipient of a charge of discrimination or, worse yet, of an ADA lawsuit . . . The ADA is a statute over which everything is litigated. [108] Mr. Bell, testifying on behalf of the Society for Human Resource Management, said the organization is very supportive of the ADA and of employing people with disabilities.[109] He expressed concern, however, about substantial litigation costs to employers resulting from the act, noting that while employers win over 92 percent of the ADA cases it can cost an employer more than $150,000 to do so.[110]

In Mr. Bell's view, the ADA should be refined.[111] He suggested Congress review the ADA, in light of the law that has been developed, to define some of these parameters to better effectuate the purpose. [112] Mr. Bell expressed that the volume and nature of litigation under the ADA is different from other federal equal employment statutes.[113] Before the ADA, he said, federal employment policy mandated that employers could not make distinctions based on a protected characteristic and that they were required to treat everyone the same.[114] The ADA, however, requires employers to hire people based on ability and not based on disability, to treat similarly situated people alike, and to treat some qualified individuals with disabilities differently if necessary to provide equal employment opportunity.[115] In his opinion, the ADA requires differential treatment, creating more litigation and making it more difficult to litigate than other employment laws.[116]

Ms. Reesman agreed that litigation under the ADA is costly to employers.[117] She said courts dismiss many ADA employment cases because they do not meet the threshold requirements.[118] Further, because the ADA mandates reasonable accommodations to the extent that there is no undue hardship or direct threat to the employer, many cases are dismissed when the plaintiff falls within the definition of an individual with a disability but the accommodation that he or she needs is beyond the ADA's requirements.[119] It is for these reasons that many ADA lawsuits ultimately end in favor of employers.[120] Regardless of the outcome, employers bear the costs of defending these lawsuits.[121] It could cost an employer $50,000 to $100,000 in attorneys fees to have the court dismiss a claim, Ms. Reesman noted.[122]

In response to arguments that there is too much litigation under the ADA, John Lancaster, executive director of the President's Committee on Employment of People with Disabilities, argued that the ADA requires lawyers, courts, and employers to treat each person individually and each case on a case-by-case basis.[123] He explained that people with disabilities are a very diverse group, but they are discriminated against because of stereotypes and misconceptions about them as a group.[124] If you don't have a case-by-case basis, you have a real problem, and possibly, reinforce stereotypes and misconceptions. I think the beauty of the law is it forces a case-by-case, individual approach, he said.[125] While Mr.Lancaster acknowledged that there are some burdens to employers in terms of litigation, he believes that things will shake out over time.[126] He further commented that the courts and people are doing a good job in making it work.[127]

A disability policy that expects people with disabilities to work cannot stop with the ADA as the primary mechanism for ensuring this outcome. Other areas of disability policy need to be reformed to effect the ADA's mandate of integrating people with disabilities into mainstream life. The interplay between the ADA and federal disability benefits programs administered under Titles II and XVI of the Social Security Act greatly affects the employment of individuals with disabilities. This interplay has prompted executive and legislative action to create more employment opportunities for individuals with disabilities.

One of the biggest hurdles for persons with disabilities who want to work is inadequate access to health care.[129] Oftentimes, if an individual with a disability who is receiving federal disability benefits becomes employed, these critical health care benefits are forfeited.[130] Further, private health insurance often precludes coverage for pre-existing conditions and offers minimal coverage for mental health needs and long-term supports and services.[131] The same predicament occurs for an individual with a disability who is not receiving federal disability benefits but becomes functionally disabled while working. Assuming the employer provides an accommodation and the individual is able to work, disability benefits may not be available because of his or her work status and level of income.[132] Individuals with disabilities are, therefore, faced with working and having to pay their own disability-related expenses, or receiving federal disability benefits and not working. In essence, it does not pay to work.

While people with disabilities want to work, the overriding message sent to them is that they are not expected to work.[133] Over 95 percent of federal funds spent on individuals with disabilities are targeted for supporting dependency.[134] Markedly less money and time are spent on supporting people with disabilities in pursuing and maintaining employment.[135] For most people with disabilities, the barriers to working remain significant and working is too often an irrational choice.[136] The Social Security disability programs rarely assess an individual s functional capacity and productivity with appropriate accommodations.[137] Rather, these programs focus on disability rather than ability, leaving many employment opportunities unrealized.[138]

One panelist at the Commission's ADA hearing suggested that the ADA has made it harder for individuals with disabilities to be employed.[139] Disability advocates believe that the real issues here do not lie within the ADA. They lie in much more profound issues related to how the government is dealing with this problem in other arenas. [140] These other arenas include (1) economic incentives for individuals with disabilities and employers, (2) education, (3) access to transportation and personal assistance services, and (4) technologies and telecommunications.[141] The number one issue to address with respect to employing individuals with disabilities is health care.[142]

The federal government provides disability benefits under two programs administered by the Social Security Administration (SSA). Both Social Security Disability Insurance (SSDI) and Social Security Income (SSI) are designed to provide minimal financial support for people who, because of a disability, are generally incapable of gainful employment.[143] Pursuant to both statutes, a person is disabled if he or she cannot engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than one year. [144] To meet this definition, an applicant must have a physical or mental impairment . . . of such a severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. [145]

The collection of programs, known generically as SSDI, comprises several types of disability benefits. The Social Security Act authorizes disability insurance benefit payments to disabled or blind individuals who have worked and paid Federal Insurance Contributions Act (FICA) Social Security tax for a sufficient period to obtain insured status. It also provides disability benefits for adult disabled children of insured workers who have died, retired, or are receiving disability benefits, and for disabled widows and widowers of insured workers.[146] Although there are variations among the programs, they all require that the individual be (1) medically disabled; and (2) not working, or working but earning less than the substantial gainful activity (SGA) level at the time disability entitlement can begin.[147] As of July 1, 1999, the SGA amount for persons with disabilities was increased from $500 to $700 per month.[148] This new amount means that if an applicant for disability benefits has an average monthly income that exceeds $700, he or she is not considered disabled and is unable to collect Social Security disability benefits.

For SSDI, SGA is not only used as a factor for determining disability, but it also determines the length of entitlement.[149] The SSA reviews disability cases periodically to determine whether a beneficiary s condition has medically improved and, if so, whether he or she can perform SGA.[150] Entitlement ceases when the SSA finds that the beneficiary's impairment has improved and is no longer disabling. It may also cease after a time if the individual returns to work at the SGA level. The SSA, however, provides a number of incentives for returning to work during which the individual may retain entitlement, as described later in this report.[151]

Generally, a potential beneficiary must wait five full calendar months before SSDI benefits begin.[152] Everyone eligible for SSDI benefits is also eligible for Medicare after receiving benefits for two years.[153] Once an applicant becomes eligible, payments are calculated based on the worker s lifetime average earnings covered by Social Security.[154] The payment amount is adjusted each year to compensate for cost-of-living increases.[155] In some instances, the amount may be reduced by workers compensation payments and/or public disability benefits.[156] Unlike SSI, however, the worker's income or resources do not affect the benefit amount.[157] As of September 1995, the average SSDI payment was $756 per month.[158]

Title XVI of the Social Security Act, Supplemental Social Security, was enacted in 1972 and went into effect in 1974. The SSI program replaced state-run welfare programs and provides cash benefits to individuals with disabilities who have limited means.[159] To be eligible for SSI, individuals must be at least 65 years old, blind, or disabled.[160] Although the eligibility requirements are similar for both SSI and SSDI, some applicants are not eligible for SSDI because they have not worked and contributed to the Social Security Trust Fund for a sufficient period of time. SGA is also used as a factor to determine eligibility for SSI benefits, but unlike SSDI, it is not used in determining the continuation of benefits.[161] Social Security Income eligibility continues until a beneficiary improves medically or is terminated for a nondisability-related reason.[162] In addition, benefits are immediately available to eligible applicants, i.e., there is no waiting period.[163] In 32 states and the District of Columbia, an SSI application is considered a Medicaid application, making the applicant immediately eligible for Medicaid benefits.[164]

Social Security Income payment amounts are based on the amount of other income received, living arrangement, and the state in which the applicant resides.[165] The basic monthly payment, known as the Federal Benefit Rate (FBR), is adjusted each year to account for cost-of-living increases.[166] The FBRs for 2000 are $512 per month for an eligible individual and $769 per month for an eligible couple.[167]

At the Commission's ADA hearing, Kenneth D. Nibali, associate commissioner for disability at the Social Security Administration, commented that once you re on the [Social Security disability] rolls, the vast majority of people stay there for quite some time. [168] In fact, most people with disabilities who become Social Security beneficiaries remain on the rolls for their entire lives.[169] This dependency on Social Security benefits programs can, in turn, have a detrimental effect on the employment rate of individuals with disabilities.[170] This effect illustrates this country's longstanding reliance on public assistance to aid individuals with disabilities rather than on programs that will increase their independence and integration into the work force.

Historically, the employment rates of the persons with disabilities correlate with the growth rate of SSI and SSDI.[171] For example, the employment rates of persons with disabilities dropped when SSI and SSDI were expanding during the 1970s, were relatively stable or rising when SSDI and SSI were not expanding during the 1980s, and then began to fall again when SSDI and SSI rose during the 1990s.[172] Mr. Nibali acknowledged that there's definitely a correlation there. [173] Based on studies conducted by the Social Security Administration, the number one reason that drives applications to go up or down for Social Security and SSI benefits is the state of the economy . . . It's a major factor, and it's one that can, in fact, be correlated with unemployment statistics, Mr. Nibali said.[174] He underscored, however, that he does not believe these federal disability programs attract people away from the labor market.[175] Based on a study by the National Academy of Social Insurance, monetary aspects of the benefits weren't real strong drivers for people either getting on or staying on these rolls . . . [T]he medical benefits are largely what drives the interest of folks. [176]

The younger an individual is who comes on the rolls, the longer he or she is likely to stay on the rolls.[177] Beginning in the 1980s, there has been a rapid growth in cases involving younger beneficiaries between the ages of 15 and 44.[178] While the total number of beneficiaries increased a mere 5 percent in the 1980s, there was a 44 percent increase among those aged between 15 and 44, an increase that far exceeded that of younger persons in other countries.[179] Moreover, between 1990 and 1994, their population shot up 65 percent, while the overall beneficiary population increased by 44 percent.[180]

A number of policy changes may have contributed to this upsurge.[181] First, the definition of mental impairment necessary to receive federal benefits was loosened in the mid-1980s.[182] Second, the burden of proof to remove someone from the benefit rolls increased and continuing disability reviews of such beneficiaries virtually stopped.[183] Third, the 1990 Supreme Court decision in Sullivan v. Zebley[184] forced the re-examination of 237,000 children who had previously been denied SSI benefits.[185] As a result of relaxed eligibility standards, more children applied for SSI benefits and became beneficiaries.[186]

This growth is unprecedented in the history of the benefits system and is counter to the goal of integrating people with disabilities into mainstream employment.[187] Rather than easing the transition into retirement for older people, increasingly, the SSI and SSDI programs are being used as alternatives to a more general income maintenance program.[188] This is neither good social policy nor good for the children and young adults who are coming onto these programs.[189] It is particularly disturbing in light of the trend to remain on the disability rolls once benefits begin. On average, a 9-year-old SSI beneficiary will stay on the rolls for about 27 years.[190] The number of applications for SSDI and SSI, however, is declining. Beginning in 1994, the total number of applications for both SSDI and SSI was 2,546,166.[191] By 1998, the number had dropped to 1,996,800.[192] There has been a comparable decline in the number of awards granted. In 1994, total SSDI and SSI awards were 1,167,138.[193] In 1997, the number of awards was 820,134.[194]

The state of the economy has been in a boom for the past eight years, which creates greater employment opportunities. With the enactment of key legislation that will expand health care benefits and provide greater work incentives to working people with disabilities, these numbers may decline even further. While the Social Security system is based on the notion that a person can be determined too disabled to work, evolution in knowledge, policy, and practice has demonstrated that individuals with disabilities can work if they have access to appropriate support services, accommodations, and health care.[195] Furthermore, the aforementioned policy changes demonstrate that the ADA is not at the root of the high unemployment rate of individuals with disabilities. Other factors, such as the state of the economy and changes in the law, contribute to the dearth of individuals with disabilities in the work force.

People with disabilities have increasingly identified the lack of access to adequate health care and health insurance as a major obstacle to employment and independent living.[196] The original ADA . . . would have gone a long way to dealing with the major obstacle for many disabled people, and that is the inability to get health care coverage at any cost. [197] Insurance companies generally regard people as high risk, in terms of health care costs, when they become disabled or have a family history of disability.[198] Few private health insurance plans have adequate coverage, due to pre-existing condition exclusions, minimal benefit packages, and benefit caps.[199] Furthermore, private health insurance plans rarely provide for the long-term services and supports people with disabilities need.[200] With the accompanying escalating costs of health care and health insurance, people with disabilities find it increasingly difficult to meet their needs through private insurance.[201]

As a result, people with disabilities are less likely to have private health insurance coverage and more likely to have government coverage than those without disabilities.[202] Among individuals aged 22 64 with nonsevere disabilities,[203] 71.1 percent were covered by a private health insurance plan and 6.1 percent had only government coverage.[204] The effect of a disability on the likelihood of having private coverage was more marked among those with severe disabilities; only 43.7 percent of people with severe disabilities aged 22 64 had private coverage while 39.6 percent had only government coverage.[205]

Medicare and Medicaid provide the lion's share of federally supported health care insurance.[206] Medicare helps pay hospital and doctor bills of individuals with disabilities or retirees who have worked long enough to be insured for Social Security benefits.[207] It generally covers people who are 65 and older, people who have been determined to be disabled and have been receiving benefits for at least 24 months, and persons with end-stage renal disease (permanent kidney failure requiring dialysis or transplant).[208] The hospital-cost insurance program, known as Part A, is usually provided free of charge.[209] Most people do not have to pay a premium for Part A because they or a spouse paid Medicare taxes while they were working.[210] Part A benefits include inpatient hospital services, post-hospital extended care services, home health services, and hospice care.[211] Under Part B of Medicare, eligible individuals must pay a premium to obtain insurance for the costs of physicians services.[212] These services include outpatient hospital care and other medical services that Part A does not cover, such as the services of physical and occupational therapists.[213]

Title XIX of the Social Security Act is a program that provides medical assistance for certain individuals and families with low incomes and resources.[214] This program, known as Medicaid, became law in 1965 as a jointly funded cooperative venture between the federal and state governments to assist states in the provision of adequate medical care to eligible needy persons regardless of age.[215] It provides two essential forms of assistance to individuals with disabilities: prescription drugs and the services of attendants who assist them with personal tasks.[216] Medicaid is virtually the only source of reimbursement for long-term services and supports.[217] The amount of assistance provided varies considerably from state to state.[218] In most states, individuals who qualify for SSI disability payments also qualify for Medicaid.[219]

There has been a significant expansion of Medicaid and Medicare that is due, in part, to escalating restrictions from private insurers. These restrictions have increasingly pushed high-risk, high-utilization people with disabilities into public sector programs.[220] Those who are working part time are at an even greater risk of being uninsured because they are likely to be ineligible both for an employer's group coverage and for public coverage, which is generally available only to those who are determined by the SSA to be too disabled to work. [221] While public health care and health insurance are helpful, they are not cure-alls. Reimbursement for long-term services and supports is generally unavailable to those who are working.[222] The inability to obtain private health insurance, coupled with work restrictions on benefits, is discouraging to individuals with disabilities and serves as a disincentive to work.[223] Ultimately, these factors depress the employment rate of people with disabilities.

The SSA reports that about 7,000 SSDI beneficiaries leave the rolls each year due to work activity.[224] Approximately 60,000 disabled and blind SSI recipients are working and no longer receiving benefits, and that number has increased by approximately 3,000 to 5,000 annually in recent years.[225] It is estimated that an additional 4,800 SSDI and 3,000 SSI beneficiaries would leave the benefit rolls due to work each year, beginning in fiscal year 2000, with the implementation of new return-to-work initiatives.[226] These findings suggest that with the proper work incentives more beneficiaries would seek work. Work incentives are imperative to meeting the ADA's objective to integrate individuals with disabilities into community life, particularly into the employment arena.

Before the enactment of the ADA, there were a number of work incentive initiatives included in the Social Security disability benefits program to encourage beneficiaries with disabilities to try to work. Under the SSDI program, there are several work incentives for persons with disabilities. The trial work period (TWP) allows SSDI beneficiaries to test their ability to work for at least nine months in spite of their disability.[227] SSDI beneficiaries continue to receive their full benefits during the TWP, regardless of how much they earn, provided they have a disabling impairment.[228] In addition, SSDI beneficiaries can receive at least 39 months of continued Medicare coverage after the trial work period, even though cash benefits may cease.[229] There is a Medicare buy-in option for SSDI beneficiaries whose premium-free Medicare coverage ended due to work. These benefits apply to those beneficiaries under 65 years of age with a disabling impairment.[230] After a successful trial work period, SSA also provides an extended period of eligibility (EPE), which provides a consecutive 36-month period during which cash benefits will be reinstated for any month in which a beneficiary with a disability does not work at the SGA level, without the need to file a new application for disability benefits.[231] Although these benefits are time limited, they do provide a beneficiary some opportunity to work without losing essential cash and insurance benefits.

The SSI disability program also provides work incentives for persons with disabilities. SSI beneficiaries with disabilities can receive SSI cash payments even when earned income exceeds the SGA, if the beneficiary has been eligible for an SSI payment for at least one month before working at the SGA level; continues to be disabled; and meets all other eligibility rules, including the income and resource test.[232] The monthly SSI payment for working beneficiaries is calculated in the same manner as before they started to work. Moreover, working SSI beneficiaries with a disability are eligible for continued Medicaid coverage when their earnings and income become too high for SSI cash payments.[233] To qualify, the person must have been eligible for an SSI cash payment for at least one month; still meet the disability requirements for SSI; need Medicaid in order to work; and have gross earned income that is insufficient to replace SSI, Medicaid, and any publicly funded attendant care.[234]

Pursuant to both programs, the costs of certain impairment-related items and services the person needs to work are deducted from gross earnings in determining whether the person's earnings represent SGA.[235] The value of any subsidies received on the job is also deducted from gross earnings in determining whether the person's earnings represent SGA.[236] As individuals gross earnings are decreased, it becomes less likely that their income will exceed SGA and that their disability benefits will be terminated. Generally, SSDI and SSI disability benefits are terminated if the beneficiary's condition medically improves and the beneficiary is no longer considered disabled. However, SSDI and SSI disability benefits will continue if, at the time the disability medically ceases, the person is actively participating in an approved state or non-state public or private vocational rehabilitation program, and completion or continuation of the program is likely to enable the person to work permanently.[237]

To counter the dependency on federal disability benefits, the SSA has created these work incentive programs to remove employment barriers and encourage beneficiaries to work and lead independent lives two of the primary objectives of the ADA. For a working beneficiary, however, SSDI cash benefits are generally terminated after one year once average earnings exceed $700,[238] or for SSI purposes, when earnings plus other income exceed the income and resource test. Under SSDI, cash benefits will continue even after a year of returning to work, but only if the beneficiary's average monthly earnings do not exceed the SGA of $700. In sum, in the event that a beneficiary earns more than $700 a month, he or she can no longer rely on government assistance to help defray the costs of working with a disability.

Because many people leaving the Social Security disability program often take minimum-wage jobs, their income from working is not sufficient to cover basic living expenses, particularly disability-related expenses that are typically covered by public health insurance.[239] The minimum wage is currently $5.15 per hour.[240] At the minimum wage rate, if a person with a disability were able to work an average work week of 40 hours, his or her monthly earnings would be approximately $824 well over the earnings limit under SSDI. While some working people with disabilities can only work part time, these figures demonstrate how easy it is to exceed the SGA as a working person with a disability becomes a part of mainstream life. At the same time, once a working beneficiary's cash benefits are terminated, he or she is earning only minimum wages. It may be difficult for some persons with disabilities to live on this small income while incurring necessarily work-related expenses.

In addition, Kenneth D. Nibali of the Social Security Administration pointed out that an awful lot of people aren't even aware of [Social Security work incentive programs] and, quite frankly, some of our employees aren't as good about explaining these things to people as we d like them to be. [241] The rates of Social Security benefit terminations due to beneficiaries returning to work have always been modest, but have reached all-time lows.[242] Despite the work incentive programs shortcomings, Mr. Nibali believes that the number of beneficiaries leaving the Social Security disability rolls to return to work could increase with the introduction of the Ticket to Work and Work Incentives Improvement Act.

On December 17, 1999, President Clinton signed into law the Ticket to Work and Work Incentives Improvement Act (WIIA).[243] Commenting on the WIIA, President Clinton stated, Together, these provisions affirm the basic principle manifested in ADA that all Americans should have the same opportunity to be productive citizens. [244] The act expands Medicaid and Medicare so that people with disabilities can retain their health benefits when they return to work. Under current law, individuals with disabilities risk losing Medicaid and Medicare coverage if they have significant earnings.[245] This legislation will attempt to remove these barriers by:

In short, the WIIA is intended to expand the availability of health care coverage for working adults.[250] While noting that greater employment opportunities for people with disabilities have been aided by important public policy initiatives such as the Americans with Disabilities Act, the WIIA recognizes that fewer than one-half of one percent of Social Security Disability Insurance and Supplemental Security Income beneficiaries leave the disability roll and return to work. [251] Senator Jim Jeffords (R-VT), one of the authors of the legislation, said the WIIA will open doors to jobs across the country for disabled Americans. [252]

On the day of its congressional passage, John Lancaster, executive director of the President's Committee on Employment of People with Disabilities, said the WIIA is a step in the right direction but that the legislation should not be viewed as a panacea. [253] At the Commission's ADA hearing, before the bill was enacted, Marca Bristo, chairperson of the National Council on Disability, noted that the proposed Work Incentives Improvement bill in 1998 would have gone one step toward eradicating the health care obstacle for people with disabilities. [254] According to Ms. Bristo, until the rest of our public policy follows the paradigm shift and begins to believe the same things that the ADA does, that we can work, should work and we begin to take a part in the public policies that keep us from working . . . work doesn't pay for disabled people. [255]

The purpose of the Workforce Investment Act is to consolidate, coordinate, and improve employment, training, literacy, and vocational rehabilitation programs.[256] Title IV of the act amends the Rehabilitation Act of 1973. The purpose of Title IV is to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society . . . through statewide workforce investment systems implemented in accordance with Title I of the Workforce Investment Act. [257] Title I of the act streamlined dozens of federal job-training programs and created one-stop job centers that provide information, counseling, and training services under one roof.[258] State and local governments receive federal funds, which local workforce investment boards then use to design the one-stop centers.[259] All community residents, including individuals with disabilities, may tap the services that the one-stop centers provide. In sum, this act provides greater access to vocational training for persons with disabilities who want to enter the work force.

Section 4733 of the Balanced Budget Act of 1997 amends Title XIX of the Social Security Act (Medicaid) to provide a new Medicaid buy-in option for people with disabilities.[260] This provision gives states the option to allow individuals with disabilities who return to work the ability to purchase Medicaid coverage as their earnings increase up to 250 percent of the poverty level.[261] This option provides a greater incentive for people with disabilities to return to work while relying on some public assistance. These individuals can ease into employment and ultimately integrate into mainstream society.

The Health Insurance Portability and Accountability Act is designed to protect health insurance coverage for workers and their families when they change or lose jobs.[262] To meet this objective, the act's provisions guarantee that private health insurance is accessible, portable, and renewable.[263] The act limits pre-existing condition exclusions for group health plans.[264] The statute also prohibits discrimination against individual participants and beneficiaries based on health status.[265] Some of the health status-related factors include medical conditions (including both physical and mental illnesses), medical history, and genetic information.[266] These provisions are particularly beneficial for individuals with disabilities who want to work but who are typically excluded from private health insurance plans because of their disability. As a result of this legislation, people with disabilities can choose among an array of insurance providers to ensure that they obtain the best coverage for the lowest cost.

The Mental Health Parity Act begins the process of ending the longstanding practice of providing less insurance coverage for mental illnesses, or brain disorders, than is provided for equally serious physical disorders.[267] The act includes a provision that prohibits insurance companies from having lower lifetime caps for treatment of mental illness compared with treatment for other medical and surgical conditions.[268] Typical caps for mental illness coverage are $50,000 for lifetime and $5,000 for annual, as compared with $1 million for lifetime and no annual cap for other physical disorders.[269] The law covers only mental illnesses; it does not cover treatment of substance abuse or chemical dependency.[270] The principal beneficiaries of the act will be persons with the most severe, persistent, and disabling of brain disorders because they are, on average, more likely to exceed annual and lifetime benefits.[271] The law expires on September 30, 2001.[272]

Senators Tom Harkin (D-IA) and Arlen Specter (R-PA) introduced S. 1935, known as the Medicaid Community Attendant Services and Supports Act, in November 1999.[273] The bill would amend Title XIX of the Social Security Act to provide Medicaid coverage for community attendant services and supports for eligible individuals with disabilities.[274] While Medicaid must provide nursing home services, community-based services are not always available.[275] Individuals with disabilities, both old and young, have wanted alternatives to nursing homes and other institutions when they need long-term services.[276] This bill will give individuals with disabilities the power to choose where and how they receive attendant services and supports, and allow them to integrate more easily into mainstream life.

On February 10, 2000, President Clinton issued an executive order reinforcing the prohibition of discrimination against federal employees based on genetic information.[277] Genetic information includes information about the occurrence of a disease, or medical condition or disorder in family members of the individual. [278] Title I of the ADA prohibits genetic discrimination, even though the law does not specifically refer to it.[279] Covered entities that discriminate against individuals on the basis of such genetic information are regarding the individuals as having impairments that substantially limit a major life activity.[280] Pursuant to the ADA, disability includes being regarded as having such an impairment. [281]

Pursuant to Executive Order 13078, President Clinton established the Presidential Task Force on Employment of Adults with Disabilities (Task Force).[282] The purpose of the Task Force is to create a coordinated and aggressive national policy to bring adults with disabilities into gainful employment at a rate that is as close as possible to that of the general adult population.[283] To achieve that purpose, the Task Force is working on interagency strategies to reduce employment barriers for persons with disabilities.[284]

The Task Force was required to issue its first report to the President by November 15, 1998.[285] The report noted that adults with severe disabilities are one of the largest minorities in the nation without jobs.[286] Vice chair of the Task Force, Tony Coelho, outlined the challenges in achieving the goals of the executive order:

To help meet its health care initiative, the Task Force recommended that the President support the passage of the Ticket to Work and Work Incentives Improvement Act, which was ultimately passed.[288] The Task Force also recommended that the President direct the Department of Treasury to examine tax options to assist adults with disabilities in paying for expenses related to work.[289] Working-age adults with disabilities often have a disincentive to work because of the high cost of personal attendant services or technologies required for employment.[290] Similarly, the cost to employers of hiring an individual requiring personal attendant services can be prohibitive.[291] Tax credits provide a flexible way to assist people with disabilities in defraying these expenses.[292]

Currently, there are a number of tax incentives available to help employers cover the cost of accommodations for employees with disabilities and to make their places of business accessible for employees with disabilities. John Lancaster of the President's Committee on Employment of People with Disabilities thinks that true economic incentives need to be in place for the individual and employer. In his opinion, there has to be real economic incentive for the employer to hire people with disabilities that extends beyond some Mickey Mouse tax credit that Congress renews every few years. [293] Following is a list of a few significant tax incentives available to employers:

On January 13, 1999, President Clinton announced a new proposal that would allow workers with significant disabilities to receive an annual $1,000 tax credit to help cover the formal and informal costs associated with employment, such as special transportation and technology.[303] Disability advocates believe that providing economic incentives is an effective means for getting individuals with disabilities to leave the disability rolls to go to work.[304] Like the Work Incentives Improvement Act, this tax credit will ensure that people with disabilities have the tools they need to return to work.[305] Congress recently approved the measure.[306]

This bill is intended to amend Title III of the Americans with Disabilities Act to require, as a precondition to commencing a civil action regarding a place of public accommodation or a commercial facility, an opportunity to correct alleged violations.[307] The proposed bill would require a 90-day notification period,[308] which, in effect, stalls an individual's right to file a lawsuit upon detecting an ADA violation. The bill's supporters maintain that there has been a flood of ADA lawsuits that have generated large sums of attorneys fees, while the victim, or person with a disability, is barred from receiving any damages.[309] Under Title III of the ADA, plaintiffs who file lawsuits to compel compliance with ADA access requirements are banned from receiving damage awards when they sue individually.[310] Mark Foley (R-FL), one of the authors of the bill, said that the ADA is being used by some attorneys to shake down thousands of businesses from Florida to California. And they're doing so at the expense of people with disabilities. [311]

There was a public hearing held by the House Judiciary Subcommittee on the Constitution on May 18, 2000. Several business representatives, some with disabilities, and private individuals with disabilities testified at the hearing. Clint Eastwood also testified, as he was recently subject to an ADA lawsuit for an alleged failure to provide wheelchair access to certain rooms at his Mission Ranch in Carmel, California. While Chairman Canady praised the ADA for providing a more accessible environment for people with disabilities, he also believed that this absence of a notice provision can be exploited and create ill will between the disabled community and small property owners who would in good faith bring properties into compliance with the ADA if only they were alerted to the law s requirements. [312] The measure is still pending in the Committee on the Judiciary.

[1] According to the U.S. Census Bureau's Current Populations Reports of 1997, approximately 54 million Americans (one in five) have some level of disability and 26 million Americans have a severe disability. U.S. Census Bureau, John M. McNeil, One in 10 Americans Reported a Severe Disability in 1994 95, <http://blue.gov/Press-Release/cb97-148.html> (May 25, 2000), p. 1 (hereafter cited as McNeil, One in 10 ).

[2] 42 U.S.C. 12101 12213 (1994).

[3] 42 U.S.C. 12101(a)(8).

[4] Peter Blanck, professor of law at the University of the Iowa, states that systematic information on the work lives of persons with disabilities is lacking. Peter David Blanck, testimony before the U.S. Commission on Civil Rights, hearing, Washington, D.C., Nov. 12 13, 1998, transcript, p. 2 (hereafter cited as Hearing Transcript).

[5] Sally Weiss Testimony, Hearing Transcript, p. 107.

[6] The United Cerebral Palsy Associations, Inc., 1996 ADA Snapshot of America: ADA Changes Lives of People with Disabilities, 1996, p. 3 (hereafter cited as 1996 ADA Snapshot). Ninety-six percent of people polled said the ADA had made a difference in the lives of people with disabilities, and 81 percent of the same people said the ADA had made a difference in their own lives. Ibid. This is the latest of five studies the United Cerebral Palsy Associations, Inc., has published since 1992. The association sent out 10,000 questionnaires to persons identified through the mailing lists of more than 63 organizations of persons with disabilities. Ibid. Although more than 3,000 surveys were returned, the organization had time and resources to analyze only 1,330 of them. Ibid.

[7] Ibid.

[8] Ibid., p. 4. According to the 1996 poll, the ADA was perceived as resulting in better access to buildings by 57 percent of the people polled; improved access to transportation by 46 percent; and better telecommunications access by 25 percent. Ibid.

[9] Seventy-five percent of the people polled identified employment/job accommodations as the area in which the least change had occurred. Ibid., p. 6.

[10] National Organization on Disability, 1998 National Organization on Disability/Louis Harris & Associates Survey of Americans with Disabilities, <http://nod.org/presssurvey. html> (Sept. 24, 1998), p. 1 (hereafter cited as 1998 Harris Poll).

[11] Ibid.

[12] 42 U.S.C. 12111.

[13] The U.S. Census Bureau defines a disability as a difficulty in performing functional activities (seeing, hearing, talking, walking, climbing stairs, and lifting and carrying a bag of groceries) or activities of daily living (getting in or out of bed or chair, bathing, getting around inside the home, dressing, using the toilet, and eating) or other activities relating to everyday tasks or socially defined roles. A severe disability is defined as an inability to perform one of these activities or tasks or needing personal assistance. McNeil, One in 10.

[14] U.S. Census Bureau, March 1999 Current Population Survey, March 1999 Current Populations, <http://blue. ensu.gov/hhes/www/disable/cps/cps299.html> (June 7, 2000), p. 1.

[15] The U.S. Census Bureau defines a disability as a difficulty in performing functional activities (seeing, hearing, talking, walking, climbing stairs, and lifting and carrying a bag of groceries) or activities of daily living (getting in or out of bed or chair, bathing, getting around inside the home, dressing, using the toilet, and eating) or other activities relating to everyday tasks or socially defined roles. A severe disability is defined as an inability to perform one of these activities or tasks or needing personal assistance. McNeil, One in 10.

[16] Ibid.

[17] 1998 Harris Poll, p. 1. This survey did not make any distinctions between individuals with severe and nonsevere disabilities; therefore, it is difficult to make a comparison between employment rates cited by the Harris Poll and the U.S. Census Bureau.

[18] Ibid.

[19] Ibid. A study of labor force participation among persons with disabilities from 1983 to 1994 using the National Health Interview Survey showed that labor force participation rates for persons with disabilities increased in the 1980s but did not change significantly from 1990 to 1994. Laura Trupin, Douglas S. Sebasta, Edward Yelin, Mitchell P. LaPlante, Trends in Labor Force Participation Among Persons with Disabilities, 1983 1994, Disability Statistics Report, no. 10 (Washington, D.C.: U.S. Department of Education, National Institute on Disability and Rehabilitation Research). However, according to the U.S. Census Bureau's Survey of Income and Program Participation Data, there was an increase in employment among persons with severe disabilities between 1991 92 and 1994 95. John M. McNeil, Americans with Disabilities: 1994 95, U.S. Census Bureau, Current Population Reports, P70-61 (August 1997), p. 3. The Current Population Survey shows that there was no change in employment rates of persons with disabilities between 1990 and 1998.

[20] Mark Weber Testimony, Hearing Transcript, p. 166. See also Mark C. Weber, Beyond the Americans with Disabilities Act: A National Employment Policy for People with Disabilities, Buffalo Law Review, vol. 46 (1998), p. 128 (hereafter cited as Weber, Beyond the ADA ).

[21] Weber, Beyond the ADA, p. 128, n. 18.

[22] Ibid.

[23] John Bound Testimony, Hearing Transcript, p. 102.

[24] Ibid., p. 118.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Weiss Testimony, Hearing Transcript, p. 133.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Ibid., p. 136. There is no indication that those who were accommodated in this study would have been considered qualified individuals with disabilities for ADA purposes.

[33] Peter David Blanck, Statement, Hearing before the U.S. Commission on Civil Rights, Washington, D.C., Nov. 12 13, 1998, Exhibit 6, p. 4 (hereafter cited as Blanck Statement). This study also did not reveal whether the individuals studied were qualified individuals with disabilities under the ADA. Neither this study nor testimony before the Commission's ADA hearing regarding this study indicated whether the ADA was a cause for job placement.

[34] Michael Morris testified on behalf of Peter Blanck. Both Dr. Blank and Mr. Morris represent a part of a new center that has been funded by the U.S. Department of Education, National Institute on Disability and Rehabilitation Research. Michael Morris Testimony, Hearing Transcript, p. 112.

[35] Blanck Statement, p. 4.

[36] Ibid., p. 5.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] Ibid.

[42] Weber Testimony, Hearing Transcript, p. 164.

[43] Ibid., p. 165.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] 1996 ADA Snapshot, p. 4.

[49] Public services is covered under Title II and public accommodations is covered under Title III. There was very limited statistical data on accessibility to public accommodations and public services. This limited statistical data failed to clarify whether the data relates to public services provided by public entities or public accommodation provided by private entities. The majority of the Commission's ADA hearing testimony was in regard to the effects of the ADA on employment, therefore this report has focused on the data provided by the witnesses.

[50] 1996 ADA Snapshot, p. 15.

[51] Ibid.

[52] 1998 Harris Poll.

[53] United Cerebral Palsy Association, Project Access for All, 1998, p. 10.

[54] See 42 U.S.C. 12141 12165, 12186(a).

[55] 42 U.S.C. 12141 12165, 12186(a).

[56] 42 U.S.C. 12141 12165, 12186(a).

[57] 42 U.S.C. 12142(a), 12182(b)(2)(B)(I).

[58] 1996 ADA Snapshot, p. 6.

[59] Ibid.

[60] Ibid.

[61] Weiss Testimony, Hearing Transcript, p. 107.

[62] 1998 Harris Poll.

[63] Ibid., p. 11.

[64] 42 U.S.C. 1212(5)(A).

[65] 42 U.S.C. 12181.

[66] Christopher J. Kuczynski, Statement, Hearing before the U.S. Commission on Civil Rights, Washington, D.C., Nov. 12 13, 1998, Exhibit 5A (hereafter cited as Kuczynski Statement).

[67] Christopher Kuczynski Testimony, Hearing Transcript, p. 108.

[68] Ibid.

[69] Kuczynski Statement, p. 1.

[70] Ibid.

[71] John Hood, Taking the Byte Out of Disability, Policy Review, March/April 1996, pp. 6 7.

[72] Kuczynski Testimony, Hearing Transcript, p. 138.

[73] Ibid.

[74] Ibid.

[75] Ibid., pp. 138 39. Mr. Kuczynski indicated in his testimony that the percentage of ADA charges alleging hiring discrimination is actually higher than the percentage of charges alleging failure to hire under the other statutes that the EEOC enforces, and that the percentage of charges alleging unlawful termination is only slightly higher than the percentage of termination charges under Title VII and the Age Discrimination in Employment Act. Ibid.

[76] Ibid., p. 139.

[77] Ibid.

[78] President George Bush s Statement on Signing the Americans with Disabilities Act of 1990, Public Papers of the Presidents of the United States, George Bush (1990), book 2, p. 1071, reprinted in 1990 U.S.C.A.A.N. pp. 601 02.

[79] 42 U.S.C. 12112(b)(5)(A).

[80] See generally David Harger, Drawing the Line Between Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act: Reducing the Effects of Ambiguity on Small Businesses, Kansas Law Review, vol. 41 (1993), p. 783 (hereafter cited as Harger, Drawing the Line ).

[81] EEAC is a nonprofit organization established in 1976 to promote sound approaches to eliminating employment discrimination, and it has over 300 of the nation's largest private employers as members. Ann E. Reesman Testimony, Hearing Transcript, p. 161.

[82] Ibid., p. 180.

[83] Ibid.

[84] Ibid. p. 181.

[85] Ibid.

[86] Ibid., p. 161.

[87] Ibid., p. 162; 29 U.S.C. 701 (1994 & Supp. IV 1998).

[88] Reesman Testimony, Hearing Transcript, p. 162.

[89] Ibid., p. 163.

[90] Ibid., p. 176.

[91] Ibid.

[92] Ibid.

[93] Ibid.

[94] Ibid.

[95] Morris Testimony, Hearing Transcript, p. 143.

[96] Lancaster Testimony, Hearing Transcript, p. 157. This is a review over a 15-year period. A Web site provided by JAN states that 80 percent of job accommodations JAN suggests cost less than $500. Job Accommodation Network, Discover the Facts about Job Accommodations, <http://www.jan. wvu.edu/English/accfacts.htm> (June 2, 2000), p. 1.

[97] Morris Testimony, Hearing Transcript, p. 114. Peter Blanck and Michael Morris both represent part of a new center that has been funded by the U.S. Department of Education, National Institute on Disability and Rehabilitation Research. This study of Sears, one of the largest corporations in America with approximately 300,000 employees, examined more than 600 workplace accommodations covering the period of 1978 to 1998. Ibid.

[98] Ibid.

[99] Morris Testimony, Hearing Transcript, p. 143.

[100] Ibid.

[101] Ibid.

[102] Mark Weber Testimony, Hearing Transcript, p. 172.

[103] Ibid., p. 173.

[104] Harger, Drawing the Line, pp. 789 90.

[105] Ibid., p. 791.

[106] Ibid.

[107] Ibid.

[108] Christopher Bell Testimony, Hearing Transcript, p. 159.

[109] Ibid., p. 158.

[110] Ibid.

[111] Ibid.

[112] Ibid.

[113] Ibid., p. 183.

[114] Ibid.

[115] Ibid.

[116] Ibid.

[117] Reesman Testimony, Hearing Transcript, p. 179.

[118] Ibid., p. 178. See discussion in chapter 3 of this report.

[119] Ibid.

[120] Ibid.

[121] Ibid.

[122] Ibid.

[123] Lancaster Testimony, Hearing Transcript, p. 184.

[124] Ibid.

[125] Ibid.

[126] Ibid.

[127] Ibid., p. 185.

[128] National Council on Disability, Achieving Independence: The Challenge for the 21st Century, Employment, 1996, p. 1 (hereafter cited as NCD, Achieving Independence.)

[129] See Marca Bristo Testimony, Hearing Transcript, p. 69. See also National Task Force on Employment of Adults with Disabilities, Recharting the Course: First Report of the Presidential Task Force on Employment of Adults with Disabilities, Executive Summary (hereafter cited as Task Force, Recharting the Course).

[130] Task Force, Recharting the Course, Executive Summary.

[131] NCD, Achieving Independence, p. 2.

[132] See 42 U.S.C. 423(d), 1382c(a)(3)(A) (B) (1994 & Supp. IV 1998).

[133] NCD, Achieving Independence, p. 2.

[134] Ibid.

[135] Ibid.

[136] Ibid.

[137] Ibid., p. 3.

[138] Ibid.

[139] Walter Olson Testimony, Hearing Transcript, p. 48. Mr. Olson is an author of several books, including The Excuse Factory, which devotes several chapters to the Americans with Disabilities Act.

[140] John Lancaster Testimony, Hearing Transcript, p. 185.

[141] Ibid., pp. 185 86.

[142] Ibid., p. 185.

[143] Maureen Weston, The Road Best Traveled: Removing Judicial Roadblocks That Prevent Workers From Obtaining Both Disability Benefits And ADA Civil Rights Protection, Hofstra Law Review, vol. 26, no. 2 (1997), p. 392 (hereafter cited as Weston, Road Best Traveled ).

[144] Ibid. (citing 42 U.S.C. 423(d)(1)(A), 1382c(a)(3)(A) (Supp. IV 1998)).

[145] Ibid. (citing 42 U.S.C. 423(d)(2)(A), 1382c(a)(3)(B)).

[146] 42 U.S.C. 402(d) (f).

[147] Social Security Administration, Disability, no. 05-10029, ICN 456000 (September 1999). While work activity is only one of the tests used to decide the existence of a disability, it is a critical threshold in disability evaluation. Ibid.

[148] 20 C.F.R. 404.1574 (1999). See also Substantial Gainful Activity Amounts, 64 FR 18566 (Apr. 15, 1999).

[149] Social Security Administration, Office of Employment Support Programs, Redbook on Work Incentives: A Summary Guide to Social Security and Supplemental Security Income Work Incentives for People with Disabilities, 1999, p. 11 (hereafter cited as SSA, Redbook on Work Incentives).

[150] Ibid., pp. 16 17.

[151] Ibid., p. 17.

[152] Ibid.

[153] Ibid. Medicare provides insurance coverage for hospital and physician services for individuals with disabilities or retirees if they have a sufficient work history. See 42 U.S.C. 1395 1395ccc (1994 & Supp. IV 1998).

[154] SSA, Redbook on Work Incentives, p. 17.

[155] Ibid.

[156] Ibid.

[157] Ibid.

[158] See Social Security Administration, Highlights of Social Security Data, July 2000, <http://www.ssa.gov/policy/ programs/ssd.html> (Oct. 17, 2000).

[159] Ibid., p. 2.

[160] 42 U.S.C. 1381a (1994).

[161] SSA, Redbook on Work Incentives. SGA is not a factor for SSI applicants who are blind. Ibid.

[162] Ibid.

[163] Ibid.

[164] Ibid. Medicaid benefits provide medical care assistance to eligible needy persons regardless of age. These benefits are federally funded and provided by most states. See 42 U.S.C. 1396 (1994 & Supp. IV 1998).

[165] Ibid.

[166] Ibid.

[167] Ibid.

[168] Kenneth Nibali Testimony, Hearing Transcript, p. 124.

[169] NCD, Achieving Independence, Employment, p. 12.

[170] John Bound Testimony, Hearing Transcript, p. 118.

[171] Ibid.

[172] Ibid. See also Richard V. Burkhauser, The Americans With Disabilities Act: Social Contract or Special Privilege?: Are People with Disabilities Expected to Work? The Annals of the American Academy of Political Science, no. 549 (January 1997), pp. 72 74 (hereafter cited as Burkhauser, Social Contract or Special Privilege ).

[173] Nibali Testimony, Hearing Transcript, p. 120.

[174] Ibid., p. 121.

[175] Ibid., p. 122.

[176] Ibid., p. 123.

[177] NCD, Achieving Independence, Employment, p. 12.

[178] Burkhauser, Social Contract or Special Privilege, p. 74.

[179] Ibid.

[180] Ibid.

[181] Ibid.

[182] Ibid.

[183] Ibid.

[184] 493 U.S. 521 (1990) (administrative method to determine whether a child is disabled, and thus eligible for SSI benefits, held facially invalid as contrary to governing statute, 42 U.S.C. 1382c(a)(3) (1990)).

[185] Burkhauser, Social Contract or Special Privilege, p. 74.

[186] Ibid.

[187] Ibid., p. 82.

[188] Ibid.

[189] Ibid.

[190] NCD, Achieving Independence, Employment, p. 12. In 1996, a new section was added to the Social Security Act that requires SSA to redetermine the eligibility of a disabled child using the adult disability criteria and without considering whether there has been medical improvement. See the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-196 (codified at 42 U.S.C. 1382c(3)(H)(iii) (Supp. IV 1998)). This will affect the average length of time children are on the SSI rolls.

[191] Social Security Administration, Office of Disability, Social Security and Supplemental Income Disability Applications, Total Applications, Awards, Denials, Allowance Rate & Denial Rate, Calendar Years 1990 1998 (1999).

[192] Ibid.

[193] Ibid.

[194] Ibid. Decisional data for 1998 applicants were not available because many claims and appeals were still pending. Ibid.

[195] NCD, Achieving Independence, Employment, p. 12.

[196] Ibid., p. 18.

[197] Bristo Testimony, Hearing Transcript, p. 69.

[198] NCD, Achieving Independence, p. 19.

[199] Ibid.

[200] Ibid.

[201] Ibid.

[202] U.S. Department of Commerce, Bureau of the Census, Current Population Reports Americans With Disabilities: 1994 95, by John M. McNeil (Washington, D.C.: Government Printing Office, 1997), p. 4 (hereafter cited as Census Bureau, Current Population Reports).

[203] See McNeil, One in 10, for the Census Bureau's definition of disability.

[204] Census Bureau, Current Population Reports, p. 4.

[205] Ibid.

[206] Kenneth S. Abraham and Lance Liebman, Private Insurance, Social Insurance, and Tort Reform: Toward a New Vision of Compensation for Illness and injury, Columbia Law Review, no. 93 (January 1993), p. 83 (hereafter cited as Abraham, Private Insurance ).

[207] 42 U.S.C. 1395c (1994).

[208] 42 U.S.C. 1395c.

[209] 42 U.S.C. 1395d (Supp. IV 1998).

[210] Health Care Financing Administration, Medicare Basics, n.d., <http://www.medicare.gov/Basics/PartAandB.asp> (May 24, 2000), p. 2.

[211] 42 U.S.C. 1395d.

[212] Health Care Financing Administration, Medicare Basics, n.d., <http://www.medicare.gov/Basics/PartAandB.asp> (May 24, 2000), p. 2.

[213] Ibid.

[214] 42 U.S.C. 1396 1396v (1994 & Supp. IV 1998).

[215] See 42 U.S.C. 1396.

[216] 42 U.S.C. 1396d(a)(12), (14) (Supp. IV 1998).

[217] NCD, Achieving Independence, Employment, p. 21.

[218] Health Care Financing Administration, Overview of the Medicaid Program, n.d., <http://www.hcfa.gov/medicaid/mover. htm> (May 24, 2000), p. 1.

[219] Health Care Financing Administration, Medicaid Eligibility, n.d., <http://www.hcfa.gov/medicare/meligib.htm> (May 24, 200), p. 1.

[220] Ibid., p. 19.

[221] Ibid., p. 20.

[222] Ibid., p. 21.

[223] Ibid., p. 20.

[224] Social Security Administration, Response to Interrogatories by U.S. Commission on Civil Rights, May 18, 1999, tab D, p. 1.

[225] Ibid.

[226] Ibid.

[227] SSA, Redbook on Work Incentives, p. 24.

[228] Ibid.

[229] Ibid., p. 27.

[230] Ibid., p. 28.

[231] Ibid., p. 25.

[232] Ibid., p. 40.

[233] Ibid., p. 41.

[234] Ibid.

[235] Ibid., p. 21.

[236] Ibid., p. 26.

[237] Ibid., p. 28.

[238] As mentioned previously, some disability-related work expenses are deducted from a beneficiary's gross earnings, which lowers the amount of earnings subject to the SGA requirement.

[239] NCD, Achieving Independence, p. 17.

[240] Department of Labor, Wage, Hour and Other Workplace Standards, Small Business Handbook, December 1999, <http://www.dol.gov/dol/asp/public/programs/handbook/minwage.htm> (July 20, 2000), p. 1.

[241] Nibali Testimony, Hearing Transcript, p. 131.

[242] Jerry L. Mashaw, Virginia Reno, et al., eds., Disability, Work and Cash Benefits, Overview (Michigan: W.E. Upjohn Institute for Employment Research, 1996), p. 2.

[243] Pub. L. No. 106-170, 113 Stat. 1860 (1999). The expanded health care provisions became effective Oct. 1, 2000. The Ticket to Work portion of this law will be phased in nationally over a three-year period beginning Jan. 1, 2001 (to be codified at scattered sections of 42 U.S.C.).

[244] Federal EEO Advisor, Clinton signs disability legislation, vol. 2, no. 12 (Jan. 20, 2000).

[245] See 42 U.S.C. 423(d), 1382c.

[246] Pub. L. No. 106-170, 201, 113 Stat. 1860, 1891 94.

[247] Pub. L. No. 106-170, 202, 113 Stat. 1860, 1894.

[248] Pub. L. No. 106-170, 101, 113 Stat. 1860, 1863 81.

[249] Pub. L. No. 106-170, 112, 113 Stat. 1860, 1881 87.

[250] Pub. L. No. 106-170, 113 Stat. 1862.

[251] Pub. L. No. 106-170, 113 Stat. 1862 63.

[252] Federal EEO Advisor, Congress approves disability legislation, vol. 2, no. 11 (Dec. 16, 1999), p. 1.

[253] Ibid.

[254] Bristo Testimony, Hearing Transcript, p. 69 (emphasis added).

[255] Ibid., pp. 69 70.

[256] Pub. L. No. 105-220, 112 Stat. 936 (1998) (codified in scattered sections of 20 U.S.C.A. & 29 U.S.C.A. (1999 & Supp. 1999)).

[257] 29 U.S.C.A. 701(b) (1999 & Supp. 1999).

[258] See 29 U.S.C.A. 2841.

[259] See 29 U.S.C.A. 2821 2833.

[260] 42 U.S.C. 1396a(a)(10)(ii) (1994).

[261] 42 U.S.C. 1396a(a)(10)(ii).

[262] Health Care Financing Administration, Health Insurance Portability and Accountability Act, n.d., <http://www. hcfa.gov/regs/hipaacer.htm> (July 20, 2000), p. 1.

[263] Codified in scattered sections of 29 U.S.C.A. & 42 U.S.C.A. (Supp. 1999).

[264] 29 U.S.C.A. 1181 (1999); 42 U.S.C.A. 300gg (Supp. 1999).

[265] 29 U.S.C.A. 1182; 42 U.S.C.A. 300gg-1.

[266] 29 U.S.C.A. 1182(a)(1); 42 U.S.C.A. 300gg-1(a)(1).

[267] National Alliance for the Mentally Ill, The Mental Health Parity Act of 1996, n.d., <http://www.nami.org/update/ parity96.html> (July 20, 2000), p. 1.

[268] 29 U.S.C.A. 1185a(a)(1)(A) (1999); 42 U.S.C.A 300gg-5(a)(1)(A) (Supp. 1999).

[269] National Alliance for the Mentally Ill, The Mental Health Parity Act of 1996, n.d., <http://www.nami.org/ update/parity96.html> (July 20, 2000), p. 1.

[270] Ibid.

[271] Ibid., p. 3.

[272] Ibid., p. 1.

[273] S. 1935, 106th Cong. (1999).

[274] S. 1935.

[275] 42 U.S.C. 1396d(a)(4)(A), (a)(23) (1994).

[276] American Disabled for Attendant Programs Today (ADAPT), A Community-Based Alternative to Nursing Homes and Institutions for People with Disabilities, n.d., <http://www.adapt.org/casaintr.htm> (June 21, 2000), p. 1.

[277] Executive Order 13145, 65 Fed. Reg. 6,877 (2000). The order clarifies and makes uniform administration policy and does not create a right or benefit, substantive or procedural, enforceable at law by a party against the United States, its officers or employees, or any other person. Ibid., p. 6789.

[278] Ibid.

[279] Equal Employment Opportunity Commission, Compliance Manual, Americans with Disabilities Act Manual (BNA), 1995, p. 88. See also EEOC Commissioner Miller Says Title I of ADA Prohibits Genetic Discrimination, Daily Labor Report (BNA), Mar. 27, 2000, p. A-4.

[280] Equal Employment Opportunity Commission, Compliance Manual, Americans with Disabilities Act Manual (BNA), 1995, p. 88.

[281] 42 U.S.C. 12102(2)(C).

[282] Exec. Order No. 13078, 3 C.F.R. 140 (1999), reprinted in 29 U.S.C.A. 701 (1999 & Supp. 1999).

[283] 3 C.F.R. 140.

[284] 3 C.F.R. 140.

[285] 3 C.F.R. 141.

[286] Presidential Task Force, Recharting the Course: First Report of the Presidential Task Force on Employment of Adults, Executive Summary, Dec. 4, 1998, p. 1.

[287] Ibid., Foreword.

[288] Ibid., chapter 1, p. 1.

[289] Ibid., pp. 1 2.

[290] Ibid., p. 2.

[291] Ibid.

[292] Ibid.

[293] Lancaster Testimony, Hearing Transcript, p. 186.

[294] Pub. L. No. 101-508, 1161(a), 104 Stat. 1388 (1990) (codified at 26 U.S.C. 44 (1994)).

[295] 26 U.S.C. 44(b)(1).

[296] 26 U.S.C. 44(c).

[297] 26 U.S.C. 190 (1994).

[298] 26 U.S.C. 190(b)(1).

[299] 26 U.S.C. 190.

[300] 26 U.S.C. 51 (1994 & Supp. IV 1998).

[301] 26 U.S.C. 51(a) (b).

[302] President's Committee on Employment of People with Disabilities, Tax Incentives for Business, n.d., <http:// www.50.pcepd.gov/pcepd/ztextver/archives/pubs/ek97/tax.htm> (May 4, 2000), p. 3.

[303] National Council on Disability, A Progress Report: November 1, 1998 November 19, 1999 (2000), p. 48 (hereafter cited as NCD, Progress Report).

[304] Lancaster Testimony, Hearing Transcript, p. 185.

[305] NCD, Progress Report, p. 48.

[306] Ibid.

[307] H.R. 3590, 106th Cong. (2000).

[308] Ibid.

[309] Statement by Mark Foley, Subcommittee on the Constitution, House Committee on the Judiciary, May 18, 2000 (hereafter cited as Foley Statement). See also Statement by E. Clay Shaw Jr., Subcommittee on the Constitution, House Committee on the Judiciary, May 18, 2000.

[310] 42 U.S.C. 12188(a)(1) (1994). Monetary damages are available if the Attorney General sues on behalf of an individual. 42 U.S.C. 12188(b)(2)(B).

[311] Foley Statement.

[312] Statement of Chairman Charles T. Canady, Subcommittee on the Constitution, House Committee on the Judiciary, Washington, D.C., May 18, 2000.