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**Sharing the Dream:Is the ADA Accommodating All?**

**Findings and Recommendations**

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**CHAPTER1: THE ROAD TO THE ADA**

**Findings**

-  Historically our nation�s disability policies werepremised on a medical/charity model where disability was to be addressed bydoctors and other professionals who were to cure or fix the individual with adisability; if he or she could not be �cured,� the individual may beentitled to some type of charitable benefit.The Supreme Court has refused to find that individuals withdisabilities are a suspect or even a quasi-suspect class, which would haverequired that laws affecting individuals with disabilities serve a compellingstate interest or at least be substantially related to an important governmentalinterest.In moving away from a medical/charity model and attemptingto provide individuals with disabilities more meaningful access to all facets ofcommunity life, numerous laws were enacted to address specific issuesconfronting individuals with disabilities ranging from access to federalfacilities, education, air travel, voting, housing, and federal employment.With the passage of the Americans with Disabilities Act,our nation moved from the medical/charity model to a civil rights model thatattempts to provide a level playing field for individuals with disabilities byaffirmatively securing the right of access to, and independence in, all aspectsof society.The ADA, which was signed into law on July 26, 1990, is acomprehensive civil rights law seeking to ban discrimination against individualswith disabilities by ensuring equality of opportunity, full participation ingovernment services and public accommodations, independent living, and economicself-sufficiency.
**CHAPTER2: THE EFFECTS OF THE ADA**

**Findings**
-  Individuals with disabilities believe the ADA has made agreat difference in their lives. The ADA has increased the level ofparticipation in mainstream American society, including better access tobuildings, greater access to transportation, and fuller inclusion in thecommunity.Since the passage of the ADA, the public is more sensitiveto and aware of people with disabilities.Individuals with disabilities continue to facediscrimination and difficulty in overcoming barriers that prevent them fromfully participating in mainstream American society, particularly in the areas ofemployment, access to medical benefits, and access to public transportation.
**Recommendations**

**2.1**      The Equal Employment Opportunity Com�mission (EEOC) and the Departmentof Justice (DOJ) should continue their aggressive efforts in implementing andenforcing the mandates of the ADA.

**2.2**      The EEOC, the DOJ, and the Department of Transportation must become moreproactive in their efforts in enforcing the ADA beyond the traditional areas ofcoverage and in educating the public on the requirements of and rights providedby the ADA.

**Findings**
-  General access to public accommodations and public serviceshas improved for people with disabilities since the ADA.There continues to be areas that need greater improvementsuch as access to medical facilities and public transportation.
**Recommendations**

**2.3**      The DOJ should play a more proactive role in enforcing the mandates ofTitles II and III of the ADA, including:

implementing a more effective complaint investigationprocess;    adopting a procedure to actively seek out test cases innontraditional areas of enforcement;    undertaking compliance reviews to monitor compliance; and    using testers as a means of monitoring compliance with theADA.

**2.4**      The DOJ should be allocated additional funding to provide training,education, and technical assistance for mid-size to small businesses so thatthey have adequate access to information on the mandates of the ADA.

**Finding**
-  While the ADA has improved employment opportunities forindividuals with disabilities, employment rates of individuals with disabilitiescontinue to indicate that people with disabilities are less likely to beemployed than people without disabilities. The available employment rate datamake no distinction between disabilities. Therefore, it is difficult for theCommission to draw any substantive conclusions regarding the ADA�s impact onthe overall employment rates and employment opportunities for individuals withdisabilities.
**Recommendation**

**2.5**      The National Council on Disability and the National Institute onDisability and Rehabilitation Research should undertake comprehensive studiesfocusing on employment rates, employment trends, and types of employment forindividuals with disabilities. These studies should also include different typesand severities of disabilities to ensure that quantitative data exist to makereal comparisons of employment rates and employment opportunities forindividuals with disabilities.

**Finding**
-  While data tend to show general improvement in life forindividuals with disabilities since the passage of the ADA, the data are basedon studies and surveys with limited statistical and anecdotal information. Thereis no consistent hard empirical data to demonstrate the extent of theeffectiveness of the ADA.
**Recommendation**

**2.6**      There should be continued efforts to study the overall effects of theADA. The National Institute on Disability and Rehabilitation Research shouldundertake a comprehensive nationwide study of the effects of the ADA onindividuals with disabilities and on businesses and employers who must complywith the ADA.

**Findings**
-  The ADA, like all civil rights laws aimed at remedyingdiscrimination based upon unjustified stereotypical beliefs, has costsassociated with protecting the civil rights of those it is intended to protect.There are no significant costs in complying with thereasonable accommodation provisions of the ADA.While there was testimony about concerns of costlylitigation created by the ADA, no empirical evidence was presented eithersubstantiating these concerns or showing a significant number of cases filedunder the ADA were determined to be frivolous.To the extent businesses have concerns over frivolouslitigation being filed under the ADA, there are already mechanisms in place,such as through Rule 11 of the Federal Rules of Civil Procedure, which areintended to deter and remedy the filing of frivolous lawsuits or those withoutsubstantial justification.
**Recommendations**

**2.7**      Congress should provide businesses and employers that incur costs incomplying with the accessibility and reasonable accommodation provisions of theADA tax credits and other tax incentives that correlate directly with the costsincurred by them up to the actual costs incurred.

**2.8**      The EEOC, the DOJ, and other federal agencies charged with implementingthe ADA should increase educational efforts aimed at advocacy groups andpotential ADA claimants in an attempt to ensure that these groups andindividuals have a clear understanding of the level and type of evidence neededto successfully maintain an ADA claim.

**Finding**
-  The Social Security Administration (SSA) does not take intoconsideration the ADA�s requirement of reasonable accommodation in determiningcontinuing eligibility for disability benefits, which can discourage individualswith disabilities from re-entering the work force.
**Recommendation**

**2.9**      In an effort to further provide incentives for returning to employment,the amount of cash disability benefits should be tailored to an applicant�sability to work with a reasonable accommodation or to be rehabilitated andreturned to work. After a meaningful phase-in period, the benefits could bereduced or eliminated depending upon the individual�s ability to work, withthe proper work supports or accommodations.

**Finding**
-  Generally, federal disability beneficiaries are not madeaware of the Social Security work incentives, which are intended to encouragethem to return to work.
**Recommendations**

**2.10**    The SSA should educate its staff on the available work incentives andprovide training to staff on how to explain these work incentives so thatapplicants understand them.

**2.11**At the timeof application, the SSA should ensure that all beneficiaries are informed aboutthe work incentive initiatives.

**Findings**
-  The employment rate of individuals with disabilitiescorrelates with the growth rate of Social Security Income (SSI) and SocialSecurity Disability Insurance (SSDI). When access to benefits is expanded theemployment rate of individuals with disabilities drops, and when access tobenefits is tightened the employment rate increases.On average, once beneficiaries begin to receive federaldisability benefits, they remain on the disability benefits program for most oftheir lives.Once individuals with disabilities receive federaldisability benefits, the SSA work incentive initiatives have only a modesteffect in returning beneficiaries to the work force.Once a beneficiary with a disability starts to work, SSDIcash benefits are generally terminated after one year. These benefits areextended if a beneficiary�s average monthly earnings do not exceed thesubstantial gainful activity (SGA) level of $700.Once a beneficiary with a disability starts to work, SSIcash benefits are terminated when earnings plus other income exceed the incomeand resource requirements.
**Recommendations**

**2.12    **The SSA should do comprehensive research on the factors that causeindividuals with disabilities to remain on the Social Security rolls. Thisresearch should distinguish between individuals who cannot work and those whomay be able to work with reasonable accommodation or appropriate rehabilitation.

**2.13**    The SSA work incentive initiatives should extend the length of time thatcash benefits are offered while the person is re-entering the work force. Thesebenefits should be offered until the beneficiary can become reasonablyself-sufficient, which is a concept the SSA should define with input from allaffected stakeholders.

**2.14    **The SGA level should be raised. The amount should be higher than theannual salary of someone earning minimum wages. In effect, once a person�searnings exceed the SGA level, he or she should be able to live off earningsalone.

**2.15**    The SSI income and resource requirements should be restructured so thatonce a person�s earnings exceed the SGA level, he or she is able to befinancially self-sufficient, which is a concept the SSA should define with inputfrom all affected stakeholders.

**Findings**
-  Adults with disabilities often have a disincentive to workbecause of the high cost of personal attendant services or technologies requiredfor employment.Congress recently approved a proposal by President Clintonto provide a $1,000 tax credit to cover certain work-related expenses, such asspecial transportation and technology.
**Recommendations**

**2.16**    Congress should provide immediate incentives to people with disabilitiesthat offset work expenses related to disability as these expenses are incurredrather than requiring individuals with disabilities to wait until the end of theyear to receive a tax benefit.

**2.17    **Congress should increase tax benefits through enhanced tax credits,which adequately cover work expenses related to a person�s disability.

**Finding**
-  Pursuant to Internal Revenue Code, Section 190, allbusinesses are allowed to deduct up to $15,000 a year for expenses incurred toremove physical, structural, and transportation barriers for persons withdisabilities at the workplace.
**Recommendation**

**2.18**    Congress should provide more incentive for businesses to meet the ADA�saccess requirements by increasing the amount of tax credit available.

**CHAPTER3: JUDICIAL TRENDS IN ADA ENFORCEMENT**

**Findings**
-  The Supreme Court decisions in *Sutton*, *Murphy,* and *Albertsons,*that the effects of any mitigating measures must be considered, obscured thecongressional vision for the ADA.The Supreme Court decisions in *Sutton*, *Murphy,* and *Albertsons*restricted the coverage of individuals intended to be protected by the ADA andwill cause continued litigation over who is entitled to coverage by the ADA.The Supreme Court in *Sutton*,*Murphy*, *Albertsons,*and *Olmstead*haveinvited continued litigation over the validity and deference due the regulatoryand interpretive guidance issued by the federal agencies on what constitutes adisability.
**Recommendation**

**3.1**      To accomplish the expressed intent of Congress, the ADA should be amendedto provide that the effects of mitigating measures should not be taken intoaccount in determining whether an individual has an impairment under the ADA.

**Findings**
-  The Supreme Court decision in *Cleveland*, holding that a person is not automatically barred fromsuing under the ADA even though he or she has claimed an inability to work in anapplication for disability benefits, recognized the conflict in purposes betweenthe ADA and the Social Security Act, and the fact that the Social Security Actdoes not require a determination of whether a person could work with areasonable accommodation while the ADA mandates this assessment.While recognizing the difference in purpose between the ADAand the Social Security Act, the *Cleveland*decision still allows employers to demand an explanation of why anindividual made a claim for disability benefits.The *Cleveland*decisioninvites continued litigation over this issue.
**Recommendations**

 **3.2      **To avoid continued litigation, Congress should consider harmonizingthe ADA and the SSA, or Congress should amend the ADA to provide that theapplication for, or receipt of, disability-based benefits should have norelevance to an individual�s pursuit of his or her rights under the ADA.

**3.3**      The SSA and other federal and state agencies providing disability-basedbenefits based upon a certification of disability should make it clear on allforms and applications for benefits that all such certifications are for thesole purpose of determining disability under that agency�s applicable laws, donot address the ADA�s reasonable accommodation requirement, and are in no waya representation of limitation for the purposes of the ADA.

**Finding**
-  The Supreme Court in *Olmstead*,recognized that �unjustified isolation� of individuals with disabilities ininstitutions is unlawful discrimination.
**Recommendation**

**3.4**      The appropriate federal agencies should adopt policies and programs aimedat helping states and local governments to fully implement the Supreme Court�s*Olmstead* ruling as addressed morespecifically in Findings and Recommendations for chapter 5 of this report.

**Findings**
-  The Supreme Court in recent decisions has consistentlyruled that as a general matter the 11th Amendment to the U.S. Constitutionprohibits states from being sued in federal court by individuals for violationsof federal statutes. Therefore, the provisions of these laws allowingindividuals to pursue remedies in federal court were found unconstitutional.The Supreme Court will now hear arguments to considerwhether the ADA provisions that allow private individuals to sue states infederal court are constitutional.
**Recommendation**

**3.5**      The DOJ should develop a contingent plan for active monitoring andenforcement of the provisions prohibiting discrimination by state entities inanticipation of the Supreme Court�s decision. The plan should be ready forimplementation in the event the Supreme Court, consistent with recent decisions,invalidates ADA provisions allowing individuals to file suit against states infederal court.

**Chapter 4: Substance Abuse underthe ADA**

**Findings**
-  The social and economic costs of substance abuse in Americaare staggering. It is estimated that the cost of alcohol and drug abuse for 1995was $276.4 billion, of which $166.5 billion was for alcohol abuse and $109.8billion for drug abuse.The ADA currently does not mandate that private industryoffer programs, such as Employee Assistance Programs (EAPs), to assist workerswith substance abuse problems.EAPs seem to play a role in helping workers obtain thetreatment they need, return to work, and receive the follow-up treatmentnecessary to remain safe, productive, substance-free employees for the firm orcompany.
**Recommendations**

 **4.1**      Information should be made available to employers by the EEOC and the DOJon the economic benefits derived from establishing EAPs or similar programs.

**4.2**      Congress should provide appropriate tax incentives for the establishmentof EAPs and similar programs within private industry.

**4.3**      The EEOC should form a task force, which includes stakeholders, todevelop a �Handbook of Best Practices� that would illustrate successfulapproaches that employers in various industries have taken to comply with ADAprovisions pertaining to substance abuse.

**Findings**
-  The ADA, court decisions, and EEOC�s interpretiveguidelines have made it clear that:
An employer may prohibit the illegal use of drugs and theuse of alcohol at the workplace.It is not a violation of the ADA for an employer to givetests for the illegal use of drugs.An employer may discharge or deny employment to persons whocurrently engage in the illegal use of drugs.Employers may require employees who use drugs or alcohol tomeet the same standards of performance and conduct that are set for otheremployees�even when the unsatisfactory performance or behavior is related todrug use or alcoholism.Employees may be required to follow the Drug-Free WorkplaceAct of 1988 and rules set by federal agencies pertaining to drug and alcohol usein the workplace.
-  Some drug and alcohol policies may have the effect ofdeterring individuals from seeking treatment because they drive the problem�underground� as the employee does everything within his or her power tohide a substance abuse problem from an employer.
**Recommendation**

**4.4**      The EEOC should encourage employers to develop EAPs that provideincentives to employees to seek treatment for substance abuse problems.

**Findings**
-  Employers and courts struggle with ADA�s definition of�current� drug user, which is an important issue because �current� usersare expressly excluded from ADA protection.The EEOC�s Interpretive Guidance and discussion in itsTechnical Assistance Manual require a case-by-case analysis of �current�use. While helpful, the material does not set forth any definitive standards forwhich an employer can make this interpretation.
**Recommendation**

**4.5**      The EEOC, after consulting with stakeholders, should offer specific anddetailed guidance in defining what is a �current� drug user.

**Findings**
-  The EEOC makes it clear in its Technical Assistance Manualthat an applicant or employee who tests positive for an illegal drug cannotimmediately enter a drug rehabilitation program to avoid the possibility ofdiscipline or termination, claiming that he or she is no longer using drugsillegally.Despite the clear language of the Technical AssistanceManual, some employees who test positive for illegal drugs still attempt toavail themselves of ADA protection. This can create �something of adisincentive to employers to offer rehabilitation and other services toemployees before addressing any substantive performance problems.�There is no definitive answer as to whether the employermust provide a leave of absence so the applicant or employee can obtain medicaltreatment for alcohol abuse. At least one federal district court has ruled thatthe employer must provide such a leave of absence as an accommodation under theADA.
**Recommendation**

**4.6**      The EEOC, with input from stakeholders, should provide additionalguidance on whether employers need to provide leaves of absences for drug oralcohol abuse.

**Findings**
-  ** **In *EEOC**v.**Exxon Corporation* the court allowedthe company, in an across-the-board fashion, to refuse employment to individualsfor their past use of drugs and/or alcohol without requiring that theindividuals posed a �direct threat.�The ruling in *Exxon*allows employers to circumvent the EEOC�s requirement of an individualizedassessment in direct threat situations by arguing that individualized analysisis impossible or impractical.*Exxon* now allowsemployers to designate jobs as �safety sensitive,� potentially eliminatingentire classes of individuals with disabilities from consideration.
**Recommendations**

**4.7**      The EEOC should continue to aggressively support its current regulations,which require the determination that an individual poses a direct threat to acompany or to himself be based on an individualizedassessment of the individual�s present ability to safely perform theessential functions of the job.

**4.8**      The EEOC should provide additional guidance in categorizing a job as�safety sensitive.�

**Chapter 5: PsychiatricDisabilities and the ADA**

*Title I: Employment of Individuals with PsychiatricDisabilities*

**Findings**
-  The ADA initially focused on accommodating individuals withphysical disabilities; individuals with psychiatric disabilities were largelyignored until discrimination charges based on mental impairments became thelargest source of ADA charges filed with the EEOC.At the time of the Commission�s ADA hearing, thePsychiatric Enforcement Guidance had been recently issued and employersexpressed frustration because the EEOC did not conduct formal notice and commentrulemaking on this guidance. These concerns were unfounded; in fact, employerswere subject to almost similar disability requirements under the 1973Rehabilitation Act.The EEOC uses notice and comment rulemaking to issuesubstantive regulations. Before issuing interpretive policy guidance, itconsiders stakeholder opinions obtained in various ways, including interactions,letters, and phone calls from advocates and advocacy groups.Although the EEOC is not required to conduct notice andcomment rulemaking for interpretive policy guidance, its lack of formal processgives the appearance that stakeholders� opinions are not considered.EEOC�s Psychiatric Enforcement Guidance provides usefulguidance and examples of how the ADA should work for employers confrontingemployment-related issues involving individuals with psychiatric disabilities.The Psychiatric Enforcement Guidance�s broad definitionof mental impairment, referencing the DSM-IV listing of psychiatric disorders asrelevant in identifying mental impairments, is consistent with the intention ofCongress to cover a wide spectrum of disabilities.
**Recommendations**

**5.1**      The EEOC should be given additional funding to provide technicalassistance for employers to comply with the Psychiatric Enforcement Guidance.Education and training for employers should be provided by the EEOC.

**5.2**      The EEOC needs to develop a process for stakeholders to raise concernsand to participate in policy development before the issuing of policy guidance.The EEOC should consider circulating proposed policies, including publication onthe Internet, to invite comments from stakeholders.

*Title II: Public Entities *

*PsychiatricDisabilities and the Most Integrated Settings Standard in General*

**Findings**
-  Title II of the ADA was broadly written with the goal ofmaking public entities, namely state and local agencies, reconsider theirtreatment of persons with mental disabilities.This goal of the ADA with respect to individuals withmental disabilities is best summarized by DOJ regulations mandating that publicentities administer services, programs, and activities that place individualswith mental disabilities in the most integrated settings appropriate for theirneeds.DOJ�s regulations were validated by the Supreme Court in *Olmstead*,which established standards by which public entities must provide for theintegration of individuals with mental disabilities into community-basedsettings.State and local agencies after *Olmstead*expressed anintent to work toward the integration of individuals with mental disabilitiesinto society. Generally, state and local governments have not committed thepersonnel resources or the funds necessary to integrate individuals with mentaldisabilities or multiple disabilities, which include mental disabilities, intosociety in a manner that is truly meaningful and productive.While the move to an integrated setting is an importantgoal, there remain many instances of neglect and abuse in community-based grouphomes.
**Recommendations**

**5.3**      The DOJ, the SSA, and other federal agencies should promulgateregulations that complement each other and in turn force public entities toestablish written Title II policies that have clear, objective, and fairstandards by which individuals with mental disabilities may be integrated intocommunity-based settings that are most appropriate for their needs.

**5.4**      Stakeholders should play a significant role in the development of any andall Title II policies.

**5.5**      The DOJ, the SSA, and other federal agencies� regulations and policiesshould provide funding incentives for states that improve the integration ofindividuals with mental disabilities into community settings.

**5.6**      The DOJ should develop mechanisms for identifying cases for litigationthat involve discrimination against individuals with mental disabilities andthat are aimed at defining and refining the protections of the ADA in this area.

**5.7**      The DOJ should perform compliance monitoring to ensure the propertreatment of individuals with mental disabilities in community-based settingsand institutions.

*PsychiatricDisabilities and the Most Integrated Settings Standard in the Specific: Olmstead*

**Finding**
-  *Olmstead*stillallows the states to reject the placement of individuals with mentaldisabilities in community-based programs or services based on the evaluations oftheir own administrators or based on their views of what would fundamentallyalter the program.
**Recommendation**

**5.8**      State and local agency policies should allow individuals with mentaldisabilities, or those acting as their representatives, to challenge thefindings of state and local administrators with respect to the �mostintegrated setting� for a particular individual. These policies should allowmeaningful consideration of the mental health care providers� opinions as towhether these individuals are best served in a community setting.

*Individuals withMental Disabilities and Law Enforcement*

**Findings**
-  Law enforcement departments across the nation have takenstrides toward improving the services provided to individuals with disabilitieswho are both the victims and suspects of crime.Some law enforcement departments have worked towardcomplying with the ADA with respect to individuals with mental disabilities byproviding training classes and training videotapes.Problems remain in the interactions between police andindividuals with mental disabilities.
**Recommendations**

**5.9**      Congress should provide additional funding to the DOJ to allow it toincrease its technical assistance tools, including offering nationwide trainingof officers in how to interact with individuals with mental disabilities. Thistraining should include how to recognize symptoms and how to approach andinteract with individuals with mental disabilities and should include videos andsimulations developed in conjunction with disability advocacy groups.

**5.10**    Law enforcement departments and local precincts should reach out to localcommunity and advocacy groups and conduct classes with group homes and sheltersso that both the police and individuals with mental disabilities are sensitiveto each others� needs and responsibilities.

**5.11**    Law enforcement departments should have timely access to mental healthexperts who are capable of assisting them in ensuring that victims and suspectswith mental disabilities are adequately assisted.

**5.12**    Law enforcement departments should videotape encounters between policeand individuals with mental disabilities when these individuals� rights are injeopardy. For example, when individuals with mental disabilities are detained orquestioned, the police must ensure that these individuals understand theimplications of any consent. 

*Title III: Public Accommodations*

**Findings**
-  The DOJ has made almost no use of its authority to issuesubregulatory guidance under the ADA.Insurance plans and/or employers generally provide limitedlong-term benefit coverage for individuals with mental disabilities whileproviding lifetime coverage for individuals with physical disabilities.
**Recommendation**

**5.13**    The EEOC and the DOJ should issue subregulatory guidance that providesthat differential treatment with regard to insurance benefits for individualswith mental disabilities is discriminatory and prohibited by the ADA. Thisshould apply to life insurance, accident insurance, disability insurance, healthinsurance, and other types of insurance that are subject to coverage under theADA.

**Finding**
-  Professional licensing boardscontinue to ask about the mental health background of persons seeking admissionon the basis that they have the legitimate purpose of protecting thepublic and the professions.
**Recommendation**

**5.14    **The DOJ should issue subregulatory guidance providing a standard forlicensing boards� inquiries into mental health backgrounds of applicants. Theguidance should make clear that the focus of the inquiry is on problematicbehavior in areas of an applicant�s life, which are inconsistent with theduties of the licensee.