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

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**Chapter 2**

**The Effects of theADA**

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

The mission of the ADA is to �assure equality ofopportunity, full participation, independent living, and economicself-sufficiency to persons with disabilities.�[3]While the ADA has spawned litigation and evoked heated discussions, very littlesystematic research has been done on the impact the ADA has upon those it wasintended to help.[4]

In this chapter, the Commission explores the practicaleffects of the ADA. By understanding and addressing the issues surrounding theactual effects of the ADA, policymakers, legislatures, and private organizationswill be better able to embrace the ADA and strive to eliminate discriminationagainst people with disabilities. To achieve this objective, the Commissionaddresses the effects of the ADA on people with disabilities, how businesses andemployers have implemented and complied with the demands of the ADA, therelation between federal disability benefits programs and the ADA, and thelegislative and executive changes it generated.

**Effectson Individuals with Disabilities**

**Overall Impact of the ADA**

> 
*One of the areas ofimprovements were access to buildings, greater inclusion of people withdisabilities in the community, increased public sensitivity and awareness,public respect and acceptance.*[5]* *

People with disabilities agree that life has improved sincethe passage of the ADA.[6]The United Cerebral Palsy Association in a 1996 poll of persons withdisabilities, their friends, and family members, found that the ADA had made agreat 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 lesschange.[9]

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

**EmploymentOpportunities**

In passing the ADA, Congress intended to eliminatediscrimination in the workplace and create more employment opportunities forindividuals with disabilities.[12] According to the mostrecent U.S. Census Bureau statistics, 25.4 percent of people with a �workdisability�[13]between the ages of 16 and 74 years are employed and 22.7 percent are employedfull 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 ofindividuals with disabilities of working age (18�64 years old) worked full orpart time compared with 79 percent of working-age people without disabilities.[17]This survey also reported that 72 percent of the unemployed individuals withdisabilities of working age stated they would prefer to work.[18]The Harris Poll found that the proportion of employed working-age adults withdisabilities had declined since 1986, when 34 percent of people withdisabilities were working.[19]

At the Commission�s ADA hearing, Mark Weber, professor oflaw at DePaul University in Chicago, pointed out that the employment rate forpeople 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 hamperedemployment opportunities for many people.[22]

Addressing the effects of the ADA on the employment ofpeople with disabilities, John Bound, professor of economics at the Universityof Michigan, testified that while it is natural to look at aggregate statisticsto determine the effects of the ADA on the employment rate, it is a dangerousexercise given that there are many other reasons contributing to the employmentrate.[23]Dr. Bound believes that even though the decline in the employment rate ofindividuals 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 statisticsreflect the effects of the ADA.[24]Dr. Bound opined that the decline in the employment rate could be correlated tothe growth of disability benefits programs in the 1990s.[25]He based this opinion on the fact that historical survey data indicated thatwhen Supplemental Security Income (SSI) and Social Security Disability Insurance(SSDI) expanded during the 1970s, the employment rate of people withdisabilities dropped and it tended to stabilize when these programs were notbeing expanded.[26] The employment ratedeclined again when SSI and SSDI started to expand in the 1990s.[27]In other words, when greater benefits were provided, the aggregate statisticsshowed more people left the work force and joined the SSI/SSDI rolls.

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

A study of Manpower, Inc., provides additional proof ofsuccessful job placement of individuals with disabilities. Peter David Blanck,professor of law at the University of Iowa School of Law, conducted a case studyof Manpower, Inc., one of the largest temporary employment services companies inthe United States.[33]Testifying on behalf of Dr. Blanck, Michael Morris, said Manpower had been verysuccessful in placing people with disabilities.[34]The study examined the employment opportunities available to individuals withphysical and mental disabilities.[35]It explored �the importance of hiring and job-training opportunities asstrategies that provide a bridge to full-time employment for qualified personswith 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 employedwithin 10 days of applying to Manpower.[38]Sixty percent of the individuals with disabilities moved from temporarypositions to full-time employment.[39]Ninety percent of the people studied were placed in a job or industry consistentwith their skills and interests.[40]Dr. Blank stressed that �these findings suggest important implications forpolicymakers, employers, health professionals, and others in expandingemployment opportunities for qualified individuals with disabilities in waysthat are consistent with the goals of the ADA.�[41]

While the ADA has no doubt increased employmentopportunities for people with disabilities and changed the public�s perceptionof them, some believe more must be done. Mr. Weber believes discriminationpersists against people with disabilities and that it is demonstrated by bothstatistical and anecdotal information.[42]He testified at the Commission�s ADA hearing:

> 
It isn�t in any way a condemnation of the act. I thinkthe act has been highly effective in voluntary compliance, and there have beeninteresting and good court successes. The fact is, however, that employmentdecisions take place behind closed doors. If there is subtle or if there�sunconscious discrimination or stereotyping going on, a person doesn�t knowabout that, and the act isn�t very good at being able to ferret that out.[43]

Mr. Weber went on to explain that people with disabilitiesare less competitive due to their disabilities, which limit activities they cando and put them at an economic disadvantage.[44]He also believes that the ADA�s protection for individuals with disabilitiesis minimally effective and that it tends to favor people at the margins of theability spectrum�those who can be made more competitive with reasonableaccommodation 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 beenforced, strengthened, expanded in scope, and supplemented with a system of jobset-asides for people with severe disabilities.[47]

**PublicAccommodations and Public Services**

> 
*Years ago, my adultson, who must be fed and who is in a chair, and I were excluded from movies andasked to leave restaurants. Now people accept our presence in all environments.*[48]

Most people with disabilities agree that access to publicaccommodations and public services has improved for people with disabilitiessince the ADA.[49] Seventy-six percent ofthose polled by the United Cerebral Palsy Association stated the ADA had broughtthe greatest change in access to public accommodations.[50]Eighty-eight percent of the respondents said local businesses were moreaccessible, and 80 percent thought government buildings and other publicfacilities (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 topublic facilities had improved over the past 10 years.[52]

**Transportation**

> 
*Public transportationshould be accessible to all of the public. We all benefit from accommodationsfor some.*[53]

Certainly, making public transportation accessible to allis 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 transportationprovided by public entities, and Title III is applicable to publictransportation provided by private entities.[56]Under these provisions, both public and private entities providing publictransportation are mandated to make transportation �readily accessible andusable� to individuals with disabilities.[57]

According to the United Cerebral Palsy Association�s 1996survey, 45 percent of respondents said more people with disabilities were usingpublic transportation.[58]The survey reported that 34 percent of the people surveyed believed that accessto transportation had improved since the ADA.[59]The survey found, however, that 32 percent of the individuals polled felt thataccess to transportation was an area where they noticed the least change.[60]Ms. Weiss reiterated at the Commission�s ADA hearing that along withemployment accommodations, transportation is the area of least change.[61]This transportation problem was also found by the Harris Poll. Thirty percent ofthe individuals with disabilities responding to the Harris Poll believed thatinadequate transportation was a problem, while only 17 percent of individualswithout disabilities considered transportation a problem.[62]The Harris Poll also found that 60 percent of the people polled reported thataccess to public transportation had improved since 1994.[63]

**Effectson Employers and Businesses**

**EEOC****�s Enforcement of the ADA**

The employment provisions of the ADA became effective andbinding on businesses with over 25 employees in 1992 and for businesses with 15or more employees by 1994.[64]When the ADA was enacted, the Equal Employment Opportunity Commission (EEOC) wasgiven enforcement authority for the employment provisions under Title I.[65]According to Christopher Kuczynski, director of the ADA Policy Division for theEEOC, between 1992 and 1998, the EEOC received more than 91,000 charges allegingdiscrimination based on disability.[66]The EEOC successfully resolved over 11,000 of these ADA charges, resulting inmore 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 havebeen resolved as of June 30, 1998.[68]He added that �when [EEOC] decides to bring litigation under the ADA, the EEOCis overwhelmingly successful.�[69]In addition, he pointed out that as a result of many of the discriminationcases, employers have changed their policies, resulting in increased access forpeople with disabilities.[70]

There are some criticisms that EEOC�s enforcement of theADA has fallen short of the statute�s intent to increase hiring of individualswith disabilities.[71] As Mr. Kuczynskiacknowledged at the Commission�s ADA hearing, more than 52 percent ofdiscrimination charges the EEOC received under the ADA were termination chargesand hiring charges comprised only 10 percent.[72]Thus, the fact that there are more termination charges than hiring charges hasled some critics to argue that the EEOC�s enforcement of the ADA isinadequate. However, Mr. Kuczynski does not believe that these statistics onhiring charges and termination charges demonstrate that the ADA�s intendedpurpose is not being enforced.[73] He argued, �There�s anumber of reasons under all the statutes why hiring claims are often difficultto bring and to prove, and it�s not surprising that the numbers might belower.�[74] Mr. Kuczynski explainedthat to the extent the percentage of charges alleging unlawful termination issomewhat higher under the ADA than under the other laws the EEOC enforces, thatdifference may be attributed in part to individuals who develop disabilitieswhile working.[75]He believes people with disabilities or people who develop a disability on thejob 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 keeppeople working rather than receiving benefits. It doesn�t necessarily mean . .. that the cases are less in the spirit of what the ADA intended simply becausethey involve discharge.�[77]

**Coststo Businesses for Complying with the ADA**

> 
*The Administrationand the Congress have carefully crafted the ADA to give the business communitythe flexibility to meet the requirement of the Act without incurring unduecosts.*[78]

Under Title I of the ADA, all covered employers aremandated to provide reasonable accommodation for employees with disabilities tothe extent that it does not cause undue hardship.[79]Critics of the ADA argue the ADA has placed a financial burden on businesses byforcing them to comply with its mandate.[80]According to Ann Reesman, general counsel of the Equal Employment AdvisoryCouncil (EEAC),[81] some employers are doingeverything 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 establishingreasonable 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 fuelingtechnology and empowering people who didn�t otherwise feel that they couldcome 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 employersare firmly committed to nondiscrimination and equal employment opportunity�theprinciples underlying the ADA.[86]Many of these companies are federal government contractors who have been subjectto Section 503 of the Rehabilitation Act.[87]Therefore, these companies already had considerable experience in providingequal employment opportunities for individuals with disabilities when the ADAwas passed.[88] Ms. Reesman stated:

> 
The ADA has heightened awareness among companies that werenot already familiar with the tandem concepts of nondiscrimination andreasonable accommodation and among individuals with disabilities who might nototherwise have had the confidence to try to compete for a job with a largecompany. So we believe that the ADA had opened up opportunities in that way.[89]

Ms. Reesman, however, maintained that while many ofEEAC�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 physicaladaptation, this does not mean that they are free.[92]She explained that some of the accommodations are difficult to quantify, such asa change of work schedule, job restructuring, restructuring a work team, andproviding extra supervision.[93]Ms. Reesman testified that an average large corporation has no problem makingreasonable accommodations and is willing to absorb some of those expenditures asa part of doing business.[94]

Many proponents of the ADA maintain that most jobaccommodations are inexpensive. Dr. Blanck believes that it is more expensive toterminate a person with a disability than to accommodate him or her.[95]According to John Lancaster, executive director of the President�s Committeeon Employment of People with Disabilities, the average cost of an accommodationin the 15 years of running the Committee�s Job Accommodation Network (JAN) hasbeen $200.[96]

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

> 
The vast majority of accommodations are extraordinarilycheap . . . and . . . there are significant economic benefits, not only puttingpeople back to work who would otherwise be on workers� compensation or onother benefits programs, but also simply better ways of doing the job that havebeen developed because of reasonable accommodation.[102]

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

**Litigation Costs and the ADA**

At the time the ADA was passed, some critics argued thatthe ambiguity and vagueness of its terms would cause overwhelming compliance andlitigation costs, and that this would be especially harmful to small businesses.[104] They believed that thecosts of defending a lawsuit could force small businesses into bankruptcy.[105] The proponents of theADA, however, argued that under the Rehabilitation Act, the predecessor to theADA, only 265 lawsuits were filed between 1973 and 1990.[106]This means that in the 17 years preceding the ADA�s enactment, there wererelatively 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 hearingcontended the ADA has spawned costly litigation. Christopher Bell, a managingpartner of the Minneapolis office of Jackson, Lewis, Schnitzler & Krupman,explained that �the experience of many employers, unfortunately, is as therecipient 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 withdisabilities.[109]He expressed concern, however, about substantial litigation costs to employersresulting from the act, noting that while employers win over 92 percent of theADA 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 beendeveloped, to �define some of these parameters to better effectuate thepurpose.�[112] Mr. Bell expressed thatthe volume and nature of litigation under the ADA is different from otherfederal equal employment statutes.[113]Before the ADA, he said, federal employment policy mandated that employers couldnot make distinctions based on a protected characteristic and that they wererequired to treat everyone the same.[114]The ADA, however, requires employers to hire people based on ability and notbased on disability, to treat similarly situated people alike, and to treat some�qualified� individuals with disabilities differently if necessary toprovide equal employment opportunity.[115]In his opinion, the ADA requires differential treatment, creating morelitigation and making it more difficult to litigate than other employment laws.[116]

Ms. Reesman agreed that litigation under the ADA is costlyto employers.[117] She said courts dismissmany ADA employment cases because they do not meet the threshold requirements.[118] Further, because the ADAmandates reasonable accommodations to the extent that there is no undue hardshipor direct threat to the employer, many cases are dismissed when the plaintifffalls within the definition of an individual with a disability but theaccommodation 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 ofemployers.[120] Regardless of theoutcome, employers bear the costs of defending these lawsuits.[121]It could cost an employer $50,000 to $100,000 in attorneys� fees to have thecourt dismiss a claim, Ms. Reesman noted.[122]

In response toarguments that there is too much litigation under the ADA, John Lancaster,executive director of the President�s Committee on Employment of People withDisabilities, argued that the ADA requires lawyers, courts, and employers totreat 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 theyare discriminated against because of stereotypes and misconceptions about themas a group.[124]�If you don�t have a case-by-case basis, you have a real problem, andpossibly, reinforce stereotypes and misconceptions. I think the beauty of thelaw is it forces a case-by-case, individual approach,� he said.[125]While Mr.Lancasteracknowledged that there are some burdens to employers in terms of litigation, hebelieves that �things will shake out� over time.[126]He further commented that the courts and people are doing a good job in makingit work.[127]

**EFFECTSOF FEDERAL DISABILITY BENEFITS PROGRAMS**

> 
*Public policy mostoften creates a path to premature retirement for people with disabilities, notone to rehabilitation and work.*[128]

A disability policy that expects people with disabilitiesto work cannot stop with the ADA as the primary mechanism for ensuring thisoutcome. Other areas of disability policy need to be reformed to effect theADA�s mandate of integrating people with disabilities into mainstream life.The interplay between the ADA and federal disability benefitsprograms�administered under Titles II and XVI of the Social SecurityAct�greatly affects the employment of individuals with disabilities. Thisinterplay has prompted executive and legislative action to create moreemployment opportunities for individuals with disabilities.

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

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

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

**Cash Benefits fromFederal Programs and Their Impact**

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

***Social Security Disability Insurance (SSDI)***

Thecollection of programs, known generically as SSDI, comprises several types ofdisability benefits. The Social Security Act authorizes disability insurancebenefit payments to disabled or blind individuals who have worked and paidFederal Insurance Contributions Act (FICA) Social Security tax for a sufficientperiod to obtain �insured� status. It also provides disability benefits foradult disabled children of insured workers who have died, retired, or arereceiving disability benefits, and for disabled widows and widowers of insuredworkers.[146] Although there arevariations among the programs, they all require that the individual be (1)medically disabled; and (2) not working, or working but earning less than thesubstantial gainful activity (SGA) level at the time disability entitlement canbegin.[147] As of July 1, 1999, theSGA amount for persons with disabilities was increased from $500 to $700 permonth.[148]This new amount means that if an applicant for disability benefits has anaverage 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 determiningdisability, but it also determines the length of entitlement.[149]The SSA reviews disability cases periodically to determine whether abeneficiary�s condition has medically improved and, if so, whether he or shecan perform SGA.[150]Entitlement ceases when the SSA finds that the beneficiary�s impairment hasimproved and is no longer disabling. It may also cease after a time if theindividual returns to work at the SGA level. The SSA, however, provides a numberof �incentives� for returning to work during which the individual may retainentitlement, as described later in this report.[151]

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

***Supplemental Security Income(SSI)***

TitleXVI of the Social Security Act, Supplemental Social Security, was enacted in1972 and went into effect in 1974. The SSI program replaced state-run welfareprograms and provides cash benefits to individuals with disabilities who havelimited means.[159]To be eligible for SSI, individuals must be at least 65 years old, blind, ordisabled.[160] Although the eligibilityrequirements are similar for both SSI and SSDI, some applicants are not eligiblefor SSDI because they have not worked and contributed to the Social SecurityTrust Fund for a sufficient period of time. SGA is also used as a factor todetermine eligibility for SSI benefits, but unlike SSDI, it is not used indetermining the continuation of benefits.[161]Social Security Income eligibility continues until a beneficiary improvesmedically 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 aMedicaid application, making the applicant immediately eligible for Medicaidbenefits.[164]

Social Security Income payment amounts are based on theamount of other income received, living arrangement, and the state in which theapplicant resides.[165]The basic monthly payment, known as the Federal Benefit Rate (FBR), is adjustedeach year to account for cost-of-living increases.[166]The FBRs for 2000 are $512 per month for an eligible individual and $769 permonth 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, thevast majority of people stay there for quite some time.�[168]In fact, most people with disabilities who become Social Security beneficiariesremain on the rolls for their entire lives.[169]This dependency on Social Security benefits programs can, in turn, have adetrimental effect on the employment rate of individuals with disabilities.[170]This effect illustrates this country�s longstanding reliance on publicassistance to aid individuals with disabilities rather than on programs thatwill increase their independence and integration into the work force.

**Growth Trends ofCash Benefits**

Historically, the employment rates of the persons withdisabilities correlate with the growth rate of SSI and SSDI.[171]For example, the employment rates of persons with disabilities dropped when SSIand SSDI were expanding during the 1970s, were relatively stable or rising whenSSDI and SSI were not expanding during the 1980s, and then began to fall againwhen 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 numberone reason that drives applications to go up or down for Social Security and SSIbenefits is the state of the economy . . . It�s a major factor, and it�s onethat can, in fact, be correlated with unemployment statistics,� Mr. Nibalisaid.[174] He underscored, however,that he does not believe these federal disability programs attract people awayfrom the labor market.[175]Based on a study by the National Academy of Social Insurance, �monetaryaspects of the benefits weren�t real strong drivers for people either gettingon or staying on these rolls . . . [T]he medical benefits are largely whatdrives the interest of folks.�[176]

The younger an individual is who comes on the rolls, thelonger he or she is likely to stay on the rolls.[177]Beginning in the 1980s, there has been a rapid growth in cases involving youngerbeneficiaries 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 increasethat far exceeded that of younger persons in other countries.[179]Moreover, between 1990 and 1994, their population shot up 65 percent, while theoverall beneficiary population increased by 44 percent.[180]

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

This growth is unprecedented in the history of the benefitssystem and is counter to the goal of integrating people with disabilities intomainstream 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 moregeneral income maintenance program.[188]This is neither good social policy nor good for the children and young adultswho are coming onto these programs.[189]It is particularly disturbing in light of the trend to remain on the disabilityrolls once benefits begin. On average, a 9-year-old SSI beneficiary will stay onthe rolls for about 27 years.[190]The number of applications for SSDI and SSI, however, is declining. Beginning in1994, 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 pasteight years, which creates greater employment opportunities. With the enactmentof key legislation that will expand health care benefits and provide greaterwork incentives to working people with disabilities, these numbers may declineeven further. While the Social Security system is based on the notion that aperson can be determined �too disabled to work,� evolution in knowledge,policy, and practice has demonstrated that individuals with disabilities canwork if they have access to appropriate support services, accommodations, andhealth care.[195] Furthermore, theaforementioned policy changes demonstrate that the ADA is not at the root of thehigh unemployment rate of individuals with disabilities. Other factors, such asthe state of the economy and changes in the law, contribute to the dearth ofindividuals with disabilities in the work force.

**Health Care andHealth Insurance Benefits**

People with disabilities have increasingly identified thelack of access to adequate health care and health insurance as a major obstacleto employment and independent living.[196]�The original ADA . . . would have gone a long way to dealing with the majorobstacle for many disabled people, and that is the inability to get health carecoverage at any cost.�[197]Insurance companies generally regard people as high risk, in terms of healthcare costs, when they become disabled or have a family history of disability.[198]Few private health insurance plans have adequate coverage, due to pre-existingcondition exclusions, minimal benefit packages, and benefit caps.[199]Furthermore, private health insurance plans rarely provide for the long-termservices 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 needsthrough private insurance.[201]

As a result, people with disabilities are less likely tohave private health insurance coverage and more likely to have governmentcoverage 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 hadonly government coverage.[204]The effect of a disability on the likelihood of having private coverage was moremarked among those with severe disabilities; only 43.7 percent of people withsevere disabilities aged 22�64 had private coverage while 39.6 percent hadonly government coverage.[205]

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

Title XIX of the Social Security Act is a program thatprovides medical assistance for certain individuals and families with lowincomes and resources.[214]This program, known as Medicaid, became law in 1965 as a jointly fundedcooperative venture between the federal and state governments to assist statesin the provision of adequate medical care to eligible needy persons regardlessof age.[215] It provides twoessential forms of assistance to individuals with disabilities: prescriptiondrugs and the services of attendants who assist them with personal tasks.[216] Medicaid is virtuallythe 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 qualifyfor Medicaid.[219]

There has been a significant expansion of Medicaid andMedicare that is due, in part, to escalating restrictions from private insurers.These restrictions have increasingly pushed high-risk, high-utilization peoplewith disabilities into public sector programs.[220]Those who are working part time are at an even greater risk of being uninsuredbecause they are likely to be ineligible both for an employer�s group coverageand for public coverage, which is generally available only to those who aredetermined by the SSA to be �too disabled to work.�[221]While public health care and health insurance are helpful, they are notcure-alls. Reimbursement for long-term services and supports is generallyunavailable to those who are working.[222]The inability to obtain private health insurance, coupled with work restrictionson benefits, is discouraging to individuals with disabilities and serves as adisincentive to work.[223]Ultimately, these factors depress the employment rate of people withdisabilities.

**SSA Work Incentives**

The SSA reports that about 7,000 SSDI beneficiaries leavethe rolls each year due to work activity.[224]Approximately 60,000 disabled and blind SSI recipients are working and no longerreceiving benefits, and that number has increased by approximately 3,000 to5,000 annually in recent years.[225]It is estimated that an additional 4,800 SSDI and 3,000 SSI beneficiaries wouldleave 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 beneficiarieswould seek work. Work incentives are imperative to meeting the ADA�s objectiveto integrate individuals with disabilities into community life, particularlyinto the employment arena.

Before the enactment of the ADA, there were a number ofwork incentive initiatives included in the Social Security disability benefitsprogram to encourage beneficiaries with disabilities to try to work. Under theSSDI program, there are several work incentives for persons with disabilities.The trial work period (TWP) allows SSDI beneficiaries to test their ability towork 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 continuedMedicare coverage after the trial work period, even though cash benefits maycease.[229] There is a Medicarebuy-in option for SSDI beneficiaries whose premium-free Medicare coverage endeddue to work. These benefits apply to those beneficiaries under 65 years of agewith a disabling impairment.[230]After a successful trial work period, SSA also provides an extended period ofeligibility (EPE), which provides a consecutive 36-month period during whichcash benefits will be reinstated for any month in which a beneficiary with adisability does not work at the SGA level, without the need to file a newapplication for disability benefits.[231]Although these benefits are time limited, they do provide a beneficiary someopportunity to work without losing essential cash and insurance benefits.

The SSI disability program also provides work incentivesfor persons with disabilities. SSI beneficiaries with disabilities can receiveSSI cash payments even when earned income exceeds the SGA, if the beneficiaryhas been eligible for an SSI payment for at least one month before working atthe 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 samemanner as before they started to work. Moreover, working SSI beneficiaries witha disability are eligible for continued Medicaid coverage when their earningsand income become too high for SSI cash payments.[233]To qualify, the person must have been eligible for an SSI cash payment for atleast one month; still meet the disability requirements for SSI; need Medicaidin order to work; and have gross earned income that is insufficient to replaceSSI, Medicaid, and any publicly funded attendant care.[234]

Pursuant to both programs, the costs of certainimpairment-related items and services the person needs to work are deducted fromgross earnings in determining whether the person�s earnings represent SGA.[235]The value of any subsidies received on the job is also deducted from grossearnings in determining whether the person�s earnings represent SGA.[236]As individuals� gross earnings are decreased, it becomes less likely thattheir income will exceed SGA and that their disability benefits will beterminated. Generally, SSDI and SSI disability benefits are terminated if thebeneficiary�s condition medically improves and the beneficiary is no longerconsidered �disabled.� However, SSDI and SSI disability benefits willcontinue if, at the time the disability medically ceases, the person is activelyparticipating in an approved state or non-state public or private vocationalrehabilitation program, and completion or continuation of the program is likelyto 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 barriersand encourage beneficiaries to work and lead independent lives�two of theprimary objectives of the ADA. For a working beneficiary, however, SSDI cashbenefits 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 ifthe beneficiary�s average monthly earnings do not exceed the SGA of $700. Insum, in the event that a beneficiary earns more than $700 a month, he or she canno longer rely on government assistance to help defray the costs of working witha disability.

Because many people leaving the Social Security disabilityprogram often take minimum-wage jobs, their income from working is notsufficient to cover basic living expenses, particularly disability-relatedexpenses 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 anaverage work week of 40 hours, his or her monthly earnings would beapproximately $824�well over the earnings limit under SSDI. While some workingpeople with disabilities can only work part time, these figures demonstrate howeasy it is to exceed the SGA as a working person with a disability becomes apart of mainstream life. At the same time, once a working beneficiary�s cashbenefits are terminated, he or she is earning only minimum wages. It may bedifficult for some persons with disabilities to live on this small income whileincurring necessarily work-related expenses.

In addition, Kenneth D. Nibali of the Social SecurityAdministration pointed out that �an awful lot of people aren�t even aware of[Social Security work incentive programs] and, quite frankly, some of ouremployees aren�t as good about explaining these things to people as we�dlike them to be.�[241] The rates of SocialSecurity benefit terminations due to beneficiaries returning to work have alwaysbeen modest, but have reached all-time lows.[242]Despite the work incentive programs� shortcomings, Mr. Nibali believes thatthe number of beneficiaries leaving the Social Security disability rolls toreturn to work could increase with the introduction of the Ticket to Work andWork Incentives Improvement Act.

**RecentLegislative and Executive Action Incentifying Work**

**Ticket to Work and Work IncentivesImprovement Act**

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

-  Creating new options and incentives for states to provide aMedicaid �buy-in� option for workers with disabilities.[246]Lengthening from 4 years to 8� years the period for whichSocial Security disability beneficiaries who return to work can continue toreceive reduced-cost Medicare coverage.[247]Providing SSDI and SSI disability beneficiaries with aticket they may use to obtain vocational rehabilitation services, employmentservices, and other support services from an employment network of their choice.[248]Enabling individuals with disabilities to re-establisheligibility for Social Security disability benefits on an expedited basis iftheir attempts to return to work prove to be unsuccessful.[249]
In short, the WIIA is intended to expand the availabilityof health care coverage for working adults.[250]While noting that greater employment opportunities for people with disabilitieshave been �aided by important public policy initiatives such as the Americanswith Disabilities Act,� the WIIA recognizes that �fewer than one-half of onepercent of Social Security Disability Insurance and Supplemental Security Incomebeneficiaries leave the disability roll and return to work.�[251]Senator Jim Jeffords (R-VT), one of the authors of the legislation, said theWIIA 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 withDisabilities, said the WIIA is a �step in the right direction� but that thelegislation 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 WorkIncentives Improvement bill in 1998 �would have gone *one step* toward eradicating the health care obstacle for people withdisabilities.�[254]According to Ms. Bristo, �until the rest of our public policy follows theparadigm shift and begins to believe the same things that the ADA does, that wecan work, should work and we begin to take a part in the public policies thatkeep us from working . . . work doesn�t pay for disabled people.�[255]

**WorkforceInvestment Act of 1998**

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

**Medicaid Buy-InOption**

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

**Health InsurancePortability and Accountability Act of 1996**

The Health Insurance Portability and Accountability Act isdesigned to protect health insurance coverage for workers and their familieswhen they change or lose jobs.[262]To meet this objective, the act�s provisions guarantee that private healthinsurance 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 andbeneficiaries based on health status.[265]Some of the health status-related factors include medical conditions (includingboth physical and mental illnesses), medical history, and genetic information.[266]These provisions are particularly beneficial for individuals with disabilitieswho want to work but who are typically excluded from private health insuranceplans because of their disability. As a result of this legislation, people withdisabilities can choose among an array of insurance providers to ensure thatthey obtain the best coverage for the lowest cost.

**Mental HealthParity Act of 1996**

The Mental Health Parity Act begins the process of ending thelongstanding 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 havinglower lifetime caps for treatment of mental illness compared with treatment forother medical and surgical conditions.[268]Typical caps for mental illness coverage are $50,000 for lifetime and $5,000 forannual, as compared with $1 million for lifetime and no annual cap for otherphysical disorders.[269]The law covers only mental illnesses; it does not cover treatment of substanceabuse 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, morelikely to exceed annual and lifetime benefits.[271]The law expires on September 30, 2001.[272]

**S. 1935**

Senators Tom Harkin (D-IA) and Arlen Specter (R-PA) introduced S. 1935,known as the Medicaid Community Attendant Services and Supports Act, in November1999.[273]The bill would amend Title XIX of the Social Security Act to provide Medicaidcoverage for community attendant services and supports for eligible individualswith disabilities.[274]While Medicaid must provide nursing home services, community-based services arenot always available.[275]Individuals with disabilities, both old and young, have wanted alternatives tonursing homes and other institutions when they need long-term services.[276]This bill will give individuals with disabilities the power to choose where andhow they receive attendant services and supports, and allow them to integratemore easily into mainstream life.

**Prohibition ofDiscrimination Based on Genetic Information**

On February 10, 2000, President Clinton issued an executive orderreinforcing the prohibition of discrimination against federal employees based ongenetic 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 doesnot specifically refer to it.[279]Covered entities that discriminate against individuals on the basis of suchgenetic information are regarding the individuals as having impairments thatsubstantially limit a major life activity.[280]Pursuant to the ADA, �disability� includes �being regarded as having suchan impairment.�[281]

**Presidential Task Force onEmployment of Adults with Disabilities**

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

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

Challenge number one is health care. Too many adults withdisabilities remain on public assistance because it is their only way to accesshealth care. Challenge number two is economic incentives. It is necessary thatadults with disabilities who go to work improve their overall economicsituation. Challenge number three is ensuring support for those adults who wantto work. Supported work, natural supports, personal assistance services, andother accommodations must become the norm for those who need them. Finally,challenge number four is increasing access to education, training, andrehabilitation services.[287]

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

Currently, there are a number of tax incentives availableto help employers cover the cost of accommodations for employees withdisabilities and to make their places of business accessible for employees withdisabilities. John Lancaster of the President�s Committee on Employment ofPeople with Disabilities thinks that true economic incentives need to be inplace for the individual and employer. In his opinion, there has to be realeconomic incentive for the employer to hire people with disabilities thatextends beyond �some Mickey Mouse tax credit that Congress renews every fewyears.�[293] Following is a list of afew significant tax incentives available to employers:
-  **Disabled AccessCredit.**Shortly after the ADA was enacted, the Revenue Reconciliation Act of1990 amended the tax code to provide tax relief to small businesses that incureligible costs when complying with the ADA.[294]Small businesses are eligible if, in the previous year, they earned a maximum of$1 million in revenue or had 30 or fewer full-time employees.[295]The credit is 50 percent of expenditures over $250, not to exceed $10,250, for amaximum benefit of $5,000.[296]**Architectural/TransportationTax Deduction.** Businesses may take an annual deduction for expenses incurredto remove physical, structural, and transportation barriers for persons withdisabilities in the workplace.[297]All businesses are eligible, regardless of size or revenue.[298]Businesses may take a tax deduction of up to $15,000 a year for expensesincurred to remove barriers to persons with disabilities.[299]**Work Opportunity TaxCredit.** This tax credit replaces the Targeted Jobs Tax Credit program, andprovides a tax credit for employers who hire certain targeted low-income groups,including vocational rehabilitation referrals.[300]An employer may take a tax credit of up to 40 percent of the first $6,000, or upto $2,400, in wages paid during the first 12 months for each new hire.[301]This measure is effective from October 1, 1997, through July 1, 2001, and issubject to annual congressional renewal.[302]
On January 13, 1999, President Clinton announced a newproposal that would allow workers with significant disabilities to receive anannual $1,000 tax credit to help cover the formal and informal costs associatedwith employment, such as special transportation and technology.[303]Disability advocates believe that providing economic incentives is an effectivemeans for getting individuals with disabilities to leave the disability rolls togo to work.[304]Like the Work Incentives Improvement Act, this tax credit will ensure thatpeople with disabilities have the tools they need to return to work.[305]Congress recently approved the measure.[306]

** AProposal to Amend the ADA:H.R. 3590**

This bill is intended to amend Title III of the Americanswith Disabilities Act to require, as a precondition to commencing a civil actionregarding a place of public accommodation or a commercial facility, anopportunity 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 upondetecting an ADA violation. The bill�s supporters maintain that there has beena flood of ADA lawsuits that have generated large sums of attorneys� fees,while the victim, or person with a disability, is barred from receiving anydamages.[309]Under Title III of the ADA, plaintiffs who file lawsuits to compel compliancewith ADA access requirements are banned from receiving damage awards when theysue individually.[310]Mark Foley (R-FL), one of the authors of the bill, said that �the ADA is beingused by some attorneys to shake down thousands of businesses from Florida toCalifornia. And they�re doing so at the expense of people withdisabilities.�[311]

There was a public hearing held by the HouseJudiciary Subcommittee on the Constitution on May 18, 2000. Several businessrepresentatives, some with disabilities, and private individuals withdisabilities testified at the hearing. Clint Eastwood also testified, as he wasrecently subject to an ADA lawsuit for an alleged failure to provide wheelchairaccess to certain rooms at his Mission Ranch in Carmel, California. WhileChairman Canady praised the ADA for providing a more accessible environment forpeople with disabilities, he also believed that this absence of a noticeprovision can be exploited and create �ill will between the disabled communityand small property owners who would in good faith bring properties intocompliance with the ADA if only they were alerted to the law�srequirements.�[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. S*ee 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 Re*port    (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.