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The Impact of the Americans with Disabilities Act:
Assessing the Progress Toward Achieving the Goals of the ADA
National Council on Disability
July 26, 2007
National Council on Disability
1313 F Street, NW, Suite 850
Washington, DC 20004
The Impact of the Americans with Disabilities Act:
Assessing the Progress Toward Achieving the Goals of the ADA
This report is also available in alternative formats and
on the award-winning National Council
on Disability (NCD) Web site
(www.ncd.gov).
Publication date: July 26, 2007
202-272-2004 Voice
202-272-2074 TTY
202-272-2022 Fax
The views contained in this report do not necessarily
represent those of the Administration as
this and all NCD documents are not subject to the A-19
executive branch review process.
Letter of
Transmittal
July 26, 2007
The President
The White
House
Washington
,
DC
20500
Dear Mr.
President:
The National Council on
Disability (NCD) is charged with gathering information about the implementation,
effectiveness, and impact of the Americans with Disabilities Act (ADA). In
keeping with this requirement, I submit this new report, entitled The Impact of the Americans with
Disabilities Act: Assessing the Progress Toward Achieving the Goals of the ADA,
which addresses many of the goals of your New Freedom Initiative pertaining
to community integration, participation, and enhancement of the independence of
people with disabilities at home, at work, and throughout the course of their
daily lives.
The purpose of the
ADA
is "to provide a clear and
comprehensive national mandate for the elimination of discrimination against
individuals with disabilities." This report describes a two-year retrospective study and review of the impact the ADA
has had on the lives of Americans with disabilities over the past sixteen years,
with particular focus on the four major goals of the ADA-equality of
opportunity, full participation, independent living, and economic
self-sufficiency. NCD consulted disability experts and
ADA
stakeholders from around the country through interviews, public forums, and
focus groups, and analyzed existing data and information sources to gather
information about the impact of the
ADA
. The findings are encouraging
but far from complete.
The provisions of the
ADA
addressing architectural,
transportation, and communication accessibility have changed the face of
American society in numerous concrete ways, enhancing the independence, full
participation, inclusion, and equality of opportunity for Americans with
disabilities. Americans with disabilities report having greater access to goods
and services from businesses, state and local governments, and their local
communities. People with mobility impairments have experienced substantial
improvements in physical access to transportation, businesses and government
agencies. As workers, people with disabilities are more likely to receive
accommodations and less likely to be terminated due to their disabilities.
However, obtaining employment remains difficult for people with visible and
severe disabilities. Disparities still exist in access to health insurance,
health care, and financial assets for people with disabilities, as compared to
people without disabilities. Access to information, particularly the Internet,
is inconsistent, at best, for people who are visually impaired. Progress toward
the goal of economic self-sufficiency appears to be the goal having the least
success.
The ADA impact report contains
recommendations for addressing the barriers that are preventing full achievement
of the overarching goals of the ADA, and NCD remains committed to working with
the Administration, Congress, and the public to achieve the promise of the ADA
for all Americans-the elimination of disability-based discrimination in all
aspects of society.
Sincerely,
John
R. Vaughn
Chairperson
National Council on Disability
Members and Staff
Members
John R. Vaughn, Chairperson
Patricia Pound, First Vice Chairperson
Glenn Anderson, Ph.D., Second Vice Chairperson
Milton Aponte, J.D.
Victoria Ray Carlson
Chad
Colley
Robert R. Davila, Ph.D.
Graham Hill
Young Woo Kang, Ph.D.
Kathleen Martinez
Lisa Mattheiss
Anne M. Rader
Marco Rodriguez
Cynthia Wainscott
Linda Wetters
Staff
Michael C. Collins, Executive Director
Martin Gould, Ed.D., Director of Research and
Technology
Mark S. Quigley, Director of Communications
Julie Carroll, Senior Attorney Advisor
Joan M. Durocher, Senior Attorney Advisor
Geraldine Drake Hawkins, Ph.D., Senior Program
Analyst
Pamela O'Leary, Sign Language Interpreter
Mark E. Seifarth, Congressional Liaison
Brenda Bratton, Executive Assistant
Stacey S. Brown, Staff Assistant
Carla Nelson, Secretary
Acknowledgments
The National Council on Disability wishes to express
its appreciation to Patricia M. Jackson, Program Manager Lockheed Martin
Services, Inc., Peter Blanck, Ph.D., J.D., Chair, Burton Blatt Institute,
Syracuse
University
, and James Schmeling, J.D., Interim
Co-Director, Law, Health Policy and
Disability
Center
, University of Iowa College of
Law, for conducting the ADA Impact Study and for drafting this report.
Table of Contents
Executive
Summary. 9
Introduction. 19
Summary
of Methodology. 23
Perceptions
of the ADA Overall 25
I.
Equality of Opportunity. 29
A.
Transportation. 29
1.
Public Transportation. 29
a. Trains. 31
i. ADA Requirements. 31
ii.
Relevant Data. 31
(a).
Light Rail and Commuter Rail 32
(b).
Amtrak. 35
b.
Buses. 35
i.
ADA Requirements. 35
ii.
Relevant Data. 36
c.
Paratransit Services. 37
i.
ADA Requirements. 37
ii.
Relevant Data. 37
d.
Input from People with Disabilities. 38
2.
Private Transportation. 39
a.
Private Over-the-Road Bus Service. 39
b.
Taxis. 40
i.
ADA Requirements. 40
ii.
Relevant Data. 40
iii.
Input from People with Disabilities. 41
3.
Recommendations - Transportation. 41
B. Sidewalks and Curb Ramps. 41
1.
Sidewalks. 42
a.
ADA Requirements. 42
b.
Relevant Data. 42
2.
Curb Ramps. 42
a.
ADA Requirements. 42
b.
Relevant Data. 43
c.
Input from People with Disabilities. 44
3.
Recommendations - Sidewalks and Curb Ramps. 44
C.
Places of Public Accommodation. 45
1.
Physical Accessibility for People with Mobility Impairments. 45
a.
ADA Requirements. 45
b.
Relevant Data. 45
c.
Input from People with Disabilities. 49
2.
Access for People with Vision, Hearing, and Speech Disabilities. 52
a.
ADA Requirements. 52
b.
Relevant Data. 52
c.
Input from People with Disabilities. 52
3.
Recommendations - Places of Public Accommodations. 53
D.
Accessibility of Telecommunications. 54
1.
ADA Requirements. 54
2.
Relevant Data. 55
3.
Input from People with Disabilities. 57
4.
Recommendations - Accessibility of Telecommunications. 58
II.
Full Participation. 59
A.
State and Local Government Services. 59
1.
ADA Requirements. 59
2.
Relevant Data. 60
3.
Input from People with Disabilities. 63
4.
Recommendations - State and Local Government Services. 64
B.
Voting. 65
1.
ADA Requirements. 65
2.
Relevant Data. 66
3.
Input from People with Disabilities. 70
C.
Other Forms of Civic Participation. 70
D.
Recommendations - Full Participation. 71
III.
Independent Living. 73
A.
Community Integration. 73
1.
ADA Requirements. 73
2.
Relevant Data. 74
a.
Federal Olmstead Initiatives. 74
i.
Department of Health and Human Services (HHS) 74
ii.
Department of Justice (DOJ) 74
iii.
Department of Labor (DOL) 75
b.
State Olmstead Initiatives. 76
3.
Input from People with Disabilities. 80
B.
Recommendations - Independent Living. 82
IV.
Economic Self-Sufficiency. 83
A.
Financial Assets and Insurance. 83
1.
Financial Assets. 83
2.
Health Insurance. 85
B.
Higher Education. 85
1.
ADA Requirements. 85
2.
Relevant Data. 86
3.
Input from People with Disabilities. 88
C.
Employment 89
1.
Hiring. 89
a.
ADA Requirements. 89
b.
Relevant Data. 89
c.
Input from Employers. 92
d.
Input from People with Disabilities. 93
2.
Reasonable Accommodation and Promotion. 95
a.
ADA Requirements. 95
b.
Relevant Data. 95
c.
Input from People with Disabilities and Employers. 99
3.
Lawsuits. 101
D.
Recommendations - Economic Self-Sufficiency. 102
Summary
of Findings. 105
Summary
of Recommendations. 107
Conclusion. 113
Appendix
A: Blue Ribbon Panel 115
Appendix
B: Methodology. 117
Appendix C: Mission of the
National Council on Disability
Endnotes. 125
Executive Summary
Sixteen years after the Americans
with Disabilities Act (ADA) was signed into law on July 26, 1990, by President
George H. W. Bush, the law is having a meaningfully positive impact on the lives
of people with disabilities. Many people with disabilities credit the
ADA
with improving their lives. As
consumers, Americans with disabilities have greater access to goods and services
from businesses, state and local governments, and their local communities.
Service animals for people with vision and other impairments are more accepted
than ever before. In addition, greater availability of relatively inexpensive
assistive technology has helped people with vision and hearing impairments
overcome information and communication barriers to all forms of community
participation. People with mobility impairments have experienced substantial
improvements in physical access to transportation, businesses and government
agencies. As workers, people with disabilities are more likely to receive
accommodations and less likely to be terminated due to their disabilities.
Many people with disabilities, employers, and businesses,
however, still do not understand major provisions of the
ADA
, particularly the employment
provisions. The
ADA
is a civil
rights law-requiring equal opportunity for individuals with disabilities, with
broad coverage and setting clear, consistent, and enforceable standards
prohibiting discrimination on the basis of disability. Title I of the
ADA
prohibits discrimination in
employment. It does not provide for accessible housing, transportation to the
work site, rehabilitation services, job training, job placement, or any form of
affirmative action for people with disabilities. It does not address work
disincentives, such as Social Security rules that make people with disabilities
who work ineligible for Medicaid, the only form of insurance that provides the
kind of services most people with disabilities need to function independently,
nor does it require employers to provide the kind of insurance coverage people
with disabilities need. While the
ADA
requires existing transportation
services to become accessible, it does not provide transportation for people
with disabilities to get to work if they work or live where there is no public
transportation. To determine the impact of Title I, one must look at the degree
to which employment discrimination against individuals with disabilities has
decreased. One cannot measure the success of Title I solely by the employment
rate of people with disabilities unless all other barriers to work are
eliminated.
Many Americans with disabilities remain frustrated that
disability discrimination has not been eliminated, despite
ADA
implementation. People with
disabilities reported the
ADA
has
not been fully enforced; the barriers they face remain primarily attitudinal.
Additionally, there is a growing backlash against disability rights and the
ADA
. The lack of national
consistency of access makes it difficult for people with disabilities to carry
out daily activities, and access to public transportation, particularly in rural
areas, remains a serious problem. Although, once on the job, accommodations are
easier to obtain, people with visible disabilities do not appear to be
significantly more likely to be hired than before the
ADA
, and some argue that they are
having more difficulty getting hired than before.
Regarding the attainment of the four major goals of the
ADA
-equality of opportunity, full
participation, independent living, and economic self-sufficiency-the results are
encouraging but far from complete. By virtue of greater availability of physical
and communications access, accessible transportation, and education and
workplace accommodations, people with disabilities have more opportunities to
pursue their interests than before the ADA and are seizing those opportunities.
Community participation has increased passively, by virtue of greater access,
and actively, through greater efforts by businesses, employers, and governments
to reach people with disabilities and encourage participation. Options for
independent living have improved for people with disabilities since the
ADA
was passed, particularly since
an important Supreme Court decision, Olmstead v.
L.C., which requires community integration. However, outdated
government restrictions, budget priorities, and medical attitudes are slowing
progress. Economic self-sufficiency appears to be the goal having the least
success. While many Americans with disabilities are experiencing improvements in
quality of life, some people with disabilities remain
disenfranchised.
This retrospective study and review provides a snapshot of
the impact the
ADA
has had on the
lives of Americans with disabilities over the past sixteen years. Specifically:
-
Most people with disabilities perceive
improvements in their quality of life and many attribute those improvements to
the
ADA
;
-
A majority of people with disabilities surveyed
by a Harris Poll perceived significant improvements in public facility access
and public attitudes;
-
Public transit systems in the
United States
have made significant progress in becoming more accessible, especially to
wheelchair users. Private transportation companies lag behind. People in rural
areas continue to be underserved by public transportation, and, as a result,
participate less in all aspects of community living;
-
A significant number of curb ramps have been
installed and sidewalks have been made more accessible in some areas, but full
access to public rights-of-way lags behind that of other facilities and there
are no regulations for public rights-of-way access;
-
People with physical disabilities have seen
steady, although inconsistent, progress in access to public accommodations,
including restaurants, theaters, stores, museums, Web sites, and government
services. People with sensory or communication disabilities were less likely to
report experiencing progress in access to public accommodations;
-
The
ADA
has brought about significant
improvements in access to telecommunications. Telephone relay services are being
used to a greater degree, and changes in technology are making usage easier.
However, some businesses are reluctant to use these technologies;
-
The percentage of Americans with disabilities
voting in 2004 increased dramatically from prior years;
-
The education
gap between people with disabilities and people without disabilities is
shrinking, and people with disabilities are attending postsecondary institutions
in greater numbers. Educational supports and services for students with
disabilities now are available at most of the nation's postsecondary
institutions;
-
Many employees with disabilities are experiencing
less discrimination on the job. However, people with visible and severe
disabilities continue to experience discrimination in hiring;
-
There is no clear evidence that Americans with
disabilities are becoming economically self-sufficient;
- There is a surprising absence of ongoing,
systematic data collection about the
ADA
, and the result is
significant knowledge gaps about the impact of the
ADA
.
Based on these findings, this report
recommends:
-
Federal agencies should fund and implement
state-by-state surveys of people with disabilities, based on the N.O.D./Harris
Surveys using statistically significant survey populations and distinguishing
among rural and urban communities, communities of diverse cultures, and high,
middle, and low income communities.
Equality of
Opportunity
-
Transportation
- Congress should expand accessibility requirements
for rail services beyond key stations;
- The
Department of Transportation should conduct extensive training and outreach for
public transit providers regarding maintenance and stop
announcements;
- The
Department of Transportation should work with state and local governments and
taxi providers to develop and publicize effective incentives for private taxi
providers to offer accessible vehicles;
- The
Department of Transportation should conduct extensive training and outreach for
public and private transportation services regarding service animals and
increase high-profile enforcement actions by the Departments of Justice and
Transportation;
- The
Department of Transportation should work with paratransit providers, state and
local governments, transportation experts, and representatives of disability and
aging communities to explore paratransit options such as more subscription
service, more flexible services, and other ideas to close the expectation gap
and increase usability of paratransit for riders with
disabilities;
-
The
Department of Transportation should study and test options for providing
transportation services to people with disabilities in rural
areas.
Equality of
Opportunity
-
Sidewalks and Curb Ramps
-
The Department of Justice should promulgate
ADA
regulations for public
rights-of-way as soon as possible;
-
The Department
of Transportation should increase funding for sidewalk access and curb ramp
installation;
-
The Department of Justice should develop and
disseminate guidelines for the prioritization of curb ramp installations, so the
most needed and useful curb ramps are installed first.
Equality of
Opportunity
- Public
Accommodations
-
The National Institute on Disability and
Rehabilitation Research (NIDRR) should conduct a survey of businesses, perhaps
through the chambers of commerce or small business associations, to determine
the degree to which businesses have instituted readily achievable barrier
removal efforts, and provide guidance to Congress on adequately funding the
Department of Justice to enforce this part of the statute;
-
The Department of Justice, NIDRR, and the
Department of Labor should provide expert, individualized, low-cost technical
assistance and consulting to small businesses. The
ADA
and IT Centers and local offices
of the National Disability Rights Network are possible agencies to carry out
this effort;
-
The Department of Justice should expand its
Project Civic Access to increase enforcement in local areas by reviewing
businesses in identified localities;
-
Congress should require states to submit their
building codes for access certification by the DOJ;
-
The U.S. Access Board and Department of Justice
should continue coordination with model building code agencies;
-
The Department of Justice should increase
enforcement and education regarding how to serve customers with visual and
hearing impairments, particularly as it pertains to Web access and use of TTYs
and relay services;
-
Congress should require Web sites of places of
public accommodations and commercial facilities to comply with federal Web
accessibility standards;
-
The Department of Justice and NIDRR should
develop technical assistance materials regarding what people with disabilities
and businesses should expect of existing buildings of various sizes years after
passage of the
ADA
.
Equality of
Opportunity
-
Accessibility of Telecommunications
-
The Department of Justice should publish
information for businesses about how Telecommunications Relay Services work, how
to use the service, and the legal obligation to use it. The
ADA
and IT Centers could be funded
to provide this information;
-
The Federal Communications Commission should
establish standards to encourage the continued development of Video Relay
Services.
Full Participation - State and Local Government
Services
-
The Department of Justice and other federal
agencies should focus on enforcing the
ADA
obligations of government
agencies;
-
Federal agencies should use initiatives such as
Project Civic Access to increase
ADA
compliance at the state and local levels;
-
The Department of Justice should use targeted,
high-profile litigation on particularly important issues, such as access to
courts, medical care, and education to increase state and local
ADA
compliance.
Full Participation - Voting
-
The Department of Justice should immediately
implement the Help America Vote Act requiring installation of electronic voting
equipment;
-
NIDRR should study the involvement of people with
disabilities in civic opportunities, such as government office;
-
Other non-governmental disability organizations,
such as The National Organization on Disability and the American Association of
People with Disabilities, should encourage state and local governments, as part
of their diversity efforts, to emphasize involvement of the disability community
and provide technical assistance to help government agencies reach out to people
with disabilities.
Community Integration
-
Congress should increase Medicaid support for
community-based treatment settings;
-
Congress should pass
and fully fund the Money Follows the Person Act
[1]
and Medicaid Community-Based Attendant Services and
Supports Act;
[2]
-
Congress should
require states to expeditiously complete effective Olmstead plans,
consistent with HHS guidance;
-
The Department
of Health and Human Services should require states to fund personal care
services when needed to allow individuals with disabilities to remain in their
community;
-
The Departments of Health and Human Services,
Education, Transportation, Housing and Urban Development, Justice, and Labor,
and Equal Employment Opportunity Commission, working with state and local
governments and community agencies should implement local initiatives to extend
the integration mandate to housing, education, transportation, employment, and
other areas affecting people with disabilities;
-
The Department of Justice should increase and
target enforcement of the Civil Rights of Institutionalized Persons Act,
requiring effective deinstitutionalization efforts and publishing creative and
effective programs to provide community-based services;
-
The Department of Labor's program funding home
modifications should be significantly expanded to allow people with disabilities
and the elderly to live in their communities;
-
The Departments of
Health and Human Services, Education, Transportation, Housing and Urban
Development, Justice, and Labor, and Equal Employment Opportunity Commission,
should work with disability communities and others to develop an overall national policy framework for community
integration of people with disabilities;
-
The Department of Health and Human Services
should study systems of long-term care and long-term care insurance to eliminate
unnecessary institutionalization of people with disabilities and aging
people.
Economic Self-Sufficiency
-
The Department of Education should work with
colleges, universities, and public schools to enhance the effectiveness of
supports, such as preparing students to better negotiate their accommodations,
assisting students with coordinating and managing a variety of services from
multiple sources, and facilitating the use of technology in education and
employment;
-
The Department of Education should improve
coordination of services between the educational system and the vocational
rehabilitation system, particularly as regards funding for services and
assistive technology;
-
Disability organizations, and research and policy
centers focused on economic empowerment for people with disabilities should work
with philanthropists and federal and state government agencies to improve
availability of scholarship, tuition waiver, and loan repayment programs for
students and adults with disabilities who wish to pursue higher education;
-
Congress should extend and expand the Mental
Health Parity Act to ensure that people with mental health disabilities are able
to secure treatment;
-
NIDRR should study insurance coverage issues that
prevent people with disabilities from accessing private insurance;
-
The Equal Employment Opportunity Commission, the
Department of Labor, and NIDRR should place immediate priority on increasing the
hiring of people with disabilities.
Sixteen years after the passage of the
ADA
, much has been accomplished.
Yet, more needs to be done as this report demonstrates, especially in the areas
of employment, transportation, health care, and education.
The Americans with Disabilities Act Restoration Act of 2006
was introduced on September 29 to address aspects of the
ADA
narrowed by U.S. Supreme Court
decisions, and which are discussed in this report. The bill would prohibit
discrimination "on the basis of a disability" and is intended to enable
individuals utilizing the
ADA
to focus on the
discrimination they have experienced rather than having to prove they fall
within the intended scope of the
ADA
. Passage of this bill will
promote progress in those areas remaining to be addressed, and promote the
inclusion of people with disabilities into society.
Introduction
To the critics who complain that the
ADA
has not achieved total justice
... I say what about the Bill of Rights and the Ten Commandments? Have they
achieved total justice? The vision of justice is an eternal long march to the
Promised Land of the good life for all.
- Justin
Dart, Jr., "Father of the
ADA
"
[3]
Today, in 2006-
Mary Sims gets on the bus and goes to
work.
John Witherspoon talks on the telephone to a college buddy he hasn't
seen in 20 years.
Lisa Rabinovitz tries out a new restaurant in her
neighborhood.
Jeremy Montauk takes notes during his economics professor's
lecture.
Sylvia Mathias leads a training session on community advocacy.
Billy Wilkinsen takes part in his town's intramural baseball program.
Before the Americans with Disabilities Act of 1990
(
ADA
), Mary Sims, who is blind,
would not have been able to take the bus to work. Her guide dog could not
accompany her unless her state had a disability antidiscrimination law. Without
the telecommunications relay services mandated by the
ADA
, John Witherspoon, who is deaf,
would have difficulty telephoning anyone. Lisa Rabinovitz, a wheelchair user,
rarely would eat out at a new restaurant, concerned that it would not be
physically accessible. Jeremy Montauk, who has a learning disability, likely
would not have received accommodations to attend and succeed in college. Fearing
discrimination, Sylvia Mathias would not have disclosed her disability and
become an advocate for people with mental illnesses in her community. And Billy
Wilkinsen, who has an intellectual disability, may not have been allowed to play
on the town's baseball team.
Prior to the
ADA
,
employment and rehabilitation programs for people with disabilities were modeled
on outmoded and medicalized stereotypes. These long-standing views date back to
the birth of the Civil War pension system, which linked the definition of
disability to an inability to work and established physicians as the medical
gatekeepers of disability benefits.
[4]
The medical model defined
disabilities as individual infirmities that precluded full participation in
employment, and society in general.
[5]
Many individuals were
institutionalized, their housing and treatment determined by doctors,
rehabilitation professionals, psychologists, and social workers. Because the
medical model never questioned the physical and social environment in which
disabled people were forced to function, one designed for individuals without
disabilities, it countenanced their segregation and economic marginalization.
[6]
By contrast, the disability civil rights model that
influenced government policy in the 1970s conceptualized people with
disabilities as a minority group entitled to the same legal protections for
equality that emerged from the struggles of African Americans and women. The
civil rights model focuses on the laws and practices that subordinate disabled
persons and insists that government must secure the equality of disabled persons
by eliminating the legal, physical, economic, and social barriers that preclude
their full involvement in society. Under the civil rights model, disability is
not an individual's infirmity but a social and cultural construct.
[7]
An evolving policy of inclusion fostered
federal and state laws to address issues including voting and air travel
accessibility, access to education and housing, eventually culminating with
passage of the
ADA
in 1990.
[8]
In the ADA Congress expressly recognized the minority status of disabled
persons, finding that:
Historically, society has tended to isolate and
segregate individuals with disabilities, and, despite some improvements, such
forms of discrimination against individuals with disabilities continue to be a
serious and pervasive social problem; ... and that] individuals with
disabilities are a discrete and insular minority who have been faced with
restrictions and limitations, subjected to a history of purposeful unequal
treatment, and relegated to a position of political powerlessness in our society
....
[9]
To redress these wrongs, the
ADA
's drafters delineated "the
Nation's proper goals regarding individuals with disabilities are to assure
equality of opportunity, full participation, independent living, and economic
self-sufficiency for such individuals."
[10]
Sixteen years after passage of the
ADA
, the long march to full equality
is underway. Progress has been made, but work remains in areas such as
employment, transportation, health care, and education, as shown by national
statistics, studies, and comments received from the public during this
study.
NCD conducted this ADA Impact Project to review the existing
information about the impact of the
ADA
, gathering input
from
ADA
stakeholders and assessing the state of research
and knowledge about the impact of the
ADA
, in an attempt to
determine the extent to which the overarching goals of the
ADA
are being met. One of the
important findings is a surprising absence of ongoing, systematic data
collection about the
ADA
from any
source. The result is significant knowledge gaps about many aspects of the
ADA
.
Any study of the impact of the
ADA
must
be undertaken with the recognition that full implementation of the
ADA
is not complete. The ADA calls
for implementation at varying times and degrees, depending on factors such as
when a facility is built or altered, the technical feasibility of certain
accessibility requirements, the nature, size, and resources of covered entities,
and the cost of modifications. For example, when a new facility is built, the
ADA
's accessibility requirements are
triggered. When a public accommodation is undertaking renovations or alterations
of an existing facility, it must, to the "maximum extent feasible," make the
alterations in "such a manner" that the facility is accessible, but only to the
extent that costs are not "disproportionate." The overall accessibility standard
under the ADA does not require total accessibility of all parts of buildings,
nor that of all hotel rooms, parking spaces, bathrooms, stalls, etc., but only a
reasonable number. For existing facilities not undergoing alterations, the
ADA
requires only accessibility
changes that are "readily achievable," defined to mean without much difficulty
or expense. Additionally, transportation facilities are only required to make
"key stations" accessible, and certain transportation providers can take up to
twenty-two years from the date of the enactment of the
ADA
to make their vehicles
accessible. Thus, while progress toward implementation may be studied, the full
impact of the
ADA
can be evaluated
only when the law has been implemented fully and covered entities are in
compliance.
Summary of Methodology
This study gathered and synthesized information on the impact
of the
ADA
sixteen years after its
passage, based on the law's four overarching goals: equality of opportunity;
full participation; independent living; and economic self-sufficiency. NCD
established a Blue Ribbon Panel, chaired by Dr. Peter Blanck (see Appendix A for
list of members and affiliations), which defined each of these goals for
purposes of this study.
To assess each of these core areas, data were collected using
several methods: (i) an environmental scan (reviewing publicly available
documents and documents provided by various key informants), (ii) nine focus
groups and five public forums, (iii) 24 individual interviews, (iv) 112 e-mails
received by NCD as a result of forum publicity, and (v) requests for comments
from 487 local and state organizations.
Project staff also had unique access to, and analyzed the raw
data from, the National Organization on Disability/Harris Surveys of Americans
with Disabilities conducted in 1994, 1998, 2000 and 2004, and the International
Council of Disability/Harris Survey of 1986.
[11]
More detail about the methodology used for this project is
provided in Appendix B.
Data collection on
ADA
compliance efforts was
difficult, as many key elements are not being systematically tracked or
recorded. For example, some requirements of Title I of the
ADA
discourage identification and
tracking of employees and applicants with disabilities. Business groups do not
track the
ADA
compliance efforts of
private businesses. Because many improvements to city sidewalks and curb ramps
are done as part of ongoing street repairs, it is difficult to determine exactly
how many curb ramps are being installed. Records of adoption of, and progress
on, transition plans are de-centralized. Multiple sources of data on various
topics use different standards to define "disability," "accessibility," and
other essential elements. Therefore, one study of the status of people with
disabilities will not be readily comparable to another study, because the people
studied often are defined differently.
The creation of original data was beyond the scope of this
project. Project researchers undertook a comprehensive search and analysis
of existing studies, data compilations, and available information about the
impact of the
ADA
. The project team
also tapped into the collective knowledge about the impact of the
ADA
, drawing from the experiences and expertise of
ADA
stakeholders across the nation.
The findings presented in this report reflect the project team's best efforts to
pull together in one report what is known about the impact of the
ADA
at this time. However, one of
the important findings is that there is a surprising absence of any ongoing,
systematic data collection about the
ADA
from any source,
and the result is significant knowledge gaps about many aspects of the impact of
the
ADA
. This report contains
recommendations to increase the information that is collected and made available
to the public about the
ADA
from
this point forward.
Perceptions of the ADA
Overall
Most people with disabilities who participated in the public
forums, focus groups, and information requests report the
ADA
has had a significant positive
effect on their lives. As one participant wrote:
Have we gotten all the results we want? No. Have we made the
nation entirely accessible and inclusive? No. Do all people with disabilities
have jobs? No. Are all decisions made ones free of bias against persons with
disabilities relative to jobs, public accommodations or public services? No.
But ... more people with disabilities are out there in their
communities, shopping, eating, attending movies, taking public transportation,
going to school and working. People with disabilities are moving from their
homes or institutions into their societies ... no, not at the pace which I and
other advocates would like. Barriers are still many and plentiful from attitudes
to finances to architecture ... but inch by inch they are crumbling.
And perhaps this would have happened without the
ADA
, but I like to think that it is in large measure
because of the
ADA
... because
people are thinking about it, people are talking about it. Disability is out in
the open, something to be discussed, analyzed, considered and factored in. There
aren't many who can profess ignorance of this law and get away with it, even if
they still do try the argument that they don't have to be accessible because 'no
one with a disability comes here anyway' as they stand at the top of their
staircase!
So, I do believe the
ADA
has had and will continue to
have a profound impact on my life and the lives of others with disabilities. I
hope that the next fifteen years see feet of barriers come crashing down instead
of inches ... and that people with disabilities cement their place in history
with this important civil rights law.
[12]
According to a 2000 National Organization on
Disability/Harris Survey of Americans with Disabilities,
[13]
more than 60 percent of people with
disabilities perceived significant improvements in public facility access,
personal quality of life, and public attitudes (see
Table A).
Table A: Percentage of Individuals with Disabilities
Perceiving
Quality of Life Improvements - 2000
The majority of people with
disabilities and people without disabilities, according to the 2004
N.O.D./Harris Survey, have heard of the
ADA
, compared with
31 percent who had heard of Section 504 of the Rehabilitation Act of 1973 in the
1986
International
Center
for the Disabled Poll of
Disabled Americans.
[14]
However, most respondents to the 2004 N.O.D./Harris Survey of
Americans with Disabilities did not credit the
ADA
with achieving these
improvements in their lives. Only 30 percent of poll respondents believed the
ADA
had made their lives better,
while 64 percent felt it had made no difference and 5 percent did not know if
the law had made a difference.
[15]
This contrasts with much higher numbers in 1986 regarding the effect of pre-ADA
laws. At that time, 68 percent of people with disabilities felt the
Rehabilitation Act of 1973, the Individuals with Disabilities Education Act, and
other federal disability-related laws had helped them "a great deal" or
"somewhat" and only 24 percent felt those laws had helped "not too much" or
"hardly at all."
[16]
The current level of perceived impact may reflect the disability community's
higher expectations of the
ADA
,
combined with the significant delays in implementation and challenging
employment figures. Or, it may reflect a new, better status quo. Compared with
1986, younger respondents in 2004 may not have much experience as adults with
the pre-ADA world. Researchers on this project noted that some people with
disabilities confused the requirements of a variety of laws, such as the
Individuals with Disabilities Education Act, the Rehabilitation Act, and the
Social Security, Medicare and Medicaid laws, and sometimes attributed aspects of
the ADA to one of these laws, and vice versa.
I. Equality of Opportunity
In passing the
ADA
,
Congress found that people with disabilities traditionally have been excluded
from, or limited in their ability to access, goods and services in their
communities and historically have been subjected to purposeful unequal
treatment. Equality of opportunity, for purposes of this project, is defined as
the equalization of chances for people with disabilities to have reliable access
to transportation, and goods and services from businesses and
government.
A.
Transportation
1.
Public Transportation
Public
transportation is essential to many people with disabilities. For many people
with disabilities the use of a private automobile is not possible, either
because of their disability or because the cost of modifying a car for
accessible use is prohibitive. Without access to reliable public transportation,
people with disabilities are severely limited in their ability to enjoy social
and economic opportunities, live independently, and participate in their
communities.
Testimony from people with disabilities confirmed
that access to public transportation is a central issue for people with all
kinds of disabilities. Despite the widely reported progress in access to public
transportation, people with hearing impairments report a lack of visual signage
announcing transportation information,
[17]
people with vision impairments report a lack of
verbal announcements,
[18]
people with brain injuries and cognitive
impairments report a lack of clear, accessible information,
[19]
and people with mobility impairments
still encounter a lack of physical accessibility.
[20]
In June of 2005,
the National Council on Disability issued a comprehensive report, The Current State of Transportation for
People with Disabilities in the
United States
.
[21]
In addition to the recommendations to
federal agencies and transit system operators that NCD included in its
transportation report, NCD echoes the sentiments of a frequent traveler with a
disability who spoke at the Los Angeles public forum:
I have traveled 18,000 miles between
Los
Angeles
and
Bakersfield
in an externship, and
without the
ADA
and the Department
of Transportation's provisions, I would not have managed to remain independent
and commute. I've commuted to at least five or six counties on a frequent basis,
and it has really increased my independence. And the access and the paratransit
systems work for me because I am a very informed person. And that's
what [people with disabilities] have to do. Stay informed about the
ADA
and know and exercise your
rights.
[22]
The 2004
N.O.D./Harris Survey found that 31 percent of people with disabilities reported
inadequate access to public transportation and more than half of those people
found it to be a major problem.
[23]
By comparison, the 1986 ICD/Harris Survey
of Disabled Americans found that 49 percent reported that lack of access to
transportation was an important reason that they did not socialize as much as
they wanted.
[24]
Most individuals
submitting comments and testimony indicated that the
ADA
has had a significant positive effect on public
transportation,
[25]
stating, for example, "My quality of life has
been greatly improved since
ADA
.. I am able to travel and use public
transportation with just some or little assistance .. All due to the wonderful
law we call
ADA
."
[26]
Most noted that much remains to be done
and that rural areas lag far behind urban ones.
[27]
One commenter indicated that states in
the South, Northern Midwest, and Central Midwest lag further behind in
ADA
compliance in transportation than Northeastern
and Western states.
[28]
Another suggested that, in some areas,
transportation access has declined since passage of the
ADA
, because pre-existing paratransit services had
larger service areas than are required under the
ADA
.
[29]
Many people with
disabilities, especially those in rural areas, continue not to be served by
local transit systems, either because public transit systems are not available,
or because they are inaccessible.
The Economic
Research Service (ERS) confirms that the lack of public transportation in rural
areas remains a problem for people with disabilities. In its report, Rural Transportation at a Glance, the
ERS reports that in the 1990s public transportation in rural areas increased as
a result of federal funding priorities. However, only 10 percent of federal
transportation funding went to rural areas. The ERS found that public
transportation was available in 60 percent of rural counties nationwide, but
that many of these transportation services offered only limited
service.
[30]
ERS found that, in 2000, 23 percent of
rural public transportation users had disabilities.
[31]
In its 2005
transportation report, NCD found that people with disabilities who live in rural areas are
still severely restricted in their ability to participate in all aspects of
community life, and some people are even forced to live in institutions because
of the lack of transportation to medical appointments.
a. Trains
i. ADA Requirements
The
ADA
requires key light rail and commuter rail
stations to be accessible by July 26, 1993. However, the
ADA
allows the FTA Administrator to grant extensions
to July 26, 2020, for stations requiring extraordinarily expensive structural
modifications.
In addition to
station accessibility, the
ADA
requires new passenger train cars purchased,
leased, or remanufactured after 1990 to be accessible.
[32]
The
ADA
also requires commuter and light rail
trains of two or more cars to have at least one accessible car by July
1995.
[33]
Under Title II of the
ADA
, all intercity rail (e.g.
Amtrak) stations are to be accessible to people with disabilities by July 26,
2010.
[34]
In addition to accessibility of stations, new cars purchased, leased, or
remanufactured after 1990 are required to be accessible and at least one car per
train is required to be accessible by July 26, 1995.
[35]
ii. Relevant Data
The National
Council on Disability's 2005 transportation study found that many transit
agencies with fixed transportation routes fail to comply with the
ADA
.
[36]
According to the study, old rail systems often do not have accessible stations,
and riders often find elevators out of service. Other data indicates that rail
accessibility has improved since passage of the
ADA
.
(a). Light Rail and Commuter Rail
The Bureau of Transportation Statistics (BTS) reports that 22
percent of rail stations of all types (heavy, light, and commuter) were
accessible in 1993 (553 out of 2,452).
[37]
The BTS also reports that, reviewing 14 heavy rail
systems, 19 commuter rail systems and 26 light rail systems, 74 percent (1,666
out of 2,882) of rail stations of all types (heavy, light, and commuter) were
accessible by 2004 (see Figure A).
[38]
Figure A: Accessibility of Rail Stations - 1993 to 2004
As of the end of
2004, of commuter rail systems in 19 regions, 58 percent of all stations were
accessible (666 out of 1153).
[39]
Nine areas had made all stations
accessible (
San
Jose
,
CA
,
San Diego
,
Los Angeles
,
New Haven
,
Miami
,
Dallas
,
Ft.
Worth
,
Seattle
,
Washington
, DC). The remaining ten ranged from 29
percent to 80 percent accessible (see Figure B).
[40]
Figure
B: Accessibility of Commuter Rail Stations - 1993 to 2004
For light rail
services, the Bureau of Transportation Statistics reported that, in 2004, among
26 providers, 82 percent of all stations were accessible (572 out of 706).
Nineteen systems were 98 percent to 100 percent accessible, while the remaining
seven ranged from 2 percent to 86 percent accessible (see Figure C)41
Figure C: Accessibility of Light Rail Stations - 1993 to 2004
Accessible train
cars appear to have increased substantially, indicating compliance with the
one-car-per-train rule. According to the American Public Transportation
Association 2006 poll, 78 percent of commuter rail vehicles were accessible and
86 percent of light rail vehicles were accessible (see Figure D).
[42]
Figure D. Accessible Rail Vaehicles - 1994 to 2006
(b). Amtrak
As of 2005, Amtrak reports that 66 percent of 91 stations are
physically accessible to people with disabilities.
[43]
Amtrak projects that by 2010, as new
stations are built and old ones renovated, every Amtrak station in
America will be in full compliance with
the ADA . All Amtrak trains have at
least one coach car with accessible seating and an accessible restroom.
Overnight trains offer accessible seating and restrooms in at least one coach
car and an accessible bedroom in each sleeping car. Accessible seating includes
space for a passenger using a wheelchair, a transfer seat and storage for the
wheelchair.
[44]
b. Buses
i. ADA
The ADA requires
the programs and services provided in bus stations and other public
transportation stations built before 1992 to be accessible to people with
disabilities, either by making physical alterations to provide accessibility, or
through other means. Newly constructed or altered transportation facilities must be accessible.
[46]
The lack of a requirement to make all bus transportation facilities accessible
by a certain date makes it difficult to track and assess progress toward
achieving accessible bus transportation facilities.
The ADA requires
that buses purchased or leased after August 25, 1990, be accessible, although
the Department of Transportation can grant waivers. The ADA also requires that
communications by public entities be accessible to people with vision and
hearing disabilities.
Bus services can comply with this requirement by verbally announcing (or
"calling out") the names or locations of stops for people with vision
disabilities, and by providing visual information about the stops for people who
are deaf.
ii. Relevant Data
According to the Federal Transit Administration, bus systems
increased by 67 new systems from 1991 to 2003 and demand responsive systems
increased by 111 new systems over the same period.
[49]
Sixty-three percent of all buses in
the United
States operated by public transportation
agencies were lift- or ramp-equipped by 1996.
[50]
FTA has set the goal of a 100
percent accessible bus fleet (lift- or wheelchair ramp-equipped) by
2007.
[51]
Interim goals moving toward that goal
have been met, achieving 95 percent accessibility by 2004.
[52]
According to the
Federal Transit Administration's 2003
National Transit Summaries and Trends report, Type B (25-35 seat) bus
accessibility increased from 54 percent in 1993 to 97.7 percent in 2003 and Type
C (>35 seat) bus accessibility increased from 50.3 percent in 1993 to 99.2
percent in 2003, and articulated bus (high-capacity, flexible center) access
increased from 38 percent in 1993 to 96.4 percent in 2003.
[53]
The Bureau of
Transportation Statistics confirms that bus access has increased significantly
since 1993. As of the end of 2004, 98.1 percent of all buses were accessible
(67,454 out of 68,789).
[54]
Similarly, an American Public
Transportation Association survey indicates that, as of 2006, 97 percent of
buses are accessible.
[55]
As recently as the end of 2005,
however, the Department of Justice took enforcement action against the City of
Detroit, Michigan, for failing to provide and maintain accessible buses.
[56]
Under the consent decree,
Detroit agreed to establish systems
for promptly identifying, removing from service, and repairing buses with
malfunctioning wheelchair lifts, including daily maintenance checks and service
logs for each bus. Detroit also
agreed to retrain its drivers and mechanics to deploy wheelchair lifts and
assist passengers with disabilities. In addition, the city agreed to obtain
alternative transportation promptly when there are breakdowns in accessible
service, implement a complaint system, appoint an
ADA coordinator, and retain an
independent auditor to assess compliance.
[57]
Bus accessibility may be more of a reality in larger, urban
areas where bus replacement happens more frequently. The Bureau of
Transportation Statistics and American Public Transportation Association surveys
both appear to have focused on urban areas. The Economic Research Service
indicated that the number of rural communities served by long-distance bus
service has declined sharply since 1982.
[58]
Physical
accessibility to buses is one component of accessibility. The 2005 NCD
transportation study reported that many transit agencies with fixed
transportation routes fail to comply with the
ADA , even if they have accessible
buses.
[59]
The input from people with disabilities in the NCD transportation study was the
same as the input from participants in the public forums-that some transit
agencies still fail to announce bus stops, maintain wheelchair lifts on buses,
and secure wheelchairs once inside the bus.
c. Paratransit
Services
i. ADA Requirements
Under the ADA ,
public entities that operate non-commuter fixed-route transportation services
for the general public are required to provide origin-to-destination paratransit
service to eligible individuals. This paratransit service must be comparable to
the fixed-route service.
ii. Relevant Data
The National Council on Disability pointed out, in its
Progress Report in 2003,
[61]
that people with disabilities often rely on paratransit services to avoid
personal health or safety challenges on fixed-route systems such as longer waits
in extreme temperatures or safety challenges at isolated stops. NCD noted that
people with disabilities using paratransit frequently experience long waits,
trip delays, and missed trips (no vehicle arrives), making it difficult to rely
upon paratransit for employment, medical, and other appointments. NCD stated
that the Department of Transportation must be vigilant in maintaining fairness
and effectiveness, particularly as transit agencies consider offsetting the
growth in paratransit demand with stricter trip-eligibility criteria.
[62]
In
Los
Angeles
County
, one of the largest paratransit systems in the
country, a 2005 study of paratransit service after litigation
[63]
indicated that 89 percent of riders in
Los
Angeles
were picked up within 20 minutes of their
scheduled appointment. Comparing 11 peer paratransit systems, rides were stated
to be "on time" (no more than 30 minutes after the appointed time) 84 percent to
99 percent of the time. The study indicated trips were denied to 1 percent of
passengers.
[64]
The
Los
Angeles
paratransit provider's 2004-05 annual report
indicates a complaint rate of 6.59 out of 1000 trips.
[65]
The Federal
Transit Administration has conducted compliance reviews of numerous paratransit
agencies and continues to find deficiencies in their policies and services.
These compliance reviews indicate another area where the FTA's standards for
ADA
compliance do not match with customers'
expectations. For example, the FTA considers pickups within 30 minutes after the
scheduled pickup time to be "on time."
[66]
Given that the scheduled pickup time may
be up to one hour after the requested pickup time, customers may permissibly be
picked up one hour and 30 minutes after their requested time. Because of these
delays, people with disabilities have difficulty relying on paratransit services
to meet work schedules and appointments.
d. Input from People with
Disabilities
Input from people with disabilities in a previous research
effort by NCD revealed that access to rail services has improved, but has not
been fully achieved. In the focus groups, there were several individuals who
mentioned bus services. A participant with a mobility disability indicated that
accessible transportation is available in metropolitan areas but not rural
areas:
I think as far as transportation, we see quite a bit of
improvement in the metro areas where now all of our bus system finally is
accessible. I think the last accessible bus just came on within the last two
years. So it took a tremendously long time, but you get outside the metropolitan
area anything probably 50,000 and above [in population] where
transportation is absolutely terrible.
[67]
The participant's point relates to the availability of public
transportation as much as it does to accessible transportation, because, if no
public transportation is provided at all, the
ADA does not require that accessible
transportation be provided.
Participants testified that they were concerned about the
attitudes of bus drivers toward people with disabilities and the maintenance of
accessible equipment. For example, participants complained that bus drivers
often do not announce stops.
[68]
A wheelchair user participating in the Savannah forum
described how she was harassed on an
Atlanta city bus for sitting on a
seat with her wheelchair beside her in the aisle because the accessible seating
area was inoperable.
[69]
In the
Los
Angeles
public forum, one participant stated,
"Paratransit works for some, but for the majority of the disabled
community doesn't work at all because it's a dumping ground for fixed-route
nonaccessibility."
[70]
Several witnesses
testified that paratransit services are inadequate because of strict eligibility
requirements, long wait times and late pickups, and limitations on the areas
served.
[71]
However, several participants indicated
that paratransit services had improved the quality of their lives
significantly.
[72]
2. Private Transportation
a. Private Over-the-Road Bus Service
In 1999, Greyhound began to put more accessible buses on the
roads and to train Greyhound's bus drivers and other workers to provide
accessible bus service through the operation of lifts, other boarding devices,
and disability awareness.
[73]
According to a 1999 settlement reached with the U.S. Department of Justice,
Greyhound was to guarantee lift-equipped bus service, upon 48 hours advance
notice from the passenger, to and from all of its destinations, except in a very
limited set of circumstances, by April 1, 2000.
[74]
All of Greyhound's over-the-road buses are required to be accessible by October
28, 2012.
[75]
b. Taxis
i. ADA
Requirements
The ADA prohibits
discrimination by taxi services. Taxi services may not refuse service to people
with disabilities or charge additional fees.
[76]
Automobiles are not required to be wheelchair accessible.
[77]
When a taxi provider purchases or leases a new vehicle that is not an automobile
(e.g., a van), it must be accessible unless the provider can demonstrate
equivalency. Taxi providers are not required to purchase non-automobiles.
[78]
ii. Relevant Data
The Community Transportation Association of America reports
that some local governments have made efforts to increase accessibility of
private taxi cabs. For example, the City of
Chicago has passed an ordinance
requiring that every fleet of more than 15 taxis must include at least one
accessible taxi. Fleets of over 100 vehicles must have at least 2 accessible
vehicles and one additional accessible taxi for each 100 vehicles.
[79]
Chicago has 41 accessible taxis out
of 6000 taxis.
[80]
The city has also instituted a centralized dispatching system for accessible
vehicles.
[81]
Los Angeles requires that taxi
companies operate 2 percent of their fleets as accessible vehicles,
[82]
resulting in 127 of the city's 1,931 taxis being accessible.
[83]
Las
Vegas requires that 2 vehicles in every fleet be
accessible, resulting in 28 accessible taxis out of 1,100.
[84]
According to the Community Transportation Association, some
large cities appear to have no accessible taxis, including
Philadelphia (1,600 cabs), Dallas
(1,900 cabs), Detroit (1,320 cabs), and
Seattle (850 cabs).
[85]
A 2004 newspaper article suggests that few taxicabs in New
York City were accessible. According to the article, only
5 of 12,000 taxicabs in New York
City were wheelchair accessible.
[86]
The Community Transportation Association indicates that the efforts of cities
and taxi service providers who have committed to accessible taxi service have
resulted in accessible taxis ranging from 2.5 percent to 6.6 percent of the taxi
fleets in Las Vegas, San Diego, Boston, San Francisco, and Los Angeles.
[87]
Taxi companies have been sued for discrimination against
people with disabilities. Many suits claim that taxicabs discriminate against
people with vision impairments who use service animals.
[88]
Others claim taxis refuse to pick up people who use wheelchairs.
[89]
iii. Input from People with
Disabilities
One blind individual who uses a guide dog commented that,
while most businesses are much more aware of their obligation to allow guide
dogs, "Guide dog users still experience difficulties in getting taxi drivers to
agree to transport the dog."
[90]
3.
Recommendations - Transportation
- Congress should expand accessibility requirements
for rail services beyond key stations;
- The
Department of Transportation should conduct extensive training and outreach for
public transit providers regarding maintenance and stop
announcements;
- The
Department of Transportation should work with state and local governments and
taxi providers to develop and publicize effective incentives for private taxi
providers to offer accessible vehicles;
- The
Department of Transportation should conduct extensive training and outreach for
public and private transportation services regarding service animals and
increase high-profile enforcement actions by the Departments of Justice and
Transportation;
- The
Department of Transportation should work with paratransit providers, state and
local governments, transportation experts, and representatives of disability and
aging communities to explore paratransit options such as more subscription
service, more flexible services, and other ideas to close the expectation gap
and increase usability of paratransit for riders with disabilities. One model
for this work is the U.S. Access Board's Advisory Committees, which bring
together diverse constituencies to develop recommendations on disability-related
issues;
- The
Department of Transportation should study and test options for providing
transportation services to people with disabilities in rural areas. Again, a
model similar to that used by the U.S. Access Board's Advisory Committees may be
useful in this effort.
B. Sidewalks and Curb
Ramps
Accessible buildings mean little without accessible sidewalks
leading to them. For people with mobility impairments who use public
transportation, which often requires traveling from a station, bus stop, or
other drop-off point to a destination, inaccessible sidewalks can render an
otherwise possible trip impossible. Inaccessible sidewalks also force many
people to use paratransit services.
1. Sidewalks
a. ADA Requirements
The ADA requires all programs, services and
activities of state and local governments to be accessible. The concept is
commonly referred to as "program access."[91]
In addition, newly constructed or altered
facilities must be fully accessible.
[92]
Program access to existing facilities was
required by January 26, 1995. However, some cities argued that sidewalks did not
constitute a city program, service or activity. When the Ninth Circuit Court of
Appeals dismissed this argument in 2002 in Barden v. City of
Sacramento,
[93]
cities began to take seriously their
responsibilities to provide accessible sidewalks.
b. Relevant Data
NCD's 2005 transportation report found that public
rights-of-way including streets, sidewalks, and other public infrastructures
continue to be inaccessible and not in compliance with the
ADA .
[94]
No published reports on the degree to which sidewalks are accessible were found
in our environmental scan.
2. Curb Ramps
a. ADA Requirements
Title II regulations of the
ADA required state and local
governments to include in their transition plans, plans to install curb ramps at
all existing corners by January 26, 1995 or "in any event, as expeditiously as
possible."
[95]
Newly constructed or altered streets and sidewalks are also required to provide
accessible curb ramps.
[96]
In 1993, the Third Circuit Court of Appeals resolved the
question of what constitutes an alteration that would trigger the requirement to
install an accessible curb ramp. The court concluded that street resurfacing
constituted an alteration that would trigger the curb ramp obligation on
adjacent sidewalks.
[97] b. Relevant Data
In 2002, a representative of the city of Los
Angeles announced that the city had concluded its
ADA transition plan and had
installed over 22,500 curb ramps at an average cost of $1100.
[98]
At the same meeting, a city engineer for
Memphis ,
Tennessee said in the last three years the
city had installed over 3,000 curb ramps and was committed to installing 1,000
curb ramps a year for the foreseeable future.
[99]
Smaller cities have also worked to increase sidewalk access. For example,
Culver City ,
California had ramped 96 percent of its curbs
by 2003 and planned to complete the remaining 50 by 2005.
[100]
The U.S. Department of Justice has negotiated more
than 145 "Project Civic Access" agreements with 138 local governments ensuring
accessible buildings, programs and services.
[101]
These also include curb ramps.
In contrast, the Eastern Paralyzed Veterans of America (EPVA)
sued New York City under these
regulations because, by 1994, the city had not installed curb ramps at
two-thirds of its street corners, and had no transition plan in place. When the
City finally issued a "transition plan" five months after EPVA brought suit, the
plan did not contain a schedule for ramping its 106,000 street corners without
curb ramps. In September 2002, the city agreed to a settlement to commit
approximately $218 million to make all of its 158,738 street corners accessible
to wheelchair users. According to the settlement the city agreed to commit a
total of $217,862,000 for installation of curb ramps on all of the 61,074
corners remaining to be ramped (27,747 in Queens; 13,008 in Staten Island;
10,710 in Brooklyn; 7,007 in the Bronx; and 2,602 in
Manhattan ).
[102]
Some cities object to the obligation to install curb ramps.
As recently as the fall of 2005, the City of Riverside, New Jersey claimed it
has no obligation to install curb ramps because it has fewer than 50
employees.
[103]
The City of Chicago was sued over
inaccessible curb ramps in 2005.
[104]
The City of Sacramento, California, was sued over inaccessible sidewalks and
curb ramps and reached a settlement in 2004 requiring the city to spend 20
percent of its annual transportation funds on sidewalks and curb ramps for up to
30 years.
[105]
The City and
County of
Honolulu were sued twice for failing
to timely implement their transition plan for installing curb ramps, finally
agreeing in 2001 to install 7,600 ramps by 2007.
[106]
In 2005, a survey of San
Francisco sidewalks identified 13,430 curbs needing curb
ramps at 6,726 intersections, costing an estimated $210 million.
[107]
The City estimated that it installed 650 curb ramps per year.
[108]
Many curb ramps appear to be installed by private developers
as part of their construction projects. In San
Francisco , for example, approximately 450 curb ramps are
installed annually by the city, while 75-90 are installed by private
developers.
[109]
These lawsuits and city reports indicate the deadlines of the
ADA for installation of curb ramps
have not been met and that curb ramps will continue to be inconsistently
available for years to come. Lawsuits and forced settlement agreements may be
essential tools for ensuring compliance.
c. Input from People with Disabilities
Input from people with disabilities
about curb ramps often focused on issues of safety as well as access. The lack
of ramps at many intersections, curb ramps that are too steep or not adjacent to
pedestrian push buttons, lack of accessible pedestrian signals for blind
pedestrians, and failure of municipalities to clear snow from curb ramps were
sited as issues causing people with disabilities to make unsafe street crossings
and, in some instances, forcing people to use their wheelchairs in the streets
or gutters.
3.
Recommendations - Sidewalks and Curb
Ramps
- The Department of Justice should promulgate
ADA regulations for public rights-of-way as
soon as possible
- The Department of Transportation should increase
funding for sidewalk access and curb ramp installation
- The Department of Justice should develop and
disseminate guidelines for the prioritization of curb ramp installations, so
that the most needed and useful curb ramps are installed first.
C.
Places of Public Accommodation
1. Physical Accessibility for People with Mobility Impairments
a. ADA Requirements
The ADA requires
places of public accommodation to provide physical accessibility to differing
extents based on the time of construction of the facility. Facilities existing
before the effective date of Title III of the ADA, must have physical access
barriers removed to the extent it is readily achievable to do so. "Readily
achievable" means that the barrier removal is not too difficult or too expensive
given the resources available to the facility's owner.
[110]
Facilities constructed after the effective date of the
ADA must be designed and constructed
to be fully accessible in compliance with the ADA Accessibility Guidelines.
[111]
Alterations to existing facilities must comply with the ADA Accessibility
Guidelines. In addition, alterations to primary function areas give rise to a
requirement to make the path of travel serving the altered area accessible at a
cost proportional to the cost of the original alteration. Proportional is
defined as costing up to 20 percent of the cost of the alteration.
b. Relevant Data
Systematic data measuring the accessibility of public
accommodations and commercial facilities pre-ADA does not exist and the law
makes no specific provisions for tracking such information. However, the
National Organization on Disability/Harris Surveys suggest people with
disabilities perceive improvement in access to public facilities, including
restaurants, theaters, stores and museums. When asked whether access to public
facilities had improved, 75 percent or more of respondents in 1994, 1998, and
2000 reported that they had perceived improvement.
[113]
Not surprisingly, the percentage of people with disabilities going out to
restaurants regularly has increased from 34 percent in 1986 to 57 percent in
2004.
[114]
In interviews with major trade associations representing
businesses directly impacted by the
ADA , including the National
Restaurant Association, the American Hotel and Lodging Association, the U.S.
Chamber of Commerce and others, not one could provide information on the number
of their members that have made their facilities more accessible to people with
mobility impairments in the last 15 years. The response of the Building Owners
and Managers Association (BOMA) International was typical: "BOMA wishes that it
had quantifiable data to share with you to fulfill your specific requests. This
type of data is, to our knowledge, unavailable. Based on the vast number of
designs that are incorporated into buildings, we are unable, as well, to
extrapolate the total amount of ADA-inspired modifications based on anecdotal
evidence of what a few modifications may have cost."
[115]
In an interview with the American Institute of Architects
(AIA), whose members are on the frontline of assisting businesses with Title III
compliance, a spokesman said the AIA has no data on the number of accessible
buildings owned or operated by private entities in the
United States .
[116]
The Government Accountability Office (formerly the General
Accounting Office), or GAO, last conducted a study in 1994 on whether the ADA
had improved access for people with disabilities to goods and services provided
by businesses and state and local governments. The GAO looked at four issues:
changes in accessibility in the 15 months after the
ADA took effect, the common barriers
still remaining, awareness of owners and managers in that same 15-month span,
and the nature of barrier removal efforts during that time. The GAO found that
accessibility for people with disabilities, and managers' and owners' awareness
of the ADA , had considerably and
steadily increased. Some significant barriers remained, however, and barrier
removal efforts were not always consistent with the Americans with Disabilities
Act Accessibility standards. Half of the owners and managers had not made any
changes to be more ADA compliant,
and had no immediate plans to do so.
[117]
According to the University of
California San Francisco's
Disability
Statistics
Center , 12,728 small businesses
applied for tax credits for disability access improvements in 1993.
[118]
According to a 2002 General Accounting Office Report on Business Tax Incentives,
in 1999, about 7,199 corporations (1 out of 686) and 18,633 individuals with
business affiliations (1 out of 1,570) filed for the disability access credit.
[119]
The credits amounted to
approximately $59 million. The study concluded that the disability-related tax
incentives are underutilized by businesses. According to a 2003 study by the
Society for Human Resource Management, 77 percent of surveyed businesses were
not accessing any of the tax incentives for accessibility.
[120]
Numerous articles have been written about the use of
litigation to enforce the accessibility requirements of the
ADA , generally focusing on the
following types of "bad" behavior by disability attorneys and advocates:
- Failure to notify businesses and give them a
chance to make improvements before filing suit (or threatening to do so);
- High demands for damages or attorneys fees;
- Insufficient attention to whether the demanded
improvements are actually carried out;
- Threats of litigation over minor violations;
- Insufficient assistance to business as to what
needs to be corrected or how to comply;
- Repeat lawsuits against businesses that are
trying to comply;
- Multiple lawsuits by individual plaintiffs or
attorneys.
While no comprehensive studies of lawsuits and complaints
filed against places of public accommodation were found in our environmental
scan, the U.S. Department of Justice has investigated and reached settlements
with numerous restaurants, movie theaters, and other types of chains.
Restaurants subject to settlement agreements with the Department include Pizza
Hut,
[121]
McDonald's,
[122]
and Burger King.
[123]
Theaters include Regal,
[124]
Cinemark,
[125]
and Shubert,
[126]
while AMC is involved in ongoing litigation with the Department.
[127]
Data regarding nationwide compliance with the physical access
requirements of Title III of the ADA
is largely unavailable. Larger businesses, national chains, and new businesses
have made significant efforts toward compliance, due in part to the
incorporation of accessibility requirements into local building codes and
because of close attention paid by public and private enforcement agencies. As a
result, people with disabilities have much more freedom to engage in social and
business activities and are taking advantage of that freedom. Smaller businesses
appear to face less pressure to comply. Litigation may not be an effective
mechanism to force compliance by smaller businesses.
The backlash by business owners against enforcement of the
ADA through litigation emphasizes
the difference in expectations between people with disabilities and business
owners. People with disabilities have high expectations of accessibility after
the ADA , while business owners are
surprised that continued access improvements are required of them, even in the
absence of a complaint. Despite years of
ADA enforcement and wide
dissemination of technical assistance materials, business owners remain confused
about the extent of accessibility required for pre-existing businesses. For
example, the American Hotel and Lodging Association described the complexities
their members face:
It is a significant barrier to compliance with the law that the
ADA is a highly detailed, yet highly
vague law, unlike other laws and regulations. Our members know, for example,
that under OSHA regulations, compressed air cannot be used for cleaning purposes
except where the pressure has been reduced to less than 30 pounds per square
inch and then only when effective chip-guarding and personal protective
equipment is provided. Under the Hotel & Motel Fire Safety Act of 1990, our
members know that if they are a five-story hotel and wish to receive federal
travelers, they must have hard-wired smoke detectors and be fully sprinklered.
But while these specific legal details are clear and helpful, this clarity is
absent from much of the ADA . Our
members have long been frustrated with the inability to get clarity in
compliance with the ADA . When a
hotel operator wants to open a new property, an architect will be hired, zoning
permits will be obtained from the local zoning boards, operating licenses will
be obtained from the proper local and state offices. These various boards,
commissions and government entities will perform their duties, but at no point
will anyone check for compliance with the
ADA . There is no entity that will
give an ADA certificate informing a
business that they comply with this law.128
c.
Input from People with Disabilities
The physical accessibility of private
businesses was addressed by people with disabilities in the focus groups, public
forums, and e-mail. People with mobility impairments indicated they are
benefiting from such physical modifications as ramps, accessible parking, and
more accessible restrooms that businesses have provided since the
ADA
was passed. Commenters indicated that much improvement has been made in access
to businesses since passage of the ADA,
but much remains to be done. One wheelchair user in
Wyoming
elaborated:
My impression from '92 or '90 is that things
have gotten more accessible. You see a lot more power doors. Although they're
legally not required, you always see a few more of those. It helps the UPS guy
as well as the FedEx guy. It's kind of what we try to sell them on. I think
generally overall there's an improvement in accessibility. Recently we put a big
push on to look at all the businesses in town and we've run across one that was
very accommodating; went over and above what we asked for. And we ran across
another who just kind of thumbed their noses at us. So, we said the [heck]
with it, we'll just file complaints on them. Talking to this guy didn't do any
good anymore. So we still run across it 15 years later, and we're still running
across a lot of ignorance; really no awareness of the law but don't really . . .
give a rip one way or the other.
[129]
A total of 53 commenters indicated that
public accommodations and commercial facilities would be more accessible to more
people with disabilities if enforcement mechanisms were improved. Several
commenters expressed frustration at the process of filing complaints with
government agencies, indicated that mediation was not an effective
mechanism,
[130]
and indicated that private lawsuits were not an effective means of enforcement.
As one
Savannah
commenter explained:
I learned of a mediation process which was
conceived by USDOJ to expedite the resolution of
ADA
matters. Given the history of [my] experiences with the courts, I opted for the
new process. I filed a complaint in 1999 against a local establishment named
Stogie's which was frequented by legal professionals. The barrier was a six-inch
step which prevented my entry. After several failed attempts to discuss the
matter with management, the case was filed with USDOJ with a specific request
for mediation. After numerous meetings and a signed conciliation agreement, the
barrier remains to date-exactly as it was when the case was filed. From my
understanding, the current matter is wedged in an administrative bottleneck at
USDOJ. My friends with mobility disabilities can recount many similar
experiences with failed mediation which were not followed by enforcement.
I have witnessed legislative attempts to
weaken the
ADA
through legal means of a notification provision and judicial decisions, such as
the
Alabama
(i.e., Garrett) employment decision
which limited the scope of coverage. The rationale behind the proposed
notification requirement is to give the business community a chance. Fifteen
years later and numerous administrative and legal complaints later, I believe we
have extended the hand of compromise only to be slapped with it. Angry-partly;
disappointed-definitely. I consider the dream once promised growing fainter as
time goes by.
[131]
Other commenters expressed similar
frustrations:
- "While the Americans with Disabilities Act has
helped, there must be better enforcement and far higher fines to go along with
it."
- "Either the Federal Government is going to have
to have
people in each state with the power to write warning violation letters or write
a federal ticket or District level ticket in a violation, with fines. Or the
Federal Government is going to have to mandate States to enforce the
ADA.
Then if they do not, a complaint can be filed against the
state."
- "Shopping, eating and being entertained are a
fundamental part of the American way of life. We still have to fight to shop,
eat and be entertained. That fight is generally through the courts. Local
building officials have no jurisdiction to enforce the ADA
and many states still do not have their own building standards for access and
rely only on the ADA.
Getting a local building official to understand that they have the
responsibility and jurisdiction in the absence of state building codes is near
impossible."
- "I believe that in order to ensure that more
buildings are built/remodeled accessible, and to provide a level of protection
for builders, employers, business owners etc, that there should be some way of
licensing or certifying accessibility that is mandatory on states and
communities. For instance, perhaps require any state/community receiving
Community Development Block Grants (CDBG) or other federal money to have its
building code certified as being ADAAG compliant by the Federal
DOJ."
- "In many cases, places of public accommodation
are also more reactive than proactive. In some cases business owners are
uninformed and don't know/understand the law. In other cases, owners react when
hit with lawsuits or complaints. Recently this has generated a lot of ill will
because of the number of local businesses receiving threatening letters if
compliance work is not completed in a short amount of time. Lawsuits where
plaintiffs receive settlement money [are] upsetting local business owners
who feel they are victims of extortion."
- "Lack of enforcement for equal
access [ADA]
to public accommodations and prospective businesses remains the single greatest
need [and political and legislative avoidance] of our national disabled
community."
- "One area I feel is greatly lacking is the ...
enforcement of the ADA in situations where proprietors choose not to cooperate. Those persons have
learned that the only effective enforcement is through costly law suits and most
people are reluctant to do this. And so those of us who need the ADA most have learned the only ones who comply with the Americans with Disabilities
Act are those who chose to do so. The rest can simply ignore it if they
wish."
- "First of all, the problem is not the law itself;
it's a great law. The regulations are great. To me, it's enforcement that's the
problem. The enforcement is predicated on the ability of the individual to file
a complaint. The solution I think is that the Justice Department or EEOC needs
to have more investigators that would actually go out to see if people are
complying with the law. That would stop the horror stories. That would make
employers accountable. That would put the teeth in the law."
2. Access for
People with Vision, Hearing, and Speech
Disabilities
a. ADA
Requirements
Title III of the
ADA
requires places of public
accommodation to ensure that their communication with people with vision,
hearing, and speech disabilities is as effective as their communication with
people without disabilities.
[141]
They accomplish this by providing auxiliary aids and services, such as braille,
large print, taped texts, sign language interpreters, closed captioning, notes,
assistive listening devices, and text telephone devices.
[142]
Hotels must provide TTYs and closed captioned televisions.
[143]
In addition, businesses may not exclude, surcharge, or otherwise discriminate
against individuals with service animals.144
b. Relevant Data
A review of the U.S. Department of Justice's Web site
indicates that businesses frequently fail to provide sign language interpreters
to people who are deaf. The U.S. Department of Justice has participated in at
least 11 settlements requiring hospitals and health care providers to provide
sign language interpreters and other auxiliary aids to people who are deaf or
hard of hearing.
[145]
Private suits have repeatedly been
brought against hospitals for failure to provide interpreters.
[146]
The U.S. Department of Justice's Web site also demonstrates
that many hotels are not complying with their obligations to provide closed
captioned televisions, TTYs, and accessible room notification devices.
[147]
The Department has entered into formal settlement agreements with at least 16
hotels and motels involving access for people with hearing impairments.
The Department investigated and resolved numerous complaints
against restaurants, taxi companies, and other public accommodations over access
for blind people who use service animals.148
c. Input from People with Disabilities
People who are blind or visually impaired, deaf or hard of hearing, or have other communication disabilities were less likely to state that private businesses operating public accommodations are meeting their accessibility needs. Some individuals noted that businesses need to become educated about Telephone Relay Services, saying representatives of businesses often cut short Relay calls. For instance:
- “I make a lot of business calls in a week. Either I get hung up on, or they put you on hold for 15, 20 minutes, hoping that you hang up.”149
- “Sometimes when we make a request for example, for an interpreter at a doctor’s office or attorney visit …. just a public accommodation, it’s very difficult. It’s hard to make that request and just like some others were saying, why is it so hard to make a request?”150
Some people who are hard-of-hearing reported missing flights because public announcements in airports, including announcements about gate changes, are not provided visually.
People with vision impairments reported that braille and large print were becoming more widely available.[151] However, braille and large print materials are not reliably available and verbal announcements of visual information in public spaces are rarely provided.[152]
People with vision impairments continue to struggle to gain access to the Web sites of public accommodations. Because the DOJ Title III regulations do not specifically mention access to Web sites, people with vision impairments have been forced to file lawsuits against entities that refuse to make their Web sites accessible. To date, the courts have been split on this issue.[153] But, since the implementation of Section 508 of the Rehabilitation Act,[154] which requires federal agencies to make their Web sites accessible, people with vision impairments are frustrated that Title III regulations have not been updated to apply the federal Web accessibility standards to places of public accommodation.
3. Recommendations – Places of Public Accommodations
- The National Institute on Disability and Rehabilitation Research should conduct a survey of businesses, perhaps through the chambers of commerce or small business associations, to determine the degree to which businesses have instituted readily achievable barrier removal efforts, and provide guidance to Congress on adequately funding the Department of Justice to enforce this part of the statute;
- The Department of Justice and National Institute on Disability and Rehabilitation Research should provide expert, individualized, low-cost technical assistance and consulting to small businesses. The ADA and IT Centers and local offices of the National Disability Rights Network are possible agencies to carry out this effort;
- The Department of Justice should expand its Project Civic Access to increase enforcement in local areas by reviewing businesses in identified localities;
- Congress should require states to submit their building codes for access certification by the DOJ;
- The U.S. Access Board and Department of Justice should continue coordination with model building code agencies;
- The Department of Justice should increase enforcement and education regarding how to serve customers with visual and hearing impairments, particularly as it pertains to Web access and use of TTYs and relay services;
- DOJ should incorporate the Section 508 Standard for accessible Web sites into Titles II and III;
- The Department of Justice and National Institute on Disability and Rehabilitation Research should develop technical assistance materials regarding what people with disabilities and businesses should expect of existing buildings of various sizes years after passage of the ADA.
D. Accessibility of Telecommunications
1. ADA Requirements
Title IV of the ADA consists of two provisions: one requires captioning of federally funded or produced public service announcements; the other mandates nationwide telecommunications relay services (TRS). TRS is required to “provide the ability for an individual who has a hearing impairment or speech impairment to engage in communication by wire or radio with a hearing individual in a manner that is functionally equivalent to the ability of an individual who does not have a hearing impairment or speech impairment to communicate using voice communication services by wire or radio.”[155]
Newer Internet Protocol (IP) Relay Services allow people to access TRS through the Internet, rather than relying on text telephones (TTYs). A deaf caller uses a computer and the Internet to type messages to the relay operator, who calls the call recipient and voices what the caller types. Video Relay Services (VRS) allow people who use sign language to communicate with the relay center using sign language through video equipment attached to a computer. The caller signs to the relay interpreter via video and the relay interpreter contacts the call recipient by telephone and voices what the caller signs. For individuals without computers or Internet access, deaf callers can use several access centers. This service may be particularly useful for people in rural areas, where sign language interpreters may be unavailable. VRS is funded through mandated contributions from all common carriers that go into a national fund administrated by the National Exchange Carrier Association, Inc. (“NECA”). The Federal Communications Commission (“FCC”) determines the rate that ensures appropriate compensation to VRS providers.
Applicability of the ADA to these new services is not yet settled. Because the ADA encourages the FCC not to discourage the advancement of technology, some disability groups have argued that the FCC should regulate VRS to encourage further development of VRS technology and performance standards.[156]
2. Relevant Data
The telecommunications aspects of the ADA have had a positive effect on the ability of people with hearing impairments to communicate. Relay services are now widely available and usage is high. Telecommunications Relay Services (TRS) have been established for residents of every state to ensure that people with speech and/or hearing impairments have access to telecommunications 24 hours a day, seven days a week.[157] Relay services are available by dialing 7-1-1 or local numbers.
The evolution of new technologies has served to increase use of relay services. However, businesses have not been quick to understand and use the technology.
- No reliable data exists on the average annual number of telephone relay calls prior to implementation of the ADA.[158] However, use of all forms of relay service increased by 15 percent (from over 180 million minutes to over 208 million minutes) from 2003 to 2004 (see Table B). Traditional relay service use is declining slightly (.3 percent), while Internet relay service is increasing (45 percent) and video relay service is increasing tremendously (210 percent).
Table B: Relay Service by Type, 2003–2004
|
2003 minutes |
2004 minutes |
| Traditional TRS |
134,320,610 |
133,909,527 |
| IP Relay |
43,559,603 |
63,080,942 |
| VRS |
2,788,532 |
11,031,032 |
| Total Combined |
180,668,745 |
208,021,501 |
- Approximately 3,500 complaints were reported that alleged a violation of one or more of the Federal Communications Commission’s mandatory minimum standards for TRS. This number indicates that just over 1/100th of a percent (.01 percent) of TRS calls resulted in an alleged violation of required service standards. Over seventy-five percent of all complaints stemmed from the interaction between the calling party and the communications assistant.
- The National Exchange Carrier Association (NECA) is the administrator of the Interstate TRS Fund that compensates relay service providers for the provision of relay services. NECA submitted to the FCC the proposed new provider reimbursement rates, funding requirements, and carrier contribution factor for the Telecommunications Relay Services (TRS) Fund. For the period beginning on July 1, 2005, and ending on June 30, 2006, NECA is recommending a total funding requirement of $413.3 million, a $124 million increase from the current fund. NECA has recommended this increase in the size of the fund, based primarily on continuing significant growth in demand for IP Relay Services and Video Relay Services (VRS).
3. Input from People with Disabilities
In the public forums, many individuals spoke favorably of relay services and several mentioned that technology was enhancing the service.
- From a hard of hearing point of view, the program obviously helps thousands and thousands of people. We have 600,000 pieces of equipment out there for the deaf, the hard of hearing and disabled. Every month we do 1.5 million conversation minutes …. Relay service helps people have jobs. It helps them communicate with the hearing community, be part of the greater world.
- One of the big things I’m seeing more than ever with deaf people in our community is the video relay services that are being instituted now. So much more natural than having to slowly type out what you’re going to say, and that just naturally, the communication gap that happens in the timeframe of typing.
Almost all of the e-mail writers on the subject of relay services were enthusiastically positive.
- “Has the ADA had an impact on the ability of people who have hearing and/or speech impairments to communicate by telephone? Yes. The Telephone Relay Service centers are making a big difference.”
- “The [ADA has certainly benefited us when it comes to the use of relay services, yet within the African American Deaf Community few have access to the knowledge and technology needed to benefit.”
- “My mother, 82, essentially lost her hearing by 65. It is thought it’s due to a childhood illness; that it progressively worsened in time. Were it not for the Americans with Disabilities Act; her TDD machine; MD’s Relay Service and its trained operators we, her family of 6 daughters, 4 sons-in-law and 10 grandchildren would be at a loss.”
Commenters said the service needs to be publicized more.
4. Recommendations – Accessibility of Telecommunications
- The Department of Justice should publish information for businesses about how TRS works, how to use it, and the legal obligation to use it. The ADA and IT Centers could be funded to provide this information;
- The Federal Communications Commission should establish standards to encourage the continued development of Video Relay Services.
II. Full Participation
When passing the ADA, Congress found that people with disabilities traditionally have been relegated to a position of political and social powerlessness, by virtue of being excluded from, or segregated in, community activities. Full participation, for purposes of this study, is defined as active inclusion and integration of people with disabilities in community activities, including governance and citizenship.
A. State and Local Government Services
1. ADA Requirements
Title II of the ADA applies to “services, programs, and activities” of public entities.[166] Title II prohibits discrimination on the basis of disability and requires: (a) making reasonable modifications to policies, practices, and procedures; (b) administering services, programs, or activities in the most integrated setting appropriate to the needs of qualified people with disabilities; (c) modifications to facilities to achieve program access; (d) ensuring that communications with people with disabilities are as effective as communications with people without disabilities, and (e) accommodations in transportation. Effective communication is achieved by providing auxiliary aids and services to people with vision, speech, and hearing disabilities.[167]
Government programs in existing buildings must achieve “program accessibility.” This means the program, when viewed in its entirety, must be accessible to people with disabilities.[168] Program accessibility may be achieved by making physical changes to facilities or by a combination of other means (e.g., moving programs upon request, providing service through other means, etc.). To achieve program accessibility, state and local governments with 50 or more employees were required to engage in a self-evaluation of their facilities and a transition plan to make their programs accessible. Any structural modifications called for by the transition plans were to be completed by January 26, 1995.[169]
New construction and alterations must be fully accessible in accordance with the ADA Accessibility Guidelines.[170]
2. Relevant Data
In 1995, Condrey & Brudney surveyed municipal government personnel administrators in U.S. cities with a population of 50,000 or more. Their sample size was 334 and their response rate was 63 percent. Over 90 percent of the respondents had obtained literature on the ADA, participated in an ADA seminar, and appointed an ADA coordinator. Over 80 percent of their respondents had studied the ADA regulations, conferred with the city attorney, carried out the self-evaluation, and evaluated their job descriptions. Discussions with a labor lawyer were held by 42.5 percent of the respondents and discussions with an ADA consultant were held by 35.9 percent. The Job Accommodation Network was consulted for assistance by 21.6 percent. In over 80 percent facilities were made accessible and in over 70 percent of the local governments there had been ADA workshops.[171]
Pfeiffer and Finn in 1995 conducted a study of compliance with the ADA by state, territorial, and local governments. This study surveyed local governments separately from states and territories and included small as well as larger local governments. In the survey of local governments, over 840 jurisdictions responded. Just over 65 percent of local governments answered they had ADA and/or Section 504 coordinators, and the study concluded: “The most important finding of the present study is that the existence of an ADA coordinator on the local government level has a considerable impact. A person to oversee the necessary activities and to deal with complaints (in various ways) increases the implementation activities on the local level.”[172]
Pfeiffer and Finn found that states were likely to be in greater compliance with the ADA. “Over three quarters of the state and territorial governments have completed their [ADA compliance] self evaluations and almost 85 percent say that their agencies have transition plans. Attention is being paid to the requirements of the ADA: 97.8 percent of the states and territories reported that sign language interpreters are provided upon request. Over 90 percent had changed questions on their employment applications, provided material in alternative format, and changed locations for interviews. A reasonable accommodation had been provided by 87 percent of the states and territories. There is considerable ADA implementation activity on the state and territorial level.”[173]
To promote Title II compliance at the local level, the Department of Justice (DOJ) operates “Project Civic Access,” a wide-ranging effort to ensure that counties, cities, towns, and villages comply with the ADA by eliminating physical and communication barriers that prevent people with disabilities from participating fully in community life. DOJ has conducted reviews in 50 states, as well as Puerto Rico and the District of Columbia, and is posting the agreements to help additional communities come into compliance with the Act. DOJ states it has negotiated 145 Project Civic Access agreements with 138 local governments ensuring accessible buildings, programs and services.[174]
Examples of issues specifically addressed by the Department of Justice’s Project Civic Access settlements include:
- Physical modifications of facilities to improve accessibility. Facilities include city and town halls; police and fire stations and sheriff departments; courthouses; centers for health care delivery, childcare, teen and senior activities, conventions, and recreation; animal shelters; libraries; baseball stadiums; parks (including ice skating rinks, public pools, playgrounds, ball fields and bleachers, band shells and gazebos). The agreements secure the following:
1. Accessible parking
2. Accessible routes into and through the facilities
3. Accessible rest rooms, drinking fountains, and telephones
4. Accessible service counters and concession stands, or the provision of services at alternate, accessible locations
5. Accessible bathing facilities at public pools
- Physical modifications to polling places and/or the provision of curbside or absentee balloting.
- Permanent and conspicuous notice to the community of their ADA rights and the government’s ADA obligations.
- Establishment of an ADA grievance procedure where none existed in communities employing more than 50 people.
- Establishment of delivery systems and time frames for providing auxiliary aids and services.
- Installation of assistive listening systems in assembly areas (e.g., legislative chambers, court rooms, municipal auditoriums).
- Strengthening of 9-1-1 emergency services through the acquisition of additional text telephones (TTYs) to achieve a 1:1 ratio of TTYs and answering positions, training to recognize “silent calls,” and accountability through performance evaluations and discipline of employees.
- Improvements in telephone communication between the government and citizens with hearing or speech impairments through the acquisition of additional TTY’s and/or utilization of the state relay service, official publication of TTY/relay numbers, and training of employees.
- Adoption of procedures for relocating inaccessible activities to accessible locations upon request (e.g., City and Town Council meetings, municipal and county court proceedings).[175]
One particular area of concern is access to the judicial system. As a fundamental American right, access to court proceedings should be a top priority. Yet state and local courts have been slow to improve physical access and to provide auxiliary aids. From 1994 to 2004, the Department of Justice reached settlement agreements involving courthouses in 58 cases. The Department reached informal agreements with 57 courts.[176] These cases primarily involved physical access issues and provision of sign language interpreters and other auxiliary aids for people with hearing disabilities. The Department of Justice recently reported on progress using litigation and informal agreements, as well as other work undertaken by the department in their report “Access for All: Five Years of Progress, A Report from the Department of Justice on Enforcement of the Americans with Disabilities Act.”[177]
Major lawsuit filings indicate that state and local courts still are not fully accessible, 15 years after passage of the ADA. Courthouses have been the subject of several lawsuits, including Tennessee v. Lane,[178] Miles v. Los Angeles,[179] and others. In California, the Chief Justice acknowledges that 75 percent of the state’s courthouses are not accessible to people with physical disabilities.[180] Other states, such as Oregon and Arizona, began conducting accessibility surveys in 2003–2004.[181]
Recognizing the need for access to courts, the U.S. Access Board has issued accessibility guidelines for courthouses and has convened an Advisory Committee to provide technical assistance on courthouse accessibility.[182] However, the delay between issuance of guidelines by the Access Board and adoption of those guidelines as enforceable standards by the Department of Justice encourages courts to delay compliance for fear that they would waste effort implementing outdated guidelines.
Another possible reason for the delay in compliance is the belief that state and local governments cannot be held liable for monetary damages for failing to make their facilities accessible. The Supreme Court in University of Alabama v. Garrett found that state governments could not be held liable for monetary damages for violations of the employment provisions of the ADA, based on the doctrine of sovereign immunity.[183] States have also raised the Sovereign Immunity defense in ADA actions involving Title II, which covers access to state and local government programs and facilities. The Supreme Court in Tennessee v. Lane found that, at least for court facilities, money damages is available against states.[184] However, states’ liability for money damages for failure to comply in other areas remains unclear and may be contributing to delays in compliance.
Although local, as opposed to state, governments are not protected by sovereign immunity the courts have imposed limitations on their liability for damages under the ADA. Courts require a showing of intentional discrimination for monetary damages to be available.[185] Lacking the incentive of monetary liability for noncompliance, local governments may be moving more slowly than they otherwise would.
3. Input from People with Disabilities
In the focus groups, some participants confused the provision of accommodations in educational settings required by Section 504 of the Rehabilitation Act of 1973, as amended, and the Individuals with Disabilities Education Act with Title II of the ADA. There was similar confusion with Medicare, Medicaid, and other services that do not come within the scope of the ADA. The lack of services in these areas was identified in the focus groups and often incorrectly attributed to lack of ADA enforcement. Comments from forums and e-mail were mixed regarding accessibility of government services under the ADA. 46 percent of respondents expressed negative opinions on the accessibility of government services, while 45 percent were positive. The need for greater ADA enforcement for better access to state and local government services was cited by participants numerous times.
- “The improvement in this area is Tremendous!! Anyone who says otherwise is not remembering how it was. Curb ramps, accessible building entrances and moving around inside, transportation, sidewalks, paths of travel, the list goes on and on and on.”[186]
- “Government agencies are by far the worst in compliance. Getting to and from their physical offices can be a nightmare. They choose to build or locate sites that are inaccessible for varieties of reasons not the least of which is public transportation and parking/path of travel. Of particular note are those government offices in rural areas.”[187]
- “Pennsylvania has been especially good about meeting the ADA accessibility requirements …. I wish facilities at Federal sites were as reliable.”[188]
- “There are still places I cannot go. Council Chambers are one. You cannot hear them speak. Even with microphones. Public events—cannot hear the speaker.”[189]
- “I would say this is the most changed and improved area of all. The agency personnel generally are more educated about disabilities and the buildings are much more accessible than private entities.”[190]
4. Recommendations – State and Local Government Services
- The Department of Justice and other federal agencies should focus on enforcing the ADA obligations of government agencies;
- Federal agencies should use initiatives such as Project Civic Access to increase ADA compliance at the state and local levels;
- The Department of Justice should use targeted, high-profile litigation on particularly important issues, such as access to courts, medical care, and education to increase state and local ADA compliance.
B. Voting
1. ADA Requirements
Two pre-ADA laws addressed the access issues of voting for people with disabilities. The Voting Rights Act of 1965 (VRA) provides that any voter requiring assistance to vote “by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice ….”[191] The Voting Accessibility for the Elderly and Handicapped Act of 1984 (VAEHA) requires that political subdivisions responsible for conducting elections ensure that all polling places for federal elections are accessible to elderly voters and voters with disabilities.
Title II of the ADA and its implementing regulations require that people with disabilities have access to basic public programs, including the right to vote. However, it does not strictly require that polling place sites be accessible. Instead, as with all state and local government programs, the program of voting, as a whole, must be accessible. Such program access can be accomplished in a variety of ways, including curbside voting for people with mobility impairments at inaccessible polling places, and assisted voting for people with vision impairments.[192]
During the 2004 election, the U.S. Department of Justice implemented new policies to protect the rights of voters with disabilities, including publishing a 39-page “ADA Checklist for Accessible Polling Places” and, for the first time, deploying election monitors trained to assess the accessibility of polling places.[193]
The Help America Vote Act of 2002 (HAVA) provides states with federal monies to update their voting process, including funds for the purchase of accessible voting machines and removal of the systemic and physical barriers that have denied people with disabilities their constitutional right to vote. At least one electronic voting machine, which must be fully accessible for people with visual impairments, was required in each polling place by January 1, 2006.[194]
2. Relevant Data
All states have provisions (in the form of statutes, regulations, or policies) that specifically address voting by people with disabilities. These provisions vary greatly, as do county practices for assuring voting accessibility. For example, while some counties cite accessibility as a specific criterion used in selecting polling places, others do not. All states provide for one or more alternative voting methods or accommodations that may facilitate voting by people with disabilities whose assigned polling places are inaccessible. For instance, all states have provisions allowing voters with disabilities to vote absentee without requiring notary or medical certification requirements, although the deadlines and methods (such as by mail or in person) for absentee voting vary among states. In addition, many states, but not all, have laws or policies that provide for other accommodations and alternatives for voting on or before Election Day—such as reassignment to a polling place that is accessible, curbside voting, or early voting.[195]
In 2001, a General Accounting Office (now the Government Accountability Office) study of polling places in the United States estimated that, from the parking area to the voting room, 16 percent of all polling places in the contiguous United States had no potential impediments, 56 percent had one or more potential impediments but offered curbside voting, and 28 percent had one or more potential impediments and did not offer curbside voting. Such potential impediments primarily affected people with mobility impairments and occurred most often on the route from the parking area to the building or at the entrance to the polling place, with more than half of all polling places having impediments in these areas. Inside the polling place, the types and arrangement of voting equipment used posed challenges for people with mobility, vision, or dexterity impairments. To facilitate voting inside the voting room, polling places generally provided accommodations, such as voter assistance, magnifying devices, and voting instructions or sample ballots in large print. However, none of the polling places visited by the GAO had special ballots or voting equipment adapted for blind voters.[196]
A 2004 Massachusetts survey indicated that 60 percent of its polling sites did not meet HAVA requirements. [197] A Missouri survey found that 70–80 percent of urban polling places were accessible, while only 10 percent of rural ones were accessible.[198] A 2003 Florida survey revealed that 54 percent of polling places were accessible.[199] Six percent of polling places in Utah were inaccessible, according to a 2004 survey.[200] Ninety-four percent of polling places in Indiana were found to be inaccessible.[201] In Los Angeles County, accessibility of polling places substantially improved since passage of the ADA, rising from 70 percent accessible in 1986 to 98 percent accessible in 2001.
Substantial barriers to independent voting remain for people with vision impairments. Paper ballots require people with vision impairments to rely on third parties for assistance in voting, thus undermining the independence and confidentiality of their votes. The Help America Vote Act (HAVA) intended to address this problem by requiring electronic voting machines to be available at every polling place in federal elections by January 2006. According to the American Association of People with Disabilities, in 2004 about 80 percent of polling places nationwide were not fully accessible in accordance with HAVA standards.[202] Although states are steadily adopting electronic voting, controversies over the security of electronic voting have delayed approval, purchase, and implementation of electronic voting systems.[203]
Compared to prior years, the percentage of Americans with disabilities who voted in 2004 increased dramatically. According to the N.O.D./Harris Surveys, voting by Americans with disabilities has increased steadily over the last three presidential election cycles, and the gap between those with disabilities and those without disabilities who voted is decreasing (see Figure E). In 1996, 31 percent of adults with disabilities voted in the presidential election, compared to 49 percent of all adults voting. In 2000, 41 percent of Americans with disabilities voted compared to 51 percent of all adults. In 2004, turnout among likely voters with disabilities was estimated by Harris to be 52 percent, while, according to the Census, 64 percent of people without disabilities voted.
Figure E: Voting Practices of Americans with Disabilities
- According to the American Association of People with Disabilities, voting participation ranged from 31 percent in Georgia to 55 percent in Minnesota in the 2000 elections (see Table C).[204]
Table C: Percentage of People with Disabilities Voting by State in 2000
State |
% of People with Disabilities Voting |
State |
% of People with Disabilities Voting |
Alabama |
40% |
Montana |
49.2% |
Alaska |
53.1% |
Nebraska |
45.2% |
Arizona |
33.8% |
Nevada |
35% |
Arkansas |
38.2% |
New Hampshire |
50% |
California |
35.3% |
New Jersey |
40.8% |
Colorado |
45.5% |
New Mexico |
37.9% |
Connecticut |
46.7% |
New York |
40.3% |
Delaware |
46.7% |
North Carolina |
40.2% |
DC |
39.3% |
North Dakota |
48.3% |
Florida |
40.5% |
Ohio |
44.6% |
Georgia |
30.5% |
Oklahoma |
39% |
Hawaii |
32.4% |
Oregon |
48.5% |
Idaho |
43.6% |
Pennsylvania |
43% |
Illinois |
42.2% |
Rhode Island |
43.4% |
Indiana |
43.6% |
South Carolina |
37.3% |
Iowa |
48.6% |
South Dakota |
46.6% |
Kansas |
43.3% |
Tennessee |
39.4% |
Kentucky |
41.3% |
Texas |
34.5% |
Louisiana |
43.4% |
Utah |
42.1% |
Maine |
53.8% |
Vermont |
51.2% |
Maryland |
41.3% |
Virginia |
42.4% |
Massachusetts |
46.1% |
Washington |
45.5% |
Michigan |
46% |
West Virginia |
36.6% |
Minnesota |
55% |
Wisconsin |
52.9% |
Mississippi |
38.9% |
Wyoming |
47.8% |
Missouri |
46% |
|
|
Perhaps recognizing the increased participation of individuals with disabilities, individuals running for election have been more visibly responsive to the concerns of the disability community. For example, in 2004, both Presidential candidates took public positions on disability issues—President George W. Bush’s New Freedom Initiative and Senator John Kerry’s Disability Policy Platform.[205] State-level election candidates have also publicized positions on disability issues.[206]
3. Input from People with Disabilities
In the discussion about accessible voting, one participant said: “We participated in a program called “Count Us In,” where our polling places of today were visited and rated and none of them passed 100 percent. But the polling place workers were helpful and tried to do what they could.”[207]
C. Other Forms of Civic Participation
No data were found in our environmental scan about rates of participation by people with disabilities in other forms of civic activities, such as serving in public office, participating in government advisory committees, or performing community service.
Most states have a disability commission to advise on disability policy issues[208] and people with disabilities serve on these commissions.
D. Recommendations – Full Participation
- The Department of Justice should immediately implement the Help America Vote Act requiring installation of electronic voting equipment;
- The National Institute on Disability and Rehabilitation Research should study and publish the involvement of people with disabilities in civic opportunities, such as government office;
- The National Organization on Disability should encourage state and local governments to emphasize involvement of the disability community as part of their diversity efforts and provide technical assistance to help government agencies reach out to people with disabilities.
III. Independent Living
People with disabilities traditionally have been subject to governmental, medical, and family control in their most central life decisions, including where and with whom to live. Independent living, for purposes of this study, is defined as control by people with disabilities over their own lives, including availability of acceptable choices of housing and health care and lack of undue control by others in life decisions. An important aspect of independent living is the availability of services in integrated community-based settings.
A. Community Integration
1. ADA Requirements
In July 1999, the Supreme Court issued the Olmstead v. L.C. decision.[209] The Court’s decision in that case challenged state governments to provide people with disabilities with community-based, rather than institutional, services. The Olmstead decision interpreted Title II and its implementing regulations, requiring states to administer their services, programs, and activities “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” The Court found that unjustified institutionalization constituted discrimination under Title II of the ADA. The Court found that the cost of providing services in community-based, rather than institutional, settings was not a defense to the obligation except when the state could show that, in the allocation of available resources, immediate relief for a particular individual would be inequitable to the other individuals under the state’s care.[210] Since the Court’s Olmstead decision, lower courts interpreting the decision have been reluctant to insert themselves into the administration of health care services. Community-based health care, mental health, and housing services are increasing slowly in response to the Olmstead decision. Courts have accepted as legitimate slow movements by the states toward community-based care.
In July 2001, President George W. Bush issued an Executive Order providing guidance on the implementation of the Olmstead decision and allocated over $120 million in grants in 2001–2002 to increase community-based integration for people with disabilities.[211]
2. Relevant Data
a. Federal Olmstead Initiatives
On March 25, 2002, the U.S. Department of Health and Human Services (HHS) submitted to the President a report entitled Delivering on the Promise.[212] The report summarized agency activities that support Olmstead’s goal of community integration, identified barriers in government programs that are impeding full implementation of Olmstead, and proposed more than 400 solutions aimed at removing these barriers.[213] According to a 2004 Progress Report on the President’s New Freedom Initiative, the following federal activities are specifically related to promoting de-institutionalization:[214]
i. Department of Health and Human Services (HHS)
In October 2002, HHS established the Office on Disability to address the coordination of disability policies and programs across HHS agencies. HHS’s Centers for Medicare and Medicaid Services (CMS) had awarded nearly $200 million since 2001 under the Real Choice Systems Change Grants for Community Living, which has the goal of enabling people with disabilities to reside in their communities and participate more fully in community life. Since 2003, CMS funded $12 million in demonstration grants to improve the direct service community workforce, which enables state and community-based providers to test new strategies for recruiting, training, and retaining direct service workers.
Since 2001, HHS’s Administration on Aging supported family caregivers through the National Family Caregiver Support Program with over $400 million to states and tribal governments to develop multi-faceted systems of support to extend the caregiving efforts of families, friends, and neighbors.
ii. Department of Justice (DOJ)
DOJ evaluates residential placements, in each investigation of healthcare facilities, under the Civil Rights of Institutionalized Persons Act (CRIPA) in light of the ADA’s requirement that services be provided to residents in the most integrated setting appropriate to their needs. DOJ has issued letters of finding citing violations of Olmstead involving four facilities for people with developmental disabilities, six nursing homes, and the children’s unit of a psychiatric hospital. DOJ has worked with officials in several states to help states and other jurisdictions provide community-based services to people who are currently residing in publicly-operated institutions.
iii. Department of Labor (DOL)
In September 2003, the Department of Labor’s Office of Disability Employment Policy, and its Center for Faith-Based and Community Initiatives, awarded $500,000 to eight recipients to provide home modifications as a means of expanding the community integration of people with disabilities, particularly those seeking employment.
In 2005, the President’s proposed federal expenditures to promote community integration initiative included:
- $1.75 billion through fiscal year (FY) 2009 for the “Money Follows the Individual Rebalancing Demonstration,” with $350 million targeted for FY 2005. This demonstration would assist states in re-balancing long-term care systems to support cost-effective choices between institutional and community options, including financing Medicaid services for individuals who move from institutions to the community;
- $327 million through FY 2009, with $18 million for FY 2005, to fund three demonstrations that promote home and community-based care alternatives. Two of the demonstrations provide respite care services for caregivers of adults with disabilities or long-term illness, and children with substantial disabilities. Another demonstration provides community-based care alternatives for children who are currently residing in psychiatric residential treatment facilities;
- $102 million through FY 2009, with $17 million in FY 2005, to continue Medicaid eligibility for spouses of people with disabilities who return to work. Under current law, people with disabilities might be discouraged from returning to work because the income they earn could jeopardize their spouse’s Medicaid eligibility. This proposal would extend to the spouse the same Medicaid coverage protection now offered to the worker with a disability;
- $40 million to continue the Real Choice Systems Change Grants Program, including nearly $3 million to continue the demonstration program being administered by CMS to promote the recruiting, training, and retention of direct service workers.[215]
Federal Medicaid spending on home and community-based waiver services has grown exponentially, from 37 percent in 1992 to 66 percent in 2001. In 1992, 15 percent of all long-term care spending went to home and community-based care waiver benefits, while by 2002 that figure had risen to 30 percent.[216]
While the Federal Government’s commitment to these new initiatives has been welcomed in the disability community, it has been criticized on two counts: (1) a lack of an overall national policy framework for community integration of people with disabilities, and (2) inadequate stimulation of change in the long-term care system to eliminate unnecessary institutionalization of people with disabilities.[217]
b. State Olmstead Initiatives
The Supreme Court suggested that states demonstrate compliance with the Olmstead decision by producing formal plans for increasing community integration. Olmstead directs states to make “reasonable modifications” in programs and activities. Modifications that would “fundamentally alter” the nature of services, programs or activities are not required. As a result, the Federal Government encourages states to plan for reforms not only in the health arena, but also in transportation, housing, education and other social supports that can help people with disabilities live in the community.
Because Medicaid is the primary funding source for long-term care and covers a large number of people with disabilities, many states focused their initial efforts on how Olmstead affects Medicaid budgets. More than 35 percent of all Medicaid spending goes to long-term care services. Institutions get the lion’s share, about 71 percent in 2001. Many refer to this lopsided distribution as the “institutional bias.” Medicaid waivers are necessary to allow services in the home and in communities. Although every state has a variety of waivers to provide community-based services,[218] the majority of funds continues to be directed at nursing homes or other institutional settings.[219] Every state also allows home health care in at least some circumstances.[220] However, 20 states do not cover personal care services.[221]
As of 2004, 29 states had issued Olmstead-related plans or reports. Many of these plans rely on Medicaid community service options, in combination with resources from other programs, to achieve the types of community programs that make it possible for people with disabilities to live and work in their own communities.[222]
The definition of an Olmstead plan is not clear-cut and states have developed alternative approaches to Olmstead planning.[223] Some states have developed specific strategies for implementation over a number of years. Others identified key priorities for immediate action. Still others set out broad policy recommendations. Many plans anticipate frequent amendments.[224]
Some states have displayed little specific strategic work in this area. One study reports three state strategies to address Olmstead compliance: legislative action (policy and budgetary mechanisms for moving money around the system); market-based approaches (consumer information to enable choice and create demand for Home and Community-Based Services (HCBS)); and fiscal and programmatic linkages (e.g., improving coordination between services and increasing HCBS capacity).[225]
The focus of state plans has been to:
- Help people make the transition from institutions into the community;
- Promote affordable and accessible housing;
- Improve the recruitment and retention of direct care workers;
- Provide information and referral as well as family-centered assessments;
- Allow funding to follow the individual rather than the providers;
- Reduce the waiting lists for home and community-based services;
- Increase employment opportunities for people with disabilities;
- Enhance data collection activities and systems;
- Increase accessible transportation options;
- Ensure quality of care based on outcomes.[226]
NCD’s 2003 Olmstead Report found, in part, the following regarding state plans:
- Plans do not consistently provide for opportunities for life in the most integrated setting as people with disabilities define “the most integrated setting”;
- The majority of states have not planned to identify or provide community placement to all institutionalized persons who do not oppose community placement;
- Few plans identify systemic barriers to community placement or state action steps to remove them and few plans contain timelines and targets for community placement;
- State budgets often do not reflect Olmstead planning goals.[227]
Medicaid coverage of nursing home services is mandatory. However, coverage of most community-based services is optional. To address this institutional bias, states such as Texas are allowing funds that are devoted to the care of institutional residents to follow them into the community.[228] Specifically, sources in 25 states—Arizona, Arkansas, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Washington and Wisconsin—described efforts to shift more people from nursing homes and “intermediate care facilities for the mentally retarded” (ICF/MRs) into the community or to divert people from unnecessary institutional placements during the hospital discharge planning process.[229]
Many of these states are helping people make the transition by giving allowances to fund the move and housing fees and by providing assistance through case managers. Florida is implementing three pilot nursing home transition programs with the goal of moving 1,200 people during FY 2003–2004 and allowing Medicaid funding to follow the person. Pennsylvania is developing a three-county pilot project to streamline Medicaid waiver eligibility to divert people from nursing homes. Wisconsin received a systems change grant to move about 200 people with developmental disabilities out of institutions.[230]
According to a report by the National Conference of State Legislatures, since 2001, state budget restrictions have delayed implementation of Olmstead efforts. Although community-based services are estimated to be less costly than institutional services in the long term, during the transition from institution to community-based programs, expansion of services is required. Thus, without adequate additional funding, and facing overall budget shortfalls, states have not succeeded in implementing their Olmstead plans. As a result, numerous lawsuits have been filed to enforce Olmstead obligations.[231]
However, progress has been made. In April 2005, there were 16,094 nursing homes in the United States, down from 16,516 in December 2002. The U.S. Department of Health and Human Services reports that nearly 1.399 million people were in nursing homes in the first quarter of 2006, and over 297,000 (21 percent) of them expressed a preference to live in the community.[232] This number is down from the fourth quarter of 2002, when 1.43 million people were in nursing homes.[233]
Only six years have passed since the Olmstead decision requiring states to emphasize community integration. As of 2002, the Government Accountability Office estimated that there were at minimum 1.8 million people with disabilities being served in institutional settings, including 1.6 million individuals in nursing facilities, 106,000 individuals in institutions for people with developmental disabilities, and 57,000 individuals in state and local facilities for individuals with mental illness.[234] Since the Olmstead decision, state and Federal Government agencies have been changing their systems to facilitate community integration. The effects of these changes have not yet resulted in substantial numbers of people with disabilities leaving institutions, and courts have not been willing to push states to move more quickly. However, the Olmstead decision holds great promise for people with disabilities, particularly those with mental illness or intellectual disabilities, who want to become more integrated into their local communities.
3. Input from People with Disabilities
Survey respondents indicated that Olmstead has not yet been effectively implemented to a degree sufficient to meet the needs of people with disabilities. The Bazelon Center for Mental Health Law issued this statement on the fifth anniversary of the Olmstead decision:
- “While many Americans with disabilities have made progress since the Olmstead ruling, people with mental illnesses have been largely left behind in efforts to implement the decision. Most states are enacting Olmstead reforms at a snail’s pace, defying the spirit of the ruling and preventing Americans with mental illnesses from participating in their communities.
- Rhetoric has far outstripped action to promote community services for people with mental illnesses. States are quick to trumpet their limited efforts to implement Olmstead, but these have produced little actual movement of people with mental illnesses into integrated community settings.
- Budget pressures have closed psychiatric hospitals across the country, but few appropriate community services have been adequately funded to help people with mental illnesses live successfully in the community. Instead, states have ‘transinstitutionalized’ people with mental illnesses to settings as outmoded, isolating and inappropriate as the facilities they were meant to replace. Increasing numbers of people with psychiatric disabilities now find themselves in large board and care homes, ‘adult homes,’ nursing homes, and other institution-like settings. Thousands wind up in jail or prison because chronically underfunded community mental health systems fail to provide meaningful support.
- Where real progress has occurred, it is largely because states have been sued. Five years after Olmstead and 14 years after enactment of the Americans with Disabilities Act, litigation should be unnecessary. Yet it remains the single most effective way to combat the persistent segregation of people with mental illnesses.”[235]
Olmstead was discussed extensively in the Savannah public forum, which was attended by advocates who are involved daily in promoting Olmstead implementation. One was the lead attorney for “L.C.” in Olmstead v. L.C. These participants suggested that many people with disabilities, particularly those with developmental disabilities or mental illness, are not benefiting from Olmstead.
I don’t mean to say that lots of people aren’t moving out of institutions into the community; they are. And I don’t mean to say that we’re stuck in the legal sense because we’re definitely moving toward a better development of legal rights in this country for people with disabilities.
But I do mean to say that the people I encounter on a daily basis are, if not in as bad a shape—they may in some cases be in worse shape because staffing is bad, treatment is bad, professionals are not particularly competent in many cases, and there’s a very limited understanding among institutional staff, still, about the rights of the people they are serving. There is very little understanding that they have a right to apply for all these community-based services. The institutional staff doesn’t know that. They have no clue.[236]
These advocates endorsed the “Money Follows the Person” concept, which has been proposed in the Senate by Sen. Tom Harkin (D-IA) and as a budgeted demonstration project by the Bush Administration. Under this bill, the Medicaid money paid by states and the Federal Government would follow a person with a disability from an institution into the community. The legislation would provide 100 percent federal reimbursement for the community services that individuals need during the first year after they move out of a nursing home or similar facility. After that first year, individuals would remain in the community, and states would receive their regular Medicaid match for their services.
The breakdown of the community-based programs is due to not enough money being attached to be able to develop real supports that are going to give people the services they need …. Maybe attaching the money to the individual will expedite those things. When a person has money they get a service, so maybe that’s the key, to make sure that each individual has enough funding to be able to meet their needs in a person-centered way. That’s an idea to think about, and something that would work a lot better if you started doing something like that, rather than setting up granting agencies all over the place, where they don’t meet the needs of the individual, but they meet the needs of the system.[237]
B. Recommendations – Independent Living
- Congress should increase Medicaid support for community-based treatment settings;
- Congress should pass and fully fund the Money Follows the Person Act;[238] and Medicaid Community-Based Attendant Services and Supports Act;[239]
- Congress should require states to expeditiously complete effective Olmstead plans, consistent with HHS guidance;
- The Department of Health and Human Services should require states to fund personal care services when needed to allow a person with a disability to remain in their community;
- The Departments of Health and Human Services, Education, Transportation, Housing and Urban Development, Justice, and Labor, and Equal Employment Opportunity Commission, working with state and local governments and community agencies should implement local initiatives to extend the integration mandate to housing, education, transportation, employment, and other areas affecting people with disabilities;
- The Department of Justice should increase and target enforcement of the Civil Rights of Institutionalized Persons Act on requiring effective deinstitutionalization efforts and publishing creative and effective programs to provide community-based services;
- The Department of Labor’s program funding home modifications should be significantly expanded to allow people with disabilities and the elderly to live in their communities;
- The Departments of Health and Human Services, Education, Transportation, Housing and Urban Development, Justice, and Labor, and Equal Employment Opportunity Commission, should work with disability communities and others to develop an overall national policy framework for community integration of people with disabilities;
- The Department of Health and Human Services should study systems of long-term care and long-term care insurance to eliminate unnecessary institutionalization of people with disabilities and aging people.
IV. Economic Self-Sufficiency
People with disabilities traditionally have relied on government benefits and charity for survival, and Congress found, when passing the ADA, that as a group, people with disabilities occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally. Economic self-sufficiency, for purposes of this study, is defined as financial security for people with disabilities, which is achieved by education, employment, and asset accumulation. Availability of appropriate health care and insurance coverage are additional aspects of economic self-sufficiency.
There is no direct evidence to suggest that Americans with disabilities are becoming more economically self-sufficient. Improvements in areas such as education, reasonable accommodations on the job, and improvements in access to public transportation, factors that might be expected to contribute to economic self-sufficiency in the long run, give some reason for optimism, and warrant further study. The education gap between people with disabilities and people without disabilities is shrinking and people with disabilities are attending postsecondary institutions in record numbers, but their graduation rates lag behind their counterparts without disabilities. Educational supports and services for students with disabilities are now available at most of the nation’s 3,000 postsecondary institutions. There is evidence that people with disabilities are experiencing less discrimination on the job, but they are not experiencing increases in hiring. People with disabilities rarely win ADA employment discrimination cases. The percentage of people with disabilities living in poverty has not decreased since passage of the ADA—a disappointing finding that many attribute to Social Security rules that trap people into living at poverty levels in order to retain essential medical supports and services.[240]
A. Financial Assets and Insurance
1. Financial Assets
NCD was unable to discover a comprehensive and reliable source of information on the financial assets of people with disabilities. However, as research at the Burton Blatt Institute (http://bbi.syr.edu) and by others shows, it is generally understood that limited access to financial assets is one of the challenges facing many Americans with disabilities. Additionally, significant disparities exist between the financial resources of people with disabilities and people without disabilities.
In 2006, the U.S. Bureau of the Census data indicated that approximately one in every five Americans with a disability (19 percent) live in poverty, three times the percentage of people without disabilities living in poverty.[241] Twenty-six percent of Americans with severe disabilities live in poverty.[242] The 2000 N.O.D./Harris Survey of Americans with Disabilities indicated 28 percent of people with severe disabilities lived in poverty, as compared to 8.3 percent of people with no disability.[243] In 1990, before implementation of the ADA, 19 percent of people with disabilities lived in poverty—exactly the same percentage as in 2006.
NCD currently has a financial incentives study underway that will investigate the extent to which people with disabilities have access to financial assets, such as savings, investments, and loans, the disparity between the financial assets of people with disabilities and people without disabilities, and the costs and availability of health insurance coverage and benefits for people with disabilities. NCD believes that this Financial Incentives study will provide much-needed information for the development of strategies to improve economic self-sufficiency for people with disabilities.[244]
Banks and financial institutions have responded to pressure to make their services accessible to people with disabilities. Numerous lawsuits and structured settlement negotiations have resulted in Citibank, Wells Fargo, Bank of America, Fleet Bank, Sovereign Bank, Citizens Bank, Chase/Bank One, First Union Bank (now Wachovia), Union Bank of California, Washington Mutual, and LaSalle Bank installing talking ATMs, providing statements in accessible formats, and increasing accessibility of their Web sites to screen readers for people with vision impairments. American Express has also agreed to provide statements and other written materials in braille and other formats for credit card customers.[245] Current estimates indicate that over 50,000 talking ATMs are available at banks across the country.[246]
2. Health Insurance
Who receives health care services and how much service is obtained depends on one’s health care coverage, or health insurance, which is, unfortunately for people with disabilities, intertwined with employment. Either an individual is able to work full-time at one employer long enough to qualify for employer-based health insurance (EBHI), or an individual must be assessed as totally unable to work, thereby qualifying for public health coverage. Those between these two extremes, where people with disabilities are likely to find themselves, have difficulty obtaining health coverage, threatening their access to health care, risking a deterioration of their health conditions, and further limiting their ability to work. Almost one of every five working age people with disabilities lacks health insurance. Even people with disabilities who are employed are less likely to have health insurance than workers without disabilities. Among full-time employees, for example, 65 percent of those with disabilities had EBHI, compared to 74 percent of those without disabilities.[247]
People with disabilities and people without disabilities are equally likely to be covered by some form of health insurance (88 percent – 91 percent).[248] However, most of the people with disabilities covered (56 percent) are covered by Medicaid or Medicare, while most people without disabilities are covered by private insurance (78 percent). These differences in the sources of coverage are significant and may explain why people with disabilities are significantly more likely to go without needed medical care than people without disabilities (18 percent versus 7 percent).
B. Higher Education
1. ADA Requirements
Postsecondary schools must ensure that the programs they offer, including extracurricular activities and avenues of communication, are accessible to students with disabilities. State colleges and universities must ensure “program access”[249] under Title II, while private colleges must ensure readily achievable barrier removal under Title III.[250] Under both titles of the ADA, such access is to be supported through the provision of “reasonable modifications” to policies, practices and procedures[251] and “auxiliary aids and services.”[252]
Academic adjustments may include classroom and testing modifications, such as extra time on examinations, provision of materials in alternative formats, and ensuring physical accessibility of classrooms and labs. Auxiliary aids and services include practices that create access to information for people with sensory impairments, such as providing sign language interpreters for students who are deaf and readers for students who are blind.
2. Relevant Data
The education gap between people with disabilities and people without disabilities is shrinking and people with disabilities are attending postsecondary institutions in record numbers. Although people with disabilities remain twice as likely to drop out of high school as people without disabilities (21 percent versus 10 percent),[253] the number of postsecondary students reporting a disability has increased dramatically since the passage of the ADA.[254] The proportion of first-time, full-time students with disabilities attending colleges and universities tripled between 1978 and 1994, from 2.6 percent to 9.2 percent.[255] By 1998, the full range of students with disabilities (i.e., part-time students and students enrolled in graduate programs) had risen to 10.5 percent of the postsecondary student population.[256]
In a 2000 report, the National Council on Disability stated that as many as 17 percent of all students attending higher education programs in the United States were identified as having a disability. Learning disabilities are the most common type of disability reported by college students. Further, more than one-half of all the students with disabilities who enroll in postsecondary education completed their program of study. Within five years of starting postsecondary education, 41 percent of students with disabilities reported they had earned a degree or credential, and another 12 percent remained enrolled in their course of study.[257]
The 2004 N.O.D./Harris Survey confirms that people with disabilities are participating in higher education at higher rates than before the ADA (see Figure F). 40 percent of people with disabilities received some college or a degree (compared to 52 percent of people without disabilities) in 2004. In 1986, only 29 percent of people with disabilities were attempting college (compared to 48 percent of people without disabilities). Thus, the gap between people with disabilities and people without disabilities attending college has narrowed from 19 percentage points to 12 percentage points. However, people with disabilities are earning degrees at the same rate (14 percent) as in 1986.[258]
While people with disabilities are now enjoying greater access to education than before the ADA, there has been some decrease in the percentage attending college (from 49 percent attending at least some college in 1998 to 40 percent in 2004). This tracks a similar decrease in college attendance among people without disabilities.
Figure F: College Attendance of People With and Without Disabilities
Major higher education testing agencies have been sued over testing accommodations for people with disabilities and, as a result, have improved the provision of accommodations. In 2001, in response to a lawsuit, the Educational Testing Service, which administers the GRE, SAT, GMAT, and other tests, agreed to stop “flagging” tests taken with accommodations.[259] In 2002, the U.S. Department of Justice reached a settlement agreement with the Law School Admissions Council to ensure provision of accommodations on the LSAT for students with physical and communication disabilities.[260] These changes among the “gatekeepers” to higher education have allowed more students with disabilities to pursue undergraduate and advanced degrees.
Though variable in quantity and quality, educational supports and services for students with disabilities are now available at most of the nation’s 3000 postsecondary institutions.[261] A recent decision by the Ninth Circuit Court of Appeals may have made it more difficult for students with learning disabilities to obtain accommodations in higher education. In Wong v. Regents of the University of California,[262] the court found that a student with a learning impairment who was seeking accommodations in medical school was not “substantially limited” in the major life activity of learning and, therefore, was not protected by the ADA. The court found that, although he had been identified as having a learning disability as a child, because the student had succeeded in school (both with and without accommodations), he was not substantially limited in learning as compared to most people in the general population in their activities of daily living. The court found that the standard was not to compare the student’s learning ability to other students in school, but to compare it to what most people do in their daily activities. Because the student in this case was able to read and learn as well as most people need to in their daily living activities, although not as well as a medical student needs to, he was considered to not be protected by the ADA.[263]
This interpretation of the ADA may be making it difficult for students with learning disabilities to obtain accommodations in higher education, because their success in education may be evidence against them and because the abilities required for success in higher education will not be the standard of comparison for determining substantial limitation.
3. Input from People with Disabilities
Testimony from people with disabilities repeatedly emphasized the positive impact of greater access to higher education.[264]
I am blind since age twelve, born 1949. I graduated from our local, Labette Community College with honors in 2004. ADA very much helped to make it possible. First I was encouraged by state workers from Social Security Disability Services of Kansas. My instructors at the college were aware of ADA and its rules and provided needed reading for me, a blind person. The college was accessible, elevator, ramps, handicapped rest rooms, and teachers to read my exams or provide visuals and tutoring.[265]
C. Employment
The effects of the ADA on employment can be assessed on two levels: Hiring and On-the-Job Accommodations. The ADA’s effects on these two areas differ substantially.
1. Hiring
a. ADA Requirements
Title I of the ADA prohibits disability discrimination in hiring and application processes.[266] Thus, employers may not reject qualified applicants because of their disabilities or their need for reasonable accommodations and may not adopt qualification standards that unnecessarily exclude people with disabilities.[267]
b. Relevant Data
According to the 2004 N.O.D./Harris Survey, just over one-third (35 percent) of people ages 18–64 with disabilities are employed compared to more than three-quarters of those without disabilities.[268] These figures have not changed from those reported in the comparable 1986 poll.[269] In fact, the percentage of people with disabilities who were working dropped from 1994 to 2000 to as low as 29 percent.[270] Additionally, the 2004 poll showed that people with disabilities are nearly three times as likely as people without disabilities (26 percent versus 9 percent) to have a household income of $15,000 or less.[271] In 1986, 50 percent of people had a household income of $15,000 or less (compared to 25 percent of people without disabilities).
Some researchers have gone so far as to suggest that the ADA caused employment declines for people with disabilities, but this conclusion has not been supported by empirical study.[272] Our environmental scan suggests that employment rates for people with disabilities have been mixed since the passage of the ADA. One author argues that:
A closer look at the employment measures suggests that the overall rate of employment may not be the best measure of job opportunities, because it includes many people unlikely to acquire jobs regardless of any improvement in employer attitudes or workplace accessibility. A larger proportion of working-age adults with disabilities are not oriented toward participation in the labor force, either because they consider themselves unable to work or because they are engaged in other activities. That proportion has been growing—a disturbing development requiring closer scrutiny. But, when we leave this group [out of] statistics—when we consider only those people with disabilities who are able and available to work—we obtain what we believe to be a truer indication of changes in employer practices with regard to workers and job applicants with disabilities. When we do so, the picture brightens considerably. We find that employment opportunities improved significantly for people with disabilities—or, at least, for some people with disabilities—during the decade following the passage of the ADA.[273]
In an ADA Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary on September 13, 2006, Professor Robert Burgdorf Jr., a leading ADA scholar, posited that, because Supreme Court decisions have so restricted the use of Title I of the ADA, it is impossible to know whether it would be effective, if ever implemented, in improving employment opportunities for people with disabilities.
The ADA is a civil rights law. Even if implemented, the employment provisions of the ADA do not have the ability to eliminate the deep structural barriers to employment that people with disabilities face:
The ADA’s antidiscrimination requirement can prevent an employer from refusing to hire a qualified person simply because the person has a disability, and the ADA’s accommodation requirement can force the employer to make some changes in facilities or job tasks to enable individuals with disabilities to perform particular jobs. But those mandates do not require the employer to provide in-home personal-assistance service or transportation to enable an individual with a disability to get to work, nor do they require the employer to provide the individual with health insurance coverage that is as adequate as he or she can receive through Medicaid. The solutions to these problems require more than simply mandating that individual employers cease discriminating and provide accommodations; they require more direct and sustained government interventions such as the public funding and provision of benefits.[274]
Unfortunately, there is a paucity of data on many questions regarding the employment of people with disabilities. NCD has an initiative underway to address the vacuum of research-based evidence and practices on the employment problems facing people with disabilities. NCD currently is conducting an “Employment Study” that will include an assertive and systematic review of both public and private policies and initiatives aimed at understanding the causes of underemployment and unemployment of people with disabilities and improving the employment of people with disabilities.
Incentives for employing people with disabilities warrant further study. For example, the Work Opportunity Tax Credit is a tax credit available to employers who employ people with disabilities and other disadvantaged groups. It does not appear that employers are taking advantage of this credit by hiring people with disabilities. In 1999, approximately 1 out of 790 and 1 out of 3,450 individuals with business affiliations reported the Work Opportunity Tax Credit on their returns, accounting for approximately $254 million.[275] The Department of Justice sent newsletters on tax incentives to over seven million businesses in 2002–2003.[276] Nevertheless, a 2003 study by the Society of Human Resource Management found that only 16 percent of surveyed businesses had ever used the Work Opportunity Tax Credit.[277]
A 2003 survey of 501 employers found that one-fourth (26 percent) of employers said that their company employs at least one worker with a mental or physical disability.[278]
Research on corporate culture and disability indicates that “researchers, policymakers, business leaders, and the disability community must engage in meaningful dialogue about the examination of disability rights law and policy in general, and the implications of the Americans with Disabilities Act (ADA) of 1990 for people with disabilities and their families and employers in particular.”[279] They must also be cognizant of who Title I covers, particularly given the changing coverage as a result of various Supreme Court decisions.
A 2003 survey of 501 employers found that 49 percent of employers have made recruiting and interviewing locations accessible, but only 12 percent have changed the format of job applications to make them more accessible, or changed the tests or evaluations used in hiring or promotion. In all instances, larger firms are more likely than smaller firms to have made changes to their business practices to accommodate and recruit workers with disabilities.[280]
A 2004 N.O.D./Harris Survey confirms that people with disabilities continue to have difficulty breaking into the job market. Although the frequency of other types of job discrimination decreased from 1994 to 2004, the frequency of being denied a job interview remained stable. In 1994, approximately 29 percent of respondents who had experienced job discrimination reported being denied an interview because of their disability or health problem. In 2004, 27 percent reported being denied an interview.[281]
Although people with disabilities are seeking higher education, they do not appear to be benefiting from that education in terms of greater employment opportunities. The 2004 N.O.D./Harris Survey indicates that higher education does not correlate to employment for people with disabilities to the degree that it does for people without disabilities. Thus, while 82 percent of people without disabilities who have college degrees are employed full- or part-time, only 54 percent of college graduates with disabilities are employed. To some extent, this may reflect higher ages of respondents with disabilities, 17 percent of whom were retired, as compared to 3 percent of respondents without disabilities who were retired.[282] Education among people with disabilities also does not appear to correlate to higher income levels. 50 percent of college graduates with disabilities earned $50,000 or less per year, while only 28 percent of graduates without disabilities earned $50,000 or less. At the $50,000–$75,000 range, the percentage of graduates with and without disabilities was approximately equal (23 percent – 24 percent). Graduates with disabilities were much less likely to be earning at the higher levels (>$75,000) than graduates without disabilities (16 percent versus 38 percent).[283]
c. Input from Employers
Employers reported that businesses generally do not track the number of their employees with disabilities.[284] Because of the ADA prohibitions on pre-employment and post-employment inquiries into disability, and the requirements of confidentiality of disability-related information, employers are discouraged, if not actually prohibited, from collecting and reporting such information. This makes it difficult to assess the progress of people with disabilities in employment, particularly of those who are successfully employed. It is likely that this fact is skewing the data on employment of people with disabilities, as employed people with disabilities are less likely to have the time to participate in surveys, forums, and meetings about disability and employment. Moreover, this inability to count and brag about hiring people with disabilities may be counterproductive to the goal of increasing employment.
Employers consistently commented that they had made significant changes to their employment application processes to make them more accessible to people with disabilities.[285] They also commented that the vagueness of the definitions of “person with a disability” and “reasonable accommodation” made compliance more difficult than it should be.[286]
d. Input from People with Disabilities
In the focus groups, public forums and e-mail responses, nearly half of those who addressed employment concerns suggested they had been discriminated against by employers. Across the board, the discrimination was believed to occur at the hiring stage. People with disabilities believed they had been turned down for jobs because of employers’ attitudes toward disabilities—an action difficult to prove in an employment discrimination case.
If the ADA has improved employment opportunities I would like to see the evidence. In my experience seeking employment with a visible disability I found employers uncomfortable with my situation. Although I was well-qualified for the positions I was never able to get past the initial interview nor was there any level of follow-up on the part of the companies. I believe that employers view the ADA as adversarial to their role.[287]
This view is consistent with the data indicating that hiring of people with disabilities has not increased since passage of the ADA. The hiring stage of the employment process is the most difficult to address under the ADA, as an applicant with a disability will rarely be told the reasons he or she was not hired. Employers, who are discouraged by the ADA from counting employees with disabilities, cannot effectively publicize any positive hiring efforts they make.
Financial incentives for hiring people with disabilities have not been sufficient incentive to improve hiring of people with disabilities. NCD’s ongoing Financial Incentives Study is investigating this issue. Although many government programs are directed at improving the employment rates of people with disabilities (e.g., health care, education, vocational rehabilitation, transportation subsidies, housing, and other areas) either directly, indirectly, or through specialized services, resources or environmental access, little is known about the extent, utilization, or impact that these financial incentives have on the everyday lives of people with disabilities. Financial incentives can be in many forms, including tax credits (e.g., for employees with disability-related work expenses or for employers) or the removal of disincentives to work. Financial incentives may be directed at people with disabilities who are seeking employment, for employees with disabilities, and for employers who hire people with disabilities; this will be considered along with some non-tax incentives for daily living that are of particular interest to people with disabilities. While many financial incentives have traditionally focused on improving employment, NCD will look at financial incentives in the broader context of self-sufficiency and integration into the larger society.
The Financial Incentives Study will:
· Identify factors that influence the use of financial incentives by employers, employees, and potential employees who are people with disabilities;
· Assess what is needed to increase the use of incentives and/or create new incentives;
· Examine the potential role of financial incentives with respect to aspects of living that affect obtaining and maintaining meaningful employment (e.g., affordable and accessible assistive technology, housing, transportation, health care, personal assistance, and other supports);
· Analyze the different approaches to financial incentives in selected states;
· Prepare a cost-benefit economic analysis model for employers.
2. Reasonable Accommodation and Promotion
a. ADA Requirements
Title I of the ADA requires employers to make reasonable accommodations to the known physical or mental disabilities of employees.[288] Reasonable accommodations can include making facilities accessible to employees with disabilities, job restructuring, reassignment to vacant positions, modification or acquisition of accessible equipment, adjustment of training materials, provision of interpreters and readers, and other accommodations.[289]
b. Relevant Data
It appears that, once a person with a disability is hired, he or she is less likely to experience employment discrimination and is more likely to receive reasonable accommodations, if needed, than before the ADA. The ADA has similar positive effects for people who acquire their disabilities while they are employed.
According to a 1995 Harris Survey of employers, 80 percent of executives of large companies reported that the cost of accommodating people with disabilities had increased only a little or not at all. Only seven percent reported a large increase. Sixty-six percent of the executives reported no increase in litigation, and only 14 percent saw “a little” increase. The number of companies that had actually made accommodations had increased. In a 1986 survey of employers, Harris found that 51 percent of corporations surveyed had made some accommodations.[290] In 1995, the figure had risen to 81 percent.[291]
In the 2003 Harris Survey of 501 employers, which included small employers, only 40 percent provided training of any kind to their employees regarding working with or providing accommodations to people with disabilities. Further, only 34 percent of companies with 5–24 workers provided training to their employees in this area. Fifty-two percent of larger companies employing more than 25 workers provided training.[292]
Little empirical evidence is available to understand employers’ decisions to provide accommodations. One line of study explores employee and employer factors associated with decisions to accommodate. The analyses are based on nationwide data from interviews with employers who contacted the Job Accommodation Network (JAN) concerning workplace accommodations.[293] The data was derived from more than 1,000 interviews that took place between 2004 and 2005 with employers who consulted JAN regarding employee accommodations. The majority of interviews concerned accommodating a current employee. More than three-fourths (82.4 percent) of these consultations focused on retaining an employee and an additional 1.8 percent concerned promoting a current employee.[294] Accommodation inquiries about job applicants made up a small percentage of the sample (4.6 percent), as did inquiries about hiring new employees (1.6 percent).[295] A few inquiries involved company-wide issues. For more than half of the consultations, workplace accommodations were made subsequent to the consultation with JAN. Of the 540 employers who provided feedback, accommodations had been made (or were pending implementation) in 55.2 percent of the consultations.[296] The most common reason reported for not making an accommodation involved a determination by the company that it was not required under the ADA or any other law (58.5 percent).[297]
Accommodations were most likely to be made for employees who were considered to have a substantial limitation of a major life activity. Accommodations were made in 61.2 percent of the 402 consultations for employees with substantial limitations.[298] Accommodations were made in 42.6 percent of cases for employees whom the employer considered not to have a substantial limitation.[299] Whether an accommodation was made was significantly related to the employer’s ratings of the employee’s ability to work with accommodations.[300]
The researchers also analyzed employer reports of costs and benefits associated with providing the accommodations. Cost and benefit data were available only in those situations in which the employer had decided to provide the accommodation. Of the respondents who made an accommodation, 226 were able to provide the actual or estimated direct cost of the accommodation.[301]
Forty-nine percent of the accommodations made had no cost. Almost all employers reported that providing the accommodation benefited the company by allowing it to retain (91.6 percent) and/or promote (11.3 percent) a qualified employee.[302] Other direct benefits reported included eliminating the cost of training a new employee (59.5 percent), saving on worker’s compensation or insurance costs (43.0 percent), increasing the accommodated worker’s productivity (76.7 percent), improving the accommodated worker’s attendance (53.3 percent), and increasing the diversity of the company (41.4 percent).[303]
The study’s core findings include: (1) Current employees with substantial limitations of major life activities are substantially more likely to receive accommodations, compared to those without substantial limitations; (2) Employers are more likely to provide accommodations for employees whose work-related limitations are mitigated by effective accommodations; (3) Accommodations for employees without substantial limitations cost less than those provided to employees with substantial limitations; and (4) Overall, accommodation costs are low and benefits are relatively high.[304]
According to the 2004 N.O.D./Harris Survey, fewer people with disabilities are experiencing on-the-job employment discrimination (see Figure G). A major purpose of the ADA is to eliminate discrimination against people with disabilities in employment. In 2004, fewer respondents with disabilities, who were working full- or part-time, reported experiencing employment discrimination than in 1986, and there was an even greater decrease in people with disabilities reporting employment discrimination than in 1998. In 1986, for instance, 28.2 percent of Harris Poll respondents with disabilities who were employed reported that they had encountered job discrimination because of their disability or health problem. In 1998, one third (32.8 percent) of those surveyed reported experiencing job discrimination and this rate fell substantially by 2004 to 22.1 percent.
Figure G: Harris Poll Respondents with Disabilities Working Full- or Part-Time Who Report Experiencing Employment Discrimination
In regard to promoting employees with disabilities, the Harris surveys have found that respondents in 2004 were less likely to have been denied a promotion than in earlier years. More than one in four (24.6 percent) respondents in 1994 who had experienced job discrimination reported being denied a promotion because of their disability. By 2004, this had been reduced to less than one in five (16.7 percent) (see Table D).[305]
Table D: Type of Employment Discrimination Due to Disability
Type of Employment Discrimination |
Percentage of Employed Participants |
1994 |
1998 |
2004 |
Refused an interview |
28.8% |
23.7% |
26.9% |
Refused a job |
61.4% |
59.3% |
30.8% |
Denied a promotion |
24.6% |
29.3% |
16.7% |
Given less responsibility than co-workers |
37.3% |
39.0% |
14.1% |
Paid less than co-workers |
18.6% |
32.8% |
12.8% |
Denied health insurance |
23.3% |
31.7% |
3.8% |
Denied other work related benefits |
22.4% |
23.3% |
6.4% |
Compared to their 1994 cohorts, 2004 employed respondents were significantly less likely to have been refused a job, given less responsibility than co-workers, or been denied health insurance or other work benefits because of their disability. In 1994, 61.4 percent of respondents who had experienced job discrimination reported being denied a job because of their disability. In 2004, only 30.8 percent reported having been denied a job. In 1994, more than two out of three respondents (37.3 percent) who had experienced job discrimination reported that they had been given less responsibility than their co-workers. Significantly fewer similar respondents in 2004, 14.1 percent, reported this experience. In 1994, of participants who had experienced job discrimination, 23.3 percent reported being denied health insurance, and 22.4 percent reported being denied other work-related benefits. In 2004, only 3.8 percent were denied health insurance, and 6.4 percent were denied other work-related benefits.
c. Input from People with Disabilities and Employers
One company noted they had made changes in their policies as a result of the ADA, even though they had been viewing it as a diversity issue for 30 years prior to the ADA. They noted that the ADA brought more disability to the forefront as a key initiative for managers, hiring, conversation in the company, and for employees. That company indicated that it had great impact on their organization or culture based on the breadth and intent of the ADA, and that the ADA brought things to the next level of consciousness, that next step of diversity or affirmative action in some people’s organization. And, they noted it gave access to potential hiring of individuals that maybe they had not considered to the same degree before and it obviously changed directions and areas of recruiting individuals.
Another employer said, in general, they believed the Act had a positive influence on their organization, allowing them to develop credibility with employees in responding to requests for accommodations, reinforcing from their advertising that they complied both with the letter and the spirit of the law. They indicated it gave them an opportunity to display that, in fact, that’s the way they operate their business, that it’s a positive any time that they can display our commitments to employees and give something to reinforce other messages about commitment to employees.
One employer discussed accommodations that involve some type of technology or access accommodation, and shared that they had set up a team at their headquarters for assistive technology that works on technical or access accommodations of the organization. They set that team up to insure that technology accommodations were compatible with their other technology platforms, because local managers didn’t have sufficient information to incorporate seamlessly with their existing technology platform. They found as a result that they received much better pricing and much more accommodation for future technology changes, noting also that the process works very smoothly, and that it’s very responsive to their technology accommodation needs.
One company indicated they have a localized accommodation process, but a centralized appeal process if accommodations are denied, to ensure people consistently receive the accommodations they need and are entitled to under the law. Two employers indicated they have teams to assess accommodation needs and determine the best way to meet the request for reasonable accommodations after an assessment of the individual, job, environment, and other factors related to that individual’s ability to do the job in the work location.
One employer stated that of the reasonable accommodation requests she receives, “probably 70 percent of the requests I see, the person isn’t actually disabled.”[306] Another equated reasonable accommodation with preferential treatment.[307]
In our focus groups with people with disabilities, one individual discussed making a request for a reasonable accommodation, which he received after putting the request in a letter.[308] Another participant said that he knew a person who had received extensive accommodations, which he believes she would not have gotten without the ADA.[309]
The majority of public forum participants with disabilities who made comments about reasonable accommodations said employers were not doing enough to provide them. E-mail writers were more evenly split, with 51 percent saying they had received an accommodation from an employer.
3. Lawsuits
Private lawsuits under Title I of the ADA are rarely decided in favor of people with disabilities. The scholarship on Title I ADA court cases is voluminous. Our environmental scan found that the overwhelming majority of articles, 79 percent, were pessimistic or negative about the impact of Title I of the ADA on the employment prospects of people with disabilities. Three main reasons are given by scholars for the law’s perceived failure: adverse rulings by the Supreme Court as well as by many lower courts; the limits of antidiscrimination law in changing the broader problems faced by people with disabilities; and the limitations of the “accommodation mandate.”[310]
Many scholars say the restrictive Supreme Court ADA decisions make it harder for people with disabilities to prove that they have disabilities, bolster the defenses that can be used by those accused of discrimination, and limit the damages and legal costs that can be collected by those whose complaints are upheld.[311] The National Council on Disability issued a report in 2003 cataloguing the Court’s negative impact on lower court decisions.[312] In December 2004, NCD published Righting the ADA, which analyzed the Supreme Court’s ADA decisions severely restricting the ADA protections available to applicants and employees with disabilities.[313] This Report includes draft legislative language which would restore ADA protections for people with disabilities who experience employment discrimination.
The American Bar Association has conducted a number of studies on Title I ADA court cases and most recently (2003) found that in 97.3 percent of Title I cases, the employer won.[314] The Equal Employment Opportunity Commission (EEOC), which enforces Title I, reports that in FY 2004 the agency received 15,376 charges of disability discrimination, resolved 16,949 disability discrimination charges and recovered $47.7 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation). These rates have dropped during the last several years. For instance, in FY 1998, EEOC resolved 23,324 charges, and recovered $53.7 in monetary benefits.[315] These drop-offs in recent years could be attributed to people with disabilities experiencing less discrimination by employers, the discouragement of filings because employers normally win Title I cases, the narrowing of the ADA by the courts, or to a combination of the three factors.
Some scholars argue that these figures regarding the success (or lack thereof) of disability employment lawsuits are not reflective of the actual impact of the ADA. The vast majority of claims are resolved prior to any litigation and, people with disabilities appear to have been more successful at obtaining reasonable accommodations and fair treatment on the job than before the ADA.[316]
D. Recommendations – Economic Self-Sufficiency
· The Department of Education should work with colleges, universities, and public schools to enhance the effectiveness of supports, such as preparing students to better negotiate their supports and services, assisting students with coordinating and managing supports and services, and facilitating the use of technology in education and employment;
· The Department of Education should improve coordination of services between the educational system and the vocational rehabilitation system, particularly as regards funding for services and assistive technology;
· Disability organizations, and research and policy centers focused on economic empowerment for people with disabilities such as the Burton Blatt Institute, should work with philanthropists and federal and state government agencies to improve availability of scholarship, tuition waiver, and loan repayment programs for students and adults with disabilities who wish to pursue higher education;
· Congress should extend and expand the Mental Health Parity Act to ensure that people with mental health disabilities are able to secure treatment;
· The National Institute on Disability and Rehabilitation and Research should study insurance coverage issues that prevent people with disabilities from accessing private insurance;
· The Equal Employment Opportunity Commission, the Department of Labor, and National Institute on Disability and Rehabilitation and Research should place immediate priority on increasing the hiring of people with disabilities, through:
6. Study the reasons employers are not hiring people with disabilities;
7. Conduct confidential surveys of hiring practices;
8. Improve job placement services for people with disabilities and programs to assist employers to recruit individuals with disabilities;
9. Improve positive incentives and tax breaks for hiring people with disabilities;
10. Eliminate Social Security and Medicaid regulations that discourage people with disabilities from working;
11. Assistance with research and purchase of accessible equipment;
12. DOJ and EEOC should conduct testing of business hiring practices to identify discriminatory hiring practices and pursue enforcement actions.
Summary of Findings
Most people with disabilities who participated in the public forums, focus groups, and information requests report the ADA has had a significant positive impact on their lives. This was also true of the participants in the 2004 Harris Survey, in response to which most people with disabilities reported improvement in quality of life since passage of the ADA. According to the 2000 Harris Poll of Americans with Disabilities, more than 60 percent of people with disabilities perceived significant improvements in public facility access, personal quality of life, and public attitudes.
The most significant improvements appear to have occurred in telecommunications, transportation, and access to public accommodations. However, the lack of access to information resulted in the perception by many people who are blind or visually impaired that the ADA was not achieving its goals.
People with disabilities have mixed perceptions about the improvement of accessibility to state and local governments, and the absence of any ongoing tracking of access improvements by state and local governments makes it difficult to assess progress in this area. While access to public transportation, public sidewalks, and voting has increased, due in part to the active enforcement efforts of DOJ, independent living remains elusive for many because of the slow progress of governments in shifting from an institutional bias to home and community-based health care.
Strides are being made in access to, and participation in, higher education for people with disabilities. However, people with disabilities lag behind their nondisabled peers in graduation rates and post-college job success.
While some gains are seen in employment, particularly for people who become disabled while already in a job, obtaining a job when one has a visible disability remains difficult, and the percentage of people with disabilities living in poverty virtually is the same as before the ADA was implemented. Significant disparities exist in access to health insurance and health care for people with disabilities, as compared to people without disabilities—even when comparing workers with disabilities and workers without disabilities. While little data exist on the financial assets of people with disabilities, economic self-sufficiency remains elusive for too many people with disabilities.
c. Input from People with Disabilities
People who are blind or visually impaired, deaf or hard of
hearing, or have other communication disabilities were less likely to state that
private businesses operating public accommodations are meeting their
accessibility needs. Some individuals noted that
businesses need to become educated about Telephone Relay Services, saying
representatives of businesses often cut short Relay calls. For
instance:
"I make a lot of business calls in a week. Either
I get hung up on, or they put you on hold for 15, 20 minutes, hoping that you
hang up."
[149]
"Sometimes when we make a request for example,
for an interpreter at a doctor's office or attorney visit .. just a public
accommodation, it's very difficult. It's hard to make that request and just like
some others were saying, why is it so hard to make a request?"
Some people who are hard-of-hearing reported missing flights
because public announcements in airports, including announcements about gate
changes, are not provided visually.
People with vision impairments reported that braille and
large print were becoming more widely available.
[151]
However, braille and large print
materials are not reliably available and verbal announcements of visual
information in public spaces are rarely provided.
[152]
People with vision impairments continue to struggle to gain
access to the Web sites of public accommodations. Because the DOJ Title III
regulations do not specifically mention access to Web sites, people with vision
impairments have been forced to file lawsuits against entities that refuse to
make their Web sites accessible. To date, the courts have been split on this
issue.
[153]
But, since the implementation of Section 508 of the Rehabilitation Act,
[154]
which requires federal agencies to make their Web sites accessible, people with
vision impairments are frustrated that Title III regulations have not been
updated to apply the federal Web accessibility standards to places of public
accommodation.
3. Recommendations - Places of Public
Accommodations
The National Institute on Disability and
Rehabilitation Research should conduct a survey of businesses, perhaps through
the chambers of commerce or small business associations, to determine the degree
to which businesses have instituted readily achievable barrier removal efforts,
and provide guidance to Congress on adequately funding the Department of Justice
to enforce this part of the statute;
The Department of Justice and National Institute
on Disability and Rehabilitation Research should provide expert, individualized,
low-cost technical assistance and consulting to small businesses. The
ADA
and IT Centers and local offices
of the National Disability Rights Network are possible agencies to carry out
this effort;
The Department of Justice should expand its
Project Civic Access to increase enforcement in local areas by reviewing
businesses in identified localities;
Congress should require states to submit their
building codes for access certification by the DOJ;
The U.S. Access Board and Department of Justice
should continue coordination with model building code agencies;
The Department of Justice should increase
enforcement and education regarding how to serve customers with visual and
hearing impairments, particularly as it pertains to Web access and use of TTYs
and relay services;
DOJ should incorporate the Section 508 Standard
for accessible Web sites into Titles II and III;
The Department of Justice and National Institute
on Disability and Rehabilitation Research should develop technical assistance
materials regarding what people with disabilities and businesses should expect
of existing buildings of various sizes years after passage of the
ADA
.
D.
Accessibility of Telecommunications
1.
ADA
Requirements
Title IV of the
ADA
consists of two provisions: one
requires captioning of federally funded or produced public service
announcements; the other mandates nationwide telecommunications relay services
(TRS). TRS is required to "provide the ability for an individual who has a
hearing impairment or speech impairment to engage in communication by wire or
radio with a hearing individual in a manner that is functionally equivalent to
the ability of an individual who does not have a hearing impairment or speech
impairment to communicate using voice communication services by wire or
radio."
[155]
Newer Internet Protocol (IP) Relay Services allow people to
access TRS through the Internet, rather than relying on text telephones (TTYs).
A deaf caller uses a computer and the Internet to type messages to the relay
operator, who calls the call recipient and voices what the caller types. Video
Relay Services (VRS) allow people who use sign language to communicate with the
relay center using sign language through video equipment attached to a computer.
The caller signs to the relay interpreter via video and the relay interpreter
contacts the call recipient by telephone and voices what the caller signs. For
individuals without computers or Internet access, deaf callers can use several
access centers. This service may be particularly useful for people in rural
areas, where sign language interpreters may be unavailable. VRS is funded
through mandated contributions from all common carriers that go into a national
fund administrated by the National Exchange Carrier Association, Inc. ("NECA").
The Federal Communications Commission ("FCC") determines the rate that ensures
appropriate compensation to VRS providers.
Applicability of the
ADA
to these new services is not yet
settled. Because the
ADA
encourages
the FCC not to discourage the advancement of technology, some disability groups
have argued that the FCC should regulate VRS to encourage further development of
VRS technology and performance standards.
[156]
2. Relevant Data
The telecommunications aspects of the
ADA
have had a positive effect on
the ability of people with hearing impairments to communicate. Relay services
are now widely available and usage is high. Telecommunications Relay Services
(TRS) have been established for residents of every state to ensure that people
with speech and/or hearing impairments have access to telecommunications 24
hours a day, seven days a week.
[157]
Relay services are available by dialing 7-1-1 or local numbers.
The evolution of new technologies has served to increase use
of relay services. However, businesses have not been quick to understand and use
the technology.
·
No reliable data exists on the average annual
number of telephone relay calls prior to implementation of the
ADA
.
[158]
However, use of all forms of relay service
increased by 15 percent (from over 180 million minutes to over 208 million
minutes) from 2003 to 2004 (see Table B). Traditional relay service use is declining slightly (.3
percent), while Internet relay service is increasing (45 percent) and video
relay service is increasing tremendously (210 percent).
Table B: Relay
Service by Type, 2003-2004
[159]
·
Approximately 3,500 complaints were reported that
alleged a violation of one or more of the Federal Communications Commission's
mandatory minimum standards for TRS. This number indicates that just over
1/100th of a percent (.01 percent) of TRS calls resulted in an alleged violation
of required service standards. Over seventy-five percent of all complaints
stemmed from the interaction between the calling party and the communications
assistant.
[160]
The National Exchange Carrier Association (NECA)
is the administrator of the Interstate TRS Fund that compensates relay service
providers for the provision of relay services. NECA submitted to the FCC
the proposed new provider reimbursement rates, funding requirements, and carrier
contribution factor for the Telecommunications Relay Services (TRS) Fund. For
the period beginning on July 1, 2005, and ending on June 30, 2006, NECA is
recommending a total funding requirement of $413.3 million, a $124 million
increase from the current fund. NECA has recommended this increase in the size
of the fund, based primarily on continuing significant growth in demand for IP
Relay Services and Video Relay Services (VRS).
3. Input from People with Disabilities
In the public forums, many individuals spoke favorably of
relay services and several mentioned that technology was enhancing the
service.
"From a hard of hearing point of view, the
program obviously helps thousands and thousands of people. We have 600,000
pieces of equipment out there for the deaf, the hard of hearing and disabled.
Every month we do 1.5 million conversation minutes .. Relay service helps people
have jobs. It helps them communicate with the hearing community, be part of the
greater world."
[161]
"One of the big things I'm seeing more than ever
with deaf people in our community is the video relay services that are being
instituted now. So much more natural than having to slowly type out what you're
going to say, and that just naturally, the communication gap that happens in the
timeframe of typing."
[162]
Almost all of the e-mail writers on the subject of relay
services were enthusiastically positive.
"Has the
ADA
had an impact on the ability of
people who have hearing and/or speech impairments to communicate by telephone?
Yes. The Telephone Relay Service centers are making a big difference."
[163]
"The [ADA has certainly benefited us when it
comes to the use of relay services, yet within the African American Deaf
Community few have access to the knowledge and technology needed to benefit."
[164]
"My mother, 82, essentially lost her hearing by
65. It is thought it's due to a childhood illness; that it progressively
worsened in time. Were it not for the Americans with Disabilities Act; her TDD
machine; MD's Relay Service and its trained operators we, her family of 6
daughters, 4 sons-in-law and 10 grandchildren would be at a loss."
[165]
Commenters said the service needs to be publicized more.
4. Recommendations - Accessibility of
Telecommunications
The Department of Justice should publish
information for businesses about how TRS works, how to use it, and the legal
obligation to use it. The
ADA
and IT
Centers could be funded to provide this information;
The Federal Communications Commission should
establish standards to encourage the continued development of Video Relay
Services.
II. Full
Participation
When passing the
ADA
, Congress found that people with
disabilities traditionally have been relegated to a position of political and
social powerlessness, by virtue of being excluded from, or segregated in,
community activities. Full participation, for purposes of this study, is defined
as active inclusion and integration of people with disabilities in community
activities, including governance and citizenship.
A. State and Local Government
Services
1.
ADA
Requirements
Title II of the
ADA
applies to "services, programs,
and activities" of public entities.
[166]
Title II prohibits discrimination on the basis of disability and requires: (a)
making reasonable modifications to policies, practices, and procedures; (b)
administering services, programs, or activities in the most integrated setting
appropriate to the needs of qualified people with disabilities; (c)
modifications to facilities to achieve program access; (d) ensuring that
communications with people with disabilities are as effective as communications
with people without disabilities, and (e) accommodations in transportation.
Effective communication is achieved by providing auxiliary aids and services to
people with vision, speech, and hearing disabilities.
[167]
Government programs in existing buildings must achieve
"program accessibility." This means the program, when viewed in its entirety,
must be accessible to people with disabilities.
[168]
Program accessibility may be achieved by making physical changes to facilities
or by a combination of other means (e.g., moving programs upon request,
providing service through other means, etc.). To achieve program accessibility,
state and local governments with 50 or more employees were required to engage in
a self-evaluation of their facilities and a transition plan to make their
programs accessible. Any structural modifications called for by the transition
plans were to be completed by January 26, 1995.
[169]
New construction and alterations must be fully accessible in
accordance with the ADA Accessibility Guidelines.
[170]
2. Relevant Data
In 1995, Condrey & Brudney surveyed municipal government
personnel administrators in
U.S.
cities with
a population of 50,000 or more. Their sample size was 334 and their response
rate was 63 percent. Over 90 percent of the respondents had obtained literature
on the
ADA
, participated in an
ADA
seminar, and appointed an
ADA
coordinator. Over 80 percent of their respondents had studied the
ADA
regulations, conferred with the
city attorney, carried out the self-evaluation, and evaluated their job
descriptions. Discussions with a labor lawyer were held by 42.5 percent of the
respondents and discussions with an
ADA
consultant were held by 35.9
percent. The Job Accommodation Network was consulted for assistance by 21.6
percent. In over 80 percent facilities were made accessible and in over 70
percent of the local governments there had been
ADA
workshops.
[171]
Pfeiffer and Finn in 1995 conducted a study of compliance
with the
ADA
by state, territorial,
and local governments. This study surveyed local governments separately from
states and territories and included small as well as larger local governments.
In the survey of local governments, over 840 jurisdictions responded. Just over
65 percent of local governments answered they had
ADA
and/or Section 504 coordinators, and the study concluded: "The most important
finding of the present study is that the existence of an
ADA
coordinator on the local
government level has a considerable impact. A person to oversee the necessary
activities and to deal with complaints (in various ways) increases the
implementation activities on the local level."
[172]
Pfeiffer and Finn found that states were likely to be in
greater compliance with the
ADA
.
"Over three quarters of the state and territorial governments have completed
their [
ADA
compliance] self
evaluations and almost 85 percent say that their agencies have transition plans.
Attention is being paid to the requirements of the
ADA
: 97.8 percent of the states and
territories reported that sign language interpreters are provided upon request.
Over 90 percent had changed questions on their employment applications, provided
material in alternative format, and changed locations for interviews. A
reasonable accommodation had been provided by 87 percent of the states and
territories. There is considerable
ADA
implementation activity on the
state and territorial level."
[173]
To promote Title II compliance at the local level, the
Department of Justice (DOJ) operates "Project Civic Access," a wide-ranging
effort to ensure that counties, cities, towns, and villages comply with the
ADA
by eliminating physical and
communication barriers that prevent people with disabilities from participating
fully in community life. DOJ has conducted reviews in 50 states, as well as
Puerto Rico and the
District of
Columbia
, and is posting the agreements to help
additional communities come into compliance with the Act. DOJ states it has
negotiated 145 Project Civic Access agreements with 138 local governments
ensuring accessible buildings, programs and services.
[174]
Examples of issues specifically addressed by the Department
of Justice's Project Civic Access settlements include:
Physical modifications of facilities to improve
accessibility. Facilities include city and town halls; police and fire stations
and sheriff departments; courthouses; centers for health care delivery,
childcare, teen and senior activities, conventions, and recreation; animal
shelters; libraries; baseball stadiums; parks (including ice skating rinks,
public pools, playgrounds, ball fields and bleachers, band shells and gazebos).
The agreements secure the following:
1.
Accessible parking
2.
Accessible routes into and through the facilities
3.
Accessible rest rooms, drinking fountains, and
telephones
4.
Accessible service counters and concession stands, or
the provision of services at alternate, accessible locations
5.
Accessible bathing facilities at public
pools
Physical modifications to polling places and/or
the provision of curbside or absentee balloting.
Permanent and conspicuous notice to the community
of their
ADA
rights and the government's
ADA
obligations.
Establishment of an
ADA
grievance procedure where none
existed in communities employing more than 50 people.
Establishment of delivery systems and time frames
for providing auxiliary aids and services.
Installation of assistive listening systems in
assembly areas (e.g., legislative chambers, court rooms, municipal
auditoriums).
Strengthening of 9-1-1 emergency services through
the acquisition of additional text telephones (TTYs) to achieve a 1:1 ratio of
TTYs and answering positions, training to recognize "silent calls," and
accountability through performance evaluations and discipline of employees.
Improvements in telephone communication between
the government and citizens with hearing or speech impairments through the
acquisition of additional TTY's and/or utilization of the state relay service,
official publication of TTY/relay numbers, and training of employees.
Adoption of procedures for relocating
inaccessible activities to accessible locations upon request (e.g., City and
Town Council meetings, municipal and county court proceedings).
[175]
One particular area of concern is access to the judicial
system. As a fundamental American right, access to court proceedings should be a
top priority. Yet state and local courts have been slow to improve physical
access and to provide auxiliary aids. From 1994 to 2004, the Department of
Justice reached settlement agreements involving courthouses in 58 cases. The
Department reached informal agreements with 57 courts.
[176]
These cases primarily involved physical access issues and provision of sign
language interpreters and other auxiliary aids for people with hearing
disabilities. The Department of Justice recently reported on progress using
litigation and informal agreements, as well as other work undertaken by the
department in their report "Access for All: Five Years of Progress, A Report
from the Department of Justice on Enforcement of the Americans with Disabilities
Act."
[177]
Major lawsuit filings indicate that state and local courts
still are not fully accessible, 15 years after passage of the
ADA
. Courthouses have been the
subject of several lawsuits, including Tennessee v. Lane,
[178]
Miles v. Los Angeles,
[179]
and others. In
California
, the
Chief Justice acknowledges that 75 percent of the state's courthouses are not
accessible to people with physical disabilities.
[180]
Other states, such as
Oregon
and
Arizona
, began conducting
accessibility surveys in 2003-2004.
[181]
Recognizing the need for access to courts, the U.S. Access
Board has issued accessibility guidelines for courthouses and has convened an
Advisory Committee to provide technical assistance on courthouse
accessibility.
[182]
However, the delay between issuance of guidelines by the Access Board and
adoption of those guidelines as enforceable standards by the Department of
Justice encourages courts to delay compliance for fear that they would waste
effort implementing outdated guidelines.
Another possible reason for the delay in compliance is the
belief that state and local governments cannot be held liable for monetary
damages for failing to make their facilities accessible. The Supreme Court in University of Alabama v. Garrett found
that state governments could not be held liable for monetary damages for
violations of the employment provisions of the
ADA
, based on the doctrine of
sovereign immunity.
[183]
States have also raised the Sovereign Immunity defense in
ADA
actions involving Title II,
which covers access to state and local government programs and facilities. The
Supreme Court in Tennessee v. Lane
found that, at least for court facilities, money damages is available against
states.
[184]
However, states' liability for money damages for failure to comply in other
areas remains unclear and may be contributing to delays in compliance.
Although local, as opposed to state, governments are not
protected by sovereign immunity the courts have imposed limitations on their
liability for damages under the
ADA
.
Courts require a showing of intentional discrimination for monetary damages to
be available.
[185]
Lacking the incentive of monetary liability for noncompliance, local governments
may be moving more slowly than they otherwise would.
3. Input from People with
Disabilities
In the focus groups, some participants confused the provision
of accommodations in educational settings required by Section 504 of the
Rehabilitation Act of 1973, as amended, and the Individuals with Disabilities
Education Act with Title II of the ADA. There was similar confusion with
Medicare, Medicaid, and other services that do not come within the scope of the
ADA
. The lack of services in these
areas was identified in the focus groups and often incorrectly attributed to
lack of
ADA
enforcement. Comments
from forums and e-mail were mixed regarding accessibility of government services
under the
ADA
. 46 percent of
respondents expressed negative opinions on the accessibility of government
services, while 45 percent were positive. The need for greater
ADA
enforcement for better access to
state and local government services was cited by participants numerous
times.
"The improvement in this area is Tremendous!! Anyone who says otherwise
is not remembering how it was. Curb ramps, accessible building entrances and
moving around inside, transportation, sidewalks, paths of travel, the list goes
on and on and on."
[186]
"Government agencies are by far the worst in
compliance. Getting to and from their physical offices can be a nightmare. They
choose to build or locate sites that are inaccessible for varieties of reasons
not the least of which is public transportation and parking/path of travel. Of
particular note are those government offices in rural areas."
[187]
"
Pennsylvania
has been
especially good about meeting the
ADA
accessibility
requirements .. I wish facilities at Federal sites were as reliable."
[188]
"There are still places I cannot go. Council
Chambers are one. You cannot hear them speak. Even with microphones. Public
events-cannot hear the speaker."
[189]
·
"I would say this is the most changed and
improved area of all. The agency personnel generally are more educated about
disabilities and the buildings are much more accessible than private
entities."
[190]
4. Recommendations - State and Local
Government Services
The Department of Justice and other federal
agencies should focus on enforcing the
ADA
obligations of government
agencies;
Federal agencies should use initiatives such as
Project Civic Access to increase
ADA
compliance at the state and local levels;
The Department of Justice should use targeted,
high-profile litigation on particularly important issues, such as access to
courts, medical care, and education to increase state and local
ADA
compliance.
B.
Voting
1.
ADA
Requirements
Two pre-ADA laws addressed the access issues of voting for
people with disabilities. The Voting Rights Act of 1965 (VRA) provides that any
voter requiring assistance to vote "by reason of blindness, disability, or
inability to read or write may be given assistance by a person of the voter's
choice .."
[191]
The Voting Accessibility for the Elderly and Handicapped Act of 1984 (VAEHA)
requires that political subdivisions responsible for conducting elections ensure
that all polling places for federal elections are accessible to elderly voters
and voters with disabilities.
Title II of the
ADA
and its implementing regulations
require that people with disabilities have access to basic public programs,
including the right to vote. However, it does not strictly require that polling
place sites be accessible. Instead, as with all state and local government
programs, the program of voting, as a whole, must be accessible. Such program
access can be accomplished in a variety of ways, including curbside voting for
people with mobility impairments at inaccessible polling places, and assisted
voting for people with vision impairments.
[192]
During the 2004 election, the U.S. Department of Justice
implemented new policies to protect the rights of voters with disabilities,
including publishing a 39-page "ADA Checklist for Accessible Polling Places"
and, for the first time, deploying election monitors trained to assess the
accessibility of polling places.
[193]
The Help America Vote Act of 2002 (HAVA) provides states with
federal monies to update their voting process, including funds for the purchase
of accessible voting machines and removal of the systemic and physical barriers
that have denied people with disabilities their constitutional right to vote. At
least one electronic voting machine, which must be fully accessible for people
with visual impairments, was required in each polling place by January 1,
2006.
[194]
2.
Relevant Data
All states have provisions (in the form of statutes,
regulations, or policies) that specifically address voting by people with
disabilities. These provisions vary greatly, as do county practices for assuring
voting accessibility. For example, while some counties cite accessibility as a
specific criterion used in selecting polling places, others do not. All states
provide for one or more alternative voting methods or accommodations that may
facilitate voting by people with disabilities whose assigned polling places are
inaccessible. For instance, all states have provisions allowing voters with
disabilities to vote absentee without requiring notary or medical certification
requirements, although the deadlines and methods (such as by mail or in person)
for absentee voting vary among states. In addition, many states, but not all,
have laws or policies that provide for other accommodations and alternatives for
voting on or before Election Day-such as reassignment to a polling place that is
accessible, curbside voting, or early voting.
[195]
In 2001, a General Accounting Office (now the Government
Accountability Office) study of polling places in the
United
States
estimated that, from the parking area to the voting
room, 16 percent of all polling places in the contiguous
United States
had no potential impediments, 56 percent had one or more potential impediments
but offered curbside voting, and 28 percent had one or more potential
impediments and did not offer curbside voting. Such potential impediments
primarily affected people with mobility impairments and occurred most often on
the route from the parking area to the building or at the entrance to the
polling place, with more than half of all polling places having impediments in
these areas. Inside the polling place, the types and arrangement of voting
equipment used posed challenges for people with mobility, vision, or dexterity
impairments. To facilitate voting inside the voting room, polling places
generally provided accommodations, such as voter assistance, magnifying devices,
and voting instructions or sample ballots in large print. However, none of the
polling places visited by the GAO had special ballots or voting equipment
adapted for blind voters.
[196]
A 2004
Massachusetts
survey indicated
that 60 percent of its polling sites did not meet HAVA requirements.
[197]
A
Missouri
survey found that 70-80
percent of urban polling places were accessible, while only 10 percent of rural
ones were accessible.
[198]
A 2003
Florida
survey revealed
that 54 percent of polling places were accessible.
[199]
Six percent of polling places in
Utah
were inaccessible, according
to a 2004 survey.
[200]
Ninety-four percent of polling places in
Indiana
were found to be
inaccessible.
[201]
In
Los Angeles
County
, accessibility of polling places
substantially improved since passage of the
ADA
, rising from 70 percent
accessible in 1986 to 98 percent accessible in 2001.
Substantial barriers to independent voting remain for people
with vision impairments. Paper ballots require people with vision impairments to
rely on third parties for assistance in voting, thus undermining the
independence and confidentiality of their votes. The Help America Vote Act
(HAVA) intended to address this problem by requiring electronic voting machines
to be available at every polling place in federal elections by January 2006.
According to the American Association of People with Disabilities, in 2004 about
80 percent of polling places nationwide were not fully accessible in accordance
with HAVA standards.
[202]
Although states are steadily adopting electronic voting, controversies over the
security of electronic voting have delayed approval, purchase, and
implementation of electronic voting systems.
[203]
Compared to prior years, the percentage of Americans with
disabilities who voted in 2004 increased dramatically. According to the
N.O.D./Harris Surveys, voting by Americans with disabilities has increased
steadily over the last three presidential election cycles, and the gap between
those with disabilities and those without disabilities who voted is decreasing
(see Figure E). In 1996, 31 percent of adults with disabilities voted in
the presidential election, compared to 49 percent of all adults voting. In 2000,
41 percent of Americans with disabilities voted compared to 51 percent of all
adults. In 2004, turnout
among likely voters with disabilities was estimated by Harris to be 52 percent,
while, according to the Census, 64 percent of people without disabilities
voted.
Figure
E: Voting Practices of Americans with
Disabilities
According
to the American Association of People with Disabilities, voting participation
ranged from 31 percent in
Georgia
to 55 percent in
Minnesota
in the 2000 elections (see Table C).
[204]
Table
C: Percentage of People with Disabilities Voting by State in
2000
|
State |
%
of People with Disabilities Voting |
State |
%
of People with Disabilities
Voting |
|
Alabama |
40% |
Montana |
49.2% |
|
Alaska |
53.1% |
Nebraska |
45.2% |
|
Arizona |
33.8% |
Nevada |
35% |
|
Arkansas |
38.2% |
New
Hampshire |
50% |
|
California |
35.3% |
New
Jersey |
40.8% |
|
Colorado |
45.5% |
New
Mexico |
37.9% |
|
Connecticut |
46.7% |
New
York |
40.3% |
|
Delaware |
46.7% |
North
Carolina |
40.2% |
|
DC |
39.3% |
North
Dakota |
48.3% |
|
Florida |
40.5% |
Ohio |
44.6% |
|
Georgia |
30.5% |
Oklahoma |
39% |
|
Hawaii |
32.4% |
Oregon |
48.5% |
|
Idaho |
43.6% |
Pennsylvania |
43% |
|
Illinois |
42.2% |
Rhode
Island |
43.4% |
|
Indiana |
43.6% |
South
Carolina |
37.3% |
|
Iowa |
48.6% |
South
Dakota |
46.6% |
|
Kansas |
43.3% |
Tennessee |
39.4% |
|
Kentucky |
41.3% |
Texas |
34.5% |
|
Louisiana |
43.4% |
Utah |
42.1% |
|
Maine |
53.8% |
Vermont |
51.2% |
|
Maryland |
41.3% |
Virginia |
42.4% |
|
Massachusetts |
46.1% |
Washington |
45.5% |
|
Michigan |
46% |
West
Virginia |
36.6% |
|
Minnesota |
55% |
Wisconsin |
52.9% |
|
Mississippi |
38.9% |
Wyoming |
47.8% |
|
Missouri |
46% |
|
|
Perhaps
recognizing the increased participation of individuals with disabilities,
individuals running for election have been more visibly responsive to the
concerns of the disability community. For example, in 2004, both Presidential
candidates took public positions on disability issues-President George W. Bush's
New Freedom Initiative and Senator John Kerry's Disability Policy
Platform.
[205]
State-level election candidates have also publicized positions on disability
issues.
[206]
3. Input from People with
Disabilities
In the discussion about accessible voting, one participant
said: "We participated in a program called "Count Us In," where our polling
places of today were visited and rated and none of them passed 100 percent. But
the polling place workers were helpful and tried to do what they could."
[207]
C.
Other Forms of Civic Participation
No
data were found in our environmental scan about rates of participation by people
with disabilities in other forms of civic activities, such as serving in public
office, participating in government advisory committees, or performing community
service.
Most
states have a disability commission to advise on disability policy
issues
[208]
and people with disabilities serve on these
commissions.
D.
Recommendations - Full Participation
The Department of Justice should immediately
implement the Help America Vote Act requiring installation of electronic voting
equipment;
The National Institute on Disability and
Rehabilitation Research should study and publish the involvement of people with
disabilities in civic opportunities, such as government office;
The National Organization on Disability should
encourage state and local governments to emphasize involvement of the disability
community as part of their diversity efforts and provide technical assistance to
help government agencies reach out to people with disabilities.
III. Independent Living
People with disabilities traditionally have been subject to
governmental, medical, and family control in their most central life decisions,
including where and with whom to live. Independent living, for purposes of this
study, is defined as control by people with disabilities over their own lives,
including availability of acceptable choices of housing and health care and lack
of undue control by others in life decisions. An important aspect of independent
living is the availability of services in integrated community-based settings.
A.
Community Integration
1.
ADA
Requirements
In July 1999, the Supreme Court issued
the Olmstead v. L.C.
decision.
[209]
The Court's decision in that case
challenged state governments to provide people with disabilities with
community-based, rather than institutional, services. The Olmstead decision interpreted Title II
and its implementing regulations, requiring states to administer their services,
programs, and activities "in the most integrated setting appropriate to the
needs of qualified individuals with disabilities." The Court found that
unjustified institutionalization constituted discrimination under Title II of
the
ADA
. The Court found that the cost of providing
services in community-based, rather than institutional, settings was not a
defense to the obligation except when the state could show that, in the
allocation of available resources, immediate relief for a particular individual
would be inequitable to the other individuals under the state's
care.
[210]
Since the Court's Olmstead decision, lower courts
interpreting the decision have been reluctant to insert themselves into the
administration of health care services. Community-based health care, mental health, and
housing services are increasing slowly in response to the Olmstead decision. Courts have
accepted as legitimate slow movements by the states toward community-based
care.
In July 2001, President George W. Bush issued an Executive
Order providing guidance on the implementation of the Olmstead decision and allocated over
$120 million in grants in 2001-2002 to increase community-based integration for
people with disabilities.
[211]
2.
Relevant Data
a. Federal Olmstead
Initiatives
On March 25, 2002, the U.S. Department of Health and Human
Services (HHS) submitted to the President a report entitled Delivering on the
Promise.
[212]
The report summarized agency activities that support Olmstead's goal of
community integration, identified barriers in government programs that are
impeding full implementation of Olmstead, and proposed more than 400 solutions
aimed at removing these barriers.
[213]
According to a 2004 Progress Report on the President's New Freedom Initiative,
the following federal activities are specifically related to promoting
de-institutionalization:
[214]
i. Department of Health and Human Services
(HHS)
In October 2002, HHS established the Office on Disability to
address the coordination of disability policies and programs across HHS
agencies. HHS's Centers for Medicare and Medicaid Services (CMS) had awarded
nearly $200 million since 2001 under the Real Choice Systems Change Grants for
Community Living, which has the goal of enabling people with disabilities to
reside in their communities and participate more fully in community life. Since
2003, CMS funded $12 million in demonstration grants to improve the direct
service community workforce, which enables state and community-based providers
to test new strategies for recruiting, training, and retaining direct service
workers.
Since 2001, HHS's Administration on Aging supported family
caregivers through the National Family Caregiver Support Program with over $400
million to states and tribal governments to develop multi-faceted systems of
support to extend the caregiving efforts of families, friends, and
neighbors.
ii. Department of Justice
(DOJ)
DOJ evaluates residential placements, in each investigation
of healthcare facilities, under the Civil Rights of Institutionalized Persons
Act (CRIPA) in light of the
ADA
's
requirement that services be provided to residents in the most integrated
setting appropriate to their needs. DOJ has issued letters of finding citing
violations of Olmstead involving four
facilities for people with developmental disabilities, six nursing homes, and
the children's unit of a psychiatric hospital. DOJ has worked with officials in
several states to help states and other jurisdictions provide community-based
services to people who are currently residing in publicly-operated
institutions.
iii. Department of Labor
(DOL)
In September 2003, the Department of Labor's Office of
Disability Employment Policy, and its Center for Faith-Based and Community
Initiatives, awarded $500,000 to eight recipients to provide home modifications
as a means of expanding the community integration of people with disabilities,
particularly those seeking employment.
In 2005, the President's proposed federal expenditures to
promote community integration initiative included:
$1.75 billion through fiscal year (FY) 2009 for
the "Money Follows the Individual Rebalancing Demonstration," with $350 million
targeted for FY 2005. This demonstration would assist states in re-balancing
long-term care systems to support cost-effective choices between institutional
and community options, including financing Medicaid services for individuals who
move from institutions to the community;
$327 million through FY 2009, with $18 million
for FY 2005, to fund three demonstrations that promote home and community-based
care alternatives. Two of the demonstrations provide respite care services for
caregivers of adults with disabilities or long-term illness, and children with
substantial disabilities. Another demonstration provides community-based care
alternatives for children who are currently residing in psychiatric residential
treatment facilities;
$102 million through FY 2009, with $17 million in
FY 2005, to continue Medicaid eligibility for spouses of people with
disabilities who return to work. Under current law, people with disabilities
might be discouraged from returning to work because the income they earn could
jeopardize their spouse's Medicaid eligibility. This proposal would extend to
the spouse the same Medicaid coverage protection now offered to the worker with
a disability;
·
$40 million to continue the Real Choice Systems
Change Grants Program, including nearly $3 million to continue the demonstration
program being administered by CMS to promote the recruiting, training, and
retention of direct service workers.
[215]
Federal Medicaid spending on home and community-based waiver
services has grown exponentially, from 37 percent in 1992 to 66 percent in 2001.
In 1992, 15 percent of all long-term care spending went to home and
community-based care waiver benefits, while by 2002 that figure had risen to 30
percent.
[216]
While the Federal Government's commitment to these new
initiatives has been welcomed in the disability community, it has been
criticized on two counts: (1) a lack of an overall national policy framework for
community integration of people with disabilities, and (2) inadequate
stimulation of change in the long-term care system to eliminate unnecessary
institutionalization of people with disabilities.
[217]
b. State Olmstead
Initiatives
The Supreme Court suggested that states demonstrate
compliance with the Olmstead decision
by producing formal plans for increasing community integration. Olmstead directs states to make
"reasonable modifications" in programs and activities. Modifications that would
"fundamentally alter" the nature of services, programs or activities are not
required. As a result, the Federal Government encourages states to plan for
reforms not only in the health arena, but also in transportation, housing,
education and other social supports that can help people with disabilities live
in the community.
Because Medicaid is the primary funding source for long-term
care and covers a large number of people with disabilities, many states focused
their initial efforts on how Olmstead affects Medicaid budgets. More than
35 percent of all Medicaid spending goes to long-term care services.
Institutions get the lion's share, about 71 percent in 2001. Many refer to this
lopsided distribution as the "institutional bias." Medicaid waivers are
necessary to allow services in the home and in communities. Although every state
has a variety of waivers to provide community-based services,
[218]
the majority of funds continues to be directed at nursing homes or other
institutional settings.
[219]
Every state also allows home health
care in at least some circumstances.
[220]
However, 20 states do not cover
personal care services.
[221]
As of 2004, 29 states had issued Olmstead-related
plans or reports. Many of these plans rely on Medicaid community service
options, in combination with resources from other programs, to achieve the types
of community programs that make it possible for people with disabilities to live
and work in their own communities.
[222]
The definition of an Olmstead plan is not clear-cut and
states have developed alternative approaches to Olmstead planning.
[223]
Some states have developed specific
strategies for implementation over a number of years. Others identified key
priorities for immediate action. Still others set out broad policy
recommendations. Many plans anticipate frequent amendments.
[224]
Some states have displayed little specific strategic work in
this area. One study reports three state strategies to address Olmstead compliance: legislative action
(policy and budgetary mechanisms for moving money around the system);
market-based approaches (consumer information to enable choice and create demand
for Home and Community-Based Services (HCBS)); and fiscal and programmatic
linkages (e.g., improving coordination between services and increasing HCBS
capacity).
[225]
The focus of state plans has been to:
Help people make the transition from institutions
into the community;
Promote affordable and accessible housing;
Improve the recruitment and retention of direct
care workers;
Provide information and referral as well as
family-centered assessments;
Allow funding to follow the individual rather
than the providers;
Reduce the waiting lists for home and
community-based services;
Increase employment opportunities for people with
disabilities;
Enhance data collection activities and systems;
Increase accessible transportation
options;
Ensure quality of care based on outcomes.
[226]
NCD's 2003 Olmstead Report found, in part, the following
regarding state plans:
Plans do not consistently provide for
opportunities for life in the most integrated setting as people with
disabilities define "the most integrated setting";
The majority of states have not planned to
identify or provide community placement to all institutionalized persons who do
not oppose community placement;
Few plans identify systemic barriers to community
placement or state action steps to remove them and few plans contain timelines
and targets for community placement;
State budgets often do not reflect
Olmstead planning goals.
[227]
Medicaid coverage of nursing home services is mandatory.
However, coverage of most community-based services is optional. To address this
institutional bias, states such as
Texas
are allowing funds that are
devoted to the care of institutional residents to follow them into the
community.
[228]
Specifically, sources in 25 states-Arizona, Arkansas, Connecticut, Delaware,
Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, North Dakota, Ohio,
Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Washington and
Wisconsin-described efforts to shift more people from nursing homes and
"intermediate care facilities for the mentally retarded" (ICF/MRs) into the
community or to divert people from unnecessary institutional placements during
the hospital discharge planning process.
[229]
Many of these states are helping people make the transition
by giving allowances to fund the move and housing fees and by providing
assistance through case managers.
Florida
is implementing three
pilot nursing home transition programs with the goal of moving 1,200 people
during FY 2003-2004 and allowing Medicaid funding to follow the person.
Pennsylvania
is developing a
three-county pilot project to streamline Medicaid waiver eligibility to divert
people from nursing homes.
Wisconsin
received a systems
change grant to move about 200 people with developmental disabilities out of
institutions.
[230]
According to a report by the National Conference of State
Legislatures, since 2001, state budget restrictions have delayed implementation
of Olmstead efforts. Although
community-based services are estimated to be less costly than institutional
services in the long term, during the transition from institution to
community-based programs, expansion of services is required. Thus, without
adequate additional funding, and facing overall budget shortfalls, states have
not succeeded in implementing their Olmstead plans. As a result, numerous
lawsuits have been filed to enforce Olmstead obligations.
[231]
However, progress has been made. In April 2005, there were
16,094 nursing homes in the
United
States
, down from 16,516 in December 2002. The
U.S. Department of Health and Human Services reports that nearly 1.399 million
people were in nursing homes in the first quarter of 2006, and over 297,000 (21
percent) of them expressed a preference to live in the community.
[232]
This number is down from the fourth quarter of 2002, when 1.43 million people
were in nursing homes.
[233]
Only six years have passed since the Olmstead decision requiring states to
emphasize community integration. As of 2002, the Government Accountability
Office estimated that there were at minimum 1.8 million people with disabilities
being served in institutional settings, including 1.6 million individuals
in nursing facilities, 106,000 individuals in institutions for people with
developmental disabilities, and 57,000 individuals in state and local facilities
for individuals with mental illness.
[234]
Since the Olmstead decision, state
and Federal Government agencies have been changing their systems to facilitate
community integration. The effects of these changes have not yet resulted in
substantial numbers of people with disabilities leaving institutions, and courts
have not been willing to push states to move more quickly. However, the Olmstead decision holds great promise
for people with disabilities, particularly those with mental illness or
intellectual disabilities, who want to become more integrated into their local
communities.
3.
Input from People with Disabilities
Survey respondents indicated that Olmstead has not yet been effectively
implemented to a degree sufficient to meet the needs of people with
disabilities. The
Bazelon
Center
for Mental Health Law issued this statement on the fifth anniversary of the Olmstead
decision:
"While many Americans with disabilities have made
progress since the Olmstead ruling,
people with mental illnesses have been largely left behind in efforts to
implement the decision. Most states are enacting Olmstead reforms at a snail's pace,
defying the spirit of the ruling and preventing Americans with mental illnesses
from participating in their communities.
Rhetoric has far outstripped action to promote
community services for people with mental illnesses. States are quick to trumpet
their limited efforts to implement Olmstead, but these have produced little
actual movement of people with mental illnesses into integrated community
settings.
Budget pressures have closed psychiatric
hospitals across the country, but few appropriate community services have been
adequately funded to help people with mental illnesses live successfully in the
community. Instead, states have 'transinstitutionalized' people with mental
illnesses to settings as outmoded, isolating and inappropriate as the facilities
they were meant to replace. Increasing numbers of people with psychiatric
disabilities now find themselves in large board and care homes, 'adult homes,'
nursing homes, and other institution-like settings. Thousands wind up in jail or
prison because chronically underfunded community mental health systems fail to
provide meaningful support.
·
Where real progress has occurred, it is largely
because states have been sued. Five years after Olmstead and 14 years after enactment of
the Americans with Disabilities Act, litigation should be unnecessary. Yet it
remains the single most effective way to combat the persistent segregation of
people with mental illnesses."
[235]
Olmstead was discussed extensively in
the
Savannah
public forum, which was attended by advocates who are involved daily in
promoting Olmstead implementation.
One was the lead attorney for "L.C." in Olmstead v. L.C. These participants suggested that many people with
disabilities, particularly those with developmental disabilities or mental
illness, are not benefiting from Olmstead.
I don't mean to say that lots of people
aren't moving out of institutions into the community; they are. And I don't mean
to say that we're stuck in the legal sense because we're definitely moving
toward a better development of legal rights in this country for people with
disabilities.
But I do mean to say that the people I
encounter on a daily basis are, if not in as bad a shape-they may in some cases
be in worse shape because staffing is bad, treatment is bad, professionals are
not particularly competent in many cases, and there's a very limited
understanding among institutional staff, still, about the rights of the people
they are serving. There is very little understanding that they have a right to
apply for all these community-based services. The institutional staff doesn't
know that. They have no clue.
[236]
These advocates endorsed the "Money Follows
the Person" concept, which has been proposed in the Senate by Sen. Tom Harkin
(D-IA) and as a budgeted demonstration project by the Bush Administration. Under
this bill, the Medicaid money paid by states and the Federal Government would
follow a person with a disability from an institution into the community. The
legislation would provide 100 percent federal reimbursement for the community
services that individuals need during the first year after they move out of a
nursing home or similar facility. After that first year, individuals would
remain in the community, and states would receive their regular Medicaid match
for their services.
The breakdown of the community-based
programs is due to not enough money being attached to be able to develop real
supports that are going to give people the services they need .. Maybe attaching
the money to the individual will expedite those things. When a person has money
they get a service, so maybe that's the key, to make sure that each individual
has enough funding to be able to meet their needs in a person-centered way.
That's an idea to think about, and something that would work a lot better if you
started doing something like that, rather than setting up granting agencies all
over the place, where they don't meet the needs of the individual, but they meet
the needs of the system.
[237]
B.
Recommendations -
Independent Living
Congress should increase Medicaid support for
community-based treatment settings;
·
Congress should pass and fully fund the Money
Follows the Person Act;
[238]
and Medicaid Community-Based Attendant Services and Supports Act;
[239]
·
Congress should require states to expeditiously
complete effective Olmstead plans,
consistent with HHS guidance;
·
The Department of Health and Human Services
should require states to fund personal care services when needed to allow a
person with a disability to remain in their community;
The Departments of Health and Human Services,
Education, Transportation, Housing and Urban Development, Justice, and Labor,
and Equal Employment Opportunity Commission, working with state and local
governments and community agencies should implement local initiatives to extend
the integration mandate to housing, education, transportation, employment, and
other areas affecting people with disabilities;
The Department of Justice should increase and
target enforcement of the Civil Rights of Institutionalized Persons Act on
requiring effective deinstitutionalization efforts and publishing creative and
effective programs to provide community-based services;
The Department of Labor's program funding home
modifications should be significantly expanded to allow people with disabilities
and the elderly to live in their communities;
The Departments of
Health and Human Services, Education, Transportation, Housing and Urban
Development, Justice, and Labor, and Equal Employment Opportunity Commission,
should work with disability communities and others to develop an overall national policy framework for community
integration of people with disabilities;
The Department of Health and Human Services
should study systems of long-term care and long-term care insurance to eliminate
unnecessary institutionalization of people with disabilities and aging
people.
IV. Economic Self-Sufficiency
People with disabilities traditionally
have relied on government benefits and charity for survival, and Congress found,
when passing the ADA, that as a group, people with disabilities occupy an
inferior status in our society, and are severely disadvantaged socially,
vocationally, economically, and educationally. Economic self-sufficiency, for
purposes of this study, is defined as financial security for people with
disabilities, which is achieved by education, employment, and asset
accumulation. Availability of appropriate health care and insurance coverage are
additional aspects of economic self-sufficiency.
There is no direct evidence to suggest that Americans with
disabilities are becoming more economically self-sufficient. Improvements in
areas such as education, reasonable accommodations on the job, and improvements
in access to public transportation, factors that might be expected to contribute
to economic self-sufficiency in the long run, give some reason for optimism, and
warrant further study. The education gap between people with disabilities and
people without disabilities is shrinking and people with disabilities are
attending postsecondary institutions in record numbers, but their graduation
rates lag behind their counterparts without disabilities. Educational supports and services for students
with disabilities are now available at most of the nation's 3,000 postsecondary
institutions. There is evidence
that people with disabilities are experiencing less discrimination on the job,
but they are not experiencing increases in hiring. People with
disabilities rarely win
ADA
employment discrimination cases. The percentage of people with disabilities
living in poverty has not decreased since passage of the
ADA
-a disappointing finding that
many attribute to Social Security rules that trap people into living at poverty
levels in order to retain essential medical supports and services.
[240]
A.
Financial Assets and Insurance
1. Financial Assets
NCD was unable to discover a comprehensive and reliable
source of information on the financial assets of people with disabilities.
However, as research at the Burton Blatt Institute (http://bbi.syr.edu) and by
others shows, it is generally understood that limited access to financial assets
is one of the challenges facing many Americans with disabilities. Additionally,
significant disparities exist between the financial resources of people with
disabilities and people without disabilities.
In 2006, the U.S. Bureau of the Census data indicated that
approximately one in every five Americans with a disability (19 percent) live in
poverty, three times the percentage of people without disabilities living in
poverty.
[241]
Twenty-six percent of Americans with severe disabilities live in poverty.
[242]
The 2000 N.O.D./Harris Survey of Americans with Disabilities indicated 28
percent of people with severe disabilities lived in poverty, as compared to 8.3
percent of people with no disability.
[243]
In 1990, before implementation of the
ADA
, 19 percent of people with
disabilities lived in poverty-exactly the same percentage as in 2006.
NCD currently has a financial incentives study underway that
will investigate the extent to which people with disabilities have access to
financial assets, such as savings, investments, and loans, the disparity between
the financial assets of people with disabilities and people without
disabilities, and the costs and availability of health insurance coverage and
benefits for people with disabilities. NCD believes that this Financial
Incentives study will provide much-needed information for the development of
strategies to improve economic self-sufficiency for people with disabilities.
[244]
Banks and financial institutions have responded to pressure
to make their services accessible to people with disabilities. Numerous lawsuits
and structured settlement negotiations have resulted in Citibank, Wells Fargo,
Bank of America, Fleet Bank, Sovereign Bank, Citizens Bank, Chase/Bank One,
First Union Bank (now Wachovia), Union Bank of California, Washington Mutual,
and LaSalle Bank installing talking ATMs, providing statements in accessible
formats, and increasing accessibility of their Web sites to screen readers for
people with vision impairments. American Express has also agreed to provide
statements and other written materials in braille and other formats for credit
card customers.
[245]
Current estimates indicate that over 50,000 talking ATMs are available at banks
across the country.
[246]
2. Health Insurance
Who receives health care services and how much service is
obtained depends on one's health care coverage, or health insurance, which is,
unfortunately for people with disabilities, intertwined with employment. Either
an individual is able to work full-time at one employer long enough to qualify
for employer-based health insurance (EBHI), or an individual must be assessed as
totally unable to work, thereby qualifying for public health coverage. Those
between these two extremes, where people with disabilities are likely to find
themselves, have difficulty obtaining health coverage, threatening their access
to health care, risking a deterioration of their health conditions, and further
limiting their ability to work. Almost one of every five working age people with
disabilities lacks health insurance. Even people with disabilities who are
employed are less likely to have health insurance than workers without
disabilities. Among full-time employees, for example, 65 percent of those with
disabilities had EBHI, compared to 74 percent of those without disabilities.
[247]
People with disabilities and people without disabilities are
equally likely to be covered by some form of health insurance (88 percent - 91
percent).
[248]
However, most of the people with disabilities covered (56 percent) are covered
by Medicaid or Medicare, while most people without disabilities are covered by
private insurance (78 percent). These differences in the sources of coverage are
significant and may explain why people with disabilities are significantly more
likely to go without needed medical care than people without disabilities (18
percent versus 7 percent).
B.
Higher Education
1.
ADA
Requirements
Postsecondary
schools must ensure that the programs they offer, including extracurricular
activities and avenues of communication, are accessible to students with
disabilities. State colleges and universities must ensure "program
access"
[249]
under Title II, while private colleges
must ensure readily achievable barrier removal under Title III.
[250]
Under both titles of the
ADA
, such access is to be supported through the
provision of "reasonable modifications" to policies, practices and
procedures
[251]
and "auxiliary aids and
services."
[252]
Academic adjustments may include classroom and
testing modifications, such as extra time on examinations, provision of
materials in alternative formats, and ensuring physical accessibility of
classrooms and labs. Auxiliary aids and services include practices that create
access to information for people with sensory impairments, such as providing
sign language interpreters for students who are deaf and readers for students
who are blind.
2.
Relevant Data
The education gap between people with disabilities and people
without disabilities is shrinking and people with disabilities are attending
postsecondary institutions in record numbers. Although people with disabilities
remain twice as likely to drop out of high school as people without disabilities
(21 percent versus 10 percent),[253]
the number of postsecondary students
reporting a disability has increased dramatically since the passage of the ADA.
[254]
The proportion of first-time, full-time
students with disabilities attending colleges and universities tripled between
1978 and 1994, from 2.6 percent to 9.2 percent.
[255]
By 1998, the full range of students with
disabilities (i.e., part-time students and students enrolled in graduate
programs) had risen to 10.5 percent of the postsecondary student
population.
[256]
In a 2000 report,
the National Council on Disability stated that as many as 17 percent of all
students attending higher education programs in the United States were
identified as having a disability. Learning disabilities are the most common
type of disability reported by college students. Further, more than one-half of
all the students with disabilities who enroll in postsecondary education
completed their program of study. Within five years of starting postsecondary
education, 41 percent of students with disabilities reported they had earned a
degree or credential, and another 12 percent remained enrolled in their course
of study.
[257]
The 2004
N.O.D./Harris Survey confirms that people with disabilities are participating in
higher education at higher rates than before the
ADA
(see Figure F). 40 percent of people with
disabilities received some college or a degree (compared to 52 percent of people
without disabilities) in 2004. In 1986, only 29 percent of people with
disabilities were attempting college (compared to 48 percent of people without
disabilities). Thus, the gap between people with disabilities and people without
disabilities attending college has narrowed from 19 percentage points to 12
percentage points. However, people with disabilities are earning degrees at the
same rate (14 percent) as in 1986.
[258]
While people with
disabilities are now enjoying greater access to education than before the
ADA
, there has been some decrease in the percentage
attending college (from 49 percent attending at least some college in 1998 to 40
percent in 2004). This tracks a similar decrease in college attendance among
people without disabilities.
test
test
Figure F: College Attendance of People With and
Without Disabilities
Major higher education testing
agencies have been sued over testing accommodations for people with disabilities
and, as a result, have improved the provision of accommodations. In 2001, in
response to a lawsuit, the Educational Testing Service, which administers the
GRE, SAT, GMAT, and other tests, agreed to stop "flagging" tests taken with
accommodations.
[259]
In 2002, the U.S. Department of Justice reached a settlement agreement with the
Law School Admissions Council to ensure provision of accommodations on the LSAT
for students with physical and communication disabilities.
[260]
These changes among the "gatekeepers" to higher education have allowed more
students with disabilities to pursue undergraduate and advanced degrees.
Though variable
in quantity and quality, educational supports and services for students with
disabilities are now available at most of the nation's 3000 postsecondary
institutions.
[261]
A recent decision by the Ninth Circuit
Court of Appeals may have made it more difficult for students with learning
disabilities to obtain accommodations in higher education. In Wong v. Regents of the University of
California,
[262]
the court found that a
student with a learning impairment who was seeking accommodations in medical
school was not "substantially limited" in the major life activity of learning
and, therefore, was not protected by the
ADA
. The court found that,
although he had been identified as having a learning disability as a child,
because the student had succeeded in school (both with and without
accommodations), he was not substantially limited in learning as compared to
most people in the general population in their activities of daily living. The
court found that the standard was not to compare the student's learning ability
to other students in school, but to compare it to what most people do in their
daily activities. Because the student in this case was able to read and learn as
well as most people need to in their daily living activities, although not as
well as a medical student needs to, he was considered to not be protected by the
ADA.
[263]
This
interpretation of the
ADA
may be making it difficult for students with
learning disabilities to obtain accommodations in higher education, because
their success in education may be evidence against them and because the
abilities required for success in higher education will not be the standard of
comparison for determining substantial limitation.
3. Input from People with
Disabilities
Testimony from people with disabilities repeatedly emphasized
the positive impact of greater access to higher education.
[264]
I am blind since age twelve, born 1949. I graduated from our
local,
Labette
Community College
with honors in
2004.
ADA
very much helped to make
it possible. First I was encouraged by state workers from Social Security
Disability Services of
Kansas
. My
instructors at the college were aware of
ADA
and its rules and provided
needed reading for me, a blind person. The college was accessible, elevator,
ramps, handicapped rest rooms, and teachers to read my exams or provide visuals
and tutoring.
[265]
C.
Employment
The effects of the
ADA
on employment can be assessed on
two levels: Hiring and On-the-Job Accommodations. The
ADA
's effects on these two areas
differ substantially.
1.
Hiring
a.
ADA
Requirements
Title I of the
ADA
prohibits disability
discrimination in hiring and application processes.
[266]
Thus, employers may not reject qualified applicants because of their
disabilities or their need for reasonable accommodations and may not adopt
qualification standards that unnecessarily exclude people with disabilities.
[267]
b. Relevant Data
According to the 2004 N.O.D./Harris Survey, just over
one-third (35 percent) of people ages 18-64 with disabilities are employed
compared to more than three-quarters of those without disabilities.
[268]
These figures have not changed from those reported in the comparable 1986
poll.
[269]
In fact, the percentage of people with disabilities who were working dropped
from 1994 to 2000 to as low as 29 percent.
[270]
Additionally, the 2004 poll showed that people with disabilities are nearly
three times as likely as people without disabilities (26 percent versus 9
percent) to have a household income of $15,000 or less.
[271]
In 1986, 50 percent of people had a household income of $15,000 or less
(compared to 25 percent of people without disabilities).
Some researchers have gone so far as to suggest that the
ADA
caused employment declines for
people with disabilities, but this conclusion has not been supported by
empirical study.
[272]
Our environmental scan suggests that employment rates for people with
disabilities have been mixed since the passage of the
ADA
. One author argues that:
A closer look at the employment measures suggests that the
overall rate of employment may not be the best measure of job opportunities,
because it includes many people unlikely to acquire jobs regardless of any
improvement in employer attitudes or workplace accessibility. A larger
proportion of working-age adults with disabilities are not oriented toward
participation in the labor force, either because they consider themselves unable
to work or because they are engaged in other activities. That proportion has
been growing-a disturbing development requiring closer scrutiny. But, when we
leave this group [out of] statistics-when we consider only those people with
disabilities who are able and available to work-we obtain what we believe to be
a truer indication of changes in employer practices with regard to workers and
job applicants with disabilities. When we do so, the picture brightens
considerably. We find that employment opportunities improved significantly for
people with disabilities-or, at least, for some people with disabilities-during
the decade following the passage of the
ADA
.
[273]
In an ADA Hearing before the Subcommittee on the Constitution
of the House Committee on the Judiciary on September 13, 2006, Professor Robert
Burgdorf Jr., a leading ADA scholar, posited that, because Supreme Court
decisions have so restricted the use of Title I of the ADA, it is impossible to
know whether it would be effective, if ever implemented, in improving employment
opportunities for people with disabilities.
The
ADA
is a
civil rights law. Even if implemented, the employment provisions of the
ADA
do not have the ability to
eliminate the deep structural barriers to employment that people with
disabilities face:
The
ADA
's antidiscrimination requirement
can prevent an employer from refusing to hire a qualified person simply because
the person has a disability, and the
ADA
's accommodation requirement can
force the employer to make some changes in facilities or job tasks to enable
individuals with disabilities to perform particular jobs. But those mandates do
not require the employer to provide in-home personal-assistance service or
transportation to enable an individual with a disability to get to work, nor do
they require the employer to provide the individual with health insurance
coverage that is as adequate as he or she can receive through Medicaid. The
solutions to these problems require more than simply mandating that individual
employers cease discriminating and provide accommodations; they require more
direct and sustained government interventions such as the public funding and
provision of benefits.
[274]
Unfortunately, there is a paucity of data on many questions
regarding the employment of people with disabilities. NCD has an initiative
underway to address the vacuum of research-based evidence and practices on the
employment problems facing people with disabilities. NCD currently is conducting
an "Employment Study" that will include an assertive and systematic review of
both public and private policies and initiatives aimed at understanding the
causes of underemployment and unemployment of people with disabilities and
improving the employment of people with disabilities.
Incentives for employing people with disabilities warrant
further study. For example, the Work Opportunity Tax Credit is a tax credit
available to employers who employ people with disabilities and other
disadvantaged groups. It does not appear that employers are taking advantage of
this credit by hiring people with disabilities. In 1999, approximately 1 out of
790 and 1 out of 3,450 individuals with business affiliations reported the Work
Opportunity Tax Credit on their returns, accounting for approximately $254
million.
[275]
The Department of Justice sent newsletters on tax incentives to over seven
million businesses in 2002-2003.
[276]
Nevertheless, a 2003 study by the Society of Human Resource Management found
that only 16 percent of surveyed businesses had ever used the Work Opportunity
Tax Credit.
[277]
A 2003 survey of 501 employers found that one-fourth (26
percent) of employers said that their company employs at least one worker with a
mental or physical disability.
[278]
Research on corporate culture and disability indicates that
"researchers, policymakers, business leaders, and the disability community must
engage in meaningful dialogue about the examination of disability rights law and
policy in general, and the implications of the Americans with Disabilities Act
(ADA) of 1990 for people with disabilities and their families and employers in
particular."
[279]
They must also be cognizant of who Title I covers, particularly given the
changing coverage as a result of various Supreme Court decisions.
A 2003 survey of 501 employers found that 49 percent of
employers have made recruiting and interviewing locations accessible, but only
12 percent have changed the format of job applications to make them more
accessible, or changed the tests or evaluations used in hiring or promotion. In
all instances, larger firms are more likely than smaller firms to have made
changes to their business practices to accommodate and recruit workers with
disabilities.
[280]
A 2004 N.O.D./Harris Survey confirms that people with
disabilities continue to have difficulty breaking into the job market. Although
the frequency of other types of job discrimination decreased from 1994 to 2004,
the frequency of being denied a job interview remained stable. In 1994,
approximately 29 percent of respondents who had experienced job discrimination
reported being denied an interview because of their disability or health
problem. In 2004, 27 percent reported being denied an interview.
[281]
Although people with disabilities are seeking higher
education, they do not appear to be benefiting from that education in terms of
greater employment opportunities. The 2004 N.O.D./Harris Survey indicates that
higher education does not correlate to employment for people with disabilities
to the degree that it does for people without disabilities. Thus, while 82
percent of people without disabilities who have college degrees are employed
full- or part-time, only 54 percent of college graduates with disabilities are
employed. To some extent, this may reflect higher ages of respondents with
disabilities, 17 percent of whom were retired, as compared to 3 percent of
respondents without
disabilities who were retired.
[282]
Education among people with disabilities also does not appear to correlate to
higher income levels. 50 percent of college graduates with disabilities earned
$50,000 or less per year, while only 28 percent of graduates without disabilities earned $50,000 or
less. At the $50,000-$75,000 range, the percentage of graduates with and without
disabilities was approximately equal (23 percent - 24 percent). Graduates with
disabilities were much less likely to be earning at the higher levels
(>$75,000) than graduates without
disabilities (16 percent versus 38 percent).
[283]
c. Input from Employers
Employers reported that businesses generally do not track the
number of their employees with disabilities.
[284]
Because of the
ADA
prohibitions on pre-employment
and post-employment inquiries into disability, and the requirements of
confidentiality of disability-related information, employers are discouraged, if
not actually prohibited, from collecting and reporting such information. This
makes it difficult to assess the progress of people with disabilities in
employment, particularly of those who are successfully employed. It is likely
that this fact is skewing the data on employment of people with disabilities, as
employed people with disabilities are less likely to have the time to
participate in surveys, forums, and meetings about disability and employment.
Moreover, this inability to count and brag about hiring people with disabilities
may be counterproductive to the goal of increasing employment.
Employers consistently commented that they had made
significant changes to their employment application processes to make them more
accessible to people with disabilities.
[285]
They also commented that the
vagueness of the definitions of "person with a disability" and "reasonable
accommodation" made compliance more difficult than it should be.
[286]
d. Input from People with
Disabilities
In the focus groups, public forums and e-mail responses,
nearly half of those who addressed employment concerns suggested they had been
discriminated against by employers. Across the board, the discrimination was
believed to occur at the hiring stage. People with disabilities believed they
had been turned down for jobs because of employers' attitudes toward
disabilities-an action difficult to prove in an employment discrimination
case.
If the
ADA
has
improved employment opportunities I would like to see the evidence. In my
experience seeking employment with a visible disability I found employers
uncomfortable with my situation. Although I was well-qualified for the positions
I was never able to get past the initial interview nor was there any level of
follow-up on the part of the companies. I believe that employers view the
ADA
as adversarial to their role.
[287]
This view is consistent with the data indicating that hiring
of people with disabilities has not increased since passage of the
ADA
. The hiring stage of the
employment process is the most difficult to address under the
ADA
, as an applicant with a
disability will rarely be told the reasons he or she was not hired. Employers,
who are discouraged by the
ADA
from
counting employees with disabilities, cannot effectively publicize any positive
hiring efforts they make.
Financial incentives for hiring people with disabilities have
not been sufficient incentive to improve hiring of people with disabilities.
NCD's ongoing Financial Incentives Study is investigating this issue. Although
many government programs are directed at improving the employment rates of
people with disabilities (e.g., health care, education, vocational
rehabilitation, transportation subsidies, housing, and other areas) either
directly, indirectly, or through specialized services, resources or
environmental access, little is known about the extent, utilization, or impact
that these financial incentives have on the everyday lives of people with
disabilities. Financial incentives can be in many forms, including tax credits
(e.g., for employees with disability-related work expenses or for employers) or
the removal of disincentives to work. Financial incentives may be directed at
people with disabilities who are seeking employment, for employees with
disabilities, and for employers who hire people with disabilities; this will be
considered along with some non-tax incentives for daily living that are of
particular interest to people with disabilities. While many financial incentives
have traditionally focused on improving employment, NCD will look at financial
incentives in the broader context of self-sufficiency and integration into the
larger society.
The Financial Incentives Study will:
Identify factors that influence the use of
financial incentives by employers, employees, and potential employees who are
people with disabilities;
Assess what is needed to increase the use of
incentives and/or create new incentives;
Examine the potential role of financial
incentives with respect to aspects of living that affect obtaining and
maintaining meaningful employment (e.g., affordable and accessible assistive
technology, housing, transportation, health care, personal assistance, and other
supports);
Analyze the different approaches to financial
incentives in selected states;
Prepare a cost-benefit economic analysis model
for employers.
2.
Reasonable Accommodation and Promotion
a.
ADA
Requirements
Title I of the
ADA
requires employers to make
reasonable accommodations to the known physical or mental disabilities of
employees.
[288]
Reasonable accommodations can include making facilities accessible to employees
with disabilities, job restructuring, reassignment to vacant positions,
modification or acquisition of accessible equipment, adjustment of training
materials, provision of interpreters and readers, and other accommodations.
[289]
b. Relevant Data
It appears that, once a person with a disability is hired, he
or she is less likely to experience employment discrimination and is more likely
to receive reasonable accommodations, if needed, than before the
ADA
. The
ADA
has similar positive effects for
people who acquire their disabilities while they are employed.
According to a 1995 Harris Survey of employers, 80 percent of
executives of large companies reported that the cost of accommodating people
with disabilities had increased only a little or not at all. Only seven percent
reported a large increase. Sixty-six percent of the executives reported no
increase in litigation, and only 14 percent saw "a little" increase. The number
of companies that had actually made accommodations had increased. In a 1986
survey of employers, Harris found that 51 percent of corporations surveyed had
made some accommodations.
[290]
In 1995, the figure had risen to 81 percent.
[291]
In the 2003 Harris Survey of 501 employers, which included
small employers, only 40 percent provided training of any kind to their
employees regarding working with or providing accommodations to people with
disabilities. Further, only 34 percent of companies with 5-24 workers provided
training to their employees in this area. Fifty-two percent of larger companies
employing more than 25 workers provided training.
[292]
Little empirical evidence is available to understand
employers' decisions to provide accommodations. One line of study explores
employee and employer factors associated with decisions to accommodate. The
analyses are based on nationwide data from interviews with employers who
contacted the Job Accommodation Network (JAN) concerning workplace
accommodations.
[293]
The data was derived from more than
1,000 interviews that took place between 2004 and 2005 with employers who
consulted JAN regarding employee accommodations. The majority of interviews
concerned accommodating a current employee. More than three-fourths (82.4
percent) of these consultations focused on retaining an employee and an
additional 1.8 percent concerned promoting a current employee.
[294]
Accommodation inquiries about job applicants made up a small percentage of the
sample (4.6 percent), as did inquiries about hiring new employees (1.6
percent).
[295]
A few inquiries involved company-wide issues. For more than half of the
consultations, workplace accommodations were made subsequent to the consultation
with JAN. Of the 540 employers who provided feedback, accommodations had been
made (or were pending implementation) in 55.2 percent of the consultations.
[296]
The most common reason reported for not making an accommodation involved a
determination by the company that it was not required under the
ADA
or any other law (58.5
percent).
[297]
Accommodations were most likely to be made for employees who
were considered to have a substantial limitation of a major life activity.
Accommodations were made in 61.2 percent of the 402 consultations for employees
with substantial limitations.
[298]
Accommodations were made in 42.6 percent of cases for employees whom the
employer considered not to have a substantial limitation.
[299]
Whether an accommodation was made was significantly related to the employer's
ratings of the employee's ability to work with accommodations.
[300]
The researchers also analyzed employer reports of costs and
benefits associated with providing the accommodations. Cost and benefit data
were available only in those situations in which the employer had decided to
provide the accommodation. Of the respondents who made an accommodation, 226
were able to provide the actual or estimated direct cost of the accommodation.
[301]
Forty-nine percent of the accommodations made had no cost.
Almost all employers reported that providing the accommodation benefited the
company by allowing it to retain (91.6 percent) and/or promote (11.3 percent) a
qualified employee.
[302]
Other direct benefits reported included eliminating the cost of training a new
employee (59.5 percent), saving on worker's compensation or insurance costs
(43.0 percent), increasing the accommodated worker's productivity (76.7
percent), improving the accommodated worker's attendance (53.3 percent), and
increasing the diversity of the company (41.4 percent).
[303]
The study's core findings include: (1) Current employees with
substantial limitations of major life activities are substantially more likely
to receive accommodations, compared to those without substantial limitations;
(2) Employers are more likely to provide accommodations for employees whose
work-related limitations are mitigated by effective accommodations;
(3) Accommodations for employees without substantial limitations cost less
than those provided to employees with substantial limitations; and (4) Overall,
accommodation costs are low and benefits are relatively high.
[304]
According to the 2004
N.O.D./Harris Survey, fewer people with disabilities are experiencing
on-the-job employment discrimination (see Figure G). A major purpose of the
ADA
is to eliminate discrimination
against people with disabilities in employment. In 2004, fewer respondents with
disabilities, who were working full- or part-time, reported experiencing
employment discrimination than in 1986, and there was an even greater decrease
in people with disabilities reporting employment discrimination than in 1998. In
1986, for instance, 28.2 percent of Harris Poll respondents with disabilities
who were employed reported that they had encountered job discrimination because
of their disability or health problem. In 1998, one third (32.8 percent) of
those surveyed reported experiencing job discrimination and this rate fell
substantially by 2004 to 22.1 percent.
Figure G: Harris Poll Respondents with Disabilities Working
Full- or Part-Time Who Report Experiencing Employment Discrimination
.
.
In regard to promoting employees with disabilities, the
Harris surveys have found that respondents in 2004 were less likely to have been
denied a promotion than in earlier years. More than one in four (24.6 percent)
respondents in 1994 who had experienced job discrimination reported being denied
a promotion because of their disability. By 2004, this had been reduced to less
than one in five (16.7 percent) (see Table D).
[305]
Table D: Type of Employment Discrimination Due to
Disability
|
Type of
Employment Discrimination |
Percentage of
Employed Participants |
|
1994 |
1998 |
2004 |
|
Refused an
interview |
28.8% |
23.7% |
26.9% |
|
Refused a
job |
61.4% |
59.3% |
30.8% |
|
Denied a
promotion |
24.6% |
29.3% |
16.7% |
|
Given less
responsibility than co-workers |
37.3% |
39.0% |
14.1% |
|
Paid less than
co-workers |
18.6% |
32.8% |
12.8% |
|
Denied health
insurance |
23.3% |
31.7% |
3.8% |
|
Denied other work
related benefits |
22.4% |
23.3% |
6.4% |
Compared to their 1994 cohorts, 2004 employed respondents
were significantly less likely to have been refused a job, given less
responsibility than co-workers, or been denied health insurance or other work
benefits because of their disability. In 1994, 61.4 percent of respondents who
had experienced job discrimination reported being denied a job because of their
disability. In 2004, only 30.8 percent reported having been denied a job. In
1994, more than two out of three respondents (37.3 percent) who had experienced
job discrimination reported that they had been given less responsibility than
their co-workers. Significantly fewer similar respondents in 2004, 14.1 percent,
reported this experience. In 1994, of participants who had experienced job
discrimination, 23.3 percent reported being denied health insurance, and 22.4
percent reported being denied other work-related benefits. In 2004, only 3.8
percent were denied health insurance, and 6.4 percent were denied other
work-related benefits.
c. Input from People with Disabilities and
Employers
One company noted they
had made changes in their policies as a result of the
ADA
,
even though they had been viewing it as a diversity issue for 30 years prior to
the
ADA
. They noted that the
ADA
brought more disability to the
forefront as a key initiative for managers, hiring, conversation in the company,
and for employees. That company indicated that it had great impact on their
organization or culture based on the breadth and intent of the
ADA
, and that the
ADA
brought things to the next level
of consciousness, that next step of diversity or affirmative action in some
people's organization. And, they noted it gave access to potential hiring of
individuals that maybe they had not considered to the same degree before and it
obviously changed directions and areas of recruiting individuals.
Another employer said, in general, they believed the Act had
a positive influence on their organization, allowing them to develop credibility
with employees in responding to requests for accommodations, reinforcing from
their advertising that they complied both with the letter and the spirit of the
law. They indicated it gave them an opportunity to display that, in fact, that's
the way they operate their business, that it's a positive any time that they can
display our commitments to employees and give something to reinforce other
messages about commitment to employees.
One employer discussed accommodations that involve some type
of technology or access accommodation, and shared that they had set up a team at
their headquarters for assistive technology that works on technical or access
accommodations of the organization. They set that team up to insure that
technology accommodations were compatible with their other technology platforms,
because local managers didn't have sufficient information to incorporate
seamlessly with their existing technology platform. They found as a result that
they received much better pricing and much more accommodation for future
technology changes, noting also that the process works very smoothly, and that
it's very responsive to their technology accommodation needs.
One company indicated they have a localized accommodation
process, but a centralized appeal process if accommodations are denied, to
ensure people consistently receive the accommodations they need and are entitled
to under the law. Two employers indicated they have teams to assess
accommodation needs and determine the best way to meet the request for
reasonable accommodations after an assessment of the individual, job,
environment, and other factors related to that individual's ability to do the
job in the work location.
One employer stated that of the reasonable accommodation
requests she receives, "probably 70 percent of the requests I see, the person
isn't actually disabled."
[306]
Another equated reasonable accommodation with preferential treatment.
[307]
In our focus groups with people
with disabilities, one individual discussed making a request for a reasonable
accommodation, which he received after putting the request in a letter.
[308]
Another participant said that he knew a person who had
received extensive accommodations, which he believes she would not have gotten
without the
ADA
.
[309]
The majority of public forum participants with disabilities
who made comments about reasonable accommodations said employers were not doing
enough to provide them. E-mail writers were more evenly split, with 51 percent
saying they had received an accommodation from an employer.
3.
Lawsuits
Private lawsuits under Title I of the
ADA
are rarely decided in favor of
people with disabilities. The scholarship on Title I ADA court cases is
voluminous. Our environmental scan found that the overwhelming majority of
articles, 79 percent, were pessimistic or negative about the impact of Title I
of the
ADA
on the employment
prospects of people with disabilities. Three main reasons are given by scholars
for the law's perceived failure: adverse rulings by the Supreme Court as well as
by many lower courts; the limits of antidiscrimination law in changing the
broader problems faced by people with disabilities; and the limitations of the
"accommodation mandate."
[310]
Many scholars say the restrictive Supreme Court ADA decisions
make it harder for people with disabilities to prove that they have
disabilities, bolster the defenses that can be used by those accused of
discrimination, and limit the damages and legal costs that can be collected by
those whose complaints are upheld.
[311]
The National Council on Disability issued a report in 2003 cataloguing the
Court's negative impact on lower court decisions.
[312]
In December 2004, NCD published Righting
the ADA, which analyzed the Supreme Court's
ADA
decisions severely restricting the
ADA
protections available to
applicants and employees with disabilities.
[313]
This Report includes draft legislative language which would restore
ADA
protections for people with
disabilities who experience employment discrimination.
The American Bar Association has conducted a number of
studies on Title I ADA court cases and most recently (2003) found that in 97.3
percent of Title I cases, the employer won.
[314]
The Equal Employment OpportunityCommission (EEOC), which enforces Title I,
reports that in
FY 2004 the agency received 15,376 charges of disability discrimination,
resolved 16,949 disability discrimination charges and recovered $47.7 million in
monetary benefits for charging parties and other aggrieved individuals (not
including monetary benefits obtained through litigation). These rates have
dropped during the last several years. For instance, in FY 1998, EEOC resolved
23,324 charges, and recovered $53.7 in monetary benefits.
[315]
These drop-offs in recent
years could be attributed to people with disabilities experiencing less
discrimination by employers, the discouragement of filings because employers
normally win Title I cases, the narrowing of the ADA by the courts, or to a
combination of the three factors.
Some scholars
argue that these figures regarding the success (or lack thereof) of disability
employment lawsuits are not reflective of the actual impact of the
ADA
. The vast majority of claims are resolved prior
to any litigation and, people with disabilities appear to have been more
successful at obtaining reasonable accommodations and fair treatment on the job
than before the
ADA
.
[316]
D.
Recommendations - Economic Self-Sufficiency
-
The Department of Education should work with
colleges, universities, and public schools to enhance the effectiveness of
supports, such as preparing students to better negotiate their supports and
services, assisting students with coordinating and managing supports and
services, and facilitating the use of technology in education and
employment;
-
The Department of Education should improve
coordination of services between the educational system and the vocational
rehabilitation system, particularly as regards funding for services and
assistive technology;
-
Disability organizations, and research and policy
centers focused on economic empowerment for people with disabilities such as the
Burton Blatt Institute, should work with philanthropists and federal and state
government agencies to improve availability of scholarship, tuition waiver, and
loan repayment programs for students and adults with disabilities who wish to
pursue higher education;
-
Congress should extend and expand the Mental
Health Parity Act to ensure that people with mental health disabilities are able
to secure treatment;
-
The National Institute on Disability and
Rehabilitation and Research should study insurance coverage issues that prevent
people with disabilities from accessing private insurance;
·
The Equal Employment Opportunity Commission, the
Department of Labor, and National Institute on Disability and Rehabilitation and
Research should place immediate priority on increasing the hiring of people with
disabilities, through:
6.
Study the reasons employers are not hiring people with
disabilities;
7.
Conduct confidential surveys of hiring
practices;
8.
Improve job placement services for people with
disabilities and programs to assist employers to recruit individuals with
disabilities;
9.
Improve positive incentives and tax breaks for hiring
people with disabilities;
10.
Eliminate Social Security and Medicaid regulations that
discourage people with disabilities from working;
11.
Assistance with research and purchase of accessible
equipment;
12.
DOJ and EEOC should conduct testing of business hiring
practices to identify discriminatory hiring practices and pursue enforcement
actions.
.
Summary of
Findings
Most people with disabilities who
participated in the public forums, focus groups, and information requests report
the
ADA
has had a significant positive impact on their lives. This was also true of the
participants in the 2004 Harris Survey, in response to which most people with
disabilities reported improvement in quality of life since passage of the
ADA
.
According to the 2000 Harris Poll of Americans with Disabilities, more than 60
percent of people with disabilities perceived significant improvements in public
facility access, personal quality of life, and public
attitudes.
The most significant improvements appear to
have occurred in telecommunications, transportation, and access to public
accommodations. However, the lack of access to information resulted in the
perception by many people who are blind or visually impaired that the
ADA
was not achieving its goals.
People with disabilities have mixed
perceptions about the improvement of accessibility to state and local
governments, and the absence of any ongoing tracking of access improvements by
state and local governments makes it difficult to assess progress in this area.
While access to public transportation, public sidewalks, and voting has
increased, due in part to the active enforcement efforts of DOJ, independent
living remains elusive for many because of the slow progress of governments in
shifting from an institutional bias to home and community-based health care.
Strides are being made in access to, and
participation in, higher education for people with disabilities. However, people
with disabilities lag behind their nondisabled peers in graduation rates and
post-college job success.
While some gains are seen in employment,
particularly for people who become disabled while already in a job, obtaining a
job when one has a visible disability remains difficult, and the percentage of
people with disabilities living in poverty virtually is the same as before the
ADA
was implemented. Significant disparities exist in access to health insurance and
health care for people with disabilities, as compared to people without
disabilities-even when comparing workers with disabilities and workers without
disabilities. While little data exist on the financial assets of people with
disabilities, economic self-sufficiency remains elusive for too many people with
disabilities.
Summary of
Recommendations
Based on these
findings, this report makes the following recommendations:
General
Recommendations
Federal agencies should fund and implement
state-by-state surveys of people with disabilities, based on the N.O.D./Harris
Surveys using statistically significant survey populations and distinguishing
among rural and urban communities, minority communities, and high, middle, and
low income communities.
Equality of
Opportunity
-
Transportation
Congress should expand accessibility requirements
for rail services beyond key stations;
The
Department of Transportation should conduct extensive training and outreach for
public transit providers regarding maintenance and stop
announcements;
The
Department of Transportation should work with state and local governments and
taxi providers to develop and publicize effective incentives for private taxi
providers to offer accessible vehicles;
The
Department of Transportation should conduct extensive training and outreach for
public and private transportation services regarding service animals and
increase high-profile enforcement actions by the Departments of Justice and
Transportation;
The
Department of Transportation should work with paratransit providers, state and
local governments, transportation experts, and representatives of disability and
aging communities to explore paratransit options such as more subscription
service, more flexible services, and other ideas to close the expectation gap
and increase usability of paratransit for riders with
disabilities;
·
The
Department of Transportation should study and test options for providing
transportation services to people with disabilities in rural
areas.
Equality of
Opportunity
-
Sidewalks and Curb Ramps
·
The Department of Justice should promulgate
ADA
regulations for public rights-of-way as soon as
possible;
·
The Department of Transportation should increase
funding for making public rights-of-way accessible, including sidewalk access,
curb ramp installation, and accessible street
crossings;
·
The Department of Justice should develop and
disseminate guidelines for the prioritization of curb ramp installations, so
that the most needed and useful curb ramps are installed first.
Equality of
Opportunity
-
Public Accommodations
The National Institute on Disability and
Rehabilitation Research should conduct a survey of businesses, perhaps through
the chambers of commerce or small business associations, to determine the degree
to which businesses have instituted readily achievable barrier removal efforts,
and provide guidance to Congress on adequately funding the Department of Justice
to enforce this part of the statute;
·
The Department of Justice and National Institute
on Disability and Rehabilitation Research should provide expert, individualized,
low-cost technical assistance and consulting to small businesses. The
ADA
and IT Centers and local offices of the National Disability Rights Network are
possible agencies to carry out this effort;
The Department of Justice should expand its
Project Civic Access to increase enforcement in local areas by reviewing
businesses in identified localities;
Congress should require states to submit their
building codes for access certification by the DOJ;
The U.S. Access Board and Department of Justice
should continue coordination with model building code
agencies;
The Department of Justice should increase
enforcement and education regarding how to serve customers with visual and
hearing impairments, particularly as it pertains to Web access and use of TTYs
and relay services;
DOJ should require Web sites of places of public
accommodations and commercial facilities to comply with federal Web
accessibility standards;
·
The Department of Justice and National Institute
on Disability and Rehabilitation Research should develop technical assistance
materials regarding what people with disabilities and businesses should expect
of existing buildings of various sizes years after passage of the
ADA
.
Equality of
Opportunity
-
Accessibility of Telecommunications
·
The Department of Justice should publish
information for businesses about how TRS works, how to use it, and the legal
obligation to use it. The
ADA
and IT Centers could be funded to provide this
information;
The Federal Communications Commission should
establish standards to encourage the continued development of Video Relay
Services.
Full Participation -
State and Local Government Services
·
The Department of Justice and other federal
agencies should focus on enforcing the
ADA
obligations of government agencies;
·
Federal agencies should use initiatives such as
Project Civic Access to increase
ADA
compliance at the state and local levels;
·
The Department of Justice should use targeted,
high-profile litigation on particularly important issues, such as access to
courts, medical care, and education to increase state and local
ADA
compliance.
Full Participation -
Voting
The Department of Justice should immediately
implement the Help America Vote Act requiring installation of electronic voting
equipment;
The National Institute on Disability and
Rehabilitation Research should study and publish the involvement of people with
disabilities in civic opportunities, such as government office;
The National Organization on Disability should
encourage state and local governments to emphasize involvement of the disability
community as part of their diversity efforts and provide technical assistance to
help government agencies reach out to people with
disabilities.
Community
Integration
Congress should increase Medicaid support for
community-based treatment settings;
·
Congress should pass and fully fund the Money
Follows the Person Act;
[317]
and Medicaid Community-Based Attendant Services and Supports
Act;
[318]
·
Congress should require states to expeditiously
complete effective Olmstead plans,
consistent with HHS guidance;
·
The Department of Health and Human Services
should require states to fund personal care services when needed to allow a
person with a disability to remain in their community;
The Departments of Health and Human Services,
Education, Transportation, Housing and Urban Development, Justice, and Labor,
and Equal Employment Opportunity Commission, working with state and local
governments and community agencies should implement local initiatives to extend
the integration mandate to housing, education, transportation, employment, and
other areas affecting people with disabilities;
The Department of Justice should increase and
target enforcement of the Civil Rights of Institutionalized Persons Act on
requiring effective deinstitutionalization efforts and publishing creative and
effective programs to provide community-based
services;
The Department of Labor's program funding home
modifications should be significantly expanded to allow people with disabilities
and the elderly to live in their communities;
The Departments of
Health and Human Services, Education, Transportation, Housing and Urban
Development, Justice, and Labor, and Equal Employment Opportunity Commission,
should work with disability communities and others to develop an overall national policy framework for community
integration of people with disabilities;
The Department of Health and Human Services
should study systems of long-term care and long-term care insurance to eliminate
unnecessary institutionalization of people with disabilities and aging
people.
Economic
Self-Sufficiency
The Department of Education should work with
colleges, universities, and public schools to enhance the effectiveness of
supports, such as preparing students to better negotiate their supports and
services, assisting students with coordinating and managing supports and
services, and facilitating the use of technology in education and
employment;
The Department of Education should improve
coordination of services between the educational system and the vocational
rehabilitation system, particularly as regards funding for services and
assistive technology;
Disability organizations should work with
philanthropists and federal and state government agencies to improve
availability of scholarship, tuition waiver, and loan repayment programs for
students and adults with disabilities who wish to pursue higher
education;
Congress should extend and expand the Mental
Health Parity Act to ensure that people with mental health disabilities are able
to secure treatment;
The National Institute on Disability and
Rehabilitation Research should study insurance coverage issues that prevent
people with disabilities from accessing private
insurance;
The Equal Employment Opportunity Commission and
National Institute on Disability and Rehabilitation Research should place
immediate priority on increasing the hiring of people with
disabilities.
Conclusion
The Americans with Disabilities Act has fulfilled much of its
promise. Today's world is a better place for many people with disabilities
because of the
ADA
. People with
disabilities have greater access to the goods and services provided by their
local communities, businesses, and states and municipalities than they did
before 1990. Public transit systems are more accessible to people with
disabilities, although problems remain for rural residents with disabilities,
paratransit users, and bus riders with visual impairments. The
telecommunications title of the
ADA
has been invaluable in connecting people with hearing and/or speech impairments
with the hearing world. More and more young people with disabilities are going
to college than before the
ADA
,
which may be the best solution to the high unemployment and low income rates in
the disability community.
The Olmstead
decision, when fully implemented, could go a long way to promoting the goals of
full participation and independent living for people with disabilities,
especially those with mental illnesses or cognitive disabilities. Time and
again, people in the focus groups, interviews and public forums, and through
e-mail told us that funding, understanding, and enforcement were the keys to
making the
ADA
work better. There
are yet many miles and a long march to go before the full promise of the
ADA
will be realized. But there is
no doubt this country is on the road to that vision of justice that Justin Dart
and thousands of other Americans with disabilities started us on 16 years ago.
Appendix A: Blue Ribbon
Panel
Chair of
Blue Ribbon Panel-Peter Blanck, Chairman, The Burton Blatt Institute, and
University Professor,
Syracuse
University
Panel Members
Paul Baker, Director of
Research
Center
for Advanced Communications,
Georgia Institute of Technology
Robert Herman, Advocacy Attorney, Paralyzed
Veterans of
America
Eve Hill, Executive Director,
Disability
Rights
Legal
Center
, and
Visiting Associate Professor of Law,
Loyola
Marymount
University
Carmen Jones, Founder and President, Solutions
Marketing Group
Doug Kruse, Professor of Human Resource
Management,
Rutgers
University
, and Research Associate,
National Bureau of Economic Research
Ken McGill, Director, Office of Employment
Support Programs, Social Security Administration
Steve Mendelsohn, Executive Director, Project
Rebirth
Ken Nakata, Director of Disability Initiatives
and Government Compliance, BayFirst Solutions
Lisa Schur, Assistant Professor of Labor Studies
and Employment Relations,
Rutgers
University
Michael Stein, Cabell Research Professor of Law,
College
of
William
& Mary
Appendix B: Methodology
Environmental Scans
A comprehensive environmental scan was completed to collect
documents discussing the impact, positive or negative, that the
ADA
has had on the lives of people
with disabilities and on the greater society. The project researchers gathered
approximately 500 documents from a range of sources. The documents collected
included journal articles from the social science and legal disciplines,
settlement agreements from the Department of Justice's Web site, case law
summaries, e-mails from NCD's "Call for Comments," transcripts from public
forums held in five locations around the United States, and targeted interviews
with key federal agency officials and nonprofit organization affiliates. The
data collected was periodically updated and a coding scheme was developed to
categorize the nature and content of data sources.
The project team cataloged the reports, journal articles,
books, other documents published or posted to relevant federal agency and
non-profit organization Web sites, and the "testimony related documents" from
NCD's "Call for Comments," public forums, and Blanck & Associates' requests
for comments and targeted interviews.
For the testimony related documents, short submissions, such
as e-mail, were entered in their entirety into the database. The submissions
received from the "Request for Comments" were lengthy, and thus, abstracted and
entered into the database.
In selecting documents for collection, the primary question
was "Does the document describe or discuss the impact of the
ADA
, beyond merely repeating the law
in a more user friendly format?"
Environmental Scan Research Steps
1.
Researchers conducted an extensive search of the Web for
documents related to the
ADA
.
Particular attention was given to organizations that represented stakeholders
from the business community and their publications.
2.
In addition, researchers identified an additional list
of federal agencies and disability organizations, including stakeholders and
scholars who have studied
ADA
implementation and visited their Web sites, conducting the same scan as above
(see step 1).
3.
To supplement the data collection, researchers included
relevant documents collected on two concurrent projects addressing ADA
implementation that were not identified in steps 1 or 2 above. These two
projects included:
·
A search for all empirical studies of the
ADA
, published between 1990-2005, in
law and social science journals.
·
A search for all law review and social science
review articles that had been published regarding the
ADA
since December 2003 (gathered
originally for the purpose of updating the Blanck, Hill, Siegel, &
Waterstone (2004) disability law casebook
[319]
).
4.
Researchers conducted a scan for academic and other
scholarly books that referenced "Americans with Disabilities Act" in the title.
These books were located using the online
SUMMIT
catalog at
Syracuse
University
and the Lexis and Westlaw
commercial publication Web sites.
5.
Additionally, researchers visited the following Web
sites and collected any new documents not identified during steps 1-3. These
included:
13.
The Burton
Blatt Institute Web site (publications by BBI staff).
[320]
14.
The Web sites
of relevant BBI national partners.
[321]
15.
The
ADA
Portal - a collection of
documents available from the Disability Business Technical Assistance Centers
(DBTACs).
[322]
16.
The Social Science Research Network Web site
(post-December 2003 articles).
[323]
6.
Other Notes: Disability organization Web sites were
visited. Summaries of the Supreme Court cases decided pursuant to all Titles of
the
ADA
were collected using the
summaries available from Findlaw as
the abstract.
7.
With some relevant topics, it was difficult to
distinguish the
ADA
impact from the
impact of other legislation or policy decisions. This was especially true in the
area of housing. For instance, the Olmstead community integration mandate
overlaps with housing issues under the Fair Housing Act Amendments.
Focus Groups
Project staff conducted nine focus groups, seven for people
with disabilities and two for employers. Each group consisted of fewer than ten
individuals. Focus groups for people with disabilities were organized for the
following disability populations: developmental
disabilities, learning disabilities, psychiatric disabilities, mobility
disabilities, hearing disabilities, and vision disabilities. The focus group for
people who are deaf or hard of hearing was conducted in
Washington
,
DC
. All of the other focus groups were conducted by telephone
and included individuals from all regions of the country.
Key topics for the focus groups of people with disabilities
were based on the overarching goals of the
ADA
:
Equality of opportunity - patterns and examples
of access provided to people with disabilities to transportation, business, and
government goods and services;
Full participation - patterns and examples of
inclusion of people with disabilities in community activities, including
political participation;
Independent living - patterns and examples of how
individuals have been able to exercise control over their lives, choosing among
acceptable options without undue control by others;
Economic self-sufficiency - patterns and examples
of how people with disabilities have gained greater access to education and
employment opportunities and related economic benefits.
Key topics for employer focus groups were:
experiences hiring people with
disabilities;
experiences employing people with
disabilities;
experiences providing reasonable accommodations
for employees with disabilities.
Public Forums
Five day-long public forums were held in the following
cities:
Iowa City
,
Iowa
;
Los Angeles
,
California
;
Houston
,
Texas
;
Savannah
,
Georgia
;
and
Washington
,
DC
. Participants were people with
disabilities, their family members, disability advocates, as well as employers
and representatives of local, state, and federal agencies. People were asked to
provide testimony about how the
ADA
had impacted their lives in terms of telecommunications access, transportation,
education, employment opportunities, access to goods and services provided by
state and local governments, and access to public accommodations operated by
private entities.
The publicity for the forums resulted in 112 e-mail
statements from people with disabilities who could not attend the forums. These
comments were also included in the database for analysis, and are reflected in
the findings.
Interviews
One-on-one interviews were conducted with 24 individuals
representing federal agencies that implement or enforce the
ADA
, as well as with officials of
state and local governments, private and public agencies that provide services
to people with disabilities, business and trade associations, and disability
organizations whose constituencies were not represented by the focus groups.
Questions asked of participants were related to the four broad goals of the
ADA
, but each interview focused on
the unique perspective of the agency or association represented.
Appendix C:
Mission
of the National Council on
Disability
Overview and purpose
The National Council on Disability (NCD) is an independent
federal agency with 15 members appointed by the President of the
United States
and confirmed by the U.S. Senate. The purpose of NCD is to promote policies,
programs, practices, and procedures that guarantee equal opportunity for all
individuals with disabilities regardless of the nature or significance of the
disability and to empower individuals with disabilities to achieve economic
self-sufficiency, independent living, and inclusion and integration into all
aspects of society.
Specific duties
The current statutory mandate of NCD includes the
following:
Reviewing and evaluating, on a continuing basis,
policies, programs, practices, and procedures concerning individuals with
disabilities conducted or assisted by federal departments and agencies,
including programs established or assisted under the Rehabilitation Act of 1973,
as amended, or under the Developmental Disabilities Assistance and Bill of
Rights Act, as well as all statutes and regulations pertaining to federal
programs that assist such individuals with disabilities, to assess the
effectiveness of such policies, programs, practices, procedures, statutes,
and regulations in meeting the needs of individuals with disabilities.
Reviewing and evaluating, on a continuing basis,
new and emerging disability policy issues affecting individuals with
disabilities in the Federal Government, at the state and local government
levels, and in the private sector, including the need for and coordination of
adult services, access to personal assistance services, school reform efforts
and the impact of such efforts on individuals with disabilities, access to
health care, and policies that act as disincentives for individuals to seek and
retain employment.
Making recommendations to the President,
Congress, the Secretary of Education, the director of the National Institute on
Disability and Rehabilitation Research, and other officials of federal agencies
about ways to better promote equal opportunity, economic self-sufficiency,
independent living, and inclusion and integration into all aspects of society
for Americans with disabilities.
Providing Congress, on a continuing basis, with
advice, recommendations, legislative proposals, and any additional information
that NCD or Congress deems appropriate.
Gathering information about the implementation,
effectiveness, and impact of the Americans with Disabilities Act of 1990
(
ADA
) (42 U.S.C. § 12101 et
seq.).
Advising the President, Congress, the
commissioner of the Rehabilitation Services Administration, the assistant
secretary for Special Education and Rehabilitative Services within the
Department of Education, and the director of the National Institute on
Disability and Rehabilitation Research on the development of the programs to be
carried out under the Rehabilitation Act of 1973, as amended.
Providing advice to the commissioner of the
Rehabilitation Services Administration with respect to the policies and conduct
of the administration.
Making recommendations to the director of the
National Institute on Disability and Rehabilitation Research on ways to improve
research, service, administration, and the collection, dissemination, and
implementation of research findings affecting people with
disabilities.
·
Providing
advice regarding priorities for the activities of the Interagency Disability
Coordinating Council and reviewing the recommendations of this council for
legislative and administrative changes to ensure that such recommendations are
consistent with NCD's purpose of promoting the full integration, independence,
and productivity of individuals with disabilities.
Preparing
and submitting to the President and Congress an annual report titled National Disability Policy: A Progress
Report.
International
In 1995, NCD was designated by the Department of
State to be the
U.S.
government's official contact point for disability issues. Specifically, NCD
interacts with the special rapporteur of the United Nations Commission for
Social Development on disability matters.
Consumers served and current activities
Although many government agencies deal with
issues and programs affecting people with disabilities, NCD is the only federal
agency charged with addressing, analyzing, and making recommendations on issues
of public policy that affect people with disabilities regardless of age,
disability type, perceived employment potential, economic need, specific
functional ability, veteran status, or other individual circumstance. NCD
recognizes its unique opportunity to facilitate independent living, community
integration, and employment opportunities for people with disabilities by
ensuring an informed and coordinated approach to addressing the concerns of
people with disabilities and eliminating barriers to their active participation
in community and family life.
NCD plays a major role in developing disability
policy in
America
. In
fact, NCD originally proposed what eventually became
ADA
. NCD's present list of key
issues includes improving personal assistance services, promoting health care
reform, including students with disabilities in high-quality programs in typical
neighborhood schools, promoting equal employment and community housing
opportunities, monitoring the implementation of
ADA
, improving assistive technology,
and ensuring that people with disabilities who are members of diverse cultures
fully participate in society.
Statutory history
NCD was established in 1978 as an advisory board
within the Department of Education (P.L. 95-602). The Rehabilitation Act
Amendments of 1984 (P.L. 98-221) transformed NCD into an independent
agency.
.
Endnotes
[1]
Money Follows the Person Act of 2005, H.R. 3063, 109th Cong. (1 Sess.
2006).
[2]
H.R. 910, 109th
Cong.
[3]
Okla. Disability Law Ctr., Justin Dart at ADA Eleventh Anniversary, Protection & Advocacy, Sept. 2001,
at
http://home.flash.net/~odlcokc/9-01nl.htm.
[4]
See Peter Blanck & Michael Millender, Before
Disability Civil Rights: Civil War Pensions and the Politics of Disability in
America, 52 Ala. L. Rev. 1 (2000)
(referenced throughout this section); see also Matthew Sanders, History of Civil
War Pension Laws, in R.W. Fogel, Public
Use Tape on the Aging of Veterans of the Union Army: Surgeons' Certificates,
1860-1940: Data User's Manual 213 (1999).
[5]
Sanders, supra note 4
. For an overview, see also Peter Blanck et al., Disability Civil Rights Law and Policy
(2004).
[6]
Harlan Hahn, Accommodations and the
ADA
: Unreasonable
Bias or Biased Reasoning?,
Berkeley
Journal of
Employment and Labor Law, 21 Berkeley J. Emp. & Lab. L. 166
(2000).
[7]
K. D. Seelman, Employment of individuals
with disabilities: Opportunities and challenges: The best of times/the worst of
times (July 17, 2000. Paper presented at Employment and Disability Policy Summer
Institute, Cornell University, Ithaca, NY; Richard K. Scotch & Kay Schriner,
Disability as Human Variation: Implications for Policy, 549 Annals Am. Acad. Pol. & Soc. Sci.
148 (1997).
[8]
Nat'l
Council Disability (NCD, 1996). Achieving
independence: The challenge for the 21st century: A decade of
progress in disability policy: Setting an agenda for the future.
Washington
,
D.C.
: National Council on Disability.
[9]
42 U.S.C. § 12101(a)(2), 42 U.S.C. §
12101(a)(7) (2000).
[11]
Prior
to the
ADA
, the
International
Center
for the Disabled (ICD) contracted with Louis
Harris and Associates in 1986 to survey Americans with disabilities about their
lives and the obstacles they faced. Louis Harris and Associates conducted
telephone interviews with 1000 individuals aged 16 and over. Post-ADA, the
National Organization on Disability (N.O.D.) contracted with Louis Harris and
Associates to complete similar national surveys of approximately 1000
individuals with disabilities in 1994, 1998, 2000 and 2004. Although the surveys
differed somewhat over time, many questions remained the same and, for others,
structured response "foils" could be used to create similar questions. The
findings herein are the first time these survey questions and data were reviewed
across time. Two of these questions focus directly on the
ADA
-awareness of the
ADA
, and its perceived impact. The other
questions serve as indicators of
ADA
influences (e.g., experiences of job
discrimination).
[12]
NCD
E-mail Call for Comments, submitted comments on May 10, 2005.
[13]
Nat'l Org. Disability, 2000 National Organization on
Disability/Harris Survey of Americans with Disabilities tbl. 22C
(2000) [hereinafter N.O.D. 2000], http://www.N.O.D..org/index.cfm?fuseaction=Page.viewPage&pageID=31..
[14]
Nat'l
Org. Disability, 2004 National
Organization on Disability/Harris Survey of Americans with Disabilities 88
(2004) [hereinafter N.O.D. 2004],
http://www.N.O.D..org/index.cfm?fuseaction=Page.viewPage&pageID=31; Nat'l
Org. Disability, 1986 National Organization on Disability/Harris
Survey of Disabled Americans 20 (1986) [hereinafter N.O.D. 1986],
http://www.N.O.D..org/index.cfm?fuseaction=Page.viewPage&pageID=31.
[15]
N.O.D.
2004, supra note 14
, at tbl. 10A.
[16]
N.O.D.
1986, supra note 14
, at tbl. 5.
[17]
NCD
E-mail Call for Comments, submitted comments in 2005.
[18]
NCD
E-mail Call for Comments, submitted comments on April 29, 2005.
[20]
Bernard
Barker, People First of Georgia, Georgia Public Forum, April 13, 2005; Theresa
Brenner, Savannah Association for the Blind, Georgia Public Forum, April 13,
2005; Bart Brophy, LIFE,
Inc., Georgia Public Forum, April 13, 2005; Kate Gainer, GDA Consulting Group in Atlanta,
Georgia Public Forum, April 13, 2005; NCD E‑mail Call for Comments, submitted
comments on May 6, 2005; Interview on March 9,
2005; Jean Idarosa, Chatham Area
Transit, Georgia Public Forum, April 13, 2005; Terri Lance, Advocate with United
Cerebral Palsy of Los Angeles, Ventura, and Santa
Barb
ara Counties, California Public Forum, March
29, 2005; Blanck & Associates Mailing, submitted
comments on May 11, 2006; Berlin Vargas,
California Public Forum, March
29, 2005.
[22]
Gwendolyn Hall Ross,
California
Public Forum, March 29,
2005.
[23]
N.O.D.
2004, supra note 14
, at 67.
[24]
N.O.D.
1986, supra note 14
, at tbl. 28.
[25]
NCD
E-mail Call for Comments, submitted comments on April 28, 2005; NCD E-mail Call
for Comments, submitted comments on May 10, 2005; NCD E-mail Call for Comments,
submitted comments on May 11, 2005.
[26]
NCD
E-mail Call for Comments, submitted comments in 2005.
[27]
Brenner, supra note 20
; Brophy, supra note 20
; NCD E-mail Call for Comments, supra note 20
.
[28]
NCD
E-mail Call for Comments, supra note
17
.
[29]
NCD
E-mail Call for Comments, submitted comments on May 5, 2005.
[32]
49
C.F.R. § 37.79-83 (2005).
[36]
Nat'l
Council Disability, supra
note 21
.
[38]
Commuter rail systems included in the report
are San Jose, CA; San Diego, CA; San Francisco, CA; Los Angeles, CA; New Haven,
CT; Miami, FL; Chicago, IL (2 systems); Boston, MA; Baltimore, MD; New York, NY
(3 systems); the state of Pennsylvania; Philadelphia, PA; Dallas, TX; Ft. Worth,
TX; Washington, DC; Seattle, WA. Light rail systems included in the report are:
Los Angeles County, CA; San Francisco, CA; Washington, DC; Sacramento, CA; San
Diego, CA; San Jose, CA; Denver, CO; Tampa-St. Petersburg, FL; New Orleans, LA;
Boston, MA; Baltimore, MD; Detroit, MI; St. Louis, MO; Newark, NJ; Buffalo, NY;
Cleveland, OH; Portland, OR; Pittsburg, PA; Philadelphia, PA; Memphis, TN;
Dallas, TX; Galveston, TX; Houston, TX; Salt Lake City, UT; Seattle, WA (2
systems); Kenosha, WI.
[39]
Bureau
Transp. Statistics, supra note 37
.
[44]
Spina
Bifida Ass'n. Am., supra note 43
.
[45]
49
C.F.R. § 37.61 (2005) (public
transportation programs and activities in existing
facilities).
[46]
Id.
§ 37.41-43 (construction of transportation facilities by
public entities).
[53]
Fed.
Transit Auth., supra note 49
.
[56]
Civil
Rights
Div.
,
U.S.
Dep't Justice, ADA Enforcement, Enforcing the ADA: A
Status Report from the Department of Justice October-December 2005, issue no. 4, http://www.ada.gov/octdec05.htm.
[59]
Nat'l
Council Disability,
supra note 21
.
[60]
49
C.F.R. §§ 37.121 (2005).
[62]
Nat'l
Council Disability,
Id.
[67]
Focus
Group Participant, Feb. 28, 2005.
[68]
NCD
E-mail Call for Comments, supra note
18
; NCD E-mail Call for Comments, supra note 17
.
[69]
Gainer,
supra note 20
.
[70]
David
Wilder,
Los
Angeles
Public Forum, Mar. 29, 2005.
[71]
Barker,
supra note 20
; Brenner, supra note 20
; Blanck and Associates Mailing, submitted comments on
May 19, 2006; Amy Tangkeatkomjar, Georgia Public Forum, Apr. 13, 2005; Maggie
Zepeda, Goodwill Industries, California Public Forum, Mar. 29,
2005.
[72]
NCD
E-mail Call for Comments, supra note
25
; NCD E-mail Call for Comments, supra note 25
.
[73]
U.S.
Dep't Justice, Settlement Agreement under
the Americans with Disabilities Act between the
United States of
America
and Greyhound Lines, Inc. (1999) http://www.usdoj.gov/crt/ada/greyhnd.htm. Attempts to interview a Greyhound official for
this study were not successful.
[76]
49
C.F.R. § 37.29(c) (2005).
[87]
Morgan,
supra note 79
.
[88]
Handy v. LATaxi Cooperative, CV-99-2172-SVW (Central Dist. Cal. 1999)
(
Los
Angeles
taxis and guide dog users); Press Release, Memphis Ctr. Indep. Living,
Individual Asserts Civil Rights in Federal Court (Apr. 20, 1998), http://www.mcil.org/mcil/news/newsr19.htm
(
Memphis
taxis and guide dog
users).
[90]
Marj Schneider
,
Georgia
Public Forum, Apr. 13,
2005.
[91]
28
C.F.R. § 35.149-150 (2005).
[93]
Barden v. City of
Sacramento
, 225 F.3d 1073 (9th Cir.
2002).
[95]
28 C.F.R. §
35.150(d)(2).
[97]
Kinney v.
Yerusalim, 9 F.3d 1067 (3d
Cir. 1993).
[98]
Mitch
Pomerantz, ADA compliance officer for the City of Los Angeles, Testimony given
at U.S. Access Board Regional Meeting, Portland, Oregon, June 23,
2002.
[99]
John
Cameron, City Civil Design Engineer City of Memphis, Tennessee, Testimony given
at U.S. Access Board Regional Meeting, Portland, Oregon, June 23,
2002.
[102]
Donna
Fredericksen, E. Paralyzed Veterans Am., City Will Make
158 Thousand
Street
Corners Accessible to Wheelchair Users (Sept. 12,
2002).
[103]
Civil
Rights Div., supra note 56
.
[107]
Dep't
Pub. Works, supra note 105
.
[110]
28
C.F.R. § 36.304 (2005).
[113]
N.O.D.
2000, supra note 13
, at tbl. 22C.
[114]
N.O.D.
2004, supra note 14
, at exhibit 3; N.O.D. 1986, supra note 14
, at 38.
[115]
NCD
E-mail Call for Comments, submitted comments on Apr. 27,
2005.
[116]
Interview on Apr. 8, 2005.
[117]
U.S.
Gen. Accounting Office, Americans with
Disabilities Act, Effects of the Law on Access to Goods and Services (June
1994).
[119]
U.S.
Gen. Accounting Office, Business Tax Incentives: Incentives to
Employ Workers with Disabilities Receive Limited Use and Have an Uncertain
Impact GA0-03-39, at 18 (Dec. 2002), http://www.gao.gov/
new.items/d0339.pdf.
[121]
Civil
Rights
Div.
,
U.S.
Dep't Justice, ADA Enforcement, Enforcing the ADA: A
Status Report from the Department of Justice January-March 2006, issue no. 1, http://www.ada.gov/janmar06.htm.
[122]
Civil
Rights Div., supra note 56
.
[123]
Civil Rights
Div.
,
U.S.
Dep't Justice, ADA Enforcement, Enforcing the ADA: A
Status Report from the Department of Justice April-June 2002, issue no. 2, http://www.ada.gov/aprjun02.pdf.
[125]
Civil
Rights Div., U.S. Dep't Justice, ADA Enforcement, Enforcing the ADA: A
Status Report from the Department of Justice October 2004-March 2005, issue no. 1 http://www.ada.gov/oct04mar05.htm.
[126]
Civil
Rights
Div.
,
U.S.
Dep't Justice, ADA Enforcement, Enforcing the ADA: A
Status Report from the Department of Justice July-Sept. 2003, issue no. 3, http://www.ada.gov/julsep03.htm.
[127]
Civil
Rights Div., supra note 121
.
[129]
Focus
Group Participants, on Feb. 28, 2005.
[130]
NCD
E-mail Call for Comments, submitted comments on May 11, 2005.
[131]
NCD
E-mail Call for Comments, submitted comments on May 5,
2005.
[132]
Terri Lance, United Cerebral Palsy of Los
Angeles, Ventura and Santa
Barb
ara County, California Public Forum, Mar. 29,
2005; Hugh Hallenberg, California Public Forum, Mar. 29, 2005.
[133]
NCD
E-mail Call for Comments, submitted comments on May 4, 2005.
[134]
NCD
E-mail Call for Comments, submitted comments on May 3, 2005.
[135]
NCD
E-mail Call for Comments, submitted comments on Apr. 30, 2005.
[136]
NCD
E-mail Call for Comments, submitted comments on Apr. 28, 2005.
[137]
NCD
E-mail Call for Comments, submitted comments on May 11, 2005.
[138]
NCD
E-mail Call for Comments, supra note
130
.
[139]
NCD
E-mail Call for Comments, submitted comments on Apr. 30, 2006.
[140]
Gainer,
supra note 20
.
[141]
28
C.F.R. §36.303 (2005).
[143]
Id.
§ 36.303(d) &
(e).
[145]
Civil
Rights Div., U.S. Dep't Justice, ADA
Homepage, http://www.ada.gov/settlemt.htm. Settlement agreements between medical
facilities and the United States include Greater Southeast Community Hospital,
Norwegian American Hospital, Fairview Health Services, Parkway Hospital, Silver
Hill Hospital, Ravenswood Hospital, St. Luke's Hospital, Davis Hospital,
Perinatal Associates, Connecticut hospitals, and Maine Medical
Center.
[147]
Civil
Rights Div., supra note 145
. Settlement agreements between hotels and the U.S.
include agreements with Holiday Inn-Huntington Beach, CA; Holiday Inn-Conroe,
TX; Holiday Inn-Scottsdale, AZ; Holiday Inn-Alton, IL; Holiday Inn-Austin, TX;
Holiday Inn-Metairie, LA; Kingston Ramada Inn; Ramada Inn-S. El Monte, CA;
Holiday Inn-Marietta, GA; Holiday Inn-Tucson, AZ; Holiday Inn-Chateau LeMoyne,
LA; Holiday Inn-Montgomery, AL; Holiday Inn-San Francisco, CA; Ramada
Inn-Virginia Beach, VA; Holiday Inn-Independence, OH; Hotel
Harrington.
[148]
Civil
Rights Div., supra note 121
(McDonalds, City Cab Co.); Civil Rights Div., supra note 122
(Broadway Grocery); Civil Rights Div., supra note 124
(Ramada Hotel, Dallas).
[149]
Curtis
Humphries,
Nordia Relay
,
California
Public Forum, Mar. 29, 2005.
[150]
Renee
Miller, Greater Los Angeles Agency on Deafness,
California
Public Forum, Mar. 29, 2005.
[151]
NCD
E-mail Call for Comments, submitted comments on Apr. 29, 2005.
[152]
Michigan Developmental Disabilities Council,
Blanck and Associates Mailing, submitted comments on June 1, 2006; Wayne Lake,
Texas Public Forum, Apr. 8, 2005; Robert Warner, SAB, Georgia Public Forum,
April 13, 2005; Montana Independent Living Project, Blanck and Associates
Mailing, submitted comments on May 2, 2006;
[153]
National Federation of the Blind, Inc v. AOL
Time Warner, Inc., (Civil
Action No 99-12303 (D. Mass.) complaint filed November 16, 1999), (parties
reached settlement resulting in voluntary dismissal); Hooks v. OKBridge, Inc. (Civ. No.
99-50891, unpublished 5th Cir. August 21, 2000); Access Now Inc. v. Southwest Airlines
Co., 227 F. Supp. 2d 1317 (S.D.Fla.) (2002).
[154]
29
U.S.C. § 794d (2000).
[155]
47
U.S.C. § 225 (2000).
[157]
47
U.S.C. § 225(b).
[158]
In
fact, since TRS services are maintained by the states, no national figures were
available on the number of relay calls nationwide until the Federal
Communications Commission (FCC), which enforces Title IV, began requiring states and telecommunications relay services
providers to submit their annual consumer complaint log summaries in
2002.
[159]
Nat'l
Exchange Carrier Ass'n, Relay Service
Minutes-2003 and 2004 Actual (2005).
[160]
Fed. Communications Comm'n, Consumer & Governmental Affairs Bureau
Reminds States and Telecommunications Relay Services (TRS) Providers that the
Annual Summary of Consumer Complaints Concerning TRS Is Due Thursday, July1,
2004: Public Notice DA 04-1599
(June 2, 2004).
[161]
Phil
Kaplan, Self Help for Hard of Hearing People,
California
Public Forum, Mar. 29, 2005.
[162]
Carol
Collier, Coordinator for Services for Deaf and Hard of Hearing Students,
University
of Iowa
,
Iowa
Public Forum, Mar. 25, 2005.
[163]
NCD
E-mail Call for Comments, submitted comments on May 1, 2005.
[164]
NCD
E-mail Call for Comments, submitted comments on May 5, 2005.
[165]
NCD
E-mail Call for Comments, submitted comments on May 2, 2005.
[166]
42
U.S.C. § 12132 (2000)
.
[167]
28 C.F.
R. § 35.160(b)(1) (2005).
[169]
Id.
§ 35.150(c) &
(d).
[171]
David
Pfieffer & Joan Finn, The Americans
with Disabilities Act: An Examination of Compliance by State, Territorial, and
Local Governments in the
USA
, 12 Disability & Soc'y 753, 753-73
(1997).
[173]
Civil
Rights Div., supra note 121
.
[174]
U.S.
Department of Justice, interviewed by e-mail on May 25, 2005.
[178]
Tennessee
v.
Lane, 541
U.S.
509 (2004).
[179]
Miles v.
County
of
Los
Angeles
, No. CV-02-03932 DT
(JTLx).
[183]
Univ.
of
Ala.
v.
Garrett, 531
U.S.
356 (2001).
[184]
Tennessee
v.
Lane, 541
U.S.
509 (2004).
[185]
Ferguson
v.
City of
Phoenix
, 157 F.2d 668, 674 (9th Cir. 1998); cf. Barnes v. Gorman, 536
U.S.
181, 186-87
(2002).
[186]
ADAPT,
NCD E-mail Call for Comments, submitted comments on May 3, 2005.
[187]
NCD
E-mail Call for comments, supra note
135
.
[188]
NCD
E-mail Call for Comments, submitted comments on Apr. 29, 2005.
[189]
NCD
E-mail Call for Comments, submitted comments on Apr. 29,
2005.
[190]
NCD
E-mail Call for Comments, submitted comments on May 9, 2005.
[191]
42
U.S.C. § 1973aa-6 (2000).
[192]
Letter
to Ms. Arlys Ward, Executive Director, City & County of Denver Election
Commission, from Stewart B. Oneglia, Chief, Coordination & Review Section,
Civil Rights Div., U.S. Dep't Justice (Sept. 30, 1993), www.usdoj.gov/crt/foia/cltr103.txt.
[193]
Olegario D. Cantos VII, Special Assistant to
the Assistant Attorney General,
Civil Rights Division, U.S. Department of Justice, interviewed by
e-mail on May 25, 2005.
[194]
Pub. L.
No. 107-252, 116 Stat. 1666 (2002).
[202]
Schneider, supra note 197
.
[205]
Nat'l
Org. Disability, "2004 Presidential Candidates Speak Out on Disability Issues"
http://www.N.O.D..org/election2004.html.
[207]
Focus
Group Participant in
Indiana
, March 11, 2005.
[208]
http://www.dol.gov/odep/state/state.htm.
[209]
Olmstead v. L.C., 527
U.S.
581 (1999).
[210]
Peter
Blanck, et al., Disability Civil Rights
Law and Policy, at 11-14 (2004).
[219]
Johanna
M. Donlin, Moving Ahead with Olmstead: To Comply with the Americans
with Disabilities Act, States Are Working Hard to Find Community Placements for
People with Disabilities, State
Legislatures, Mar. 1, 2003, at 28.
[226]
Nat'l Conference State Legislatures, supra note 223
1.
[227]
Nat'l Council Disability, supra note 217
.
[228]
Dep't Health
Pol'y, supra note 222
, at 21.
[229]
Nat'l
Conference State Legislatures, supra
note 223
1.
[234]
U.S.
Gen. Accountability Office, supra
note 231
.
[236]
Susan
Jamieson,
Atlanta
Legal Aid Attorney, Georgia Public Forum,
April 13, 2005.
[237]
Yvette
Hester
,
Georgia
Protection and Advocacy for People with
Mental Illnesses, Georgia Public Forum, April 13,
2005.
[238]
Money
Follows the Person Act of 2005, H.R. 3063, 109th Cong. (1 Sess.
2006).
[239]
H.R.
910, 109th Cong. (1st
Session).
[241]
U.S.
Bureau of the Census (2006)
(SIPP).
[246]
E-mail
from Lainey Feingold, received October 6, 2006.
[247]
Lisa A.
Shcur, Dead End Jobs or a Path to Economic Well-Being? The Consequences of
Non-Standard Work Among People with Disabilities, 20 Behav. Scis. & L. 601,
601-620.
[248]
Id.
ch. 5, tbl. 5B.
[249]
28
C.F.R. § 35.150(a) (2005).
[251]
Id.
§§ 35.130(b)(7),
36.302.
[252]
Id.
§§ 35.160(b)(1); § 36.3.
[253]
N.O.D. 2004, supra note 14
.
[254]
Nat'l
Ctr. Educ. Statistics, U.S. Dep't Educ., Students with Disabilities in Postsecondary
Education: A Profile of Preparation, Participation, and Outcomes (June
1999), http://nces.ed.gov/pubs99/1999187.pdf.
[256]
Anna H.
Gajar, Postsecondary Education, in
Beyond
High
School
Transition from
School to Work 385-405 (F. Rusch & J. Chadsey eds.,
1998).
[258]
N.O.D.
2004, supra note 14
, at 50; N.O.D. 1986, supra note 14
, at tbl. 7.
[260]
U.S.
Dep't Justice, Settlement Agreement Between the United States of America and The
Law School Admission Council, Inc. (Feb. 2, 2002), http://www.ada.gov/lsac.htm.
[261]
Robert
Stodden, et al., Services, Supports and Accommodations for
Individuals with Disabilities: An Analysis across Secondary Education,
Postsecondary Education and Employment (unpublished manuscript,
2002).
[262]
379 F.3d 1097 (9th Cir. 2004).
[264]
Focus
Group Participant, on Feb. 23, 2005; Wyoming Independent Living Rehab, Focus
Group Participant, on Feb. 28, 2005.
[265]
NCD
E-mail Call for Comments, submitted comments on May 3,
2005.
[266]
42
U.S.C. § 12112(a) (2000). For a comprehensive review, see Peter Blanck et al., Disability Civil Rights Law and Policy
(2004).
[268]
N.O.D.
2004, supra note 14
, at tbl. 2A.
[269]
N.O.D.
1986, supra note 14
, at 48 & tbl. 20.
[270]
N.O.D.
2004, supra note 14
, at tbl. 2E.
[272]
Andrew
J. Houtenville & Richard V. Burkhauser, Research Brief: Did the Employment of People
with Disabilities Decline in the 1990s, and Was the
ADA
Responsible? (Aug. 2004), http://www.ilr.cornell.edu/
edi/publications/RB_EmpDecline.pdf.
See also David C. Stapleton &
Richard V. Burkhauser, The Decline in Employment of People with Disabilities:
A Policy Puzzle (W.E. Upjohn Institute for Employment Research, 2003, 448
pages).
[273]
H.
Stephen Kaye, Improved Employment
Opportunities for People with Disabilities: Disability Statistics Report 17
(
U.S.
Dep't Educ.
2003).
[274]
Samuel
R. Bagenstos, The Future of Disability
Law, 114 Yale L. J. 1, 1 n.2
(2004).
[275]
U.S.
Gen. Accounting Office, supra note
119
.
[276]
White
House, supra note 214
.
[277]
Ctr.
Accessible Soc'y, supra note 120
.
[279]
Peter
Blanck & Helen Schartz, Special Issue: Corporate Culture and
Disability, 23 Behavioral Scis. &
Law 1 (2005).
[280]
Dixon
, et
al., supra note 278
.
[281]
N.O.D. 2004, supra note 14
.
[282]
N.O.D.
2004, supra note 14
, at tbl. 2C.
[284]
Xerox
Corporation, Focus Group Participant, Mar. 9, 2006; Allstate Insurance Company,
Focus Group Participant, on Mar. 9, 2005.
[285]
Allstate Insurance Company, Focus Group
Participant, on March 9, 2005 (Document # 999); see also notes accompanying supra note 284
.
[286]
See notes accompanying supra note 285
.
[287]
NCD
E-mail Call for Comments, submitted comments on May 4, 2005.
[288]
42
U.S.C. § 12111(8); 29 C.F.R. pt. 1630 app, §
1630.1(c)(2).
[289]
42
U.S.C. § 12112(b)(5)(B).
[290]
N.O.D. 1986, supra note 14
.
[291]
N.O.D. 2000, supra note 13
.
[292]
Dixon
, et
al., supra note 278
.
[293]
See Helen Schartz, DJ Hendricks,
and Peter Blanck, Workplace Accommodations: Empirical Study of Current
Employees, 75
Miss.
L.
J. 1 (2006); Helen Schartz,
DJ Hendricks, and Peter Blanck, Workplace
Accommodations: Evidence-Based Outcomes, Work, 15:22
(2006).
[299]
Schartz, et al.,
supra note 293
.
[305]
Peter
Blanck & Associates, Secondary
Analysis of National Surveys of Americans with Disabilities
(2005).
[306]
Employer focus group participant, Mar. 9,
2005.
[308]
Focus
group participant, Mar. 4, 2005.
[309]
Focus
group participant, Feb. 18, 2005.
[310]
Michael
E. Waterstone, The Untold Story of the Rest of the Americans with Disabilities
Act, 58 Vanderbilt L. Rev. 1807
(2005).
[314]
ABA
Special Feature, 2003 Employment Decisions
Under the
ADA
Title I-Survey Update, 28 Mental & Physical Disability L. Rep.
319 (2004).
[316]
Peter
D. Blanck & Mollie W. Marti, Genetic Discrimination and the Employment
Provisions of the Americans With Disabilities Act: Emerging Legal, Empirical,
and Policy Implications, 14 Behavioral
Scis. & Law 411, 429 (1996).
[317]
Money
Follows the Person Act of 2005, H.R. 3063, 109th Cong. (1 Sess.
2006).
[318]
H.R. 910, 109th
Cong.
[319]
Peter
Blanck, et al., Disability Civil Rights
Law and Policy: Cases and Materials (2005).
[321]
Burton
Blatt Inst., Collaboration (2006), http://bbi.syr.edu/collaboration.
These include: the Center for Health Services Research and Policy (George
Washington University), the Center for Personal Assistance Services (University
of California, San Francisco), the Center for the Study and Advancement of
Disability Policy (Washington, D.C.), the Disability Research Institute
(University of Illinois at Urbana-Champaign), the Disability Rights Legal
Center, the Disability Statistics Center (University of California, San
Francisco), the Independent Living Research Utilization, the Job Accommodation
Network (West Virginia University), the Program for Disability Research
(Rutgers, The State University of New Jersey), and The Institute for
Rehabilitation and Research.
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