Copyright 2004 Cox Enterprises, Inc.
Cox News Service

December 14, 2004 Tuesday

SECTION: Washington, General News

LENGTH: 1167 words

HEADLINE: Some Advocates Leery of Disabilities Law Overhaul

BYLINE: Andrew Mollison

DATELINE: Washington

BODY:
Leaders of several national disability groups are hesitating to endorse a recommendation by President Bush's disability advisers that he and Congress rewrite the Americans With Disabilities Act next year.

The National Council on Disability, whose 15 members were nominated by Bush and confirmed by the Senate, reported this month that "many Americans with disabilities feel that a series of negative court decisions is reducing their status to second-class citizens, a status that the ADA was supposed to remedy forever."

Most disability advocates agree. But some fear that if Congress takes up the council's proposed "ADA Restoration Act," it might end up making the law weaker, instead of stronger.

"In this political climate, is it smart to open up the ADA? We know that if we come up with our proposed changes, the other side will come up with theirs," said Curtis Decker, executive director of the National Association of Protection and Advocacy Systems, which includes 80 agencies across the country that represent persons with physical, cognitive and mental disabilities.

Such concerns, while understandable, are misplaced, according to the Lex Frieden of Houston, the council's chairperson(cq). He said opposition to discrimination against persons with disabilities extends across party lines.

"I think it's a valid question to raise," said Frieden, senior vice president of the Institute for Rehabilitation and Research. "In response, I would say that when the National Council on Disability first proposed the ADA (in 1988), a conservative, Ronald Reagan, was president, and there was a very conservative Republican Senate. But the law moved forward at a rapid pace and was signed by another Republican, the first President George Bush, in 1990."

The independent federal advisory agency praised the law's successes in improving access to transportation, communications and buildings that serve the public.

But it said the ADA's protections for workers have been undermined since 1999 by a series of Supreme Court decisions, and lower court judgments that relied upon those decisions.

The decisions made it harder for people with disabilities to prove that they have disabilities, bolstered the defenses that can be used by those accused of discrimination, and limited the damages and legal costs that can be collected by those whose complaints are upheld.

That helps explain why only 35 percent of adults with disabilities have full-time or part-time jobs, the council said.

Charlotte Chenoweth, a registered nurse who analyzed medical records in Tampa, Fla., had a seizure and was diagnosed with epilepsy. Until she and her physician found the right combination of medications for reliable control of her seizures without side effects, she could not drive to work.

But Chenoweth lost her attempt to force her employer to let her work at home or to adjust her hours to coincide with the rides she could get to work. The judge ruled that Supreme Court decisions meant that since her epilepsy had been mitigated by the time her case came up, she was no longer protected by the ADA.

In fact, according to the council, Supreme Court decisions would have allowed her employer to fire her for having epilepsy, as long as the epilepsy was under control.

"This is true even if the employer ... puts up signs that say 'epileptics not welcome here,' inaccurately assumes that all persons with epilepsy are inherently unsafe, or has the irrational belief that epilepsy is contagious," said the council's report, called "Righting the ADA."

In a similar case cited by the council, a pharmacist with diabetes was fired after he said he needed a half hour off every four hours in order to take insulin and eat a small meal. It was ruled that because he could control his diabetes through such measures, he didn't have a disability covered by the ADA.

The revisions proposed by the council included the recommendation that the current ban on discrimination "against an individual with a disability" be reworded to ban discrimination "on the basis of disability."

"They would restore the original meaning," said Robert Burgdorf, a law professor at the University of the District of Columbia who worked on both the 1988 and the new drafts. "If an employer discriminates against you on the basis of epilepsy or diabetes, the question should be whether you are being discriminated against, not whether you have epilepsy or diabetes."

John Kemp, a Washington attorney with two artificial hands and two artificial legs who served on the council under President Clinton, endorsed the current council's plan.

"It shouldn't be true, it can't be true, that I _ wearing four prostheses and using an electric scooter-wheelchair _could possibly be considered not covered by the ADA, because I have mitigated the limitations caused by my impairment," Kemp said.

Since the council members are Bush appointees, their recommendation is expected to receive serious consideration by the Republican-controlled Congress. The president is also expected to sympathize, because he pushed hard in his first term for cheaper but better ways to get jobs for adults with disabilities, and the proposed revision of the ADA wouldn't require higher federal spending.

A stronger law would also provide a timely political payoff to some Bush supporters. Reversing their Democratic-leaning pattern in the four previous presidential elections, a clear majority of people with disabilities supported Bush this year, according to a poll completed the Monday before the election by Harris InterActive for the private National Organization on Disability.

Nevertheless, some worried disability advocates point out that restrictions on lawsuits and opposition to strict regulations have been major themes of the GOP majority in Congress.

Frieden countered, "I think any person in Congress, liberal or conservative, who becomes aware of the situation will decide in the end that it is better to have people with disabilities who live as fully involved, employed, tax-paying participants in the community than as dependents subsisting on benefits that we all have to pay for through our taxes."

"Maybe Lex is right," said Janna Starr, who co-chairs the task force on rights of the Consortium for Citizens with Disabilities, a lobbying coalition of some 100 national advocacy and professional groups. "If anybody can get this done, he can."

She added, "We've asked the council to come in and go over their report with us in January, and we should make up our minds by February on which way to go."

Still, she harbored some misgivings.

"There's no doubt that the original intention of Congress has been distorted by the courts," Starr said. "But in this (535-member) Congress, there are fewer than 100 members left from those who passed the original ADA. So who knows what the rest might do!"

On the Web:

National Council on Disabilities: www.ncd.gov

Andrew Mollison's e-mail address is amollison(at)coxnews.com.