Supporting the ADA

While we tend to remain focused on the Medicare issues that drive our businesses, it’s important to understand the key policy issues that affect our customers. Next, it’s important to be an advocate for these issues in local communities and with members of Congress.

Let’s take a closer look at one of the key issues disability advocates are working on to ensure appropriate access in the community.

• The ADA Amendments Act of 2008 — On July 31, Sens. Tom Harkin, D-Iowa, and Orin Hatch , R-Utah, introduced the Americans with Disabilities Act (ADA) Amendments Act of 2008 (S. 3406). The House overwhelmingly passed the same bill in June by a 402-17 vote. In a nutshell, the ADA Amendments Act of 2008 would protect people with disabilities and would provide a clear definition of disability under the ADA for employers. The bill is supported by over 220 national organizations and many key business associations, including the U.S. Chamber of Commerce, the National Association of Manufacturers, the Society for Human Resource Management and the HR Policy Association. These supporters recognize this legislation will ensure all Americans have a fair opportunity to secure employment. Already, there are 64 Senators signed on to the bill, including presidential candidates Sens. John McCain and Barack Obama.
• Vast Changes Proposed to ADA Federal Regulations — The Department of Justice recently issued major proposed revisions to its regulations implementing Titles II and III of the ADA. Some of the DOJ’s proposed changes are supported by the disability community, including adoption of stronger hotel reservation and ticketing provisions, recognition of psychiatric service animals, additional companion seating in theaters and stadiums, and stronger provisions for effective communication for people with hearing, visual, and speech disabilities. However, there are also many proposed changes that would reduce the rights of people with disabilities, and are therefore opposed by the disability community. ??? One proposal, for example, would effectively lower the requirements for physical access under Title II (state and local governments) and Title III (places of public accommodation). In the case of Title II entities, the proposed regulations would transform the current “program accessibility” standard for physical accessibility into the lower standard of “a reasonable number but at least one.” This standard would result in reduced and unequal access for persons with disabilities. For instance, it might allow a city to believe that since one public park out of the six that serve different neighborhoods is accessible, then no further action is required. Or that having one accessible public pool out of eight would satisfy the standard. Or a state could bring one of 15 courthouses up to accessibility standards and argue that is sufficient to meet this new (lower) accessibility standard. Using this proposed standard would be especially troubling where a public entity provides multiple facilities (such as schools, parks, libraries, courthouses, pools) to serve different neighborhoods or different geographic locations. As for Title III, the draft regulations propose changing the current “readily achievable” barrier removal requirement by creating a safe harbor for small businesses. Under the proposal, a small business that has spent an amount equal to at least 1 percent of its gross revenue in the preceding year on barrier removal would be exempt from further obligations. The law currently requires each business to determine when barrier removal is “readily achievable” — defined as easily accomplishable and able to be carried out without much difficulty or expense — by considering a list of different factors, and making an individualized determination. The proposed regulatory safe harbor would exempt a large and extremely diverse class of businesses from performing these individual assessments and from providing the level of access for people with disabilities that was mandated by Congress. The proposed regulation would eliminate the factors Congress said businesses must consider and replace it with one created by the Justice Department, including a spending cap.
• Investigating Title II Complaints — The DOJ and other federal agencies responsible for enforcing Title II of the ADA are required to investigate each complaint. The proposed regulations seek to eliminate this requirement.

The disability community believes that the federal obligation to investigate all Title II complaints is critical because state and local governmental entities are providing vital programs and services to people with disabilities. Aside from the complaint procedure, there are not many alternatives (other than going to court) if state or local governments fail to provide equal opportunity for individuals with disabilities.

If the Justice Department does not believe it has enough resources to investigate all Title II complaints, the appropriate response should be to request additional resources, not to reduce civil rights enforcement for people with disabilities.

A specialist in health care legislation, regulations and government relations, Cara C. Bachenheimer is senior vice president, government relations, for Invacare Corp., Elyria, Ohio. Bachenheimer previously worked at the law firm of Epstein, Becker & Green in Washington, D.C., and at the American Association for Homecare and the Health Industry Distributors Association. You can reach her by phone at 440/329-6226 or by e-mail at [email protected].