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Toward Independence and the Vision of an ADA - Part 10

Presentation of the Draft Report to the Council, Its Consideration and Acceptance of the Report, and Revisions Made After the Meeting

The November 1985 meeting of the Council was intense, in part because the agenda called not only for considering and voting on the 1986 report, but also for taking up a variety of other business, including committee meetings and reports, reports by Chairperson Parrino and Executive Director Frieden, a discussion of “Mid-Range Council Objectives and Priorities,” and a “Forum on Research Utilization.” Staff members were exhausted, and it was only with difficulty that I managed to keep from dozing off a few times during the meeting. Nonetheless, we managed to go through the report page-by-page; hear Council members’ comments and directions; allow staff and other topic paper drafters to provide explanations and answer questions; discuss and usually reach consensus on corrections and revisions; and even receive feedback on the report from the Council’s Advisory Committee and a “1986 Special Report Forum” led by the Washington Business Group on Health. By the afternoon of Wednesday, November 20, 1985, the Council found itself ready to vote on the report and formally approved it by unanimous vote. The approval was not, however, of the draft version we had produced for consideration at the meeting; it was of the report as amended at the meeting. Moreover, the Council explicitly authorized the staff to complete the process of editing and incorporating revisions endorsed by the Council.

We would make several noteworthy alterations following the November meeting. One of the changes grew out of an objection during the meeting that the first of the three general conclusions in the report – that only approximately one-third of persons with disabilities receive federal income support – should not focus on those people who rely on federal assistance but on those who do not. Accordingly, the finding was reworded as follows: “Approximately two-thirds of working-age persons with disabilities do not receive Social Security or other public assistance income.” Where the second finding referred to federal disability programs’ “underemphasis on initiatives for equal opportunity, independence, and self-sufficiency,” the word “prevention” was added at the insistence of a Council member. The third conclusion was also revised in minor ways, but not materially.

At the Council meeting, I had explained the paragraph I had added near the beginning of the section on “The Population with Disabilities” about there not being an accurate number of Americans with disabilities. It was suggested that we should provide more detail about the inadequacies of available estimates. So after the Council meeting, I added four long paragraphs describing the two major approaches used in studies of the numbers of people with disabilities – the health conditions approach and the work disability approach. The additional material explained that studies of health conditions counted “all conditions or limitations which impair the health or interfere with the normal functional abilities of an individual,” an approach that includes people with health problems that would not typically be considered disabilities and, therefore, “tends to produce very large numbers of “disabilities.” To illustrate, I cited a 1984 Health Interview Study that led the National Center for Health Statistics to estimate that there were over 160 million impairments and chronic conditions in the civilian non-institutionalized population of the U.S., even without adequately accounting for conditions such as learning disabilities and mental disabilities. Even accounting for the fact that the Health Interview Study counted conditions, not individuals having them (one person can have more than one such condition), the health conditions approach leads to very high estimates.

Work disability studies, on the other hand, tend to undercount the numbers of people having conditions generally considered to be disabilities. Such studies focus on individuals’ self-reports of conditions that limit their employment. The data resulting from this approach are tainted by an undercounting of people with disabilities in the 16 to 24 age group, some of whom are not ready to join the work force and to whom identification of themselves as work-disabled is not meaningful, as well as many people who have conditions commonly considered disabilities but are employed, have a strong work history, and resist reporting themselves as having a work disability. In any event, work disability studies focus only on working-age people and do not attempt to count disabilities among those above or below that age range. I added a sentence mentioning the Council’s concern about the need for “a more accurate profile of the population of the population with disabilities” and its efforts to convince the Bureau of the Census to include questions designed to procure such information.

The paragraph about the inaccuracy and unreliability of estimates of the size of the population with disabilities that I had inserted in the draft of the report considered by the Council at the November meeting, and the four paragraphs I added after the meeting to elaborate might appear relatively straightforward and not particularly significant. It turned out, however, that disregard for some of these materials and a crude misrepresentation and misinterpretation of parts of them by the United States Supreme Court would lead, many years later, to severe limitations on the application of the ADA.

Follow-up to the November meeting also included fine-tuning the legislative recommendations, both substantively and cosmetically. The Council had made decisions that some recommendations should be dropped and others should be consolidated or revised. I did the drafting of most of the revisions. The alterations to the recommendations had to be incorporated into both the summary report and the relevant topic papers. One upshot of these changes was that the total number of legislative recommendation was reduced from 55 in the November draft to 45 in the final summary report. The reduction was not actually as large as those numbers suggest, because the Council decided to consolidate six separate recommendations regarding Equal Opportunity Laws into subsections (a) through (f) of a single blanket one beginning with the phrase “The law should also:” The EOL paper in the Appendix retained the six recommendations in their separate form. The Council did opt to delete an EOL recommendation that proposed the creation of programs to provide technical assistance to small businesses regarding ways to modify their facilities and practices to permit access by people with disabilities, but it retained a section (“Technical Assistance and Aid to Small Businesses”) in the EOL topic paper.

The only other substantial change to the EOL recommendations that the Council had decided on at the November meeting was the addition of two additional categories to the coverage of the recommended comprehensive equal opportunity law. One of those provided that persons and entities engaged in the business of interstate transportation of persons, goods, documents, or data should be covered by the nondiscrimination law. Other sections of the recommendation regarding coverage of the proposed new law already specified that public accommodations and state, county, and local government activities would be covered, but the new category would ensure that providers of transportation and deliverers of goods and documents would be subject to the nondiscrimination law. Moreover, the coverage of deliverers of “data,” at a time when the modern internet and the world-wide web did not exist, showed incredible foresight. The other new section recommended coverage of persons or entities that make use of the mails or interstate communications and telecommunications services for the business of selling, arranging, or providing insurance. This addition was primarily inspired by the testimony of individuals with disabilities at the Council’s consumer forums about the discrimination they encountered in trying to obtain insurance.

Apart from these changes, the EOL proposal escaped from formal Council review unscathed, and emerged with enthusiastic support from the members, who were of one mind that the equal opportunity law/ADA proposal should be the first and primary recommendation in its 1986 report. The Council members agreed that, while Congress had previously enacted some narrow anti-discrimination laws for persons with disabilities, protection from discrimination on the basis of disability paled in comparison to federal measures prohibiting discrimination on the basis of race, color, sex, religion, and national origin. Accordingly, the Council persisted in its conviction that Congress should "enact a comprehensive law requiring equal opportunity for individuals with disabilities, with broad coverage and setting clear, consistent, and enforceable standards prohibiting discrimination on the basis of handicap."

Based upon some second thoughts I had, I relied on the authority the Council had conferred upon the staff to continue editing the report, and perhaps took a bit of editorial license in making an additional change to the EOL recommendations. I had come to regret the comments I had inserted in the explanatory material for the EOL recommendation, speculating about the alternative forms such a law might take. After suggesting that a disability nondiscrimination could be drafted: as an amendment adding a new title to the Civil Rights Act of 1964; as a separate new statute, standing alone; or as an amendment adding additional, permanent provisions to the Title V of the Rehabilitation Act of 1973, I had written that amending Title V of the Rehabilitation Act “appears to be the most practicable and clearest of the alternatives.” Upon further reflection, I came to the conclusion that placement in the Rehabilitation Act would tend to hide the new statute to some extent, and de-emphasize its civil rights nature. Given some problems with the approach and drafting of Sections 501, 503, and 504, and with definitions and structure of the overall Rehabilitation Act, associating the new law too closely with those laws might risk tainting the new statute with defects in the prior ones. In any event I was no longer convinced that Title V was the way to go. On the other hand, I was not yet ready to choose the other options either, as each had something to recommend it as well as some disadvantages. My decision was to punt – not to propose any of the options. Accordingly, in the final topic paper and in the recommendations in the summary report, I deleted the discussion of the possible forms the statute might take. This amounted to, as people like to say in Washington, “kicking the can down the road,” postponing the decision for another day.

Work continued on the list of federal programs and the chart of federal programs and legislative committees. The former, which we called the “Prioritized Listing of Federal Programs Affecting Persons with Disabilities” in the November draft of the report, we renamed as the “List of Federal Programs Affecting Persons with Disabilities in Order of Expenditures.” To get the report in final form, the review and verification underway when the November draft of the report was prepared were completed and the results incorporated into the summary report. The revised list was comprised of the 45 largest federal disability programs, with, for each, its legal authorization, the agency administering it, its budget, and an estimate of the number of individuals with disabilities it served.

The final list of federal programs along with their budgets was incorporated into the chart of “Key Federal Programs and Corresponding Legislative Committees.” The sub-cabinet-level agencies with jurisdiction over major programs affecting people with disabilities were identified in boxes in organizational chart style, and the programs they administered and their budgets were listed beneath each of them. On the other side of the chart, the seven Senate Committees and nine House Committees with oversight authority over the programs were identified in their own boxes.

Continue on to Part 11: Deciding on the Title of the Report