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Toward Independence and the Vision of an ADA - Part 5

Shaping the Summary 1986 Report; Who Would Write It? and the Themes of Fiscal Restraint and Cost/Benefit Analysis

As work on the writing and editing continued through the summer and into the fall, a major question remained: who was going to write the crucial summary report – the condensed version that would be sent to Congress and the President and widely disseminated by the Council? I do not know what other candidates Lex and the Council officers may have considered, but somewhere along the line Dr. Frank Bowe was auditioned for the assignment. Frank was a well-known disability theorist, writer, and scholar, and a very capable and congenial person; he had become deaf at the age of three after contracting measles. He had written several books on disability policy, the most notable of which were Handicapping America: Barriers to Disabled People and Rehabilitating America: Toward Independence for Disabled and Elderly People, in which he described how societal policies and practices disadvantaged and excluded people with disabilities, and argued that the costs entailed by environmental barriers and dependency-engendering policies were many times over what independence-oriented measures would cost. Apart from his publications, Frank was known for having spearheaded, as Executive Director of the American Coalition of Citizens with Disabilities (ACCD), and for the organization of the 1977 sit-ins at HEW offices to prod the issuance of Section 504 regulations. Frank was well-thought-of by several members of the Council and Lex was on friendly terms with him. I do not know whether the Council initially sought out Frank, or he approached Lex, or some combination of the two, but at some point I was informed that Frank was working on the summary report. He produced several drafts of sections, including an Introduction; a “State of Federal Policy on Disability” or “Disability Program Analysis”; “Goals for the Year 2000”; and what he called “Selected Topics” extracted from the topic papers.

Frank excelled at seeing the big picture, and formulating broad social principles and long-term objectives (such as Goals for the Year 2000). The Council had developed that kind of product when it had issued its National Policy for Persons with Disabilities in 1983, prior to it becoming an independent federal agency. But the Council was now directed by statute to articulate “legislative proposals” – something much more specific and concrete than general principles and futuristic goals, and something that presupposes some know-how and adeptness regarding the law and the fashioning of legislation. For example, Frank produced two iterations of a recommendation on Equal Opportunity. The first declared: “The principle of self-sufficiency tells us that barriers to equal opportunity must be removed. If we expect disabled people to care for themselves, we must remove artificial obstacles that prevent them from doing so.” The second provided that “[t]he Council’s first Goal for the Year 2000 is that equal opportunity for handicapped individuals be co-extensive with that of other major minority groups in our society.” While these set out worthwhile sentiments and hopes for the future, neither of them recommended any proposed legislation, or even a rough concept of any legislative proposal. Because the Council was willing to put itself on the line in support of the enactment of a clear and comprehensive disability nondiscrimination law, our nation would come to have an ADA ten years before Frank’s targeted “Year 2000.”

Frank’s recommendations in the other topic areas were equally general and vague, as for example, the following addressing transportation: “Self sufficiency can only be achieved when disabled people have a way to get around in the community, whether in their own vehicles or on public transit. They must be able to find or alter vehicles so as to make transportation accessible.” Well, yes, but how can this be done, and how can Congress make it happen? – that is what Congress wanted the Council to advise it on. Many of the insights and materials Frank generated for the Council were very good and proved quite useful. Indeed, several paragraphs of the opening pages of the summary report were based in large part on material that Frank drafted, and the major section on Current Priorities in Federal Programs was mostly based on Frank’s analysis. His weakness was in the specifics of devising or articulating legislative proposals, especially on the ridiculously short timeline on which the Council was operating.

Toward the end of September, Lex informed me that he wanted me to take a shot at synthesizing and redrafting the summary report, based upon the materials that Frank had generated, the topic papers, and the other products that were being developed. By October 7, I had produced my initial conceptualization and nine pages of a very partial draft. I usually begin a writing project with a working outline that I may, and usually do, revise as I move forward. With the summary report for the Council, I found it necessary to begin by exploring possible themes of the report and trying to identify what principal messages the report ought to seek to impart. One theme that the Council had been given when Congress assigned it the responsibility for issuing such a report was to focus on cost considerations regarding federal programs assisting people with disabilities. On April 30, 1984, shortly after the Council became independent and was directed to develop its 1986 report, Representative Steve Bartlett told the Council that it was to "advise Congress in a whole new approach, a whole new concept, on how to decrease dependence and increase independence."[1] He added that "Congress is not looking for more programs, more maintenance grants, and larger appropriations" but wanted the Council to "look for ways to convert existing maintenance dollars to help recipients achieve independence."[2] In his book Rehabilitating America (1980), Frank Bowe had previously raised the prospect of tax savings by reducing dependence of persons with disabilities. At the Council’s August 1985 meeting, Patricia Owens, Associate Commissioner for Disability in the Social Security Administration, underscored this perspective by declaring that "[t]he Administration wants a program that encourages people to return to work."[3]

Some members of the Council wanted to avoid recommendations that would entail any increases in federal expenditures. Jeremiah Milbank, Jr., a man with staunch fiscal conservative credentials, for one, suggested, at the August 1985 meeting of the Council, that requests for federal dollars be conditioned upon "massive Federal cost-saving benefits with positive human results."[4] By and large, the Council sought to respect its perception of President Reagan’s philosophy of fiscal restraint by seeking to avoid most recommendations that would involve big funding increases, but, at the same time, made a real effort to depoliticize their work by focusing above all on what they believed was in the best interest of people with disabilities.

My own perspective on cost considerations in civil justice matters is that cost should never be a determinative excuse for basic injustice. As I had written in Accommodating the Spectrum, many initiatives for prohibiting discrimination and providing essential services “can be justified as matters of simple equity and basic human rights to which cost should not be used as an excuse.”[5] And yet, with Tom Hodges, the labor economist with quadriplegia, I had helped develop a 14-page section of Accommodating the Spectrum titled “The Costs and Benefits of Full Participation,” which made the case that substantial evidence shows that measures to increase societal participation by people with disabilities “render[] significant economic benefits,” and presented data substantiating the cost/benefit advantages in regard to rehabilitation, employment, education, institutionalization, transportation, and architectural barriers.[6] Accordingly, my approach is that cost considerations should not prevent laws and programs necessary for equality and justice in our society, but that cost savings can be a useful additional argument in favor of such measures, when supportive net-fiscal-benefit data are available.

Given the make-up of the Council, the political climate in the Administration, and the fact that in the statutory provision directing the Council to “review all statutes pertaining to programs which assist [individuals with disabilities], the Council was told to “make a priority listing of such programs based on the number of [individuals with disabilities] such programs assist and the Federal costs of such programs,” it was clear from the beginning that the Council’s report would feature fiscal considerations.[7]

Using consultants, including Frank Bowe, people on temporary detail from other agencies, and everything else he could think of, Lex cobbled together barely sufficient person-power to compile the “priority listing” of federal programs assisting people with disabilities that Congress had called for. This research began with information on federal program expenditures contained in the Office of Management and Budget’s Catalog of Federal Domestic Assistance, augmented by publications and data obtained from the federal programs themselves. It ultimately culminated in a list of 45 federal programs presented in descending order according to spending size. For each program, the list included the statutory source of each program’s authorization, its estimated annual expenditure, the estimated number of people with disabilities benefiting from the program, and a brief textual description of the nature of the program. Lex also managed to hire a respected economist, John Raisian, as a consultant to assist with the analysis of the fiscal implications of the data the Council had garnered. So the question was not whether the report would focus on fiscal data and analysis, but how such information would be used and presented.

Council member Milbank’s declaration that the Council should not propose new federal expenditures unless they would engender "massive Federal cost-saving benefits with positive human results" brought home the point that the topic papers needed to include fiscal rationales for the proposals presented in them. By September 9, for example, I inserted a statement into the introductory paragraph of the Housing paper that “[f]ailure to secure or provide housing opportunities for citizens with disabilities reflects a short-sighted, wasteful misdirection of resources, because it inevitably leads to or continues the costly institutionalization of persons with disabilities.” I added that available data suggested that the costs of providing appropriate housing options for individuals with disabilities “are not substantial when compared to the significant savings engendered by enabling [such] persons to live in the community, get jobs and pay taxes.” I knew, however, that Council member Milbank was not going to be satisfied by my bald assertion of fiscal benefits, and that I would need solid evidence to back up those statements.

Continue on to Part 6: Dr. Farbman Comes into the Picture

[1] NCD Minutes, Apr. 29 – May 1, 1985, p. 6, quoted in National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act, p. 52 (1997).

[2] Id.

[3] NCD Minutes, Aug. 12-14, 1985, p. 2-4, quoted in National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act, p. 52-53 (1997).

[4] NCD Minutes, Aug. 12-14, 1985, p. 19-20, quoted in National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act, p. 55 (1997).

[5] U.S. Comm'n on Civil Rights, Accommodating the Spectrum of Individual Abilities 69 (1983).

[6] Id. at 69-82.

[7] Pub. L. No. 98-221, §§ 142(b)(1) & (2).