United States of America¹

Key Factors: U.S. disability laws have attracted worldwide attention, particularly since passage in 1990 of the Americans with Disabilities Act (ADA), which is America's comprehensive federal statement affecting the lives of persons with disabilities.² In the U.S., disability laws have undergone a shift from a model of medical oversight to civil rights.³ Contemporary U.S. disability policies and laws emphasize social and economic participation of persons with disabilities and reducing their dependence on government entitlement programs. However, despite legal protections for people with disabilities, advances in technology and transportation, integrated education, accessible homes, and advocacy, people with disabilities remain disadvantaged in the United States compared to people without disabilities.⁴

1. Report by James Schmeling , Helen Schartz, and Peter Blanck. James Schmeling is the Associate Director of the Law, Health Policy and Disability Center (LHPDC) at the University of Iowa; J.D., University of Iowa College of Law. Helen Schartz is the Director of Research at the LHPDC; Ph.D. and J.D., University of Iowa. Peter Blanck is the Charles M. & Marion Kierscht Professor of Law and Director of the LHPDC; Ph.D., Harvard University; J.D., Stanford University. For information on the LHPDC activities see http://disability.law.uiowa.edu.

^2. See Peter Blanck, Eve Hill, Charles Siegal, and Michael Waterstone, Disability Civil Rights Law and Policy, 2003, herein referred to as Treatise.

^3. Peter Blanck,(Ed.) Employment, Disability, And The Americans With Disabilities Act: Issues In Law, Public Policy, And Research, 2000. See also Peter Blanck & Michael Millender. "Before disability civil rights: Civil war pensions and the politics of disability in America". Alabama Law Review, 52, 1-50 (2000).

^4. The disability rights movement in the U.S. has more than 50 years of history from which to draw. This chapter relies on the body of disability research generated in the U.S. to gather and report information as well as research studies of the authors of this chapter where appropriate. We did not conduct interviews with leading figures in the disability field, but drew from survey data and reports from the U.S. Census Bureau and the 2004 National Organization on Disability (NOD)/Harris Poll and from legislation and policy pertaining to disability or impacting people with disabilities.

Definition of Disability⁵

Under the Americans with Disabilities Act of 1990 (ADA), a person is an individual with a disability if he or she falls into one of the following categories: An individual with an actual disability; an individual with a record of a disability; or an individual who is regarded or treated as if he or she has a disability ("regarded as").⁶ In addition to having a disability, to be protected under Titles I and II of the ADA, an individual must be a qualified individual with a disability. The ADA defines a "qualified individual with a disability" as a person who can perform essential job functions with or without the provision of reasonable accommodation (§ 12111
(8)).

In 1999, the U.S. Supreme Court concluded that mitigating measures, things that may be done to correct or mitigate an individual's impairment, must be considered when determining whether an individual has a disability under the ADA (Sutton v. United Air Lines, Inc., 1999). The Court held that one may have a disability under § 12102(A) of the ADA if they are substantially limited in a major life activity despite the mitigating measures. For example, in Bragdon
v. Abbott (1998), the Court decided asymptomatic HIV disease is a disability within the language of the ADA. The Court held that from the moment of infection asymptomatic HIV disease is a physical impairment that substantially limits the major life activity of reproduction, and thereby a covered disability under the ADA. Ultimately, determining whether an individual is disabled under the ADA requires an individualized inquiry in each case.

Subsequently, interpretation of the ADA's phrase "substantially limited" was the issue in Toyota Motor Manufacturing v. Williams (2002). The Supreme Court held that for a plaintiff to be substantially limited in performing manual tasks, the plaintiff must demonstrate an impairment that prevents or severely restricts activities of central importance to people's everyday lives. Household chores, bathing, and brushing one's teeth are among the manual tasks of central importance to people's daily lives (Toyota Motor Manufacturing v. Williams, p. 202). In the U.S., the benefits programs of the Social Security Administration, which administers federal government programs, including disability insurance programs and the supplemental security income program (SSI) for the aged, blind and disabled, use definitions of disability to qualify for benefits that are different than the ADA's definitions.⁸ SSDI provides monetary benefits to an insured individual who "is under a disability" (Social Security Act, 42 U.S.C. § 423 (a)(1) (2000)). Disability is defined as an "inability to engage in any substantial gainful activity by reason of any . . . physical or mental impairment which can be expected to last for a continuous period of not less than 12 months" (§ 423 (d)(2)(A)).

^5. This section draws from Part 2, Chapter 3, Section 3.1 of Blanck, et al., supra note 2. For full discussion of the intricacies of the definition of disability under the ADA, see Treatise, Chapter 3 in its entirety.

^6. 42 U.S.C. § 12102(2)(A) (2000);#Id. § 12102(2)(B);#Id. § 121022(C).

^7. Id. § 12111(8).

^8. See generally Social Security Online, http://www.ssa.gov/org/ssaorg.htm.

The individual's impairment must be "of such severity that she is not only unable to do her previous job but cannot, considering her age, education, and work experience, engage in substantial gainful work which exists in the national economy" (§ 423 (d)(1)(A)).

Disability Population

Several sources of U.S. disability data are available, each with particular definitions of disability. Surveys of disability include the National Health Interview Survey (NHIS), the Survey of Income and Program Participation (SIPP), and the Current Population Survey (CPS).⁹ The National Health Interview Survey on Disability The National Health Interview Survey on Disability (NHIS-D) was a special survey conducted approximately ten years ago. The National Organization on Disability (NOD) conducts a survey on disability issues for the NOD/Harris Survey of Americans with Disabilities.¹⁰ The 2000 U.S. Census included disability questions in the long form, administered every ten years. The American Community Survey (ACS) from the Census Bureau includes the same questions as and will replace the long form, and will be administered annually. This chapter relies on data from the 2000 Census because of its broad participation and on the 2004 NOD/Harris Poll because of its timeliness.

The 2000 Census uses two questions with six subparts to identify disability. A person is reported as having a disability if he or she answers affirmatively to any of the questions or subparts [paraphrased]:

Question 16. Does this person have any of the following long-lasting conditions:

a. Blindness, deafness, or a severe vision or hearing impairment?
b. A condition that substantially limits one or more basic physical activities such as walking, climbing stairs, reaching, lifting, or carrying?

Question 17. Because of a physical, mental or emotional condition lasting 6 months or more, does this person have any difficulty doing any of the following activities:

a. Learning, remembering, or concentrating?
b. Dressing, bathing, or getting around inside the home?
c. Going outside the home alone to shop or visit a doctor's office [for individuals 16 years old or over]?
d. Working at a job or business [for individuals 16 years old or older]?

^9. National Health Interview Survey, http://www.cdc.gov/nchs/nhis.htm; Survey of Income and Program Participation, http://www.sipp.census.gov/sipp/; Current Population Survey, http:// www.bls.census.gov/cps/cpsmain.htm.

10. National Health Interview Survey on Disability, June 14, 2004, http://www.cdc.gov/nchs/ about/major/nhis_dis/nhis_dis.htm; NOD/Harris Survey of Americans with Disabilities 2000, http://www.nod.org/content.cfm?id=1035; NOD/Harris Survey of Americans with Disabilities 2004, http://www.nod.org/content.cfm?id=1527.

The U.S. Census reports are based on people living in households, excluding those living in nursing homes, institutions, and group homes. One Census publication indicates that approximately 7.8 million people live in group quarters, 4,059,039 institutionalized, and 3,719,594 non-institutionalized settings.¹¹

With the exclusion of this segment of the population, people with disabilities may be underreported by the census.

According to the 2000 Census, the disability status of the civilian non-institutionalized population, broken out by age group, is included in Table One.¹²

The total The total for these age groups, 19.3% of the population, is similar to the percentage cited in the Americans with Disabilities Act of 1990, one in five people.

Table 1: Percent and Frequency of Disability by Age for U.S. Population

Poverty is prevalent among people with disabilities, according to Census figures. Approximately 17.6 percent (8.7 million) people with disabilities (aged 5 and above) live in poverty compared to 10.6 percent of people without disabilities. The distribution of people with disabilities in poverty is greatest for children: five to 15 year olds with disabilities had a poverty rate of 25 percent compared to
15.7 percent rate for their peers without disabilities. Of people 16 to 64 years old,
18.8 percent with disabilities, compared to 9.6 percent without disabilities, live in poverty. People with disabilities 65 years old or older had a 13.2 percent rate of poverty compared to 7.4 percent for their peers without disabilities.¹³

Waldrop and Stern have analyzed the Census 2000 disability data in Disability Status: 2000, Census 2000 Brief. They note that disability data are used by federal agencies to develop programs and distribute funds serving the elderly population and people with disabilities. The programs include the Carl
D. Perkins Vocational and Applied Technology Training Act, the School Dropout Demonstration Assistance Act, State Literacy Initiatives, the Rehabilitation Act, employment and job training programs for veterans under the Disabled Veterans Outreach Program, the Older Americans Act, Medicare and Medicaid, and federal education programs.¹⁴

11. Total Population in Households and Group Quarters by Sex and Selected Age Groups, for the United States: 2000, http://www.census.gov/population/cen2000/grpqtr/grpqtr01.pdf.

12. U.S. Summary: 2000, Census 2000 Profile. Table DP-2. Profile of Selected Social Characteristics: 2000, http://www.census.gov/prod/2002pubs/c2kprof00-us.pdf.

13. Id.

14. Judith Waldrop and Sharon M. Stern. Disability Status: 2000, Census 2000 Brief (March 2003), http://www.census.gov/prod/2003pubs/c2kbr-17.pdf.

Age Group	Percent of Population	Number
5 to 20	8.1	5,214,334
21 to 64	19.2	30,553,796
65 and older	41.9	13,978,118
Total	19.3	49,746,248

The NOD/Harris Survey of Americans with Disabilities used the following questions to identify people with disabilities:

1. Does a health problem, disability, or handicap CURRENTLY keep you or anyone in your household who is 18 years old or over from participating fully in work, school, housework, or other activities?

[If yes to question one:]
2. Is there anyone in your household 18 years old or over, including yourself, who: has a learning disability of any kind; has any emotional or mental disability or condition; has any handicap or disability that limits the ability to speak or communicate with others; has any handicap or disability that limits hearing; has any vision or sight-related handicap or disability, except for ordinary eyeglasses; or has any physical handicap or disability that limits use of the legs, arms, or hands?

[If no to question one:]
3. Is there anyone in your household 18 years old or over, including yourself, who: has any physical handicap or disability other than those we have already mentioned; considers himself or herself a person with a disability; is someone whom most other people would consider a person with a disability?

An affirmative response for any of the three questions is reported as a person with a disability. The survey asks questions about severity of disability and age of disability onset. Severity and onset data are important because disability is a heterogeneous category. Many measures, including income, education, home ownership, health status, and insured status vary by severity, type of disability, and age at onset.

Consistent with Census findings, the 2004 NOD/Harris Poll found that more people with disabilities than without live in lower income households. Almost three times the number of people with disabilities (26 percent), compared to those without disabilities (9 percent), have household incomes $15,000 or below.¹⁵

¹⁵ See NOD/Harris Survey of Americans with Disabilities, 2004, supra note 18.

Legislation & Disability Rights

Legal Protections

With regard to international law, the U.S. has not acceded to the relevant documents. It has not signed the OAS Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities, and the government has expressed that it will not become party the proposed UN convention of disability rights.¹⁶ In response to the Special Rapporteur's request for information, however, the U.S. reported its use of the UN Standard Rules.¹⁷

Nationally, the U.S. has addressed disability law in more than 100 laws since 1956, many in the areas of physical access, employment, transportation, and housing.¹⁸ Perhaps the most important of these is the Americans with Disabilities Act of 1990. The ADA is composed of six sections or titles. The preface, § 12101, identifies people with disabilities as "a discrete and insular minority who have been faced with restriction and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society." (§ 12101(a)(7)). The preface sets out the goals of assuring "equality of opportunity, full participation, independent living, and economic self sufficiency" (§ 12101(a)(8)) for individuals with disabilities. The ADA also protects individuals from retaliation if they assert rights on behalf of individuals with disabilities or encourage or assist people with disabilities to assert their rights.¹⁹ Finally, each title of the ADA protects individuals who associate with individuals with disabilities.²⁰

Among the purposes of the ADA is to "provide a clear and comprehensive national mandate for the elimination of discrimination against people with disabilities," (§ 12101(b)(1)) and to ensure that the federal government plays a central role in enforcing these standards (§ 12101(b)(3)).

ADA Title I sets forth the antidiscrimination provisions for employment. "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment" (§ 12112). Covered entities are defined as employers, employment agencies, labor organizations

16. OAS, Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities 1999, http://www.oas.org/juridico/english/ga-res99/eres1608.htm; "Statement by Ralph F. Boyd, United States Assistant Attorney General for Civil Rights, to the UN General Assembly Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities" (press release from the United States Mission to the United Nations) 18 June 2003.

17. Dimitris Michailakis, Government Action on Disability Policy: A Global Survey (Liber Publishing House: Stockholm) 1997.

18. This chapter draws extensively from the list of disability-related legislation in Robert Silverstein. "Emerging Disability Policy Framework: A Guidepost for Analyzing Public Policy," 85 Iowa Law Review 1691 (2000), http://disability.law.uiowa.edu/lhpdc/rrtc/documents/silverstein/IA_LAW_ OVERVIEW_SEPT_11_00.doc. It reorganizes by topical area and omits many laws with less direct relationship to disability rights or which merely amend existing laws in minor ways, or reauthorize legislation without substantial change.

19. Id. § 12203.

20. Id. § 12112(b)(4); 28 C.F.R. §§ 35.130(g), 36.205 (2003).

or joint-labor management committees (§ 12111). Although a covered entity is forbidden from discriminating, it is not required to make accommodations that create a financial or administrative "undue hardship," (§ 12111(10)) or create a situation where an employee is a significant risk to the health or safety of others (or to self according to the Supreme Court's interpretation of the law) in the workplace.

Under the ADA, employers are not required to hire or retain employees who pose a direct threat to the health or safety of others in the workplace. In Chevron U.S.A., Inc. v. Echazabal (2002), the Court addressed the ADA direct threat defense. The Chevron Court was asked whether the direct threat defense would apply to an employer who refuses to hire a job applicant with a disability because the job would possibly endanger the applicant's own health. The Court held that the ADA allows an employer's refusal to hire a job applicant with a disability where the applicant's job performance is demonstrated to endanger his own health.

Title II of the ADA prohibits discrimination by state or local governments. Part A defines the antidiscrimination provisions, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity" (ADA, 42 U.S.C. § 12132 (2000)). Part B is devoted to the circumstances and requirements for non-discrimination in public transportation. One central element of Title II involves the Olmstead "integration mandate" discussed below.

Title III of the ADA provides antidiscrimination requirements for accommodations and services operated by private entities. The requirement is that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation" (ADA, 42 U.S.C. § 12182(a) (2000)).

An accommodation must make reasonable modifications in its policies, practices, and procedures, unless it demonstrates that doing so would fundamentally alter the nature of its goods, services, or facilities. Older facilities must remove architectural barriers if it is "readily achievable" to do so (ADA, 42 U.S.C. § 12182(b)(2)(A)(iv) (2000)), while facilities (or alterations) that post-date the ADA must be designed to be accessible to individuals with disabilities to the "maximum extent possible" (§ 12183(a)(2)). A variety of other national laws deal with the issue of disability. The Social Security Act has, through various laws and amendments, established the Social Security Disability Insurance Program. The Social Security Act Amendments of 1965 (P.L. 89-97) authorized the Medicare and Medicaid programs. The Social Security Amendments of 1972 (P.L. 92-603) authorized Medicare for SSI beneficiaries with disabilities after a waiting period and established the Supplemental Security Income (SSI) program that provides cash benefits for people who are aged, blind, or disabled, including children with disabilities comparable in severity to adult recipients.

The Social Security Act Amendments of 1980 (P.L. 96-265) use work incentives to help benefit recipients work by authorizing continued cash payments (section 1619(a)) and Medicaid eligibility (section 1619(b)) for SSI recipients

who are able to work at substantial gainful activity levels. The Employment Opportunities for Disabled Americans Act (P.L. 99-643) made these work incentives permanent.

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193) further redefined the SSI disability definition for children and required redeterminations of disability to be done prior to age eighteen. The Balanced Budget Act of 1997 (P.L. 105-33) changed the requirements for redeterminations for child SSI eligibility to use adult criteria within one year after the recipient's eighteenth birthday. The Ticket to Work and Work Incentives Improvement Act of 1999 (P.L. 106-170) established the ticket-to-work program for people with disabilities to obtain services related to employment.

The Developmental Disabilities Assistance and Bill of Rights Act (P.L. 94-103) created rights for people with developmental disabilities and established a system of protection and advocacy organizations in each state to assist with legal enforcement of the rights of people with disabilities. Extending the protection of people with disabilities, Civil Rights Commission Act Amendments of 1978 (P.L. 95-444) expanded jurisdiction to the Civil Rights Commission to protect against disability discrimination. The Civil Rights of Institutionalized Persons Act (P.L. 96-247) expanded legal protection to people who were institutionalized, authorizing the U.S. Department of Justice to enforce the rights of people with disabilities in mental hospitals or other facilities. The Developmental Disabilities Act of 1984 (P.L. 98-527) allowed access to the records of persons with developmental disabilities residing in institutions for protection and advocacy systems, providing opportunities to protect the civil rights for people in institutional settings.

There also are state laws protecting disability rights. For example, California exemplifies a state with a history, even pre-ADA, of legal protections for people with disabilities. The California disability antidiscrimination statute, the Fair Employment and Housing Act ("FEHA"), prohibits discrimination in public and private employment, and contains a reasonable accommodation requirement.²¹

Another California statute, the Unruh Civil Rights Act, guarantees people with disabilities accommodations in business establishments.²²

After the U.S. Supreme Court's case law narrowed interpretation of the ADA's definition of disability, California responded by distinguishing its state law protections from the federal limits. The 2000 FEHA amendments provide greater protection than the ADA in several ways.²³ FEHA's definition of physical and mitigating measures." FEHA's definition of physical and mental disability requires

^21. See generally Cal. Gov't Code §§ 12900-12996 (2003).

22. See Cal. Civ. Code § 51 (2003) ("business establishment" has been interpreted very broadly to include even government bodies); see Gibson v. County of Riverside, 181 F.Supp.2d 1057 (C.D. Cal. 2002); see also Cal. Civ. Code § 54 ("Equal Rights to Public Facilities) and § 55 ("Right to Full Access to Public Facilities"); see Cal. Gov't Code § 11135 (prohibiting discrimination by state agencies and recipients of state funding).

23. For an excellent comparison of FEHA, as amended, with the ADA, see Legal Aid Soc'y Emp.
L. Ctr., Disability Discrimination in the Workplace - State Versus Federal Law Protections, www. employmentlawcenter.org/adafehachart.pdf.

a "limitation" of a major life activity, as opposed to the "substantial limitation" required by the ADA.²⁴ The FEHA amendments reject the mitigating measures analysis, providing that "under the law of this state, whether a condition limits a major life activity shall be determined without respect to any mitigating measures."²⁵

Further, the FEHA amendments provide that "working" is a major life activity, and that a person who is limited in working need not be limited in a class or broad range of jobs.²⁶

Legal Barriers

The significant legal barrier for obtaining protection under the ADA is the determination of whether an individual has a disability covered by the law, and whether the individual is qualified for the employment, program, or service being offered. As discussed, the major U.S. Supreme Court cases on the ADA concern interpretations of the law's definition of disability. This requirement of determination of disability status and coverage is different than other civil rights protection regimes wherein status and coverage often is readily apparent.

Civic Participation

Civic participation of people with disabilities includes activities such as voting rights and access to the courts. The Voting Accessibility for the Elderly and Handicapped Act (P.L. 98-435) required registration and polling places for federal elections to be accessible to persons with disabilities. The 1993 National Voter Registration Act (P.L. 103-31) expanded voter registration, allowing mail voter registration and registration in offices where people with disabilities might receive services such as public assistance offices and vocational rehabilitation programs. The Help America Vote Act (HAVA) of 2002 is a comprehensive law involving the administration of federal elections, voting machines, polling places, and voter registration.²⁷ Included within HAVA are provisions related to the accessibility of polling places and voting machines to enable persons with disabilities to participate in the electoral process, and to vote independently and privately. HAVA requires states to adopt election procedures, including provisional voting, statewide voter registration databases and voter identification requirements.

24. Compare Cal. Gov't Code § 12926(c) with 42 U.S.C. § 12102(2)(A) (2000) and 29 C.F.R. Pt. 1630(j) (2003).

25. Cal. Gov't Code § 12926.1 (2003).

26. Cal. Gov't Code § 12926.1. This is consistent with a different section of the statute, which provides that "major life activities shall be broadly construed and shall include physical, mental, and social activities and working." Id. §§ 12926(i)(1)(C), (k)(1)(B)(iii).

27. Full text of HAVA is available online from the Federal Election Commission at http://www.fec. gov/hava/law_ext.txt.

As in voting, when courtrooms are not physically and programmatically accessible, people with disabilities are denied meaningful participation in the proceedings. Title II of the ADA ensures that individuals with disabilities actively and meaningfully participate in the state judicial system.²⁸ Title II prohibits discrimination against qualified individuals with disabilities by state and local governmental entities, including the state courts, and requires facilities and programs to be accessible.²⁹ Title II and implementing regulations from the U.S. Department of Justice (DOJ) mandate that inaccessible witness stands, jury boxes, jury deliberation rooms, restrooms, and parking spaces be eliminated.³⁰

State courts must modify policies, practices or procedures to allow participation by a person with a disability when barriers may not be otherwise eliminated; for instance, the state court may move the case to an accessible courtroom.³¹

Because not all accessibility issues are architectural, Title II of the ADA requires effective communication with people with disabilities.³² For this reason the DOJ requires public entities to provide auxiliary aids, preferably of the individual's choice, to meet the communication needs of persons with disabilities.³³

28. Title II compliance requires courts provide accessible parking and public entrance to areas where court services are conducted; "[R]estrooms, drinking fountains, and telephones also must be accessible to people with disabilities if they are provided for the general public . . . [also, a]larm systems must be usable . . . ." Jeanne A. Dooley & Erica F. Wood, "'Program Accessibility': How Courts Can Accommodate People with Disabilities," 76 Judicature, (1993)250 .

29. Keri K. Gould, "And Equal Participation for All . . . The Americans with Disabilities Act in the Courtroom," 8 J.L. & Health 123, 132-33 (1993-1994) ("Congress, by enacting the ADA, sought to . . . includ[e] state and local courthouses within the statute's definition of public services.") In contrast, Title II of the ADA does not cover federal court programs and services. Id. at 133
n.79. But see Id. (noting that the reason for this is that programs and services must comply with the Rehabilitation Act of 1973). The Judicial Conference of the United States has a policy of providing accommodations for people with hearing and communication disabilities. See generally Press Release, U.S. Bankruptcy Ct., W.D.N.Y. 1 (Dec. 1, 2000), http://www.nywb.uscourts.gov/ notices/nta0005.pdf (citing "Guidelines for Providing Services to the Hearing-Impaired and Other Persons with Communications Disabilities," in A Guide To Judicial Policies And Procedures ch. III, pt. H, at 37). In addition, federal buildings must be accessible under the Architectural Barriers Act, 42 U.S.C. §§ 4151-4156 (2000), which has as standards the Uniform Federal Accessibility Standards, and the Americans with Disabilities Act Accessibility Guidelines (ADAAG). U.S. Gen. Servs. Admin., Design And Construction: Accessibility For The Disabled, http://www.gsa.gov/ Portal/gsa/ep/contentView.do?contentId=8152&contentType=GSA_OVERVIEW.

30. See Gould, supra note 42, at 152. Title II requires a public entity to make its programs accessible, except where it would result in a "fundamental alteration in the nature of [the] . . . program . . . or in undue financial and administrative burdens." 28 C.F.R. § 35.150(a)(3) (2003).

31. See Gould, supra note 42, at 147-49. See also Peter Blanck, Ann Wilichowski, and James Schmeling, Disability Civil Rights Law and Policy: Accessible Courtroom Technology, 3 William & Marybill of Rights J., 825-42 (2004).

32. See 28 C.F.R. § 35.160(a).

33. The choice is to be given "primary consideration" by the public entity. Id. § 35.160(b)(2). "[U]nless it can demonstrate that another effective means of communication exists or that use of the means chosen would not be required under § 35.164." Id. pt. 35, app. A, § 35.160. Id. pt. 35, app. A, § 35.102 ("For instance, public school systems must provide . . . appropriate auxiliary aids and services whenever necessary to ensure effective communication . . . .").

DOJ regulations identify auxiliary aids and services for persons with hearing impairments to include qualified interpreters, note takers, written materials, amplifiers, captioning, and teletypewriters (TTYs).³⁴ For persons with vision impairments, aids and services include qualified readers, taped text, and Braille formats, and for persons with speech disabilities they include "TDDs, TTYs, computer terminals, speech synthesizers, and communication boards."³⁵

Inclusion

Communication

Communication may include in-person communication and electronic communication. Communication in employment, in access to programs and services of government, and in access to accommodations may be covered by the ADA. Interpreters are often a reasonable accommodation, as are communications in alternative formats, such as Braille, large print, and others. The Telecommunications for the Disabled Act of 1982 (P.L. 97-410) required workplace telephones used by persons with hearing aids and emergency phones to be hearing-aid-compatible. The Hearing Aid Compatibility Act of 1988 (P.L. 100-394) required most telephones manufactured or imported into the United States to be compatible for use with telecoil-equipped hearing aids. The Telecommunications Accessibility Enhancement Act (P.L. 100-542) required the federal telecommunications system to be accessible to individuals with hearing and speech impairments.

The 1988 Technology-Related Assistance for Individuals with Disabilities Act (P.L. 100-407, Tech. Act), recognizing the expense, complexity and difficulty for individuals to obtain the technology, provided grants to states for assistive technology programs. In 1994, the Technology-Related Assistance for Individuals with Disabilities Act Amendments (P.L. 103-218) reauthorized the 1988 Tech Act. This reauthorization focused on systems change and advocacy, including consumer involvement to increase assistive technology access. The Assistive Technology Act of 1998 (P.L. 105-394) reauthorized programs from the Technology-Related Assistance for Individuals with Disabilities Act and limited state's eligibility for systems change grants to 13 years. Reauthorization of the Tech Act is pending before Congress. The 2004 reauthorization debate is focused on educators and students with disabilities, adult service providers and their clients, and employment providers and employees. The proposed changes would align the Tech Act with other disability-related legislation, including the Individuals with Disabilities Act and the Workforce Investment Act.

34. For example, the regulations mention "computer-assisted transcripts," which almost simultaneously display transcript proceedings for individuals who may be deaf or hard of hearing. The regulations state, however, that in certain situations an interpreter may be warranted. Id. pt. 35, app. A, § 35.160.Id. § 35.104(1).

^35. Id. § 35.104(2). U.S. Dep't Of Just., Americans With Disabilities Act: Title Ii Technical Assistance Manual, at II-7.1000 (1993), http://www.usdoj.gov/crt/ada/ taman2.html.

According to the 2004 NOD/Harris Poll, more than eight out of ten people with (83 percent) and without (87 percent) disabilities report using cordless telephones or speakerphones. Other accessible technology (AT) used by people with disabilities and found to be at comparable rates to people without disabilities include closed captioning (15 percent), automatic door openers or remotely controlled lights (26 percent), large text on computer monitors (16 percent), automatic check deposit (62 percent), and online banking (34 percent). Yet, one out of every 6 (17 percent) 2004 NOD/Harris Poll respondents with disabilities reported there was AT that they needed but did not have. Among the needed communications AT were computer software (5 percent) and hearing aids (15 percent).

The Television Decoder Circuitry Act (P.L. 101-431) requires closed caption circuitry to be included in televisions, which have been adopted widely by people with and without disabilities and are changing the way television news provides information to people, with written text crawls on the screen. Part of the Telecommunications Act of 1996 (P.L. 104-104) ensures that manufacturers of telecommunication equipment and providers of telecommunications services make their products and services accessible to people with disabilities when readily achievable.

Enacted as part of the Workforce Investment Act of 1998 (WIA), Section 508 of the Rehabilitation Act requires that electronic and information technology (EIT), such as federal websites, telecommunications, software, and information kiosks, be usable by persons with disabilities.³⁶ The implementation of Section 508 was designed to spur innovation throughout the e-commerce industry. Federal agencies may not purchase, maintain, or use EIT that is not accessible to persons with disabilities, unless accessibility poses an undue burden. The EIT Accessibility Standards detail the requirements for federal entities.³⁷ Section

508 does not require private companies that market technologies to the federal government to modify the EIT products used by company employees, or to make their Internet sites accessible to people with disabilities.³⁸

36. Workforce Investment Act of 1998, Pub. L. 105-220, 112 Stat. 936 (1998); see Blanck, et al., supra note 2 at Part 9, Chapter 27 for a discussion of WIA.; 29 U.S.C. § 701(b)(1) (2000).

37. Architectural and Transp. Barriers Compliance Bd., Electronic and Information Technology Accessibility Standards, July 23, 2003, http://www.access-board.gov/sec508/508standards. htm.

38. Department of Justice, Information Technology and People With Disabilities: The Current State of Federal Accessibility, Executive Summary & Recommendations (Report from Attorney Gen. Janet Reno to President Bill Clinton, Apr. 2000), http://www.usdoj.gov/crt/508/report/exec. htm.

Education

Education laws require states and school districts to provide education to children with disabilities, including vocational education. The Education of the Handicapped Act (EHA) of 1970 provided for education of children with disabilities. The Education for All Handicapped Children Act (P.L. 94-142) mandated a free and appropriate public education for children with disabilities, regardless of the child's disability. The Higher Education Act Amendments of 1986 (P.L. 99-498) provides construction/renovation grants and loans to higher education institutions for compliance with the Architectural Barriers Act of 1968 and section 504 of the Rehabilitation Act of 1973.

In 1990, the Carl D. Perkins Vocational Educational Applied Technology Amendments (P.L. 101-392) provided students with disabilities access to vocational programs and services. The Education of the Handicapped Act Amendments of 1990 (P.L. 101-476) provided education for vocational and life skills to students with disabilities. The Individuals with Disabilities Education Act Amendments (IDEA) (within the Education of the Handicapped Act Amendments of 1990, P.L. 101-476) renamed EHA to accord with new terminology (disabled rather than handicapped) and provided for improved transition services and access to assistive technology. The School-to-Work Opportunities Act of 1994 (P.L. 103-239) focused on transition from school to work, and included youth with disabilities in these activities.

Education is the foundation for transition to higher education and employment. SSA initiatives, such as the Youth Transition Process Demonstration, assist youth with disabilities to maximize their economic self-sufficiency as they transition from school to work. Focused on people with disabilities from ages 14 to 25 who either receive SSI, SSDI, or Childhood Disability Benefits (CDB) or youth who could receive these benefits, the Youth Demonstration promotes collaboration among state, local, and federal agencies for transition services and supports. The U.S. Department of Labor funds a national center on youth with disabilities to provide technical assistance in this area (National Collaborative on Workforce and Disability / Youth, 2004).

Tied closely to education and to employment are state vocational rehabilitation (VR) programs. The Rehabilitation Act of 1973 (P.L. 93-112) revised funding for VR programs. Section 504 of the Rehabilitation Act of 1973 (P.L. 93-112) prohibited discrimination against qualified persons with disabilities in a program or activity receiving federal funds, including employers and educational institutions. The Rehabilitation Act Amendments of 1986 (P.L. 99-506) allow supported employment as an outcome of VR. It required states to plan for individuals making the transition from school to work. The Civil Rights Restoration Act (P.L. 100-259) amended the act's definition of an individual with a disability and applied section 504 broadly to universities and not the department within the university which received the federal funds. The Rehabilitation Act Amendments of 1992 (P.L. 102-569) increased access for people with the significant disabilities to state VR systems, and gave individuals increased control of their rehabilitation, as well as opportunities for career advancement.

Employment

According to the 2000 Census, 56.6 percent of adults with disabilities aged 21 to 64 were employed, compared to 77.2 percent of those without a disability. Among men, 79.9 percent of those without a disability work compared to 60.1 of those with disabilities.³⁸ Among women, 67.3% of those without a disability work compared to 51.4% of those with disabilities. The Census found 10.4 million men with disabilities work and 8.2 million women with disabilities work.³⁹

In 2004, the NOD/Harris Poll reports that 35 percent of people with disabilities aged 18 to 64 worked full or part-time, an increase of 3 percent from the 2000 poll.⁴⁰ Of those not working according to the 2004 poll, almost two-thirds (63 percent) of people with disabilities would prefer to work.⁴¹ Of those who are disabled and not working, two-thirds (67 percent) report they are unable to work due to a health problem or disability. A smaller proportion (8 percent) report they are not working because they cannot find a job that accommodates their disability.

In addition to the antidiscrimination provisions of the ADA, employment is addressed in several U.S. laws. The Small Business Act Amendments of 1972 (P.L. 92-595) provided for loans for sheltered workshops and for people with disabilities to start their own microenterprises. In 1977, the Tax Reduction and Simplification Act (P.L. 95-30) allowed the use of tax credits to promote employment of people with disabilities, encouraging businesses to hire individuals with disabilities, disadvantaged youth, welfare recipients, and persons who are chronically unemployed. The Federal Advisory Committee Act (P.L. 96-523) permits personal assistant services (PAS) for federal employees with disabilities. The Job Training Partnership Act (P.L. 97-300, JTPA) replaced the Comprehensive Employment and Training Act (CETA) and emphasized training for private sector jobs. The Omnibus Budget Reconciliation Act of 1990 (P.L. 101-508) continued the use of tax provisions, founding the Disabled Access Credit for small businesses to comply with the ADA. The Civil Rights Act of 1991 (P.L. 102-166) was passed to authorize jury trials, and compensatory and punitive damages, in employment discrimination lawsuits overturning restrictions imposed by the U.S. Supreme Court.

The Workforce Investment Act of 1998 (P.L. 105-220) consolidated several job training programs and provided that people with disabilities be served without discrimination in the workforce investment system. The law reauthorized the Rehabilitation Act of 1973 and linked it to the workforce system. It added outcome measures for accountability of the system to taxpayers.

38. U.S. Summary: 2000, Census 2000 Profile. Table DP-2. Profile of Selected Social Characteristics: 2000, http://www.census.gov/prod/2002pubs/c2kprof00-us.pdf.

39. See Waldrop and Stern, supra note 21.

40. As compared to 78 percent of people without disabilities working, as found in the 2004 poll. The definition of disability used by the NOD/Harris Survey varies from that used by the U.S. Census, so findings are not directly comparable.

41. As compared to 42 percent of people without disabilities who would prefer to work, as found in the 2004 poll.

WIA established state and local Workforce Investment Boards responsible for developing a "one-stop" delivery system of accessible, innovative, and comprehensive employment services. The WIA boards partner with local VR agencies, businesses, and job training and education programs to assist local communities in increasing employment.⁴² Among the services provided by one-stop systems are assistance in job search activities, career planning, job skill assessments and training, and childcare resources. One-stops provide resources for job and entrepreneurial training, transportation and housing assistance, and access to affordable health coverage.⁴³ WIA implements youth services in the One-Stop intended to improve employment and education for youth with disabilities.

WIA is to help individuals with disabilities achieve employment, economic independence, and inclusion into society (29 U.S.C. § 701(b)(1) (2000)). It is the federal funding vehicle for states to provide rehabilitation services and employment opportunities to people with disabilities.⁴⁴ A qualified person with a disability is entitled to benefits and services provided under WIA. One-stops and service providers must administer their programs in the most integrated setting possible (Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Investment Act of 1998, 29 C.F.R. § 37.7(d) (2003)), and not impose criteria that screen out individuals with disabilities (§ 37.7(i)). They must provide accommodations to qualified applicants, participants, and employees with disabilities, unless doing so causes undue hardship. They also must make reasonable modifications to policies and practices to avoid discrimination (§
37.8(a)-(b)).

The Employment and Training Administration (ETA) of the U.S. DOL oversees the comprehensive workforce system. ETA's mission is "to contribute to the more efficient functioning of the U.S. labor market by providing high quality job training, employment, labor market information, and income maintenance services primarily through state and local workforce development systems."⁴⁵ The

primary vehicle for providing services to consumer in the workforce system is the One-stop center. Expanding the workforce system to serve people with disabilities will improve employment opportunities for the large group of qualified people with disabilities who want to work. Almost half (42 percent) of people with disabilities polled by the NOD/Harris poll reported being aware of the workforce system's One-stop centers.⁴⁶ Not only were people with disabilities aware of the centers, but also people with and without disabilities report using their services at similar rates.⁴⁷

42. See Blanck, et al., supra note 2.

43. Michael Morris & Laura Farah, "Building relationships at a community level: Lessons learned from work incentive grantees (WIGs) (Rep. No. 1)," (working paper, Law, Health Policy & Disability Center, University of Iowa College of Law, Iowa City, IA, 2002), http://disability.law. uiowa.edu/lhpdc/projects/dol_techdocs/PolicyBrief_Lessons_Learned.doc.

44. Lex Frieden, Letter to the Honorable John A. Boehner, Chair, Education and the Workforce Committee (March 18, 2003), http://www.ncd.gov/newsroom/correspondence/boehner_03-18-03.html.

^45. http://www.doleta.gov/etainfo/mission.cfm.

46. As compared to 41 percent of people without disabilities.

47. I.e., 26 percent of people with disabilities versus 22 percent of people without disabilities.

Another means for enhancing employment opportunities relates to use of federal and state tax incentives available to employers and individuals with disabilities. In 2002, the GAO reported that the business tax incentives (e.g., the Work Opportunity Credit, Disabled Access Credit, and the Barrier Removal Deduction) were not used widely.⁴⁸ One factor cited is lack of familiarity with the incentives. Strategies to increase awareness and usage cited by the GAO include improving outreach through coordination and clarification of incentive requirements. In accord with GAO's findings, the 2004 NOD/Harris Poll finds that 12 percent of people with disabilities claim available credits or deductions, such as federal and state tax deductions and credits designed to assist people with disabilities in employment.⁴⁹ Tax deductions and credits may be used to pay for workplace accommodations or PAS.

One component of economic self-sufficiency related to work is the ability to accumulate assets by saving earnings. The 2004 NOD/Harris Poll reveals that the majority of people with disabilities are "asset poor" (e.g., 58% responding compared to 36% of people without disabilities). Asset poor individuals and their families have insufficient financial resources to support themselves at the poverty level for three months without other means of support.⁵⁰ The mechanisms for enhancing asset accumulation for low-income Americans have focused on the development of financial education and savings strategies, such as the development of IDAs, which are matched savings accounts for the poor. Yet, only 6% of people with disabilities responding report having an IDA, compared with twice as many (13%) people without disabilities. One goal of the Assets for Independence Act of 1998 (AFIA) is education in IDA programs for people in poverty with disabilities.

Health Services

Access to health care for Americans with disabilities generally is through private insurance from employment or a family member's employment, Medicaid, Medicare, or private health insurance. Many do not have any access to insurance. In addition to Medicaid and Medicare under the Social Security Act, the Family and Medical Leave Act (P.L. 103-3) allows employees up to twelve weeks of leave (unpaid, or using paid sick leave where available) for their own recovery from serious health conditions, to care for family members with serious health conditions or for new-born and adopted children.

⁴⁸ GAO Report GAO-03-39 Business Tax Incentives: Incentives to Employ Workers with Disabilities Receive Limited Use and Have an Uncertain Impact (2002). (1 out of 790 corporations and 1 out of 3,450 individuals with a business affiliation used the Work Opportunity Credit in 1999. Only 1 out of 680 corporations and 1 out of 1,570 individuals with a business affiliation reported using the Disabled Access Credit).

49. Of those 12 percent, 55 percent claimed both federal and state and 25 percent claimed only federal.

50. See Assets for Independence, a program of the Office of Community Services in the Administration for Children and Families within HHS, http://www.acf.hhs.gov/assetbuilding/ assets.html.

The Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) allows for private health insurance to be available and renewable, and limits exclusions of pre-existing conditions. The Mental Health Parity Act of 1996 (P.L. 104-204) (provisions implementing Act added in P.L. 105-34) prohibits insurance companies from capping mental illness lifetime benefits at lower levels than for other medical conditions.

The Balanced Budget Act of 1997 (P.L. 105-33) expanded insurance coverage to low-income children not already covered by Medicaid with the establishment of the State Children's Health Insurance Program (SCHIP). It required states to continue Medicaid coverage for children with disabilities who were receiving SSI benefits as of August 22, 1996 and who would have been eligible except their eligibility terminated because they did not meet the new SSI childhood disability criteria mentioned above. It established the first Medicaid BuyIn programs, which authorizes states to allow people with disabilities who were employed and whose family income was less than 250 percent of the poverty level to buy Medicaid insurance coverage. Premiums are based on income. The law continued eligibility for SSI "qualified alien" non-citizens lawfully residing in the United States who received SSI as of August 22, 1996. It provided "qualified aliens" access to SSI if they were lawfully residing in the United States on August 22, 1996 and met the SSI definition of disability or blindness. It permitted states to require participation by adults in Medicaid managed care, with some exemptions.

Together, these national policy initiatives have been aimed at diminishing the health care barriers to work for disabled persons who want and are capable of working (Jensen & Silverstein, 2000; Silverstein, 2000). The Ticket to Work and Work Incentives Improvement Act (P.L. 106-170) (TWWIIA), for instance, expands the availability of health care coverage for individuals with disabilities in several ways. States may allow disabled people with incomes over 250% of poverty level to "buy into" Medicaid health insurance programs if they are otherwise eligible for SSI. Individuals whose medical conditions have improved, making them ineligible for SSI or SSDI, may buy into Medicaid if they continue to have a severe determinable impairment. Under TWWIIA, Medicaid premiums and other cost shares are determined on a sliding scale. For those persons with incomes between 250% and 450% of poverty level, premiums may not exceed
7.5% of their income. As of February 2004, twenty-eight states have implemented and five more have authorized Medicaid Buy-In programs.⁵¹

TWWIIA extends Medicare coverage for people returning to work from SSDI to 8.5 years without payment of a Medicare Part A premium. After 8.5 years, four and one half years longer than previous eligibility, the individual may continue to receive Medicare by paying the premiums for both Part A and Part B.

The changes in health insurance options are meant to stimulate SSDI beneficiaries to return to work (e.g., after being injured on the job) without risking the loss of health insurance coverage by retaining Medicare coverage.⁵²

TWWIIA allows for an expedited reinstatement of benefits for SSDI recipients whose benefits were terminated because of increased earnings from work and who are unable to work because of a disability. The beneficiary may receive

52. See Blanck, et al., supra note 2.

51. Allen Jensen, State Medicaid Buy-In Programs Summary Table: Implementation, Authorization, Studies and Enrollments - February 23, 2004 update, http://www.uiowa.edu/~lhpdc/work/ summary_tables/StateMedBuyIn_summarytable.doc.

SSDI for up to six months during the period that the Social Security Administration is considering the reapplication.

Healthcare also plays a role in the acquisition of assistive technology (AT). The NOD/Harris Poll indicates a high percentage of people learned about AT that they use from doctors (49%) or other healthcare professionals (22%), which include physical therapists and rehabilitation specialists. Current efforts at informing people with disabilities about AT have focused on government programs (4%), community centers and disability organizations (4%), the media (13%), and the Internet (5%) as sources. While these appear to be important sources of information about AT, along with family and friends (14%) and other people with disabilities (6%), healthcare professionals appear to be at least a major source of information for people with disabilities. However, as with communication, many people with disabilities lack the necessary AT, ranging from devices such as walkers or canes (8 percent) and non-mechanized assists such as railings and bars (9 percent) to complex devices such as motorized wheelchairs (19 percent) and mechanized assists such as lifts and chairs (7 percent).

Only about half (57 percent) of those who needed additional assistive devices had attempted to acquire them. For the 43 percent who did not attempt to acquire these devices, 61 percent did not attempt to do so because the devices were too expensive. Of those who did attempt to obtain the devices, more than half (54 percent) reported they could not afford them. AT enables people with disabilities to improve their participation in society. Of the respondents who needed AT that they did not have, 37 percent reported that the device would help them live independently, 25 percent to leave their homes, and 18 percent to socialize with family and friends.

Housing

As mentioned, Title II of the ADA prohibits discrimination by state or local governments. Part A defines the antidiscrimination provisions, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity" (ADA, 42 U.S.C. § 12132 (2000)). Part B is devoted to the special circumstances and requirements for non-discrimination in public transportation. A core element of Title II involves the "integration mandate."

Perhaps the most significant Title II case is Olmstead v. L.C. ex rel. Zimring (1999). In Olmstead, the Court held that Title II requires a state to place persons with mental disabilities in community settings rather than in institutions when the state's treatment professionals determined that community placement is appropriate, the transfer is not opposed by the affected individual, and the placement may be accommodated, taking into account the resources of the state and the needs of others with mental disabilities. In response to the Olmstead decision, President George W. Bush issued Executive Order 13217 (Community-Based Alternatives for Individuals with Disabilities).⁵³

53. http://www.whitehouse.gov/news/releases/2001/06/20010619.html.^.

The order provides guidance to federal agencies requiring the Attorney General, the Secretaries of Health and Human Services, Education, Labor, and Housing and Urban Development, and the Commissioner of the Social Security Administration to work cooperatively to implement Olmstead. It also requires the federal government to work with state governments and to provide technical assistance to the states to effectively implement Olmstead at the state level. The Department of Health and Human Services published the federal agency's final reports of action to eliminate barriers and promote community integration, including Justice, Labor, Health and Human Services, Housing and Urban Development, Transportation, Education, Veteran's Affairs, the Social Security Administration and the Office of Personnel Management.⁵⁴ Many focus on housing and community integration.

States have reacted differently to the Olmstead decision. The National Conference of State Legislatures published the report "The States' Response to the Olmstead Decision: How are States Complying?"⁵⁵ The report finds progress, including new state legislation for compliance. The report also finds challenges due to state fiscal environments in response to the economic challenges nationwide. The report found that states were focusing on areas such as helping people make the transition from institutions to the community; promoting affordable and accessible housing; improving the recruitment and retention of direct care workers; allowing funding to follow the individual rather than the providers; and improving transportation that complies with the ADA requirements.

One encouraging finding from the 2004 NOD/Harris Survey is that more than half (58 percent) of people with disabilities (and 61 percent without disabilities) report owning their homes. Housing for people with disabilities is covered by a variety of systems and laws, including housing laws, and Medicaid waiver law. The Housing and Community Development Amendments of 1974 (P.L. 93-383) includes people with disabilities in the Section 8 rent subsidy program. It also extended Section 202 direct loans to nonprofit agency projects for persons with mental as well as physical disabilities. Another effort towards integrated housing in the community is found in the Omnibus Budget Reconciliation Act (P.L. 97-35), which authorized home and community-based waivers in place of institutional care where the costs of doing so were equivalent or less than providing institutional care that would otherwise be required. The Consolidated Omnibus Budget Reconciliation Act of 1985 (P.L. 99-272) expanded the Home and Community-Based Waiver to pre-vocational services and supported employment for previously institutionalized individuals and authorized waiver services for children dependent on ventilators who would otherwise continue to be institutionalized. The Balanced Budget Act of 1997 (P.L. 105-33) expanded the availability of Home and Community-Based Waiver habilitation services to those who had not been institutionalized previously, making such services available to people who already were integrated into community housing and preventing unnecessary institutionalization.

54. http://www.hhs.gov/newfreedom/final/.

55. http://www.ncsl.org/programs/health/forum/olmsreport.htm.

The Housing and Community Development Act of 1987 (P.L. 100-242) required HUD to allocate fifteen percent of section 202 funds for non-elderly persons with disabilities. The 1988 Fair Housing Act Amendments (P.L. 100-430) extended protection from discrimination in housing to people with disabilities and required that people with disabilities be allowed to modify their homes to meet their needs for accessibility and safety. In 1990, the National Affordable Housing Act (P.L. 101-625) established funding authority for supportive housing for people with disabilities.

Accessibility

Accessibility of buildings is addressed by The Architectural Barriers Act of 1968 (P.L. 90-480), which requires federal buildings to be accessible to people with disabilities. Section 502 of The Rehabilitation Act of 1973 (P.L. 93-112) established the Architectural and Transportation Barriers Compliance Board to enforce the Architectural Barriers Act of 1968. The ADA also addresses physical access to buildings.

Transportation for people with disabilities has been addressed in regard to mass transit (Urban Mass Transportation Act Amendments of 1970 (P.L. 91-453)). The Federal-Aid Highway Act of 1973 (P.L. 93-87) allowed the Highway Program to provide curb cuts and other features for the safety of people with physical disabilities and to provide accessible rest stops. The Amtrak Improvement Act of 1973 (P.L. 93-146) ensures elderly and disabled people are not denied intercity transportation on Amtrak. The Air Carriers Access Act (P.L. 99-435) prohibits discrimination by air carriers and gives enforcement authority to the U.S. Department of Transportation. The Intermodel Surface Transportation Efficiency Act of 1991 (P.L. 102-240) increased funds for facilities to meet transportation accessibility needs of people who are disabled.

The Architectural and Transportation Barriers Compliance Board (Access Board) develops guidelines for accessibility under the ADA. The U.S. Department of Justice issues final regulations for most of ADA Title II and III, while the Department of Transportation issues final regulations for the transportation provisions of Titles II and III. In 1991, the Access Board published the Americans with Disabilities Act Accessibility Guidelines (ADAAG) for new construction and alterations in places of public accommodation and commercial facilities.⁵⁶ The

ADAAG contains requirements applicable to most buildings and facilities (sections 1 through 4) and to certain types of buildings and facilities covered by title III of the ADA: restaurants and cafeterias (section 5); medical care facilities (section
6); mercantile and business facilities (section 7); libraries (section 8); transient lodging (section 9); and to transportation facilities (section 10). In 1998, two additional sections were added to the ADAAG for Title II covered State and local government buildings and facilities, which addresses judicial, legislative, and regulatory facilities (section 11) and detention and correctional facilities (section
12).⁵⁷

56. 36 CFR part 1191.

57. 63 FR 2000.

In addition to the ADAAG, the Architectural Barriers Act of 1968 (42 U.S.C. 4151 et seq.) requires federal facilities (i.e. facilities designed, built, altered or leased with federal funds) to be accessible to persons with disabilities. The Access Board's guidelines are used as a basis for enforceable standards issued by the Department of Defense, the General Services Administration, the Department of Housing and Urban Development, and the U.S. Postal Service. The Uniform Federal Accessibility Standards (UFAS) were developed by these agencies to implement the Architectural Barriers Act. Other federal agencies use UFAS as accessibility standards for purposes of compliance with section 504 of the Rehabilitation Act of 1973.

Another development in accessibility of the built environment is the enactment of accessibility and visitability requirements for homes by cities and states. Typically, these are part of the local building code or state laws. Such visitability codes require compliance with accessibility elements, including home entries without steps, interior doorways and hallways wide enough for wheelchairs, light switches location and function, electrical outlet location, and particular features in bathrooms. Some codes require mandatory compliance, while others are voluntary, though some voluntary programs include incentives. Additionally, codes vary by whether the housing is built with subsidized funding or private funding alone.

Disability Action & Awareness

As discussed, the Social Security Disability Insurance (SSDI) program defines disability as an inability to engage in "substantial gainful activity" and requires a medical assessment of the disabling condition. The Rehabilitation Act of 1973 initially was grounded in a medical approach to disability, promoting the conception of individuals with disabilities as impaired and needing to be cured through rehabilitation. By contrast, the rights model focuses on the environment that subordinates persons with disabilities and provides that government secure full involvement in society for persons with disabilities.⁵⁹

Beginning in the 1970s, concepts from the independent living philosophy were integrated into the national disability policy. Title VII of the Rehabilitation Act initiated funding for independent living services or Centers for Independent Living (CILs). Not only did the CILs provide services for individuals with disabilities, but also they were to be operated by individuals with disabilities.⁶⁰ The evolving policy of inclusion fostered federal and state laws from accessibility in voting and air travel,

58. Existing state laws and programs, compiled by the RERC on Universal Design at Buffalo, http://www.ap.buffalo.edu/idea/visitability/existing%20state%20laws.htm, and existing city laws and programs, http://www.ap.buffalo.edu/idea/visitability/existing%20city%20laws.htm. For guidelines and discussion of visitability, see http://www.ap.buffalo.edu/idea/visitability/ and their publication at http://www.ap.buffalo.edu/rercud/Visitability/VisBk%20Ver3-7-03.pdf.

59. See Blanck and Millender, supra note 3. See also Kate D. Seelman, "Employment of individuals with disabilities—opportunities and challenges—The best of times/the worst of times," (paper presented at the Employment and Disability Policy Summer Institute, Cornell University, Ithaca, NY July 17, 2000); See also Richard K. Scotch and K. Schriner, "Disability as human variation: Implications for policy," Annals of the American Academy of Political and Social Science, 549, 148-159 (1997).

to independence in education and housing culminating with passage of the ADA, and supplemented by Federal and state disability-related legislation and generic legislation.⁶¹

In support of national disability policy, the National
Council on Disability (NCD) is an independent federal agency making recommendations to the President and Congress on issues affecting Americans with disabilities. In its 1986 report
Toward Independence, NCD proposed that Congress enact a civil rights law for people with disabilities. By 1990, when the ADA was signed into law, NCD's purpose became to promote policies, programs, and procedures that guarantee equal opportunity for individuals with disabilities; and to empower individuals with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration.

Other disability advocacy groups in the United States include the National Organization on Disability (NOD), the Disability Rights Education and Defense Fund. (DREDF), Disability Rights Advocates (DRA), the National Council on Independent Living (NCIL), and the Bazelon Center for Mental Health Law. DREDF is a law and policy center dedicated to advancing the civil rights of people with disabilities through legislation, litigation, advocacy, technical assistance, and education of attorneys, advocates, persons with disabilities, and parents of children with disabilities. DRA is dedicated to advancing the civil rights of people with disabilities. Operated by and established for people with disabilities, DRA pursues its mission through research, education, and legal advocacy. DRA's mission is to ensure dignity, equality, and opportunity for people with disabilities throughout the United States and worldwide. The National Council on Independent Living (NCIL) is the oldest cross disability and grassroots organization run by and for people with disabilities. NCIL represents over 700 organizations and individuals including Centers for Independent Living (CILs), Statewide Independent Living Councils (SILCs), individuals with disabilities, and other organizations that advocate for the human and civil rights of people with disabilities throughout the United States.

60. ILRU Directory of Independent Living Centers & SILCs, Vol. 26 (2004).

61. National Council on Disability. Achieving Independence: The Challenge For The 21st Century: A Decade Of Progress In Disability Policy: Setting An Agenda For The Future (1996).

Corpuscle Danse performing at the John F.

Kennedy Center for the Performing Arts during Opening Ceremonies of the 2004 International VSA Arts Festival.