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Americans With Disabilities Act: Impact of the New Regulations on Those With LD

Disabilities Act - ADA Regulations icon_podcastsThe following is a transcription of the podcast, “Americans With Disabilities Act: Impact of the New Regulations on Those With LD (Audio).”

The topic of this NCLD podcast is the impact of the updated federal regulations to the Americans with Disabilities Act (ADA), regulations which will become effective in March 2011. Candace Cortiella and Jo Anne Simon discuss specifically how these new rules will impact students with learning disabilities (LD). Jo Anne Simon is an attorney in private practice in New York. She has over 30 years of experience working with the disability community and has helped create the field of post-secondary disability services by working at the grassroots and organizational level. Ms. Simon has worked for effective implementation of the federal Americans with Disabilities Act since its enactment in 1990, and before that with Section 504 of the Rehabilitation Act of 1973.

Candace Cortiella: Welcome, Ms. Simon. Let’s get started with this question: Many young adults with learning disabilities may not understand the importance of the provisions of the ADA, thinking that it duplicates the protection they receive under the Individuals with Disabilities Education Act (IDEA), the special education law. But that’s not the case, is it?

Jo Anne Simon: No, it’s not. There are some things that are similar but there are many things that are different about the ADA and Section 504. The first is that IDEA is a special education statute. So while it’s based in civil rights law, it’s also based in education and the way that is seen under IDEA for a student’s rights to be protected is to ensure that they have a free, appropriate public education.

The ADA and Section 504 cut a much broader swath, and they protect people with disabilities at all areas of life, including (but not limited to) education. So it affects people in employment. It affects their ability to not be discriminated against by being excluded from certain activities. For example, people who use wheelchairs are allowed to go into a restaurant. A lot of times, people had been kicked out of restaurants because they used wheelchairs and the owner might think they would scare the other patrons. People have all sorts of stories like that, so the ADA and Section 504 make it illegal for people to engage in that kind of activity.

Candace Cortiella: There’s been a lot happening over the past few years with regards to the ADA. Can you give a brief overview of the events that have occurred, including these regulations?

Jo Anne Simon: Sure. I’ll explain where [the new regulations] fit into the picture. But there are two basic things that have happened in the last few years. One is that the ADA Amendments Act was passed in 2008. That was legislation that sought to restore the original intent of the Americans with Disabilities Act in terms of the people it sought to protect. And I’ll explain a little bit about that.

When you go to court to assert your rights under the ADA, there will be lawyers on both sides, your lawyers and the other person’s lawyers. And the other person’s lawyers were taking the definition of disability and parsing it out and then picking it apart, phrase by phrase. For example, they would latch on to whether you were “substantially limited” and what did that [phrase] mean. They would latch on to whether you were “substantially limited in a major life activity” and what were [those] major life activities. And so that got picked apart (oftentimes in cases where it was absolutely ridiculous) that the person was found not to have a disability. But that’s because at some level, it’s been blamed on just an unhelpful articulation of what it meant to have a disability.

And so the ADA Amendments Act, which was originally called the ADA Restoration Act, was meant to change and to confirm that the people that the law meant to protect were still protected, that this was meant to be liberally construed. It was meant to protect more people than not. It was meant not to exclude people with impairments that weren’t extraordinarily severe impairments because those people are discriminated against too.

And the whole nature of the ADA was to not discriminate against people who had disabilities. Not that you could only discriminate against those with minor disabilities. That’s not what the law was meant to do. And so the ADA Amendments Act brought it back full circle to where Congress originally intended, for people with disabilities to be protected.

In September of 2008 that law was finalized. The Equal Employment Opportunity Commission (EEOC) was given the charge to go back and fix the regulations and specifically to look at what they interpreted “substantially limits” to mean a significant restriction.

And Congress said, “We don’t need a significant restriction. You have to go back and fix that language and make sure that it’s clear that people are protected who might not have a significant restriction in a major life activity.” So the federal rule-making process began. The EEOC, the agency responsible for doing this, got together. They came up with proposed regulations. Those were issued late in 2008. But then we had a presidential election. Whenever there’s a new administration all the regulations that are in the middle of being done are put on hold. The new administration then staffs it differently, and they may or may not make some changes. And then they issue them for a public comment.

They issued new proposed ADA regulations in September of 2009, with public comments due in November (after a 60-day comment period). They received a lot of comments on a number of things, including the way they try to elaborate how it is that people would fit into categories where it’s a given that you’re protected and those who really are not people they intended [to be protected]. It’s what I call the “hangnail category”; they didn’t expect that everybody who had a boo-boo was going to be protected by the law, but you have to find a way of saying that.

They came up with three categories:

  • a group that would generally be covered

  • a group that might or might not be covered, depending on circumstances

  • the group that generally wouldn’t be covered.

The problem with that middle group is that part of what the statute said was that this is not supposed to be a focus of the law. The law really doesn’t want you to focus your attention on whether someone has a disability. The law wants you to focus your attention on eliminating discrimination. And so many people felt that that middle category undid the general purpose in amending the ADA by drawing people’s attention once again to the issue, to this battle over whether or not you have a disability.

I understand that there were many, many comments to that effect. We do not yet have revised regulations from the EEOC. It’s now been over a year that they are going through the comments and massaging them and drafting revised regulations that will then be put out as final regulations. We don’t have a date [for the final regulations]. We had hoped to have something in time for the 20th anniversary of the ADA in July 2010 but that clearly did not happen. There is some hope that we would have it before the first of the year (2011), but I don’t see that happening either.

So right now, we’re sort of relying only on the statutory language and on the comments by congressional members on the floor when they discuss what it was they meant by who is supposed to be protected by the statute. So that’s one thing we’re waiting for and we will have further guidance on.

The other thing that happened was that, in the general course of business, the U.S. Department of Justice, which has the authority to enforce Titles 2 and 3 of the ADA—Title 2 applies to state and local governments or public services, and Title 3 applies to public accommodations, meaning private entities whose services are open to the public. So it might be the stadium. It might be a private school. It might be the gas station. It might be the mom-and-pop shop. Those kinds of entities are subject to Title 3.