In this issue......
EMPLOYMENT AND PERSONS WITH DISABILITIES:
ACTIONS BY THE SUPREME COURT AND CONGRESS DURING 1999
Employment and the ada: four cases from supreme court’s 1999 term
A restrictive definition of disability under the ada
Application for or receipt of ssdi benefits does not bar claim under ada
SPECIAL FEATURES:
Ticket to work and work incentives improvement act of 1999
Ticket to work and self sufficiency provisions
Publications available on social security and ssi work incentives
Bridges to better advocacy conference

EMPLOYMENT AND PERSONS WITH DISABILITIES:
ACTIONS BY THE SUPREME COURT
AND CONGRESS DURING 1999

    Our National Assistive Technology (AT) Advocacy Project has identified employment issues as a priority for the upcoming year. This newsletter discusses four Americans with Disabilities Act (ADA) employment cases decided by the U.S. Supreme Court in 1999 and the new Ticket to Work and Work Incentives Improvement Act of 1999. The Court’s decisions and the new legislation will have a major impact on persons with disabilities, including those who need AT to allow them to work. These are among the many issues to be addressed at our Bridges to Better Advocacy conference in Austin, Texas, April 6-8, 2000.

[We thank Steven Mendelsohn, of New York City, for his written analysis of the four Supreme Court decisions.]

    On June 22, 1999, the Supreme Court decided three cases which, read together, provide a very restrictive definition of disability under the ADA. In Sutton v. United Air Lines, 119 S.Ct. 2139 (1999), twin sisters were refused employment as global pilots because of very poor vision. They had perfect 20/20 vision when wearing their glasses. Their employment discrimination suit was dismissed by the Supreme Court, which concluded that a person's disability must be evaluated in the "corrected" rather than in the uncorrected state. Once "mitigating measures" such as the glasses in this case were taken into account, they ceased to be persons with disabilities under the ADA. The Court reasoned that their impairments, as corrected, did not amount to a "substantial limitation" on the "major life activity" of working. 42 U.S.C. § 12102(2)(A).

    The plaintiffs also argued that even if they had no disability, the employer had still violated the ADA because it "regarded [them] as" having a disability. Id. § 12102(2)(C). The Court disagreed. To demonstrate this, it would be necessary to show that the employer considered them unable to perform a class or broad range of jobs that others with similar experience and abilities could perform. All the airline had done was reject them for a particular job. A vigorous dissent argued that if people lost the ADA’s protection as a result of successful efforts to limit or control the functional effects of their disabilities, then the people the law was intended to help (those denied work because of stereotype and misconception), would continue to be rejected with no legal protection.

    Citing Sutton as precedent, the Court went on to decide Murphy v. United Parcel Service, 119 S.Ct. 2133 (1999). Mr. Murphy's duties as a mechaniincluded driving commercial motor vehicles. Legal qualifications to drive such vehicles included health certification from the U.S. Department of Transportation. When the employer determined that Murphy's high blood pressure would disqualify him for the health certification, they fired him.

    The Court reiterated that whether Murphy's hypertension constituted a disability had to be determined in his "medicated" rather than unmedicated state. Based on the testimony of Murphy's physician that when under treatment he faced no general life activity restrictions other than heavy lifting, the Court held that he did not have a disability within the meaning of the ADA.

    But was he "regarded as" having a disability? The majority said no. He had been fired because the company believed he was unqualified for the mechanic's job. Because he was capable of, and was employed doing, other types of mechanic's jobs that required no driving, the employer had not demonstrated a belief that he was incapable of performing a broad range of jobs or was incapable of working. Because Murphy's case was dismissed, no court ever considered whether the employer's failure to offer reasonable accommodations was discriminatory or whether driving was truly an essential element of the job.

    In Albertsons v. Kirkingburg, 119 S.Ct. 2162 (1999), the Court upheld the dismissal of a claim filed by a truck driver who could not meet mandatory federal vision standards. Unlike Sutton and Murphy, where mitigating measures were possible, no means existed for restoring vision in the truck driver's left eye. Despite this non-remediable impairment, the Court declined to find that he was an individual with a disability, because although he saw differently than people who use two eyes, there was no evidence that his impairment substantially limited any major life activities.

    The firing of the plaintiff was held to be predicated upon the madatory vision standard. But a waiver program instituted by the U.S. Department of Transportation allowed some people who did not meet the standard to continue driving vehicles in interstate commerce on an experimental basis. Mr. Kirkingburg had obtained this waiver but the company refused to rehire him. The Court held that the employer had no obligation to participate in the experimental waiver program, and hence no obligation to make an individualized assessment of the driver’s abilities.

    These three decisions may initially appeal to common sense. After all, how can a person with poor vision fly a jumbo jet? What happens if she drops her glasses? And why should someone with one good eye be allowed to drive a truck on the interstate? But these cases are about much more. In their wake, the obligation to provide reasonable accommodations or job modifications is no longer clear, since if a successful accommodation exists or is in use, its very availability may mean that the individual seeking it no longer falls under the law's definition of disability.

    There may be impairments so severe as to be inherently disabling, in which case medical treatment, personal self-help measures and AT, even if effective, would not deprive the individual of the protections of the ADA. In Sutton, the Court did point out in dicta that users of wheelchairs or prosthetilimbs may still be disabled under the ADA because they still have substantial mobility limitations despite use of the device. But if only those whose disabilities cannot be remedied or controlled are subject to the protection of the law, will a majority of their claims fail, either because no "reasonable" accommodation is available or because they remain incapable, with or without accommodations, of performing the essential functions of the job?

    Finally, these cases raise serious questions about the "regarded as" alternative for establishing disability. Unless an individual were to apply for a large number of jobs with the same employer, evidence that the employer considered the individual unable to perform a broad range or class of jobs would rarely arise. In rejecting someone for a job, an employer rarely adds that it would not have accepted the applicant for any other job either.

    Cleveland v. Policy Management Systems Corp., 119 S.Ct. 1597 (1999), involves the question of what happens when a plaintiff under the ADA has made potentially conflicting statements regarding her ability to work. After suffering a stroke, Ms. Cleveland applied for Social Security Disability Insurance (SSDI), contending that she was prevented by disability from working. Later, when filing suit against her former employer under the ADA, she asserted that she was able to perform the essential functions of her job. The U.S. Court of Appeals for the Fifth Circuit, like several other courts, had held Ms. Cleveland’s application for or receipt of SSDI benefits created a "rebuttable presumption" that she is judicially estopped from pursuing a claim under the ADA.

    The Supreme Court ruled that where an employer seeks to have an ADA suit dismissed because of such a contradiction, the employee must be allowed to show why the two statements are consistent. In other words, it cannot simply be presumed that the statement to the Social Security Administration undermines the later ADA claim.

    In Cleveland's case, her SSDI application was made and approved without reference to the existence of reasonable accommodations that might have enabled her to do her job. In fact, as the Court pointed out, it is possible to both meet SSDI’s definition of disability and the ADA’s requirement that she be capable of doing the essential functions of a job, with or without reasonable accommodations.

    The Cleveland holding is a very positive result in what had been an unsettled area of ADA law. The holding becomes even more important in light of the recently enacted Ticket to Work and Work Incentives Improvement Act of 1999, discussed below. The Court’s decision underscores, in the ADA context, what has been an underlying premise of the SSDI and SSI work incentives, i.e., that an individual may simultaneously meet Social Security’s definition of disability and pursue employment, with or without special accommodations.

TICKET TO WORK AND WORK INCENTIVES IMPROVEMENT ACT OF 1999

    This legislation, signed by President Clinton on December 17, 1999, represents a step forward in making it easier for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) beneficiaries to go to work. [See summary of key provisions, pp. 181-184.] Most of the Act’s provisions will be phased in over three years and many details are left for the Social Security Administration (SSA) to address in regulations.

Effective date - January 1, 2001

• phase-in sites throughout country
• regulations by 12/17/00; full implementation in every state by 1/1/04

SSA to issue "Tickets" to SSDI or SSI beneficiaries

• "to obtain employment services, vocational rehabilitation services, or other support services from an employment network which is of the beneficiary’s choice ...."

Ticket services to be delivered through "Employment Networks"

• a state vocational rehabilitation (VR) agency may elect to participate as an employment network
• a state VR agency must follow their usual policies in delivering "ticket" services
• other networks are not governed by federal policies which govern state VR agencies
• pending full implementation of these provisions in a state, the state VR agency will have the "right of first refusal" to provide employment network services

Dispute Resolution

• Social Security Administration (SSA) must create a mechanism for resolving disputes
• new law does not mandate a due process hearing, similar to the hearing available through a state VR agency
• regulations on dispute resolution, expected to come out in proposed form (i.e., published in the Federal Register, with publicomment invited) during the first half of 2000

Services to be provided under Individual Work Plans (IWPs)

• "may include case management, work incentives planning, supported employment, career planning, career plan development, vocational assessment, job training, placement, follow-up services, and such other services as may be specified by [SSA] under the Program."

Employment Network’s election of payment system

• Outcome Payment System - schedule of monthly payments during "outcome payment period," for which SSI or SSDI benefits are not payable because of earnings
• Outcome Milestone Payments - provides one or more milestones directed toward the goal of permanent employment, with earlier payments based on the attainment of milestones

Suspension of Continuing Disability Reviews (CDRs)

• under existing law, most SSDI and SSI recipients will have a CDR every 3 years; SSDI recipients will also have a CDR after completing a 9-month trial work period
• during the period for which a beneficiary is using a ticket, SSA may not initiate a CDR or similar review to determine if the individual is no longer disabled

Ticket to Work and Work Incentives Advisory Panel (12 Members)

• will advise the President, Congress, and SSA on issues related to work incentives programs, planning, and assistance

Elimination of the Work-Triggered Continuing Disability Review (CDR)

• effective 1/1/02 for persons who have received SSDI benefits for at least 24 months
• no CDR may be scheduled solely as a result of the individual’s work activity
• SSDI recipients will still be subject to regularly scheduled CDRs, not triggered by work activity
• SSDI recipients will still be subject to termination of benefits if they perform substantial gainful activity (SGA) by earning more than $700
• NOTE: Under the new Ticket provisions, an individual will not be subject to a CDR during the period for which he or she is using a ticket

Expedited Reinstatement of Disability Benefits

    SSDI benefits shall be reinstated without a new application if:

• individual lost SSDI due to performance of SGA;
• files request for reinstatement within 60 months of the last month of entitlement;
• disability is same as (or related to) the disability that was the basis for original claim; and
• that disability renders the individual incapable of SGA.

SSI benefits shall be reinstated without a new application if:

• individual became ineligible for SSI due to earned income (or a combination of earned and unearned income) for 12 or more consecutive months;
• files request for reinstatement within 60 months of the last month of entitlement;
• disability is same as (or related to) the disability that was the basis for their original claim;
• that disability renders the individual incapable of SGA; and
• individual satisfies SSI’s non-medical requirements (i.e., SSI’s income and resource rules).

"Provisional Benefits" pending reinstatement

• up to six months of SSDI or SSI benefits paid while reinstatement application is pending
• if SSA eventually determines that the individual was not entitled to reinstatement, any resulting overpayment cannot be recovered unless SSA determines that the individual knew or should have known that he or she did not meet the reinstatement requirements

Work Incentives Outreach Program

• a community-based work incentives planning and assistance program established through grants, cooperative agreements, and contracts
• up to $23 million is allocated for each fiscal year, 2000 through 2004
• disbursed by SSA through a competitive process
• grants, cooperative agreements, and contracts will range between $50,000 and $300,000
• any public or private agency or organization qualifies for funding

What services are to be provided by a funded program?

• a program is expected to "select individuals who will act as planners"
• "planners" will provide information, guidance, and planning to SSDI and SSI beneficiaries regarding:
      (1) federal and state work incentive provisions; and
      (2) adequacy of health insurance benefits offered by an employer.
• programs will prepare and disseminate written information explaining work incentives.

Establishment of complimentary resources within SSA

• SSA must establish its own "corps of trained, accessible, and responsive work incentive specialists ... who will specialize in [SSDI and SSI] work incentives ... for the purpose of disseminating accurate information ..."

Extended Medicare Coverage for SSDI Recipients

• this provision is effective October 1, 2000
• currently, SSDI recipient entitled to continued Medicare during nine-month trial work period and for an additional 39 consecutive months following the ninth trial work month
• during entire 48-month period, Medicare Part A coverage is automatiand Part B continues to be optional and subject to premium payment ($45.50 per month in 2000)
• new law extends Medicare eligibility for an additional 54 months (total = 93 months)

Expansion of the Optional State Medicaid Buy-In Program
   Background

• optional program created by section 4733 of the Balanced Budget Act of 1997
• designed to provide health insurance to working people with disabilities who, because of relatively high earnings, cannot qualify for Medicaid under another provision
• eligible individuals must be in a family whose net income (i.e., after SSI exclusions) is less than 250 percent of the federal poverty level
• states can increase the resource limits to as high as $14,000
• states, at their option, can charge premiums or other cost-sharing charges

How the Act changes the current Buy-In program

• allows states to offer a Medicaid buy-in to persons with disabilities who work and have earnings greater than 250 percent of the poverty level
• state could require some individuals to pay the full premium as long as the premiums do not exceed 7.5 percent of the individual’s total income
• states must require a 100 percent premium payment for individuals with adjusted gross incomes greater than $75,000 unless states choose to subsidize the premium using their own funds
• second option allows states to cover individuals who continue to have a severe disability, but lose eligibility for SSI or SSDI because their medical condition improves

SSDI Demonstration Projects and Studies

• currently, SSA has authority to conduct SSI demonstration projects to test waivers of SSI rules to encourage individuals to work; similar SSDI authority expired in 1996
• provisions reestablish SSA’s demonstration or waiver authority to test new work incentives for SSDI recipients designed to encourage them to work
• SSA and Department of Health and Human Services authorized to waive compliance with any SSDI or Medicare provisions as necessary for demonstration projects
• SSA required to conduct demonstration projects to evaluate program under which SSDI reduced by $1 for each $2 of earnings "that is above a level to be determined by [SSA]." For example, a demonstration project could use the SSI budgeting rules which disregard the first $65 of wages and disregard $1 for every additional $2.

Benefits Management for Working People with Disabilities: An Advocate’s Manual (Greater Upstate Law Project 2000)(available 3/00). This 160-page reference has just been completely updated. It contains extensive legal citations and is viewed by many as the definitive reference on Social Security and SSI work incentives. A new chapter 11 provides a summary of the key provisions of the Ticket to Work and Work Incentives Improvement Act of 1999. Individual copies are $55, with prices reduced for larger orders. Call Diane Dustin at 716-847-0655 ext. 218 or click here for an order form.

Update on The National Assistive Technology Resource Library

    We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions and other administrative documents. We also have indexed more than 400 documents from more than 100 pending and decided court cases. All documents are available through our AT Resource Library. Please send us your hearing decisions, briefs and other documents involving AT.

Please send information to:                               TEL: (716) 847-0650
Attn.: Diane Dustin                                             FAX: (716) 847-0227                  e-mail: atproject@nls.org
Neighborhood Legal Services, Inc.                   TDD: (716) 847-1322
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