Information and Guidance on the Americans with Disabilities Act 
Fall 1998 Vol. 3, No. 1

This Issue Highlights Information and Resources Regarding Employment

What's Inside?

Feature Stories

• The ADA and Insurance
• Disclosure and Accommodation Under ADA

Access Board News
DOJ Update
Employment Update
Regional News
Publications
Frequently Asked Questions
Great Web Sites
Building Your Rolodex
Events/Announcements
 

FEATURE STORIES

THE ADA AND INSURANCE

NEW LANDMARK HARRIS SURVEY RELEASED

Americans with disabilities still face gaps in securing jobs, education, accessible public transportation and in many areas of daily life including recreation and worship.  The findings, commissioned by the National Organization on Disability (N.O.D.) in cooperation with Louis Harris & Associates, define the current status of persons with disabilities in American life. Results were presented in a new U.S. survey of 1,000 adults with disabilities announced at a news conference by N.O.D. The findings are disturbing yet motivating for public and private decision-makers. 

Humphrey Taylor, Chairman of Louis Harris & Associates, commented, "The purpose of this research is not just to measure the gaps in key life areas between people with and without disabilities, but to provide information to help close them.  I anticipate that the results will be used by people both inside and outside the disability community, with the media, with corporate America, legislators and state and federal administrators."

Among the most startling findings about the workforce, the research exposed significant gaps between the employment rates of the working disabled versus the working non-disabled. Statistics conclude that:

• Among adults with disabilities of working age (18 to 64), three out of ten (29%) work full or part-time, compared to eight out of ten (79%) of those without disabilities, a gap of fifty percentage points.

• The proportion of working-age adults with disabilities who are employed has actually declined since 1986, when one in three (34%) were working. However, since 1986, the percentage of working age adults with disabilities who describe themselves as completely unable to work because of their disability or health problem has risen steadily, from three out of ten (30%) in 1986 to over four out of ten (44%) today. Among those with disabilities who are not working, but do not describe themselves as completely unable to work, the proportion who are employed has not declined since 1986.

• Among those with disabilities age 16-64 who are not employed, seven out of ten (72%) say that they would prefer to be working.

• Two out of three adults with disabilities say that their disability has prevented (41%) or made it more difficult for them (26%) to get the kind of job they would like to have.

• Among adults with disabilities who work full-time, fewer than half (46%) say that their work requires them to use their full talents or abilities, compared to two out of three (66%) in 1994.

• Adults with disabilities who are working full-time are more likely today than in 1994 to say that one of the barriers they have faced in trying to find a job is that "the jobs I could get don't pay enough" (47% vs. 31%)

• Fully a third (34%) of adults with disabilities live in households with total income of $15,000 or less, compared to only 12% of those without disabilities.

• Approximately one in five (20%) of adults with disabilities have not completed high school compared to 9% of adults with no disabilities.

Alan A. Reich, President of N.O.D. stated, "These gaps are unconscionable. America must do better!"  He added,  "At a time when the U.S. unemployment rate is at an historic low and there is a crying need for workers, it is astounding to learn that the employment gap remains so wide.  As the survey shows, over 72% of people with disabilities out of the workforce want to work and contribute to the economy.  America must remove attitudinal and physical barriers in the workplace and in all other areas of life."

What can Americans do to close these gaps?  The poll recommends several strategies.    

Individuals:

• Those with disabilities, family members and friends can take the lead by providing guidance to others in encouraging full participation of people with disabilities in community life.
• Active involvement by people with disabilities in educational and civic life on all levels expands our awareness of how those outside the mainstream live; this allows communities to be more thoughtfully inclusive of all differences.
• Americans must extend themselves to their fellow citizens with disabilities, and overcome their fears of the unknown.  We need to become more aware of what people with disabilities can contribute; we need to respect their abilities.

Across the Nation:

• The media can ensure that people with disabilities are portrayed fairly as individuals engaging in public and private life.  Negative portrayals of people with disabilities in movies, TV shows and so on, are often inaccurate and should not be permitted.
• As more people with disabilities participate in the various aspects of American life, the general population will become more informed, and they will abandon their stereotypes based on misconceptions.  Attitudes will improve.  The full participation of people with disabilities in an increasingly diverse American population overall will result.
• Just because ADA has been enacted does not mean that we can rely on it to change attitudes and perceptions about America's disabled.  By valuing each individual for his or her abilities allows our nation to benefit globally by demonstrating democracy at its best.

The full report "1998 N.O.D./Harris Survey of Americans with Disabilities" conducted by Louis Harris & Associates may be purchased for $95 from the National Organization on Disability. The charge is $60 for disability organizations. To order, contact N.O.D. at (202) 293-5960.

Mental health consumers and their advocates had hoped that ADA could provide a vehicle to challenge unfair insurance practices. To date, however, plaintiffs have had difficulty using ADA to address insurance discrimination.

The ADA states clearly that employers can't refuse to hire or fire someone because of concerns about insurance costs, condition employment on exclusion from a health insurance plan or deny individuals with disabilities equal access to the same terms or conditions of insurance as other employees. ADA's applications to the practices of insurance companies and policies themselves are more cryptic, and possibly less favorable to people with disabilities—especially those with mental disabilities.

The statute says that the ADA is not intended to prohibit insurers from "underwriting risks, classifying risks or administering such risks" as long as these classifications are not inconsistent with state law, and so long as the insurer does not classify risks as a "subterfuge to evade the purposes" of the ADA.

ADA's insurance provisions have created substantial conflict regarding whether the ADA allows insurers to continue their exclusion and differential treatment of individuals with disabilities and whether employers violate the ADA if they contract with insurers who treat people with mental disabilities differently.

In 1993, the EEOC addressed these issues in an interim Enforcement Guidance, which was designed to analyze how the ADA applies to employer-provided health insurance. Although the guidance is favorable for most individuals with disabilities, it specifically excludes people with mental disabilities from the protection of the ADA in this important area.

However, the guidance can be interpreted so that distinctions based on a particular mental disability (i.e., schizophrenia) would be considered a violation. Typically, people disabled as a result of mental impairments receive disability benefits for only two years, while those disabled as a result of physical conditions receive benefits until death or age 65. Many mental health consumers see this differential treatment as unfair and a violation of the ADA.

In the case of Lewis v. K-Mart, 7 F. Supp. 2d 743 (E.D. Va. 1998), a district court struck down a two-year cap on long-term disability benefits for mental disabilities as violating ADA. The court noted that K-Mart offered Mr. Lewis insurance benefits with inferior coverage because of his disability, without any actuarial justification. The court concluded that K-Mart violated the ADA by "offering Lewis a benefit plan which discriminates on the basis of mental disability."

Advocates seeking to challenge discrimination in long-term disability insurance are aided in the fact that the EEOC's insurance guidance applies explicitly only to health insurance. Moreover, the EEOC itself took a case challenging disparate disability insurance coverage for people with mental disabilities (EEOC v. CNA Insurance Cos.), although, the case was dismissed by a federal appeals court in late September 1998. As this decision demonstrates, long-term disability insurance litigation has frequently been sidetracked by assertions that an individual who is now totally disabled and unable to work is not covered by the ADA.

Cutting off benefits for people with mental disabilities after two years is disastrous for employees, many of whom have worked for years and paid into a plan, only to have it fail them when they need it most. If an insurer capped benefits for African-American workers but not for Hispanic workers, courts would have no trouble finding racial discrimination because of the long-standing history of bias against African-Americans. Similarly, courts should recognize policies that cap benefits only for mental disabilities and not for physical ones as discriminatory because the policies are based on a history of treating people with these disabilities as second-class citizens.

(Source: Bazelon Center for Mental Health Law, http://bazelon.org/welcome.html)

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DISCLOSURE AND ACCOMMODATION UNDER ADA

Before an employer provides an accommodation, indeed before the ADA requires that one be provided, an applicant or employee must disclose his or her need. The obvious gateway to disclosure is employee awareness: A person with a disability must know about the ADA's protections before tapping into them.

A person with a psychiatric disability faces what may be a wrenching decision about divulging his or her mental disorder to an employer. Lack of awareness that a mental disorder exists or unwillingness to label oneself disabled often prevents such self disclosure. Another obstacle is the fear that disclosing a condition invites the stigma attached to mental disorders. By disclosing a psychiatric disability, an individual often risks discrimination, teasing or harassment, isolation, stigmatizing assumptions about his or her ability, and the labeling of all behavior and emotions as pathological. The most pernicious aspect of stigma may be the way in which it undermines an individual's self-esteem and social interactions.

Disclosure may garner benefits for the individual with a disability, however. In addition to invoking the protection of the ADA, in the right circumstances, openly admitting a mental disorder may enhance self-esteem, diminish shame, permit supervisors and coworkers to offer support, and even lengthen job tenure.

After making a decision to disclose a mental disorder, a person also must consider what to disclose, to whom, and when. Legally, an employee need disclose only enough information about his or her disability-related work limitations to support the need for accommodation. There is no legal requirement to disclose prior to the need for an accommodation. However, problems may arise if disclosure occurs only when performance problems have been raised or acted upon by the employer.

Good management practices will produce many of the workplace accommodations needed by people with psychiatric disabilities. Like all employees, workers with psychiatric disabilities may benefit from supervisors who:

• approach each employee with an open mind about his/her strengths and abilities
• clearly delineate expectations for performance
• deliver positive feedback along with criticisms of performance in a timely and constructive fashion
• are available regularly during the workday for consultation with employees
• demonstrate flexibility and fairness in administering policies and work assignments

In addition, some workers with psychiatric disabilities may benefit from one or more of the following accommodations:

• schedules which incorporate flex-time
• part-time positions or job sharing
• time off for scheduled medical appointments or support groups
• the use of break time according to individual needs rather than a fixed schedule
• physical arrangements to reduce noise or visual distractions
• extending additional leave to allow a worker to keep his or her job after a hospitalization
• joint meetings between the employer, supervisor, and job coach

Lists of commonly desired or used accommodations, while informative, do not supplant the need for case-by-case assessment. Work places and jobs vary, as do people with psychiatric disabilities, who have a broad range of talents, abilities, and functional limitations. Each actual situation must be considered on an individual basis to determine the best accommodation that does not pose undue hardship.

(Source: Office of Technology Assessment, "Psychiatric Disabilities, Employment, and The Americans With Disabilities Act" Background Paper, 1997.)

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ACCESS BOARD NEWS

DETECTABLE WARNINGS SUSPENSION CONTINUED

The Access Board, Department of Justice, and Department of Transportation are continuing the suspension of the requirements for detectable warnings at curb ramps, hazardous vehicular areas, and reflecting pool edges in the Americans with Disabilities Act Accessibility Guidelines and the Standards for Accessible Design. The agencies are continuing the suspension of the detectable warning requirements to July 26, 2001, when it is expected that the rulemakings to revise and update ADAAG and the Standards for Accessible Design will be completed.

The detectable warning requirements were suspended initially in 1994, pending review of a research project on the need for detectable warnings at vehicular-pedestrian intersections in the public right-of-way. Research suggested that other technologies, which may be less costly and equally or more effective than detectable warnings, be explored for providing information about intersections.

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ITM STUDY AVAILABLE ON THE WEB

A study funded by the Access Board on making interactive transaction machines (ITMs) accessible is nearing completion. Conducted by the Trace Research and Development Center at the University of Wisconsin, this study examines access to automated teller machines (ATMs), ticket and fare vending machines, information kiosks, and similar devices. Information on accessible ITM design was gathered from industry, consumers, and researchers and an accessible ITM prototype was developed.

Information developed under this project is now available at the Trace Center kiosk web site (http://www.trace.wisc.edu/world/kiosks/itms/). The Trace Center plans to convene a workshop for manufacturers and providers of ITM devices to further project work.

(Source: Access Currents, Volume 4, No. 5, September/October, 1998)

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DOJ UPDATE

USING TITLE II TO CHALLENGE UNNECESSARY  INSTITUTIONALIZATION AND SEGREGATION

One of the potential uses of Title II is as a vehicle to end unnecessary institutionalization and segregation of disabled individuals. ADA regulations specifically direct public entities to "administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities."

In its analysis of Title II regulations, the Justice Department states: "[T]hese provisions are intended to prohibit exclusion and segregation of individuals with disabilities and the denial of equal opportunities enjoyed by others, based on, among other things, presumptions, patronizing attitudes, fears and stereotypes of individuals with disabilities....Integration is fundamental to the purposes of the Americans with Disabilities Act. Provision of segregated accommodations and services relegates people with disabilities to second-class status."

People with mental disabilities have asserted that ADA's requirement that public agencies make reasonable modifications in their programs can be interpreted to require the transfer of funds or programming from institutional to community settings. State and local government entities counter this argument by asserting that such a transfer of resources amounts to a "fundamental alteration" of or "undue burden" on a program and is not required by the Act.

A recent ruling by the 11th Circuit set a very high standard for a holding of "fundamental alteration" while also giving substantial deference to the Justice Department's analysis. L.C. v. Olmstead, 1998 WL 163707 (11^th Cir. 1998). The L.C. court held that "by definition, where, as here, the State confines an individual with a disability in an institutional setting when a community placement is appropriate, the State has violated the core principle underlying ADA's integration mandate."

The court made two arguments. First, it rejected the state's claim that the ADA was limited to discrimination between disabled and non-disabled people and that institutional services were provided only to disabled individuals. The court noted that the ADA specifically recognized that discrimination existed in institutionalization and this finding would have been superfluous under the state's analysis. Second, it recognized that there may be times when a person can be treated in the community and others when institutionalization is necessary. However, where the evidence shows that all experts agree that at a given time a patient could be served in the community, then ADA mandates such a placement, unless it would be a fundamental alteration in the state's provision of services.

The court set a very high standard, holding that "unless the State can prove that requiring it to make these additional expenditures would be so unreasonable given the demands of the State's mental health budget that it would fundamentally alter the service it provides, the ADA requires the state to make these additional expenditures."

L.C. v. Olmstead is the most recent case in which individuals with disabilities have had increasing success in convincing courts to recognize ADA's potential as a tool to combat unnecessary segregation. Notable cases include:

• Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), holding that the State of Pennsylvania violated the ADA by confining in a nursing home a plaintiff who did not require nursing home care.

• Charles Q. v. Houston, No. 1:CV-95-280 (M.D. Pa. April 22, 1996). In two decisions relying heavily on Helen L. v. DiDario, the court granted summary judgment for three plaintiffs with mental illness who alleged that the state defendants violated the ADA by treating plaintiffs in a state psychiatric hospital rather than in community settings.

• Wyatt v. Hanan, No. 3195-N (M.D. Ala. March 6, 1995). In a pretrial ruling in this long-standing mental disability class action, the court denied plaintiffs' motion for summary judgment regarding their ADA claims, but also stated that the Act "requires that services or programs provided by a public entity 'integrate' qualified disabled individuals with non-disabled persons to the fullest extent appropriate for the disabled and reasonable for a public entity."

Advocates can also advance the right of people with mental disabilities to non-discriminatory public services through collaboration and non-litigation advocacy with public agencies. Title II requires public agencies to identify their rules, policies and procedures that exclude people with disabilities from participation in public programs and develop plans to eliminate those barriers.

(Source: Bazelon Center for Mental Health Law, http://bazelon.org/welcome.html)

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EMPLOYMENT UPDATE

HOW FAR CAN MEDICAL TESTING GO?

In 1992, when Harold Chambliss heard they were hiring at the Rockwell International plant in Centralia, Ill., he submitted an application. "They said they had work for me--a job that paid better than $12 an hour, plus benefits--but I'd have to pass a physical," recalled Chambliss. Although deemed healthy by doctors at Centralia's St. Mary's Hospital, he still had to take a nerve-conduction test, a procedure intended to show if he was prone to develop carpal tunnel syndrome.

In the test, a current is passed through wrist nerves to gauge their conductivity and detect any pressure that could be aggravated by repetitive motion. A few days later, Chambliss was told he would not be hired: "I didn't pass the carpal tunnel test." Chambliss, who has had no problems at all with his hands or wrists, still wonders about the justice of Rockwell's decision.

His question--Can employers use nerve-conduction tests to screen out workers who might someday become disabled?--soon might be answered by a federal judge in Chicago. Legal experts say it is one of the most important cases to be brought under the ADA.

Chambliss is one of 80 former applicants who are suing Rockwell and Cambridge Industries, to whom Rockwell later sold the plant that produces plastic parts for motor vehicles. The suit, brought by the Equal Employment Opportunity Commission three years ago, has been heating up in recent months as witnesses were deposed and new plaintiffs joined.

Much is at stake, especially as scientific advancements make it possible to detect more and more medical problems relatively cheaply before they arise. Employers would like to exclude everyone who is likely to develop an expensive disease or become injured on the job, said L. Steven Platt, president of the National Employment Lawyers Association.

"That would lead to a permanently unemployable class of workers based on some test that may not even be accurate," Platt said. "It's one thing if a person can't perform the functions of his job, but not to hire someone because 20 years from now he might develop some condition is just ridiculous."

EEOC lawyers say the company was illegally using a medical test to make predictions about a condition that might develop down the road. Nina Stillman, Rockwell's attorney, insisted what Rockwell did was "perfectly legal. It was done on the advice of doctors. We don't believe the ADA changed the legality of what we were doing."

The Rockwell case is the first to question the use of nerve-conduction tests on prospective employees. Although no one knows how many other factories test for nerve conduction, the number of complaints filed with the EEOC about such testing indicates the procedure is not uncommon.

The real significance of the case lies in the fact that medical and even genetic testing is becoming more prevalent, as employers fight to drive down their health-care costs by screening out high-risk workers.

Legal experts say it is not unlawful to give medical tests to prospective employees, as long as a job offer already has been made and all new hires are treated the same. Companies can run into trouble, however, if they use the results of those tests to make their final hiring decisions.

The EEOC's position is that relying on genetic markers and medical tests that predict problems is a violation of the ADA. However, the law in that area is not clearly established.

The Rockwell suit "is one of the most important ADA cases ever filed," said Gary Phelan, a plaintiffs' attorney from CT, who has written extensively on the 1992 statute. "The case will have a major impact on what I think will be the most important question of the next decade: Can you refuse to hire someone because of a genetic predisposition to a disability? The EEOC says you can't, but it's untested so far in the courts."

Stillman, denying that Rockwell was testing for potential problems, said, "We were testing for an existing condition: an impairment of the nerves."

Experts say Rockwell will have to prove that the nerve impairment detected by the test would prevent the applicant from doing the job without endangering himself or others.

"That's an extremely difficult defense for employers," Phelan said. "Even if they were acting on a doctor's advice, they'd have to prove a direct threat."

The case is likely to turn on the accuracy of the nerve-conduction test for predicting future injury.

"We say the risk has to be identifiable, imminent and extremely high," said Peggy Mastroianni, associate legal counsel at the EEOC.

Mark Dichter, a Philadelphia-based employment lawyer who represents management, said that is not an impossible standard. Because the Rockwell case involves a specific test for a specific condition related to a specific job, in this instance a variety of assembly-related jobs requiring workers to use their hands, Dichter said it should be easier for the employer to defend. If Rockwell loses, he acknowledged, it will be harder to defend more general testing, such as tests for HIV and genetic markers.

"The farther you get from a highly likely injury caused by a specific job, the harder it will be to defend under the ADA," Dichter said. "Where the line ultimately will be drawn hasn't been determined yet."

Phelan believes the EEOC will win this case, partly because the agency has a good track record. "They've been very selective," he said. "They chose the best cases and the cutting-edge issues, and the cases they picked have done well at trial."

If Phelan is right, Chambliss could find himself working at the plant, with retroactive seniority to 1992. He could collect the difference between what he would have made at Rockwell, including benefits, and what he has been making at his $6.40-an-hour job as a security guard.

EEOC attorney Diane Smason said some plaintiffs, such as Chambliss, found other jobs, but mostly at lower pay and without medical insurance and other benefits.

(Source: Chicago Tribune, Nation/World Section, December 2, 1998.)

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REGIONAL NEWS

DISABLED PARKING PERMIT CHARGES

A federal judge has ruled that charging disabled Connecticut residents for dashboard placards allowing them to park in spots reserved for disabled drivers amounts to discrimination.

The ruling could mean that the state will have to pay back about $1 million to more than 100,000 people who bought the placards during the past seven years.

"I'm thrilled," said Michelle Duprey, a Farmington lawyer who filed a class action lawsuit against the state Department of Motor Vehicles two years ago. She says the fee violates the 1992 federal Americans with Disabilities Act prohibiting public entities from imposing surcharges on disabled residents in order to comply with ADA requirements.

"Fighting individual bias is one thing, but you don't expect the state to subject you to the same type of discrimination," said Duprey, who has a genetic disability that has impeded her growth and causes brittle bones.

Connecticut Attorney General Richard Blumenthal said he is thinking about appealing the decision, which was issued this week as a summary judgment by U.S. District Judge Gerard L. Goettel in Waterbury.

Meanwhile, the state will continue charging for the permits, said William Seymour, spokesman for the motor vehicles department. In battling the placard fee, Duprey and her attorney, Gary Phelan of New Haven, teamed up with a group of lawyers who have filed more than 15 similar class action complaints across the nation.

One of the lawyers, Robert G. Fegers of Winter Haven, Fla., said the Connecticut case is the fifth to have been decided. All rulings have favored the plaintiff.

Fegers said, "Most states charge for placards, and many for identification cards that are required for getting placards."

Alan N. Ponanski of the Connecticut attorney general's office, argued that the fee, which the state uses to cover the cost of the placard program, is not discriminatory because other residents - including those not covered by the ADA - also are eligible for the special permits.

Judge Goettel said that while the DMV can charge those not protected by ADA for the placard, "it cannot impose a surcharge on those...individuals with disabilities under the ADA."

(Source: Associated Press, 11/21/98, The Boston Globe.)

BUILD BOSTON WRAP-UP

Founding Director Elaine Ostroff and Board member Michele Abadia visit Adaptive Environment’s Universal Design Display at Build Boston 1998. Adaptive Environments and the New England ADA & Accessible IT Center once again participated at Build Boston by conducting workshops, distributing materials, and offering continuing education credits on universal design principles, as well as the ADA.

STATE MENTAL ILLNESS PARITY LAWS

The term "parity" or "mental health parity" refers generally to insurance coverage for mental health services that is subject to the same benefits and restrictions as coverage for other health services.

"Comprehensive" parity legislation eliminates the use of different annual and lifetime dollar limits, inpatient day and outpatient visit limits, deductibles, co-payments, and out-of-pocket maximums in mental health compared to general health benefits. A total of 15 states now have some degree of mental health parity, with bills pending in many other state legislatures. Five New England states have mental health parity laws. Here’s a brief synopsis of those laws:

• Connecticut, enacted 1997. Provides for coverage of schizophrenia, schizoaffective disorder, major depressive disorder, bipolar disorder, paranoia and other psychotic disorder, obsessive-compulsive disorder, panic disorder, and pervasive developmental disorder and autism that is equal to coverage provided for medical or surgical conditions.

• Maine, enacted 1995. Provides for coverage of schizophrenia, bipolar disorder, pervasive developmental disorder, or autism, paranoia, panic disorder, obsessive-compulsive disorder, and major depressive disorder in group contracts that is no less extensive than medical treatment for physical illnesses; no substance abuse; excludes groups of 20 or fewer employees.

• Maine, enacted 1993. Raised minimum benefits to $100,000 lifetime, 60 days annual inpatient, $2,000 outpatient. Other terms same as 1995 measure.

• New Hampshire, enacted 1994. Provides for coverage of schizophrenia, schizoaffective disorder, bipolar disorder, paranoia, and other psychotic disorders, obsessive-compulsive disorder, panic disorder, and pervasive developmental disorder or autism no less extensive than coverage for physical illnesses; applies only to groups and HMOs regardless of size.

• Rhode Island, enacted 1994. Provides for coverage of "serious mental illness" that current medical science affirms is caused by a biological disorder of the brain and substantially limits life activities.

• Vermont, enacted 1997. Coverage for any condition or disorder involving mental illness or alcohol or substance abuse; comprehensive coverage for deductibles and out-of-pocket expenses.

(Source: National Institute of Mental Health, http://www.nimh.nih.gov/)

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PUBLICATIONS

Material Available from the New England ADA & Accessible IT Center:

• EEOC Guidance on Psychiatric Disabilities - $2

• EEOC Interim Guidance on Health Insurance - $1

• Accommodation Ideas for Persons with Psychiatric Disabilities - $1

• Reasonable Accommodations and Specific Disabilities: Psychiatric Disabilities

• Opening Public Agency Doors: Title II of the ADA and People with Mental Illnesses

• ADAAG Manual: A Guide to the Americans with Disabilities Act Accessibility Guidelines - $10
  New from the US Access Board, 143 pages clarifies the complexities of the ADAAG, lots of helpful drawings.

These publications are available from our Center by calling 800-949-4232 V/TTY.

Material Available from PERF Publications:
100 Newfield Street
Edison NJ 08837
(888) 202-4563
(732) 225-1562 FAX
(202) 466-2670 TTY

• The Police Response to People with Mental Illness - $5.50

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FREQUENTLY ASKED QUESTIONS

Q: As an employer, how do I know if someone really has a psychiatric disability?

A: Because there is still stigma associated with mental illness, many people would not choose to acknowledge a mental illness unless they really needed to do so. However, if you are unsure whether the person has a disability that is covered under the ADA, employers have a right to ask for documentation of the disability, the nature of the functional limitations caused by the disability that might interfere with job performance and accommodations that may address those limitations. This type of documentation can be provided by a medical doctor, clinical psychologist, or other licensed professional such as a licensed social worker, licensed mental health counselor or certified rehabilitation counselor. You are not allowed to ask for records, history of the illness, treatment or other types of personal information that are not relevant to the work situation.

Q: I have heard that a person can use "plain English" to tell me that they have a disability. What kinds of words can someone use to disclose a psychiatric disability?

A: The EEOC guidance on the ADA and people with psychiatric disability states that an applicant or employee can use "plain English" to notify an employer about a disabling condition in requesting reasonable accommodations. What this means is that there are no magic words that the person must use.

Some of the examples given in the guidance suggest that someone may say that they are "depressed and stressed" and need time off from work to deal with it. Other examples might include:

-- "I have had emotional problems that I have been treated for, and may need time off for medical appointments."

-- "I have a medical condition that requires breaks every 2 hours."

-- "I have a chemical imbalance that periodically affects my energy levels. Every year or so, my doctor has to adjust the chemicals in my system in the hospital for about 2 weeks."

Q: What do I say to coworkers who want to know why an employee is getting special treatment?

A: It is illegal to share confidential information about an employee’s disability, medical condition or accommodation (indicating a disability) without the permission of the employee, with the exception of those who need to know on a business necessity basis.

This means that only the person providing or approving the accommodations, those in charge of safety and risk procedures, or those responsible for Equal Opportunity or Affirmative Action need to know. All information about disability and accommodations must be kept separate from personnel files.

Coworkers who question why one employee gets to come in later or has cubicle walls installed are not entitled to know that these are accommodations or are due to a disabling condition. Employers can respond to such comments by stating that they are following employment laws or that they try to support all employees in doing their jobs, leaving the opportunity open to discuss that employee’s needs at a later time.

Q: May an employer discipline an individual with a disability for violating a workplace conduct standard if the misconduct resulted from a disability?

A: Yes, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. For example, nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.

While legally employers must provide reasonable accommodations to qualified employees, employers are not expected to change the standards of performance, or the essential functions of the job itself, with the exception of modifying or eliminating marginal, or nonessential functions of the job. Typical procedures for taking disciplinary actions with employees who are not performing the essential functions of the job can be followed.

(Source: Center for Psychiatric Rehabilitation, http://www.bu.edu/sarpsych/reasaccom.html)

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GREAT WEB SITES

The National Institute of Mental Health (NIMH)
http://www.nimh.nih.gov/
The National Institute of Mental Health (NIMH), is part of the National Institutes of Health (NIH), the principal biomedical and behavioral research agency of the U.S. Government. NIMH is dedicated to improving the mental health of the American people; fostering better understanding of effective diagnosis, treatment, and rehabilitation of mental and brain disorders; and supporting research on interventions to prevent mental illness or to reduce the frequency of recurrent episodes of mental illnesses and their disabling consequences.

Judge David L. Bazelon Center for Mental Health Law
http://bazelon.org/welcome.html
Judge David L. Bazelon Center for Mental Health Law is a nonprofit legal advocacy organization. Bazelon Center attorneys provide technical support for and co-counsel selected lawsuits with private lawyers, legal services programs, ACLU chapters and state protection and advocacy systems. Center is active in national policy coalitions working to preserve and expand programs that assure children and adults with mental disabilities of choice and dignity. Center publishes handbooks, manuals, issue papers and reports explaining key legal and policy issues in everyday terms.

National Alliance for the Mentally Ill
http://www.nami.org/
National Alliance for the Mentally Ill, NAMI's efforts focus on support to persons with serious brain disorders and to their families; advocacy for nondiscriminatory and equitable federal, state, and private-sector policies; research into the causes, symptoms and treatments for brain disorders; and education to eliminate the pervasive stigma surrounding severe mental illness.

MadNation
http://www.madnation.org/
MadNation is an independent organization that values networking and collaboration within the activist community. Information about legislative updates, political action, writings, links, and FAQs.

National Mental Health Association
http://www.nmha.org/
National Mental Health Association: NMHA’s vision is to create a just, healthy, and humane society in which all people are free to achieve their full potential. NMHA has had a federal policy focus for many years, and recently has been working on advocacy at the state and local levels.

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BUILDING YOUR ROLODEX

National Empowerment Center
20 Ballard Rd.
Lawrence, MA 01843
(508) 685-1518
(800) POWER2U or 769-3728
http://www.concentric.net/~power2u

Consumer-run technical assistance center supplying information on consumer/ex-patient/survivor issues and local self-help groups.

National Mental Health Consumers' Self-Help Clearinghouse
1211 Chestnut Street, Suite 1000
Philadelphia, PA 19107
(215) 735-6082
(800) 553-4539
http://libertynet.org/~mha/cl_house.html

Consumer-run technical assistance organization offering information on the ADA, conflict resolution and consumer issues.

Knowledge Exchange Network
P.O. Box 42490
Washington, DC 20015
(800) 789-2647 (voice)
(301) 443-9006 (TDD)
ken@mentalhealth.org (Email)
http://www.mentalhealth.org

KEN provides extensive articles, books, and videos on mental health issues.

Center for Psychiatric Rehabilitation
Boston University
930 Commonwealth Avenue
Boston Massachusetts 02215
617-353-3549 Voice
617-353-7700 FAX
http://www.bu.edu/sarpsych/reasaccom.html

Employer and educator based information about reasonable accommodations for people who have psychiatric disabilities.

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EVENTS/ANNOUNCEMENTS

Adaptive Environments 20^th Anniversary Celebration
Saturday, April 10^th, 1999
Computer Museum, Congress Street, Boston
Presentations, Seminar, Reception
Contact: (617) 695-1225

Northern New England Building Trades Symposium
Feb. 25 - 28, 1999
Newport, New Hampshire
Several workshops and exhibits on the ADA
Contact: Brad Lane at (603) 543-1883
hbgl@cyberportal.net

Anxiety and the Millenium: A View from the Past to the Future
19th National Conference
March 25-28, 1999
San Diego, CA
Sponsored by Anxiety Disorders Association of America
Contact: 301-388-0100

Mental Health Month
May 1999
Sponsored by National Mental Health Association
Contact: 800-969-NMHA

American Psychiatric Association Annual Meeting
May 15-20, 1999
Washington, DC
Sponsored by American Psychiatric Association
Contact: 202-682-6193

Designing for the 21^st Century
Second International Conference on Universal Design
June 14-18, 2000
Providence Convention Center, Providence, RI
Sponsored by Adaptive Environments
More Details Forthcoming

Next Issue: Look for the spring issue of Access New England highlighting Children.

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