Letters

A Time of Adjustment for Disabilities Act

"Why the Disabilities Act Is Missing Its Mark," Jan. 16, frankly misses the mark. While the author may be knowledgeable about the Americans with Disabilities Act (ADA), his essay is filled with misconceptions regarding the federal income maintenance programs administered by the Social Security Administration - Social Security Disability Insurance Benefits (SSDI) and Supplemental Security Income (SSI).

He refers to these programs as "transition payments needed in the case of recoveries from severe accidents" and "pensioning off every person with a disability." Both propositions are false. The statutory definition of disability is written to preclude benefits for most persons recovering from severe accidents. The Social Security Act requires that, before any impairment can be considered under these programs, it must have lasted for 12 months, be expected to last for 12 months, or be expected to result in the death of the individual. Thus, except for a person whose condition is expected to be terminal within less than one year, SSDI and SSI benefits will be available only to those whose disabling condition is neither transitional nor temporary.

Compounding the statutory restrictions, most applicants will find themselves enmeshed in a notoriously lengthy system of administrative denials and appeals that will take two or more years before eligibility is determined, after a hearing before a federal administrative law judge.

In fiscal year 1995, fewer than half of all applicants for disability benefits were successful in persuading Social Security - or the courts - of their entitlement. This hardly equates to pensioning off every person with a disability.

Except for the Children's SSI Disability Program, most recipients of benefits under these programs are well into middle age and not well educated. Because regulations favor those without formal education, many recipients lack a high school diploma. By definition, SSI recipients lack sufficient work history to be insured for disability purposes, and unfortunately they often do not have the skills that would make them likely candidates for rehabilitation.

In recent years, restrictions in the programs have adversely affected children, persons with substance addictive disorders, and most recently, legal resident aliens. Does the author really believe that further destruction of the safety net for persons with disabilities will somehow aid them in achieving employment and self-sufficiency?

Let us not attack federal income maintenance programs for those who need them to survive. A more useful approach would be to consider ways to clarify and improve the work incentive provisions in the Social Security Act.

It was inevitable that there would be a period of significant litigation to define the parameters of the Americans with Disabilities Act. This goes with the territory of Congress legislating in a new area and compelling employers to behave in ways in which they have not behaved previously.

This is not to suggest that the act is a masterpiece of clarity. Like all statutes, it is the product of the legislative process, with all of its political compromises. If Congress reexamines the statute it may greatly restrict the rights, rather than enhance employment opportunities, of Americans with disabilities.

The better course of action is a wait-and-see approach. Let us give employers the opportunity to adjust to the act, learn that it is not so bad if they are required or encouraged to employ persons with disabilities, give the courts opportunities to flesh out the fine points of the law, and, only after that process has had several years to mature, consider what fine-tuning of the statute is really necessary.

I doubt very much that, within 2-1/2 years after the passage of the 1964 Civil Rights Act, women or black Americans found that they had full employment opportunities throughout the US. It is unrealistic to believe there would be a different result for persons with disabilities shortly after passage of the ADA. Given that reality, let us not further restrict the availability of SSDI and SSI benefits, and force even more people to become charity cases and homeless persons.

Robert E. Rains

Carlisle, Pa.

Professor of law

Dickinson School of Law

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