Counsel's Corner

Americans with Disabilities Act of 1990 Amended to Define “Disability” More Broadly - Effective January 1, 2009

Mental Health Parity Act Also Finally Becomes Law

By Steven Bruce, Managing Attorney

Since the Americans with Disabilities Act (ADA) was enacted into law in 1990 (effective 1991), the Supreme Court has ruled constrictively in determining under what circumstances a person can be found disabled in employment (Title I), with regard to state and other government entities (Title II), and with respect to public accommodations which covers the private sector (Title III). On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (Amendments). The Amendments generally overrule the U.S. Supreme Court interpretation regarding the following parts of the ADA:

1. The term “disability” is defined as a physical or mental impairment that substantially limits one or more major life activities of an individual who has a record of having an impairment; or,

2. The individual is regarded as having an impairment.

“Major life activities” now are specifically defined to include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. These additions may affect coverage of individuals with some types of learning disabilities or mental impairments whereas, previously, they were often not covered under the ADA.

It is important to note that the Amendments require that there be a broad interpretation of the definition of disability unlike previously, when the U.S Supreme Court stated in the case of Toyota v. Williams, 534 U.S. 184 (2002), that “…an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives….” As before, the individual must still prove that he or she is substantially limited in one or more of the major life activities to qualify for protection under the ADA.

Many basic requirements of the ADA remain unchanged. For example, with respect to employment, a “disabled” individual must still be able to perform the essential job functions.

Congress also revised the effect of mitigating circumstances, such as taking medication, by stating that this shall not disqualify people from being found “disabled” under the ADA except in specific circumstances such as ordinary eye glasses or contact lenses (which are further specified in the Amendments). This language overruled the U. S. Supreme Court case of Sutton v. United Airlines, 527 U.S. 421 (1999), which stated that, if a physical or mental impairment is corrected by medication or other measures so that an individual no longer has a “substantially limited” major life activity, then he/she is not disabled. The Sutton case was the beginning of a series of cases in which the U.S. Supreme Court, over the last 18 years, restricted the number of people who could qualify as being found disabled under the ADA.

The Amendments now specifically state that impairments which are episodic or in remission would lead to a finding of disability so long as these episodic impairments would be substantially limiting while they are active. However, in these cases, the Amendments do not require that a covered entity, such as employers, provide reasonable accommodations or modify their policies and practices if this is the only reason that someone is found “disabled.”

Additional provisions of the new Amendments state that a transitory impairment is defined as one “with an actual or expected duration of 6 months or less” and is not covered under the ADA. An impairment may only limit one life activity (including one that is in remission or episodic) to qualify as a disability. Other definitions of reasonable accommodations are explicitly stated and include auxiliary aids and services: Qualified interpreters, hearing devices, qualified readers or other methods of reading, modifications of equipment, etc.

Finally, the Amendments specifically state that there can be no claim of “reverse discrimination,” which means that nondisabled individuals cannot claim discrimination because they were treated less favorably. For instance, if a protected individual receives, as a reasonable accommodation, a quiet office in lieu of working in a cubicle, a fellow employee cannot claim discrimination based on his or her not being disabled.

These Amendments are known as Public Law 110-325 (September 25, 2008) and will be available at 42 U.S.C. § 12101. It may be cited as the “ADA Amendments Act of 2008.”

The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 - Effective January 1, 2009[1]

After 12 years of lobbying to achieve equal treatment between mental health and physical health, the Paul Wellstone and Pete Domenici Mental Health and Addiction Parity Act is now law. The new law – modifying the Employee Retirement Income Security Act of 1974, the Public Health Service Act of 1946, the Internal Revenue Code of 1986, and the Social Security Act of 1935 – bans differences in coverage such as copayments, deductibles, and treatment limits. It further requires the addition of “substance-related disorder benefits” wherever mental health benefits are covered by statute.

In the past, it has been legal under federal law for health plans and insurance carriers to set lower annual and lifetime spending limits for mental health limits. Since the law did not mention substance-related disorder benefits before, it was also legal for health insurance carriers to deny any coverage for treatment of substance dependence or other related disorders. Once this Act goes into effect for each covered entity, which are plans covering 51 or more employees, these disparities will no longer be lawful; however, if the plan did not already offer mental health benefits, this Act does not require that such benefits be provided. If a health plan can prove that a substantial rise in costs (hardship) would occur as a result of implementing this Act, it may also opt out.

Due to employers’ concern for higher costs, the Government Accountability Office (GAO) has been charged to study how the implementation of these changes affect the cost of health insurance, access to insurance, quality of care, and effects on governmental programs such as Medicare and Medicaid (Medi-Cal in California). The Paul Wellstone and Pete Domenici Mental Health and Addiction Parity Act is known as Public Law 110-343 (October 3, 2008), and will be available at 29 U.S.C. § 1185a, 26 U.S.C. § 9812, and 42 U.S.C. §§ 300gg-5, 1396r-8(c), and 1395nn.

PWDF Profile

Who We Are

People With Disabilities Foundation is an operating
501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant's disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney's fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF's educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as training videos with an audience of Human Resource managers and Vocational Rehabilitation counselors.

Continuing Education Provider: State Bar of California MCLE, California Board of Behavioral Sciences Continuing Education, and Commission of Rehabilitation Counselor Certification.