Disability Rights Nation May 1-15

From Ragged Edge's D. R. Nation department May/June, 1999

Suicide--the real issue States can't be sued for violating ADA, says Judge Salesman with facial scar can't use ADA, says court In the Supreme Court this spring Work Incentives bill on fast track for Congressional passage From 1986 to 1995, the number of people getting disability benefits rose almost 70%, to 7.5 million. Today the figure's around 9 million--about half on SSDI and half on SSI. Not more than one out of every 500 SSDI beneficiaries leaves the rolls by returning to work. Only 8.2% of working-age SSI recipients had any earnings at all in 1996; of those that did, the average monthly income was only $344.00. These awful statistics highlight the need for the Work Incentives Improvement Act now moving rapidly through Congress. By the time you read this, it may already be law. The Act lets states set up buy-in programs to extend Medicaid coverage to SSDI and SSI beneficiaries who work. Activists working for passage see it as the necessary next move after passage of the ADA "that will effectively begin to open the door for people with significant disabilities to obtain and retain employment." If just one percent of those 7.5 million Americans become successfully employed as a result of the new law, savings in cash assistance would total $3.5 billion, says the World Institute on Disability's Deborah Kaplan. "We are beginning, with this bill, to find the fit between employment and the Social Security disability programs," she said. Introduced in March in the House, the Senate on March 25 adopted an amendment to the FY 2000 Budget Resolution that provided funds for the Act, removing major barriers to final enactment. Suicide--the real issue It is becoming increasingly clear that the issue driving the desire for assisted suicide is not so much fear of pain, as commonly reported, as fear of loss of control. In February, the New England Journal of Medicine published results of a study of the first year of legalized physician-assisted suicide in Oregon. People who sought suicide, it said, were concerned with "loss of autonomy or control of bodily functions--not with fear of intractable pain or concern about financial loss." In March, California state Assemblywoman Dion Aroner, (D-Berkeley) introduced Assembly Bill 1592, "The Death With Dignity Act," modeled on Oregon's law. She told reporters, "It's not just an issue of not getting pain control. The real issue is control.'' States' rights rides again States can't be sued for violating ADA, says judge States' rights arguments are becoming popular ways for states to try to wiggle out of obeying Title II of the Americans with Disabilities Act. A number of states, including Georgia in the Olmstead case, try to argue that the federal law simply can't be enforced. Judge Lawrence E. Kahn of the U. S. District Court for the Northern District of New York has ruled in several cases that New York State cannot be sued in federal court for discrimination under the ADA, insisting that the antidiscrimination provisions of the ADA go beyond the power granted to Congress. The cases are Constance v. SUNY Health Science Center (in Syracuse); Muller v. Costello and Kilcullen v. New York State Dept. of Transportation. In Kilcullen, the state claimed it was immune from suit under the Eleventh Amendment. The Eleventh Amendment grants states immunity from suit in federal court unless the state "consents to jurisdiction or Congress expressly abrogates the immunity pursuant to a valid exercise of legislative power."Although the ADA expressly says states are not immune from the law's provisions, Kahn says that's not a "valid exercise of power" on the part of Congress. And the Fourteenth Amendment's equal protection clause grants the right to be free only from state action that is "not rationally related to some legitimate governmental purpose," Kahn said. There was a legitimate purpose, he said--cost control: "Because a state has a legitimate interest in controlling costs�the decision not to accommodate is rationally related to the interest in cost efficiency," he wrote. Salesman with facial scar can't use ADA, says court A computer systems salesman who says he was fired because of a six-inch facial scar doesn't qualify as "disabled," so he can't use the ADA, said U.S. Court of Appeals for the Sixth Circuit in December. Bradley Van Sickle was not considered "disabled" under the ADA because he couldn't prove his supervisors regarded him as "substantially limited" in the major activity of working, said the court. A 1994 car accident left Van Sickle with a six-inch scar across his chin. He returned to work two weeks later, and during the year that followed, his supervisors made disparaging remarks, including referring to him as "Scar Face" on three occasions, he claimed. Van Sickle insisted his supervisor had said he thought the scar was hurting Van Sickle's ability to sell computers--but the court said this in itself was "not an indication that [supervisor Chris] Dulla himself thought the scar would inhibit Van Sickle's ability to obtain a job selling computers" but rather speculation about the scar's effect on customers. Back to table of contents