Obamacare and the disability community

Samuel Bagenstos is one of the nation’s leading experts on disability law. I caught up with him in late May for a conversation about the Americans with Disabilities Act, Medicaid, and health care reform. Below is an edited transcript of our wide-ranging conversation.

Harold Pollack: Thanks so much for joining me on Curbside Consult. We should start by you saying a little about yourself and your own background.

Sam: I teach at the University of Michigan law school, where I have been for about four years. I spent a couple of years technically on the faculty but spending time in D.C. working in the civil rights division of the Justice Department. Among other things, I supervised the enforcement of the Americans with Disabilities Act (ADA) by the Civil Rights division. Throughout my academic career, I’ve spent a lot of time working on civil rights issues as well as non-civil-rights issues.

Harold: What kinds of cases did you spend most of your time on in that work?

Sam: I’ve worked on all kinds of things. One of the things you find out about disability rights law is it really affects everything that happens in America, everything that government agencies do, everything that private entities do. The earliest cases I’ve worked on, back in the early ’90s, were cases about what ADA should cover. Among other things, I worked on a case called Abbott v. Bragdon about whether a dentist could refuse to treat a patient with HIV. I spent a lot of time working on cases involving physical accessibilities of businesses, movie theaters, sports arenas, so that people with disabilities can do everything in their day-to-day lives that everybody else can do.

In my most recent time in government, I spent a lot of time working on the intersection between the ADA and the Medicaid system to guarantee that people with disabilities can get services in their homes to enable them to fully access their communities instead of having to be institutionalized.

The triumphs and limitations of the Americans with Disabilities Act

Harold: It seems to me that the ADA is one of the real quiet triumphs of American social policy, or maybe not so quiet. It’s not an unknown thing, but the depth of social change that ADA accelerated and exemplified is amazing. What are some ways that ADA has changed American life for the better that people maybe don’t notice but that has become part of the fabric?

Sam: The ADA turned 23 this summer. The biggest change is our physical spaces are much more accessible than they used to. That is a quiet thing in a lot of ways, because the ADA results in changes in architectural standards that all new and all renovated buildings have to comply with. Pretty much that just happens as a matter of course. There has been some litigation about it, of course.

The law has changed the norms of the architectural profession. So you see in America many more people who have lots of different kinds of disabilities out in the world doing things that everybody else does. It’s really striking when you compare the United States to other countries. When I have students with disabilities, who come from other countries knowing the problems we are still finding in America, they find the United States is Nirvana in terms of accessibility. That’s the quiet success that we’re having.

Harold: It’s striking when you go to the great social democracies of Europe that have, in any number of ways, more generous welfare states. If you’re moving around in a wheelchair in Paris, London, or any of those capitals, you will really have a hard time.

Now, you have also talked about some of the shortcomings of the ADA. Some of that gets into the health policy that my listeners may be more familiar with. What are some of the ways the ADA has fallen short of what was hoped for, or was the wrong tool to deal with some of the issues people with disabilities are facing?

Sam: The biggest limitation has been with employment. There has been a lot of controversy over the effects of the ADA on the [low employment rate] of people with disabilities. It was true in the ’90s when the economy was good. That has really been true with the recession of the last few years, when you saw people with disabilities falling out of the workforce at a much higher rate than people without disabilities. That’s something that the ADA has not really succeeded in addressing.

Harold: Let me ask you about an argument that economists have made: ADA basically makes it easier for me to sue if you fire me because I’m disabled. It makes my employer liable to make certain accommodations that might be a little costly, or maybe more than a little bit costly, to accommodate my needs as a disabled employee. It’s really hard to monitor discrimination at the hiring end. So employers are responding by being more reluctant to hire people with certain disabilities. Do you think there’s some merit in that argument?

Sam: In the first couple of years after the ADA was enacted, my read of the evidence is there was something to that – for at least a class of individuals with disabilities. People with disabilities are a very broad group of people, with different kinds of limitations. Many of those limitations have nothing to do with their ability to work, so you really have to distinguish people who need workplace accommodations from people who are just the victims of stereotyping, and that sort of discrimination. At least among the class of people who are likely to need accommodations, in the first couple of years of the ADA’s implementation, it does seem like there was a negative employment effect.

There were also other things going on. There was, pre-existing the ADA, a long downward trend in the employment of people with disabilities. Studies that have extended out the trend line show that there’s not really that much difference overall in the trend line from the ADA. The ADA hasn’t been a great success in moving people into employment, but we’re not really seeing the dis-employment effects of the ADA that some economists are.

A lot of this has to do with the Social Security Disability Insurance program, when it was expanded in the ’80s, and then how that cashed out in the ’90s recession.

Harold: There’s one other argument that you made about employment. There’s a wonderful article that you wrote in the Yale Law Journal on the future of disability law. It was a fascinating discussion of what ADA can and can’t do, and some of the basic choices we face.

You noted one paradox in the law: Employers are required to do things that help me on my job. Yet employers are not required to do things that would help me on any job, and just help me be more self-sufficient in my life.

If I need something in my workplace to help me move around, that’s one thing. If I need a motor scooter that allows me to get anywhere, to get out of my front door and get transportation to my workplace, that’s not my employer’s responsibility. It’s not anybody’s responsibility to help me in this more general way.

Sam: That is the biggest reason why I see the ADA as not improving the employment picture for people with disabilities. The ADA – as far as employment goes – is another anti-discrimination law. Anti-discrimination laws, at least in the U.S. legal system, are about prohibiting actions that are basically faulty actions by employers. Actions we’re going to hold employers responsible for.

The way the statute’s been interpreted, since the beginning of the ADA, has been that employers are responsible to accommodate employees on the job. Employers don’t have a responsibility for what gets you to the job, or what helps you throughout your life.

If you talk to folks with disabilities, many of them will say: “The ADA is great. If I could get to the front door of the employer to apply for a job, and get discriminated against, the ADA would help me. My problem is I don’t have the transportation, or the personal assistance services, or the other services necessary to get me to that workplace.”

Harold: It shows the fundamental limitation of helping people by trying to find someone who’s done something actionably bad against that person … as opposed to enacting broader social insurance. How can we help each other with the things that we need to be successful in life, even if no one particular person has the responsibility, or the blame, for the challenges a person faces?

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