Better access to airlines and buses spelled out, but Congress fails to act on HMOs, work incentives or personal attendants.

Gradually, the regulations to implement our nation's laws that protect and assist people with disabilities are being finalized by federal departments and agencies, and these laws are being affirmed by our courts.

Unfortunately, politics as usual frustrates the workings of Congress. Since my last update on developments in the federal government relating to people with disabilities (Quest, Vol. 4, no. 5), both the judicial and executive branches have taken steps forward, while Congress -- seemingly obsessed with the Bill Clinton-Monica Lewinsky sex scandal -- recessed in October without acting on several important bills.

JUDICIAL RULINGS

Over the summer, the U.S. Supreme Court made two very favorable decisions strengthening the Americans With Disabilities Act (ADA).

In Pennsylvania Dept. of Corrections v. Yeskey, 118 S.Ct. 1952 (U.S. Pa. 1998), a Pennsylvania prisoner, Yeskey, sued because he was refused admission, as a result of his hypertension, to a boot camp, the successful completion of which would have reduced his sentence. The ADA states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."

Pennsylvania officials argued that the ADA doesn't apply to prisons and prison services in part because these "benefits" and "programs, services or activities" aren't provided voluntarily. The court disagreed and in a unanimous decision held that the boot camp was a program of a state prison, which is a public entity covered under Title II of the ADA.

In Bragdon v. Abbott, 118 S.Ct. 2196 (U.S. Me. 1998), Sidney Abbott went to dentist Randon Bragdon to have a cavity filled. Because Abbott had an asymptomatic HIV infection, Bragdon, concerned for his own safety, refused to treat her in his office, instead offering to do the procedure in a hospital.

Abbott filed suit under Title III of the ADA, which prohibits discrimination against anyone on the basis of disability in the "enjoyment of...services," such as those provided by a dentist in his office, unless provision of these services "poses a direct threat to the health and safety of others."

The court found that an HIV infection, even without symptoms, meets the ADA's definition of a disability because it substantially limits the major life activity of reproduction. The court also held that the determination of the "direct threat" to the dentist must be based on medical or other objective evidence, and not simply on a good-faith belief that a significant risk exists.

While these rulings may have little direct application to most Quest readers, they're significant for all people with disabilities in that the Supreme Court rejected narrow interpretations of language in the ADA that defines who is protected and what government programs are covered under the law.

EXECUTIVE ACTIONS

The executive branch of government has also been busy. President Clinton, by Executive Order 13078, established the National Task Force on Employment of Adults with Disabilities to make recommendations to promote employment. The Task Force is made up of several Cabinet secretaries and senior executive branch officials. Their report is due in mid-2002.

The Department of Transportation (DOT) established final procedures under the Air Carrier Access Act for providing people with disabilities with seating accommodations on airlines.

These rules require that air carriers reserve a seat with a moveable aisle armrest for passengers who can't maneuver around fixed armrests. Airplanes must have narrow aisle wheelchairs to transfer passengers to their seats. Passengers with disabilities may reserve the seat next to them for their personal assistants. The rules also require carriers to provide bulkhead seats to passengers with service animals or immobilized legs. Where there are no advance seat assignments, passengers with disabilities are allowed to pre-board the airplane to select seats.

Passengers also have responsibilities under these regulations. If they fail to reserve a seat at least 24 hours before the flight's departure, or to check in to confirm their seating accommodations at least one hour before departure, the carrier isn't required to relocate another passenger to accommodate the disabled passenger's needs.

In bus travel, the DOT and the Architectural and Transportation Barriers Compliance Board issued final regulations under the ADA for the accessibility of large over-the-road buses like those used by Greyhound Lines. Beginning in October 2000, buses purchased or leased by large fixed-route providers must be accessible. Small fixed-route providers must comply with the same requirement beginning in October 2001, or provide equivalent service to passengers with disabilities in a vehicle (it may be a van) that permits them to ride in their own wheelchairs or mobility aids.

Large fixed-route operators must ensure that 50 percent of their buses are accessible by October 2006. They aren't required to make 100 percent of the buses accessible until October 2012.

Small operators aren't required to make their fleets fully accessible. However, until its fleet is 100 percent accessible, a fixed-route operator must provide 48-hour advance reservation service, beginning in October 2001 for large operators and a year later for small operators.

Charter and tour bus operators need not make their fleets accessible. However, by October 2001 for large entities and October 2002 for small entities, they must provide an accessible bus to any passenger who requests it 48 hours in advance.

Operators who fail to provide the required service must compensate passengers. The amount of compensation increases with each failure to provide transportation -- up to $700 per incident.

Disability advocates failed to get a requirement for accessible lavatories on buses. However, when a bus makes a rest stop, passengers with disabilities are entitled to assistance getting off and back on the bus. When a bus equipped with an inaccessible restroom makes a lengthy express run (three hours or more without a stop), a passenger with a disability may request an unscheduled rest stop. The bus operator must make a good-faith effort to accommodate this request, though it has the discretion to refuse to do so if the stop would disrupt schedules and connections.

Beginning in October 1999, the nation's largest over-the-road company, Greyhound Lines, and its connecting partners, when given two days' notice, will provide buses with wheelchair lifts at their 4,000 stops. Greyhound officials estimated that up to 1,200 riders a month may benefit. Passengers giving less than 48 hours' notice will be accommodated wherever possible. If an accessible bus isn't available, airline-style boarding chairs will be used.

Finally, ending a lot of controversy about whether there should be a statue of President Franklin Roosevelt in his wheelchair at the Roosevelt Memorial in Washington, Vice President Al Gore announced that such a statue will be added.

LEGISLATIVE ENACTMENTS

This year, Congress enacted a few bills designed to improve the lives of people with disabilities, but it also left a lot of work unfinished. The positive legislation passed includes:

• An increase of $1.9 billion or 14 percent in medical research funding for the National Institutes of Health. This includes money for research into genetic medicine.
  
  
• Passage of the Workforce Investment Partnership Act with the Rehabilitation Act Amendments Act of 1998 (Public Law 105-220). The amendments reauthorize funding for programs under the Rehabilitation Act of 1973, with the goal of making them more user-friendly and consumer-driven. They also streamline and improve the provision of vocational rehabilitation services by promoting self-employment as an option for people with disabilities and assuring that all those eligible will receive at least basic services. The bill links the federally funded vocational rehabilitation system to the states' new training systems under the Workforce Investment Partnership Act.
  
  
• Passage of the Assistive Technology Act of 1998 (S. 2432). This new law supports programs of grants to states to address the assistive technology needs of people with disabilities.

Focused on talk of presidential impeachment, Congress failed to act to protect the rights of those with private managed health care insurance policies. Guaranteed access to specialists and to emergency care, and the right to appeal the denial of care to an independent panel, were all protections in proposed bills before Congress. The Patients' Bill of Rights Act of 1998 would have included the extra protection of making it easier for consumers to sue their HMOs for damages resulting from the improper denial of care.

None of this legislation passed. Many of these bills will be reintroduced in the next Congress.

Meanwhile, in 28 states, HMOs are ending or cutting back Medicare services to the elderly and disabled, claiming it isn't profitable. This could affect over 400,000 people, forcing them to find other HMO coverage or to go onto the traditional Medicare program. The Medicare HMO program covers 5.9 million of the 39 million Americans enrolled in Medicare. This alternative to traditional Medicare provides additional coverage for prescriptions, doctors' visits and other services. The cutbacks make questionable the future of the Medicare HMO program.

As of late October, several other beneficial pieces of legislation had failed to pass. These bills include:

• The Work Incentives Improvement Act of 1998 (S. 1858), which would have encouraged people with disabilities to find employment by extending health coverage under Medicare through a buy-in when earnings exceed 250 percent of the federal poverty level, and by allowing states to let Medicaid recipients keep their assistance services and medications.
  
  
• The Medicaid Community Attendant Services Act (MCASA) (H.R. 2020), which would have provided for Medicaid coverage of qualified attendant care services for people in their homes or in community-based settings such as schools, workplaces and recreation or religious facilities.
  
  
• The Family Caregiver Enumeration Act of 1997 (H.R. 2018/S. 1206), which would have required the census bureau to gather information on family caregivers in the census of 2000. Family caregivers provide two-thirds of all home care services in this country, and counting them during the census would be an important step toward forming policies to support and recognize their contributions.

Bill Altaffer, a Tucson attorney and member of MDA's National Task Force on Public Awareness, writes frequently on governmental issues. More information about the bills can be found at Congress's Web site, thomas.loc.gov. To read executive regulations in detail, go to the Federal Register's Web site, www.access.gpo.gov/su_docs/aces/aces140.html.