From: Julie Dawson 
Subject: Equality of Opportunity -- HISTORY.TXT  (fwd)
accommodation.  Although this provision fell mainly under the
jurisdiction of the Judiciary Committee, and was ultimately
settled there, Hoyer and Bartlett began discussions about  site-
specific  factors.  They suggested that in determining whether an
accommodation was  reasonable  a court should consider the
financial resources of the local facility as well as those of the
entire covered entity.  Thus, a local K-Mart in financial
difficulty would not be evaluated only according to the resources
of the entire K-Mart corporation.  Hoyer and Bartlett also
clarified that an em ployer s obligation to provide a reasonable
accommodation was always limited by the standard of  undue
hardship  (see Appendix F): there would be no loopholes. 
     The meetings with Congressman Steny Hoyer were  the most
productive and satisfying legislative negotiations that I had
ever been involved with. 
          Congressman Steve BartlettCongressmen Hoyer and
Bartlett addressed another persistent concern of employers by
adding tougher language for drug and alcohol abuse.  They agreed
that past drug users who had completed, or were actively engaged
in, drug rehabilitation treatment were protected under the ADA. 
They also decided that covered enti ties should be free to
administer drug tests and exclude individuals who used drugs and
had not sought treatment. 
     Congressmen Hoyer and Bartlett also worked to help minimize
the potential for excessive litigation.  They added language
requiring that all complaints filed under the ADA or Sections 503
and 504 of the Rehabilitation Act must be coordinated so that
only one case could be brought against the covered entity; a
claimant could not file two claims under two different statutes. 
They also developed a procedure whereby the attorney general
could certify state or local building codes that met ADA
accessibility standards, which would be a defense against
discrimination charges.  In cases where the attorney general
exercised authority to pursue monetary damages for aggrieved
persons, the two congressmen proposed to exclude punitive
damages.  They also suggested that when courts considered
assessing civil penalties, they must consider the  good faith 
efforts of the covered entity. Finally, Congressmen Bartlett and
Hoyer incorporated into the bill requirements that executive
agencies prepare technical assistance manuals to be disseminated
to those with rights and responsi bilities under the ADA.
     These changes were brought before, and approved by, members
of the Committee on Education and Labor at the mark-up sessions
on November 9 and 16.  Eight additional amendments came up for
consideration.  Among other things, these amendments would have:
 linked the determination of reasonableness for accommodations
and modifications exclusively to the resources of a local
facility; 
 reduced the penalties the attorney general could assess; 
 substituted  significant risk  for  direct threat  as the
standard according to which persons with contagious diseases
could be discriminated against; 
 capped the amount a business had to spend on  readily
achievable  modifications to 5 percent of a company s profits; 
 delayed implementation until regulations were completed; and, 
 limited nondiscrimination protection for association with
someone who had AIDS to one s family members. 
     Except for the package of amendments introduced by
Congressmen Hoyer and Bartlett, all amendments introduced at the
committee mark-up were voted down, predominantly along party
lines.  The Democratic position was a  no  vote on all amendments
besides the Hoyer-Bartlett package.  In the final vote, the
committee voted unanimously, 35 to 0, to report H.R. 2273 to the
House, as amended by the committee.  Despite the contested
amendments, this was another strong endorsement of the ADA, and
gave the bill a boost similar to that given by the Senate vote. 
Tough battles lay ahead.  But the Hoyer-Bartlett compromises
positioned the ADA for future success, and Hoyer and Bartlett
would continue to play central roles in the negotiations of other
committees.
phase ii: energy and commerce & public works and transportation
committees
     Although the Committee on Education and Labor reached a
significant compromise that drew the support of many members, it
accomplished little with respect to transportation and
telecommuni cations provisions.  These responsibilities fell to
two committees: Energy and Commerce, and Public Works and
Transportation.  Their deliberations constituted the second phase
of the House process of committee review. 
     From the beginning of the ADA campaign, advocates worried
most about the transportation provisions.  Transit authorities
had historically posed vigorous challenges to accessibility for
persons with disabilities.  When the Department of Transportation
issued its original Section 504 regulations, APTA responded with
a lawsuit and won.  The court ruled that requiring lifts on every
bus went beyond the purview of Section 504 and left it up to
transit authorities to decide whether to have accessible buses,
provide paratransit service, or use a mixture.  As a result of
this so-called  local option,  transportation operators
throughout the country provided widely varying levels of
accessible transportation.  Cities such as New York and Seattle
had achieved nearly 100 percent accessible buses, while Chicago
had virtually none.  Railroad systems had other problems. 
Accessibility standards for Amtrak, for example, had been in
effect for nearly two decades; the regulations simply were not
being enforced.  By proposing fully accessible public
transportation vehicles, the ADA would thus face resistance from
such powerful lobbying groups as the ABA, Greyhound, Amtrak, and
APTA.
     Working the transportation provisions of the ADA through the
committee was also challenging because the scope was so broad. 
The ADA covered all public transportation by both public and
private entities, with the exception of air travel, which had
been addressed in the Air Carriers Access Act.  This included:
fixed route systems (including buses, light and rapid  rail ),
paratransit service  (which applied only to public entities),
demand responsive systems, intercity rail,  commuter rail, 
over-the-road buses (which applied only to private entities),
and transportation facilities.  To avoid presenting executive
agencies with any ambiguity, the transportation committees
prepared extraordi narily detailed provisions.  Given the memory
of the regulatory nightmare of Section 504, where lack of detail
in the statute resulted in intense conflict over the regulations,
many people in the disability community welcomed the specificity
promoted by the transportation committees.  Although the two
transportation committees upheld the basic principles of the
Senate bill, they made the most changes  nearly tripling the
amount of space dedicated to transportation provisions.
     The two committees operated simultaneously, but the Energy
and Commerce Committee was the first to complete its review.  It
held its hearings on September 27 and 28, 1989 and met for mark-
up six months later on March 13, 1990, at which time it reported
the ADA, as amended, to the House.  The ADA s fate in the
transportation committees was largely a function of
personalities. Working with the Energy and Commerce Committee was
difficult for the disability community. Chairman Dingell was
notorious for jealously guarding his committee s jurisdiction,
and he was one of Amtrak s greatest advocates.  Over the course
of the 1980s, funding for Amtrak had plummeted, and Dingell was
reluctant to impose any new demands on the struggling public
service.  This made for a much different dynamic than the other
three House committees, where Democrats generally sided with
disability advocates to prevent any  weakening  amendments.  In
this case, Democrats tended to side with the public rail company
and were thus more skeptical of the ADA s objectives. The
principal staff person for the Energy and Commerce Committee was
Alan Roth.  By the end of the process he became a hero of sorts
for the disability community, but in the beginning Roth posed a
great challenge.  He thought things had happened too quickly in
the Senate, where there was little expert review of
transportation provisions, and he wanted to conduct a thorough
review of the bill s provisions within his committee s
jurisdiction.  This had the effect of extending the deliberative
process. 
     Unlike the Education and Labor Committee, and its open
negotiations, the Energy and Commerce Committee began its
consideration privately, without consulting the disability commu
nity.  The relationship between disability advocates and the
committee was not improved when Pat Wright and Ralph Neas worked
with Michigan constituents to apply pressure on the Chairman. It
was not until the committee circulated a draft of its own version
of the bill, which invited a 30-page rebuttal from the outraged
disability community, that Congressman Hoyer could persuade the
committee to work with him in developing a bill that the
disability community could support.
     Although the Energy and Commerce Committee could introduce
amendments that affected the entire bill, its jurisdiction over
the ADA centered on two main components: telecommunications and
railroads.  Telecommunications provisions were the least
controversial of the ADA s four main titles.  Karen Peltz-Strauss
and Sy Dubow were the principal attorneys from the deaf community
who worked with congressional staff.  The National Association of
the Deaf (NAD), Telecommunications for the Deaf, Inc., and
Self-Help for the Hard of Hearing (SHHH) were active in
demonstrating broad support for changes in the nation s
telecommunications system.  Peltz-Strauss described Congress man
Edward J. Markey (D-MA), Chairman of the Subcommittee on
Telecommunications and Finance, as the deaf community s  chief
advocate  in the House.  He was  very interested in expanding
telecommunications access for people with disabilities.   This
made for  smooth and harmonious  deliberations, as Congressman
Bob Whittaker (R-KS) later described them.   There was striking
cooperation among industry, commerce, and Congress,  said
Peltz-Strauss, which produced provisions  that met the needs of
people who were deaf and hard of hearing.   
     Historically, three of the main telecommunications issues
for the deaf and hard of hearing were hearing-aid compatibility,
teletype devices, and television decoding.  During the 1980s, the
deaf community succeeded in passing legislation that required
employers to provide hearing-aid compati ble telephones, which
were equipped to transmit electromagnetic signals to certain
hearing aids.  In 1988, the Hearing Aid Compatibility (HAC) Act
expanded this requirement such that nearly all telephones
manufactured or imported into the country had to be compatible. 
The issue the ADA addressed most directly were teletype (TTY)
devices, often called a Telecommunication Device for the Deaf
(TDD).  Under the original bill introduced to the House and
Senate, the ADA required states to establish telecommunications
relay services that would allow people to communicate, through an
operator, with people who did not have TTY devices.  During House
deliberations, the basic requirement was affirmed, though the
implementation date was extended from two to three years.  The
most significant change was the removal of the  undue burden 
limit on the mandate to provide relay service.  The committee
also addressed the issue of closed captioning for televisions.
Earlier legislation required public television to broadcast with
closed captioning.  During the House deliberations, Congressman
Markey s subcommittee stipulated that all public service
announcements partly- or fully-funded by the Federal Government
must be produced with closed captioned text.
     The perpetuation of prejudice and discrimination against
persons with mental disorders in a vehicle designed to end
discrimination is sadly ironic. 
    American Psychological AssociationThe Subcommittee on
Telecommunications and Finance was the first of all House
subcommittees to complete its action, on Octo ber 12, 1989. 
Subsequently, the Energy and Commerce Committee devoted several
months to deliberating transportation provisions.  The committee
held the preponderance of jurisdiction over railroads and had
absolute jurisdiction over Amtrak.  It began its deliberations
with the Senate bill, which required that all new rail cars had
to be accessible, and mandated that at least one car per train
had to be accessible within five years. Since Amtrak was
standardized throughout the nation, the committee could be
extraordinarily detailed about what accessibility meant for
Amtrak.  For example, the committee delineated distinc tions
between single- and bi-level cars.  It also designed separate
provisions for sleeping, dining, and passenger cars.  For Amtrak,
the Energy and Commerce Committee even developed a formula to
determine precisely how many spaces had to be available for
persons using wheelchairs, including space to store wheelchairs. 
Perhaps the most important decision coming out of this committee,
however, was that it sustained the Senate s one-car-per-train
rule and the stipulation that all new cars had to be accessible. 
This was significant because the Public Works and Transportation
Committee shared partial jurisdiction over railroads, and
wrestled with whether all cars had to be accessible.
     We in the House felt an obligation to . . . fine tune  the
ADA  in a way the transit authorities could embrace  the act  and
make it work. 
          Roger Slagle   Although negotiating over transportation
provisions was difficult, the most controversial and intense
negotiations in the Energy and Commerce Committee had nothing to
do with structural transportation accessibility.  Members of the
Energy and Commerce Committee were concerned that the ADA s
protection of persons who were mentally ill could result in
uncontrollable train distur bances, where train operators would
be unable to ask meddlesome riders to leave.  Consequently, their
initial draft of the ADA excluded persons who were mentally ill
from the definition of disabil ity.  This caused an uproar in the
disability commu nity.   Persons with mental disabilities, among
all the disabled, have suffered the greatest stigmatiza tion and
resulting discrimination,  said the Ameri can Psychological
Association.   The perpetuation of prejudice and discrimination
against persons with mental disorders in a vehicle designed to
end discrimination is sadly ironic.   
     The committee ultimately removed the exclusion, but the
issue came back up at mark-up. Congressman William E. Dannemeyer
(R-CA) proposed an amendment that would have supple mented the
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