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ADA Bill Heads to President; Mental Health Benefits Gain Momentum

September 17, 2008
Just as the Senate did last week, the House approved by voice vote on Wednesday, September 17, a bill that would expand workplace protections for Americans with disabilities.

The legislation now heads to President Bush, who has said he will sign it. The fate of other measures that would affect employers is uncertain as Congress races to finish legislative business by September 26—the target date for adjournment this year.

At that point, members hope to return to their states to campaign full time for the November elections. Congress could be called back in November or December for a lame-duck session if it’s not able to complete its agenda.

A measure that would require insurers who provide mental health benefits to do so at a level on par with physical health benefits is gaining momentum after being included in a tax bill the Senate is likely to consider later this week.

The prospects for legislation that would foster nationwide adoption of health care information technology, however, dimmed when another House bill was added to the mix this week.

There may not be enough time left on the legislative calendar to reconcile a bill approved by the House Energy and Commerce Committee with one that the House Ways and Means Committee may consider next week. Then the House and Senate would have to agree on final legislation.

The disability measure clarifies that Congress meant for the Americans with Disabilities Act to be broadly interpreted. The original measure, which became law in the early 1990s, required employers to make accommodations for disabled employees.

The new bill, the ADA Amendments Act, addresses Supreme Court decisions that critics say restricted the law. The court ruled in several cases that mitigating measures—such as medication or prosthesis—make a person ineligible for coverage.

“Today, we join together to reassert that intent and reclaim the ADA’s promise,” said House Majority Leader Steny Hoyer, D-Maryland, in a statement after the House vote.

“By passing this bill, we have ensured that the definition of ‘disability’ will be construed fairly and broadly. And we have brought millions of our fellow citizens, who were previously shut out, back where they belong and back where we need them: under ADA’s protection.”

The bill defines a disability as a physical or mental impairment that “substantially limits” one or more major life activities. It increases the number of activities covered, adds bodily functions and many diseases, and allows workers to sue if they are “regarded as” disabled.

“It’s going to change the face of ADA litigation significantly,” said Victoria Zellers, a partner at Cozen O’Connor in Philadelphia. “Millions more Americans will meet the definition of disability under the statute. It’s going to cost employers more to comply with this version of the ADA.”

They’ll also find themselves in court more often. “There will be more ADA claims that make it to trial that won’t be dismissed at the summary judgment phase,” Zellers said.

Even though the bill may present compliance challenges for companies, the final compromise was the product of intense and lengthy negotiations between lobbies that usually oppose one another. 

“This bill represents a truly remarkable collaboration of disability, civil rights and employer groups that generated strong bicameral and bipartisan support in Congress,” said Jay Timmons, executive vice president of the National Association of Manufacturers, in a statement. “The bill strikes the right balance between protections for individuals with disabilities and the obligations and requirements of employers.”

A similar partnership between the business and health advocacy communities resulted in a mental health parity bill attached to a Senate tax measure that may get a vote later this week.

When and how the House would take up the bill is unclear. The House may pass all or part of the Senate tax bill, with the parity legislation included, or attach the parity measure to a bill that Congress must pass to fund government operations.

Final mental health parity legislation is near fruition after years of effort. The bill does not mandate that insurers offer mental health coverage. But if they do, it must be on par with physical coverage.

Under existing law, lifetime and annual benefits for mental health and medical surgical benefits must be equal. The new bill requires parity for deductibles, co-payments, out-of-pocket expenses, coinsurance, covered hospital days and covered outpatient visits.

Rep. Patrick Kennedy, D-Rhode Island and author of the original House bill, exhorted parity advocates to push the bill across the goal line at a rally Wednesday.

“That will only happen if all of you keep the pressure going strong,” he said.

Kennedy is leery of letting the issue slide into next year, when bills that haven’t been signed by the president must be reintroduced.

“It wasn’t put together overnight, and it can’t be reworked in the next Congress,” Kennedy told reporters. “Who knows what the environment will be.”

—Mark Schoeff Jr.

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