Americans with Disabilities Act Amended

President Bush signed the ADA Amendments Act (the "ADA-AA") of 2008 into law today. The new law will be effective on January 1, 2009. This law was Congress' fix in response to a recent Supreme Court case which construed the terms "disability" and "significantly limits a major life activity" in a way that have drastically limited the group of Americans that truly can benefit from the ADA.

The ADA-AA significantly changes court interpretations of the ADA as follows:

• It explicitly removing the Supreme Court's requirement that mitigating measures (like taking medication) be considered when evaluating whether an individual has a disability within the meaning of the ADA;

• It included language in the findings and purposes section to clarify that the courts' previous interpretations of the term "substantially limits" [in the phrase "substantially limits a major life activity"] was wrong;

• It defines the phrase "major life activity" to include "operation of a major bodily function" such as the neurological, circulatory, and reproductive systems, though other bodily functions may also be included as well;

• It clarified that a physical or mental limitation that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

• It ordered the courts to interpret the ADA liberally, not restrictively;
  

• It aligned the definition of "disability" under other federal laws, such as the federal Rehabilitation Act, which covers federal, state, and local government employees, to the ADA-AA. However, it did not include ERISA plans - employee benefit plans that offer disability benefits - or insurance policies in this new definition, so ERISA plan sponsors are still free to define disability however they like (so you must read an employer's disability plan or an insurance policy to see what conditions are needed to get paid disability benefits.
  

It will be interesting to see what impact this new law will have on the meanings of these terms in other disability contexts. It will also be interesting to see if the Long Term Disability insurance carriers and ERISA plan administrators change their attitude toward work accommodations, as many have long said that a disability that could be accommodated under the ADA meant that a person could work, despite language in disability insurance plans and policies that seem to say exactly the opposite.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved.

DISABILITY TIP OF THE WEEK: Surveillance

"Surveillance" is video taken of you in secret when you do not expect it.

Most insurance companies hire private investigators to perform surveillance on their Long Term Disability claimants. They will film you, and often use the footage they obtain to prove that you are capable of more than you claim on the various forms they require you to complete. This is particularly common on the days surrounding an examination they have scheduled for you with one of their doctors (the so-called "independent medical exam").

Most investigators will spend a period of two to three days obtaining video footage of you around your home and running errands. They will not be filming inside your home, but will find an inconspicuous place near your home from which to film. They may also interview your neighbors for additional information.

Some things to keep in mind:

• If you and/or your doctor say that you cannot bend at the waist, the investigator will attempt to get footage of you bending over to do something simple like check your mailbox.

• If you and/or your doctor say that you cannot lift over 10 pounds, they will try to get footage of you lifting heavy groceries.

• If you and/or your doctor say that you cannot sit for more than 20 minutes, the investigator will try to get footage of you driving for long periods.

If you do something out of the ordinary, like take a long road trip, be sure to stop frequently, keep receipts from those stops, and document the trip and any physical consequences you experience as a result (for example, increased back pain, etc.). Be sure to tell those around you of any of the extra pain or other consequences you experience so that they can attest to it later. Do not "gut it out" just to save time or avoid being a bother to others you are traveling with.

If your insurance company gets surveillance footage that it considers incriminating, they will often send a field representative to your house to interview you. They will ask about your daily activities in hopes that you will use absolutes like, "I NEVER drive long distances," or "I CANNOT bend over." They will record your responses on a computer (not necessarily in your own words), print it out, and ask you to sign the record. Once they have your written statement, they will use that to question your credibility (if they have video footage of you driving long distances or bending, etc.). If your insurance company sends someone to interview you, be sure to avoid absolutes like those stated above. If you have an attorney, do not speak to the field representative without your attorney present. Do not sign any statement if it does not accurately represent the whole truth. Do not be afraid to tell the field representative to change anything on the written statement that you do not agree with.

REMEMBER: The insurance company can request surveillance of you at any time throughout your claim. Just because you have been approved does not mean that they will not try to obtain evidence that you are not disabled.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved.