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JOURNAL OF
DISABILITY
POLICY
STUDIES
VOLUME 5
NUMBER 1
1994
The Journal of Disability Policy Studies is published by the Department of
Rehabilitation Education and Research, University of Arkansas, Fayetteville.
GENERAL EDITOR
Michelle Fine, City University of
Kay Fletcher Schriner, University of
New York
Arkansas, Fayetteville
William Johnson, Arizona State
ASSOCIATE EDITORS
University
Andrew Batavia, National Council on
Richard Scotch, University of Texas at
Disability
Dallas
Edward Berkowitz, George Washington
Tom Seekins, University of Montana
University
EDITORIAL BOARD
M. Anne Hill, Queens College
Sheila H. Akabas, Columbia University
Martha Hodgesmith, Kansas Association of
Kathryn H. Anderson, Vanderbilt University
Rehabilitation Facilities
William A. Anthony, Boston University
Marilyn Johnson, Northern Arizona University
Adrienne Asch, The New Jersey Bioethics
Reginald L. Jones, University of California,
Commission
Berkeley
Monroe Berkowitz, Rutgers University
William E. Kiernan, The Children's Hospital, Boston
Douglas Biklen, Syracuse University
Corinne Kirchner, American Foundation for the
Frank Bowe, Hofstra University
Blind
David Braddock, University of Illinois at Chicago
James Lambrinos, Union College
Richard Burkhauser, The Maxwell School,
Anita Leal, California State University
Syracuse University
Paul Leung, University of Illinois-
Paul Castellani, New York State Office of Mental
Urbana/Champaign
Retardation and Developmental Disabilities
Sar Levitan, George Washington University
Frederick C. Collignon, University of California,
David Mank, University of Oregon
Berkeley
Michael C. Morgan, Morgan and Associates, Salt
Daniel Cook, University of Arkansas, Fayetteville
Lake City, UT
Gerben DeJong, National Rehabilitation Hospital
Nancy R. Mudrick, Syracuse University
William G. Emener, University of South Florida
John Noble, Public Citizen Health Research Group,
Stephen B. Fawcett, University of Kansas
Washington, DC
Daniel Ferritor, University of Arkansas, Fayetteville
Margaret Nosek, Baylor College of Medicine
Carol Fowler, University of Iowa
Sylvia Walker, Howard University
Gelya Frank, University of Southern California
Douglas Watson, University of Arkansas,
Lex Frieden, Baylor College of Medicine
Fayetteville
Marcus J. Fuhrer, Baylor College of Medicine
Sara D. Watson, Berkeley Planning Associates
Robert J. Funk, Washington, DC
Paul Wehman, Virginia Commonwealth University
Rochelle Habeck, Michigan State University
Jane West, Jane West and Associates, Bethesda, MD
Harlan Hahn, University of Southern California
John D. Worrall, Rutgers University
Cheryl Hanley-Maxwell, University of Wisconsin-
Tennyson Wright, University of South Florida
Madison
Edward Yelin, University of California, San
Susan Brody Hasazi, University of Vermont
Francisco
Tamar Heller, University of Illinois at Chicago
Irving K. Zola, Brandeis University
Subscription rates are $14.00 (individual), $22.00 (institutional).
Foreign subscribers please add $5.00 for postage and handling.
To enter a subscription, send check or purchase order to:
Journal of Disability Policy Studies
Department of Rehabilitation Education and Research
University of Arkansas
346 N. West Avenue
Fayetteville, AR 72701
(501)-575-3656
FAX (501) 575-3253
All other correspondence should be addressed to the Editor (address on inside back cover).
The Journal of Disability Policy Studies is available on tape.
Send change of address notice and recent mailing label to The University of Arkansas
Press thirty (30) days prior to actual change of address. The Journal will not replace
undelivered copies resulting from address changes; journals will be forwarded only if
the subscriber notifies the local post office in writing and guarantees second-class
forwarding postage.
Back issues will be available at $13.00 per copy six (6) weeks after publication.
(Foreign customers please add $2.00 postage per copy.)
© Copyright 1994 by the University of Arkansas Board of Trustees
JOURNAL OF DISABILITY POLICY STUDIES
1994
Volume 5
Number 1
Contents
WINNER OF THE SECOND ANNUAL BATAVIA WRITING
COMPETITION ON DISABILITY POLICY
Applying Theory to Practice:
A Prospective and Prescriptive Analysis of the
Implementation of the Americans With Disabilities Act
1
Sara D. Watson
ARTICLES
The Economic Consequences of Disability:
A Comparison of German and American People
With Disabilities
25
Richard V. Burkhauser and Mary C. Daly
Privatizing Vocational Rehabilitation:
Options for Increasing Individual Choice and
Enhancing Competition
53
Carolyn L. Weaver
Multiattribute Evaluation of Program Alternatives
Within Special Education
77
Darrell R. Lewis, David R. Johnson, Ronald N. Erickson,
and Robert H. Bruininks
BOOK REVIEWS
Paul C. Higgins's Making Disability:
Exploring the Social Transformation of Human Variation
113
Lawrence O. Gostin's Implementing the
Americans With Disabilities Act
123
Applying Theory
to Practice
A Prospective and Prescriptive Analysis
of the Implementation of the
Americans With Disabilities Act
Sara D. Watson
Center for the Study of Social Policy
JOURNAL OF DISABILITY POLICY STUDIES
Volume 5
Number 1
1994
1
2 JOURNAL OF DISABILITY POLICY STUDIES
EDITOR'S NOTE
Sara D. Watson is the winner of the second annual Batavia Writing
Competition on Disability Policy. The Journal of Disability Policy Studies
is pleased to publish her prize-winning article, "Applying theory to prac-
tice: A prospective and prescriptive analysis of the implementation of
the Americans With Disabilities Act."
ABSTRACT
Current implementation research, including that on disability
policy, is largely retrospective and descriptive, examining experiences
after implementation is largely complete in order to identify relevant vari-
ables that help explain implementation outcomes. This article seeks to use
theoretical implementation research in a different way, one that is prospec-
tive and prescriptive, that will improve its usefulness for public adminis-
trators. It seeks to use this method of analysis to examine the prospects
for implementation of the Americans With Disabilities Act (ADA). Based
on theoretical implementation research and on comparisons with the
implementation of other pieces of legislation, this article makes predic-
tions about the future implementation of the ADA and develops recom-
mendations to prevent potential problems. It then discusses the need to
refocus implementation research to improve its relevance to practitioners.
Over the past 20 years, a wealth of theoretical models has evolved to
analyze and explain the difficulty or ease of implementing public poli-
cies. Early articles in this genre used single case studies to argue that
implementation was indeed a worthy area of study, distinct from policy
formulation (Derthick, 1972; Pressman & Wildavsky, 1973). Subsequent
models proceeded from this basis to identify specific variables that would
affect or predict successful implementation (Van Meter & Van Horn, 1975;
Montjoy & O'Toole, 1979; Mazmanian & Sabatier, 1983). The latest gen-
eration of implementation research seeks not to add more variables, but
to begin to synthesize them and determine which ones are important in dif-
ferent circumstances (Matland, 1991).
The vast majority of the hundreds of implementation studies that have
been conducted and published, including those on disability policy, share
ANALYSIS OF THE IMPLEMENTATION OF THE ADA
3
a common perspective and purpose. The studies are largely retrospective,
rather than prospective, examining well-established implementation pro-
grams from a distance of several years or even decades. They are also
descriptive, rather than prescriptive, explaining why outcomes occurred
but rarely making recommendations for specific programs.
One of the most recent and creative books on implementation research
introduces a "third generation" of research that tests, rather than only gen-
erates, hypotheses (Goggin, Bowman, Lester, & O'Toole, 1990). How-
ever, while the research is prescriptive rather than descriptive, it is still
retrospective rather than prospective-the works the authors cite were
published as much as 13 years after the project being examined began
(pp. 171-191). Kelman (1984) uses implementation research both pros-
pectively and prescriptively, but he designs a plan for a hypothetical pro-
gram which has never been enacted.
Partly because of this descriptive and retrospective nature of traditional
implementation research, there is little evidence that policymakers use
any of the published research to influence their decisions and improve
actual implementation (O'Toole, 1986, pp. 190-205). Kelman (1984, p.
77) notes,
Much of the dissatisfaction with the contribution of imple-
mentation research, in my view, arises from the fact that the
results of that research have been insufficiently used to address
specific implementation problems. Most existing research
involves retrospective case studies that seek to explain why
something has not worked. Research of that sort does not meet
the original promise to help policy analysts or public managers
with particular situations. The literature is virtually devoid of
cases in which existing generalizations have been used, pros-
pectively and prescriptively, to develop an implementation
plan.
Finally, O'Toole's most sweeping comment is: "There is no reason to
assume that policy actors do, can or should make decisions about public
policy primarily on the basis of research findings" (1986, p. 203). Rather
than use this comment to call for change, he goes on to explain why this
situation is acceptable (e.g., policymakers have other resources at their
disposal and SO do not need to use research).
Consistent with Goggin and Kelman, this paper supports efforts to con-
tribute to raising the level of respect for published research whose purpose
is not only to create this body of knowledge but also to apply it to emerg-
ing programs and thereby test and refine it. This means research that is
prospective, rather than retrospective, as well as prescriptive, rather than
4
JOURNAL OF DISABILITY POLICY STUDIES
descriptive. This is not to say that such research should dominate the lit-
erature; only that it should have a place of respect in the published liter-
ature alongside theoretical work. Publishing such research provides much
wider dissemination of information to policymakers, is more accessible
to future researchers, and gives policymakers access to assistance when
they may not have the time or resources to hire consultants. 1
Within this context, this article seeks not to create a new model of
implementation theory, or to add more items to the 300 variables that
O'Toole (1986) listed as already having been identified by researchers as
affecting implementation. Rather, it seeks to use existing research to
analyze the expected implementation problems of a new law and to recom-
mend actions to preempt them.
While there have been few studies explicitly examining the imple-
mentation of federal disability policy (e.g., Berkowitz, 1984; Percy, 1989),
mainstream research on public policy implementation has largely ignored
lessons from disability legislation. Even a 1984 book on implementation
of civil rights policy did not mention disability rights legislation such as
the Education for All Handicapped Children Act of 1975 or the Rehabili-
tation Act of 1973 (Bullock & Lamb, 1984). However, the enactment of
the Americans With Disabilities Act (ADA) of 1990 (P.L. 101-336; 104
§ 327) provides an opportunity to use implementation research to exam-
ine a complex and wide-ranging implementation challenge in the disability
field and to use early experiences in a major area of disability policy to
contribute to this aspired change in the literature on implementation.
The ADAprohibits discrimination on the basis of disability in the areas
of employment, public services, public accommodations, transportation,
and public communications. To narrow the scope of my argument, this
article will focus on the successful implementation of Title I (employ-
ment), with occasional references to the other sections. However, the same
method could, of course, be used on any section. To vastly oversimplify
the bill's requirements, Title I of the bill now prohibits discrimination on
the basis of disability in all facets of employment for firms of 15 or more
employees. Employers are required to make "reasonable accommoda-
tions" for employees or prospective employees unless to do SO. would be
an "undue hardship" (Burgdorf, 1991b).
The ADA has been hailed as the most significant civil rights bill ever
conceived for people with disabilities and as the broadest civil rights bill
in the United States for the past 25 years (Burgdorf, 1991a). However, it
is such a broad bill that its implementation issues are similar to those in a
ANALYSIS OF THE IMPLEMENTATION OF THE ADA
5
variety of laws, including civil rights and also consumer and environ-
mental legislation. For example, the level of change in behavior required
of employers is similar to that required by the Civil Rights Act of 1964.
Both require employers to disregard what in some cases was (and is)
deeply ingrained behavior and to behave differently toward a group
against whom they had discriminated with impunity. The ADA shares with
both civil rights and consumer legislation the need to inform millions of
people of their newly established rights and to secure those rights against
generally better-funded opponents. Because the bill requires reasonable
accommodation for people with disabilities in employment settings, devel-
opments in technology and their impacts on the bill's implementation are
reminiscent of environmental legislation rather than traditional civil rights
legislation. The implementation of nondisability civil rights legislation
does not depend upon, and will not change significantly even with, mas-
sive advances in technology. However, standards for complying with both
the ADA and environmental legislation will change based on the level of
technology available. In both cases, new technology can make require-
ments that had seemed infeasible now eminently reasonable. For example,
cheaper pollution screening devices can make a lower emissions level
easier to achieve. Cheaper computer devices can make some accommo-
dations "reasonable" that would previously have been too expensive.
This early point in ADA's implementation history is the ideal time to
apply existing scholarship to make predictions regarding areas of relative
difficulty and to prescribe the actions that policymakers can take. to
improve implementation and to decrease the chances that the bill would
be ignored (e.g., acts of discrimination are not prosecuted or otherwise
stopped) or that the perceived costs of prohibiting discrimination become
SO high that the public demand that the bill be weakened. This cost could
take many forms; for example, accommodations that are claimed to be SO
expensive that they threaten a firm's viability, or restrictions on medical
exams that are perceived to interfere with public safety.
I first explore features of the bill and its environment that existing
research predicts will affect implementation. Within this discussion, I
describe innovative initiatives already being taken at the federal level to
promote successful implementation and point out areas of potential imple-
mentation problems. I make recommendations to preempt some of these
problems and finally discuss how a new format for implementation
research, building on the themes here, could encourage policymakers to
use the literature in their work.
6 JOURNAL OF DISABILITY POLICY STUDIES
Variables Affecting Implementation
One of the models for assessing implementation that fits ADA well is
that of Mazmanian and Sabatier (1983). To organize this section, I will
use their three major categories: "Tractability of the Problem," "Ability
of Statute to Structure Implementation," and "Nonstatutory Variables
Affecting Implementation." However, the discussion within each section
will vary somewhat; in particular, it will incorporate some of the
refinements Mazmanian and Sabatier have made on their pioneering
model (Sabatier, 1986). The ADA is strongly affected by both top-down
and bottom-up factors, both of which will be discussed in this context.
Tractability of the Problem
Sabatier and Mazmanian start their assessment of implementation by
examining the nature and scope of the problem the legislation was
designed to address. To organize this discussion, I first establish the prob-
lem the ADA was designed to address. Second, I examine the actions nec-
essary to accomplish this goal.
Determining the problem ADA implementation is designed to address.
If the ADA's only goal were to prohibit discrimination, implementation
would be easier to achieve and to evaluate. However, even though advo-
cates now emphasize that the ADA is not a panacea, and must be accom-
panied by other supports, such as health care reform, more is expected of
it than this single goal. At the 1992 meeting of the Association for Public
Policy Analysis and Management, a plenary session on the status of lower-
income people in the 1990s featured two eminent scholars, Christopher
Jencks and Ronald Mincy, discussing the relative importance of equal
economic opportunity and social respect as policy outcomes. While these
scholars focused on the status of minorities and women, the same is true
of people with disabilities. Their problems encompass not only the well-
defined economic issues of equal employment opportunities and equal
access to transportation, housing, and public facilities, but also the more
amorphous issues of societal integration and respect.
Ultimately, proponents of ADA hope it will not only end discrimina-
tion but also promote parity with nondisabled persons in terms of employ-
ment wages and rates, and access and integration into mainstream society
(Worklife, 1990). As the experience with laws prohibiting discrimination
against minorities and women shows, these ends are far more difficult to
ANALYSIS OF THE IMPLEMENTATION OF THE ADA
7
measure and to accomplish. Several economists have noted that if the
only goal were improved employment rates, for example, perhaps a bet-
ter alternative would be to provide tax incentives to encourage employ-
ers to hire people with disabilities, or to help people with disabilities
overcome the hurdle of leaving public benefit programs (Burkhauser,
1990). However, disability advocates chose to design a civil rights bill,
rather than an entitlement or public benefits bill, for specific reasons.
Inevitably, the ADA will be evaluated not only on the more limited goal
of prohibiting discrimination but also on how it contributed to the broader
goal of achieving economic parity with nondisabled persons and com-
plete integration into the community.
Alleviating the problem. Eliminating discrimination on the basis of dis-
ability involves two steps: People must change their behavior SO that they
no longer take discriminatory actions, and they must make reasonable
accommodations. The level of behavior change required has both depth
and breadth. On the face of it, one would expect this aspect of the law to
be ADA's greatest challenge. However, closer inspection suggests that
this part will become easier over time.
Ending discrimination against people with disabilities means pro-
scribing deeply rooted and long-held fears about people with disabilities.
Even without these fears, unthinking discrimination is ubiquitous, from
too-tall deli counters to public address systems with no visual alternative.
However, as the population continues to age and as medical science
advances, more people will know someone with a disability or become a
member of that group themselves. Furthermore, as professional schools
(of architecture, public policy, etc.) and organizations educate their stu-
dents and members, more people will be aware of their obligation to con-
sider the needs of people with disabilities. We can therefore expect that
this familiarity will help in inducing people to be aware of the need for,
and make, these accommodations. For this reason, this part of the imple-
mentation process will become easier.
Regarding the size of the target group, according to Sabatier and
Mazmanian's earlier research, "In general, the smaller and more definable
(capable of being isolated) the target group whose behavior needs to be
changed, the more likely the mobilization of political support in favor of
the program and thus the more probable the achievement of statutory objec-
tives." However, Sabatier (1986) later revised this statement to acknowl-
edge that this effect often has a curvilinear shape: Efforts that are too small
often go unnoticed. The ADA may well fit this second model. The ADA is
8
JOURNAL OF DISABILITY POLICY STUDIES
one of the few laws that requires an active behavior change of a significant
percentage of the American population. The sheer size of this effort,
coupled with other implementation activities, may actually promote imple-
mentation. It is SO big it cannot be ignored. ADA's wide sweep has spawned
thousands of seminars, training manuals, speeches, articles, and sources
of technical assistance. Furthermore, the author's interviews with numer-
ous businesses suggest that it creates significant peer pressure as employ-
ers discuss compliance among themselves. Therefore, we can expect that
the size of behavior change required will actually promote not only wide-
spread implementation but also more successful implementation.
However, there is another side to this large effect. The definition of dis-
ability in the ADA includes a potentially vast number of people. Many of
those people do not fit the traditional image of disabled persons-people
who are wheelchair users, visually impaired, or hearing impaired. In fact,
under both the Rehabilitation Act of 1973 and the ADA, the largest cate-
gory of impairment by far was back impairment (usually not spinal cord
injury) (Mastroianni, 1993). This wide scope inevitably means that people
will use the ADA to make claims that the public and the media may judge
as frivolous or "undeserving." For example, the Equal Employment
Opportunity Commission (EEOC) recently found in favor of a hospital
worker who claimed discrimination after the hospital in which he worked
forced him to cover up a tattoo that said "HIV positive" (LRP Publications,
1993). While the hospital's act clearly was discriminatory; one could imag-
ine conservative critics deriding this application of the law. Thus, one
danger for the ADA is that the public will perceive the law as protecting
people with tenuous claims, rather than as protecting those who seem to
be true victims of damaging discrimination.
Implementation of the ADA's reasonable accommodations require-
ments will be affected by technological advances in ways that parallel
those in environmental legislation. For example, while most people with
disabilities require only inexpensive accommodations (Collignon, 1986),
some people do require, and some companies will be required to provide,
expensive accommodations. But, because the technology of accommo-
dations is not static, what was unreasonable this year may be much
cheaper (e.g., voice synthesizers) and or prevalent (e.g., working from
home), and therefore reasonable, in the future. Companies requesting more
specific answers as to what accommodations can be expected of them
must rely on cases that are either negotiated or tried in court. A company
may be able to examine previous cases and determine what level of expen-
diture was considered reasonable for a firm with comparable characteris-
tics and then to apply that level to its own situation. However, review of
ANALYSIS OF THE IMPLEMENTATION OF THE ADA
9
settled cases cannot indicate what specific intervention will be considered
reasonable. This situation is not meant as a criticism of the bill but simply
to point out that it is an aspect that will require ongoing attention. In sum,
the tractability of the problem is a significant but not insurmountable chal-
lenge for ADA implementation.
Ability of Statute to Structure Implementation
The Rehabilitation Act of 1973, which prohibited discrimination by the
federal government and federal contractors and grantees on the basis of
disability, was the closest predecessor to the ADA. Partly because law-
makers did not recognize the significance of the language, the relevant
sections of the bill violated virtually every implementation recommenda-
tion in the literature. The sections included very terse language, had no
explanations of what constituted discrimination, were buried among other
provisions, and included no technical assistance provisions. As a result,
development of regulations and implementation of the law were protracted
and only partly successful. Learning from that experience, disability advo-
cates were well aware of the need to incorporate implementation mea-
sures into the ADA.
The ADA specifically creates an implementation plan that responds to
the factors raised in the section above. To clarify the problems ADA was
designed to address, the bill spells out objectives in detail. To effect behav-
ioral change, it directs comprehensive technical assistance. These factors
are explored below.
Objectives. In contrast to the Rehabilitation Act, the ADA, through leg-
islative language, regulation, and technical assistance manuals, spells out
its objectives in great detail. There are long lists to define discrimination
(Sec. 102), disability (Sec. 3), reasonable accommodations (Sec. 109),
etc. There are specific timetables for publication of regulations and com-
pliance (e.g., Sec. 106, 108). The terms which are not strictly defined-
there is no single criterion to define "reasonable"-were deliberately left
flexible to allow employers and employees to work out solutions together.
One part of the ADA language may indeed impede implementation,
however. The ADA prohibits pre-offer medical exams and disability-
related inquiries. In cases where the public would perceive that these med-
ical exams protect the public safety, there may be a clash between public
perception of reasonable precautions and the requirements of the ADA.
For example, the EEOC is now wrestling with the law's implications for
the ability to ask police officers, physicians receiving recertification, and
10 JOURNAL OF DISABILITY POLICY STUDIES
other professionals if they have a history of drug abuse or mental illness
(Mastroianni, 1993). If the public perceives that EEOC's ultimate guid-
ance on this issue ignores public safety concerns, it may undermine sup-
port for the vigorous enforcement of at least this portion of the ADA.
The carrot: Technical assistance. The ADA specifically directs rele-
vant agencies to undertake technical assistance efforts (Sec. 504, 506). As
mentioned earlier, many implementation efforts are already underway;
for example, the relevant agencies have already published and distributed
regulations and their own technical assistance materials. Early in 1992, the
EEOC, which is responsible for Title I, sent out mailings to several mil-
lion small business owners using lists from the IRS; in one month (April
1992) EEOC distributed 144,000 technical assistance materials (National
Council on Disability, 1992).
These and other agencies distributed grants to various organizations to
undertake technical assistance. The National Institute on Disability and
Rehabilitation Research (NIDRR) has funded 10 regional disability and
business accommodation centers whose job is to help businesses and indi-
viduals understand and comply with the law. Many of these grants went
to coalitions that included business organizations opposed to the ADA.
While some disability groups bitterly opposed awarding grants to busi-
nesses that had actively opposed the ADA, including them in outreach
efforts to their peers did (and does) help ensure the relevance of the mate-
rials and effective distribution.2
EEOC and the Department of Justice have also funded an innovative
program to train disability activists around the country to serve as media-
tors and community education specialists in their areas. The trainees are
obligated to conduct ADA training for 50 persons with disabilities or par-
ents of children with disabilities and for 30 businesspeople. They must
also approach businesses that are not in compliance with Title III and help
those businesses become accessible. The innovation and significance of
this program (as yet unchronicled by implementation researchers) can be
illustrated by comparing it to the Environmental Protection Agency hiring
Greenpeace activists to serve as mediators for citizen groups petitioning
companies to comply with the Clean Air Act. These mediators do not have
an official role in the dispute resolution process, but it is significant that
disability activists-not local officials, professional consultants, or busi-
ness people-are the only ones who can claim any even semisanctioned
training in ADA dispute resolution. This indicates a government commit-
ment to street-level implementation guided by program beneficiaries.
These programs are funded for a limited time, and a key measure in