[nfbwatlk] Unintended Consequences and the ADA

[Mary Ellen]

I recently read a book entitled "Disabling America" which dealt with this
subject. Although the author definitely had an axe to grind, he made some of
the same points. When the ADA was being considered, we raised some of the
same questions. Would we be forced to accept accommodations we didn't want
or need? Would the law create resentment and actually make it more difficult
for us to get hired? Despite some of the good things which have resulted
from passage of the ADA, I would not be very enthusiastic about adopting
similar legislation here in Canada. 
-----Original Message-----
From: nfbwatlk-bounces at nfbnet.org [mailto:nfbwatlk-bounces at nfbnet.org] On
Behalf Of Nightingale, Noel
Sent: January 25, 2008 8:52 AM
To: nfbwatlk at nfbnet.org
Subject: [nfbwatlk] Unintended Consequences and the ADA



 
Thought this might be of interest  and generate some discussion on this list
. 
  


January 20, 2008 
Freakonomics 
Unintended Consequences 
By STEPHEN J. DUBNER and STEVEN D. LEVITT 
The Case of the Red-Cockaded Woodpecker 
One year from today, a new president moves into the White House. This
president will be eager to carry out any number of plans - including,
surely, plans to help the segments of society that most need help. Extending
a helping hand, after all, is one of the great privileges and
responsibilities of the presidency.

But before charging ahead with such plans, the new president might do well
to first ask him- or herself the following question: What do a deaf woman in
Los Angeles, a first-century Jewish sandal maker and a red-cockaded
woodpecker have in common? 

A few months ago, a prospective patient called the office of Andrew Brooks,
a top-ranked orthopedic surgeon in Los Angeles. She was having serious knee
trouble, and she was also deaf. She wanted to know if her deafness posed a
problem for Brooks. He had his assistant relay a
message: no, of course not; he could easily discuss her situation using knee
models, anatomical charts and written notes.

The woman later called again to say she would rather have a sign-language
interpreter. Fine, Brooks said, and asked his assistant to make the
arrangements. As it turned out, an interpreter would cost $120 an hour, with
a two-hour minimum, and the expense wasn't covered by insurance. Brooks
didn't think it made sense for him to pay. That would mean laying out $240
to conduct an exam for which the woman's insurance company would pay him $58
- a loss of more than $180 even before accounting for taxes and overhead.

So Brooks suggested to the patient that they make do without the
interpreter. That's when she told him that the Americans With Disabilities
Act (A.D.A.) allowed a patient to choose the mode of interpretation, at the
physician's expense. Brooks, flabbergasted, researched the law and found
that he was indeed obliged to do as the patient asked - unless, that is, he
wanted to invite a lawsuit that he would probably lose.

If he ultimately operated on the woman's knee, Brooks would be paid roughly
$1,200. But he would also then need to see her for eight follow-up visits,
presumably with the $240 interpreter each time. By the end of the patient's
treatment, Brooks would be solidly in the red.

He went ahead and examined the woman, paying the interpreter out of his
pocket. As it turned out, she didn't need surgery; her knee could be treated
through physical therapy. This was a fortunate outcome for everyone involved
- except, perhaps, for the physical therapist who would have to pay the
interpreter's bills.

Brooks told several colleagues and doctor friends about his deaf patient.
"They all said, 'If I ever get a call from someone like that, I'll never see
her,' " he says. This led him to wonder if the A.D.A. had a dark side. "It's
got to be widely pervasive and probably not talked about, because doctors
are just getting squeezed further and further. This kind of patient will end
up getting passed on and passed on, getting the runaround, not understanding
why she's not getting good care."

So does the A.D.A. in some cases hurt the very patients it is intended to
help? That's a hard question to answer with the available medical data. But
the economists Daron Acemoglu and Joshua Angrist once asked a similar
question: How did the A.D.A. affect employment among the disabled?

Their conclusion was rather startling and makes Andrew Brooks's hunch ring
true. Acemoglu and Angrist found that when the A.D.A. was enacted in 1992,
it led to a sharp drop in the employment of disabled workers. How could this
be? Employers, concerned that they wouldn't be able to discipline or fire
disabled workers who happened to be incompetent, apparently avoided hiring
them in the first place.

How long have such do-good laws been backfiring? Consider the ancient Jewish
laws concerning the sabbatical, or seventh year. As commanded in the Bible,
all Jewish-owned lands in Israel were to lie fallow every seventh year, with
the needy allowed to gather whatever food continued to grow. Even more
significant, all loans were to be forgiven in the sabbatical. The appeal of
such unilateral debt relief cannot be overestimated, since the penalties for
defaulting on a loan at the time were severe: a creditor could go so far as
to take a debtor or his children into bondage.

So for a poor Jewish sandal maker having trouble with his loan payments, the
sabbatical law was truly a godsend. If you were a creditor, however, you saw
things differently. Why should you lend the sandal maker money if he could
just tear up the loan in Year Seven? Creditors duly gamed the system, making
loans in the years right after a sabbatical, when they were confident they
would be repaid, but then pulling tight the purse strings in Years Five and
Six. The resulting credit drought was so damaging to poor people that it
fell to the great sage Hillel to fix things.

His solution, known as prosbul, allowed a lender to go to court and
pre-emptively declare that a specific loan would not be subject to
sabbatical debt relief, transferring the debt to the court itself and
thereby empowering it to collect the loan. This left the law technically
intact but allowed for lenders to once again make credit available to the
poor without taking on unwarranted risk for themselves.

The fallow-land portion of the sabbatical law, meanwhile, was upheld for
centuries, but it, too, finally gained a loophole, called heter mechira.
This allowed for a Jew to temporarily "sell" his land to a non-Jew and to
continue farming it during the sabbatical year and then "buy" it back
immediately afterward - a solution that helped the modern state of Israel
keep its agricultural economy humming.

The trouble is that many of the most observant Israeli Jews reject this
maneuver as a sleight of hand that violates the spirit of the law. Many of
these traditionalists are also extremely poor. And so this year, which
happens to be a sabbatical year, the poorest Jews in Israel who wish to eat
only food grown on non-Jewish land are left to buy imported goods at double
or triple the regular price - all in order to uphold a law meant to help
feed the poorest Jews in Israel.

Such well-meaning laws surely don't end up harming animals as well, do they?

Consider the Endangered Species Act (E.S.A.) of 1973, which protects flora
and fauna as well as their physical habitats. The economists Dean Lueck and
Jeffrey Michael wanted to gauge the E.S.A.'s effect on the red-cockaded
woodpecker, a protected bird that nests in old-growth pine trees in eastern
North Carolina. By examining the timber harvest activity of more than 1,000
privately owned forest plots, Lueck and Michael found a clear pattern: when
a landowner felt that his property was turning into the sort of habitat that
might attract a nesting pair of woodpeckers, he rushed in to cut down the
trees. It didn't matter if timber prices were low.

This happened less than two years ago in Boiling Spring Lakes, N.C. "Along
the roadsides," an A.P. article reported, "scattered brown bark is all
that's left of once majestic pine stands." As sad as this may be, it isn't
surprising to anyone who has examined the perverse incentives created by the
E.S.A. In their paper, Lueck and Michael cite a 1996 developers' guide from
the National Association of Home Builders: "The highest level of assurance
that a property owner will not face an E.S.A. issue is to maintain the
property in a condition such that protected species cannot occupy the
property."

One notable wrinkle of the E.S.A. is that a species is often declared
endangered months or even years before its "critical habitats" are
officially designated. This allows time for developers, environmentalists
and everyone in between to have their say at public hearings. What happens
during that lag time? 

In a new working paper that examines the plight of the cactus ferruginous
pygmy owl, the economists John List, Michael Margolis and Daniel Osgood
found that landowners near Tucson rushed to clear their property for
development rather than risk having it declared a safe haven for the owl.
The economists make the argument for "the distinct possibility that the
Endangered Species Act is actually endangering, rather than protecting,
species."

So does this mean that every law designed to help endangered animals, poor
people and the disabled is bound to fail? Of course not. But with a
government that is regularly begged for relief - these days, from mortgage
woes, health-care costs and tax burdens - and with every presidential
hopeful making daily promises to address these woes, it might be worth
encouraging the winning candidate to think twice (or even 8 or 10 times)
before rushing off to do good. Because if there is any law more powerful
than the ones constructed in a place like Washington, it is the law of
unintended consequences. 

Stephen J. Dubner and Steven D. Levitt are the authors of the book
"Freakonomics." More information on the research behind this column is
online at www.freakonomics.com <file://www.freakonomics.com> .