PERSPECTIVE ON THE DISABILITY ACT : Minimally Disabled Have to Move Aside : Limit benefits to those who are severely disabled instead of doling them out to those who are oppotunistic.

The Americans With Disabilities Act--the disabilities rights law passed five years ago--is one of those grand concepts, like communism, which simply has not worked in practice. Its problem is its very grandness.

Deborah Stone’s book, “The Disabled State,” outlines the fear and trepidation with which governments approach disabilities. Not only must disability be defined clearly, but the degrees of disability and the matching degree of support and special privileges must be carefully defined. Otherwise there will be a stampede of unemployed nondisabled people claiming permanent disabilities benefits that will threaten the solvency of the state and private business.

The disabilities act ignores this crucial problem, going so far as giving special protections to those associated with disabled people and those who may not be disabled but are viewed as such. Further, it makes no distinction between severe disabilities and disabilities that cause inconvenience.

Much criticism of the act dwells on the alleged cost to private businesses and local government. This is a puzzling claim since the act is not even being enforced. It is nearly impossible to find a qualified lawyer willing to file ADA suits to enforce the law and administrative complaints take years.

The more important criticism is how little effect the law has had on the severely disabled. Their rights have been co-opted by the minimally disabled. Let me give you three examples.

* Handicapped parking, one of the greatest boons to this writer’s disabled life when it was instituted, has been co-opted by the minimally and nondisabled. A recent DMV study shows that 38% of the handicapped placards in the three largest California cities are used illegally. This figure would skyrocket if it included those who persuade their private doctors to improperly authorize placards for them.

* The California Department of Rehabilitation, facing tight funding and an anticipated wave of newly coined, intangible disabilities claiming ADA coverage--such as multiple chemical sensitivity claims--has admitted it cannot serve all disabled people who come to it. For the first time, the agency is seeking to establish an order of who gets its benefits, starting with the most severely disabled.

* The most frequent employment complaint under the ADA is from those already employed who only discover that they are disabled when facing dismissal or passed over for promotion. Recently, I watched the wife of an aerospace employee urge him to claim a disability and demand special protection against a pending layoff. This is not the scenario that the original, severely disabled advocates of civil rights protection had in mind when they pushed for the legislation.

The results have been disastrous. According to a recent Harris survey, unemployment has increased among the disabled to 79% from 66% during the five years since the ADA was passed. A recent Census Bureau survey that differentiated for the first time between the “severely disabled” (those who cannot do a key function like walking, or need an attendant) and the “disabled” (those who merely have difficulty with a key function) came up with a shocking discovery. It found that the severely disabled are eight times more unemployed than the disabled, yet both are protected equally under the ADA.

It was the severely physically disabled in their wheelchairs and with their crutches and guide dogs who impelled much of the support for the passage of the ADA. Now we find that they have not only failed to benefit from the law, but have fallen back farther in their struggle to join the mainstream of society.

In 1989, I predicted that a decade after the ADA’s passage we would find that those disabled people who genuinely needed protection from discrimination would still be unemployed. In light of the new data, I would amend my prediction to “they will be more unemployed.” Those with functionally significant, obvious, traditionally discriminated against disabilities have been pushed to the end of the line by those who suddenly discovered that they too were disabled, now that it was a good deal.

Yes, the Americans With Disabilities Act needs examination and modification. The goal of that process should not, however, be its weakening. Instead such a retailoring should focus on the severely disabled. When the benefits and advantages disappear for the opportunistically disabled, millions will experience miraculous cures.