Disability Policy Podcast Update (August 9th) – ADA Restoration: What is Really Going On?

Unfortunately, I am (once again) behind on my posting and podcasts. Work has been quite busy and I was recently out of town for our national convention. In spite of the fact that I did not have a post for Day in Washington for August so far, I am still thinking about and working on disability policy issues (and of course the listenership/readership of Day in Washington). The resulting disability policy update is part of Show 55 for Beth Case’s Disability 411. For those of you unfamiliar with podcasts, I would posit that this is probably the grand-daddy or grand-mom of disability podcasts.

The specific podcast was about ADA Restoration. There has been a lot of discussion about this legislative effort and to be frank, not all of it has been positive. This isn’t about the need for the legislation and the need for a “fix” but about the conflict or is it confusion or concern, to be honest, I’m not sure which or all of the words are appropriate. You can find out the details about the legislative language on various sites on the internet, but Beth asked that I try to address what controversy is there. Episode 55 is my attempt to explain the history behind and the dynamics of the current ADA restoration effort in as open and non-judgmental manner as possible. At the end of the day, I think everyone involved in the effort towards passage is interested in the same thing – improving the lives of people with disabilities and minimizing (if not eliminating) discrimination.

Posted August 9th, you can listen to my commentary on the ADA Restoration at Disability 411 –
Episode 55 – Disability 411

As usual, a transcript of my podcast is in the comments. (Note: Disability411 also provides a transcript for all of its programming)

3 comments for “Disability Policy Podcast Update (August 9th) – ADA Restoration: What is Really Going On?

  1. admin
    August 25, 2008 at 3:30 pm

    Taken from the Transcript of Disability 411 – Episode 55 (August 9, 2008)

    Beth Case: Ok, now I want to get to a recording from our new contributor, Day Al-Mohamed, host of the Day in Washington podcast. I asked her if she would talk a little bit about the ADA Restoration Act. This seems to be a pretty divisive issue in the disability community. I’m a variety of mailing lists and listservs and so forth on disability issues and it seems to be that for every post or email I see saying what a great thing it is and we should back it and we should support it, I get another one that says, well, it’s ok, but it’s not that great, we’ve compromised too much and we should not support. In fact, one mailing list that I’m on sent me two messages in one day, two “call to action” types of messages. One was “Call to Action: Support this Act” and the other one was “Call to Action: Vote Against It”. So I’ve asked Day to just sort of give us the tun-down on it and what’s going on and what does it say. And hopefully, however you feel about it, maybe this will help you know more about the issues so you can make up your own mind.

    So, Day, thanks for recording this for me and let’s see if we can learn something.

    Day Al-Mohamed: Hello, this is Day Al-Mohamed from “Day in Washington” bringing you a Disability 411 policy update.

    Life has gotten very exciting in Washington DC this year. The reason – the efforts to create a “fix” for problems with the Americans with Disabilities Act.

    Eighteen years ago, the Americans with Disabilities Act or ADA was passed. If you think about it, this has been THE “Civil Rights Act” for people with disabilities. It promised an end to the exclusion and inequality for the 20% of Americans with physical or mental impairments – it has changed the way programs and services are provided, it has removed barriers to integration and inclusion into society; it has literally changed the very face of this country.

    But the ADA the story doesn’t end there. In the 1990s, there was a series of court cases and Supreme Court decisions that have made it difficult and even impossible for individuals with certain health conditions to establish that they have a disability under the ADA.

    People with epilepsy, diabetes, HIV, cancer, psychiatric diagnoses, and other conditions who manage their disabilities with medication, prosthetics, hearing aids, or other disease management strategies are basically, dismissed as “not disabled enough” to be covered by the ADA. The emphasis is placed on the qualification rather than on the discriminatory action.

    In response, a significant portion of the disability community has been working to amend the ADA to bring it back to its initial intent.

    The idea to amend the ADA has been around Washington for the last 4-5 years. In 2004, the National Council on Disability (NCD), the same independent federal agency that drafted the original ADA, published a report called “Righting the ADA”, which harshly criticized the Supreme Court decisions and gave recommendations on how to “fix” the ADA to and take care of the problems created by the Supreme Court’s interpretations.

    Over the years there has been significant concern about “opening up the ADA” for fear that an unfriendly Congress would take away the rights available to people with disabilities. In addition, the legislative “fix” that was proposed only looked at two specific issues – the definition of disability and the concern of mitigating measures.

    After much strategy discussion and back-and-forth about whether or not this was the best time to push for change, in the fall of 2006, Senator Sensenbrenner, with support from the disability community, put forward H.R. 6258, the ADA Restoration Act of 2006. It was proposed late in the session, and was really intended as a way to “test the waters” and see how Congress felt about the need to address the ADA problem. Considering that about 60% of supporters of the original ADA were still in Congress, the significant amount of evidence available showing how bad things had become in the court system, and the enthusiastic support of House Majority Leader, it seemed to be a good opportunity.

    On July 26, on the 17th anniversary of the enactment of the original ADA, Representatives Hoyer and Sensenbrenner introduced H.R. 3195, the ADA Restoration Act of 2007. Disability advocates had been contacting congress and working to educate them about the problems with the ADA and it would seem that Congress listened – the bill had 143 original co-sponsors. On the same day, a Senate companion bill, S. 1881, was introduced by Senators. Tom Harkin and Arlen Specter. That number quickly grew to over 250 co-sponsors.

    However, in addition to gaining supporters, the bill was also gaining opposition. Members of the business community and even some within the education community expressed concern that the changes suggested by the legislation went too far and would actually be a detriment to business. That the ADA restoration Act, far from helping people with disabilities would actually harm them because ANYONE would then qualify.

    Right or wrong, whether you agree or disagree, those concerns resonated with Congress and there was considerable concern that legislators might be convinced to block or amend the bill in a way that truly would negatively impact people with disabilities. So, in early 2008 the disability community was strongly encouraged to meet with the business community and try to negotiate a deal.

    The idea was to create legislation that both sides could agree on that could make it through congress. Negotiated bills generally tend to move forward faster and with wider support through the legislative process. However, they ARE a compromise, which means all sides are equally unhappy. After 3 months of negotiations between the disability community and the business community, the proposed deal language was drafted.

    As I said earlier, the ADA is THE civil rights bill for people with disabilities. It is at the heart of almost all legislation relating to discrimination and people with disabilities – so it is also going to be probably the issue to bring out the most passion in the heart of any and all advocates for disability rights. This compromise legislation was not easy and there has been a lot of general unhappiness regarding it.

    Let me be clear, the vast majority of groups do support this compromise bill and it is moving forward amazingly fast in Congress but initially, there was a lot of skepticism. Was the disability community giving up too much? Was it truly necessary to compromise with business? Couldn’t this wait until next year for a different administration? There were a lot of questions and on an issue that draws as much passion as the ADA, opinions can and did differ.

    Never-the-less, even though there existed unease regarding the legislation, the disability community overall was willing to accept the negotiated bill and began lobbying Congress. What was interesting was that the lobby teams were of business and disability groups going to House congressional offices – together. I have heard from many, many advocates that that has NEVER happened before. Not even with the original ADA. And the response from the House offices reflected that. The joint teams were received positively and drew a lot of support.

    Now remember, it was the House’s Congressional leadership that had originally urged both communities to work together. I have to admit, that although many groups were supportive of the compromise language, there was a lot of unease that this would work or even be a good thing for the disability community. On June 25th, the ADA Amendments Act of 2008 was introduced as a replacement for the original H.R. 3195 which was called the ADA Restoration Act. The name change was to prevent confusion. It was then voted on in the House. It passed 402 to 17. I would have to check but I believe that is an even higher vote than the original ADA.

    The bill is now in the Senate and the Senate is a whole different animal. This side of Congress has always preferred to do things their way. As a result, they again, would like to make changes to the legislative language. And again, there is a lot of uneasiness in the disability community. Are we giving up too much? What exactly does this mean? Is it not better to wait until after elections and try again next year? Every single word in the bill has been gone over and argued over. Every possible change, not just in the law itself, but also in the definitions, the report language and even the findings section…all of it to make sure that we aren’t doing harm to people with disabilities. But this is difficult to gauge.

    On July 31st, the Senate version of the ADA Amendments Act was introduced in the Senate (S. 3406) with 57 original co-sponsors! It might seem that the Congressional leadership was correct in urging a compromise. Such strong support in both the House and Senate would seem to indicate that this compromise has a VERY GOOD chance of passing.

    As to whether this negotiated deal language to fix the ADA was the right thing to do…whether the disability community should have stuck to their original ADA Restoration language and tried to push it through with the business groups’ opposition? Or whether too much was sacrificed for the compromise? Or whether the Senate changes really make a difference or not? All of that, in some ways now…to know if we were right or wrong…only time will tell.

    It has been 18 years since the passage of the original ADA and I imagine many people look back and say, that was the way to do it. We did things differently then and we did it right. But I have no doubts in my mind that it was just as contentious, just as nerve-wracking…just as down-right scary when the original ADA was being passed through Congress. And the same questions and concerns were brought forward. Is this going to be enough to help people with disabilities?

    Time will decide. But for now, the current language is out there and it is strong language and it will make a difference. It is moving forward quickly and those congressional votes, both in the House and Senate tell us that Congress is more than willing to accept it.

    Personally, I’m something of a pragmatist. I don’t know what will happen tomorrow or next year. I don’t know whether I’ll like whatever new language comes up next time or if the business community will support or oppose ADA changes in the coming administration. What I do know, is there is legislation on the Hill right now that has a chance of positively changing the lives of people with disabilities. That is something concrete I can hold on to and work for. There are no guarantees as to the future but I can do something about that legislation now.

    I’ve looked at the legislation language, spoken with the legislators, seen the votes and continue to work with the groups, both business and disability. What you have, is the decision I came to (and a decision that I’m sure many other individuals and groups have made). But I think that a clear honest evaluation and decision is something each person is going to have to make on their own.

    As to whether any of us are right or wrong…we shall just have to wait and see.

    You can find out more about this legislation in the show notes. Stay tuned for more policy updates on D411 or check out Day in Washington for legislative and disability policy.

    Thank you.

    Beth Case: Thank you, Day, for that overview. I hope that that clarifies a little bit of confusion in our listeners. As always, I encourage everyone to find out the facts, make up your own mind, and then contact your elected officails and let them know what you think. You can’t complain about the government if you don’t partake in it.

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