[Congressional Record Volume 155, Number 114 (Monday, July 27, 2009)]
[Senate]
[Pages S8121-S8125]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    AMERICANS WITH DISABILITIES ACT

  Mr. HARKIN. Madam President, yesterday, July 26, marked the 19th 
anniversary of the signing of the Americans with Disabilities Act by 
President George Herbert Walker Bush, on July 26, 1990. Passage of that 
law was a great national achievement. I remember being there. I was the 
chief sponsor of the bill. I was at the White House when it was signed. 
It was a beautiful sunny day. More people were on the White House lawn 
for the signing of that bill than for the signing of any bill in the 
history of this country. It was huge. It was a wonderful day. It was 
one of the landmark civil rights bills of our generation--of the 20th 
century.
  Passage of the original Americans with Disabilities Act was a 
bipartisan evident. As the chief sponsor of that bill, I worked very 
closely with Senator Dole. Of others on the other side of the aisle, 
two come to mind: Senator Orrin Hatch, who worked very closely with us 
to get it through, and also Senator Lowell Weicker, of Connecticut. 
Senator Weicker was the first proponent of the Americans with 
Disabilities Act, but by the time we were able to get it passed, he was 
no longer in the Senate. But Senator Weicker did yeoman's work in 
getting it going and pulling everything together before he left the 
Senate.
  We received invaluable support from President Bush and key members of 
his administration. I mention, in particular, White House Counsel 
Boyden Gray, Attorney General Richard Thornburgh, and Transportation 
Secretary Samuel Skinner.
  We look back, after 19 years, and what do we see? We see amazing 
progress. Thanks to the Americans with Disabilities Act, or the ADA as 
we call it, streets, buildings, and transportation are more accessible 
for people with physical impairments. Information is offered in 
alternative formats so

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it is usable by individuals with visual or hearing impairments. Need I 
mention the closed captioning through which one can be watching the 
words of my speech on television right now? Closed captioning is now 
going all over the country, not just for speeches on the Senate or 
House floor but for television programming and important events and 
weather announcements. Again, it all started after the passage of the 
Americans with Disabilities Act.
  These changes are all around us--curb cuts, widened doorways, 
accessible buses, accessible trains. You never could get on an airplane 
before with a seeing-eye dog. Now when you get on an airplane you see 
people come on with a seeing-eye dog. They are allowed to do that.
  These changes are now so integrated into our daily lives it is 
sometimes hard to remember what life was like before the ADA. After 
ADA, employers are required to provide reasonable accommodations so 
people with disabilities have an equal opportunity in the workplace. 
There were four goals of the ADA, four stated goals in the law: 
equality of opportunity, full participation, independent living, and 
economic self-sufficiency.
  Last year, again with broad bipartisan support, we were able to pass 
the ADA Amendments Act, overturning a series of Supreme Court cases 
that greatly narrowed the scope of who is protected by the ADA. 
Beginning in 1999 and going to 2000 and 2001, there were a series of 
cases, the three most important are what we call the Sutton, the 
Murphy, and the Kirkingburg cases that came before the Supreme Court. 
In each of those cases, the Supreme Court did not look at the report 
language and the findings we had made in the Congress on who is covered 
by the ADA--the fact that mitigating circumstances were not to be taken 
into account and that there was not a demanding standard to be met. The 
Supreme Court turned that on its head. They narrowed who was covered by 
the ADA. They said that mitigating circumstances had to be taken into 
account and that there had to be a demanding standard for who was 
covered.
  Again, we worked on a bipartisan, bicameral basis to straighten out 
these hearings, to overturn the Supreme Court's findings as a matter of 
fact, and we did. We did it on a bipartisan basis, both the House and 
the Senate, and President George Herbert Walker Bush's son, then-
President George Bush, was able to sign those into law, and I was able 
to be down at the White House on that. Again, it was a very poignant 
moment with both President George W. Bush and his father, President 
George Herbert Walker Bush, being there for the signing of the ADA 
amendments. Thanks to that legislation of last year, people who were 
denied coverage under the ADA will now be covered.
  As we celebrate the 19th anniversary of this great civil rights law, 
it is remarkable to think that many young people with disabilities have 
grown up taking advantage of these changes, and they have no memory of 
the way things used to be before the law was passed. I remember 
recently as I--as we are wont to do as Senators--had my picture taken 
out here at the front of the Capitol with a group of young people, one 
of whom was using a wheelchair, I was talking about the upcoming 
anniversary of the Americans with Disabilities Act. I pointed to the 
curb cuts so someone could come up and use a wheelchair. I said: You 
know, those were not there before 1992.
  This young person in the wheelchair was astonished to find this out. 
He assumed they had always been able to move around freely.
  As we look around after 19 years, we see a lot of changes--a lot of 
changes for the good. We see more young people taking advantage of 
educational opportunities, travel opportunities, families going out to 
restaurants, traveling with family members who have a disability, 
schools. We see a lot of wonderful changes that have taken place 
because of the ADA. But, frankly, there is more work to do. We have not 
yet reached the promised land of those four goals of the ADA.
  At the top of the list is the need to pass the Community Choice Act. 
This bill has been around a long time. It was first introduced in the 
1990s. It was then called MCASSA; that stood for the Medicaid Community 
Attendance Support Services Act. No one could ever remember what it 
stood for so we changed the name to the Community Choice Act.
  What is this all about? Right now, all over America there are people 
with disabilities who qualify for Medicaid coverage. They are low 
income and they have severe disabilities, so they qualify for Medicaid. 
If they want to get their full coverage for support services, they have 
to go to a nursing home. If they go to a nursing home, under the law, 
Medicaid must pay for their support services. If they go to a nursing 
home, it must pay.
  But let's say a person with a disability doesn't want to go to a 
nursing home, they kind of like to live in their own home, they would 
like to live with their friends, their family, in the community where 
they know people. Do they get any support services? None. Medicaid does 
not have to pay one single dime. If they go to a nursing home, they 
will pay for it; if you want to stay in your own home and get those 
support services, Medicaid doesn't have to pay for it. They do not have 
an equal right to choose where they want to live.
  Again, I will say this, some States have applied for waivers, and 
they have extended these support services to people with disabilities 
in the community. But it varies from State to State. Some States don't 
have the waivers, some States do. Even in some States that have 
waivers--my State of Iowa has one--the waiting lists are long. It will 
take you 3 or 4 years to ever get up in the queue to be eligible. So it 
has been a patchwork of different things around the country.
  On top of that, in 1999, 9 years after the passage of the Americans 
with Disabilities Act, a case came to the Supreme Court. We call it the 
Olmstead case, Olmstead v. L.C. It came out of Georgia. The Supreme 
Court made an important decision. It said that individuals with 
disabilities have the right to choose to receive their long-term 
services and support in the community rather than in an institutional 
setting. The Supreme Court said they have a right to that.
  So this year marks the 19th anniversary of the ADA, it marks the 10th 
anniversary of that decision of Olmstead by the Supreme Court. Yet 
people with disabilities still have to go to a nursing home to get 
their long-term services and supports.
  Listen to what the Supreme Court said in 1999:

       Institutional placement of persons who can handle and 
     benefit from community settings perpetuates unwarranted 
     assumptions that persons so isolated are incapable or 
     unworthy of participating in community life.

  Changing these assumptions is what the ADA is all about. Again, as I 
said, some States have done it. But it is kind of a patchwork quilt 
around the country. The Community Choice Act is focused on increasing 
the availability of attendant services and supports.
  We know from studies done--the most important being done by Dr. Mitch 
LaPlante at the University of California at San Francisco--we know from 
studies that for a person with a disability to go into a nursing home 
to receive those long-term services and support costs three times more 
than what it does in the community. In other words, it would cost three 
times as much. So for every one person in a nursing home, you can 
support three people living in their own homes in the community.
  You would say: Why aren't we doing that? Because there are about 
600,000 people in this country. These are individuals who are on the 
bottom rung. Let's be frank about it; they are on the bottom rung of 
the economic ladder. They are poor because they are Medicaid eligible; 
they have varying degrees of disabilities that, if they do not have 
their support services, they cannot get out, they cannot go to work. 
They may be capable of working. After all, we have curb cuts, we have 
buses that are accessible, we have subways that are accessible, we 
mandated that employers must make reasonable accommodations--wonderful. 
But if you can't even get out of your house in the morning, what good 
does all that do you? So 600,000 people. CBO did a cost analysis and 
said this would cost about $50 billion over 10 years--$50 billion over 
10 years.
  That is a lot of money. But, keep in mind, the health care bill we 
are talking about passing, recent estimates by

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CBO put it at $1 trillion over 10 years--$1 trillion over 10 years. So 
$50 billion, that is about 5 percent. Is that too much to ask to help 
people on the lowest rung of the economic ladder in our country, to 
help them take advantage of what is their civil right, what the Supreme 
Court said they have a right to: a right to live independently, a right 
to live in their own home, to get those services?
  As we all know, civil rights such as this are not self-executing. 
They require some support from the Congress. Frankly, I must tell you I 
disagree with the estimate of the CBO because here is what they do not 
take into account. They don't take into account that many of these 
people with disabilities who could live in the community if they had 
these services and support can now get out the door in the morning, get 
to work, make a living, and pay taxes.
  I think of my nephew Kelly. My nephew Kelly was injured in the 
military. He was serving on an aircraft carrier and got sucked down a 
jet engine. He lived, but he is a severe paraplegic for the rest of his 
life.
  My nephew Kelly came back out of the military. He had that terrible 
accident. He was 19 years old, a big strapping kid. He went to school, 
went to college. Then he lived by himself--he still does. He lives in 
his own home. He has a van he drives with a lift on it.
  He gets up in the morning, goes to work, comes back. How is he able 
to do this? He has support services. He has someone who comes in his 
house in the morning, gets him ready; someone who comes in the house at 
night, gets him ready for bed. He does his own shopping and cooking, 
but he has to have a nurse there, someone to help him get going. If he 
did not have that, he would not be able to go to work. But he has that. 
He is able to go to work, and he is a taxpaying citizen of this 
country.
  There are hundreds of thousands of Kellys around this country who, if 
they had that support mechanism, could go to work. So when they say it 
costs $50 billion, I say, well, you are not taking that into account. 
They are not taking that into account. So as we enter the critical 
stage in hammering out comprehensive health care reform, we must not 
miss this opportunity to extend the availability of attendant support 
and services which so many have been fighting for for so many years.
  Every individual with a significant disability deserves the choice 
about where to live and with whom to live and where to receive his or 
her essential services. That has a lot to do with employment, and as I 
look back over 19 years of the ADA, there is one thing that is still 
lacking: that is employment of people with disabilities.
  Recent surveys show 63 percent of people with disabilities are 
unemployed. They want to work. They have abilities, but they are 
unemployed. A lot of this is because there are no support services. 
Much of this has to do with the fact that some employers are not 
providing reasonable accommodations. Some of it has to do with the fact 
that there is not an affirmative action program to hire people with 
disabilities. Some 21 million people with disabilities are not working, 
are not employed. So we need to do a better job with providing these 
people with disabilities the opportunity for economic self-sufficiency 
as we promised in the ADA.
  On a closing note, on Friday of last week, President Obama announced 
the President of the United States will sign the U.N. Convention on the 
Rights of Persons with Disabilities, an international treaty that 
identifies the rights of persons living with disabilities and obligates 
countries to maintain those rights. The convention, after it will be 
signed, I understand, this week by our Ambassador to the U.N., will go 
through a process and then it will be referred to the Senate for 
ratification.
  Well, we should take pride in the fact the United States has always 
been a leader in ensuring the rights of individuals with disabilities. 
We have made great progress toward the goal of equal opportunity, full 
participation, independent living, and economic self-sufficiency.
  By becoming a party to the convention, the United States will 
continue its leadership role. So on this 19th anniversary of the ADA, I 
thank our President, President Barack Obama. I thank him for the 
statement he made last Friday that he was going to sign this week and 
for maintaining the leadership role of the United States in ensuring 
the rights of people with disabilities.
  I only hope the convention will get through the process rapidly so we 
can get it to the Senate, and I hope the Senate can ratify it as soon 
as possible.
  Lastly, on a more poignant note, I want to pause on this anniversary 
to remember people who played such a vital role in passing the ADA. 
Some are no longer with us, such as Justin Dart, who was the person who 
pulled it through. Justin Dart. We are fortunate that his wife Yoshiko 
continues to carry on this legacy day after day and week after week and 
year after year.
  We remember Ed Roberts, the father of the independent living 
movement, whose work and vision continues to inspire powerfully. He is 
also gone.
  Others who are still with us: Pat Wright, my staff director; Bobby 
Silverstein, who worked so hard and pulled this through. Of course, the 
one person, when the going got tough, when we did not know if we could 
get everything pulled together, who worked his magic to bring people on 
both sides of the aisle together--and herein I speak of Senator Ted 
Kennedy, the chairman of the committee, the HELP Committee, at that 
time, and I was chairman of the Disability Policy Subcommittee. But 
that was under the tutelage of Senator Kennedy. He was the chairman of 
the HELP Committee at that time. It was because of his great work we 
were able to pull people together to get the great compromise to pass 
the ADA.
  I would mention one other person I think might be somewhat 
responsible who is no longer with us. That is my late brother Frank. I 
have spoken of him many times as my inspiration for working on 
disability issues.
  Frank became deaf at a young age. He was taken from our home and sent 
across the State to the Iowa School for the Deaf. At the time, many 
people called it the State School for the Deaf and Dumb. That is how 
they referred to people who could not hear, as deaf and dumb.
  I remember my brother said to me: I may be deaf, but I am not dumb.
  He also said to me one time: The only thing that deaf people cannot 
do is hear. He fought, not only in school, but after school to be 
independent and to make his own way in life, and he was able to do 
that.
  I saw how many times he was discriminated against, whether it was 
getting a driver's license, so many things he was told he couldn't do 
because he was deaf. They were always trying to hold him back. But he 
was always pushing, and he was able to carve out a life of independence 
and dignity for himself. Why did he have to fight so hard for all of 
this? Why did he have to struggle so much just to get people to accept 
him for what he was and who he was and not just to look at the fact 
that he was a deaf man, but that he was a person of great capabilities.
  Great ethics. Great work. Very hard. But why did he have to struggle? 
Then I started looking around and saw all of those people with 
disabilities in America who just had to overcome almost insurmountable 
obstacles just to be a contributing member of our society, not to get 
welfare. My brother was never on welfare in his entire life. He always 
worked hard. They just want to work and contribute and to be a part of 
our society. Why did it require extraordinary efforts to do things we 
just take for granted in our country?
  So he was sort of my inspiration and continues to be today. So, yes, 
we have had our share of frustrations. We have not reached the promised 
land. We have a 60-percent or more rate of unemployment, and people 
with disabilities have to go to a nursing home to get support rather 
than living in the community.
  So we do have a ways to go. We have come a long ways, but we do have 
a ways to go. So we can celebrate this great law, this great civil 
rights bill, the Americans with Disabilities Act. But now we also have 
to say we have to take these next steps.
  On July 26, 1990, when he signed the ADA into law, President George 
Bush spoke with great eloquence. I will never forget his final words 
before taking up his pen. He said: ``Let the shameful wall of exclusion 
finally come tumbling down.''

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  Well, today that wall is indeed falling. We have to continue the 
progress. We have to go forward and not backward. We must enact the 
Community Choice Act so that people with disabilities can finally have 
not only independence but they can have full participation and they can 
have economic self-sufficiency.
  Their goal, their home, not the nursing home, has been their cry for 
many years. We ought to hear that, heed it, and make sure we do not 
pass a health reform bill unless we have something in it to address 
this one fundamental flaw in our society that wreaks havoc against 
people with disabilities in our country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. BROWN. Madam President, before Senator Harkin leaves the floor, I 
want to express that there is no one in this Chamber, there is no one 
down the aisle in the House of Representatives, there is no one in this 
city who has worked harder on issues advocating for those with 
disabilities than Tom Harkin.
  I heard him make that moving and beautiful tribute to his brother. 
There is a building on the Galludet campus named after Senator Harkin's 
brother.
  Galludet is the university for the deaf in Washington, DC. I am 
fortunate to sit on the board of that university, recommended by 
Senator Harkin, for whom I will always be grateful, that institution 
that has lifted up so many people, and his brother was a big part of 
that. Senator Harkin is a big part of the success of that institution 
and advocating for the rights of the disabled.


        United States-China Strategic and Economic Dialogue, SED

  I rise now to speak about the United States-China Strategic and 
Economic Dialogue, the so-called SED, which began early today in 
Washington. Dozens of Chinese officials descended on our city over the 
weekend. They are now negotiating, discussing, and engaging in 
strategic and economic dialogue with comparable officials in our 
Federal Government.
  Secretary of State Clinton and Treasury Secretary Geithner are 
leading these talks for the Obama administration. The challenges they 
face are daunting. The issues that frame our relationship with China, 
which range from global security and fundamental human rights to trade 
and investment to energy and global warming policy, are critical to the 
future of our Nation and to the world.
  I think we all agree a strong middle class makes a strong economy. We 
also agree the middle class, to put it mildly, is not faring well in 
this financial crisis. The official unemployment rate of the United 
States is 9.5 percent. My State is 11.1 percent. It has climbed 2 
percentage points in the past 5 months.
  China is one enormous export platform, and the United States, its 
biggest customer, has stopped buying. Morgan Stanley economists report 
that exports account for 47 percent of the economics of China and other 
East Asian nations, while in the United States consumption accounts for 
70 percent of our GDP. As revenues flow out of the United States and 
into China, more than $200 billion every single year, China becomes our 
biggest lender. This unbalanced economic relationship breeds risk. It 
is rooted in our Nation's passive trade relations with China.
  My State of Ohio is one of the great manufacturing States in this 
country, as it has been for about a century. We make solar panels and 
wind turbines, we make paper and steel and aluminum and glass and cars 
and tires and polymers and more. Look around today. I am sure you will 
find something you use that is made in Ohio. But let's look at a 
typical Ohio manufacturer and compare that to a Chinese manufacturer.
  The Ohio manufacturer abides by a minimum wage to ensure workers are 
paid for and not robbed of talents. An Ohio manufacturer abides by 
clean air and workplace and product safety standards, helping to keep 
his or her workers healthy and productive and to keep customers safe. 
The Chinese manufacturer has no minimum wage to maintain. The Chinese 
manufacturer is allowed to pollute the environment, is allowed to force 
workers to use dangerous and faulty machinery.
  Food and product safety are not a must for the Chinese manufacturers; 
lax enforcement makes it look more like an option. The Ohio 
manufacturer pays taxes, pays health benefits, pays Social Security.
  The Ohio manufacturer typically allows family leave and gives WARN 
notices when there is going to be a plant closing. The Chinese 
manufacturer allows child labor. The Ohio manufacturer receives no 
government subsidy. The Chinese manufacturer receives subsidies often 
for the development of new technologies or for export subsidies.
  The Chinese manufacturer benefits from China's manipulation of its 
currency, which gives, many economists think, a 40-percent cost 
advantage--a 40-percent cost advantage.
  In addition to all of the other cost advantages of product safety, 
worker safety, minimum wage, paying into Social Security, Medicare, all 
of that, the Ohio manufacturer is investing in clean energy. The Ohio 
manufacturer is investing in new technologies and efficiencies to 
create more sustainable production practices. The Ohio manufacturers 
are part of the movement to make our country more energy efficient.
  They will do their part to reduce carbon emissions but not at the 
expense of jobs if China and other countries do not take comparable 
action. Yet when the Ohio manufacturer petitions for relief and says it 
can compete with anyone, but only when it is a level playing field, or 
that it can emit less carbon but the Chinese competitors should bear 
similar costs on similar timelines, what does the Chinese Government 
say?
  They call it protectionism.
  Amazingly, that Chinese Government, when it labels behavior 
protectionism, has allies in the United States, all kinds of allies 
right here in Washington, DC. It had allies certainly in the Bush White 
House. It has allies among newspaper publishers certainly in this city. 
It has allies among Ivy League economists and among too many Members of 
the House of Representatives and the Senate. So when China labels 
anything we do to protect our workers, our environment, our families, 
our security, the chorus of protectionism from our own Nation's media 
and from many Ivy League economists and many political leaders sounds 
almost as loud as Chinese accusations of protectionism.
  Earlier this year, Energy Secretary Chu noted that unless other 
countries also bear comparable costs for carbon emissions, the United 
States will be at a disadvantage. In other words, if we deal with our 
carbon emissions by stronger environmental laws on American 
manufacturing, and China doesn't, Secretary Chu understands that will 
encourage more industry to move from the United States, where 
everything produced contains an environmental cost, to China where many 
things produced contain little environmental cost. The response to 
Secretary Chu from the Chinese official? He called it an excuse to 
impose trade restrictions and practice protectionism. Chinese officials 
are quick to call the United States protectionist, despite all the 
protections it affords its manufacturers. These labels, launched when 
Congress considers import safety legislation--remember the toys at 
Halloween and Christmas and Easter that came from China that had lead-
based paint on them at levels far in excess of what we consider safe, 
remember the drug ingredients put into prescription drugs that killed 
many people in Toledo with the drug Heparin and all over the country, 
those ingredients came from China--or the ``Buy American'' provisions 
are used by trading partners to influence our debates about public 
policy. Of course, Chinese officials are all too often joined, whenever 
we in this body insist on food safety, pharmaceutical safety, worker 
safety, environmental protections, by American CEOs, Ivy League 
economists, newspaper publishers, and too many people who sit in this 
Chamber.
  Meanwhile, the United States has the world's most open economy. That 
is why I believe today's strategic economic dialog, the SED, is so 
important. China's industrial policy is based on unfair trade 
practices. It involves direct subsidies, indirect subsidies such as 
currency manipulation, and copyright piracy and hidden subsidies such 
as lax standards and sweatshop labor. In total, it results in the loss 
of millions of American jobs.

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  The Economic Policy Institute estimates that 2.3 million jobs were 
lost between 2001 and 2007 due to the trade deficit with China. Those 
were during our good economic times. During that economic time, the 
first 7 years of the Bush administration, not only did we lose 2.3 
million jobs--many of them because of Chinese trade policy--in addition 
to that, 40,000 manufacturing concerns in our country shut down. 
China's policies are depressing wages and income levels worldwide, 
while its exploitation of environmental, health, and safety standards 
is killing Chinese workers and citizens and adding to our climate 
change challenges. The health of our economy, the strength of our 
middle class, depend on how Congress and the Obama administration 
engage with China on these issues.
  I am hopeful the Strategic and Economic Dialogue begins a new chapter 
between two great nations, China and the United States. But Congress 
cannot sit idly by as we debate climate change or trade or 
manufacturing or any other policies that affect the middle class.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.

                          ____________________