by Leslie Francis, reprinted from HealthLawProf Blog
Every year, the National Federation of the Blind sponsors a symposium on the legal rights of people with disabilities. Named in honor of Jacobus tenBroek, the symposium brings together legal scholars, disability rights lawyers, lawyers from many federal agencies, and many others from disability rights organizations, to discuss current developments in disability law. As might be expected for a symposium named after Dr. tenBroek, the symposium emphasizes the right to be in the world. The full description of the symposium can be found here. Two themes from the symposium might be of particular interest to health lawyers.
First, Olmstead-type litigation is alive and well, in two directions. One of the most exciting developments is the use of Olmstead to challenge sheltered workshops that provide people with disabilities the “opportunity” to work for sub-minimum wages in working conditions that may be substandard and in jobs that may be boring at best. On April 8, 2014, the Department of Justice entered into a settlement agreement with the state of Rhode Island to the effect that the state’s system of sheltered facilities violated Olmstead‘s integration mandate. The DOJ has also intervened in a class action in Oregon challenging that state’s sheltered workshops, Lane v. Kitzhaber, 841 F.Supp. 2d 1199 (D. Or. 2012). This use of Olmstead to challenge settings for individuals who are not institutionalized is a tremendous development. More traditional Olmstead suits and continuing as well: for example, challenges in both Florida and Texas to nursing home rather than community based placements for children and adults with intellectual disabilities.
In another direction, however, so-called “reverse”-Olmstead litigation represents efforts to keep institutions available for those who might want to continue to live in them; litigation in progress includes Carey et. al. v. Christie-1:12-cv-02522-RMB-AMD-(D.N.J. 2012) and Sciarrillo ex rel. St. Amand v. Christie, 2013 WL 6586569 (2013). The theory of this litigation is the second prong of the Olmstead integration mandate: that the individuals do not oppose the community placement. Litigants seek to turn this into a positive right to remain institutionalized, a contention that courts have rejected to date.
Another major development concerns supported decisionmaking. tThe Convention on the Rights of Persons with Disabilities (CRPD) Article 12 provides for full legal personhood for people with disabilities. Guardianship and other forms of rights-deprivation fly in the face of this mandate. “Supported” decisionmaking–a methodology that enables people with disabilities to work with others to make their decisions, in a manner that enables rather than taking away rights–is a means to achieve such legal personhood. In a landmark Virginia case last fall, Jenny Hatch, a person with Down syndrome, won the right to supported decision making despite her parents’ efforts to protect her by imposing guardianship. Proponents of supported decisionmaking are developing model support agreements and are planning evidence-based work about the effects of different mechanisms. Information about the Jenny Hatch litigation and associated efforts can be found here.