Research

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229 KiB

Open AccessArticle

From Disability Rights to the Rights of the Dying (and Back Again)

by Harold Braswell

Laws 2017, 6(4), 31; https://doi.org/10.3390/laws6040031 - 15 Dec 2017

Cited by 2 | Viewed by 4697

This article argues for civil rights for dying people. The creation of such rights should be understood as complementary to, but distinct from, existing initiatives to provide dying people with social benefits. A basis for rights for terminally ill people can be found [...] Read more.

This article argues for civil rights for dying people. The creation of such rights should be understood as complementary to, but distinct from, existing initiatives to provide dying people with social benefits. A basis for rights for terminally ill people can be found in the disability rights movement. Through an ethnographic case study of two dying individuals, I argue that terminally ill people can be subjected to disability discrimination as it is understood within the dominant theoretical framework of disability rights: the social model of disability. Nevertheless, while disability rights provides a theoretical basis for understanding discrimination against people who are dying, existing U.S. disability rights legislation largely does not recognize, nor address this discrimination. For this reason, it is necessary to develop a separate set of rights of the dying. I conclude by arguing that such “dying rights” are a logical extension of disability rights, and will bring ancillary benefits to both disabled people and the disability rights movement itself. There is thus a strong foundation for a legal and political alliance between disability rights advocates and advocates for people who are dying. Full article

(This article belongs to the Special Issue Health Care Law and the Rights of Individuals with Disabilities)

197 KiB

Open AccessArticle

Disability, Procreation, and Justice in the United States

by Kimberly Mutcherson

Laws 2017, 6(4), 27; https://doi.org/10.3390/laws6040027 - 22 Nov 2017

Cited by 4 | Viewed by 5082

Abstract

Parenting and procreation have long been contested legal terrain in the United States as exemplified by a history of abuses against marginalized populations including people with disabilities. While some of the most egregious abuses, such as state sponsored sterilization programs, are relics of [...] Read more.

Parenting and procreation have long been contested legal terrain in the United States as exemplified by a history of abuses against marginalized populations including people with disabilities. While some of the most egregious abuses, such as state sponsored sterilization programs, are relics of the past, it remains true that people with disabilities face distinct and at times insurmountable roadblocks to procreation and parenting. This article details ongoing forms of procreative discrimination against people with disabilities, rejects common justifications for that discrimination, and offers proposals for better protecting the rights to procreate and parent for disabled people. Full article

(This article belongs to the Special Issue Health Care Law and the Rights of Individuals with Disabilities)

201 KiB

Open AccessFeature PaperArticle

Rethinking the Americans with Disabilities Act’s Insurance Safe Harbor

by Valarie Blake

Laws 2017, 6(4), 25; https://doi.org/10.3390/laws6040025 - 07 Nov 2017

Cited by 1 | Viewed by 5709

Abstract

Despite the importance of access to healthcare for the disabled, the Americans with Disabilities Act (ADA) has made little inroads in reducing disability-based discrimination by health insurers in the United States. One reason is undoubtedly the ADA’s insurance safe harbor, which explicitly permits [...] Read more.

Despite the importance of access to healthcare for the disabled, the Americans with Disabilities Act (ADA) has made little inroads in reducing disability-based discrimination by health insurers in the United States. One reason is undoubtedly the ADA’s insurance safe harbor, which explicitly permits insurers to discriminate on the basis of disability in health insurance so long as the differential treatment is supported by actuarial data and is not just intended to disadvantage the disabled. While the safe harbor’s harms are somewhat limited by the advent of the Affordable Care Act (ACA), they are not entirely neutralized. This article argues that there are both practical and principled reasons for amending the ADA to remove the insurance safe harbor. Practically speaking, the ADA could prove a useful tool to challenge aspects of the ACA that place the disabled at a disadvantage, but the insurance safe harbor limits this reach in meaningful ways. From a more principled or philosophical lens, the insurance safe harbor is a law that perpetuates stigma against the disabled and that no longer reflects the views of American society. For these reasons, and many others, a rethinking of the ADA’s insurance safe harbor is necessary and timely. Full article

(This article belongs to the Special Issue Health Care Law and the Rights of Individuals with Disabilities)

215 KiB

Open AccessArticle

Community Integration of People with Disabilities: Can Olmstead Protect Against Retrenchment?

by Mary Crossley

Laws 2017, 6(4), 22; https://doi.org/10.3390/laws6040022 - 24 Oct 2017

Cited by 4 | Viewed by 4614

Abstract

Since the passage of the Americans with Disabilities Act (ADA) in 1990, states have made significant progress in enabling Americans with disabilities to live in their communities, rather than institutions. That progress reflects the combined effect of the Supreme Court’s holding in Olmstead [...] Read more.

Since the passage of the Americans with Disabilities Act (ADA) in 1990, states have made significant progress in enabling Americans with disabilities to live in their communities, rather than institutions. That progress reflects the combined effect of the Supreme Court’s holding in Olmstead v. L.C. ex rel. Zimring, that states’ failure to provide services to disabled persons in the community may violate the ADA, and amendments to Medicaid that permit states to devote funding to home and community-based services (HCBS). This article considers whether Olmstead and its progeny could act as a check on a potential retrenchment of states’ support for HCBS in the event that states face severe reductions in federal funding for Medicaid, as was threatened by Republican efforts in 2017 to “repeal and replace” the Affordable Care Act and to restructure Medicaid. The article concludes that Olmstead provides a strong basis for challenging a state’s elimination or severe curtailment of existing HCBS programs, but that the fact-specific nature of a state’s likely “fundamental alteration” defense precludes predicting the outcome of such a challenge. Despite this legal uncertainty, protests mounted by people with disabilities, in which they demanded freedom from institutionalization, may have helped cement the idea that community integration is a civil right in the public’s mind. Full article

(This article belongs to the Special Issue Health Care Law and the Rights of Individuals with Disabilities)

195 KiB

Open AccessArticle

Disparities in Private Health Insurance Coverage of Skilled Care

by Stacey A. Tovino

Laws 2017, 6(4), 21; https://doi.org/10.3390/laws6040021 - 20 Oct 2017

Viewed by 3481

Abstract

This article compares and contrasts public and private health insurance coverage of skilled medical rehabilitation, including cognitive rehabilitation, physical therapy, occupational therapy, speech-language pathology, and skilled nursing services (collectively, skilled care). As background, prior scholars writing in this area have focused on Medicare [...] Read more.

This article compares and contrasts public and private health insurance coverage of skilled medical rehabilitation, including cognitive rehabilitation, physical therapy, occupational therapy, speech-language pathology, and skilled nursing services (collectively, skilled care). As background, prior scholars writing in this area have focused on Medicare coverage of skilled care and have challenged coverage determinations limiting Medicare coverage to beneficiaries who are able to demonstrate improvement in their conditions within a specific period of time (the Improvement Standard). By and large, these scholars have applauded the settlement agreement approved on 24 January 2013, by the U.S. District Court for the District of Vermont in Jimmo v. Sebelius (Jimmo), as well as related motions, rulings, orders, government fact sheets, and Medicare program manual statements clarifying that Medicare covers skilled care that is necessary to prevent or slow a beneficiary’s deterioration or to maintain a beneficiary at his or her maximum practicable level of function even though no further improvement in the beneficiary’s condition is expected. Scholars who have focused on beneficiaries who have suffered severe brain injuries, in particular, have framed public insurance coverage of skilled brain rehabilitation as an important civil, disability, and educational right. Given that approximately two-thirds of Americans with health insurance are covered by private health insurance and that many private health plans continue to require their insureds to demonstrate improvement within a short period of time to obtain coverage of skilled care, scholarship assessing private health insurance coverage of skilled care is important but noticeably absent from the literature. This article responds to this gap by highlighting state benchmark plans’ and other private health plans’ continued use of the Improvement Standard in skilled care coverage decisions and identifying possible legal approaches for removing the Improvement Standard in private health insurance. This article also calls for scholars in health law, disability law, and insurance law, among other doctrinal areas, to evaluate the ethics and values associated with the continued use of the Improvement Standard in private health insurance. Full article

(This article belongs to the Special Issue Health Care Law and the Rights of Individuals with Disabilities)

188 KiB

Open AccessFeature PaperArticle

Sex, Sexuality, Sexual Offending and the Rights of Persons with Mental Disabilities

by Michael L. Perlin, Heather Ellis Cucolo and Alison J. Lynch

Laws 2017, 6(4), 20; https://doi.org/10.3390/laws6040020 - 18 Oct 2017

Cited by 1 | Viewed by 4029

Abstract

Although the legal issues related to sexual autonomy and sexual offending are significantly different, the resistance to providing adequate and effective counsel and the employment of the vividness heuristic (to privilege anecdote and reject valid and reliable research) is similar in both cases. [...] Read more.

Although the legal issues related to sexual autonomy and sexual offending are significantly different, the resistance to providing adequate and effective counsel and the employment of the vividness heuristic (to privilege anecdote and reject valid and reliable research) is similar in both cases. The past forty years has seen an explosion of interest in mental disability law, and a significant expansion of rights for the population of persons with mental disabilities, both in institutions and the community, during which the society has witnessed a revolution in American mental disability law. It saw the first broad-based, federal civil rights statutes enacted on behalf of persons with mental disabilities. It witnessed the creation of a “patients’ bar” to provide legal representation to such persons. But this revolution largely bypassed persons seeking to argue for sexual autonomy and seeking to apply procedural and substantive due process to matters involving invocation of the sexually violent predator status. However, at the same time that all this happened, another parallel set of developments has had a profound application on mental disability law—on case law, statutes, administrative regulations and lawyers’ roles. The expansion of the school of legal analysis known as therapeutic jurisprudence has caused scholars to reconsider many of the basic principles of this area of law, and it is critical that any analysis of mental disability law take the insights of this area seriously. The question we address in this paper is this: although there has been a general “revolution” in mental disability law, there are those whom it has not affected. To what extent does the law that governs sexual autonomy and that governs matters involving alleged sexually violent predators comport with these therapeutic jurisprudence principles? This paper considers that question. Full article

(This article belongs to the Special Issue Health Care Law and the Rights of Individuals with Disabilities)

187 KiB

Open AccessArticle

Reading Alexander V. Choate Rightly: Now is the Time

by Leslie Francis and Anita Silvers

Laws 2017, 6(4), 17; https://doi.org/10.3390/laws6040017 - 08 Oct 2017

Cited by 5 | Viewed by 3779

Abstract

Whatever happens to the Affordable Care Act (ACA) over the next few years, it is fair to assume that state Medicaid programs will be subjected to cost control measures. Despite the recent deployment of substantial arguments to the contrary, the belief still persists [...] Read more.

Whatever happens to the Affordable Care Act (ACA) over the next few years, it is fair to assume that state Medicaid programs will be subjected to cost control measures. Despite the recent deployment of substantial arguments to the contrary, the belief still persists that the Supreme Court’s decision in Alexander v. Choate over thirty years ago stands for the proposition that disability anti-discrimination law does not impose requirements on the structure of Medicaid benefits. This belief is misleading at best. In this article, we challenge the access/content distinction and the straitened interpretation of Alexander v. Choate that has resulted from it. We then use cases drawn from education to point the way to a more robust analysis of meaningful access to health care and the constraints it places on the design of state Medicaid programs. Full article

(This article belongs to the Special Issue Health Care Law and the Rights of Individuals with Disabilities)

Review

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175 KiB

Open AccessFeature PaperReview

Barriers to Physician Aid in Dying for People with Disabilities

by Alicia Ouellette

Laws 2017, 6(4), 23; https://doi.org/10.3390/laws6040023 - 01 Nov 2017

Cited by 1 | Viewed by 5482

Abstract

Terminally ill people with disabilities face multiple barriers when seeking physician aid in dying (PAD) in the United States. The first is legality. Efforts to legalize the practice have been thwarted in dozens of states in part due to vocal opposition by advocates [...] Read more.

Terminally ill people with disabilities face multiple barriers when seeking physician aid in dying (PAD) in the United States. The first is legality. Efforts to legalize the practice have been thwarted in dozens of states in part due to vocal opposition by advocates for people with disabilities who contend that legalized aid in dying discriminates against and harms people with disabilities by leading to their premature and unnecessary deaths. Some disability rights advocates disagree with their colleagues, however, and support legalization on the ground that it promotes autonomy and independence at the end of life. For proponents, legalization in six states is proving to be an illusive victory. Emerging reports from the states where PAD is legal suggest that people with disabilities may face special and impenetrable barriers when seeking legal aid in dying. This article identifies four such barriers: procedural protections embedded in PAD statutes; physician objection; cost; and a rule pertaining to California veterans. The article calls for additional study to determine the extent to which these barriers have a disparate impact on care options available to terminally-ill people with disabilities. Full article

(This article belongs to the Special Issue Health Care Law and the Rights of Individuals with Disabilities)

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