Disability Law Commons^™

How To Compromise On Saving The Most Lives: A Commentary On Hellman And Nicholson, “Rationing And Disability”, David Wasserman

Washington and Lee Law Review Online

Deborah Hellman and Kate Nicholson’s “Rationing Disability” is a skillfully integrated analysis of the legal and ethical challenges of avoiding disability discrimination in setting priorities for the allocation of scarce lifesaving resources. Their analysis goes beyond the important but narrow question of what it means to wrongfully discriminate against people with disabilities in this context to the broader question of how to find a principled compromise between the consequentialist goals of public health and the potentially conflicting public value of “equal concern and respect” for each person. I will focus on this broader issue.

I agree with much …

The Historical Diagnosis Criterion Should Not Apply: Reasonable Accommodations In Standardized Testing For Individuals With A Later Diagnosis Of Adhd, Denise Elliot

Journal of Law and Policy

There is a growing number of adults being diagnosed with ADHD who were not diagnosed in childhood, misdiagnosed, or primarily exhibited symptoms in adulthood. Notably, most of the later diagnoses of ADHD in adults are individuals pursuing some level of higher education. Some of the reasons posited for this increase in ADHD diagnoses in higher education may be attributed to increased workloads, decreased structural and community supports, misdiagnosis in childhood, masking, and racial and socioeconomic factors that overlook subpopulations like children of color, female-presenting, and gender-nonbinary children with ADHD. Unfortunately, testing agencies that administer college entrance exams, graduate school entrance …

Pain Is Enough: Chronic Pain As Disability, Katherine L. Moore

Buffalo Law Review

States have historically failed to recognize chronic pain as a disability. In medicine, chronic pain has gained increasing recognition as a disability in and of itself, even absent a current, medically determinable physical impairment. The law, however, has been slow to catch up. This Article argues that chronic pain is a disability, even without medical evidence of an underlying impairment, because of pain’s significant functional impact on the body and mind. In the 2018 case of Saunders v. Wilkie, the United States Court of Appeals for the Federal Circuit recognized that “pain is enough” for a veteran to be …

Frankson Musukwa (Suing On His Own Behalf And As Executive Director Of Zambia Deaf Youth And Women) & Others V. Road Transport And Safety Agency, Natasha Kapuka

SAIPAR Case Review

The facts giving rise to the Musukwa case emanate from the revolving debate on whether deaf people should be allowed to drive in the same way that able-bodied individuals have the liberty to. The Petitioners (all deaf) approached the Court seeking a ruling to the effect that S.62 of the Road Traffic Act, No. 11 of 2002 violate Articles 11(b), 22(1)(a) & 23(2) of the Constitution of Zambia. The Petitioners contended that the Respondent’s refusal to grant the 2nd Petitioner a driver’s license, and its decision to revoke the 3rd Petitioner’s license was a violation of their freedom of movement …

To Bar Or Not To Bar: Title I Of The Ada And After-Acquired Evidence Of A Plaintiff's Failure To Satisfy Job Prerequisites, Kathryn Johnson-Monfort

William & Mary Business Law Review

Through enactment of Title I of the Americans with Disabilities Act (ADA) in 1990, Congress unequivocally resolved to prohibit discrimination on the basis of disability in the workplace. However, distortions have since created loopholes through which disability-based employment discrimination may freely slip. An enforcement regulation promulgated by the Equal Employment Opportunity Commission (EEOC) enables such circumvention of the ADA by creating an additional prima facie requirement: a plaintiff must not only be able to perform the essential functions of the position as required by the statute, but must also satisfy all job-related requirements of the position as demanded by the …

Testing The Efficacy Of Leadership For Empowerment And Abuse Prevention (Leap), A Healthy Relationship Training Intervention For People With Intellectual Disability, Parthenia Dinora, Seb Prohn, Elizabeth P. Cramer, Molly Dellinger-Wray, Caitlin Mayton, Allison D'Aguiliar

Developmental Disabilities Network Journal

Leadership for Empowerment and Abuse Prevention (LEAP) is an abuse prevention intervention for people with intellectual disability. The purpose of this research was to evaluate the intervention’s efficacy. Findings indicated no significant differences in scenario identification questions depicting acceptable or concerning situations. However, statistically significant improvements were noted in participants’ depth of understanding, including their ability to correctly describe why a scenario was abusive or exploitative and what to do next when confronted with unhealthy situations. Limitations and implications for practice are discussed.

College Students’ Knowledge Of And Openness To Students With Autism Spectrum Disorder, Louis W. Turchetta, Valerie Ryan

Developmental Disabilities Network Journal

College students with autism spectrum disorder (ASD) face challenges due to limited understanding of this condition. This study investigates college students' awareness of and openness to peers with ASD using an educational intervention. Data were analyzed via a pre–post survey design with two groups.

Factorial analysis of variance showed no significant differences between groups. However, a Wilcoxon signed-rank test revealed significant differences in the treatment group’s ranks on the openness scale and knowledge scale between pre- and post-intervention surveys. Findings yielded small (openness) and large effect sizes (knowledge) as expected. Brief educational interventions in required courses can thus potentially enhance …

Advance Care Planning Within Individualized Care Plans: A Component Of Emergency Preparedness, Heather L. Church, Christina Marsack-Topolewski, Jacqueline M. Mcginley, Victoria Knoke

Developmental Disabilities Network Journal

Federally-legislated Medicaid requirements for recipients with intellectual and/or developmental disabilities (IDD) to have a person-centered plan (PCP) do not specifically require that advanced care plans (ACP) be a component of the plan. However, coronavirus disease 2019 (COVID-19) has provided a salient reminder of the importance of incorporating ACP within the PCP for people who have IDD. As demonstrated by situations arising from COVID-19, emergencies and crises can dramatically alter access to care for people with IDD. This paper synthesizes results from an environmental scan related to ACP for adults with IDD. Findings suggest that the use of ACP, particularly when …

Editorial: Increasing Accessibility In Academic Publishing And Upcoming Initiatives, Matt Wappett

Developmental Disabilities Network Journal

This editorial provides an overview of the current issue, and then several initiatives that DDNJ is working on to increase the accessibility of academic publishing. This editorial introduces our new podcast and our upcoming presentation at the Fall 2021 AUCD Conference.

Maternity Rights: A Comparative View Of Mexico And The United States, Roberto Rosas

The Scholar: St. Mary's Law Review on Race and Social Justice

Women play a large role in the workplace and require additional protection during pregnancy, childbirth, and while raising children. This article compares how Mexico and the United States have approached the issue of maternity rights and benefits. First, Mexico provides eighty-four days of paid leave to mothers, while the United States provides unpaid leave for up to twelve weeks. Second, Mexico allows two thirty-minute breaks a day for breastfeeding, while the United States allows a reasonable amount of time per day to breastfeed. Third, Mexico provides childcare to most federal employees, while the United States provides daycares to a small …

The Origins Of University Centers On Developmental Disabilities: Second Generation Expectations And Growth, Bryce Fifield, Marvin G. Fifield

Developmental Disabilities Network Journal

Part two of a two part publications tracing the evolution of University Centers on Disabilities. Originally University Affiliated Facilities evolved into University Affiliated Programs on disabilities. Early expectations outlined by President Kennedy's Committee on Mental Retardation grew as funding for disability services and programs became available. Key legislation, program developments and organizational decisions are described for the time frame of 1970 through 2000.

Disability Without Documentation, Katherine A. Macfarlane

Fordham Law Review

Disability exists regardless of whether a doctor has confirmed its existence. Yet in the American workplace, employees are not disabled, or entitled to reasonable accommodations, until a doctor says so. This Article challenges the assumption that requests for reasonable accommodations must be supported by medical proof of disability. It proposes an accommodation process that accepts individuals’ assessments of their disabilities and defers to their accommodation preferences. A documentation-free model is not alien to employment law. In evaluating religious accommodations, employers—and courts—take a hands-off approach to employees’ representations that their religious beliefs are sincere. Disability deserves the same deference. This Article …

Rationing And Disability: The Civil Rights And Wrongs Of State Triage Protocols, Deborah Hellman, Kate M. Nicholson

Washington and Lee Law Review

The COVID-19 pandemic and the unprecedented natural disasters of 2020 remind us of the importance of emergency preparedness. This Article contributes to our legal and ethical readiness by examining state “Crisis Standards of Care,” which are the standards that determine how medical resources are allocated in times of scarcity. The Article identifies a flaw in the policy choice at the heart of the standards: the standards focus on saving as many lives as possible but, in so doing, will predictably disadvantage the ability of people with disabilities and racial minorities to access life-saving care.

To date, scholarly attention has focused …

The Rise Of Ada Title Iii: How Congress And The Department Of Justice Can Solve Predatory Litigation, Sarah E. Zehentner

Brooklyn Law Review

The Americans with Disabilities Act (ADA) was enacted in 1990 to afford equal opportunities for individuals with disabilities. Title III of the ADA, specifically, was enacted to afford disabled individuals equal access to places of public accommodation. When the ADA was enacted, the internet was still in its infancy and Congress did not contemplate the need for governing accessibility to websites of public accommodations. Today, the internet has become embedded in virtually every aspect of our lives, yet there are still millions of disabled individuals who are unable to equally access the websites of American businesses. With the ADA being …

One-Shotters Or Have-Nots Should Come Out Ahead In The District Of Columbia’S Private Sector Workers’ Compensation System, But Do They?, Melissa Lin Jones

Journal of the National Association of Administrative Law Judiciary

In recognition of the humanitarian purpose of the District of Columbia Workers’ Compensation Act of 1979, D.C. Code as amended, §32-1501 et seq. and the legislative policy favoring awards even in arguable cases, a claimant is entitled to a presumption of compensability (“Presumption”) when applying for workers’ compensation benefits. By establishing a causal connection between the injured worker’s disability and a work-related event, the Presumption enables a claimant to establish entitlement to benefits more easily; however, an analysis of decisions issued by the Compensation Review Board from 2005 – 2019 reveals the Presumption frequently is misapplied. Moreover, contrary to Marc …

Why Proving A Work-Related, Psychological Injury Claim Stresses You Out, Melissa Lin Jones

Journal of the National Association of Administrative Law Judiciary

In recognition of the humanitarian purpose of the District of Columbia Workers’ Compensation Act of 1979, D.C. Code as amended, §32-1501 et seq. and the legislative policy favoring awards even in arguable cases, a claimant is entitled to a presumption of compensability (“Presumption”) when applying for workers’ compensation benefits. By establishing a causal connection between the injured worker’s disability and a work-related event, the Presumption enables a claimant to establish entitlement to benefits more easily; however, misapplication of the Presumption makes it more difficult for claimants to prove work-related psychological injuries because they must satisfy additional requirements (including a credibility …

Lessons From The Pandemic: Congress Must Act To Mandate Digital Accessibility For The Disabled Community, Shawn Grant

University of Michigan Journal of Law Reform

The upheaval and disruption created by the COVID-19 pandemic has left some of our most vulnerable, the disabled community, facing increased discrimination and hardship due in part to lack of access to websites and other digital technologies. The pandemic has laid bare the extent of our dependence on technology and the perils faced by those who are unable to access that technology. This Article identifies the regulatory, judicial, and legislative failures to resolve the issue of whether digital technologies are “places of public accommodation” under Title III of the Americans with Disabilities Act. It then calls on Congress to enact …

Why Disability Studies In Criminal Law And Procedure?, Jamelia N. Morgan

Journal of Legal Education

No abstract provided.

Book Review Of Integrating Doctrine And Diversity: Inclusion And Equity In The Law School Classroom, Ryan H. Nelson, Michael Ashley Stein

Journal of Legal Education

No abstract provided.

Now And Again: Reappraising Disability Leave As An Accommodation, Ryan H. Nelson

BYU Law Review

No abstract provided.

Olmstead As A Tool For Decarceration, Sarah Kahn

UC Irvine Law Review

Olmstead v. L.C. ex rel. Zimring established that the Americans with Disabilities Act of 1990’s integrated-care mandate requires the government to make reasonable accommodations to protect the right of people with disabilities to live in the most integrated setting possible. In response, counties began releasing people from restrictive mental-health institutions but did not provide the necessary resources, such as supportive housing and outpatient care, to allow people to live successfully in their communities. As many people contending with disabilities were left homeless and the United States increased its reliance on incarceration, shuttered mental-health institutions gave way to jails and prisons. …

Unilateral Burdens And Third-Party Harms: Abortion Conscience Laws As Policy Outliers, Nadia Sawicki

Indiana Law Journal

Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers’ rights to refuse—and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences—are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This Article …

Fulfilling Porter's Promise, Danielle Allyn

William & Mary Journal of Race, Gender, and Social Justice

Despite the Porter court’s reference to a “long tradition of according leniency to veterans,” in the criminal legal system, veterans are overrepresented on death rows across America, including Georgia’s. Most of these veterans come to death row with experiences of marginalization due to other aspects of their identity, such as race or mental disability.

This Article examines the cases of six men executed in Georgia, each with a history of military service, and each with experiences of disenfranchisement based on race and/or mental disability. At trial, each confronted legal risks that disproportionately place Black people and people with mental disabilities …

Confronting Eugenics Means Finally Confronting Its Ableist Roots, Robyn M. Powell

William & Mary Journal of Race, Gender, and Social Justice

In September 2020, a whistleblower complaint was filed alleging that hysterectomies are being performed on women at an immigration detention center in alarmingly high rates. Regrettably, forced sterilizations are part of the nation’s long-standing history of weaponizing reproduction to subjugate socially marginalized communities. While public outrage in response to the whistleblower complaint was swift and relentless, it largely failed to acknowledge how eugenic ideologies and practices, including compulsory sterilizations, are ongoing and deeply entrenched in ableism. Indeed, a conversation that recognizes the ways in which eugenics continues to target people with disabilities is long overdue.

This Article contextualizes how eugenics …

The Future Of The Americans With Disabilities Act: Website Accessibility Litigation After Covid-19, Randy Pavlicko

Cleveland State Law Review

The Americans with Disabilities Act (ADA) was enacted in 1990 to eliminate discrimination against individuals with disabilities. Over time, as society has become more reliant on the internet, the issue of whether the ADA’s scope extends beyond physical places to online technology has emerged. A circuit split developed on this issue, and courts have discussed three interpretations of the ADA’s scope: (1) the ADA applies to physical places only; (2) the ADA applies to a website or mobile app that has a sufficient nexus to a physical place; or (3) the ADA broadly applies beyond physical places to online technology. …

Mobile-Based Transportation Companies, Mandatory Arbitration, And The Americans With Disabilities Act, Tamar Meshel

Journal of Law and Mobility

Uber, Lyft, DoorDash and similar mobile-based transportation network companies (TNCs) have been involved in numerous legal battles in multiple jurisdictions. One contested issue concerns whether TNC drivers are employees or independent contractors. Uber recently lost this battle to some extent in the UK, but won it in California. Another issue concerns the TNCs’ use of mandatory (pre-dispute) arbitration clauses in their standard form service agreements with both drivers and passengers. These arbitration clauses purport to obligate such future plaintiffs to resolve any dispute with the defendant TNC outside of court and, typically, on an individual rather than a class basis. …

Enough! Eliminating Police Abuse Of Individuals Of Color With Disabilities, Ann C. Mcginley

Nevada Law Journal

No abstract provided.

Reviving Negotiated Rulemaking For An Accessible Internet, Julie Moroney

Michigan Law Review

Web accessibility requires designing and developing websites so that people with disabilities can use them without barriers. While the internet has become central to daily life, websites have overwhelmingly remained inaccessible to the millions of users who have disabilities. Congress enacted the Americans with Disabilities Act (ADA) to combat discrimination against people with disabilities. Passed in 1990, it lacks any specific mention of the internet Courts are split as to whether the ADA applies to websites, and if so, what actions businesses must take to comply with the law. Further complicating matters, the Department of Justice (DOJ) initiated the rulemaking …

Excluding 'Undesirable' Immigrants: Public Charge As Disability Discrimination, Alessandra N. Rosales

Michigan Law Review

Public charge is a ground of inadmissibility based upon the likelihood that a noncitizen will become dependent on government benefits in the future. Once designated as a public charge, a noncitizen is ineligible to be admitted to the United States or to obtain lawful permanent residence. In August 2019, the Trump Administration published a regulation regarding this inadmissibility ground. Among its mandates, the rule expanded the definition of a public charge to include any noncitizen who receives one or more public benefits for more than twelve months in a thirty-six-month period It also instructed immigration officers to weigh medical conditions …

The Legal Boundaries For Impartiality Of Idea Hearing Officers: An Update, Perry A. Zirkel

Pepperdine Dispute Resolution Law Journal

Special education has become a significant area of litigation in the K-12 school context. The impartial hearing officer (“IHO”) is the fulcrum of the adjudicative process under the Individuals with Disabilities Act (“IDEA”). However, the IDEA only provides for two standards for impartiality while the framework of remaining standards are left—via the IDEA’s structure of “cooperative federalism”—to state laws. Ultimately, the courts serve as the chief cartographer for the legal boundaries of IDEA IHO impartiality in their interpretation, gap-filling, and application of the federal and state framework. The previous research relating at least in part to IDEA IHO impartiality is …