Disability Law Commons^™

Imaging Brains, Changing Minds: How Pain Neuroimaging Can Inform The Law, Amanda C. Pustilnik

Faculty Scholarship

What would the law do differently if it could see into the black box of the mind? One of the most valuable things it might do is reform the ways it deals with pain. Pain is ubiquitous in law, from tort to torture, from ERISA to expert evidence. Yet legal doctrines grapple with pain poorly, embodying concepts that are generations out of date and that cast suspicion on pain sufferers as having a problem that is “all in their heads.”

Now, brain-imaging technologies are allowing scientists to see the brain in pain—and to reconceive of many types of pain as …

Retaliation And The Reasonable Person, Sandra F. Sperino

Faculty Articles and Other Publications

When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.

Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence …

The Strained Dynamic Of The Least Restrictive Environment Concept In The Idea, Bonnie Spiro Schinagle, Marilyn J. Bartlett

Children's Legal Rights Journal

No abstract provided.

Around The World: America Ahead Of The Curve With Discussion Around Least Restrictive Environment: Education Rights For Children With Disabilities Around The World, Elise Harmening

Children's Legal Rights Journal

No abstract provided.

Health Justice: A Framework (And Calll To Action) For The Elimination Of Health Inequity And Social Injustice, Emily A. Benfer

American University Law Review

No abstract provided.

Still Kickin’ After All These Years: Sutton And Toyota As Shadow Precedents, Deborah A. Widiss

Articles by Maurer Faculty

Congress’s ability to override judicial opinions that interpret statutes is generally understood as an important aspect of maintaining legislative supremacy. In a series of articles, I have challenged the validity of this assumption by showing that courts often continue to rely on overridden precedents—what I have called shadow precedents. My earlier work explores instances in which it was unclear or debatable whether the override or the prior precedent should control. This article further documents such ambiguities, but its primary objective is to highlight examples of ongoing reliance on shadow precedents where it is unquestionably improper. It suggests, however, that citation …

The Intersection Of Agency Doctrine And Elder Law: Attorney-In-Fact Authority To Arbitrate Nursing Home Claims, 49 J. Marshall L. Rev. 39 (2015), Thomas Simmons

UIC Law Review

With the popularity of durable powers of attorney to manage the estates and personal affairs of individuals with diminished capacity, construction of the scope of powers with which agents are acting is of increasing importance. Some acts should be seen as so inherently personal or so dramatically inconsistent with the expected role of an agent as to be simply outside the scope of agency altogether. Others, such as those involving gifts, self-dealing transactions, or constitutional rights, should be never implied but honored when located within the express terms of an agent’s authority. The remaining powers should be construed and mapped …

Medicaid Spend Down, Estate Recovery And Divorce: Doctrine, Planning, And Policy, John A. Miller

Articles

Medicaid is the need-based government program that pays for much of the health care for the poor in the United States. Medicaid often ends up paying the costs of nursing home care for middle-class seniors who have descended into poverty as a result of the high costs of such care. For married couples, Medicaid requires a “spend down” of both spouses’ assets before one spouse can qualify for Medicaid support. This Article posits that, unless the law is changed, divorce may well become standard Medicaid planning practice in many circumstances. This will be especially true for middle and upper-middle-class married …

Accidentally On Purpose: Intent In Disability Discrimination Law, Mark Weber

College of Law Faculty

American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent in disability discrimination lawsuits. Intent requirements arose almost by accident: through a false statutory analogy; by repetition of obsolete judicial language; and by doctrine developed to avoid a nonexistent conflict with another law. Demanding that section 504 and Americans with Disabilities Act (“ADA”) claimants show intent imposes a burden not found in those statutes or their interpretive regulations. This Article provides reasons not to impose intent requirements for liability or monetary relief in section 504 and ADA cases concerning reasonable accommodations. It demonstrates that no …

Malingerer Or Maligned: A Comparative Study Of Multiple Chemical Sensitivity Case Law, Odelia R. Bay

Osgoode Legal Studies Research Paper Series

People with invisible illnesses are challenged both by their impairments and the additional hurdles they face when it comes to being believed by others. This presents particular difficulties when seeking to convince those with the authority to make legal findings of discrimination or entitlement to accommodation. By focusing on the historically contested diagnosis of multiple chemical sensitivities (“MCS”), this paper examines the outer limits of how disability is defined and the legal rights given to people whose claims are viewed as suspect. Specifically, comparison is made between MCS employment cases in the United States and Canada.

In both jurisdictions, plaintiffs …

An Americans With Disabilities Act Critique Of Advance Directive Override Provisions, Judy Ann Clausen

UF Law Faculty Publications

This Article argues many mental health advance directive statutes violate the Americans with Disabilities Act (ADA). Advance directives empower people to determine care to be administered when they lack capacity to provide informed consent. General advance directives typically address end-of-life care. Mental health directives govern treatment administered during periods of incapacity caused by acute episodes. Because end-of-life decision-making is different than planning for episodic mental illness, half of the states have enacted separate mental health directive statutes. These specialized statutes often provide doctors more leeway to force treatment on a patient in contravention of a directive than do generic directive …

Bring Ulysses To Florida: Proposed Legislative Relief For Mental Health Patients, Judy Ann Clausen

UF Law Faculty Publications

This Article urges the Florida legislature to give patients the right to form Ulysses arrangements, which are a special type of mental health advance directive authorizing a doctor to administer treatment during a future episode even if the episode causes the patient to refuse treatment. Acute mental illness episodes may disrupt a patient’s capacity to provide informed consent and cause the patient to refuse necessary intervention. In Florida, a physician cannot involuntarily examine, hospitalize, or treat a person unless she meets strict criteria, essentially requiring the person’s behavior to reveal that she is dangerous to herself or others. Even a …

Data Note: State Intellectual And Developmental Disability Agencies' Service Trends, Jean Winsor, Thinkwork! At The Institute For Community Inclusion At Umass Boston

Data Note Series, Institute for Community Inclusion

In FY2013, an estimated 607,959 individuals received day or employment supports from state IDD program agencies. This number grew from 457,405 in FY1999. The estimated number of individuals in integrated employment services increased from 108,680 in FY1999 to 113,271 in FY2013. State investment continues to emphasize facility-based and non-work services, rather than integrated employment services. Figure 1 shows the trends in the percentage of people served in integrated employment and facility-based and non-work settings between FY2004 and FY2013.

Data Note Plus: Federal Data Snapshot Of Puerto Rico On Individuals With Disabilities, Daria Domin, Jean Winsor, Thinkwork! At The Institute For Community Inclusion At Umass Boston

Data Note Series, Institute for Community Inclusion

Prior to 2012, four data projects funded by the Administration on Intellectual and Developmental Disabilities (AIDD)—Access to Integrated Employment, Family and Individual Information Systems Project, Residential Information Systems Project, and the State of the States in Developmental Disabilities—only collected data from the 50 states and the District of Columbia. However, a 2012 Funding Opportunity Announcement (FOA) from AIDD requested that applicable AIDD data projects include the five U.S. Territories (American Samoa, the Commonwealth of the Northern Marianas Islands, Guam, Puerto Rico, and the Virgin Islands) in their data collection and analysis efforts. This Data Note represents an expansion of our …

Introduction To Community Life Engagement (Engage: A Brief Look At Community Engagement, Issue No. 1, 2015), Jennifer Sullivan Sulewski, Jaimie Ciulla Timmons, Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

As national disability policy prioritizes greater support for community-based integrated employment for individuals with intellectual and developmental disabilities (IDD), the level of participation in services for other daytime activities continues to grow (Winsor & Butterworth, 2012). The role of services related to engagement and participation in community life has to date been largely undefined. The purpose of this brief is to offer a definition of Community Life Engagement, share reasons for its relevance and timeliness, and present results from a Community of Practice with administrators and personnel from seven state IDD agencies hosted by the Institute for Community Inclusion (ICI) …

The Truth Comes From Us: Supporting Workers With Developmental Disabilities, Max Barrows, Jason Billehus, John Britton, Allison Cohen Hall, Juliana Huereña, Nicole Leblanc, Eric Mcvay, Karen Topper, Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

Employment professionals play a powerful role in the pursuit of true inclusion. This paper by self-advocates outlines key steps on how allies can move people with developmental disabilities out of poverty and into the heart of our communities.

Community Life Engagement: Data Sources, Definitions, And Measurement (Engage: A Brief Look At Community Engagement, Issue No. 2, 2015), Oliver Lyons, Allison Hall, Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

As state and federal policy makers and Community Service Providers work to refine the concept of Community Life Engagement, they are able to draw upon multiple, public, national data sources. These include: Institute for Community Inclusion (ICI)’s National Survey on Day and Employment Outcomes, National Core Indicators (NCI), ICI’s National Survey of Community Rehabilitation Providers.

This brief provides an introduction to these data sources. It examines emerging Community Life Engagement trends shown in each source, as well as the implications for developing a better understanding of Community Life Engagement based on how it is currently being classified and measured.

Crp Organizational Change (Bringing Employment First To Scale, Issue No. 2), Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

Federal and state policy shifts have opened the doors to meaningful community employment for individuals with intellectual/developmental disabilities (IDD). Progress is apparent across the country: creative outcomes for individuals with significant support needs through customized jobs and self-employment, innovative practices at the provider level, and state investment in an Employment First philosophy. Despite these achievements, the number of individuals supported in integrated employment by state agencies that serve individuals with IDD has remained the same since 2000. While some community rehabilitation providers (CRPs) across the country have transformed their services to focus on integrated employment, including closing facility-based programs, most …

Delphi Panel Findings, Brief #1: Introduction, Values, And Major Themes, Cindy Thomas, Jennifer Sulewski, Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

The Employment Learning Community has been developed to assist states in improving employment systems and services that will increase inclusive, competitive employment for individuals with IDD. To gain insights on the most cogent policies and priorities to promote such systems change, the project convened a panel of national subject matter experts to participate in a Delphi process. Nineteen Delphi panel members, including employment researchers, service providers, state vocational rehabilitation directors, developmental disability agency directors, educators, self-advocates, family members and representatives from related programs and initiatives, participated in four rounds of data collection. The values, policies, and practices that emerged from …

Integrating Research, Training, And Knowledge Translation (Bringing Employment First To Scale, Issue No. 1), Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

What our new center is about: People with intellectual and developmental disabilities (IDD) can work and want to work--yet the majority don’t have jobs. State and national policies exist to increase employment, but systems have not aligned to make integrated employment a priority. To meet this need, the Institute for Community Inclusion (ICI) at UMass Boston is hosting a new rehabilitation research and training center, or RRTC. It’s called the RRTC on Advancing Employment for Individuals with Intellectual and Developmental Disabilities. Because change is critical at multiple levels, the RRTC integrates four focus areas:

1. individual and family knowledge and engagement, …