Magazine article Developments in Mental Health Law

State Disability Rights Bill Revised

Magazine article Developments in Mental Health Law

State Disability Rights Bill Revised

Article excerpt

A substantially revised version of the Virginians with Disabilities Act (H.B. 817) was approved by a state Senate Subcommittee on November 19, 1984.

On December 13 the full Senate Committee on Rehabilitation and Social Services approved the bill.

Final action on the bill will be taken when the General Assembly convenes in January.

The proposal, whose chief sponsor is Delegate Warren G. Stambaugh of Arlington, continues to call for sweeping systemic changes in state services to persons with disabilities including, most importantly, the creation of a state Board for Rights of the Disabled and a Department for the Rights of the Disabled.

An extensive new statutory framework for the delivery of vocational rehabilitative services is proposed, along with a mandate that these and other services be coordinated to avoid gaps in and duplication of services.

Opponents of the bill, consisting of some businesses, educational institutions and municipal corporations, nonetheless achieved a dramatic diminution of the rights and remedies which would be available under Chapter 9 of the bill. While most of these restrictions on these rights are readily apparent from the excerpts reprinted below, the most important obstacles to an individual's asserting rights are embedded in the definition of a "person with a disability."

Only if one met that definition would he be protected by the provisions of Chapter 9. Even then he would have several major hurdles to clear, such as a claim by the employer that the disabled person was not "qualified," that the accommodation needed was "unreasonable," or that the accommodation worked an "undue hardship" on the employer or endangered other employees.

But few persons will fall under the definition of a "person with a disability." That definition in Section 51.01-3 requires a person to have an impairment which "substantially limits one or more major life activities or has record of such impairment." At the same time, that person's "substantial" impairment must be "unrelated" to employment or education or the ability to use public accommodations or private property if that person is to have rights regarding employment, education, public accommodations or private property, respectively.

The bill in this way excludes most persons with disabilities from the protection of Chapter 9 and leaves in doubt the significance of the requirements of "reasonable accommodation" contained in that chapter. Why, it must be asked, would an employer need to make an accommodation of any kind for a person whose impairment (though it is "substantial") is "unrelated" to the employment?

Persons with mental illness would encounter additional difficulties under Chapter 9. By definition persons with substance abuse disorders would be excluded altogether from protection under Chapter 9. Persons with mental illness would be protected only if the mental illness were sufficiently severe to impair cognitive or volitional functioning, in which case the impairment would almost certainly not be "unrelated" to, for example, employment Business lobbyists continue to call for total exclusion of mental impairments from the protection of Chapter 9.

Key portions of the bill, together with its "executive summary," as they appeared at the time of the Senate Subcommittee approved H.B. 817, are reproduced below.

Excerpts from the Proposed Virginians with Disabilities Act

[section] 51.01-3. Definitions.--As used in this title except where the context requires a different meaning or where it is otherwise provided, the following words shall have the meaning ascribed to them:

"'Mental impairment" means (i) suffering from a disability attributable to mental retardation, autism, or any other neurologically handicapping condition closely related to mental retardation and requiring treatment similar to that required by mentally retarded individuals; or (ii) an organic or mental impairment that has substantial adverse effects on an individual's cognitive or volitional functions, including central nervous system disorders of significant discrepancies among mental functions of an individual The term "mental impairment" does not include alcoholism or drug addiction and does not include any mental impairment, disease, or defect that has been asserted by an individual as a defense to any criminal charge. …

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