Legal Commentary

Two stories on disability caught my eye recently and I think/hope have an applicablity to a wider audience.  The first is here.  In a discussion with a manager of a community mental health program, a New Hampshire state lawmaker said that "the world is too populated," that there are "too many defective people," and clarified that he was referring to "the mentally ill, the retarded, people with physical disabilities and drug addictions - the defective people society would be better off without.  I wish we had a Siberia so we could ship them all off to freeze to die and clean up the population."  Amidst the ensuring uproar, he resigned.  I take two points from this affair.  First, it is a reminder that stigma and bias against people with disabilities still exists.  In my experience, most people acknowledge this, although some still resist it.  Second, at least in its most blatant and extreme form, disability prejudice is outside the bounds of what is socially acceptable.  It is in less visible and vitriolic areas (for example, assuming that someone cannot do something because of their disability) where disability bias is still more mainstream.

Many of you might have seen the second story last weekend, featured here on the front page of the New York Times.  This was a report on a New York Times investigation that found widespread problems and abuses in the New York State small group home system for people with developmental disabilities.  There is some pretty sickening stuff in here; it makes for a tough read.  This article shows how difficult of a policy problem this is.  Various federal laws and court decisions implementing these laws (most recently the Supreme Court's Olmstead decision) have worked to move people with developmental disabilities out of large state institutions into community homes.  The idea is that in large, segregated institutions abuses are inevitable as dehumanization sets in, but, that with adequate social supports, people do better in the smaller homes in the community.  Although this challenges the existing Medicaid bias towards nursing homes, advocates have made some progress.  The Department of Justice under President Obama has made this a priority and brought some high-profile cases challenging states' failures to move people from institutions into community-based programs.  But this article demonstrates what lawyers who bring these cases know quite well - there still needs to be effective monitoring and oversight of community facilities, otherwise abuse will happen.  Clearly New York had some terrible failings in this regard.