Table Of ContentDISABLED PERSONS
AND THE LAW
State Legislative Issues
LAW, SOCIETY, AND POLICY
Series Editors: Joel Feinberg, Travis Hirschi,
Bruce Dennis Sales, and David B. Wexler
University of Arizona
Volume 1 DISABLED PERSONS AND THE LAW: State Legislative Issues
Bruce Dennis Sales, D. Matthaw Powell, Richard Van Duizend,
and Associates
DISABLED PERSONS
AND THE LAW
State Legislative Issues
Bruce Dennis Sales,
D. Matthew Powell,
Richard Van Duizend,
and Associates
Developmental Disabilities State Legislative Project
of the American Bar Association's
Commission on the Mentally Disabled
SPRINGER SCIENCE+BUSINESS MEDIA, LLC
Library of Congress Cataloging in Publication Data
Sales, Bruce Dennis.
Disabled persons and the law.
(Law, Society, and Policy; v. 1)
"Developmental Disabilities State Legislative Project of the American Bar
Association's Commission on the Mentally Disabled."
Bibliography: p.
Includes index.
1. Handicapped-Legal status, laws, etc.-United States-States. I.
Powell, D. Matthew. II. Van Duizend, Richard. III. American Bar Association.
Commission on the Mentally Disabled. IV. Title. V. Series.
KF480.Z95S34 1982 346.7301 '3 82-9089
ISBN 978-1-4757-0796-0 ISBN 978-1-4757-0794-6 (eBook)
DOl 10.1007/978-1-4757-0794-6
The United States government retains a royalty-free, nonexclusive, and
irrevocable license to reproduce, publish, or otherwise use, and to
authorize others to use, the materials developed in the course of
Grant Nos. 54-P-71162/3 01-03 for governmental purposes.
© 1982 Springer Science+Business Media New York
Originally published by Plenum Press, New York in 1982
Softcover reprint of the hardcover 1s t edition 1982
All rights reserved
No part of this book may be reproduced, stored in a retrieval system, or transmitted,
in any form or by any means, electronic, mechanical, photocopying, microfilming,
recording, or otherwise, without written permission from the Publisher
ACKNOWLEDGMENT
Development of this manuscript was funded in
part by Grant #54-P-71162/3 from the U.S. Depart-
ment of Health and Human Services, Bureau of
Developmental Disabilities. Special thanks are due
to Alfred Rose, our project monitor from the
Bureau, and to Daniel L. Skoler, past director of the
Public Service Activities Division of the American
Bar Association, for their constant help and con-
cern. The content herein does not necessarily
represent the policy of the Department or the
American Bar Association or any of the other na-
tional organizations represented on the Project's
Advisory Board unless specifically adopted as
such.
v
The American Bar Association's Commission on
the Mentally Disabled has been concerned since
its inception with advancing the rights of mentally
ill and developmentally disabled persons. Toward
this end, the Commission created the Develop-
mental Disabilities State Legislative Project to
define these rights in the context of state legisla-
tion. The Commission members believe that this
product will be of substantial help to state legis-
lators, advocates, service providers, professors,
and all others concerned with the role of the state
in providing services for and protecting the rights
of disabled citizens. Thus, we commend this book
to your attention.
McNeill Smith, Chairman
American Bar Association
Commission on the Mentally Disabled
vii
AUTHORS'NOTE
The research for this volume was conducted between
1977 and 1980. It is likely that there have been changes
in pertinent state code provisions and federal statutes
since this work has been completed. For example, the
functions of the Secretary of the United States Depart-
ment of Health, Education, and Welfare relating to edu-
cation that are referred to in Chapter 5 have been trans-
ferred to the Secretary and Department of Education,
and the state of Alaska enacted comprehensive guard-
ianship legislation in 1981 (see Chapter 7). Although
changes such as these will require readers to check
specific citations before relying on them, they do not
alter the import of this book nor of the scope of the law-
related problems facing disabled persons.
ix
PREFACE
The Developmentally Disabled Assistance and provement that lies ahead. In fact, there are almost
Bill of Rights Act of 1975 (P.L. 94-103) establishes no up-to-date model laws or legislative guidelines3
an ambitious national priority for furtherance of to which states can refer for guidance or, indeed,
services to, and the rights of, developmentally for information on the types of progressive bills
disabled persons. Its provisions for comprehensive currently being enacted or being considered in
planning, federal financial aid, fostering of training other states. Yet, it is clear that the next five years
and improved service techniques, program coordi- will see a considerable amount of legislative activi-
nation and evaluation and, perhaps most signifi- ty concerned with rights, services, and needs of
cantly, protection of vital rights of developmentally developmentally disabled persons.
disabled persons requires a massive adjustment of With financial support from the U.S. Department
state legislation and implementing regulations if of Health and Human Services, Bureau of Develop-
the ultimate goals of this pioneering effort are to mental Disabilities, the American Bar
be realized. Association's Commission on the Mentally Dis-
At the same time national leadership in this abled initiated the Developmental Disabilities
field, as exemplified by the 1976 "Century of Deci- State Legislative Project to fill that void by pro-
sion" Report of the President's Committee on Men- viding detailed analyses of existing law, com-
tal Retardation,1 and the evolving positions of na- prehensive discussions of more appropriate provi-
tional "consumer" and professional associations,2 sions and, where appropriate, actual model state
has shown an increased appreciation of the need legislation, that will safeguard the rights of
for careful and constructive law reform as a pre- developmentally disabled citizens and assure
condition for achievement of the goals of P.L. them equal access to quality services, consistent
94-103. In addition, an explosion in court litigation with the philosophy and requirements of P.L.
on behalf of developmentally disabled and mental- 94-103 and other pertinent federal enactments.4
ly ill persons has produced a number of constitu- This volume is the result of that effort. We hope
tionally mandated principles (e.g., right to habilita- that it will play an instrumental support role in
tion, right to public education, right to "due pro- several ways in the enactment of a variety of
cess" and legal representation in decisions to in- statutes by the states.
stiutionalize) that literally beg for statutory articu- First, by reviewing all past legislative develop-
lation and "fine tuning" if they are to be assured ments, it should help assure that any legislation
full and uniform implementation, and thereby advanced is well conceived and can draw on the
achieve a level of comprehensiveness and clarity
often not attainable through a succession of liti-
gated cases focused on specific factual situations
or settings. 3 A possible exception to this may be found in the area of
Unfortunately, very little national guidance ex- special education. The Council for Exceptional Children
developed a "Model State Law on the Education of Handicap-
ists for the enormous mission of legislative im-
ped Children" (first published in 1971) and now available in
CEO's PUBLIC POLICY IN THE EDUCATION OF EXCEPTIONAL
CHILDREN with numerous references to existing state statutes
and litigation. For valuable policy, principles and standard
"building blocks" for legislation in other areas, see also,
1 PRESIDENT'S COMMITTEE ON MENTAL RETARDATION, AMERICAN ASSOCIATION ON MENTAL DEFICIENCY, POSI·
MENTAL RETARDATION: CENTURY OF DECISION, 58-67, TION PAPERS ON RIGHTS OF MENTALLY RETARDED PER-
133-46 (1976); see also THE MENTALLY RETARDED CITIZEN SONS (1975); UNITED CEREBRAL PALSY ASSOCIATIONS,
AND THE LAW (Kindred ed., 1976); A. STONE, MENTAL HEALTH ORIENTATION-RESOURCE GUIDE FOR GOVERNMENTAL AC·
AND LAW: A SYSTEM IN TRANSITION, 119-44 (1975); D. WEX- TIVITIES (1976); and NATIONAL ASSOCIATION OF COORDINA-
LER, MENTAL HEALTH LAW: MAJOR ISSUES (1981). TORS OF STATE PROGRAMS FOR THE MENTALLY RE·
2 These groups include the National Association of Retarded TARDED, MENTAL RETARDATION TRENDS IN STATE SER-
Citizens, Council for Exceptional Children, United Cerebral VICES (1976).
Palsy Associations, American Association on Mental Deficien- 4 See, e.g., Education of All Handicapped Children Act of 1975,
cy, American Psychological Association, National Association Pub. L 94-142, 20 U.S.C. § 1401 (1976) (major federal support of
of Social Workers, Epilepsy Foundation of America, National public education); Rehabilitation Act of 1973, §§ 503, 504, 29
Society for Autistic Children and National Association of Coor· U.S.C. §§ 794-992 (1976) (prohibiting discrimination against
dinators of State Programs for the Mentally Retarded. handicapped persons in federally supported programs).
xi
xii PREFACE
most advanced concepts, and outstanding work ing advisory board which met regularly throughout
products from other states. Second, the manu- the project's duration (see listing of board
script identifies both the benefits and deficits of members, infra). This board consisted of a care-
existing legislation, analyzes alternative ap- fully selected group of experts representing eleven
proaches, and presents what we believe are the national organizations. The major subject matter
most appropriate approaches and, in most cases, areas were, of course, well known but decisions
models for states to adopt legislatively or at least such as grouping of topics and issues, and setting
use as the basis for revising and improving their the priorities for dealing with them required careful
current codes. Third, this manuscript should save analYSis and recourse to a broad spectrum of per-
considerable time and money for individual states spectives.
who would otherwise have to duplicate these ef-
(ii) Research on Current Status of Laws. Laws of
forts in order to assure that their own formulations
the 50 states, the District of Columbia, and the pos-
were sound. Finally, by analyzing alternative ap-
sessions and territories were researched to ascer-
proaches, it should help states resolve policy ques-
tain how these issues are handled under current
tions that may well arise on which states can have
codes and statutes and which jurisdictions are
legitimate differences in their legislative formula-
basically "haves" and "have nots" in terms of ade-
tions.
quate legislation in the various subject matter
In a very real sense, a test of our efforts and mea-
areas. While we accepted full responsibility for this
sure of its results and benefits will be the number
cataloging and classification function, we hoped
of "have not" states that become "have" states in
to minimize our labors in this area by tapping past
important legislative areas. No enactment, of
work and enlisting the continuing collaboration of
course, will be or can hope to be solely (or even
a number of organizations which we assumed had
primarily) attributable to our writing. Legislative
amassed such reviews of relevant legislative areas.
success is a matter of local responsibility and
Much to our surprise, however, with rare exception the
commitment and depends on a great deal more
compilation and reviews had not been undertaken by
than the availability of sound models and guidance
other groups. Thus, we had to perform this research and
in the drafting of legislation.
analysis without outside aid.
Toward this end, our writing is directed to all of
those individuals and groups who are concerned (iii) Development of Model/Guideline Units.
with legislative reform on behalf of developmen- Based on the initial consultation and priority-
tally disabled persons - program officials, service setting effort, analysis of the existing state laws,
providers, citizen advocacy groups, professional and the views of consumers, experts and organiza-
associations. nati'.)nal, state and local lay groups, tions in the field, we undertook the drafting of
civic organizations, bar committees, legislative introductions to the issues raised by each topic,
committees, law reform and public interest law of- detailed discussions of appropriate legislative pro-
fices, law professors, and state and local visions for all topics, and model state legislation
"decision-makers." Of these "decision-makers," a for most of them. These models included, where
particular target is the "State Planning Councils" appropirate, alternate sections and 'short' and
established under P.L. 94-103 in every state and 'long' forms for states with differing needs. Many
charged both with (i) supervising the development of the models address only developmentally dis-
of comprehensive plans under the Act and setting abled persons. Some include other groups as well
the direction and pace of program growth and (ii) where the issues and problems are parallel and
serving as advocates for persons with a develop- enactment of a broader statute appears more
mental disability. feasible and appropriate. Each chapter contains
analytic and comparative commentary, highlights
Methodology the most critical questions and choices behind
statutory proviSions, and offers practical informa-
In approaching our task, we adopted the follow-
tion on provisions most likely to engender sensi-
ing plan:
tivity and debate.
(i) Cataloging Issues and Establishing Priorities.
In order to insure accuracy and compret-tensi-
In consultation with the research and develop- bility, each chapter typically went through four or
ment staff of the Bureau of Developmental Disabili- five revisions. A member of the project staff, a
ties of the U.S. Department of Health and Human
special consultant, or a staff member with the ad-
Services, State Planning Council program officials,
vice of a special conslJltant (see listing of these
and representatives of concerned professional and consultants, infra) was assigned primary responsi-
citizen advocacy groups, we developed a compila- bility for preparing a draft based upon guidelines
tion of issues to be addressed in each major sub- developed by the adviSOry board and the staff. This
ject matter area to produce a comprehensive set of dr
att was then critically reviewed by staff and typi-
state laws serving developmentally disabled per- cally led to at least one and otten two more revi-
sons. Consultation was conducted through mail sions. This newest version was then presented to
survey, individual contacts, attendance at work- the advisory board for their comments and criti-
shops and meetings, and establishment of a work- cisms. Based upon their remarks, chapters under
