The first forum in the 2023 Disability Law Series: Civil Rights and Individuals With Developmental Disabilities, sponsored and developed by Albany Law School’s Government Law Center and Institute for Aging and Disability Law, took place on January 12. The forum, “Overview of Civil Rights and People With Developmental Disabilities,” presented and introduced attendees to critical civil rights issues faced by people with developmental disabilities from the perspective of five attorneys, representing the judiciary, state policy makers, practitioners in the field of disabilities law, and educators. Hon. Leslie Stein, retired New York State Court of Appeals judge and current director of the Government Law Center, made introductory remarks. The forum garnered significant interest, based upon the number of participants and their questions and concerns. Attendees included parents and family members, clinicians, administrators, direct support professionals, and attorneys.
Moderating the forum was Tara Anne Pleat ’02, a founding partner of Wilcenski & Pleat PLLC and former chair of the New York State Bar Association (NYSBA) Elder Law and Special Needs Section. Roger Bearden, executive deputy commissioner of the NYS Office for People With Developmental Disabilities (OPWDD), presented on past, present, and future directions in state policy, with the centerpiece being the Americans With Disabilities Act and the resulting Olmstead v. L.C.i decision—the essence of which is that isolating people with intellectual and developmental disabilities (I/DDs) constitutes discrimination, per se.
Prianka Nair, assistant professor of law at Brooklyn Law School, presented a history and some perspectives on the concept of “capacity,” arguing that the term is largely a construct of current community values and norms. “Incapacity” then becomes an excuse for the government to intervene and curtail fundamental human rights and freedoms, including sexual expression and procreation. Historically, in both British and American jurisprudence, persons with I/DDs have been viewed and treated in the same manner as criminals.
Mira Weiss, founding and managing attorney of Weiss Law Group, PLLC, spoke about the myriad and broad definitions of “capacity” to exercise rights and freedoms—e.g., the ages for driving and drinking, education and training for licensed occupations, and, of course, intellectual capacity to make a will, vote, enter into contracts, etc. Weiss cited examples of incongruities in expressions and concepts of capacity, including their application to voting and jury service.
Hon. Kristen Booth Glen, former New York State Supreme Court judge, project director for Supported Decision-Making New York, and dean emerita of CUNY School of Law, presented on existing NYS guardianship statutes, the inherent inappropriateness of guardianship (and plenary guardianship, in particular), and the promise and implementation of the new Supported Decision-Making Statute (Mental Hygiene Law Article 82), for which she has advocated for a considerable time. Judge Glen (largely in agreement with the rest of the panel) reframed the historical threshold question surrounding guardianship: the question is no longer “What can’t this person do?” but rather “What support does this person need to be able to make their own decisions?”
The next forum in the series, “Consent in Health Care Decisions,” will be held on February 9, 2023, and will be moderated by Albany Law School President and Dean Alicia Oullette ’94. Panelists will include: Dr. Megan Applewhite, director of Albany Medical College’s Alden March Bioethics Institute; Haldan Blecher, senior attorney at NYS OPWDD; Sheila E. Shea ’86, director of the Third Judicial Department’s Mental Hygiene Legal Service; and Robert N. Swidler, vice president of legal services at St. Peter’s Health Partners. For more information and to register for upcoming forums, click here.
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i527 U.S. 581 (1999).