In each issue of the Law Reporter, the "Legislation and Regulations" section contains summaries of key federal and state disability legislation and regulations. For more Legislation & Regulations, subscribe now!

Sample Legislation / Regulations from the September/October 2009 Issue  

Civil Mental Disability Law

Outpatient, Inpatient Commitments; Least Restrictive Environment
New Jersey enacted legislation to ensure that (1) outpatient treatment services are readily available to all persons with mental illness, so that involuntary commitment is rarely required, and (2) persons who are dangerous to themselves, others, or property should be subject to involuntary treatment in the least restrictive environment possible in an inpatient or outpatient setting that is clinically appropriate to their condition. Senate No. 735 (2009).

The Commissioner of Human Services must designate one or more mental health agencies or facilities in each county or multi-county region in the state to screen persons for whom involuntary commitment to treatment seems necessary. In consultation with a psychiatrist or other physician, the screening staff assigns inpatient treatment for persons who are immediately or imminently dangerous, or for whom outpatient treatment will not render them unlikely to be dangerous within the reasonably foreseeable future, and outpatient treatment for persons when such treatment will render them unlikely to be dangerous within the reasonably foreseeable future.

Staff must consult with a provider to arrange an interim outpatient treatment plan. Staff or the provider must submit to the court a clinical certificate, completed by a psychiatrist on the patient’s treatment team, as well as the screening certificate authorizing outpatient treatment. The same psychiatrist should not sign both certificates unless the psychiatrist made a reasonable, but unsuccessful, attempt to have another psychiatrist conduct the evaluation and execute the certificate. If the court finds probable cause, it must issue a temporary order, authorizing assignment of the person to an outpatient treatment provider or a facility that is appropriate to the person’s condition and is the least restrictive environment, pending a final hearing. Without a temporary court order, a person cannot be assigned to an outpatient treatment provider for more than 72 hours from the time the certificate was executed.

If the court finds clear and convincing evidence that the person needs continued involuntary commitment, the court must order the person assigned to an outpatient or inpatient setting, based on the least restrictive environment for the person to receive clinically appropriate treatment that will ameliorate the danger posed by the patient. If an outpatient setting is the least restrictive, the court must obtain, review, and approve a proposed plan of outpatient treatment from an outpatient treatment provider. The court must conduct the first review hearing within six months of the initial hearing, a second review hearing three months later, and subsequent hearings three months later and annually thereafter.

If the court determines that an inpatient setting is the least restrictive, the court must order the person admitted to a psychiatric facility. If the facility later recommends moving the patient to an outpatient setting, the court must then set a hearing date and notify the person and his or her guardian and attorney.

Criminal Mental Disability Law

SVP; Probation & Parole; Lifetime Supervision
Louisiana amended its Criminal Procedure Code to require the state sex offender assessment panel to evaluate every sex offender and child predator who is about to be released from prison to determine whether he or she is a sexually violent predator (SVP) or a child sexual predator (CSP). H.B. No. 366 (2009).

If the panel determines that the offender may be a SVP or CSP, it must forward its recommendation to the sentencing court, including the factual basis upon which the recommendation is made and a copy of all information available to the panel. The court must then hold a hearing, after notifying the offender that he or she has the right to be present, present evidence, and have counsel (appointed if indigent). If the court finds clear and convincing evidence that an offender is a SVP or a CSP, it must order the Department of Corrections’ Probation and Parole Division to provide lifetime supervision.

SVPs and CSPs are prohibited from possessing or having in their control firearms. They must undergo medical and mental health examination and treatment, when deemed appropriate by the probation and parole officer. They must also submit a residence plan. Moreover, their Internet-related activities are continuously supervised. Furthermore, a SVP or a CSP may petition the court every three years to review his or her status, and the same process as was used initially is employed.

Disability Discrimination Law

ADA-AA; Disability Defined
On September 21, 2009, the Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking, which proposed changes to the EEOC’s Americans with Disabilities Act (ADA) regulations and accompanying Interpretive Guidance, in order to implement the ADA Amendments Act of 2008 (ADA-AA), Pub. L. No. 110-325, 122 Stat. 3553. The 60-day period for public comments will be followed by proposed final regulations and ultimately the final regulations. 74 Fed. Reg. 48431 (Sept. 23, 2009).

The ADA-AA, which took effect on January 1, 2009, makes significant changes to the definition of “disability.” As a result, it is “easier for an individual seeking protection under the ADA to establish that he or she has a disability.” The proposed rule focuses on that definition.

To constitute a covered disability, a physical or mental impairment must substantially limit a major life activity. Under the rule, a limitation is not required to “significantly” or “severely” restrict a major life activity. Also, the rule expands the definition of “major life activity” through two nonexhaustive lists. One includes activities; the other, major bodily functions. In addition, the rule bars consideration of mitigating measures—other than “ordinary eyeglasses or contact lenses”—in determining whether an individual has a covered disability.

Moreover, an impairment that is episodic or in remission (e.g., epilepsy, bipolar disorder, cancer) and, when active, substantially limits a major life activity constitutes a disability. Significantly, applicants and employees, who are subjected to an action prohibited by the ADA because of an actual or perceived impairment, meet the “regarded as” disabled prong, unless their impairments are both transitory and minor. Actions based on an impairment include actions based on the symptoms of an impairment. However, persons covered only under the “regarded as” prong are not entitled to reasonable accommodations. Finally, the rule prohibits using qualification standards, employment tests, and other selection criteria based on an individual’s corrected vision, unless job-related and consistent with business necessity.