.jpg)
Brain Injury Network Recommendations for Protective Laws and Legislation
12-12-12
We ask that the people of the world help enact and implement laws that will protect the rights and human dignity of people with acquired brain injuries which include traumatic brain injuries.
We individuals with acquired brain injuries, which include injuries from aneurysm, anoxia/hypoxia, illness, stroke, toxin, trauma, and tumor, favor the passage of laws worldwide that safeguard our basic and fundamental human and civil rights. We also favor the conscientious enforcement of laws that have been designed to protect members of our brain injury community and other people with disabilities. In other words, we would like laws that are already on the books to actually be enforced. For example, in the United States there are laws that pertain to accessibility and accommodations for people with disabilities, but they aren’t necessarily enforced in every context or situation where they should be.
The Americans with Disabilities Act, or ADA, contains many provisions that help people with disabilities lead more dignified and productive lives, and the law should be enforced wherever it is applicable. Many people with brain injuries benefit from these laws. The ADA law requires that public buildings and transport options be accessible in order that people with disabilities may use them. For example, the mandate requires that there be accessible restrooms in public buildings. This helps people with brain injuries live with dignity. Another example regards sidewalks. They should be accessible. Sidewalk curb cuts make sidewalks safer for people with brain injuries. They protect our right to move about freely..
Regarding accessibility, the Brain Injury Network recommends that legislation be passed via local ordinance, state law, and federal law that would require all new residential housing have at least one accessible restroom. This would go a long way to help people with brain injuries stay in our homes after TBI or other forms of ABI. This is good public policy, because it would help ensure that not only people with brain injuries, but also other members of society, would have a better chance to “age in place” instead of having to move to nursing homes or other assisted living facilities.
The ADA law also requires reasonable workplace accommodations for people with disabilities. Requiring employers to make reasonable accommodations in the workplace supports people with brain injuries’ efforts to get back into or stay in the workplace. The same can be said in school settings. Allowing people with brain injuries to use a service dog, for example, a trained seizure service dog, contributes to people regaining and maintaining confidence. Seizure service dogs enhance people with seizure’s ability to move about more safely. Therefore, they should be permitted when needed in work, public buildings, and school settings.
Sometimes a law pertaining to disability protections is already on the books, and it becomes a matter of interpretation as to how to enforce the law. Unfortunately, sometimes laws are not properly enforced. For example, some years ago, the Brain Injury Network (BIN) complained when some college officials responsible for the oversight of a college program for students with brain injuries did not take action regarding some criminal conduct by one student with a brain injury against another student with a brain injury. We were sure the college in question had the duty to investigate, to report the conduct, and to take steps to remove the perpetrator from the college program. We had given the proof to the college authorities, but they took no action until the conviction. It seems that it would have been their duty to remove the erring student from a leadership role for individuals with brain injuries at the college once we submitted the proof of criminal conduct to them, but the college authorities failed to act. Nothing was done until we reported the matter to the local sheriff, and the local district attorney prosecuted the violator (who was found guilty), but all of that took many months. All the while the perpetrating student was still there at the postsecondary institution engaging with other brain injury students in the college’s brain injury program.
After that experience, we at BIN asked that a law be put on the books in California USA requiring that college personnel be mandated reporters in such situations. We were advised later by a California state senator’s office that there already is a law on the books in California that would require college personnel to report said conduct. However, clearly, some (i.e., college personnel) who ought to know that sometimes don’t know that the laws regarding “adult protective services” apply to them and their college programs. Under these kinds of laws, if someone has a responsibility for oversight of individuals with cognitive or other impairments one has certain fiduciary duties. If one has a suspicion that one’s client, student, patient, etc. is being taken advantage of, harmed, or mistreated, one with oversight responsibility MUST report one’s suspicion to the appropriate authorities. So, we continue to ask that there be specific legislation that would require college personnel to report criminal conduct against their students with brain injuries to the appropriate authorities.
On another point, we at Brain Injury Network would like there to be more laws enacted regarding who can work with people with brain injuries. There are agencies that retain people to be caregivers and cleaning staff. These people are sent to the homes of people with brain injuries to work. We would like it made law everywhere that people who work as paid caregivers for people with brain injuries must undergo background checks, must be fingerprinted, and must be bonded. We want it to be against the law for felons, especially convicted sex offenders, to be employed by said agencies. We also would like assisted living facilities, nursing homes, paratransit companies, and others who work with people with brain injuries to fingerprint their staff and volunteers, and make sure that no one with a felonious record is allowed to work with people with brain injuries.
There is also the troubling topic of “undue influence.” Sometimes people with brain injuries must turn to others for help managing their affairs. Unfortunately, sometimes caregivers or others will take advantage of them. Sometimes these “helpers” will even commit financial fraud upon them. There have been situations where a caregiver or care provider has come into the home and gotten the person with the brain injury to sign over his home, bank account, benefit check, etc. to the worker. Sometimes there is even an unscrupulous family member who will do this. We favor more enforcement efforts to put a halt to these activities.
It is also not unheard of for people with brain injuries to lose their assets due to inappropriate actions taken by court-appointed conservators. Sometimes the decisions of a person’s affairs are turned over by legal process (competency proceedings) to others. We have heard of situations where conservators made errors (for example, not paying bills of the person with the brain injury on time, even though there was sufficient money in the conservatee’s bank account to do so). Conservators sometimes use their conservatee’s funds to pay to fight suits which were caused by the malfeasance of the conservator.
There is also the unfortunate situation where the conservator places an individual in a very expensive care home which inflates considerably the value of its services to the point that the entire, once substantial, nest egg of the person with the brain injury is depleted rapidly. Once this happens, the person with the brain injury is relegated to pauper status. The “care facility or home” quickly turns the person out. This kind of situation often could have been avoided if the conservator had diligently and carefully managed the affairs of the individual with the brain injury. However, it seems that there are times when conservators and service-providing interests work together to deplete the assets of the individual with the brain injury. This should not be permitted. We need more laws on the books to prevent this kind of injustice.
On another point, we at Brain Injury Network would like something akin to an abuse law that would apply to people with acquired brain injury and would make the reporting requirements for financial institutions (i.e., banks) the same as those now required in elder abuse laws.
Additionally, we would like a law on the books that medical or research agencies that operate on the Internet not be allowed to share private, confidential, personal, and medical information about people with brain injuries in a public way, a way that is completely accessible to all third parties. This legal requirement would not allow such agencies to claim that the person with a brain injury has voluntarily given up his right to confidentiality by posting on a social community or web site.
We also would like to see national standards for college (postsecondary) programs for adult students with brain injuries, and we at Brain Injury Network have published extensively on this topic.
We would like helmet legislation in every jurisdiction in the United States and in other countries on this earth for people who use bicycles, skateboards, skis, and the like.
We take the position that no insurance company should be able to deny medical coverage to a person with a brain injury because it is a pre-existing medical condition.
We think that individuals, especially children and youth who play sports, should be protected from concussions and other brain injuries. They should wear state-of-the-art protective gear. But additionally, we favor noncontact sports. We frown on football and boxing, and do not think children should be involved in these kinds of athletic activities whatsoever. These kinds of activities are too dangerous.
Additionally, regarding any athletic activity, if a child appears to have a concussion or other brain injury, we believe the child should be removed from the athletic activity, and his or her parents should be informed. This rule would apply to sports such as basketball, boxing, football, and soccer, but also other athletic activities such as cheerleading, diving, gymnastics, and horseback riding – in other words, all athletic activities. It would even apply to children in the school yard who are romping about on outdoor play equipment such as climbing and gymnastic stations, jungle gyms, and swing sets. We feel that a child who has been removed from activity or play due to suspected injury should not be allowed to engage in any athletic activity whatsoever until the child has been seen by a medical doctor and has been cleared to play by the medical doctor.
Brain Injury Network has developed policy statements on many topics that relate to legal protections for our brain injury community. Please note the Index of Policy Statements on this website for further reading. It is true that many national or state jurisdictions have passed legislation addressing some of these topics. Some have enacted legislation on many additional matters that protect individuals with brain injuries and often other members of society as well.
However, these laws are not universal. When it comes to laws to protect individuals with acquired brain injuries, we at Brain Injury Network invite everyone in every country, state, province, and other governmental sphere to incorporate the Brain Injury Network recommendations into their legal codes. In conclusion, it is our desire that the basic and fundamental human and civil rights of people with acquired brain injuries and traumatic brain injuries be protected. Therefore, we ask that laws related to this endeavor be passed and appropriately enforced in every jurisdiction.
Susan C. Hultberg, M.A., J.D.
• President, Brain Injury Network