Tuesday, September 14, 2010

Reader’s Corner: A review by an ERISA drone of an ABA book about the legal rights of the mentally disabled

The American Bar Association, aside from looking out for the interests of lawyers, conducting professional educational get-togethers, and weighing in on the occasional Supreme Court appointee, also publishes a lot of professional literature. They’ve been kind enough to provide me a copy of one such work, entitled Civil Mental Disability Law, Evidence and Testimony, edited by John Parry, J.D., so I can give it a look and review it here for both of you who read this blog. The ABA provided it free of charge, but with no strings about what I might have to say about it, so I consider this to be a pretty impartial overview.

Civil Mental Disability Law to begin with, is a thick book, and it weighs enough that it maxed out my little postage scale here in the office. That’s not because there’s lots of pretty pictures or oversized type. It is comprehensive, and provides an overview at least of a great many areas which can and do impact on the legal rights of the disabled. The topics covered include such things as abuse and neglect; discrimination in employment, housing and public accommodations; social security disability; and of course our favorite law, ERISA, insofar as it impacts things like ERISA-governed disability insurance. A complete table of contents is here.

While the coverage is comprehensive, the other side of that coin is that the discussion of particular topics (if the ERISA section is indicative anyway) is less detailed than it could be if a work were devoted to that topic alone (and they are all deserving of such treatment). The ERISA discussion certainly provides a good basic overview, but for a practitioner it would be a starting point for research; it wouldn’t constitute comprehensive research in itself. Its treatment of what is, in my opinion, the most important “feature” of ERISA – the fact that insurers are immune from any meaningful liability no matter how badly they act – is really a single sentence: “One threshold problem has been the negative impact of federal preemption on state insurance laws that might otherwise protect persons with mental disabilities from discrimination.” That’s certainly true, but it either soft-peddles or fails to mention the overriding problem of the bulletproof insurer: the ERISA problem isn’t limited to discrimination; it permeates the insurer-insured relationship and renders entire insurance policies effectively illusory.

All that said, I don’t consider it a criticism so much as an observation, because the book does not pretend to be anything other than what it is: a comprehensive overview of a variety of topics impacting the legal rights of the mentally disabled. And an overview is quite useful to someone, like me, who starts out being unfamiliar with the subject matter. Civil Mental Disability Law covers the issues which might arise and provides a good succinct introduction to each, and for that, as a lawyer, I’m quite grateful.

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