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A Brief Introduction to The New Act For Persons with Disabilities

April 12, 2017

In 2016, the government introduced a new Act: the Rights of Persons with Disabilities Act, a more comprehensive legislation that laid down more rights of people with disabilities. Read on to know how it is different from the original 1995 Persons with Disabilities Act.
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What is the difference between the Rights of Persons with Disabilities Act and the Persons with Disabilities Act?

The Rights of Persons with Disabilities Act, 2016 is a more comprehensive legislation that selects to implement the Convention on the Rights of Persons with Disabilities that was ratified by India. While the Persons with Disabilities 1995 Act spoke more about entitlements, the 2016 legislation speaks of some rights and more entitlements.

How is disability defined under the Act?

It defines ‘persons with disabilities’ as ‘a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others’. However, the Act also has a category of ‘specified disabilities’ which refers to the disabilities as specified in the Schedule to the Act. These disabilities are:

I. Physical disability

A. Locomotor disability (a person’s inability to execute distinctive activities associated with movement of self and objects resulting from affliction of musculo-skeletal, nervous system or both), including:

(a) “leprosy cured person” means a person who has been cured of leprosy but is suffering from

(i) loss of sensation in hands or feet as well as loss of sensation and paresis in the eye and eye-lid but with no manifest deformity

(ii) manifest deformity and paresis but having sufficient mobility in their hands and feet to enable them to engage in normal economic activity

(iii) extreme physical deformity as well as advanced age which prevents him/her from undertaking any gainful occupation, and the expression “leprosy cured” shall be construed accordingly

(b) “cerebral palsy” refers to a non-progressive neurological condition affecting body movements and muscle coordination, caused by damage to one or more specific areas of the brain, usually occurring before, during or shortly after birth

(c) “dwarfism” means a medical or genetic condition resulting in an adult height of 4 feet 10 inches (147 centimeters) or less

(d) “muscular dystrophy” means a hereditary genetic muscle disease that weakens the muscles which move the human body. Persons with multiple dystrophy have incorrect and missing information in their genes, which prevents them from making the proteins they need for healthy muscles. It is characterised by progressive skeletal muscle weakness, defects in muscle proteins, and the death of muscle cells and tissue

(e) “acid attack victims” means a person disfigured due to violent assaults by throwing of acid or similar corrosive substance

B. Visual impairment

(a) “blindness” means a condition where a person has any of the following conditions, after best correction:

(i) total absence of sight or

(ii) visual acuity less than 3/60 or less than 10/200 (Snellen) in the better eye with best possible correction or

(iii) limitation of the field of vision subtending an angle of less than 10 degree

(b) “low-vision” means a condition where a person has any of the following:

(i) visual acuity not exceeding 6/18 or less than 20/60 upto 3/60 or upto 10/200 (Snellen) in the better eye with best possible corrections or

(ii) limitation of the field of vision subtending an angle of less than 40 degree upto 10 degree

C. Hearing impairment

(a) “deaf” means persons having 70 DB hearing loss in speech frequencies in both ears

(b) “hard of hearing” means person having 60 DB to 70 DB hearing loss in speech frequencies in both ears

D. Speech and language disability

This refers to a permanent disability arising out of conditions such as laryngectomy or aphasia affecting one or more components of speech and language due to organic or neurological causes

II. Intellectual disability

A condition characterized by significant limitation both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behaviour which covers a range of every day, social and practical skills, including:

(a) “specific learning disabilities” means a heterogeneous group of conditions wherein there is a deficit in processing language, spoken or written, that may manifest itself as a difficulty to comprehend, speak, read, write, spell, or do mathematical calculations and includes such conditions as perceptual disabilities, dyslexia, dysgraphia, dyscalculia, dyspraxia and developmental aphasia

(b) “autism spectrum disorder” means a neuro-developmental condition typically appearing in the first three years of life that significantly affects a person’s ability to communicate, understand relationships and relate to others, and is frequently associated with unusual or stereotypical rituals or behaviour

III. Mental behaviour

“Mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence

IV. Disability caused due to

(a) Chronic neurological conditions, such as:

(i) “multiple sclerosis” means an inflammatory, nervous system disease in which the myelin sheaths around the axons of nerve cells of the brain and spinal cord are damaged, leading to demyelination and affecting the ability of nerve cells in the brain and spinal cord to communicate with each other

(ii) “parkinson’s disease” means a progressive disease of the nervous system marked by tremor, muscular rigidity, and slow, imprecise movement, chiefly affecting middle-aged and elderly people associated with degeneration of the basal ganglia of the brain and a deficiency of the neurotransmitter dopamine

(b) Blood disorder

(i) “haemophilia” means an inheritable disease, usually affecting only male but transmitted by women to their male children, characterised by loss or impairment of the normal clotting ability of blood so that a minor wound may result in fatal bleeding

(ii) “thalassemia” means a group of inherited disorders characterised by reduced or absent amounts of haemoglobin

(iii) “sickle cell disease” means a hemolytic disorder characterised by chronic anemia, painful events, and various complications due to associated tissue and organ damage; “hemolytic” refers to the destruction of the cell membrane of red blood cells resulting in the release of haemoglobin

V. Multiple Disabilities

More than one of the above specified disabilities, including deaf blindness which means a condition in which a person may have combination of hearing and visual impairments causing severe communication, developmental, and educational problems

Is there any difference in the way persons with disabilities and persons with specified disabilities are treated under the Act?

Yes. It appears that the non discrimination provisions relate to all persons with disabilities regardless of whether the impairment is on the list of specified disabilities or not. However, the onus would be on you to show how your impairment is a disability.

Persons with ‘specified disabilities’ are not treated any differently than a person with an ‘unspecified’ disability.

However, certification of a disability for the purpose of entitlements such as free and compulsory education, reservation in higher education and employment, social protection etc. requires one to have a ‘benchmark disability’. A benchmark disability is when a person has not less than 40% of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority.

A person with a benchmark disability can further be certified to be a person with ‘high support needs’. High Support refers to intensive support including physical, psychological and otherwise, which may be required by a person for daily activities, to take independent and informed decisions, to access facilities and participate in all areas of life including education, employment, family and community life as well as treatment and therapy’.

These persons have access to some more entitlements due to their high support needs and these entitlements are determined by an Assessment Board.

How will certification happen under the new law?

Your certificates from the 1995 Act will be valid for the purpose of seeking entitlements that you currently avail of. In fact, any action taken or entitlement granted under the 1995 Act will be deemed valid under the new law and continue until anything to the contrary is notified.

If your child has an impairment that is recognized under the 1995 Act, you may be able to approach the same authorities who are currently empowered to provide certification in some time after formal notifications under the Act are done.

However, if your child has an impairment which is now recognized as a ‘specified disability’, it may take some time for you to get your disability certificate. Formal rules regarding assessment procedures and authorities who can certify these impairments will be notified in due course. You will not currently be able to approach the authorities with your medical papers to seek certification.

What are the provisions for education of children with disabilities under the new Act?

Governments and local authorities will try to ensure that all recognized and funded educational institutions provide inclusive education to children with disabilities. This is to include:

(i) Non discrimination at the time of admission

(ii) Provision of opportunities for sports and recreational activities as other students have

(iii) Making building, campus and various facilities accessible

(iv) Provision of reasonable accommodation according to the individual student requirements

(v) Provision of the necessary individualized support to students in environments that maximize academic and social development consistent with the goal of full inclusion

(vi) Ensuring that the education to persons who are blind, deaf or deaf-blind is imparted in the most appropriate languages and modes and means of communication

(vii) Detection of specific learning disabilities in children at the earliest and taking suitable pedagogical and other measures to overcome them

(viii) Monitoring participation, progress in terms of attainment levels and completion of education in respect of every student with disability

(ix) Provision of transportation facilities to children with disabilities and to attendants of children with high support needs.

For this, the government and local authorities shall:

(i) Beginning from two years from the date of the commencement of the Act, conduct a survey of school going children every five years, for identifying children with disabilities, ascertaining their special needs and the extent to which these are being met

(ii) Establish adequate number of teacher training institutions

(iii) Train and employ teachers, including teachers with disability who are qualified in sign language and Braille and teachers who are trained in teaching children with intellectual disability

(iv) Train professionals and staff to support inclusive education at all levels of school education

(v) Take specific measures to promote and facilitate inclusive education

(vi) Establish adequate number of resource centres to support educational institutions at all levels of school education

(vii) Promote the use of augmentative and alternative means and formats of communication. Braille and sign language to supplement the use of speech to fulfill the daily communication needs of persons with speech, communication or language disabilities

(viii) Provide books, learning material and assistive devices to students with benchmark disabilities, free of cost up to the age of 18 years

(ix) Provide scholarships in appropriate cases to students with benchmark disability

(x) Make suitable modifications in the curriculum and examination system to meet the needs of students with disabilities such as extra time for completion of examination paper, facility of scribe, exemption from second and third language courses

(xi) Promote research to improve learning

How does this Act impact the Right to Education Act?

With respect to children with ‘benchmark disabilities’, the provisions in this Act override the RTE Act:

(i) Every child with benchmark disability between the age of 6 to 18 years shall have the right to free education in a neighbourhood school, or in a special school, of his choice.

(ii) The appropriate government and local authorities shall ensure that every child with benchmark disability has access to free education in an appropriate environment till he/she turns 18.

(iii) All government or government-aided institutions of higher education shall reserve not less than 5 per cent seats for persons with benchmark disabilities.

(iv) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education.

Can I seek enforcement of these provisions now?

The state governments will have to frame rules for the manner in which they will implement the right of inclusive education and the right of students with benchmark disabilities.

There is also the question of resource allocation to these areas. In theory, while the rights are immediately enforceable, it may take some time for a concrete execution strategy to come about.

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