December 14, 2020
Virtual Symposium on COVID-19
and Vulnerable Populations
Academy for Justice
Arizona State Law Journal Online
The coronavirus pandemic has powerfully and tragically harmed vulnerable peoples across the United States, from Native Americans in rural communities, to detainees in immigration detention centers and people incarcerated in confined spaces, to individuals with mental and physical disabilities. The Academy for Justice at Arizona State University Sandra Day O’Connor College of Law, in conjunction with the Arizona State Law Journal Online, is hosting this Virtual Symposium on COVID-19 and Vulnerable Populations to examine and challenge the pre-existing, health-harming legal and policy obstacles that are exacerbating the danger of the COVID-19 national health crisis to vulnerable populations.
On December 14, 2020, authors will discuss their ideas and essays in roundtable discussions followed by Q&A sessions open to the public, and a keynote presentation. The following topics will be discussed:
Criminal Justice: The criminal justice essays challenge the loss of rehabilitative programming for juveniles in custody, examine detention and access to care during COVID through a disability law framework, provide a series of arguments against solitary confinement, and propose community treatment for competency restoration.
Health Law: The health law essays describe the deregulation of telehealth and telemedicine during COVID-19, the impact of the pandemic on elderly patients with dementia and Alzheimer’s disease, expose the dearth of support and services to individuals with developmental disabilities, and use a disability law framework to ensure medication for people with substance use disorder.
Indigenous Peoples and Inequity: The essays on Indigenous people and Native Americans discuss mental health treatment in tribal communities, and the overarching harm of federal Indian law in the face of this pandemic.
The wide range of essays included in this symposium will be published and posted to the Arizona State Law Journal Online, available both before and after the symposium.
Vulnerable Populations in the Context of COVID-19: Foreword to the Arizona State Law Journal Online Symposium
The widespread global transmission of SARS-CoV-2, the novel coronavirus that causes the disease COVID-19, has altered, injured, and ended the lives of numerous individuals across various communities and nations. It has been well-documented that certain long-neglected populations are particularly susceptible to COVID-19 severe illness and death and, as a result, have been disparately victimized by the pandemic. This Arizona State Law Journal Online Symposium, Vulnerable Populations in the Context of COVID-19, is a compilation of the work of diverse scholarly voices that aims to raise awareness about—and propose reforms to remedy—the legal and policy challenges that have—and continue to—perpetuate adverse health harms on the most vulnerable in our communities. Symposium contributors include international scholars, medical doctors, clinical law professors litigating on behalf of vulnerable clients, and distinguished senior and junior law professors. This collection of unique scholarly voices is due to outstanding support from the Association of American Law Schools (AALS) Sections on Law and Mental Disability, Indian Nations and Indigenous Peoples, Disability Law, and Poverty Law; the Academy for Justice, a criminal justice policy center at Arizona State University, Sandra Day O’Connor College of Law; and the tireless work of the student editors at the Arizona State Law Journal. We hope this foreword provides an overview that encourages readers to engage with the insightful essays in this online symposium.
Like countless other health conditions, the COVID-19 pandemic has resulted in inequalities. People of color are experiencing not only higher rates of COVID-19 infections but also worse outcomes from the infection. American Indians and Alaska Natives are experiencing COVID-19 infections at higher rates than other groups across several states including Arizona, New Mexico, and Wisconsin. The Navajo Nation, in particular, has been adversely impacted by COVID-19. As of the 2010 census, Navajo citizenship is around 300,000 people although more recent numbers cite citizenship population at over 350,000. The Tribe has had over 10,780 cases with 571 deaths as of October 14, 2020. By May 2020, the Navajo Nation had displaced New York City as having the highest per capita rates of COVID-19 infections in all the United States.
A number of federal and state determinations, proclamations, statutes, regulations, executive orders, and notices of enforcement discretion (hereinafter authorities) have supported the rapid and unprecedented de-regulation of telehealth and telemedicine in the United States during the coronavirus disease 2019 (COVID-19) pandemic. On January 31, 2020, for example, Health and Human Services (HHS) Secretary Alex M. Azar II (Secretary Azar) used the authority vested in him under Section 319 of the Public Health Service Act to formally determine that a public health emergency (PHE) existed in the United States. On March 6, 2020, President Donald Trump (President Trump) signed the Coronavirus Preparedness and Response Supplemental Appropriations Act (CPRSAA), which included the Telehealth Services During Certain Emergency Periods Acts of 2020 (TSDCEPA), into law. On March 13, 2020, President Trump used the authority vested in him under Section 201 of the National Emergencies Act to formally proclaim that a national emergency existed. On March 17, 2020, HHS’s Office for Civil Rights (OCR) announced that it would exercise enforcement discretion and waive potential penalties for Health Insurance Portability and Accountability Act (HIPAA) Rules violations against health care providers that serve patients through everyday communications technologies during the COVID-19 PHE. And, on August 3, 2020, President Trump issued an executive order directing Secretary Azar to: (i) propose a federal regulation extending beyond the duration of the PHE the telehealth services offered to Medicare beneficiaries, (ii) issue a report assessing telehealth and other policy initiatives designed to improve mental health in rural communities, and (iii) “develop and implement a strategy to improve rural health by improving the physical and virtual communications healthcare infrastructure available to rural Americans.”
As of November 12, 2020, at least 182,593 people incarcerated in American prisons, jails, and detention centers have tested positive for COVID-19; 1,412 incarcerated people have died. As the disease spread rapidly across the country (and world) in March 2020, public and prison health experts warned that jails and prisons could become incubators of the highly infectious disease. Recognizing the risk posed to the nation’s incarcerated population, public health officials issued interim guidance meant to assist prison officials seeking to protect the health and safety of incarcerated people. Simultaneously, prisoners’ rights advocates across the country filed lawsuits seeking to ensure prison systems protect incarcerated people from the risk posed by COVID-19.
In response to these lawsuits and the public health guidance, crowded prison systems are returning to an old solution to address prison problems: solitary confinement. The harms associated with solitary confinement are well documented. Within days of being subjected to solitary confinement, individuals experience abnormal patterns in brain activity and quickly lose the ability to concentrate and focus. People in solitary confinement suffer from hypertension, headaches, dizziness, panic attacks, depression, and paranoia. Despite these well-known psychological harms caused by placement in isolating conditions, federal courts considering challenges to prison systems’ responses to COVID-19 have largely, albeit implicitly, credited prison official defendants for embracing solitary as a way to stem the spread of the virus.
Before CoVid felled the planet, the number of new cases of dementia every year tallied at ten million, or one new case every three seconds. Alzeheimer’s disease, the most common form of dementia—which is fatal—affected 10% of Americans over sixty-five, some 4.7 million people. In recent years Alzheimer’s deaths rose 55%, 4 expected to quadruple by 2050.
COVID-19 has dramatically exacerbated the situation. “At least 15,000 more Americans . . . died in recent months from Alzheimer’s disease and dementia than otherwise would have . . . .” This is about 18% higher than average. The CDC reported that between mid-March and mid-April, “about 250 extra individuals suffering from some form of dementia were dying each day.” In Wales, excess non-coronavirus related dementia deaths was 54% higher. In England, official figures tallied almost 10,000 unexplained extra deaths in people with dementia in April alone – 83% over normal.
For over a century, state courts and other child welfare agencies in the United States have been applying the “best interests of the child standard” to all decision-making concerning children. The standard is also enshrined within the UN Convention on the Rights of the Child (CRC)—a treaty that every nation in the world has ratified except the United States. Notwithstanding its widespread adoption in family law, the standard is, with only a few exceptions, noticeably missing from American laws and policies pertaining to children in the immigration system.
The COVID-19 pandemic has cast the United States, along with the rest of the world, into a time of crisis and uncertainty unlike any other in recent memory. Months into the pandemic, there is scant agreement among scientists, government officials, and large segments of the public, both domestic and abroad, as to determining the causes and workings of the virus, designing appropriate and effective responses to the outbreak, and constructing accurate assessments of the future—or even of the present. Indeed, the availability of concrete information about the virus and its effects is grossly inadequate and often replaced by anecdotal or impressionistic depictions, not infrequently accompanied by rumor and speculation. Perhaps at some point in the future, with the benefit of the passage of time and access to reliable data, we will better understand important elements of the pandemic. Amidst the current state of knowledge, however, any attempt to learn lessons from the events of the past few months remains a tenuous—if not altogether dubious—enterprise.
Opening Remarks and Treatment and Care During COVID-19: Disability, Mental Health, and Substance Use Disorder
- Stacey A. Tovino, COVID-19, Telehealth, and Substance Use Disorders
- Barbara Pfeffer Billauer, Mental Health and the Aged in the Era of COVID-19
- Samuel J. Levine, COVID-19 and Individuals with Developmental Disabilities: Tragic Realities and Cautious Hope
- Kelly K. Dineen & Elizabeth Pendo, Substance Use Disorder, Discrimination, and The CARES Act: Using Disability Law to Strengthen New Protections
- Moderator: Associate Professor Jennifer Oliva, Center for Health & Pharmaceutical Law, Seton Hall University School of Law
The Vulnerability of Native Americans and Pregnant Women During COVID-19
- Aila Hoss, COVID-19 and Tribes: The Structural Violence of Federal Indian Law
- Heather Tanana, Learning from the Past and the Pandemic to Address Mental Health in Tribal Communities
- R. Paricio del Castillo & Angeles Cano Linares, Mental Health and Vulnerable Populations in the Era of COVID-19: Containment Measures Effects on Pregnancy and Childbirth.
- Moderator: Assistant Dean Kate Rosier, Director of the Indian Law Program, Arizona State University Sandra Day O’Connor College of Law
Brief Remarks and Keynote Address by Professor of Law Ruqaiijah Yearby, Co-Founder and Executive Director of the Institute for Healing Justice and Equity at St. Louis University, followed by a Q&A session
Detention During COVID-19: Immigration, Institutionalization, Prisons and Jails
- Nicole B. Godfrey and Laura L. Rovner, COVID-19 in American Prisons: Solitary Confinement is Not the Solution
- Adrián E. Alvarez, Immigration Detention and Mental Healthcare During COVID-19
- Madalyn K. Wasilczuk, Not for the Purpose of Punishment: Trauma & Children in Custody in the Age of COVID-19
- Susan A. McMahon, Pandemic as Opportunity for Competence Restoration Decarceration
- Moderator: Professor Valena Beety, Deputy Director of the Academy for Justice, Arizona State University Sandra Day O’Connor College of Law