SESSION II: SUGGESTIONS TO COMPLETE CHAPTER II OF DISABILITY LAW 2010
Some shortcomings related to the Disability Determination Councils
During its over 10 years of implementation, the 2010 Law on Persons with Disabilities has shown that the communal Disability Determination Councils has played an important role in the process of determining and re-determining the disability degree for persons with disabilities. By the end of 2016, all 63 cities and provinces had carried out disability determination services and granted disability certificates for 266,639 persons with severe disability, 634,567 persons with moderate disability and 543,126 persons with minor disability . However, the regulations related to the Disability Determination Councils under the provisions of the 2010 Law on Persons with Disabilities have also gradually revealed some shortcomings.
Regulations on the members of the Disability Determination Councils
Although the 2010 Law on Persons with Disabilities states that the disability examination shall be conducted by the Medical Examination Councils only when the degree of disability cannot be determined by Disability Determination Councils , it is only considered a legal mechanism to deal with rare cases where the issues exceed the capacity of the Disability Determination Councils (or specified in the regulations ), not to determine and re-determine the degree of disability in parallel with the activities of the Disability Determination Councils. Therefore, it is necessary to have a mechanism to create conditions to improve the quality and operational efficiency of the Disability Determination Councils to deal with these special cases and minimize inconvenience for PWDs (as they have to go to the Provincial General Hospitals to be examined by the Medical Examination Councils, which causes overload for the Medical Examination Councils and at the same time cannot enhance accountability of the Disability Determination Councils).
One problem is related to the members of the Disability Determination Councils: If we keep a relatively "rigid" membership mechanism as stipulated in the 2010 Law on PWDs 2010, it is impossible to mobilize experts to join in the next few years when needed. In order to improve the quality and ensure flexibility in the operation of the Disability Determination Councils, the Law on PWDs should be more "open" towards the members participating in the Councils. Specifically, Chairmans of the Councils should be empowered to, based on the actual situation in the locality, request to determine and re-determine the degree of disability, and mobilize experts in the fields of medication, psychology, education, etc.
Regarding the representatives of educational institutions participating in the Disability Determination Councils: Point b, Clause 4, Article 2 of Circular 01/2019/TT-BLDTBXH, stipulates on: inviting representatives of educational institutions in the communal area to attend the assessment meeting (if necessary). Their participation in cases where the subjects of the assessment are children with disabilities who are studying there is necessary. However, in Clause 2, Article 16 of the 2010 Law on PWDs, the representative of an educational institution has not yet been regulated by law as one of the members of the Councils. Therefore, there is a need for the provisions of Circular 01/2019/TT-BLDTBXH to be "legalized" in the new draft Law on PWDs.
In addition, for children with disabilities who have not yet attended school or do not attend school, the Councils cannot consult with educational institutions/teachers about determining and re-determining the degree of disability while in fact there should be the participation of teachers or those majoring in pediatric health facilities in the assessment. In the author's opinion, this issue addresses the need for supplementing provisions in the new draft Law on PWDs related to the mechanism for mobilizing the participation of experts in the Disability Determination Councils.
As of December 2019, 21/63 provinces have established Associations of PWDs , some of which have not had a provincial association, but a city association under the province-level. The lower the levels, the fewer associations or clubs of PWDs; therefore, the regulation on the head of organizations of PWDs at the commune level is gradually losing its feasibility.
Regarding the issue of members being representatives of organizations of PWDs participating in the Councils, according to Point d, Clause 3, Article 16 of the 2010 Law on PWDs, members of the Disability Determination Councils include: “Head of the communal organization of PWDs where there is one”. This ensures comprehensiveness and objectivity in the process of reviewing and making conclusions of the Council and protects the rights of PWDs. However, up to now, many localities have not established organizations of PWDs at the district and commune levels, resulting in the lack of representatives of the PWDs in the Councils and affecting the comprehensiveness and objectiveness of the assessment. Therefore, there should be a more flexible regulation in terms of the members of the Councils, which may include: Head of the communal organization of PWDs or the representative of the organization of PWDs at the district level in case the commune level has not yet established a PWD organization.
Lack of regulations to put back the date for convening the Disability Determination Council meeting due to some objective reasons
Clause 2, Article 18 of the 2010 Law on PWDs stipulates that within 30 days after the receipt of an application for determination of the degree of disability, the chairman of the commune-level People's Committee shall convene the Disability Determination Councils and send a notice of the time for determination of the degree of disability to the PWDs or their lawful representative. Besides, Circular 01/2019/TT-BLDTBXH has lowered the above time limit to 20 working days. This is determined to be the maximum and general time frame to convene the Disability Determination Councils.
In reality, there are cases where the Disability Determination Councils are unable to carry out the determination within 30 days from the date of receipt of the application due to objective reasons occurring in the localities such as natural disasters, epidemics, etc. The prevention and control of natural disasters and rescue at that time are determined to be an urgent task, which must be the top priority of the local government. Thus, the stipulation of the time limit for the determination and redetermination but not taking into account objective obstacles such as natural disasters and epidemics that may occur during that period has caused difficulties for the Disability Determination Councils.
From the above analysis, in the opinion of the author, the upcoming Draft Law on PWDs needs to consider supplementing an additional clause stipulating the procedures for the determination as follows: In case of natural disasters, epidemics, enemy sabotage or other objective obstacles, the time of occurrence of such obstacles shall not be counted in the time limit for the determination. This supplementation will strengthen the rigor and feasibility of the draft Law on PWDs.
 Ministry of Labor, Invalids and Social Affairs, Report on Social Assistance Assessment 2016.
 Point a, Clause 2, Article 15 of the 2010 Law on PWDs.
 Point b and c, Clause 2, Article 15 of the 2010 Law on PWDs.