East Asia Disability Studies Forum (EADSF) 2023 Oct 27th, 28th(Fri, Sat) 2023, at E-room Center, Korea
台湾におけるパーソナル・アシスタンスの法制化プロセスにみる課題(The Issues in the Legalization Process of Personal Assistance in Taiwan)
高 雅郁(Eunice Ya-Yu KAO)
Graduate School of Core Ethics and Frontier Sciences , Ritsumeikan University
E-mail:eunicekyjp2021@gmail.com
◆だいやまーくBackground・Purpose・Methods
【Background】
・For the first time in Taiwan, a person with severe disabilities filed a lawsuit against the local government, alleging the unconstitutionality of limited usage hours for Personal Assistance. On March 16, 2023, the Administrative High Court of Taiwan rendered a verdict in this lawsuit. The local government lost the case due to the imposed upper limit on usage hours and inadequate implementation of the needs assessment (Taipei High Administrative Court 2023a, 2023b; Chiu 2023).
・The Convention on the Rights of Persons with Disabilities (CRPD), Article 19, and General Comment No. 5 emphasize that Personal Assistance (PA) is an essential support for individuals with disabilities to live in the community.
・PA is characterized by (1) the user's initiative, (2) an individual relationship, and (3) inclusiveness and continuity of life support (Yamashita 2017: 20-21).
・Taiwan established PA as a legal service in 2011, implementing it since 2012.
・However, in many local governments, PA is used to supplement home care services. Many administrators do not fully grasp the concepts of "Independent Living" or "PA" for individuals with disabilities, and often confusing PA with home care services (Chou et al. 2019).
◆だいやまーくProblem:One significant issue contributing to the improper execution of PA services is the fact that laws and regulations are subject to the interpretation and judgment of individual administrators (Chou et al. 2019). The legislative framework for PA has ambiguities in its implementation, possibly due to a lack of comprehensive understanding during its legalization process.
【Purpose】
・The inadequacy of the current PA service in Taiwan is not solely tied to administrative implementation but is also related to the legislative discussions leading up to its establishment. Therefore, this study aims to clarify the problems that emerged during the formation of the current PA system in Taiwan and the debates within the National Assembly since its implementation.
【Methods】To achieve this purpose, the following methods are employed:
・Document Analysis: The study involves an analysis of the minutes of the Legislative Yuan (National Assembly).
・Data Collection: Data are categorized by keywords, including 'PA,' 'Independent Living,' and 'personal care service,' and collected in five stages. A total of 81 items are analyzed, with irrelevant, duplicate data and secondary literature excluded. The materials analyzed span from April 2006 to May 2023.
◆だいやまーく Results
★Phase 1: Before Becoming a Legal Service (2006-2011)
・In April 2006, the term 'Independent Living' first appeared in discussions regarding services for individuals with mild disabilities and their families not using home care services or residential facilities. The focus was on "normalizing" the lives of individuals with disabilities through professional intervention. 'Independent living' was initially conceptualized as personal and economic independence, aligned with traditional perspectives.
・At the Social Welfare and Health and Environment Committee held in December 2010, a proposal was made to incorporate independent living support services into the law, alongside the mention of PA. This proposal passed without much debate but underwent some terminology modifications. Many discussions related to "independent living" continued in both Plenary setting and committees even after the article amendment.
★Phase 2: After Becoming a Legal Service (2012-2017)
・The Independent Living Support Service was implemented by local governments from July 11, 2012. However, about six months after the implementation of the Independent Living Support Service and PA, the legal procedures were completed.
・The prerequisite for accessing welfare services, such as PA, is a needs assessment conducted by a specialist. When Parliament pointed out the government's lack of preparation and duplication of work, one of them submitted an opinion that the needs assessment for Independent Living Support Services should take reference from the needs assessment used for home care services. Additionally, they requested that the usage hours be defined.
・Concerning Independent Living Support Services, the government introduced the "Independent Living Plan for People with Disabilities" to establish criteria for eligible users, such as age (being over 18 years old), household registration, restrictions on concurrent service use, and disqualification from receiving other subsidies. It also defined the maximum authorized usage hours. Local governments follow the plan almost unchanged.
・Some key points of concern in the responses included limitations on authorized usage hours and approved subsidies, user co-payments, and disparities in working conditions, such as excessive workload and low wages for service providers.
・Several Members of the Legislative Yuan, including one with an incurable disease, called for the promotion of "independent living, reducing dependence on others."
★Phase 3: Following the CRPD Review(2018-2023)
・Taiwan, not a UN member, passed the 'Act to Implement the Convention on the Rights of Persons with Disabilities' in August 2014 to apply the CRPD and give it legal effect. An International Review Committee (IRC) were invited to Taiwan to create its own review system and conducted reviews in October 2017 and August 2022.
・Recommendations from the IRC on Article 19 are as follows::
1) Include in a consistent public budget, and the provision of support tailored to the individual needs of persons with disabilities, direct payments, and the necessary support for recruiting, training, and managing assistants.
2) Develop a deinstitutionalization plan, improve PA services to facilitate independent living within the community, and offer support that empowers individuals with disabilities to lead self-determined lives(IRC 2017, 2022).
・After the review, discussions in 2022 on PA focused on budget issues (current efforts using lottery revenue, lack of budget, etc.) and the low user numbers. Therefore, a proposal was made to integrate PA into the long-term care system's budget.
From 2024, the budget for Independent Living Support Services will be transferred to the long-term care system.
★Phase 4: Toward the Amendment of the ‘People with Disabilities Rights Protection Act(PDRPA)’ and related legislations(after 2022)
■しかくrevision about PDRPA:
・At a public hearing held in November 2022, in collaboration with scholars and individuals with disabilities, proposed changing PA into a standalone chapter within the PDRPA. The proposal detailed definitions, services, fees, recruitment, training, assistant management, working conditions, and wage security. They also discussed implementing direct payments to empower individuals with disabilities. Budgetary issues took center stage in discussions, though some pointed out compatibility issues with existing support systems.
・In February 2023, a further public hearing saw individuals with disabilities and assistants discussing PA system status, co-payments, government assistance, assistant rights, and national standards for the PA system, including direct payments.
・In a subsequent parliamentary committee debate at the following month, the Director of the Ministry of Health and Welfare stated plans to extend human support services beyond PA, depending on needs assessment results and resource management.
◆だいやまーく Discussion
■しかく【Discrepancies between the Philosophy and Implementation of "Independent Living" and "Personal Assistance"】
・While many legislators, including one with an incurable disease, express agreement with the demands of Taiwanese Independent Living advocates, their focus has predominantly centered on traditional independent living systems and policies. The philosophy of "Independent Living," which was introduced from overseas, and the PA system that evolved in conjunction with it, have not been thoroughly examined. Although there appears to be a gradual shift in the perception of "Independent Living" following the International Review of the CRPD, legislators still primarily view "independence" in the context of disabled individuals not relying on others.
・Originally, when the PA service was first established, the country's comprehensive human support system was not fully considered. Responsibility was placed on administrative agencies, and parliament, which holds the authority to enact laws, hastily passed ambiguous legislation, contributing to the confusion in the service's implementation.
■しかく【Limitations on Budgetary Measures and Parliamentary Structure】
・The National Assembly lacks the authority to increase the budget or reallocate funds between budget items; it can only decrease the budgets presented by administrative agencies. The current situation, characterized by an overall budget shortfall for the PA services, has made it challenging for the parliament to reject or reduce these budgets.
・While it is possible for members of parliament to serve consecutive terms, bills that remain undebated during their four-year term cannot be carried over. This may be one of the reasons why the system has created obstacles in discussing the principles and ideas of the program in a new proposal. Currently, public hearings are underway for the amendment of the PDRPA. However, if deliberations are not completed before the January 2024 elections, it could result in setbacks for the debate.
◆だいやまーく Summary
・This paper highlights the legislative aspects contributing to the deficiencies and deviations from the ideals of the current PA system in Taiwan. However, it remains unclear how discussions between administrative agencies, the national and local governments, users, assistants, and welfare organizations took place before and after the service's formation. These aspects need to be addressed in future research.
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United Nations Committee on the Rights of Persons with Disabilities(UNCRPD),2017, "General comment No. 5 (2017) on living independently and being included in the community".
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