LEGISLATION FOR DISABLED PEOPLE IN BRAZIL. FROM HUMAN DIGNITY TO SOCIAL INCLUSION.ADVANCING CAPABILITIES AS AN ETHICAL IMPERATIVE

The study analyzes the ethical and legal basis of Brazilian legislation for people with disabilities and verifies whether the instruments used therein are in line with national and international law. It also investigates the coherence and cohesion of the law and its ethical norms to build an inclusive and just society. Through an exploratory and integrative review, it analyzed the legal pro- visions in force in Brazil published on the official websites of the Brazilian federal government and available on the Internet. It was evaluated whether the definition used for persons with disabilities follows the United Nations Convention on the Rights of Persons with Disabilities. Also, whether it is necessary to evaluate disabilities and who should perform this task professionally. Thirty-three legal norms were found, among which only three laws and two decrees are in line with the recommendations of the UN Convention. It is necessary to review the existing norms and promote the consolidation of laws, decrees, ordinances and normative instructions regarding the rights of persons with disabilities in a uniform manner, on an adequate technical-scientific basis. This review should be consistent with the provisions of the 1988 Federal Constitution, the International Convention on the Rights of Persons with Disabilities and the Brazilian Inclusion Law.


Introduction
Throughout history, disabled people have been regarded in different ways. From a religious point of view, their condition was considered the result of divine punishment at times. Also, they were regarded as responsible for their disability, and therefore individual adaptations would be needed to diminish their exclusion. It meant that usually, disability was equivalent to social and even familiar exclusion.
The social movements regarding disabled people in the developed world started in the 1970s. A social dimension was introduced, and diversity was added as a component of disability, but without ignoring the need to identify body injuries. A disabled person came to be defined as someone who presented long-term impairments of physical, mental, intellectual, or sensory nature that, in interaction with a variety of barriers, might impede the individual's full and effective participation in society under conditions of equality of opportunity with other people (1). In specific cases, such as deaf people, this global movement led to the idea that deafness is not a disease or even a disability, but a "difference" so that the traditional models of observing disabled people should be deconstructed to be reconstructed in a different, unbiased, and just manner (2).
In Brazil, the constitution of 1988(3) imposed essential safeguards on the principle of equality for disabled people as a corollary of the value of human dignity. The text of the constitution established as a fundamental principle that the Federal government and the State and Federal District governments should legislate concurrently towards the protection and social integration of disabled people.
In 1989, general norms for ensuring full availability of individual and social rights for disabled people (the so-called "people with deficiencies") and their effective social integration were established through law nº 7,853/1989(4). This law considered the fundamental values of equality of treatment and opportunity, social justice, respect for human dignity, well-being and other values indicated in the constitution or justified by the general principles of law. This law aimed to guar-antee disabled people's full use of fundamental rights. Those rights included education, healthcare, employment, leisure, social security, maternity and childhood protection, and other rights stemming from the constitution. Its laws would enable their personal, social, and economic wellbeing. The Department of Special Education of the Ministry of Education should be restructured to comply with this law's provisions. Besides, the Ministry of Work, the Ministry of Health and the Ministry of Social Security and Assistance should create sectorial coordination bodies concerning disabled people. However, the high-level coordination of issues and government actions and measures relating to disabled people would be the responsibility of the Special Department of Human Rights of the Presidency of the Republic.
To regulate law nº 7,853/1989, decree nº 3,298/1999 was published (5). This legal instrument instituted the national policy for integrating disabled people, which had the following principles: Development of joint action between the State and civil society to ensure full integration of disabled people within the socioeconomic and cultural context Establishment of legal and operational mechanisms and instruments for ensuring that disabled people would be able to fully use their fundamental rights that, stemming from the constitution and its laws, would enable their personal, social and economic well-being Respect for disabled people, who should receive equality of opportunities within society through recognition of their guaranteed rights, without privileges or paternalism The objectives of this policy were: Enablement of access to, entry to and presence at all services offered to the community for disabled people; Integration of the actions of public and private bodies and entities in the fields of healthcare, education, work, transportation, social assistance, construction, social security, housing, culture, sports and leisure, with the aim of prevention of deficiencies, elimination of their multiple causes and enablement of social inclusion; Development of sectorial programs destined for meeting the unique needs of disabled people; Training of human resources for attending to disabled people; and To ensure the effectiveness of preventive programs, specialised attendance and social inclusion.
Since the United Nations Convention on the Rights of Persons with Disabilities came into force in May 2008 (6), new norms aimed at ensuring full and effective participation and inclusion of disabled people in society -without discrimination of any nature and equality of opportunities -were issued in Brazil. Law nº 13,146(7), of July 6, 2015, known as the Disabled People's Statute, sought inclusion of disabled people. It brought in modern concepts and established that when disability assessments were needed, they would be biopsychosocial and conducted by a multiprofessional interdisciplinary team. Such reviews would consider the following: a) impediments to body functioning and structures; b) socio-environmental, psychological, and personal factors; c) limitations on performing activities; and d) restrictions on participation.
This study aimed to analyse the ethical and legal foundation of the Brazilian legislation for disabled people. Also, ascertain whether instruments in use are compliant with international and national law, and research the coherence and cohesion of the law and its ethical standards to construct an inclusive and fair society. Therefore, an exploration of specific legislation regarding disabled people in Brazil was conducted. The hierarchy of norms and its amenability with the provisions of the United Nations Convention were analysed. Moreover, contradictions between the legal statutes were verified, and the regulation of disabled people's rights was examined.

Material and method
The methodology used was one of exploratory and integrative review. An examination of legal statutes relating to disabled people's rights was conducted using the official Brazilian Federal government's internet websites (www.planalto.gov. br, www.in.gov.br, www.normas.receita.fazenda. gov.br, www.receita.economia.gov.br, www.bvsms.saude.gov.br and www.sit.trabalho.gov.br).
This methodology was adopted because of the lack of search filters for this type of investigation. The analysis consisted of identifying the content of statutes and assessing whether they fit the objective of this study. After selecting, the material was grouped following: a) the definition of disability and disabled people; b) the specific criteria defined for assessing disability (International Classification of Functionality, ICF; or International Classification of Diseases, ICD); c) disability assessments regarding their biomedical or biopsychosocial nature; d) whether assessments were performed exclusively by doctors or multi-professional; and e) the management body responsible for disabilities' assessment. Table 1 summarises the legislation, and Table 2 illustrates the norms that fit within one or more of the criteria used in this research methodology. It was found that among the examples selected, particularly those that made provisions regarding certain benefits, did not incorporate criteria for defining disabled people and did not present any assessment parameters in the legal text. Law nº 7,070/1982(8) authorised the executive power to grant a lifelong non-transferable special monthly pension to individuals with the physical disability known as thalidomide syndrome who applied for this. The amount of the special allowance would be calculated as a function of a score that indicated the nature and degree of the dependence resulting from these individuals' physical deformity. Regarding the nature of the dependency, this would include their incapacity to work, mobility, execute personal hygiene, and feed themselves. A score of one or two points would be attributed, respectively, according to whether the dependence was partial or total. Recognition that the benefit dealt with in this law should be granted would depend only on present-ing a medical certificate proving the conditions needed to fit within the terms. An official medical board would adjudicate the case constituted for this purpose by the National Institute for Social Security.

Results and Discussion
Law nº 7,713/1988 (11) determined that the following would be exempt from income tax: earnings from retirement pensions or military retirement pensions that were awarded because of work-related accidents; and those awarded due to occupational diseases, active tuberculosis, mental alienation, multiple sclerosis, malignant neoplasia, blindness, leprosy, irreversible and incapacitating paralysis, severe cardiopathy, Parkinson's disease, ankylosing spondylarthrosis, severe nephropathy, severe hepatopathy, advanced stages of Paget's disease (deforming osteitis), radiation contamination and acquired immunodeficiency syndrome. These determinations would be based on conclusions from specialised medicine, even if the disease onset occurred after the retirement date.
Law nº 8,112/1990 (12) determined that disabled people would be guaranteed the right to enrol in public employment competitions for positions compatible with their disabilities. For such individuals, up to 20% of the vacancies offered through the competition would be reserved. Reservation of job positions is also regulated through decree nº 3,298/99(5), which makes provisions regarding the national policy for integrating disabled people. These decrees defined disability as all losses or abnormalities of structures or psychological, physiological, or anatomical functions that lead to incapacity to perform an activity within the standards considered normal for humans. In addition, five categories were created, with the following clinical criteria: a) physical impairment; b) hearing impairment; c) visual impairment; d) mental impairment; and e) multiple impairments. Decree nº 9,508/18(13) provided for reservation of at least 5% of the vacancies for public employment positions through public competitions and selective processes within the direct and indirect Federal public administration sphere for disabled people. The disability declared by the candidate would be certified by a multi-professional team formed by three professionals with capacitation in the field of the disabilities that the candidate presented, among whom one should be a doctor, and by three professionals working within the career for which the candidate has applied.
Law nº 8,213/1991(14) determined that companies with 100 or more employees had an obligation to fill 2% to 5% of their positions with suitably skilled disabled people or beneficiaries of rehabilitation. Law nº 12,764/2012 (15) instituted the national policy for protecting the rights of people with autistic spectrum disorder and defined the clinical criteria for this condition. These individuals would be considered disabled for all legal purposes. Normative instruction SIT/MTE nº 98/2012(16) made provisions regarding the procedures for inspecting employers' compliance with the norms for inclusion within the employment of disabled people and beneficiaries of rehabilitation through social security. In this norm, the basis for characterisation of individuals' conditions was decree nº 3,298/99(5).
Law nº 8,383/1991 (17) determined that financial operations regarding acquiring passenger vehicles for disabled people would be exempted from the tax financial operations (IOF). The vehicle licensing authority (DETRAN) of their state's permanent residency, through specific medical certification, should attest to the disability. The cars should be manufactured in Brazil (up to a crude power level of 127 horsepower as classified normatively by the Society of Automotive Engineers), or hybrid and electric.
Law nº 8,989/1995(18) (as altered through law nº 10,690/03 (19)) determined that purchases of passenger cars manufactured in Brazil would be exempted from the tax on industrialised products (IPI). These vehicles should be acquired by individuals with physical, visual, severe, or profound mental disabilities, or by autistic individuals, either directly or through the intermediary of their legal representative.
The benefit established in article 1 of the abovementioned law requires individuals to be physically disabled, presenting complete or partial alteration of one or more body segments that entailed physical function impairment, specifically: paraplegia, paraparesis, monoplegia, monoparesis, tetraplegia, tetraparesis, triplegia, triparesis, hemiplegia, hemiparesis, amputation, or absence of a limb, cerebral palsy or limbs with congenital or acquired deformity, except for esthetic deformities and those that did not produce difficulties for physical functions. Applications for this benefit would need to be submitted under normative instruction RFB nº 1,769/2017 (20), which regulated exemptions from IPI relating to the acquisition of vehicles by disabled people. A digitised copy of the assessment report issued by a public healthcare service provider, or by a private healthcare service provider within the public system, by DETRAN or by a not-for-profit autonomous social service would need to be submitted through the Federal tax department's electronic system for conceding exemption from IPI/ IOF. Interministerial Ordinance SEDH/MS nº 2/2003(21) defines the criteria for issuing assessment reports on disabled individuals to obtain an exemption from IPI. It stated that a doctor and psychologist would jointly attest to a condition of profound or severe mental disability or autism by filling out specific forms supplied by the Federal tax department or by bodies or institutions that the tax department defined. Reports relating to mental disability would need to meet the International Classification of Diseases (ICD-10). Only the profound or severe levels of mental disability were to be considered. For autism, diagnostic criteria based on ICD-10 and DSM-IV (Diagnostic and Statistical Manual of Mental Disorders) need to be used.
Law nº 10,048/2000 (22) determined that disabled people, older adults aged 60 years or over, pregnant women, breastfeeding women, people carrying young children and obese individuals would be given priority attendance, following the text of law nº 13,146/2015 (7).
Law nº 10,050/2000 (23) determined that the pension benefit provided for in the civil procedure code would be extended to a child whose disability made work impossible in the absence of a father or mother. Law nº 13,183/2015 (24) determined that the right to a pension due to the death of an insured person would cease for that person's child, partner, or sibling upon reaching 21 years of age, except in the case of invalidity or severe disability or mental or intellectual deficiency. Law nº 13,135/2015 (25) established that medical experts for social security and, as substitutes, medical expert supervisors within the National Institute for Social Security and the Ministry of Social Security would be responsible for performing the medical expert activities inherent to the general regime for social security. They would have the task of characterising disability for social security benefits and assistance.
Law nº 11,692/2008(26) enabled disabled young adults to participate effectively in Projovem, the national program for the inclusion of young adults. This program was aimed at young adults aged 15 to 29 years and meant to promote their reintegration into the educational process to obtain professional qualifications and human development. It was developed in the following forms: Projovem socio-educational service for adolescents; Projovem for urban areas; Projovem rural knowledge of the earth; and Projovem for workers.
Law nº 12,711/2012 (27) determined that in all Federal institutions of higher education, vacancies would be filled proportionally to the total number of vacancies per course and per yeargroup, by people of self-declared black, brown, and indigenous ethnicity and by disabled people, under the terms of the legislation. At a minimum, these ratios would be equal to the respective proportions of black, brown, indigenous, and disabled people in the population of the Federal State (and the Federal District) where the institute was located, as detailed in the latest census conducted by the Brazilian Foundation and Institute for Geography and Statistics (IBGE). Decree nº 7,824/2012(28) regulated this law and stated that the form of proof would be supplied under the terms of the legislation in force.
Law nº 12,587/2012(29) instituted the national policy guidelines for urban mobility, in which 10% of parking places were bestowed on disabled drivers, who were included through law nº 13,146/15(7).
Law nº 12,933/2013(30) determined a benefit of half-price tickets for entry to cinemas, cine-clubs, theatres, musical shows, circuses, educational events, sports events and leisure and entertainment events throughout Brazil, for disabled peo-ple and an accompanying person when necessary. The latter will have an identical benefit if the situation of accompaniment is proven. Decree nº 8,537/2015(31) regulated Law nº 12,933/2013 and confirmed the right to half-price entry to the events listed for disabled people, in consonance with the Brazilian law of inclusion.
Complementary law nº 142/2013(32) ensured that a retirement pension would be granted through the general regime for social security to insured individuals with disabilities, under the following conditions: a) after 25 years of contributions for men and 20 years for women, in the case of insured individuals with severe disabilities; b) after 29 years of contributions for men and 24 years for women, in the case of insured individuals with moderate disabilities; c) after 33 years of contributions for men and 28 years for women, in the case of insured individuals with mild disabilities; or d) at 60 years of age for men and 55 years of age for women, independent of the degree of disability, provided that a minimum of 15 years of contributions had been made and that the existence of disability for the same period was proven. The assessment would be medical and functional, and the regulations of the executive power would define severe, moderate, and mild disabilities for this complementary law. Decree nº 3,048/1999 (33) stated that the National Institute for Social Security (INSS) responsibilities were fulfilled provided it had access to insured individual's information regarding the number of registered mild, moderate or severe disabilities; and biopsychosocial evaluations were conducted by an interdisciplinary multi-professional team (text given through decree nº 10,410/20 (34)) to recognise and maintain rights.
Decree nº 8,145/2013 (35) established that retirement pensions to disabled people under the terms of joint memoranda of the Chief Minister of the Department of Human Rights of the Presidency of the Republic, the Ministries of Social Security, Finance and Planning, Budget and Administration, and the Federal Attorney-General, the expert from the INSS would have the following responsibilities: a) to assess the insured individual and establish a probable date for onset of the disability and its degree; b) to identify occurrences of changes to the degree of disability and indicate the respective periods during which each degree was present. Proof of disability before the date on which complementary law nº 142, of May 8, 2013, came into force and was governed by documents that supported the medical and functional assessments. Proof submitted solely as witness statements would be prohibited. Furthermore, assessments on disabled people would be performed to prove this condition solely for social security purposes.
Law nº 8,899/1994(36): This instituted the concession of free public transport passes for disabled people who were proven to need this. Decree nº 3,691/2000(37) regulated this law. It determined that companies with permits and authorisations for the provision of interstate passenger transportation would reserve two seats in conventional services for occupation by disabled people and other matters foreseen in this law. Ordinance nº 502/2009(38) instituted certification through multi-professional teams for identifying disabled people within the public healthcare system, intending to grant free passes. Ordinance GM nº 410/2014(39) ensured that, within the interstate public system for rail, road, and water-borne transportation, a person accompanying the beneficiary of the free pass program would receive the same benefit, under the following conditions: a) proof of the accompanying person's financial insufficiency, under the terms of Interministerial Ordinance nº 3, of April 10, 2001, and Ordinance nº 261, of December 3, 2012; b) proof, through a medical report, of the indispensability of the accompanying person's presence for the beneficiary's movement. Decree nº 3,047/2016 (40) established the concession of free passes for people with hearing deficiencies that were proven to be partial or total bilaterally, of 41 dB or more, measured on an audiogram, regarding the mean from frequencies of 500 Hz, 1,000 Hz, 2,000 Hz and 3,000 Hz.
Thirty-three legal norms were found, among which only three laws and two decrees were in line with the recommendations in the Convention on disabled people's rights. Table 1 below emphasises the legislation. Law nº 7,070/1982(8) granted special pensions to people with thalidomide syndrome. The ben-eficiaries would present a medical certificate to attest to the dependence resulting from physical deformity (work and mobility incapacity), personal hygiene, and feeding autonomy. The insured person would go through a medical expert assessment at the INSS, but no biopsychosocial evaluation would be necessary despite all the social repercussions.
Complementary law nº 142/13 (32), which dealt with retirement pensions for disabled people insured through the general regime for social security, was hierarchically higher than ordinary laws, decrees, and ordinances. Its text brought in the modern concept of disabled people and established that assessments of disabilities should be medical and functional (ICD/ICF). Experts from the INSS would certify the degree of disability. However, it was observed that decree nº 3,048/99 (33), which made provisions regarding social security regulations, came to determine through the modification imposed by decree nº 10,410/20(34) that the assessment of the disability would be biopsychosocial and multi-professional, thus differing from what was recommended through the above complementary law. In turn, decree nº 8,145/13(35) also adopted the current concept of disability, with medical and functional assessments of disability made by experts from the INSS. In this regard, the norms contradicted each other. They did not follow Hans Kelsen's pyramid hierarchy, i.e., the pure law theory, since the decrees differed from the complementary law.
Law nº 8,899/94 (36), which ensured the right to free transportation passes for disabled people who were proven to need this, did not establish any need to evaluate the disability or any criteria for characterising disabled people. Nonetheless, decree nº 3,691/00 (37), which regulated this law, referred to decree nº 10,048/2000 (22), as altered through law nº 13,146/2015(7), which made provisions regarding the disabled people's statute. Furthermore, concerning free passes, ordinance MS nº 502/09(38) instituted certification by multi-professional teams for identifying disabled people, done through the public healthcare system, with medical and functional assessments. Likewise, the basis of ordinance GM nº 410/14 (39) and decree nº 3,047/16(40) con-sisted of medical and functional assessments, as contained in decree nº 3,298/99 (5).
The percentage of parking places for urban mobility was ensured for disabled people under law nº 13,146/2015 (7). The benefit of half-price tickets for entry to cinemas, cine-clubs, theatres, musical shows, circuses and educational, sports and leisure events was envisaged through decree nº 8,537/2015 (31).
The present study sought to analyse the Brazilian legislation for people with disabilities and verify whether the instruments used to meet what the legislation recommends and investigate the coherence and cohesion of the laws in question. It was observed the inexistence, in the law, of an instrument for the evaluation of disability.
The Convention on the Rights of Persons with Disabilities (6), which came into force on May 3 2008, has as its principles respect for independence, freedom to make one's own choices; nondiscrimination; full and effective participation in society; respect for difference; equality of opportunity; accessibility; equality between men and women; and respect for the developmental capacity of children with disabilities.
According to John Rawls, they are born into some particular conditions within society. These are simply natural facts. What is just or unjust is how social institutions deal with these facts (41).
In the Convention on the Rights of Persons with Disabilities, Rawl's theory portrays principles that make society more just for Persons with Disabilities. However, we acknowledged in the legislation studied an incongruence between the legal texts, the principles governing the Convention, and the absence of standardisation in the criteria for evaluating disability.
The legislation affronts the bioethical principles of beneficence (to do good) and the principle of justice (as the equity that guarantees to give to each person according to their needs) by not establishing uniform criteria to prevent individuals who present deformities without functional repercussion to benefit from rights guaranteed to PWD that present functional deficit and, there-fore, disadvantages concerning the so-called ordinary people.

Conclusion
The comprehensive analysis concluded that the existing legal instruments differ regarding the guarantees for the various benefits for disabled people, with multiple concepts, parameters, and models for assessments.
Given the legal instruments' diversity regarding different rights, and the difficulty in accessing the information relating to these rights and their respective norms, there is a need to publish a document containing all the legislation on this topic. This solution will facilitate search, access and enable better-organised assessments. It will also promote proper understanding among other professionals and the public regarding this topic.