Litigation: Siler v. Abbott House Condo
By: Matthew Dietz
Rachel Siler was looking forward to moving to Miami Beach in April 2016. Rachel went to art school in Chicago and after graduating from college she started working in the Independent Living and Disability Rights Movements. Aside from this passion she has also represented the disability community within the Occupy and Anti-war Movements. When she isn’t fighting for social justice she enjoys reading, antiquing and designing.
For the past thirteen years, she had lived in cold and windy Chicago working at Chicago’s Access Living, assisting people with disabilities and a coordinator of Chicago ADAPT, an organization that has dedicated disability rights activists that engage in nonviolent direct action, including civil disobedience, to assure the civil and human rights of people with disabilities to live in freedom. She found a job as an independent living specialist at the Center for Independent Living of South Florida and was ready to move to sunny Miami Beach.
As a wheelchair user herself, Rachel knew what she needed in order to live independently in Miami Beach. She needed to live near to public transportation, a safe surrounding area, a building with an elevator, a residence that was affordable and accessible, and adequate green space so that her service animal, Minty could be walked. Before moving down to Florida, she visited the area and hired a real estate agent. During her visit, she looked at eight residences. However, none these residences met her needs. When she returned home, the agent sent Rachel information about a condominium on Miami Beach at Abbot House Condominum, and it was perfect – one of the largest homes that she ever lived in.
She entered in to the lease with the owner of the condominium, and was told that a condition of moving in was physically meeting with the condominium association board screening committee and receiving written approval. This was only supposed to be a formality. So, Rachel spoke with the property manager, received permission to move her belongings in on May 21st, and packed and started the trek across the United States with her mother and a friend.
When Rachel came to Miami on May 20th, with her personal assistant, she did not get the reception that she was expecting. The association manager met her and was shocked, he told her that she did not know that she had a “condition”. She then went to a meeting with two of the board members of the Condominium.
Instead of speaking to Rachel, the board member started asking questions of Rachel’s assistant, as if Rachel could not speak for herself –
- “Do you live with her?”
- “Will you always be with her?”
- “Do you sleep with her?”
“No, she can speak for herself,” said the assistant. Rachel continued, and attempted to explain her existence, she explained that she works forty hours per week and she schedules personal assistants around that work schedule. Notwithstanding the humiliation at having to explain the fact that she lives and works like any other person, the screening committee than attempted to try to convince Rachel why she should not live at Abbot House.
- The Board of Directors does not want to be held liable if something were to happen to you.
- The building only has one elevator, how are you going to work if the elevator broke?
- Fire fighters and paramedics do not want to climb stairs to rescue an elderly resident who was unable to evacuate due to a fire. The board did not have the funds to pay for modifications to make the building accessible.
Rachel told the Board that she would pay for any modifications to her own residence and the buildings elements are accessible to her and she did not need any modifications. When they could not dissuade her, the association requested that she sign a waiver, releasing the condominium from all liability from any injuries. To live in her home, she agreed, and then was provided the keys to the public areas, including the exterior door with the wheelchair ramp.
But before she could move in, the property manager told her that, the board that approved her tenancy to her face, now decided to decline her rental request, and followed up with an email:
This is to inform you that Ms. Rachel D. Siler, as a prospective tenant of Unit 4A, was denied by the Board of Abbott House Condo under the powers and duties of the Bylaws of the Association (See two (2) pages of the attachment).
By the understanding of the Board of Directors of ABBOTT HOUSE, INC. A CONDOMINIUM, the building has not the appropriate accessibility for people with disabilities conditions for the following reasons:
– The access to the building and other common areas as accessible route are not appropriate. We have not physical access like route, curb ramps, entrances and loading areas,
– There is not an appropriate parking space for a disable people. All of them are narrows,
– There is not a restroom and bathroom accommodation, etc.
All of the above are part of the main considerations of the Americans with Disabilities Act (ADA). Therefore, the Association cannot be responsible for any future claim requested by Ms. Siler and any other officer of the Miami-Dade County
Stranded in Miami Beach, with no home, Rachel Siler, an independent living specialist, was in a nightmare that she would usually be the person who these issues would be reported to. But in a new city, she did not know where to turn. She reached out to Disability Independence Group.
On Monday, May 23, Rachel Siler, with the assistance of her family and her personal assistant, decided to move into her condominium in spite of Abbot House refusal to approve her lease in spite of their denial. Until a lawsuit was filed, Rachel and her service animal were harassed and attempts were made to block her and her personal assistant from the property.
It is unlawful to deny a person housing based upon insurance liability concerns. Historically, people with disabilities have been stereotyped in many different ways. Some of the stereotypes used to label people with disabilities as incapable of living independently, having a job, having a social and sex life and enjoying their life to the fullest.
The most common barriers to persons with disabilities are not physical barriers, but the attitudinal barriers that lead to this type of discrimination. The Fair Housing Act does not allow for exclusion of individuals based upon fear, speculation, or stereotype about a particular disability or persons with disabilities in general. This prohibition is both in housing, under the Fair Housing Act and with other accommodations under the Americans with Disabilities Act. As discussed in the comments Americans with Disabilities Act, one “cannot refuse to serve a person with a disability because its insurance company conditions coverage or rates on the absence of persons with disabilities. This is a frequent basis of exclusion from a variety of community activities and is prohibited by this part.” See 28 C.F.R. § 36.202.
Turns out that the least of Abbot House Condominium’s worries should have been whether Rachel Siler would not be able to get around in her wheelchair and would injure herself. Maybe instead of assuming she was an invalid who sleeps with her personal assistant, the Condominium Board should have started with the premise that she had a job, a life, and a passion for helping others. The real liability was the failure to acknowledge Rachel Siler as the die-hard disability advocate who works to help others destroy attitudinal barriers and harmful stereotypes.
By: Lesly Lopez
Extended Medicare Coverage
For Working People with Disabilities
As long as your disabling condition still meets our rules, you can keep your Medicare coverage for at least 8 ½ years after you return to work. The 8 ½ years includes your nine month trial work Period.
Your Medicare hospital insurance (Part A) coverage is premium-free. Your Medicare medical insurance (Part B) coverage will also continue. You or a third party (if applicable) will continue to pay for Part B. If your Social Security Disability Insurance cash benefits stop due to your work, you or a third party (if applicable) will be billed every 3 months for your medical insurance premiums. If you are receiving cash benefits, your medical insurance premiums will be deducted monthly from your check.
Continued Medicaid Eligibility (Section 1619(B))
For beneficiaries receiving SSI
One of the biggest concerns SSI beneficiaries have about going to work is the possibility of losing Medicaid coverage. Section 1619(b) of the Social Security Act provides some protection for these beneficiaries. To qualify for continuing Medicaid coverage, a person must:
- Have been eligible for an SSI cash payment for at least 1 month;
- Still meet the disability requirement; and
- Still meet all other non-disability SSI requirements; and
- Need Medicaid benefits to continue to work; and
- Have gross earnings that are insufficient to replace SSI, Medicaid and publicly funded attendant care services.
This means that SSI beneficiaries who have earnings too high for an SSI cash payment may be eligible for Medicaid if they meet the above requirements. SSA uses a threshold amount to measure whether a person’s earnings are high enough to replace his/her SSI and Medicaid benefits. This threshold is based on the:
- amount of earnings which would cause SSI cash payments to stop in the person’s state; and
- Average Medicaid expenses in that state.
If an SSI beneficiary has gross earnings higher than the threshold amount for his/her state, SSA can figure an individual threshold amount if that person has:
- Impairment-related work expenses; or
- Blind work expenses; or
- A plan to achieve self-support; or
- A personal attendant whose fees are publicly funded; or
- Medical expenses above the average state amount.
The state of Florida 2016 annual threshold amounts for disabled and blind beneficiaries is $30,566.
Other Health Insurance Options for People with Disabilities
Medicaid Share of Cost or medically needy from Department of Children and Families(DCF)
In Florida, the Medicaid Share of Cost program is a type of health insurance for the medically needy. These are people who make too much money to qualify for regular Medicaid, but not enough money to pay for their healthcare needs. They meet all of the standard Medicaid eligibility requirements except the income requirement.
The day your healthcare expenses for the month exceed your share of cost, your Medicaid coverage begins. From that day until the end of the month, you have full Medicaid coverage. You don’t actually have to pay the healthcare expenses used to reach your share of cost. You just have to owe that much. When Medicaid coverage begins, not only does Medicaid pay for your healthcare expenses for the rest of that month, it also pays for the expenses used to meet your share of cost that month. If you choose to pay those expenses yourself, they’ll still count toward meeting your share of cost, but you won’t be reimbursed by Medicaid for what you’ve paid. To apply or for more information visit www.myflorida.com/accessflorida.
Affordable Care Act (ObamaCare) through? the Market Place
The Affordable Care Act (ACA) was signed into law on March 23, 2010. Beginning Jan. 1, 2014, the law requires all Americans to obtain health care coverage through an employer, an individual health plan or programs such as Medicare, Medicaid, or Children’s Health Insurance Program (Florida KidCare) unless they meet an exemption. Individuals who do not meet an exemption and fail to obtain coverage may be subject to a tax assessment.
On Oct. 1, 2013, the federal government opened the Marketplace where individuals can compare and shop for health care coverage. Each year an open enrollment period will take place for individuals who are seeking Marketplace coverage. Medicaid and Florida KidCare enrollment takes place year-round. If a person applies at the Marketplace and is found potentially eligible for Medicaid or Florida KidCare, their application will be sent to the appropriate agency for processing. The ACA also provides cost sharing and tax credits to assist low-income qualified individuals in purchasing health insurance through the Marketplace.
- Individuals seeking more information about services offered through the Marketplace may contact the Federal Call Center at 1-800-318-2596, Deaf and Hard of Hearing TTY 1-855-889-4325, or go to gov.
Community Health Centers like CHI (Community Health of South Florida Inc.)
CHI is a nonprofit health care organization providing affordable quality primary and behavioral health care services to the residents of rapidly-growing South Florida. CHI operates 11 state-of-the-art primary care centers and 31 school-based programs. All centers offer quality comprehensive primary and behavioral health care services. Our physicians are board certified or board eligible. Additionally, CHI is accredited by the Joint Commission and is accredited as a Level 3 Patient-Centered Medical Home by the National Committee for Quality Assurance (NCQA). CHI offers a “one-stop-shop” model where the organization and delivery of quality services are seamless, affordable, accessible and culturally sensitive. For more information visit their website: http://www.chisouthfl.org/about-us/.
If you are an SSI or SSDI beneficiary and need an individualized analysis of your situation please contact the Community Work Incentives Coordinator or benefits planner in your area. Please check the SSA Website for more details: http://choosework.net.
By: Andrew Sagona
The Family Café is a free conference for Floridians of all ages with disabilities and their families to learn about the latest developments in the Florida disability community and to attend the annual Florida “Governor’s Summit on Disabilities.” I have been attending Family Café for over ten years, and I still feel the same sense of wonder and excitement now as I did at my first Café.
This is in part because the atmosphere is fun, warm, friendly, and inclusive. There is always something fun to do for everyone and there are new and interesting things to learn at the Café, whether it is information on disability advocacy, an invention that helps people with disabilities, or a law that fights discrimination.
However, the main reason for my wonder and excitement – my favorite part of attending Family Café – is getting to meet new friends and see old friends again. Many of the people at Café attend the conference every year, the result being that you begin to see familiar faces at each conference. For some, like myself, Family Café serves as an annual family reunion of sorts. After attending the conference even once, you make some very close friends – to the point that they become your second family. But because of time and distance restrictions, we are unable to see each other at any other time of the year. So when the three days of Family Café rolls around each year, there is a great deal of anticipation, happiness, and joy when you see your “family” again.
Ultimately, friendship is the defining trait of Family Café. It is the heart of Family Café because there is a sense of acceptance and belonging at the conference that doesn’t exist to the same extent outside of the conference. Many attendees spend all but three days of their year experiencing stares, strange questions, and even discrimination. However, for the three days each June that the conference is held, all of that goes away. For those three days, everyone is kind to each other and no one is viewed as “less than” anyone else. For those three days, everyone is welcomed.
This year marked the 18th Annual Family Café, and it was held from June 10–12 at the Hyatt Regency hotel in Orlando, Florida. According to Family Café founder and organizer Lori Fahey, this year’s conference was the largest in history: approximately 10,000 people in attendance, over 160 training sessions, and more than 100 booths filled the exhibition hall. The Café also featured fun activities, including a Gatorland wildlife show, rock climbing wall, photo booth with Superman, and a fashion show. Each Family Café features three keynote speakers and two and a half days of workshops, which are informational presentations given by professionals, business owners, governmental agencies, and self-advocates covering diverse topics such as education, employment, starting a business, social security, Medicaid, technology, medicine, and advocacy. In addition, Family Café provides many activities for individuals with disabilities like paddle boarding, scuba diving, and sensory rooms.
The conference also has an exhibition hall filled with booths sponsored by vendors, businesses, and government agencies with the goal of letting attendees discover new products and services, or speak to agency representatives to help them with problems they are facing
This year’s “Governor’s Summit on Disabilities” featured information relating to the disability community. The biggest news announced at the summit was the introduction of the ABLE Trust, a savings account for people with disabilities that allows them to save money above the $2,000 limit set by Social Security, as well as the news that, as a result of increased funding, 5,000 individuals will come off the 20,000 people waiver waitlist this year. The summit was attended by Governor Rick Scott, members of the Florida Legislature such as Senate President Andy Gardiner, and heads of governmental agencies such as Barbara Palmer of the Agency for Persons with Disabilities, Pam Stewart of the Department of Education, and Florida Surgeon General Celeste Phillip.
The Family Café conference isn’t just about education and policy, though. It is also about having fun and making new friends–and the fun begins with the hotel. Each year, the hotel chosen for the conference has something for everyone: massive pools for kids to play in, restaurants for families to dine at, and much more. This year’s hotel was no exception. The Hyatt Regency had three pools to choose from, the largest of which featured a water slide and other amenities. The Regency also had numerous eateries, including bars for the adults, an up-scale restaurant, and a 50’s-style diner.
The fun continues with the conference itself. Throughout the three-day event, DJs pumped music throughout the convention hall, enticing children and adults alike to dance. Performance groups, such as bands, a choir, and a dance troupe, performed throughout the Café as well, and they entertained large crowds with their talents. And there were lots of giveaways, with prizes ranging from gift cards to PCs.
The culmination of the fun was a massive dance party that was held on Saturday night. For more than two hours, hundreds of attendees packed a large ballroom and danced the night away to all kinds of popular music. Children and adults “raised the roof,” breakdanced, and danced free style. There were organized dances as well, with songs like “YMCA” and the “Cha-Cha Slide” bringing everyone together to dance in unison. The sense of excitement and pure joy that filled the ballroom was infectious.
For more information on Family Café, visit www.familycafe.org.
By: Matthew Dietz
The Florida Bar is fully committed to the enhancement of diversity within the Bar, the legal profession, legal education, and in the justice system, and affirms its commitment toward a diverse and inclusive environment with equal access and equal opportunity for all.
–The Florida Bar Board of Governors, May 2010
On June 23, 2015, the Supreme Court issued their ruling in Fischer v. University of Texas at Austin, Case No. 14-981, upholding race conscious admissions policies at the University of Texas, as long as it is only a factor in a holistic review as a means of obtaining the educational benefits that flow from student body diversity. Justice Kennedy issued a muted opinion from the Court touting the benefits of diversity and quoted from a prior decision stating:
[T]he compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining “the educational benefits that flow from student body diversity.” … As this Court has said, enrolling adverse student body “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” … Equally important, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.”
Diversity also promotes the image of impartial justice, knowing that lawyers and judges that have the panoply of cross-racial, and cross-cultural experiences will not have deep seated stereotypes or prejudices against persons because of who they are, what they believe, or what they look like. However, the diversity within the Florida Bar and the Florida Judiciary does not reflect the population of Florida. If one looks at the statistics of the Florida lawyers and judiciary, as compared to the population of Florida, it is elemental why it is important to ensure that diversity is encouraged to ensure the appearance of justice and the destruction of stereotype.
|Category||Percent lawyers in Florida||Percent Judges in Florida||Percent in Jud. Nominating Commission||Percent Population in Florida|
|Persons with Disabilities||2||13.1|
Why does it matter for persons with disabilities?
In an interview, Mr. Trump said U.S. District Judge Gonzalo Curiel had “an absolute conflict” in presiding over the litigation given that he was “of Mexican heritage” and a member of a Latino lawyers’ association. Mr. Trump said the background of the judge, who was born in Indiana to Mexican immigrants, was relevant because of his campaign stance against illegal immigration and his pledge to seal the southern U.S. border. “I’m building a wall. It’s an inherent conflict of interest,” Mr. Trump said.
Mr. Trump has stereotyped a judge solely because of his ancestry and a stereotype that the judge may not be in line with his views. With a person with a disability, each lawyer, juror, and the judge carries with them a lifetime of stereotypes and misconceptions about persons with disabilities. Most of them start with….”I once had a friend that had a family member that…” Accordingly, the person’s whole perception of disability is built around the abilities of one person, or, even worse, what people see on television. So essentially, there is the myth of the “super-crip” or the incapacitated person.
The “supercrip” as superhuman that is lauded by the able-bodied as the inspirational person who “overcame” their disability. If you have a disability in one area, then you more than make up for it in all other ways. If you are blind, you can identify a person’s footfalls; if you are deaf, you can read lips from two miles away; if you are autistic, you are a mathematical savant. It is “inspirational” for a person who has a disability to be successful in society, when, in truth, persons with disabilities do not need to act as tools to inspire, but just to live.
On the other hand, the incapacitated person, who is not able to be productive and is essentially invisible is as common. The person who is shuttered in a nursing home and neglected because society does not provide access. Society considers these folks “better off” where they can be taken care of, as they have nothing to contribute to society.
Both of these stereotypes are pernicious.
So, as a trial lawyer for a disability related claim, the most difficult part is dealing with these stereotypes and educating my colleagues in the legal profession that people with disabilities are people, just like them. We all need assistance at one time or another, just like them. We all need accommodations at one time or another, and we all have something to contribute.
But, when there is two percent of lawyers who have disabilities, a negligible number of judges with disabilities, and no active recruitment of persons with disabilities in law schools, it’s difficult to say to my clients that this judge or lawyer has ever had contact with a deaf person or a blind person. In every single one of my cases involving a deaf person regarding not being able to get an interpreter for a critical situation in his or her life, the deposition of that deaf person usually includes a detailed description of how a deaf person uses a videophone, drives, or other daily living activities.
So, when Justice Kennedy states educational diversity “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” The same concept includes disability, and disability related stereotypes and attitudinal barriers against stereotypes must be broken down.
2015 Florida Bar Membership Opinion Survey – In December 2015, The Florida Bar sent an online survey link to a random sample of 3,078 in-state and out-of state, eligible members. By the cut-off date of December 30, the Bar had received 1,074 completed questionnaires, for a response rate of 35%. This response rate is acceptable for this type of lengthy online survey. https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/4ECB247149A8546C85257F41007B6479/$FILE/2015%20Membership%20Opinion%20Survey%20-%20Final%20Report.pdf?OpenElement
 The Florida Bar President’s Special Task Force to Study Enhancement of Diversity in the Judiciary and on the JNC’s, found at https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/A4E41688279C883585257CE1004A0B9E/$FILE/Appendices%20to%20Task%20Force%20Report.pdf?OpenElement
 US Census Quick facts for Florida information, found at https://www.census.gov/quickfacts/table/DIS010214/12.
For Disability Statistics – ACS Disability Statistics 2010-2014, found at http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_14_5YR_S1810&prodType=table
For LGBT statistics – http://www.lgbtmap.org/equality_maps/profile_state/10
By: Lorinda Gonzalez
“Your assumptions are your windows on the world. Scrub them off every once in a while, or the light won’t come in.” ― Isaac Asimov
Deaf people can’t dance. Blind people don’t like art. People in wheelchairs can’t have sex. These are just a few of the stereotypes and misconceptions that are common trains of thought about individuals with disabilities. Many people assume all sorts of falsehoods that are, in fact, not true! Such assumptions can lead to extremely serious mistakes in judgment—and lead to missed opportunities to engage with a group of wonderful people. In order to break through these stereotypes and misconceptions, we can start by having an open mind and acknowledging that no two people are exactly alike.
Deaf to Dancing – Breaking Barriers One Step at a Time
Nyle DiMarco, an American model and actor, showed the public that a deaf person could not only dance, but win the infamous Dancing with the Stars Mirror Ball. He was paired with professional dancer Peta Murgatroyd, who had no experience whatsoever with working alongside a deaf person, nor did she have any training in sign language. Interestingly, as the show progressed viewers saw the couple peel away stereotypes one week at a time by showing America that yes … a deaf person can dance and dance well! During the ninth week of competition, the couple decided to show viewers exactly what it was like for DiMarco to dance without sound. During a powerful Paso Doble dance series, DiMarco performed 1/3 of a minute to this lively style of dance modeled after the drama and movement of the Spanish and Portuguese bullfight. These few moments replicated the way DiMarco experiences dance; with no sound, yet high energy and passionate emotion. His success on the show broke barriers and brought us one step closer to breaking the many misconceptions the deaf community faces on a daily basis.
Good Sex with Any Body – Dr. Sheypuk
The way people with disabilities are viewed related to sex and intimacy is riddled with stereotypes and misconceptions of inadequacy. Asexual. Not able to have sex. Not able to have good sex. Can’t be a wife. Can’t be a mother. Can’t be a good mother. Weak. Infertile. Can’t be a good father. All of these and more are inaccurate patterns of thought that challenge equality and make it an unfair playing field for individuals with disabilities. Dr. Danielle Sheypuk is a Clinical Psychologist in New York City, who specializes in socialization and sexuality amongst individuals with physical disabilities. According to Sheypuk, “Societies misconceptions and inaccurate assumptions are the largest obstacles we face in this area with a disability, and let me tell you…it’s the size of Mount Everest.” There are hundreds of different disabilities and even more variations making each person completely different from one another. Through her public appearances and private practice, Dr. Sheypuk is initiating a new trend of accepting that people with disabilities are in fact capable of having healthy, active, and mutually enjoyable intimate relationships. Her work has caught the public’s eye, as she’s been interviewed and featured in Fox News, Elle Magazine, Daily Mail, The Guardian, and presented a Ted Talk.
Personal Thoughts – Don’t Assume, Just Ask!
I have found that some of my relationships were more open and honest while others were closed off and full of assumptions, since my suitors varied in their previous experience with a person in a wheelchair. The key to the most enjoyable of my experiences has been open and honest communication. I always encouraged them to ask me any questions that may pop up rather than assuming there was anything we couldn’t do. This same piece of advice goes beyond relationships and can also be used as a way of integrating individuals with disabilities into all societal activities. This is the first step in eliminating misconceptions and combating stereotypes surrounding disability.
 Nyle DiMarco and Peta Murgatroyd, DWTS Season 22. Retrieved from: http://www.dailymail.co.uk/tvshowbiz/article-3609242/Peta-Murgatroyd-celebrates-DWTS-win-Nyle-DiMarco-GMA-Erin-Andrews-let-pregnancy-news-slip.html
Some children with autism, developmental or intellectual disabilities may wander off without any comprehension of possible danger. This might include running off from adults at school or in the community, leaving the classroom without permission, or leaving the house when the family is not looking. While most children are drawn to water, many autistic children seem even more fascinated by it — and they’re also fearless.
On April 29, 2012, Hannah Sackman, a seven year old Autistic little girl drowned when she eloped from a housing development at military housing in Fort Gordon. When Hannah’s mother was concerned with the size of the fens and the locking mechanism of the fence, she asked the management company if she could install additional locks on the doors that were higher up and out of Hannah’s reach. The house had three exterior doors and all of them had a locking mechanism on the knob and a dead-bolt – both of which could be unlocked from the inside with a simple twist and without using a key and Hannah’s mother was concerned she would figure out how to open them. In response to her request, the management said, “no, it was against policy” and would damage the doors. In 2013, Hannah’s parents sued the housing manager under the Fair Housing Act for the death of their daughter, and the case settled for an undisclosed amount in 2015.
What happened to Hannah Sackman is not unique, and the Fair Housing Act requires housing providers allow persons with disabilities or those associated with them to modify the premises if the modification is necessary for the person with a disability, and is done at the expense of the person with a disability. For residents of public housing or other housing that is federally funded, the modifications must be done at the expense of the housing provider. These modifications can be as simple as a lock on a front door, or grab bars in a shower; or as complicated or expensive, such as a pool lift, or installing ramps or sidewalks.
Kim Johnson came to Disability Independence Group because she was afraid to live in a home that would not be safe for her daughter. Kalia is a 10 year old girl who lives with Fabry disease, which is a rare genetic disorder. Along with a developmental disability, Kalia also suffers from episodes of pain, is legally blind, hard of hearing, and problems with her gastrointestinal system and a cecostomy. She requires twice daily flushing of her stoma which takes hours and hours of time. Kalia is a runner, and whenever she has a chance, she tries to escape. She knows how to unlock doors and turn handles.
In March of 2016, Kim was looking for a new rental home in Largo, Florida and found
perfect home. During the showing of the home and throughout the leasing process, Kim and Kim’s Mother, Donna, spoke with the leasing agent, and explained how urgent it was that they move and the needs of Kalia’s disability. Then, with the help of Donna, Kim entered a lease for the home. After signing the lease, the leasing agent, instructed Kim on the use of the front door lock. At that time, Kim said that she would need to install a chain lock on the door to keep Kalia inside since she has a tendency to elope. As with Hanna Sackman’s mother, Kim was concerned with the locking mechanism and wanted a mechanism that was higher up and out of Hannah’s reach.
The leasing agent refused. Kim explained that a that the chain lock was the most reasonable modification asserted her rights under the Fair Housing Act, in order for her daughter …”to be able to have an equal opportunity to have safe access to the majority of the home.” The leasing agent and owner refused to allow Kim to install a higher locking mechanism, as they believed that a chain on the door would damage the door. Then the lessor refused to return the money Kim spent on the home, and refused to allow her to find another home that would be suitable for Kim and her daughter.
Reasonable modification in housing is the law. A landlord cannot legally deny a reasonable modification to a home. In 2008, the U.S. Department of Justice and the U.S. Department of Housing and Urban Development issued joint guidance on the requirements relating to reasonable modifications under the Fair Housing Act.
Adding a chain lock to the front door is the most reasonable, most effective modification given K.J.’s disability. The chain-lock modification is the most reasonable modification because the chain lock would be out of K.J.’s reach and would successful prevent K.J. from eloping. Pursuant to HUD’s guidance, adding a chain-lock to the front door is necessary because the other suggested modifications will not be effective. By denying Kim and her daughter Kalia an accommodation, this landlord denied them a safe home, solely due to Kalia’s disability.
 Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Modifications Under the Fair Housing Act (March 5, 2008), http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf (last visited May 10, 2016).
By: Matthew Dietz
Unless the housing facility is a qualified 55 and over housing development, a housing provider cannot have rules that treat children differently, and less favorably than adults. When the US Congress amended the Fair Housing Act in 1988, it prohibited housing practices that discriminate on the basis of familial status.When it amended the Act, Congress recognized that “families with children are refused housing despite their ability to pay for it.” In addition, Congress cited a HUD survey that found 25% of all rental units exclude children and that 50% of all rental units have policies that restrict families with children in some way. The HUD survey also revealed that almost 20% of families with children were forced to live in less desirable housing because of restrictive policies. Congress recognized these problems and sought to remedy them by amending the Fair Housing Act to make families with children a protected class. So any rules, that do not have a legitimate safety justification, cannot indicate a “preference, limitation, or discrimination” against children under the age of 18. This includes rules that prohibit children from common areas in the facility with or without supervision, or limit the facilities of the housing development to adults. All rules must apply to children and adults equally, and cannot solely target children’s behavior.
If rules have a legitimate safety rationale, then such rules may be legitimate. But, again rules such as all children under sixteen must be supervised by an adult does not have a safety rationale, but a discriminatory basis against loud teenagers. On the other hand, a fifteen year old at a gym may injure him or herself on free weights without having supervision.
Summer camp must be inclusive
Over the past fifteen years, I have had several cases involving children who were not permitted to go to the summer camp of their choice, or were segregated in the summer camp because of the child’s disabilities. A summer camp, like any other public accommodation under the Americans with Disabilities Act, must provide reasonable accommodations for campers with disabilities, and must not segregate them from other students. Camps operated by governmental entities or colleges have a broader duty to accommodate campers with disabilities than some private entities that do
not have the same resources as a governmental entity. Examples of situations which I have encountered over the years are as follows:
- Children who are Deaf – Deaf kids have the right to a qualified sign language interpreter for all programs and services of a camp that involve communication that is long, complex, or important. Examples of this would be instructions on how to play a complicated game, story time, puppet shows, and educational instruction. If there are games that involve communication, then an interpreter would be appropriate so the Deaf child is included.
- Autistic kids – If a child who lives with autism has a one-on-one aide at school, for the same reasons, that child may need a one-on-one aide at a camp. Further, if a child needs further instruction in a game, or assistance with social interactions, that would be an accommodation that must be provided.
- Kids who have a medical condition such as Diabetes – If a child has a medical condition, or needs assistance with a medical condition, such as diabetes or HIV, then the question is whether the child poses a direct threat to his or her own health or the safety of others. If a child needs minor assistance with a medical condition, or can manage his or her own medical needs and monitoring, a camp cannot discriminate against these children.
- Kids with mobility impairments or other physical disabilities – Camps, like any other public accommodations, must have their facility accessible to children with disabilities. Older camps must do modifications that are readily achievable, easily accomplishable and able to be carried out without much difficulty or expense, and those camps altered or built after 1991 must be constructed accessibly. The camp is also responsible for making reasonable accommodations for campers with disabilities, which may involve some personal services, such as assistance in dressing, if similar services are available for able bodied campers.
- Kids with allergies – Kids who have allergies cannot be excluded from camps, and camps must be prepared to exclude certain allergens to accommodate a camper, and be trained in the event a camper has an allergic reaction. It would not be unreasonable to expect camp counselors to learn how to administer epinephrine auto-injector (“Epi-pen”) shots and dispense asthma medication, assist in administering Diastat for seizures in emergencies or otherwise teach camp counselors in basic first aid or CPR.
Parents can choose to send their child to a segregated camp, because some camps may provide special skills or advantages for children with disabilities, but the choice of going to a specialized camp is a choice, such as camps where all children are deaf.
However, all children may not be able to go to integrated camps. For example, there may be children with developmental disabilities or intellectual disabilities who would not be able to care for themselves at a sleep-away camp, and it would be a fundamental alteration of the camp’s programs to develop a program for one child’s disability. Further, if a child is dependent on mechanical supports, a camp would not be required to hire medical personnel to accommodate medically complex children. For these kids specialized camps are a phenomenal way to get out and enjoy the community. For example, Nicklaus Children’s hospital operates the VACC camp for technologically dependent children which includes swimming, field trips to local attractions,campsite entertainment, structured games, “free play”, to promote family growth and development while enhancing these kids’ self-esteem and social skills.
It’s so damn hot – my kid has asthma and needs an air conditioner
Last year, we represented a mother who had a child who lived in HUD-subsidized low-income housing. Asthma is often triggered by inhalation of air particles that contain allergens such as pollen, mold spores, dust mite droppings and animal dander. Air conditioners contain filters that collect and store these particles, keeping intake to minimum. Air conditioning also helps eliminate humidity on hot Florida nights which enables mold and algae to grow much more rapidly than it could if it were living in dry air. Some children and adults suffer from asthma to the degree that not having air conditioning may result in serious harm and hospitalization. Requesting to install an air conditioner unit in a home or apartment would be a reasonable accommodation for a person with a disability.
According to the Fair Housing Act, a tenant with a disability can request a reasonable modification. According to HUD Guidance, “A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas.” Under the Fair Housing Act, a housing provider must permit the modification, the tenant is responsible for paying the cost of the modification. If the housing provider is a public housing authority or a housing provider that receives federal financial assistance, the modification must be paid for by the housing provider unless providing the modification would be an undue financial and administrative burden.
Another example modifications can be a pool lift!
Discrimination in Pool Rules
- No inflatable flotation devices.
- Water wings, swimmies, floats, bathing suits rings, and other inflatable devices are not permitted in the pools.
- Absolutely no dogs allowed in pool area
Also, under the Fair Housing Act, persons with disabilities can ask for “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford … person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.” So when a person is required to use water wings, floats, special swimming devices, they can do so. In order to request an accommodation, the person needing an accommodation should ask the housing provider, and if the disability is not obvious, then the person may need to obtain verification from a doctor, therapist, or any other provider verifying the disability and need for the accommodation.
In addition, “no dogs allowed” rules do not apply to service or emotional support animals, where their presence is necessary for the person with a disability equal use and enjoyment of the premises. The Fair Housing Act and the ADA does not override public health rules that prohibit dogs in swimming pools. However, service animals must be allowed on the pool deck and in other areas where others are allowed to go.
If you are disabled and you are pursuing employment, you are not alone. You can find many agencies providing employment support that will help you reach your vocational goal.