Making your home and property accessible for persons with disabilities following a hurricane

 

By Matthew Dietz

In times of disasters, most people focus on rebuilding, increasing accessibility for persons with disabilities does not register as important or necessary.  However, not only are accessible alterations required by law, they are frequently covered by most insurance policies as compliance with code or ordinance of law.  The failure to include disability related modifications is due to a lack of knowledge of the existence and requirements of modifications on the part of insurance adjusters.

Law and Ordinance Coverage

Many insurance policies contain law and ordinance coverage, which is an additional coverage for property holders that pay additional amounts which may be required because of a requirement to comply with a law or a building code.  Two examples are as follows:

Policy Example 1: When the dwelling covered under Coverage A – DWELLING is damaged by a Loss Insured we will pay for the increased cost to repair or rebuild the physically damaged portion of the dwelling caused by the enforcement of a building, zoning or land use ordinance or law if the enforcement is directly caused by the same Loss Insured and the requirement is in effect at the time the Loss Insured occurs.

Policy Example 2: With respect to the building that has sustained covered direct physical damage, we will pay the increased cost to:

 (1) Repair or reconstruct damaged portions of that building; and/or

 (2) Reconstruct or remodel undamaged portions of that building, whether or not demolition is required; when the increased cost is a consequence of enforcement of the minimum requirements of the ordinance or law.

Most property insurance adjusters are aware of changes required by local code and while some local codes have accessibility requirements; however, most adjusters are not aware of the requirements of disability rights laws.  Further, accessibility updates may not be required when the damage is not over a certain percentage of the property.  Improvements required under the Americans with Disabilities Act, the Fair Housing Act, and Section 504 of the Rehabilitation Act are included within law and ordinance coverage, and when any element of property is altered, the alteration is required to comply with these laws.

Modifications for owners or residents of single family homes or apartments. 

Under the Fair Housing Act, a resident in a property is entitled to have a necessary modification for his or her disability if the resident pays for the modification.  To the extent that a request is made under the Fair Housing Act, the requested modification is required by law.   However, when a property, or part of a property is destroyed, insurance should pay for the regular costs to replace the property, and the tenant is only required to pay the additional costs associated with the structural changes that would be over and above the cost of the original design.

Example 1:  The entry to a home was destroyed, and the home had steps, which were covered by a plywood ramp that the tenant used to enter or leave his home.  If the entry to the home was required to be replaced, the insurance company would be required to pay for a permanent ramp if it was the same amount to replace the existing steps and the plywood ramp.

Example 2:  A bathroom suffered extreme damages and needed to be repaired.  A lavatory with a removable base could be installed to provide increased maneuverability, instead of a fixed base cabinet.  If it is done at the same price, then there would no additional charge above the insurance.  However, if the bathtub needed to be replaced, and the tenant wanted a roll-in shower, the tenant would be responsible for the difference in the cost between a bathtub and a roll in shower.

It is important to note that the modifications are not limited to the residents, but also to family members, guests, or visitors who may need a modification for their needs as well.  The only caveat, is that for modifications to the interior of the premises, a renter may be required to pay to restore the element in the interior of the unit to its original condition, where it is reasonable to do so.  (It would be reasonable to remove grab bars, or a cabinet, while it would not be reasonable to narrow doors that are widened, or exchange a bath for a shower.)

The failure to allow for reasonable modifications by insurers may also subject an insurer to liability under 42 U.S.C. § 3605 and 24 CFR 100.70 for providing such insurance differently because of one’s disability-related needs.

Modifications for owners or managers of housing that receives federal financial assistance, such as HUD subsidized housing, public housing authorities, and student housing.

Federally-funded housing has the obligation to ensure that all alterations are fully accessible.  To the extent that the building is an older building, and does not have fully accessible units, than the property owner or manager has an obligation to ensure that five percent of the units in the facility are fully accessible.  The standard for accessibility for housing facilities is under the Uniform Federal Accessibility Standards (UFAS).  The Checklist for accessible properties and accessible units are available on the HUD website.

However, the obligations of a recipient of federal financed entities is not limited to when a natural disaster strikes. The property owner or manager has an obligation to modify the property at the request of a resident at any time, as long as the request is not an undue burden or a fundamental alteration.  However, in times of natural disasters, and due to the availability of financial assistance through insurance, a property manager may not claim undue burden for extensive modifications, such as installing a roll in shower, extended ramps, lifts, taking down walls or doors, replacing stoves or refrigerators, or the like.

Modifications for public accommodations, such as private businesses, stores, food service establishments, or places of lodging.

 The Americans with Disabilities Act requires that all alterations comply with the standards for new construction under the ADA Standards for Accessible Design.  To the extent that a primary area is altered, the path of travel to the altered area and the bathrooms, and other elements must also be accessible. 42 U.S.C. § 12183.

For example, in 1998, a lightning bolt struck Mercersburg School in Pennsylvania and destroyed its roof and damaged units of its residence hall.  Mercersburg made a claim on their insurance policy to upgrade the damaged portion to comply with the ADA, and purchased additional coverage to demolish and renovate portions of the property to comply with the law.   The Court determined that the insurer was obligated to pay any post-fire renovations that “were mandated by the ADA” and did not require an official to enforce the law by issuing a citation — all that it required was evidence that the renovation or modification was necessary under the law. Regents of Mercersburg Coll. v. Republic Franklin Ins. Co., 458 F.3d 159, 171 (3d Cir. 2006).

To the extent that an area of the facility has not been damaged and covered by insurance, the entity would be responsible to remove architectural barriers where the removal of such barriers is readily achievable. This is a lower standard than the requirements than what is required for new construction and alterations, but it still must ensure that a person with a disability has equal use and enjoyment of the premises to the extent that such modifications are within the financial means of the facility owner.  Small business owners are entitled to a yearly disability access tax credit to improve accessibility, and should take advantage of this benefit to ensure that everyone has the ability to be a part of the community.

 

 

 

 

No Wheelchair Users Allowed in a Miami Beach Condo!

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 21^st, and packed and started the trek across the United States with her mother and a friend.

When Rachel came to Miami on May 20^th, 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.

 

Stereotypes & Misconceptions about Disability

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

[1]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[2].  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.

[1] 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

[2] Dr. Sheypuk TED Talk.  https://www.youtube.com/watch?v=7PwvGfs6Pok

Litigation: Is Your Child A Runner?

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

Kim and Kalia Johnson

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.[1]

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.

[1] 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).

He’s Got the Moves

By: Lisa Goodman

He’s got the moves!

Nyle DiMarco is without doubt a “triple threat.” His website even describes him as such,“Nyle DiMarco is an actor, model and spokesman.” No offense to whoever wrote his website, but they dropped the ball when they failed to include dancer, which makes him a quadruple threat. Currently, Nyle DiMarco is a contestant on Dancing with the Stars and he is a force to be reckoned with on the dance floor. DiMarco’s celebrity status, which landed him a spot on the show, is attributed to his acting career and winning season 22 of America’s Next Top Model.

Each week on Dancing with the Stars, Nyle dances his heart out without being able to hear anything. Nyle DiMarco was born deaf into a deaf family. He graduated from Gallaudet University with a degree in Mathematics. Gallaudet University is the only liberal arts university in the world for the Deaf. DiMarco is the second deaf contestant to be on Dancing with the Stars, the first was Marlee Matlin in season 6.

On April 18th Nyle DiMarco scored the first 10 while flawlessly dancing the Waltz with Sharna Burgess. Burgess is not his regular partner, Peta Murgatroyd is but this past week was “switch up week” and the regular partners were split up. DiMarco and Burgess brought fans to tears with their incredible performance. Tune in Mondays at 8pm ET on ABC. Between his dancing skills and undeniable good looks you will not regret it!!!

http://www.nyledimarco.com/about/

http://www.gallaudet.edu/news/nyle_dimarco_antm.html

http://www.people.com/people/package/article/0,,20981907_20995238,00.html

Summer Fun and Discrimination against Kids (with or without disabilities)!

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.

Employment Support for People with Disabilities

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.

Vocational Rehabilitation (VR)

Centers for Independent Living

Employment Networks

Disability Program Navigator Initiative

Disability Rights Florida

The Job Accommodation Network (JAN)

IS HEALTH CARE ONLY FOR THE “ABLE BODIED”?

Mr. Larry McDowell presented to our office for a consultation on the afternoon of Thursday, March 17, 2016. When Mr. McDowell arrived, he needed to be guided by holding on to someone in order to get places in the office; he will need to bring someone with him who can assist him in walking as it is a liability for the office staff to physically guide him themselves. Mr. McDowell will also need assistance in going over treatment, signing paperwork, and etc.

 We Apologize for Any Inconvenience.

(Actual copy of letter)

When Larry McDowell went to Affordable Dentures in West Palm Beach, Florida, to have a dental procedure on March 17^th, there was no reason that he could possibly believe that he wouldn’t be able to get the same services as anybody else.  But once Mr. McDowell reached the front desk, he was directed to follow someone to the examination room. Mr. McDowell then said, “I’m blind, could you help to where I’m going?” The employee at the desk said nothing. Once a member of the office staff arrived, Mr. McDowell asked for assistance to the examination room – Mr. McDowell asked to hold her elbow.

She said, “No. We can’t help you unless you have someone to help you. We can’t treat you unless you bring someone to assist you.” Mr. McDowell then asked to speak to the dentist. When Mr. McDowell asked where the dentist was, the employee replied that he was in surgery and would be there for the next two hours.  A patient who was watching the interaction told Mr. McDowell, “No he’s not. He’s standing right there.” After the patient’s remark, the employee said to Mr. McDowell, “The dentist doesn’t want to speak to you today.”

Mr. McDowell requested Affordable Dentures to email a copy of written reason to his sister, and they sent the above letter.   It was then while Mr. McDowell was waiting in the office, an employee approached him and informed him he could not wait inside the office any longer and must leave, since the dentist would not be seeing him today—with the knowledge that Mr. McDowell had taken public transportation.

 Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity.

 Martin Luther King, Jr.

Larry McDowell’s needs were basic human needs, and the outright denial of such services based solely on his disability transforms him, in the eyes of this medical provider, into a human who is not worthy of basic services.  Mr. McDowell is a man who has transformed his life to assist others.  He is a member of the National Federation of the Blind and is currently the  President of the Braille Club of Palm Beach County.  The Braille Club of Palm Beach County organizes social activities and weekly meeting among the blind and visually impaired community in Palm Beach. In his free time, Mr. McDowell seeks to live an ordinary life filled with friends and outings.

“Aside from the public health issues that most racial/ethnic minorities face, minorities with disabilities experience additional disparities in health, prejudice, discrimination, economic barriers, and difficulties accessing care as a result of their disability—in effect, they face a “double burden.”[1]   “Disability-based discrimination in health care is illegal under the Americans with Disabilities Act and will not be tolerated,” said Eve L. Hill, Deputy Assistant Attorney General for the Civil Rights Division at the Department of Justice. “All types of health care providers – from hospitals to nursing homes, from surgeons to general practitioners – all across the country – need to provide equal access to people with disabilities, including people who are deaf…, the time for compliance is now.”[2]

Notwithstanding the fact that the ADA is over 25 years old, it is common-place that medical professionals, who are dedicated to the health of their patients, are too often dismissive of their patient’s disability-related needs.  Most discrimination against persons with disabilities are not so blatant and ignorant as what occurred with Mr. McDowell.  Some of the issues which serve as barriers to persons with disabilities include inaccessible physical environments, and inflexible policies and procedures that, for example, assume that everyone must be able to independently fill out forms, undress unaided, transfer to high examination tables, and communicate in spoken English to receive standard health care services.[3]

The failure to provide accommodations and an accessible environment will, at the least, lead to health care disparities, and at the worst, lead to injury and death.

The most common issue at Disability Independence Group is doctors and hospitals that refuse to provide sign language interpreters for people who are deaf. Instead these professionals choose to communicate in English by writing notes or using technology that fails to work accurately and timely.  This leads to miscommunication and does not allow the deaf patient to have the full opportunity for medical choice as any hearing person would expect. This failure to communicate leads to misdiagnosis, failure to take the appropriate medicines, and continued illness.  When it comes to psychiatric treatment, it often exacerbates the symptoms. Other issues that often arise are as follows:

• Medical professionals often ignore persons with disabilities and speak to their family member or caretaker, solely because of the assumption that the person with a disability cannot fully grasp the issues regarding their care and treatment.
• Doctor’s offices and hospitals do not always have medical equipment such as a wheelchair-accessible weight scale or a height-adjustable exam table. Due to barriers, individuals with disabilities are less likely to get routine preventative medical care than people without disabilities.[4]
• Further, despite universal precautions, health care providers may still be hesitant to treat patients who are HIV positive or live with AIDS.

However, the main issue is the fact that because of the difficulties that persons with disabilities encounter, such persons are less likely to receive needed health care.  According to a Disability Healthcare Access Brief published by the Disability Rights Education and Defense Fund, 19% of people with disabilities reported that they did not receive medical care needed in the previous year, compared to 6% of non disabled persons.[5]

People with disabilities tend to be in poorer health and to use health care at a significantly higher rate than people who do not have disabilities.  Larry McDowell is not a statistic, but instead a blatant example of an issue which needs to be addressed.  Equality in health care is not a benefit, but a basic right.

Resource for Employees with Disabilities – ASKJAN.ORG

 

By: Lisa Goodman

Have you ever had any questions about workplace accommodations or the Americans with Disability Act (ADA)? Some of those questions might include:

• What accommodations could you, as an employee, ask for/be entitled to at your job
• What accommodations should I ask for given my Disability?
• What accommodations are you as an employer, required to provide to an employee?

Not immediately knowing the answers to those questions is completely normal. AskJAN.org is a web site for employees and employers to educate themselves on workplace accommodations. JAN is one of several services provided by the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP). As an employee, you might find yourself looking for accommodation ideas given your disability but not knowing what accommodations are appropriate to request. AskJAN.org specifically addresses disabilities and the accommodations that the person with the disability might find useful in the workplace. AskJAN.org is an incredible tool because it empowers employees with the knowledge of what accommodations they are entitled to under the law.

Searching accommodation ideas by clicking on “Accommodation Information by Disability” is an effective way to figure out what accommodations you might want to request in the workplace. If you search “By Disability” a list of Disabilities will come up and you will be able to select the appropriate one. JAN also provides information to employers in private businesses, federal employers, and state and local government employers. JAN provides free-consulting services to those employers with questions or concerns about job accommodations for people with Disabilities and ADA compliance.

I hope you find AskJAN.org a very helpful tool moving forward!

Subsidies for SGA

Are you a SSDI beneficiary working or wanting to work over the Substantial Gainful Activity ($1090 in 2015)? Are you receiving support from your employer? You can use Subsidies for SGA purposes

A few things to consider first: During an SGA determination, SSA looks at gross wages when they were earned, not when they were paid to you. For example, if you get paid every week or every other week you will have some months when you get an extra paycheck. SSA won’t count that extra paycheck when it was received – they are only interested in when the work was done that you got paid for. In addition, they will deduct any wages you were paid for days you actually did not work such as sick leave pay or vacation pay. SSA considers many things in addition to the amount you received in gross wages such as:
• The value of your work compared to non-disabled coworkers and whether you got help doing your job from an agency or your employer (Subsidy/Special Conditions);
• Whether or not you paid expenses related to your disability because you were working, (Impairment Related Work Expenses, Business expenses, unpaid help); and
• How long you were able to earn more than the SGA level and whether you were unable to keep earning SGA level wages beyond 6 months due to your disability (Unsuccessful Work Attempt or UWA).

Using Subsidy and Special Conditions: SSA is only interested in earnings that represent the real value of the work you perform. SSA understands that support may be provided by your employer that may result in you receiving more pay than the actual value of the services you perform. They call this “subsidy”. In addition, SSA realizes that you may receive support provided by someone other than your employer – for example, a vocational rehabilitation agency. As a result of this support, you may be receiving more pay than the actual value of the services you perform. They call this type of support “special conditions”. SSA will reduce the amount of income they count by the value of the subsidy and/or the special conditions you receive when deciding if your earnings are SGA.
Subsidies exist when employers pay workers more in wages than the reasonable value of the actual services performed. To qualify, individuals must have evidence of receiving subsidies such as extra support, supervision, or documentation of lower productivity compared to unimpaired workers performing the same or similar work.
In developing subsidies, employers are requested by the SSA to submit statements documenting the actual value of workers’ services. Subsidies may be either specific or non-specific. In specific subsidies, employers designate a specific dollar amount after calculating the reasonable value of workers’ services. In non-specific subsidies, employers are unable to designate a specific dollar amount as the subsidy. The amount of subsidies is determined by comparing the work of individuals in terms of time, skills, and responsibilities with that of nondisabled individuals in similar work. The proportional value of the work must then be estimated according to the prevailing pay scale of this work. SSA makes this determination.
The following list of possible indicators of subsidies is not exhaustive and questions regarding a specific example should be directed to the local SSA office.
• Sheltered employment;
• Childhood disability involved;
• Mental impairment involved;
• Marked discrepancy between amount of pay and value of services;
• Claimants or someone else alleges that claimants do not earn their pay;
• Nature and severity of impairment indicates that employees receive help from others in doing the work; and/or
• Government-sponsored job training or employment programs.
• Friendship or relationship to employer;

Other factors unrelated to the performance of the worker;
• Does the employer consider the work to be worth substantially less than the amount paid? If so, what are the reasons for this view?
• If the individual is still on the payroll despite unsatisfactory work, what is the employer’s reasons for retaining them?
• If the individual is no longer employed, what led to the termination of employment?

Some questions that might help to figure out if you are receiving support (subsidies) from your employer.
Employer-Provided Job Subsidies (check those that apply and provide cost to employer whenever possible)
• ____ Extra supervision ____ hours at ____ per hour for month(s) of ____ Allows extra time to perform duties (describe):
• ____ Allows lower productivity (describe):
• ____ Special accommodations (describe):
• ____ provides special transportation ___ miles per day or ____ hours per month at ____ per hour.
• ____ Adjusts work schedule (explain):
• ____ Adjusts duties (explain):
• ____ Wages paid above productivity (explain):
• ____ Other (describe):
• Documented cost of employer provided subsidies ________________________
• Special Arrangements/Accommodations: are these workers subject to the same duties, expectations, responsibilities, and potential for promotion as other workers doing similar jobs for this employer? ____ yes ____ no
• Are there any special arrangements in place to maintain the client’s worker in this job? ____ yes ____ no (If yes, explain) were these jobs “created” specifically for this employment situation or client? ____ yes ____ no
The information in this document is meant to help you understand this work incentive. Remember that the SSA and other agencies make decisions about your benefits. This document is meant to be a resource, not a decision about eligibility.
Reference
• SSA Red Book 2015
• edi.cornell.edu/publications/ssa
• vcu-ntc.org/resources/listContent.cfm/58/0