Florida’s Not So Happy Anniversary Present To the Americans with Disabilities Act

On the same month as the 27^th anniversary of the Americans with Disabilities Act, a Florida law came into effect that shields businesses from liability in ADA lawsuits. Section 553.5141, Florida Statutes, permits certification of a public accommodation as compliant with Title III of the Americans with Disabilities Act if an expert designs a Remediation Plan that requires all issues to be resolved within ten years. Rather than attempting to encourage compliance with the Americans with Disabilities twenty-seven years after the enactment of the law, the Florida legislature attempts to dilute the law.

This new Florida law demonstrates a fundamental misunderstanding of the Americans with Disabilities Act: It confuses basic concepts of States’ rights in the court system and subjects experts to negligence actions.

In this article, I will discuss this new law, why it will not work as intended, and whether business owners should actually create a comprehensive Remediation Plan and how that should be done.

The Law – 553.5141

According to this new Florida law, an owner of a public accommodation may submit a certification of conformity that indicates that the physical property, services provided, and policies and procedures adhere to Title III of the Americans with Disabilities Act. An expert (I will discuss them later) inspects the public accommodation, then either certifies it as complying with the ADA or designs a remediation plan that must be completed within ten years. According to this state law, Federal courts must take these actions into consideration if the premises are sued for violating the ADA. The goal of this law is to protect business owners from frivolous or “drive- by” lawsuits.

 

The Law’s Fundamental Misunderstanding of the Americans with Disabilities Act.

The Americans with Disabilities Act is a comprehensive mandate to eliminate barriers for 54 million Persons with Disabilities across the United States. Title III of this law includes all public accommodations into this mandate. It covers access into new facilities, old facilities, policies and procedures, auxiliary aids and services, eligibility bars, and discriminatory acts, which are based on timeworn stereotypes. So, this Florida Statute cannot, and does not, cover a fraction of what the law actually protects.

After passage of the law in 1990, it was expected that public accommodations would begin to remove barriers to access. Accordingly, when George Bush signed the ADA into law in 1990, he stated:

The Americans with Disabilities Act (ADA) is a comprehensive law which seeks to remove both architectural and attitudinal barriers that hinder full integration of persons with disabilities in society. After passage of the law in 1990, it was expected that public accommodations would begin to remove barriers to access. Accordingly, when George Bush signed the ADA into law in 1990, he stated:

And now I sign legislation which takes a sledgehammer to another wall, one which has for too many generations separated Americans with disabilities from the freedom they could glimpse, but not grasp. Once again, we rejoice as this barrier falls for claiming together we will not accept, we will not excuse, we will not tolerate discrimination in America.

… I now lift my pen to sign this Americans with Disabilities Act and say: Let the shameful wall of exclusion finally come tumbling down. God bless you all.

Twenty-seven years later, the shameful wall of exclusion still stands. However, only a portion of the ADA involves construction of accessible facilities and removal of physical, architectural barriers, but most of the ADA involves ensuring that procedures or polices do not exclude persons with disabilities, and persons with disabilities are provided accommodations so they have the same opportunities to benefit from the programs and services of a covered entity. What does the ADA cover?

Architectural Barrier Compliance:

The only time where the construction or alteration of premises can be “fully compliant” is when the structure is constructed or altered to be fully within the standards under the Revised Americans with Disabilities Act Accessibility Guidelines (ADAAG-R). If a structure was built after 1994 and is not fully within ADAAG standards, even within construction tolerances, it is not “ADA Compliant.”

However, if a structure predates 1991, a different standard applies: Alterations must be “readily achievable.” Readily achievable means easily accomplishable without much difficulty or expense. In determining whether an action is readily achievable the ADA regulations require the entity include several factors in the analysis which include:

• The nature and cost of the action needed under this part;
• The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
•  The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
• If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
• If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

Because of the “readily achievable” standard, the owner of a public accommodation may not be able to physically modify a facility to be fully within the ADA standard, but there may be disagreements on the extent that a facility can be modified. When there is a disagreement, the facility will be subject to suit and cannot be deemed to be ADA compliant.

The definition also requires an evaluation of the financial means of the owner or operator of the facility. Accordingly, most alterations would be readily achievable for a large, financially liquid company, just as some modifications may not be readily achievable for small mom-and- pop businesses. Whether modifications are readily achievable has much to do with the success of the business that owns the facility and the cost of the modifications.

However, small businesses are provided incentives for making accessibility modifications. For example, qualified small businesses can take a disability access tax credit for $5,000 of tax credits for $10,000 spent in making their facilities accessible for persons with disabilities.

Policies and Procedures

Certifying that a public accommodation conforms to disability discrimination law is similar to certifying that a public accommodation conforms to racial discrimination law; it depends on who has face-to-face interaction with customers with disabilities and the implementation of appropriate policies and procedures to accommodate customers with disabilities.

Elements for appropriate policies and procedures include:

• Ensuring effective communications with patrons who are Deaf, Blind, or have other sensory impairments. This includes retaining sign language interpreters, producing documents in Braille or accessible electronic formats, or accessing auxiliary aids and services.
• Having policies and procedures that accommodate patrons with service animals.
• Ensuring patrons with disabilities have an equal opportunity to benefit from a program or service, such as having a ramp to a portable stage, removing a podium,
• Serving a buffet so all food or beverages are in reach range.
• Providing additional assistance for a person with a disability, such as cutting a person’s food who does not have dexterity in their hands or assisting a person in a wheelchair to reach products at the supermarket.
• Arrange transportation or other programs and services provided to persons without disabilities are equally available to persons with disabilities.

Owners and employees of public accommodations should have training and procedures on how to best serve customers with disabilities. When I train public accommodations on how to comply with the ADA, I make absolutely clear that the customer knows more about his or her needs than anyone else, and the employee does not have the authority to say no. Only a person in a managerial position should have the ability to deny an accommodation, and only where it is an undue burden or fundamental alteration of the resources of the facility. The manager should contact the customer with a disability and explain why her request was denied and then attempt to find an alternate solution.

Are Federal Courts Required to Accept Remediation Plans?

No. No. No. The Americans with Disabilities Act is a Federal law and enforced by Federal Courts. As such, the Florida legislature cannot alter or amend a federal law, and federal court do not take state law into consideration. This is an aspect of the Supremacy Clause of the United States Constitution that establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. Compliance with the ADA is not as simple as a remediation plan, and when a plan is not reasonable or does not cure the violation, then the public accommodation will always be subject to litigation.

Does this law cover “drive-by” lawsuits?

Again, no. Remediation Plans made pursuant to this new law are not meaningful in Federal Court, where ADA lawsuits are filed. Even if a public accommodation is certified or has a remediation plan, it can only be “fully compliant” if it is within the Americans with Disabilities Act Accessibility Guidelines’ standards.

But won’t qualified experts ensure that businesses adhere to the ADA?

Maybe. It depends on your expert. You must remember that professionals, even though they may be skilled in their trade, are not guaranteed to be experts on the ADA.

In my twenty years of experience, I have worked with many experts in all aspects of disability compliance to opine about compliance with the law. Each expert is a specialist in his or her field. To be deemed an expert in federal court, a person must be educated, trained, and experienced in a field. However, the Florida law has derived its own definition of experts:

(d) “Qualified expert” means:

1. An engineer licensed pursuant to ch. 471.
2. A certified general contractor licensed pursuant to ch. 489.
3. A certified building contractor licensed pursuant to ch. 489.
4. A building code administrator licensed pursuant to ch. 468.
5. A building inspector licensed pursuant to ch. 468.
6. A plans examiner licensed pursuant to ch. 468.
7. An interior designer licensed pursuant to ch. 481.
8. An architect licensed pursuant to ch. 481.
9. A landscape architect licensed pursuant to ch. 481.
10. Any person who has prepared a remediation plan related to a claim under Title III of the Americans with Disabilities Act, 42 U.S.C. s. 12182, that has been accepted by a federal court in a settlement agreement or court proceeding, or who has been qualified as an expert in Title III of the Americans with Disabilities Act, 42 U.S.C. s. 12182, by a federal court.

Most of the “Qualified experts” cannot testify in court regarding policies and procedures to accommodate persons with disabilities. Furthermore, many of the above professionals cannot create an architectural barrier removal plan. In order to widen a door to ensure that there is a 32” clearance, for example, the expert must understand if it is even possible to widen the door and the costs of doing so. If a landscape architect or an interior designer made a remediation plan that involved trades the expert was unfamiliar with, then that expert will be held liable for negligence when the public accommodation is sued.

During a lawsuit, a remediation plan may convince a Federal Court to deem that it cannot order any effective relief and may not award the plaintiff fees and costs. However, the expert must be someone who has actual training in remediating such barriers and be able to assess a reasonable time to accomplish the removal of barriers based on the resources and revenues of the public accommodation.

Should I have a Remediation Plan?

Remediation plans, whether or not completed pursuant to a Florida law, are relevant in any action under the Americans with Disabilities Act, and are a good business practice to ensure that you are providing your products and services to all of your customers. These are the steps that I would advise my clients to accomplish to devise a reasonable ADA compliance plan:

1) Hire a licensed contractor or architect with experience in ADA compliance to review the premises and develop a remediation plan and consult an expert before performing any future alterations.

While the Florida law states that ten years is acceptable for a remediation plan, a Defendant would be hard pressed to find any court that would agree with this length of time. Whether a remediation plan is reasonable depends on the difficulty of the architectural modifications and the revenue of the public accommodation. The modifications also need to be accomplished depending on the priorities. The priorities of barrier removal as stated by ADA regulations are as follows:

(c) Priorities. A public accommodation is urged to take measures to comply with the barrier removal requirements of this section in accordance with the following order of priorities.

First, a public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces.

Second, a public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks, rearranging tables, providing Brailled and raised character signage, widening doors, providing visual alarms, and installing ramps.

Third, a public accommodation should take measures to provide access to restroom facilities. These measures include, for example, removal of obstructing furniture or vending machines, widening of doors, installation oframps, providing accessible signage, widening of toilet stalls, and installation of grab bars.

Fourth, a public accommodation should take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

When alterations are underway, that area should be fully accessible and any barrier removal modification plan should take into account the availability of tax credits. I have never seen a barrier removal plan with the largest corporations and the most difficult modifications take more than four years.

2) Review all policies and procedures to ensure that there are specific policies regarding providing sign language interpreters or other auxiliary aids and services, service animal policies, and reasonable accommodation policies.

3) Train all personnel in these policies at initial hiring and annually.

4) If you have any current customers with disabilities, engage them and ask what they like or where they have issues. Your current customers will have the best insight on what needs to be done. If you do not have any customers with disabilities, that issue is indicative of the lack of accessibility.

5) Speak to your employees with disabilities, and ask about barriers that they may face and what could be changed to make the customer experience better. Again, if you do not have any employees with disabilities, it may also demonstrate a corporate culture of not welcoming customers with disabilities.

Is there a better solution than the Florida “Remediation Plan” Statute?

The new Florida law, Section 553.5141, Florida Statutes, is a mean spirited response to a twenty-seven year old mandate to eliminate discrimination against persons with disabilities. However, Title III of the ADA does not provide damages as a remedy to an aggrieved party. As such, there is no alternative for an aggrieved party than to file a case in federal court.

For straight forward barrier removal cases, a better solution would be to enact a remedy that is more beneficial to the aggrieved party than a federal lawsuit. For example, if the legislature amended the Florida Civil Rights Act to include the ADA, claims would be required to exhaust administrative conditions before filing a lawsuit to obtain damages. However, most claims would be resolved within the administrative process, so there would be nothing for a federal court to litigate. In most cases, damages would be nominal—especially compared to litigation in federal court.

Summer Fun in Sunny Florida

By: Lorinda Gonzalez

…it’s a smile, it’s a kiss, it’s a sip of wine … it’s summertime!

     – Kenny Chesney

The temperature is rising and soon everyone will hit the beach. Summers in Florida are epic, and people travel from all over the world to feel the warm sun on their face. As a motorized wheelchair user, I too enjoy the beautiful Atlantic Ocean and sandy beaches on our coast. However, a Florida beach day isn’t as simple for me as putting on a bikini, packing towels, a beach hat and sunscreen. There’s a lot more that goes into the planning process. Unless it’s highly compacted and solid, getting your wheelchair on the sand is next to impossible. Good news! Here in Miami there are a number of recreational opportunities available for wheelchair users to enjoy in the summer festivities just like everyone else.

Sabrina Cohen Foundation
Shake-a-Leg

Click here to read more

About Lorinda

Litigation Article: Can a Woman with No Arms Ride a Roller Coaster?

By Matthew Dietz

      Many people have a gut response to this question.  Jessica Cox filed an administrative complaint with the Florida Commission on Human Relations claiming that she was excluded from every single ride at Universal Studios Orlando because she was born without arms, and she was not able to continually grasp the restraints with at least one hand.  Jessica believed that the restrictions on all of the rides were not based on actual risks, but instead, based upon stereotypes of what she can or cannot do.

 Jessica is a classic overachiever in every sense of the word, and in relation to any person, able bodied or disabled.  She is the first armless person in aviation history to earn a pilot’s certificate, a black belt in Tae Kwon Do, a psychology degree from the University of Arizona, and motivational speaker.  She also does everything that “typical normates” can do, other than, according to her doctor, brush her hair.  She is the unstoppable force, and does not take “can’t” or “no” as an answer. (https://www.jessicacox.com/ )

So when this unstoppable force went to Universal Studios, she thought she thought she was going to have clear skies, but instead, she ran into turbulence.  According to Jessica Cox’s blog (http://www.handicap-international.us/jessica_cox_blog ):

Patrick and I were in Florida for the Fort Lauderdale Film Festival in November. We had an extra day, so we decided to go to Universal Orlando because we both love theme park rides. Some of my fondest childhood memories are of going on rides at Universal Studios Hollywood with my brother and sister. I loved the E.T. Adventure and Jurassic Park rides and seeing Jaws on the Studio Tour.

That morning, we were so excited that we were there 30 minutes before opening. At the gate was a sign that said, “People with Disabilities, Go to Guest Services,” so we made our way there as soon as the gate opened.

At Guest Services, they issued me a special disability pass and a rider’s guide for people with disabilities. Without any discussion, we took these, and made our way to the first ride, the “Hollywood Rip Ride Rockit” roller coaster. The Rider’s Guide, as well as Universal Studios’ website, had the following notes on the ride:

“This ride employs safety restraints which may not accommodate certain people due to their body shape or size”. It went on to describe a number of requirements including that the rider be able to “continuously grasp with at least one upper extremity.”

When we arrived at the ride, it was obvious from the seat display that the mentioned restrictions applied to my particular condition of being armless, and so I insisted that Patrick go on the ride while I waited for him on a nearby bench. “I’ll just go on the next one,” I thought to myself.

I was mistaken. As we looked at the rider’s guide, we became increasingly dismayed. We checked the rides one by one, and discovered that seemingly every single one, even the gentle kiddie rides, were deemed unsuitable for a person like me.

We were excited when we saw that the “Shrek 4-D” ride listed no restrictions for amputees. Shrek 4-D is a theater-style ride described in the rider’s guide as “involving loud noises, strobes, fog effects, and sudden movement, which could aggravate certain medical conditions. Stationary seating is available…” Finally, I would get my chance. As we waited in line, an attendant came up to me and told me that I had to sit on a stationary seat in the front row. Without arguing, we made our way to the front row and I sat on a stationary seat. When the ride was finished, Patrick turned to me and said he could not understand why I could not be in a moving seat considering how simple the movement was. There was not even a seatbelt in the moving seats.

We decided to pay Guest Services a visit, and asked to speak to the manager. A lady told us that she would be happy to refund the price of our tickets and register our concerns in their computer system. At that point, the manager walked over, and I explained that my main frustration is not just about the restrictions.

I understood that these are manufacturer-imposed restrictions and that the theme park could not do anything about that. I was frustrated that the theme park was being advertised as a welcoming environment when my experience of being excluded just demonstrated that it is not. People like me would benefit from being better informed about the park’s policies on disabilities so that we could find better use of our time. Not knowing that I could not go on the rides, I chose to spend my one free day Florida at Universal Orlando, only to find out—after paying for tickets and entering the park—that I would be sitting on a bench the whole time.

I fully understand that safety is, as it should be, the utmost priority. It is understandable that I am restricted from a roller coaster ride, but there was really no reason for me to be kept from a moving seat in a theater. Due to the park’s broad restrictions, I was effectively discriminated against. How is it possible to be in a country that will allow a woman without arms to fly an airplane and yet be prevented from going on amusement park rides?

I felt ignored, unseen, not taken into account. I know from experience that this often how people with disabilities in developing countries feel, but it was jarring to feel this way in the U.S. in 2015.

At Universal, I was no longer the first armless pilot who flies a plane with her feet. I was back on the playground at my pre-school, standing on the sidelines, watching the other kids play. I remembered wanting so much to do everything else the other children were allowed to do. I wanted to climb up that 12-foot slide that towered high above everything else, but the playground monitors were afraid I would fall off the ladder. I wanted to run as fast as I could but everyone told me to slow down. They wanted to protect me, but they limited me.

Considering how much the advocacy for people with disabilities has grown, it is disheartening to note that the evolution in this particular case has been towards exclusion rather than inclusion. I am saddened to think that children with disabilities born after my generation may never have the magical experience of a theme park ride.

As soon as I was back home, I made a follow-up call to Universal Studios. I was promised that my concerns would be documented, because they are feedback-based company. However, I was also told that their policies are cut and dried and are there for safety reasons. Basically, I was told that nothing could be done.

Last month, Jessica’s story appeared throughout the nation.  See http://www.wftv.com/news/9-investigates/woman-without-arms-files-discrimination-complaint-against-universal-orlando/435099189  The news coverage brought out two very different attitudes about whether Jessica could be able to have an opportunity to go on the amusement rides, and there were many comments that demonstrated the general public’s perception of disability:

• If someone without the ability to “continuously grasp” fell out of a ride at Universal you can bet Universal would be sued by that person (if he or she survived) or the surviving loved ones if the person did not survive. … Sometimes you just have to face the fact that Life is not fair and move on.

• Sorry, but these people need to get over it, they can’t be a police officer or a fire/rescue person either.

• And she would sue if she got injured on the rides. It’s not about what she can and cannot do it’s about how the rides are designed and what a person needs to be able to be safe on the rides.

• As I feel bad for her condition however, there are policies put in place for a reason and bending the rules based on the personal accomplishments of an individual is far more discriminative.

• If she flies a plane, it has been modified. If she has a black belt, the criteria was different to accommodate her. It would be criminal to allow her on a roller coaster. They would have to have a special car made just for those like her. That’s really what the lawsuit is about, through support from ADA shake down lawyers.

• Sorry for the lady, but, she obviously cannot do everything that someone with arms and hands can. Some of those rides generate violent force. Had she gotten hurt she’d be suing for that. We all have our limitations and have to accept them.

• There have been several incidents this summer of people falling out of rides and being killed or injured. Universal Studios has every right to try to minimize its liability. If she got on a ride and was thrown off or fell off, she would be trying to sue Universal! Just because she thinks she can do everything doesn’t mean she can.

• Hun, it sounds like you didn’t give them notice and their policy is very clear. It’s a safety issue. Instead of pulling the discrimination card because according to their policy you have to be able to grasp the harness with an upper extremity aka an arm. Fight for the safety harnesses to be more welcome to others but not discrimination. They were within their right and refunded you

The generalized assumptions are always that there is a reason for the limitations, and if the rationale for the changes are related to safety, then they must have an adequate rationale.  Persons with disabilities, like many other minorities, live in a patriarchal system where persons without disabilities attempt to dictate rules and norms.  In this way, persons with disabilities, as a class, are no different from other societal classes, such as gender, race, class or caste where the dominant population creates rules or structures to limit the rights of others.   So, the underlying question is why – is there a basis for the limitation, or is it merely the stereotypical perceptions of ability.  After reviewing the comments above, the same assumptions or statements could be made about a woman who would like to wrestle or play football.

Rides were not always restricted to persons without arms.  The restrictions started after 2011, when Sgt. James Hackemer – an Iraq War veteran who lost his legs and one hip in combat — flew out of the “Ride of Steel” at New York’s Darien Lake Theme Park, and died. Authorities said he and a family member checked with the park about safety instructions before he got on the ride.  After this accident, theme parks restricted rides to those persons who had both one leg and one hand.  The hand was to grasp and hold the restraints.  Further, only some of the parks have adopted this limitation, and this limitation is not universal. For example, Disney parks does not have this limitation, and Jessica is able to go on Disney rides without limitations.

The validity of this limitations is suspect when the limitation is questioned.  None of these parks have tests to determine the extent of a grip required, and persons who have hands, but limited or no grip, are not barred from going on a ride due to this standard.  There are many disabilities where a person is unable to grasp a safety restraint, such as those who have multiple sclerosis, muscular dystrophy (including ALS), quadriplegia, cerebral palsy, arthritis, or other similar disability which affects the ability to hold on to a restraint device.  Further, there are many cognitive disabilities that may hinder someone’s understanding to hold onto the safety restraint, such as a developmental or intellectual disability. Further, even without any disabilities, it is common that many folks do not hold on to the restraints.  Lastly, I have never seen a sign at any amusement parks that says “PLEASE HOLD ON TO THE RESTRAINTS!”

The Americans with Disabilities Act prohibits this type of discrimination by deeming eligibility criteria not shown to be necessary as unlawful, by defining discrimination as:

imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered;

Further, providing limitations on safety are also allowed, but the limitations must be based on real risks, and not assumptions or stereotypes.  The ADA regulations provide as follows:

(b) Safety. A public accommodation may impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

               According to the safety regulations promulgated by the industry experts, the ASTM standards, the guidelines for restrictions are based on a suitability assessment based on an anthropometric factors that relate age and physical size.  This focuses on the measurements of the human body as compared to the design of the ride.   For example, rides have seats and restraints that have features such as contours, dividers, bolsters or other forms and shapes that aid in preventing patrons from sliding longitudinally or laterally outside of the restraint area.   When a person does not have a body size or shape that does not fit within the designed contours, then that person has a danger of sliding out of the seat.

               For a person of short stature, or does not have thighs or hips that can fit within the restraint area, a limitation may be permissible and based on risks. All persons must fit into the restraint area, disabled or able bodied. However, with arms, it may be different.

               Each time that I have ever been to an amusement park, I have always seen riders of roller coasters wave their arms in the air like they don’t care.  Jessica Cox was featured in the Channel 4 Paralympics “We’re the Superhumans” trailer that has almost seven million views on Youtube https://youtu.be/IocLkk3aYlk .  The premise of the video was “Yes I can”.    The premise of the Americans with Disabilities Act is that society must tear down barriers that are solely due to prejudice and antiquated attitudes.

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.

 

Work Incentives Protecting Health Coverage for PWD

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.

Annual Family Cafe Cooks Up Feast of Fun and Facts

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 18^th 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.

Diversity – Does it Matter in the Legal Profession?

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[1]	Percent Judges in Florida[2]	Percent in Jud. Nominating Commission[3]	Percent Population in Florida[4]
White/Caucasian	83	84.1	86	55.3
Hispanic	10	8.9	9	24.5
African American/Black	3	6.7	4	16.8
Asian/Pacific Islander	1	.3		2.9
Other Race/Ethnicity	3			2.5
LGBT	3			3.5
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.[1]

 

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.

[1] http://www.wsj.com/articles/donald-trump-keeps-up-attacks-on-judge-gonzalo-curiel-1464911442

[1]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

[2] 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

[3] http://www.floridabar.org/TFB/TFBPublic.nsf/WNewsReleases/4F2B3E1B6C00CB3785257C8B00671B0B?OpenDocument

[4] 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

 

At The Intersection of Disability and Domestic Violence/Sexual Assault Myths and Misconceptions

By: Sharon Langer

Domestic violence myths and misconceptions abound. Nearly everyone will have some form of preconception on what domestic violence actually is; why abusers abuse and why victims are victimized.

In the same way as we tend to have a stereotypical picture of what domestic abuse is, we have similar pictures of what sort of person both the abused and the abuser are. We may assume the abused will have originated from a family where abuse took place, or may have been abused themselves during childhood. Some people believe the victim actually enjoys being abused in some masochistic way, or is encouraging it because they enjoy the attention of feeling victimized. Our perceptions tend to be distorted by domestic violence myths, perpetuated both by the media and by society in general, and are unrelated to the reality or the extent of Domestic Abuse. ANYBODY can become a victim of Domestic Abuse.

Following are some of the domestic violence myths and facts:

MYTH: Abuse only happens in certain “problem” families.

FACT :Abuse pervades every ethnic, social strata. White collar workers are just as likely to abuse their wives/partners as are blue-collar workers; financially independent people are just as likely to suffer abuse as are people on low incomes. It is not the social standing, the amount of stress lived under or the company kept which makes an abuser, but the internal need for power, the belief that they have the right to control someone else.

MYTH: Domestic Abuse is a family matter.

FACT: Abusing, battering, assaulting or raping another person is a criminal offence not a family matter.  Domestic Abuse has far-reaching social implications for everyone, affecting the abused person’s ability to lead a productive life and encouraging children brought up in an abusive home to repeat the cycle themselves and having a detrimental impact on their emotional and sometimes physical well-being. A lot of doctors and hospital time and funds are needed to help those who have been victimized or beaten.

MYTH: Domestic Abuse is not such a big problem – very few women are actually badly hurt.

FACT: Domestic Abuse is a HUGE problem. It is estimated that 1 in 4 women live in abusive relationships, and within our lifetime half of us can expect to be the victim of domestic or intimate partner violence. Abuse can be lethal. More women are killed by their partner or ex-partner than by a stranger. And even where physical violence has not occurred, the emotional scars can often have a lifelong effect on the victim.

MYTH: Some women ask for it, provoke it, want it or even deserve it.

FACT: NOBODY deserves to be beaten or abused. Women often have to walk on eggshells and try their best to avoid another incident. The abuser WANTS to abuse. This domestic violence myth encourages the blame-shifting from the abuser to the abused and avoids the stark reality that only the abuser is responsible for his/her own actions.

MYTH: Domestic Abuse is caused by excessive alcohol or the use of drugs.

FACT: A lot of research is going into the link between drug or alcohol use and violence. However, although some abusers are more prone to being violent when drunk, many more abuse when completely sober. Alcohol and drugs may increase the violence, but they do not cause it. Alcohol and drug abuse are separate issues from abuse, though they may overlap. Once again, blaming chemical dependency for abuse is missing the point, the abuser is responsible for their actions.

MYTH: Domestic abuse is a one-time incident.

FACT: Very rarely is abuse a one-time incident. Most often it is part of an ongoing means of establishing and maintaining control over another person. Abuse tends to increase both in velocity and extent over a period of time.

MYTH: It can’t be that bad, or she/he would leave.

FACT: There are many emotional, social, spiritual and financial hurdles to overcome before someone being abused can leave. Very often, the constant undermining of the victims self-belief and self-esteem can leave him/her with very little confidence, socially isolated, and without the normal decision-making abilities. Leaving or trying to leave will also often increase the violence or abuse, and can put both the victim and her children in a position of fearing for their lives. Leaving is the ultimate threat to the abusers power and control, and he will often do anything rather than let her go.

MYTH: Abusers are always coarse, violent, and easily identified

FACT: Abusers are often charming, popular, generous people who can hold positions of social standing. and authority. Abuse is kept in the privacy of their own homes. This “Jekyll and Hyde” tendency of the abuser can further confuse and frighten the person being abused, as the person in private is so different from the person everyone else sees. It can also mean that when the person being abused finally does try to tell his/her friends, family or acquaintances of the abuse, he or she is not believed, because the person they are describing simply doesn’t fit the image portrayed in public.

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).