By: Matthew Dietz
Unless the housing facility is a qualified 55 and over housing development, a housing provider cannot have rules that treat children differently, and less favorably than adults. When the US Congress amended the Fair Housing Act in 1988, it prohibited housing practices that discriminate on the basis of familial status.When it amended the Act, Congress recognized that “families with children are refused housing despite their ability to pay for it.” In addition, Congress cited a HUD survey that found 25% of all rental units exclude children and that 50% of all rental units have policies that restrict families with children in some way. The HUD survey also revealed that almost 20% of families with children were forced to live in less desirable housing because of restrictive policies. Congress recognized these problems and sought to remedy them by amending the Fair Housing Act to make families with children a protected class. So any rules, that do not have a legitimate safety justification, cannot indicate a “preference, limitation, or discrimination” against children under the age of 18. This includes rules that prohibit children from common areas in the facility with or without supervision, or limit the facilities of the housing development to adults. All rules must apply to children and adults equally, and cannot solely target children’s behavior.
If rules have a legitimate safety rationale, then such rules may be legitimate. But, again rules such as all children under sixteen must be supervised by an adult does not have a safety rationale, but a discriminatory basis against loud teenagers. On the other hand, a fifteen year old at a gym may injure him or herself on free weights without having supervision.
Summer camp must be inclusive
Over the past fifteen years, I have had several cases involving children who were not permitted to go to the summer camp of their choice, or were segregated in the summer camp because of the child’s disabilities. A summer camp, like any other public accommodation under the Americans with Disabilities Act, must provide reasonable accommodations for campers with disabilities, and must not segregate them from other students. Camps operated by governmental entities or colleges have a broader duty to accommodate campers with disabilities than some private entities that do
not have the same resources as a governmental entity. Examples of situations which I have encountered over the years are as follows:
- Children who are Deaf – Deaf kids have the right to a qualified sign language interpreter for all programs and services of a camp that involve communication that is long, complex, or important. Examples of this would be instructions on how to play a complicated game, story time, puppet shows, and educational instruction. If there are games that involve communication, then an interpreter would be appropriate so the Deaf child is included.
- Autistic kids – If a child who lives with autism has a one-on-one aide at school, for the same reasons, that child may need a one-on-one aide at a camp. Further, if a child needs further instruction in a game, or assistance with social interactions, that would be an accommodation that must be provided.
- Kids who have a medical condition such as Diabetes – If a child has a medical condition, or needs assistance with a medical condition, such as diabetes or HIV, then the question is whether the child poses a direct threat to his or her own health or the safety of others. If a child needs minor assistance with a medical condition, or can manage his or her own medical needs and monitoring, a camp cannot discriminate against these children.
- Kids with mobility impairments or other physical disabilities – Camps, like any other public accommodations, must have their facility accessible to children with disabilities. Older camps must do modifications that are readily achievable, easily accomplishable and able to be carried out without much difficulty or expense, and those camps altered or built after 1991 must be constructed accessibly. The camp is also responsible for making reasonable accommodations for campers with disabilities, which may involve some personal services, such as assistance in dressing, if similar services are available for able bodied campers.
- Kids with allergies – Kids who have allergies cannot be excluded from camps, and camps must be prepared to exclude certain allergens to accommodate a camper, and be trained in the event a camper has an allergic reaction. It would not be unreasonable to expect camp counselors to learn how to administer epinephrine auto-injector (“Epi-pen”) shots and dispense asthma medication, assist in administering Diastat for seizures in emergencies or otherwise teach camp counselors in basic first aid or CPR.
Parents can choose to send their child to a segregated camp, because some camps may provide special skills or advantages for children with disabilities, but the choice of going to a specialized camp is a choice, such as camps where all children are deaf.
However, all children may not be able to go to integrated camps. For example, there may be children with developmental disabilities or intellectual disabilities who would not be able to care for themselves at a sleep-away camp, and it would be a fundamental alteration of the camp’s programs to develop a program for one child’s disability. Further, if a child is dependent on mechanical supports, a camp would not be required to hire medical personnel to accommodate medically complex children. For these kids specialized camps are a phenomenal way to get out and enjoy the community. For example, Nicklaus Children’s hospital operates the VACC camp for technologically dependent children which includes swimming, field trips to local attractions,campsite entertainment, structured games, “free play”, to promote family growth and development while enhancing these kids’ self-esteem and social skills.
It’s so damn hot – my kid has asthma and needs an air conditioner
Last year, we represented a mother who had a child who lived in HUD-subsidized low-income housing. Asthma is often triggered by inhalation of air particles that contain allergens such as pollen, mold spores, dust mite droppings and animal dander. Air conditioners contain filters that collect and store these particles, keeping intake to minimum. Air conditioning also helps eliminate humidity on hot Florida nights which enables mold and algae to grow much more rapidly than it could if it were living in dry air. Some children and adults suffer from asthma to the degree that not having air conditioning may result in serious harm and hospitalization. Requesting to install an air conditioner unit in a home or apartment would be a reasonable accommodation for a person with a disability.
According to the Fair Housing Act, a tenant with a disability can request a reasonable modification. According to HUD Guidance, “A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas.” Under the Fair Housing Act, a housing provider must permit the modification, the tenant is responsible for paying the cost of the modification. If the housing provider is a public housing authority or a housing provider that receives federal financial assistance, the modification must be paid for by the housing provider unless providing the modification would be an undue financial and administrative burden.
Another example modifications can be a pool lift!
Discrimination in Pool Rules
- No inflatable flotation devices.
- Water wings, swimmies, floats, bathing suits rings, and other inflatable devices are not permitted in the pools.
- Absolutely no dogs allowed in pool area
Also, under the Fair Housing Act, persons with disabilities can ask for “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford … person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.” So when a person is required to use water wings, floats, special swimming devices, they can do so. In order to request an accommodation, the person needing an accommodation should ask the housing provider, and if the disability is not obvious, then the person may need to obtain verification from a doctor, therapist, or any other provider verifying the disability and need for the accommodation.
In addition, “no dogs allowed” rules do not apply to service or emotional support animals, where their presence is necessary for the person with a disability equal use and enjoyment of the premises. The Fair Housing Act and the ADA does not override public health rules that prohibit dogs in swimming pools. However, service animals must be allowed on the pool deck and in other areas where others are allowed to go.
If you are disabled and you are pursuing employment, you are not alone. You can find many agencies providing employment support that will help you reach your vocational goal.
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 17th, 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.” “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.”
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.
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.
- 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.
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.
One of the most time-worn quotes in describing the law school experience, is the law school dean telling incoming fist-year law students, “Look to your left, look to your right, because one of you won’t be here by the end of the year.” For me, it involved treating law school like a full time job, which included spending most Saturday nights in front of my books and a computer listening to Saturday Night with the 70’s on the radio, and knowing that my classmates were doing the same thing. When we did get together, it usually involved turning our minds off and having a couple of beers. After law school, I got a job that had 2,000 billable hours and weekend and night “face time” as an expectation – but, of course, not a requirement.
As a new lawyer, the emphasis is to focus on career development, and the life tenet of “Work Hard, Play Hard” is taken to heart. A balanced life is only considered for later in life, and wellness is not good for advancement to partner. Twenty years later, balance is not achieved, and anxiety as well as management of that anxiety is a way of life.
I am not alone.
A February 2016 report funded by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs, published in the Journal of Addiction Medicine, showed that 61% of lawyers reported anxiety in their careers. Out of the approximately 13,000 lawyers across the United States surveyed, lawyers reported having anxiety in their career 61.1%, followed by depression (45.7%), social anxiety (16.1%), attention deficit hyperactivity disorder (12.5%), panic disorder (8.0%), and bipolar disorder (2.4%). In addition, 11.5% of the participants reported suicidal thoughts at some point during their career, 2.9% reported self-injurious behaviors, and 0.7% reported at least 1 prior suicide attempt.
However, in Florida, and elsewhere in the country, mental health issues affect young lawyers disproportionately. In 2014, the Young Lawyers Division (YLD) of Florida did a membership survey that revealed 63% of respondents have difficulty with balancing work and family, and 39% endure high stress. Following the suicide of a Tampa lawyer who drove to the top of the Sunshine Skyway Bridge and jumped off the bridge, the YLD bar began a “Health and Wellness Month” in May 2015 to start a conversation on health and wellness. In doing so, the YLD stated:
Most importantly, this conversation must endure beyond the month of May. We, as a profession, must continue to pursue wellness for ourselves so that we can be strong advocates for our clients, and work to support our colleagues who may be struggling. Our clients are depending on it.
However, the solution by the YLD was to begin a conversation and a hashtag to the problem, which does not prevent alcoholism, anxiety, depression and drug abuse. For young lawyers, a balanced life is for later consideration, and wellness is not good for advancement to partner.
According to an April 2015 Article in the ABA Student Lawyer, Shedding the Stigma of Mental Illness, depression rates for persons entering law school are at 8-9%, and then the depression rate skyrockets to 27% after the first semester, 34% after two semesters, and 40% after three years.
The February 2016 ABA study demonstrated that lawyers have a rate of problem drinking that was more than three times higher than the general population, depression and anxiety rates twice that of the general population, and substance abuse and addiction substantially higher than the general population. Not surprisingly, the rates were significantly higher for those attorneys who are starting their careers:
Attorneys in the first 10 years of their practice now experiencing the highest rates of problematic [alcohol] use (28.9%), followed by attorneys practicing for 11 to 20 years (20.6%), and continuing to decrease slightly from 21 years or more. These percentages correspond with our findings regarding position within a law firm, with junior associates having the highest rates of problematic use, followed by senior associates, junior partners, and senior partners. This trend is further reinforced by the fact that of the respondents who stated that they believe their alcohol use has been a problem (23%), the majority (44%) indicated that the problem began within the first 15 years of practice, as opposed to those who indicated the problem started before law school (26.7%) or after more than 15 years in the profession (14.5%). Taken together, it is reasonable to surmise from these findings that being in the early stages of one’s legal career is strongly correlated with a high risk of developing an alcohol use disorder.
The results with regards to mental health disorders, the study determined that 61% of the attorney respondents reported concerns with anxiety at some point in their career and 46% reported concerns with depression. These Mental Health concerns often co-occur with alcohol use disorders.
As an Institution, the Legal Profession in Florida Stigmatizes Persons with Mental Health Disabilities.
The conclusion drawn by the February study was as follows:
Greater education aimed at prevention is also indicated, along with public awareness campaigns within the profession designed to overcome the pervasive stigma surrounding substance use disorders and mental health concerns.
Reducing stigma for mental health issues includes encouraging mental health treatment and counseling as well as promoting techniques for wellness for law students and young attorneys. While this is common sense, and would promote a healthier profession and reduce attrition of talented lawyers in the profession, the historical stigma regarding mental health prevents common sense to prevail.
Most notably, the mental health questions and evaluation provided to applicants to the Florida Bar exceed the rigor provided to those who wish to obtain an assault rifle in the State of Florida. In fact, disclosure of mental health treatment of diagnosis leads to a detailed and searching investigation into the applicants’ mental health records and evaluations from mental health professionals.
In Florida, to obtain a concealed weapons license, the behavior that would be related to weapon use would be analyzed, this includes conviction of certain crimes, including but not limited to: felony convictions, two DUIs in the last three years, a violent misdemeanor conviction in the last three years, evidence of substance abuse, dishonorable discharge from the armed forces, and evidence of domestic violence. To obtain a law license, the Florida Board of Bar Examiner does not review unlawful or unethical behavior, but attempts to divine likelihood of behavior from a past history of a psychological condition.
According to the Florida Board of Bar Examiners (FBBE) website, it adopted the role of assessing the mental health of each applicant, as follows:
The Florida Board of Bar Examiners must assess effectively the mental health of each applicant. A lawyer’s untreated or uncontrolled mental disorder, if severe, could result in injury to the public. The board assures each applicant that the Supreme Court, on the board’s recommendation, regularly admits applicants with a history of both mental ill-health and treatment by mental health professionals. The board considers satisfactory mental health to include: (1) the current absence of an untreated, uncontrolled mental illness that impairs or limits an applicant’s ability to practice law in a competent and professional manner; and (2) the unlikelihood of a relapse of such a prior mental illness. With respect to either, evidence of treatment by a mental health professional is useful. The board encourages applicants to seek the assistance of mental health professionals, if needed.
Initially, the FBBE asks questions that focus on mental disability status, which deter aspiring attorneys from seeking treatment for mental health conditions. Students that have sought treatment and actively managed their conditions should not be subject to an invasive and humiliating mental health screening solely on the basis of prior diagnosis. Further, even when the FBBE receives mental health records, there is no evidence that a record of a mental health treatment or diagnosis has any effect whatsoever on the person’s success or failure to practice law.
Notwithstanding no evidence of any correlation between a past mental health history, or even current treatment, the FBBE has the authority to request that the Supreme Court of Florida allow a “conditional” admission to the Florida Bar and make the Florida Bar the overseer of the person’s psychological treatment. This includes as follows:
In a Consent Agreement, the board is authorized to recommend to the Supreme Court of Florida the admission of the applicant who has agreed to abide by specified terms and conditions on admission to The Florida Bar. The conditions will include:
- consult with a licensed mental health provider at least quarterly, or more frequently as such mental health provider deems necessary;
- follow all instructions by the mental health provider;
- have the mental health provider submit quarterly reports to The Florida Bar during the entire probationary period;
- have the mental health provider immediately notify The Florida Bar if the applicant misses a scheduled appointment without prior rescheduling; and,
- have the mental health provider submit quarterly sworn statements to The Florida Bar during the entire probationary period attesting to the applicant’s compliance with the conditions.
Length of Conditional Admission
The board’s policy on the length of conditional admission in mental health cases is from 1 year to an indefinite period, depending on individual circumstances.
For example, many members of the bar with a history of treated mental illness have “conditional” admission and are required to have their mental health provider report to the bar every quarter, and they must pay $75.00 per quarter for that privilege. Those lawyers have difficulty in finding jobs because of their “conditional admission” status. This self-appointed duty to screen for mental illness has a more dramatic effect on law students. I have spoken to many law students that have refused to receive mental health treatment for fear of being required to submit mental health records or of being subjected to “conditional admission” by the bar.
In 2014, I had the opportunity to address the Florida Board of Bar Examiners regarding the relationship between the Americans with Disabilities Act, and the FBBE’s practice of inquiring into the nature and extent of a person’s mental history. In 2014, the Department of Justice entered a settlement with the Supreme Court of Louisiana prohibiting it from requesting information regarding whether an applicant to the bar suffers from a mental illness, except if the information was related to conduct that would otherwise disqualify the applicant from becoming a lawyer. Notwithstanding the Department of Justice’s settlement with Louisiana, the Florida Board of Bar Examiners continued to use mental health questions and evaluations to screen and disqualify potential applicants with disabilities from becoming members of the bar.
Under the Americans with Disabilities Act, employers are not permitted to make any inquiry of a person’s mental health status prior to employment, and cannot make such inquiries after an offer is made unless the employer has objective evidence that an employee’s ability to perform essential job functions will be impaired by a medical condition; or an employee will pose a direct threat due to a medical condition.
While this may seem Orwellian, this is the reality of what bar applicants face in the guise of protecting the public. The FBBE cannot state any correlation between their searching inquiry of the mental health of applicants or conditional admission of applicants, and the future professional behavior of lawyers. In addition, the rational provided by the FBBE for their searching inquiry is that lawyers receive so much sensitive information in their careers, that the FBBE has the right to search a prospective lawyer’s entire background. Doctors, accountants, teachers, and others who receive sensitive information are not subject to such inquiry.
Focusing on actual dangers and conduct rather than stereotypical views relating to persons with treated mental illness is the essence of the mandate of the ADA. The existence of mental health eligibility screening by the Florida Board of Bar Examiners, and the imposition of differing standards of admission to lawyers with a mental disability is discrimination without evidence of need and is unlawful. If the Florida Bar attempted to screen existing members of the Bar for mental illness or treatment for mental illness, the ranks of the Bar would be decimated. However, the issue that is more of a threat are those persons who do suffer from mental illness, drug or alcohol addiction and do not receive assistance.
Instead of stigmatizing mental illness, we must work to ensure that lawyers and law students have access to mental health treatment as well as wellness programs to find methods in which to control depression and anxiety caused by the stressors that are part and parcel of our profession. Our Supreme Court must respond to the epidemic of mental illness by forming a committee with mental health professionals, lawyers who have mental disabilities, members of the bench, members of the Florida Board of Bar Examiners and the Florida Bar Board of Governors to develop appropriate questions to ensure that the public is protected from persons who demonstrate behavior that pose a safety to the public, to end stigma against lawyers and applicants to the bar with a history of mental illness, and to encourage psychological wellness and treatment for mental illness.
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!
“I am no bird; and no net ensnares me; I am a free human being with an independent will.”
The term independence can take on many different meanings depending on where you are and what’s most important to you. It encompasses a person’s right to autonomy; the ability to make personal decisions without the forceful opinion of others. Individuals with disabilities – especially those who require consistent assistance completing activities of daily living – find it challenging to live independently. One main reason is a need for a network of paid caregivers who can provide assistance with daily needs. Acquiring this level of care in the home setting has been a battle in the US for many years.
In 2015, there was a shift in how Florida provides long term care to individuals who chose to live at home rather than in an institutional setting. This shift created a partnership between Medicaid and private long term care insurance providers. While still bumpy, the partnership has provided opportunities for disabled adults to acquire much needed care at home rather than being forced into a nursing home. While every person’s definition of independent living differs, when it comes to long term care assistance there are two barriers people with disabilities face: access to insurance coverage to pay for services at home and informed choice.
Staying at Home is Key
One person may define independent living as having his or her own place to live. Others may define it as simply managing their own paid caretakers who provide the majority of required assistance, while still living at home with mom and dad. Regardless of the definition, every person has the right to live in his or her own home rather than be forced into a nursing facility.
In my life, I define independent living simply as living my life my way. I knew at a young age that I wanted to move out of my parent’s home and get my own place. My goal was not to always depend on my mother to provide me care, but instead to live independently by finding a way to acquire long-term care coverage that would pay for personal care assistants to help me on a daily basis. Due to my disability, getting dressed, using the restroom, cleaning my home, driving, etc. are all things that I cannot do on my own. However, living in an institutional setting was never an option. Thankfully, the federal government agrees with me. In 1999, the Supreme Court decision in what’s known as the Olmstead case clarified that it was discriminatory to unnecessarily institutionalize individuals with disabilities. The Court held that states must provide community-based services to persons with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated.
While in theory this provision of the ADA is great, in reality, states struggle to allocate appropriate funding for home and community based services (HCBS). Many states have long waiting lists that are opened only when a person currently in the program either moves out of state or passes away. In late 2013, Florida began to synchronize their HCBS program with private insurance companies, creating a managed care system overseen by Medicaid. By 2015, all counties in Florida now offer home-based services for eligible individuals with disabilities, with a very short (typically 30 days) waiting period.
Informed Choice – My Way or The Highway
Once you are finally in the HCBS program, you are given two choices: To have your care provided through a home health agency or through patient directed care options. The latter is the best option for me, but there are many people who prefer to use the services of a nursing agency. Patient Directed Options (PDO) is a system where recipients recruit, hire and manage their own caregivers. They are responsible for filling out timesheets, monitoring their employees and managing all human resources tasks with no supervision. While it may sound somewhat daunting, living my personal definition of an independent life is great fun. It’s like running a business that has NO option of failure. Today, I hire personal care assistants who come to my home 365 days per year, 7 days a week. While sometimes a bit of a juggling act, managing my own network of caregivers makes life that much sweeter, because by learning how direct my care, I’m able to truly live my life, my way.
For more information on Florida’s Home and Community Based Services, check out the following links:
- Agency for Health Care Administration Long Term Care Snapshot
- Olmstead: Community Integration for Everyone
- Statewide Medicaid Managed Care (SMMC) – Long-term Care Program
Author: Lorinda Gonzalez resides in South Florida with her family and service dog, Remy. She was diagnosed with Spinal Muscular Atrophy at the age of three, and has used a motorized wheelchair for mobility since the age of nine. As an avid writer and reader, she has worked as a grant writer and editor since 2009. With the help of her family, it has grown to become a successful endeavor. Lorinda holds a Bachelor in the Arts Degree in English Writing and Rhetoric, and is currently completing a Masters of Arts Degree in Communications. She is a co-found of NMD United, 501 ©3 and on the board of multiple non-profit organizations. In her free time, Lorinda enjoys spending time with family and friends, painting, listening to music, and traveling to historical locations.
Today, Roseline Joseph welcomed Coral Gables Police Lieutenant Bart Barta to her home and received $300 in gift cards as a holiday gift from the City of Coral Gables Police Department. Ms. Joseph was just granted custody of her grandson, who is a medically-fragile three year old with a disability, and requires 24-hour per day medical care and supervision. This little boy has been in foster care and in skilled nursing facilities since he was an infant. Instead of presents in Ms. Joseph’s home, it was filled with medical supplies and equipment awaiting the return (at 4 P.M.) of the best present that Ms. Joseph could hope for. Sharon Langer, guardian ad litem for the child and Development Director of Disability Independence Group, is overjoyed at the reunification of the family and another child out of a nursing facility to a forever home.
Ms. Joseph’s gift was made possible by a long-standing member of the Coral Gables community, who wished to remain anonymous. This Santa Claus gave the Coral Gables police department gift cards to be distributed in and around the city during holiday weeks, and to victims’ homes, families in need and to others facing times of hardship.
By: Rachel Goldstein
For the last part of my series I am going to address how the Americans with Disabilities Act (ADA) applies to service animals and the responsibilities of businesses to allow service animals into their facilities. The ADA defines “service animal” as limited to a dog that is individually trained to do work or perform tasks for an individual with a disability and the tasks must be directly related to the person’s disability. An important distinction from other federal law (such as the Fair Housing Act) is that the ADA defines service animals to include only dogs and the ADA does not consider emotional support, therapy, companion or comfort animals as service animals.
When it is obvious that the animal is trained to do work or perform tasks for an individual with a disability, such as when the dog is retrieving items out of reach for a person using a wheelchair, staff cannot question the person. However, when it is not obvious that the dog is a service animal, businesses and their staff may ask only two specific questions:
- Is the dog a service animal required because of a disability? and
- What work or task has the dog been trained to perform?
In either instance, staff is not allowed to ask about the nature of the person’s disability or require any documentation for the dog like proof that the animal has been certified, trained, or licensed as a service animal, or require that the dog show what tasks it performs. The ADA does not require service animals to wear a vest, ID tag, or specific harness and businesses are not allowed to require such identification for entry. Staff must also allow service animals to go anywhere in the business the public and other customers are allowed to go and cannot be restricted to ”pet friendly” areas or rooms.
Staff are not responsible for watching or caring for a service animal when in its business and do not have to walk, feed or groom the dog. It is the responsibility of the person with a disability or a handler to supervise, care for and control the dog. If the service animal is out of control and the handler does not or cannot control it, or if the dog is not housebroken, staff may then request the animal be removed from the business. Also, if allowing service animals would fundamentally alter the nature of a service or program (change the essential nature of your business), service animals may be excluded.
Again, as I have previously emphasized, comprehensive training is essential! Staff has to be aware of their obligations and what they can and cannot ask as they play such an important role in making sure individuals with disabilities are included in everyday activities and provided the same opportunities as individuals without disabilities.
The Department of Justice issued guidance on July 13, 2015 entitled Frequently Asked Questions about Service Animals and the ADA, which may provide further useful information for your business. For more information please visit http://www.ada.gov/regs2010/service_animal_qa.html
By: Matthew Dietz
“We are more than happy to have you all with us to experance a bit of TEXAS. Unfortunately the Law in Texas does not allow us to serve alcohol drinks to high functing individuals.”
Kelly @ Stampede Houston
Becky Dowling runs a program in the Metro Atlanta area called “Just” People, which provides support services and housing to persons with developmental disabilities. These folks are what is considered “high functioning” and are able to do many activities of daily living on their own, and need some support services on a daily or weekly basis to assist them in living independently. As part of this program, “Just” people has a social component, where the participants in the program can do outings every weekend, from bowling and movie night to international cruises. The “Just” People community has been to eighteen cruises in the past twenty years.
So, it was not unusual for the “Just” People community to want to have a taste of some good ‘ole Texas hospitality, do a little line dancing, the tango with the mechanical bull, and down a few buds down in Houston Texas. So, director, Betty Dowling set up a trip to take 88 people in the “Just” People community to Houston to have a taste of Texas, and book a party at Stampede Houston.
They were told that they all were welcome down at Stampede Houston, and they’ll take their money and let them “experance a bit of TEXAS. Unfortunately the Law in Texas does not allow us to serve alcohol drinks to high functing individuals.”
All oxymorons aside, not only is this wrong, it violates the Americans with Disabilities Act. One of the stated purposes of the law is as follows:
In enacting the ADA, Congress recognized that physical and mental disabilities in no way diminishes a person’s right to fully participate in all aspects of society, but that people with physical or mental disabilities are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers. (ADA Amendments Act, 42 U.S.C. 12101(a)(2))
The most common form of prejudice and antiquated attitudes is the perceived infantilization of persons with disabilities, that persons with disabilities are perpetually childlike, innocent and vulnerable. People with disabilities should and could enjoy life, just like anyone else, including, but not limited to drinking, having a sex life, and even….having children!
The first time that I had a speaking engagement outside of Miami was at the University of Florida Disability Student Association symposium. Unbeknownst to me, it focused on disability and sexuality, and the keynote speaker was little person porn star, Bridget “the midget” Powers. I was invited to the conference by a student, Bethany Stevens, who is now a renowned disability sexologist. When I met this small woman in a wheelchair with a t-shirt that said “Gimp Pimp”, she was better versed in dildos that I was in discrimination. The remainder of the conference expressed the goal that whoever you are, whatever beautiful forms your body comes in, you can have enjoyable sex. I was truly out of my league. And as Bethany herself says, in her blog – cripconfessions.com – “Sexuality is a human right that EVERYONE is worthy of and EVERYONE can find someone to be interested in them.” So, infantilization is a pernicious stereotype. It is just made for able bodied persons to make them feel good about protecting persons with disabilities.
As for drinking, I find it hard to believe that a person with a developmental disability poses more of a danger than Texas citizens who exercise their right to carry a shotgun or a rifle in the open enjoying a few beers. However, Texas law does prohibit the sale of alcohol to some people, as follows:
Sec. 101.63. SALE TO CERTAIN PERSONS. (a) A person commits an offense if the person with criminal negligence sells an alcoholic beverage to a habitual drunkard or an intoxicated or insane person.
Now, there is no definition of “insane” person under this section, but the traditional legal test is whether or not a person knew the difference between right and wrong. That then begs the question, whether anyone after six beers can really be deemed sane (disabled or able-bodied). Maybe Stampede Houston needs a new lawyer….
Believe it, or not, Betty Dowling and the world travelers at “Just” People would like to still go to Stampede Houston on September 11th. If you think this is wrong, why don’t y’all go down to Stampede Houston and have some hooch and tango with the mechanical bull and give them a piece of your mind, or better yet, call them and tell them that they are wrong, and it’s time to stop treating persons with disabilities like children that they need to protect – they should worry more about drunk folks with guns.