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).

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

By: Matthew Dietz

Unless the housing facility is a qualified 55 and over housing development, a housing provider cannot have rules that treat children differently, and less favorably than adults. When the US Congress amended the Fair Housing Act in 1988, it prohibited housing practices that discriminate on the basis of familial status.When it amended the Act, Congress recognized that “families with children are refused housing despite their ability to pay for it.” In addition, Congress cited a HUD survey that found 25% of all rental units exclude children and that 50% of all rental units have policies that restrict families with children in some way. The HUD survey also revealed that almost 20% of families with children were forced to live in less desirable housing because of restrictive policies. Congress recognized these problems and sought to remedy them by amending the Fair Housing Act to make families with children a protected class. So any rules, that do not have a legitimate safety justification, cannot indicate a “preference, limitation, or discrimination” against children under the age of 18. This includes rules that prohibit children from common areas in the facility with or without supervision, or limit the facilities of the housing development to adults. All rules must apply to children and adults equally, and cannot solely target children’s behavior.

If rules have a legitimate safety rationale, then such rules may be legitimate. But, again rules such as all children under sixteen must be supervised by an adult does not have a safety rationale, but a discriminatory basis against loud teenagers. On the other hand, a fifteen year old at a gym may injure him or herself on free weights without having supervision.

Summer camp must be inclusive

Over the past fifteen years, I have had several cases involving children who were not permitted to go to the summer camp of their choice, or were segregated in the summer camp because of the child’s disabilities. A summer camp, like any other public accommodation under the Americans with Disabilities Act, must provide reasonable accommodations for campers with disabilities, and must not segregate them from other students. Camps operated by governmental entities or colleges have a broader duty to accommodate campers with disabilities than some private entities that do
not have the same resources as a governmental entity. Examples of situations which I have encountered over the years are as follows:

• Children who are Deaf – Deaf kids have the right to a qualified sign language interpreter for all programs and services of a camp that involve communication that is long, complex, or important. Examples of this would be instructions on how to play a complicated game, story time, puppet shows, and educational instruction. If there are games that involve communication, then an interpreter would be appropriate so the Deaf child is included.
• Autistic kids – If a child who lives with autism has a one-on-one aide at school, for the same reasons, that child may need a one-on-one aide at a camp. Further, if a child needs further instruction in a game, or assistance with social interactions, that would be an accommodation that must be provided.
• Kids who have a medical condition such as Diabetes – If a child has a medical condition, or needs assistance with a medical condition, such as diabetes or HIV, then the question is whether the child poses a direct threat to his or her own health or the safety of others. If a child needs minor assistance with a medical condition, or can manage his or her own medical needs and monitoring, a camp cannot discriminate against these children.
• Kids with mobility impairments or other physical disabilities – Camps, like any other public accommodations, must have their facility accessible to children with disabilities. Older camps must do modifications that are readily achievable, easily accomplishable and able to be carried out without much difficulty or expense, and those camps altered or built after 1991 must be constructed accessibly. The camp is also responsible for making reasonable accommodations for campers with disabilities, which may involve some personal services, such as assistance in dressing, if similar services are available for able bodied campers.
• Kids with allergies – Kids who have allergies cannot be excluded from camps, and camps must be prepared to exclude certain allergens to accommodate a camper, and be trained in the event a camper has an allergic reaction. It would not be unreasonable to expect camp counselors to learn how to administer epinephrine auto-injector (“Epi-pen”) shots and dispense asthma medication, assist in administering Diastat for seizures in emergencies or otherwise teach camp counselors in basic first aid or CPR.

Parents can choose to send their child to a segregated camp, because some camps may provide special skills or advantages for children with disabilities, but the choice of going to a specialized camp is a choice, such as camps where all children are deaf.
However, all children may not be able to go to integrated camps. For example, there may be children with developmental disabilities or intellectual disabilities who would not be able to care for themselves at a sleep-away camp, and it would be a fundamental alteration of the camp’s programs to develop a program for one child’s disability. Further, if a child is dependent on mechanical supports, a camp would not be required to hire medical personnel to accommodate medically complex children. For these kids specialized camps are a phenomenal way to get out and enjoy the community. For example, Nicklaus Children’s hospital operates the VACC camp for technologically dependent children which includes swimming, field trips to local attractions,campsite entertainment, structured games, “free play”, to promote family growth and development while enhancing these kids’ self-esteem and social skills.

It’s so damn hot – my kid has asthma and needs an air conditioner

Last year, we represented a mother who had a child who lived in HUD-subsidized low-income housing. Asthma is often triggered by inhalation of air particles that contain allergens such as pollen, mold spores, dust mite droppings and animal dander. Air conditioners contain filters that collect and store these particles, keeping intake to minimum. Air conditioning also helps eliminate humidity on hot Florida nights which enables mold and algae to grow much more rapidly than it could if it were living in dry air. Some children and adults suffer from asthma to the degree that not having air conditioning may result in serious harm and hospitalization. Requesting to install an air conditioner unit in a home or apartment would be a reasonable accommodation for a person with a disability.

According to the Fair Housing Act, a tenant with a disability can request a reasonable modification. According to HUD Guidance, “A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas.” Under the Fair Housing Act, a housing provider must permit the modification, the tenant is responsible for paying the cost of the modification. If the housing provider is a public housing authority or a housing provider that receives federal financial assistance, the modification must be paid for by the housing provider unless providing the modification would be an undue financial and administrative burden.
Another example modifications can be a pool lift!

Discrimination in Pool Rules

• No inflatable flotation devices.
• Water wings, swimmies, floats, bathing suits rings, and other inflatable devices are not permitted in the pools.
• Absolutely no dogs allowed in pool area

Also, under the Fair Housing Act, persons with disabilities can ask for “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford … person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.” So when a person is required to use water wings, floats, special swimming devices, they can do so. In order to request an accommodation, the person needing an accommodation should ask the housing provider, and if the disability is not obvious, then the person may need to obtain verification from a doctor, therapist, or any other provider verifying the disability and need for the accommodation.

In addition, “no dogs allowed” rules do not apply to service or emotional support animals, where their presence is necessary for the person with a disability equal use and enjoyment of the premises. The Fair Housing Act and the ADA does not override public health rules that prohibit dogs in swimming pools. However, service animals must be allowed on the pool deck and in other areas where others are allowed to go.

Pet-Friendly Hurricane Evacuation Centers in Miami

By: Monica Sabates

Hurricane season in Miami-Dade County is a force to be reckoned with. The season’s span between June 1st and November 30th leaves a considerable amount of time for a hurricane to strike suddenly and swiftly in one’s vicinity. Being mindful and prepared for what may come is the first step to ensuring one’s safety and the safety of one’s pet or service animal. One option for an individual living in an evacuation area, unsafe structure, or mobile home in Miami-Dade is to pre-register for a Pet-Friendly Hurricane Evacuation Center (PFHEC) before a hurricane announces its arrival.

In order to apply for occupation in a Pet-Friendly Hurricane Evacuation Center, the individual must contact the Miami Dade Answer Center to receive the application by mail. Some of the requirements for participants include residing in one of the mandatory evacuation zones and ensuring their pets’ or service animals’ vaccinations are up to date. The kinds of animals allowed in the evacuation center include: dogs, cats, birds, and other small mammals such as guinea pigs and mice. The application that the individual receives consists of four main criteria: registration for the adult in charge of the pet, the pet’s description, the pet’s medications, and crate/cage specification.

Upon completing the first part of the application, the individual will receive a temporary acceptance letter. Once the mandatory evacuation order is issued, the individual and their maximum of three pets must go to the PFHEC with food, water, and other essentials for both the owner and pet. Admittance into the shelter will be determined by a veterinarian, who upon inspection will deem whether the pet is a health risk to other animals or humans.
Currently, there are two locations that provide the service of a Pet-Friendly Hurricane Evacuation Center (PFHEC) during a hurricane emergency:

E. Darwin Fuchs Pavilion
10901 SW 24th St.
Miami, FL 33165

Dr. Michael M. Krop Senior High
1410 County Line Road
Miami, FL 33179

For more information and tips on how to keep you and your pet safe during hurricane season, visit Miami Dade County Animal Services online at: http://www.miamidade.gov/animals/disaster-preparedness.asp

HUMAN-ANIMAL INTERACTION: Can it prevent disease?

By: Sharon Langer

In the past 20 years there have been many studies conducted that measured the therapeutic value of human-animal interaction. A companion animal may reduce anxiety, loneliness, and depression and thus delay the onset, decrease severity, or even slow the progression of stress-related conditions. Pets can stimulate someone to exercise, provide social support, and can help someone socialize in a group setting. They can be our therapists as well as our companions. Pets have been shown to be a source of tactile comfort by increasing sensory stimulation while decreasing blood pressure and heart rate.

In 1990, the International Association of Human-Animal Interaction organizations was founded to gather together national associations and related organizations interested in advancing the understanding and appreciation of H-A interaction. This organization has been officially designated as a working partner of WHO-The World Health Organization.

The Waltham Center for Pet Nutrition, in England, gave a $2 million grant to the Eunice Shriver national Institute of Child Health and Human Development to research further H-A interaction to specifically study on a larger scale how children perceive, relate to and think about animals and how pets in the home impact children’s social and emotional development.

If you have read this far into this article, I suspect you are an animal lover who already understands the power they bring to the human condition. I find it interesting that this power is actually being scientifically tested, and the results should help those of us who work with and for animals to make our case to the rest of the community.

Flying with your Service Animal or Emotional Support Animal

All Air Carriers are legally required to allow both emotional support animals and service animals on flights without charge. However, it is always good to review the requirements for service animals for your particular airline, and whether there are any conditions that need to be met. In addition, some international destinations and Hawaii provide additional qualifications for transportation of any animal.

TSA Checkpoints

Upon arrival at the TSA checkpoint, advise the officer that your animal is a service animal. At that time, you can use the disability or family lane to expedite the screening process. If the passenger and service dog are screened by a metal detector, they can proceed one of three ways:

• The passenger can walk through first with the animal following behind on its leash;
• The animal can walk through first on its leash with the passenger following behind; or
• The passenger and dog can walk through at the same time. If the passenger and the dog walk through at the same time and the metal detector alarms, both the passenger and dog are subject to additional screening, including a thorough pat down.

Airlines

Where does the dog go in the airplane?

When making reservations, a passenger with a disability can request either a bulkhead seat or a seat other than a bulkhead seat. A dog or other service animal may accompany a passenger with a disability to the passenger’s assigned seat and remain there as long as the animal does not obstruct the aisle or other areas that must remain unobstructed for safety reasons. If a service animal cannot be accommodated at the seat of the passenger with a disability and if there is another seat in the same class of service where the passenger and the animal can be accommodated, an airline must offer the passenger the opportunity to move to the other seat with the service animal. Switching seats in the same class of service must be explored as an alternative before requiring that the service animal travel in the cargo compartment. However, if the service animal’s behavior in a public setting is inappropriate or disruptive to other passengers or carrier personnel, an airline may refuse to permit the animal on the flight or offer the passenger alternative accommodations such as accepting the animal for carriage in the cargo hold.

Is it required to give advance notice?

It is not required under the law to provide advance notice if you are traveling with a service animal. However, in order to guarantee your seat assignment, you should be aware that, depending on whether the carrier provides advance seat assignments and the type of seating method it uses, it may have a policy requiring passengers with a disability (i) to request a particular seat assignment 24 hours in advance of the departure of the flight or (ii) to check in at least an hour before the departure of the flight.

What proof is necessary to prove that the animal is a service or emotional support animal?

For a service animal who’s use is not obvious, as with any public accommodation, the airline agent may ask (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform. According to DOT regulations, an airline must accept the following as evidence that the animal is indeed a service animal: (1) the credible verbal assurances of a passenger with a disability using the animal, the presence of harnesses or markings on harnesses, tags, or identification cards or other written documentation.

For emotional support animals, the documentation required is different, and most airlines require current documentation (i.e., dated within a year of the date of travel) from a mental-health professional stating that: (1) the passenger has a mental health-related disability; the passenger needs the animal for the mental-health condition; and the provider of the letter is a licensed mental-health professional (or a medical doctor) and the passenger is under the individual’s professional care. Most airlines have specific forms that are found on their website.

How do you get problems resolved – the Complaints Resolution Official

Each Air Carrier has designated at least one Complaint Resolution Official under the Air Carrier Access Act to handle disability-related matters at each airport that carrier serves. Each CRO must be trained and thoroughly proficient with respect to the rights of passengers with disabilities under the ACAA and accompanying regulations. Whenever there is any disability related problem involving an air carrier, the first person to request is the airlines CRO, and the CRO has the ability to resolve the complaint. If the CRO does not resolve the situation or take a complaint, the Department of Transportation has an aviation consumer disability hotline for resolving issues related to disability accommodations. The toll-free number for the hotline is 1-800-778-4838 (voice) and 1-800-455-9880 (TTY).

References for specific Airlines

1. United Airlines: http://www.united.com/web/en-US/content/travel/specialneeds/disabilities/assistance_animals.aspx
2. American Airlines – http://www.aa.com/i18n/travelInformation/specialAssistance/serviceAnimals.jsp
3. US Airways – http://www.usairways.com/en-US/traveltools/specialneeds/animals.html
4. Delta Airlines – http://www.delta.com/content/www/en_US/traveling-with-us/special-travel-needs/disabilities/service-animals.html
5. Alaska Airlines – http://www.alaskaair.com/content/travel-info/accessible-services/specialservices-support-animals.aspx
6. JetBlue – http://help.jetblue.com/SRVS/CGI-BIN/webisapi.dll?New,Kb=askBlue,case=obj%281095%29
7. Southwest Airlines – https://www.southwest.com/html/customer-service/unique-travel-needs/customers-with-disabilities-pol.html#unique_travel_needs_allergies_disabilities_pol_tab_list_tab_10

Department of Transportation FAA regulations regarding service animals- http://airconsumer.dot.gov/rules/20030509.pdf

TSA for service animals and monkey helpers – http://www.tsa.gov/traveler-information/service-animals

Cruising with your Service dog

Dogs have long been the companion of our U.S. Navy Sailors on vessels for their ability to build morale. In the early days, dogs often served a more practical function by leading patrols onto foreign shores to search for food and warn of any dangers lurking out of eyesight. Now, most cruise ships allow service animals on board their ships. While service animals are permitted, emotional support animals or pets are not.

At the time of reservation, you should advise the disability services office of any disability related needs or accommodations, such as a service animal. Most ships designated relief areas with cypress mulch, paper pellets or sod to accommodate service dogs. The ships are not required to provide food or care for the dog, so you may need to bring your own dog food on board. Many of the ports you may visit will only accept annual rabies vaccinations; however, it is a good idea to research the requirements needed at each port. If the service animal does not have the required vaccinations or documentation the service animal not be able to disembark.

Animal Partners– A need not a want

 

Disability Independence Group hosted a wonderful committee of animal advocates for a brainstorming session on how to work together with the GOAL of creating programs, support systems and strategies that will allow the elderly, disabled and those in nursing homes or ALF’s to keep their pets or have the comfort of a pet. Some of the questions raised were: When folks have become elderly, ill, or need to go to a hospital or an ALF/nursing home, what happens to their pets? What if they are still in their home but can’t afford animal care and pet food? What safety nets exist to assist someone in those circumstances? What can we do to create those services when they don’t exist? How do we, as a community of people who care, begin a dialogue that promotes and recognizes the importance of one’s pet to his or her health and well-being?  

(click here to read more) 

 

Introducing Animal Partners –

A core individual freedom is a one’s natural right to make decisions affecting his or her health or body. This freedom is an integral part of the dignity and control for persons with disabilities as well. One of the major goals of the Disability Rights movement is that each person with a disability has the right to self-determination – free from the patriarchal attitudes of the “able-bodied”. This right to make medical decisions extends not only to traditional forms of medicine, but also to alternative treatments that assists a person with daily life activities — whether these activities are physical, sensory, psychological or social. More and more people with disabilities are using animal companionship and assistance to help them with their daily lives. DIG is creating a new project to address the needs of people with disabilities who would like to use service animals or emotional support animals. The project is called “Animal Partners”.

If you go to justdigit.org, and read our newsletter or look at our blog at justdigitlaw.wordpress.com, you will meet Deborah Fischer, who uses a service dog, Sorenson, to assist her due to her multiple sclerosis. You will also meet Anthony Merchante, a six year old boy, who uses a seizure alert and protect dog, Stevie. Last month’s newsletter contained the fight of U.S. Air Force veteran, Ajit Bhogaita, to keep his dog, Kane, at his home to assist him in coping with his post-traumatic stress disorder.

Using animals as a component of therapy has long been recognize to cause significant improvements in cognition, social interaction and physical skills for persons with disabilities. Not only may an animal assist in physical activity, it also builds an emotional connection between a person and an animal promotes release of the neurohormone oxytocin. Oxytocin is responsible for inducing feelings of love and trust and is strongly implicated in pair bonding. For the past few years, more and more people with disabilities have chosen to enhance their lives and their condition by using animals as components of their care and lifestyle. This ranges from the elderly person that has depression or Alzheimer’s, a veteran that suffers from PTSD, an autistic child that needs a companion animal to become socially interactive, to an epileptic person that needs a seizure alert dog.

The law may allow people to have their service or emotional support animals in many public and private areas, however, many employers, or housing providers do not understand the law and they just automatically deny people with disabilities the right to have their animals. On the other hand, people with disabilities often do not know what is required to have a service dog, and the limitations of having an emotional support dog or a service dog. “Animal Partners” will attempt to present the law and requirements in a user-friendly manner so people will understand the rights and responsibilities relating to assistance animals. “Animal Partners” has a two pronged mission.

• First, to legitimize a person with a disability’s choice to have an assistance animal and to provide information of value and tools so that a person with a disability can by empowered to make an informed choice.
• Second, to make our community to be a kind and civilized place where it is acceptable for people with disabilities to feel comfortable and welcome with their assistance animals.

We hope you friend our “Animal Partners” Facebook site, visit the webpage at justdigit.org, and sign up!