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.

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.

Deaf Woman Denied Career Choice at Keiser University

Katy Daniel-Rivera is a Deaf woman who lives in Florida, and works at the Bay Pines Veterans Administration (“VA”) Hospital as a Radiology Medical Support Assistant in the Imaging Service Department. After receiving many positive performance reviews over her three years at the VA, Katy sought to advance her career by becoming licensed by the State of Florida in Radiologic Technology. As a Deaf woman, Katy has been successful in her chosen career and has had sign language interpreters or other services through all of her education and other licensing opportunities.

As Katy began researching programs in 2014, Keiser University had reached out to Katy and told her what a good match she would be for the University and its program in Radiologic Technology. Keiser University has an enrollment of over 20,000 students and earns over 300 million dollars in revenue per year. Its main campus is in Fort Lauderdale, with fifteen additional branches located in other parts of Florida.

After finding out about the program, Katy wanted to meet personally with the admission counselor to discuss the assessment test and the program, and requested a sign language interpreter for the meeting. The counselor denied her request, but assured her that Keiser
would provide accommodations once she was admitted. Over a twelve-month period, Katy had numerous meetings about the accommodations she needed, but was not provided an interpreter for any of them. On September 29, 2015, Keiser accepted Katy into the Radiologic Technology Program and told her to show up at orientation on October 22nd, where they finally would provide an interpreter. At the orientation Katy was handed a letter from the Office of the Chancellor of Keiser rejecting her from the Keiser program because she is deaf, claiming that she posed a safety risk to others and that providing interpreters would be “inordinately expensive and extremely difficult to maintain.” Katy was crushed.

On January 7, 2016, National Association of the Deaf Law and Advocacy Center, and Miami-based Disability Independence Group filed suit on behalf of Ms. Daniel-Rivera. Keiser’s reasons for rejecting Katy Daniel-Rivera were based on stereotypes and out-moded beliefs and not on the actual capabilities of Ms. Daniel-Rivera. She has been successfully practicing in this field for several years, not once compromising other’s safety because she is deaf. Further, numerous ASL-using deaf and hard of hearing individuals have successfully trained for and performed healthcare jobs that exceed the demands of Radiologic Technology. For example, ASL-using deaf individuals currently or previously have worked as pediatricians, and as hospitalists in teaching hospitals. Regarding expense, universities routinely provide sign language interpreters for all programs or services, as required by law. Indeed, Keiser accepts tens of millions of dollars of federal financial assistance each year conditioned on a promise to provide interpreters when needed.

Katy Daniel-Rivera would like the opportunity to succeed in her chosen career and earn a license to be a Radiologic Technologist. With appropriate auxiliary aids and services, a person who is Deaf can perform any job. To deny a person that opportunity is discrimination.

Because modifications change what the child learns and how they are assessed, they are separate from accommodations. Examples of modifications on assignments could involve completing fewer or different homework problems than peers, writing shorter papers, or completing alternate projects or assignments. Curriculum modifications can include learning different material than the rest of the class, receiving grades using an alternate assessment standard, or being excused from certain projects or assignments.

Classroom Accommodations

By: Anastasia Gaertner

Children who have a learning disability and may be struggling to reach their full potential in the classroom could require an accommodation or a modification to help them thrive. An accommodation is a change in the way that a student takes in information or communicates their knowledge back to the teacher, but it does not alter the standards or expectations for the subjects or tests. A modification is a change in the delivery, content, and instructional level of information for a student. It is a change in what the student is taught and what is expected of them on assessments of learning. These kinds of adjustments are tailored to each student’s strengths and areas of difficulty to provide them with the most beneficial learning environment.

Litigation Update: Anthony gets to keep Stevie in School!

By: Matthew Dietz

On February 10, 2014, United States District Court Judge Beth Bloom ruled that Broward County School District violated Anthony Merchante’s rights, as a child with a disability, by denying his right to have a seizure alert animal accompany him at his elementary school.

Anthony’s mother, Monica, requested that the school allow Anthony to bring his seizure alert and protect dog to school. Because Anthony is non verbal and lives with cerebral palsy, Stevie, the service dog, is tethered to Anthony’s wheelchair and needs to be tethered and untethered to the wheelchair, and may need to urinate during the day. The school distict demanded that Stevie’s mother be the handler of the dog during the day, provide insurance for the dog, and require proof of vaccinations required of animals sold in pet stores.

In a lenthy decision, the Court found that a person with a disability has a right to choose an accommodation that will meet that persons needs:

The Court is also guided by the basic premise that while not every accommodation chosen by a disabled person is “reasonable,” a public entity is not permitted to survey the universe of possible accommodations or modifications and determine for the individual what, in its estimation, is the best or most “reasonable,” approach.

The Court also reaffirmed the importance of the pair bond between a person with a disability and his or her service animal. The Court found that to assist or monitor Anthony in using his service animal is a reasonable accommodation under the Americans with Disabilities Act and Section 504 off the Rehabilitation Act, and the insurance and additional vaccinations were unlawful requirements. “In the same way a school would assist a non-disabled child to use the restroom, or assist a diabetic child with her insulin pump, or assist a physically disabled child employ her motorized wheelchair, or assist a visually disabled child deploy her white cane, or assist that same child with her seeing-eye dog – the accommodations here are reasonable.”

A copy of an edited version of the decision is here.

On Saturday, February 21, 2015, The Miami Herald published an article by Carol Marbin Miller about Anthony’s victory and some great pictures and a video of Anthony, Stevie, and Monica Alboniga.

Miami Herald Story

A note from Matt….

This Month, DIG achieved a major victory by ensuring that a student with a disability is permitted to have a service animal in school.  The Court upheld the tenet that a person with a disability has a fundamental right to the accommodation of that person’s choice.  That choice, as long as it is reasonable, cannot  be taken from that person by the government, housing provider, or employer.  In February, our newsletter will focus on the use of alternative accommodations for persons with disabilities.

Litigation: Accommodations for High Stakes Testing

By: Matthew Dietz   

Academic success is often measured by a score on a test. A test score can make the difference in being accepted into a desired school or in obtaining a professional license. However, a learning disability of a mental illness or disorder, or other disability, can derail a person’s career or learning goals when an accommodation is not given to level the playing field. In fact, all schools, testing organizations and professional licensing organizations should (and usually do) provide for testing accommodations.

Is it fair?

A professional boxer could usually beat an amateur with one hand behind her back but you would never be able to measure the boxer’s ability when her hand is tied behind her back. In the same way, a test should be designed to test the test taker’s intelligence or mastery of the subject and not how quickly a person completes a test or the person’s skills in blocking out extraneous noises. For years, accommodations have been denied to those who are intelligent, based on the rationale that accommodations were not needed due to their intelligence. When the ADA was amended in 2008 to clarify that impairments in the major life activities of learning, reading, concentrating, and thinking were disabilities, the Congressional drafters of the law commented as follows:

When considering the condition, manner, or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking.

The Committee believes that the comparison of individuals with specific learning disabilities to ‘most people’ is not problematic unto itself, but requires a careful analysis of the method and manner in which an individual’s impairment limits a major life activity. For the majority of the population, the basic mechanics of reading and writing do not pose extraordinary lifelong challenges; rather, recognizing and forming letters and words are effortless, unconscious, automatic processes. Because specific learning disabilities are neurologically based impairments, the process of reading for an individual with a reading disability (e.g. dyslexia) is word by word, and otherwise cumbersome, painful, deliberate and slow throughout life.

How does a person get a testing accommodation?

Most test providers have forms where a request can be made. An accommodation should be provided where the applicant has documentation that demonstrates a consistent history of a diagnosis of a disability, with a recent evaluation by qualified professional who has made a face to face evaluation. The earlier and more consistently an evaluation is provided, the better likelihood of the approval of the accommodation request, however, there are methods to demonstrate the existence of a disability without early evaluations, such as observations by parents or educators and a series of psycho educational testing. Under the new ADA regulations, once a test taker receives accommodations for post secondary school testing, such as the SATs or the ACTs, those accommodations should be presumptively accepted by other testing agencies.

A six year old’s fight to have his seizure dog at school.

 

Disability Independence Group filed a federal lawsuit against the Broward School Board, alleging the district discriminated against Anthony Merchante, a first grader, for imposing too many barriers to bringing his service dog to his elementary school. Anthony Marchante lives with cerebral palsy and is highly prone to seizures. His medium-sized terrier service dog, Stevie, alerts others to oncoming convulsions and helps calm the boy by licking his face. Anthony’s mother, Monica Alboniga said the district at first denied Stevie access to Nob Hill Elementary in Sunrise this year, demanding that she provide liability insurance for the dog and additional vaccinations that did not exist. Stevie was prescribed by Anthony’s neurologist at Miami Children’s Hospital and is part of Anthony’s treatment protocol. In order to be a service animal, the dog must have a temperament that allows it to stay focused on its job. Any dog that would be a direct threat to others would not be a suitable service animal. There cannot be insurance requirements or other conditions that a governmental entity or a public accommodation can place on a service animal. When Anthony’s mom initially brought this matter to the press and requested help and obtained publicity, the school board relented, and allowed Anthony to go to school with his service animal. Then, the School Board shifted tactics and demanded that Monica provide a handler for the dog since the child was not capable of doing so. Monica was required to go school every day just to care for Stevie but she was not allowed to help her son with any other activities. As a service animal, Stevie is trained to stay with Anthony and is constantly tethered to Anthony’s wheelchair, and does not eat or poop during the school day. Since it is legally required under Florida and Federal law, the Broward School Board is allowing the seizure alert and protect dog, but refuses to include the dog in Anthony’s care plan, and maintains that it has no duty to provide a handler for the dog as it disagrees with the medical prescription of Anthony’s neurologist. The Board maintains that caring for the service animal is a “personal service” of which it has no duty. However, as a child with a disability, the school board provides services from feeding to toileting for Anthony, but it considers tethering and untethering a dog from Anthony’s wheelchair is a “personal service” that is more of a burden than feeding or toileting Anthony. Further, even though Stevie was prescribed by Anthony’s neurologist, the School Board contends that this prescribed service is not necessary. However, Anthony’s care plan includes the insertion of a Diastat suppository in the event that Anthony has a seizure, but not the services performed by the dog.
Ms. Alboniga’s suit, filed last month, claims the district is violating the Americans with Disabilities Act and The Rehabilitation Act by implementing excessive procedural hurdles. She’s asking the district to amend its policies and ensure that she and Anthony are not forced to fight this matter throughout the rest of Anthony’s schooling, which may last until he is 23 years old.

 

 

All cases are dependent on many factors that may or may not be present in all cases. As such, results may not be typical. You may not have as beneficial a result.