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

 

By Matthew Dietz

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

Law and Ordinance Coverage

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

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.

Are Doctors Required to Provide Interpreters for Deaf Patients?

By: Matthew Dietz

I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon’s knife or the chemist’s drug.

Modern Hippocratic Oath

At least once per week, I receive a call from a Deaf person complaining that their doctor will not provide them a sign language interpreter for their visit to the doctor. The doctor insists that the patient should communicate by passing notes back and forth or by trying to lip read. If the Deaf person insists on an interpreter, the doctor demands that the Deaf person pay the costs of the interpreter.

Why is this wrong?

For many persons in the Deaf population, English is not their primary language, American Sign Language is their primary language. The Deaf person’s English ability may be in the Elementary School level. Also, the majority of English speech sounds emanates from the tongue, throat, breath, and are invisible on the lips. Only about 30% of English speech sounds appear on the lips. Approximately 70% of speech reading involves guesswork apart from the actual information received by viewing speech on the mouth. During a discussion on medical information, where the patient is usually nervous and anxious, this type of guesswork leads to misunderstandings, and may place the patient in serious danger. Also, written notes may be acceptable for short and simple conversations, such as asking a question in a store, but not when the information is long, important or complex.

Why are Qualified Interpreters necessary?

Sign Language interpreters are highly experienced professionals that have specialized expertise and training. While proficiency in English and in Sign Language is necessary, language skills alone are not sufficient for an individual to work as a professional interpreter. Becoming an interpreter is a complex process that requires a high degree of linguistic and technical skills. According to ADA Regulations, a qualified interpreter is required to be able to interpret accurately, both expressively and receptively using any specialized vocabulary needed for the communication. While professional certification is not required under the law, an important measure of an interpreter’s proven ability is professional credentials by an accrediting organization such as Registry of Interpreters for the Deaf, Inc. (RID)

Does the Law Require Doctors to provide interpreters?

A doctor’s office is a public accommodation that is required to provide auxiliary aids and services, such as an interpreter for the appointments. It also requires that the doctor provide an interpreter to a companion of a patient that the doctor would normally communicate with during the appointment.

Are there any benefits to providing interpreters for the doctor?

Besides the basic benefit that doctors are able to communicate with their patient, be compassionate and understanding to the Deaf patient’s needs, the Internal Revenue Service provides a “Disabled Access Tax Credit” for 50% of all amounts spent on services for the Deaf, after the first $250.00 is spent, this amounts are in addition to the 50% deduction for the business expense. So if you have several Deaf patients, the tax benefit pays for the price of the interpreter.

When can a Doctor decide not to provide an interpreter?

1. Where the information conveyed is short, simple and not important. If the visit is to provide a flu shot, with not much discussion or conversation, then passing notes may be acceptable; however, if the patient has a pre-existing condition that would cause a side effect from the shot, an interpreter may be required.

2. When providing an interpreter is an “undue burden”. If providing an interpreter for $75 would have a substantial material effect on the overall resources of the doctor’s office. This may be the case if the doctor’s office has a very few patients and can hardly make ends meet. When a doctor has an active medical practice, it does not matter whether the cost of the interpreter exceeds the amount of the doctor’s appointment. (1) (2) (3) (4) (5)

How do you ask for an Interpreter?

1. Ask for the interpreter when you make the appointment.
2. If they say no, then ask to speak to the office manager or the doctor.
3. Ask the office manager or the doctor.
4. If they say no, say that you are deaf and you will not understand if you do not get an interpreter. Tell them that it’s your right under the ADA, and provide them this article or information from the ADA website about medical information.
5. Try to ask for their fax number so you can give them the information.
6. Call before the appointment to make sure than an interpreter will be there.

What to do if the Doctor says no?

1. If the doctor leases space from a medical building that is owned by a hospital, call the hospital’s interpreter services and ask them to provide an interpreter for the doctor’s office. Under the ADA, the person who owns the space where the medical office is located may also be responsible for the accommodation. This is the case where the building owner focuses on having all doctors and medical offices in its building

2. Call up the insurance company.

Most insurance companies receive and administer Medicare policies, especially those that are a part of the Affordable Care Act (a/k/a Obamacare), and if they do, they are not allowed to discriminate in their programs and services under a law called Section 504 of the Rehabilitation Act. Tell them that the doctor on their plan refused to provide an interpreter and you want to see a doctor that will provide an interpreter.

Insurance Companies are not always that helpful.

I asked Kayla, Disability Independence Group’s client concierge, to call up several insurance companies to ask them if they would cover the cost of interpreters if the doctors would not. This is what occurred:

Humana

I called their customer service asked: “If someone is deaf and their doctor cannot give them an interpreter when they ask because the doctor’s insurance doesn’t cover it, will the patient’s insurance cover it?”
*Put on hold while they researched the answer*
They said they weren’t sure what the answer was and maybe sales would know, that maybe it was a benefit of one of the policies.

I asked if they had anything on their website about it, they asked if I had seen anything on the website about it, I said no, and they said there probably isn’t anything on the website then. They said they would connect me to sales. I was put on hold for sales then sales disconnected me. I tried again and I kept on being transferred.

Aetna

I called their main line at 1-800-872-3862 and was directed to sales, specific for the state I lived in and whether your plan is private or employer. I said it was a private plan (like a Medicare plan), and I was told that obtaining an interpreter would depend on your plan if insurance would cover an interpreter. Nothing on their website about it. I also sent the question online in their question/contact form but haven’t heard back yet. Then, when I called, I was transferred over from sales to someone else, went back to “general questions” people. I just kept getting transferred from person to person and everyone said someone else would know better than them…I never got an answer from anyone.

Assurant Health

On their website say they accept TTY calls and to let them know if you need assistance when contacting them in general. Did not see this on the Aetna or Humana websites. Called 1-800-553-7654. Spoke to them and they said “we have Spanish interpreters” even though I explicitly said for someone who is deaf or hearing impaired. They said they do not have that.

Matt, I want to sue my doctor for not providing an interpreter!!!

Anyone can sue. But, the only relief that Title III of Americans with Disabilities Act provides is to force the doctor that you would like to use to provide you with an interpreter. Title III of the ADA does not provide a claim for money damages. This may be different for states other than Florida that have laws that provide more remedies than the ADA, such as California.

So, I would always have concerns about suing a doctor that I would want to see. The same concerns that I would have about being rude to a waiter who is serving my food.

Under the ADA, a doctor cannot refuse to see you if you complained or filed a suit against him, but, again, would you feel comfortable in treating with a doctor that you are suing. If you would go back to the hospital, then, it’s your right!

When can I sue and receive money for discrimination?

The question that is always asked of lawyers! There are two circumstances where damages could be obtained without being required to go back to the doctor that you are suing.

1. If the doctor’s office has over fifteen employees and they accept Medicare or Medicaid, they would need to provide interpreters under the Rehabilitation Act. Under the Rehabilitation Act, you would need to make sure that you asked the doctor and office manager for an interpreter, and if they said no, you told them about your rights, and they still continued to deny you an interpreter.
2. By complaining to the Department of Justice and the Department of Justice brought a case on your behalf against the doctor.

Other Resources.

1. Filing a complaint with the Department of Justice. http://www.ada.gov/filing_complaint.htm
If you are deaf and cannot communicate in English, call up the Department of Justice ADA Information Line at 1-800-514-0301 to schedule an appointment for them to take the complaint by phone. If you file a complaint, the complaint may also be referred to the Key Bridge ADA mediation program, which will give you an opportunity to resolve the case without substantial delay.

2. If the office has over 15 employees or a hospital, you can complain to the Department of Health and Human Services at https://ocrportal.hhs.gov/ocr/smartscreen/main.jsf
If you are deaf and cannot communicate in English, call up the Department of Health and Human Services, at 1-800-368-1019,to schedule an appointment for them to take the complaint by phone

Litigation: When the denial of a reasonable accommodation leads to tragedy

By: Matthew Dietz

Most times when a person requests a reasonable accommodation or a modification because of a disability, the accommodation or modification assists a person to live independently or lessens the effect of a disability. This includes a closer parking space, grab bars in the bathroom, or an assistance animal. However, there are many times when a need for an accommodation is a matter of life and death. In a recent case filed by DIG and Belvin Perry of Morgan & Morgan, the denial of a reasonable accommodation led to Samuel Rosario’s death at his apartment at the Logan Heights Apartments in Sanford, Florida.

Sammy Rosario had four adult children, two boys and two girls, and many grandchildren, but he valued his stubborn independence and insisted on living on his own. Sammy lived at Redding Gardens, a Public Housing Property where only elderly and disabled individuals were admitted. He was admitted to this specific property because he lived with numerous medical conditions, including memory loss, seizure disorder, and mobility impairments.

In October 2011, Orlando Housing Authority (OHA) assisted in the relocation of residents that lived at Redding Gardens, and Sammy was moved by OHA to Logan Heights Apartments, a privately owned, tax credit, multi-family development. Sammy was relocated to a one bedroom apartment on the third story, with access by three flights of stairs. However, on the same day of the move, the OHA Relocation Specialist telephoned Sammy’s daughter, Stephanie Fernandez, to tell her that her father could barely make it to his second floor apartment at Redding Gardens and OHA refused to allow Sammy into the moving truck to the new apartment.

Stephanie frantically searched for her dad and could not find him at either development, so the entire family conducted a dragnet for Sammy Rosario. Sammy Rosario was found lost, delirious and bleeding close to a major highway. An ambulance was called and he was taken to the hospital. Once released, Sammy could not see. He was legally blind. Stephanie called the relocation specialist, informed them of her dad’s condition, his inability to live independently or on the third floor, and requested assistance for her father to live in a first floor apartment and to be allowed to live with an aide. No action was taken on their request.

For the next two years, Sammy, and his daughters Stephanie and Stacie, provided, asked, and pleaded for a first floor apartment and the ability to have a live in aide for Sammy, so he could live as independently as possible. They provided doctors notes, but were given various excuses by OHA, including the lack of adequate funding for relocation.

In the fall of 2012, the Social Security Administration denied Sammy Rosario’s application for Social Security Disability. Because Mr. Rosario’s disability was so obvious, Mr. Rosario appealed the decision. However, notwithstanding the determination of Mr. Rosario’s doctors of his disability, OHA decided that Mr. Rosario was now not considered “disabled”. This was due to a finding of the Social Security Administration that Mr. Rosario was not classified as disabled and Mr. Rosario and his daughters were advised that no accommodation would be provided and that Mr. Rosario was now not even entitled to a rent subsidy based upon his disability.

Stephanie did not accept this determination, reviewed the Department of Housing and Urban Development (HUD) regulations on her own, and advised the housing authority that the denial of an accommodation was contrary to HUDs own regulations, as the HUD regulations specifically permit a finding of disability on factors other than a finding from social security. It just did not make sense as if the Social Security Administration was wrong in its determination, Sammy would be entitled to retroactive payments; however, if the housing authority was wrong, it could not retroactively give Sammy his accommodation he needs to live independently. In August of 2013, Sammy Rosario and Stephanie Fernandez had enough, and they filed a Fair Housing Claim against OHA. Even after the filing, the OHA affirmed their denial, but advised Ms. Fernandez that “Should Mr. Rosario win his appeal to the Social Security Administration’s denial, please contact our office and we will reconsider our decision.”

Social Security reversed its decision and granted Sammy Rosario benefits back to September 2011 – less than three months after the filing of the fair housing complaint – but OHA did not reconsider. Instead, they advised that Ms. Fernandez would need to go through the entire reasonable accommodation process again. Instead of allowing Mr. Rosario the accommodation he needed, the OHA decided to use the accommodation as a negotiating point in the fair housing investigative process instead of immediately providing the necessary accommodation.

On March 19, 2015, Samuel Rosario had an accident where he fell, causing injury to his head and bruising to his eyes. He was admitted into the hospital for nine days, where he received needed physical therapy. Soon after arriving back home on May 29th, 2015, Mr. Rosario was found dead in the kitchen of his apartment. After an investigation and autopsy, it was determined that the cause of Mr. Rosario’s death was an unwitnessed fall, causing head injury. After completing the investigation, the Sanford Police Department determined that Samuel Rosario was injured while experiencing an unwitnessed seizure and was desperately seeking for help. The evidence of the trail of blood led from his bedroom to the bathroom, where there was a considerable amount of blood. The blood trail continued into the kitchen where Samuel Rosario experienced another seizure or fainted and hit his head, which was ultimately determined as the cause of his death.

On August 29, 2014, the Florida Commission on Human Relations determined that there was cause to believe that Samuel Rosario was denied a reasonable accommodation under the Fair Housing Act. However, unlike the reversal of the Social Security Disability determination, the denial of an accommodation cannot be granted retroactively, and Stephanie and her brothers and sister cannot bring their father back.

If Sammy Rosario had a live in aide, he would not have died. He would not have fallen, and if he had fallen, he would not have bled to death alone in his home. Over fifty percent of all fair housing complaints filed against housing providers in the United States are as a result of a denial of a reasonable accommodation or a reasonable modification in a home. Most of these accommodations cost nothing to a provider, yet may mean the difference between living independently and living in an assisted living facility or nursing home, or as in this case, the difference between life and death. For a federally subsidized housing provider, such as the Orlando Housing Authority, the subsidized housing provider has the obligation to pay for and provide a modification to the premises (such as a roll in shower or permanent ramp), or an accommodation by a change in a rule, such as a larger apartment to accommodate a live in aide, or relocation to a first floor apartment.

Disability Independence Group and Morgan & Morgan is pleased to represent the family of Samuel Rosario to ensure that a housing provider cannot ignore the needs of their residents with disabilities, and that accommodations are essential to independent living.

Litigation: When the denial of a reasonable accommodation leads to tragedy

By: Matthew Dietz

Most times when a person requests a reasonable accommodation or a modification because of a disability, the accommodation or modification assists a person to live independently or lessens the effect of a disability. This includes a closer parking space, grab bars in the bathroom, or an assistance animal. However, there are many times when a need for an accommodation is a matter of life and death. In a recent case filed by DIG and Belvin Perry of Morgan & Morgan, the denial of a reasonable accommodation led to Samuel Rosario’s death at his apartment at the Logan Heights Apartments in Sanford, Florida.

Sammy Rosario had four adult children, two boys and two girls, and many grandchildren, but he valued his stubborn independence and insisted on living on his own. Sammy lived at Redding Gardens, a Public Housing Property where only elderly and disabled individuals were admitted. He was admitted to this specific property because he lived with numerous medical conditions, including memory loss, seizure disorder, and mobility impairments.

In October 2011, Orlando Housing Authority (OHA) assisted in the relocation of residents that lived at Redding Gardens, and Sammy was moved by OHA to Logan Heights Apartments, a privately owned, tax credit, multi-family development. Sammy was relocated to a one bedroom apartment on the third story, with access by three flights of stairs. However, on the same day of the move, the OHA Relocation Specialist telephoned Sammy’s daughter, Stephanie Fernandez, to tell her that her father could barely make it to his second floor apartment at Redding Gardens and OHA refused to allow Sammy into the moving truck to the new apartment.

Stephanie frantically searched for her dad and could not find him at either development, so the entire family conducted a dragnet for Sammy Rosario. Sammy Rosario was found lost, delirious and bleeding close to a major highway. An ambulance was called and he was taken to the hospital. Once released, Sammy could not see. He was legally blind. Stephanie called the relocation specialist, informed them of her dad’s condition, his inability to live independently or on the third floor, and requested assistance for her father to live in a first floor apartment and to be allowed to live with an aide. No action was taken on their request.

For the next two years, Sammy, and his daughters Stephanie and Stacie, provided, asked, and pleaded for a first floor apartment and the ability to have a live in aide for Sammy, so he could live as independently as possible. They provided doctors notes, but were given various excuses by OHA, including the lack of adequate funding for relocation.

In the fall of 2012, the Social Security Administration denied Sammy Rosario’s application for Social Security Disability. Because Mr. Rosario’s disability was so obvious, Mr. Rosario appealed the decision. However, notwithstanding the determination of Mr. Rosario’s doctors of his disability, OHA decided that Mr. Rosario was now not considered “disabled”. This was due to a finding of the Social Security Administration that Mr. Rosario was not classified as disabled and Mr. Rosario and his daughters were advised that no accommodation would be provided and that Mr. Rosario was now not even entitled to a rent subsidy based upon his disability.

Stephanie did not accept this determination, reviewed the Department of Housing and Urban Development (HUD) regulations on her own, and advised the housing authority that the denial of an accommodation was contrary to HUDs own regulations, as the HUD regulations specifically permit a finding of disability on factors other than a finding from social security. It just did not make sense as if the Social Security Administration was wrong in its determination, Sammy would be entitled to retroactive payments; however, if the housing authority was wrong, it could not retroactively give Sammy his accommodation he needs to live independently. In August of 2013, Sammy Rosario and Stephanie Fernandez had enough, and they filed a Fair Housing Claim against OHA. Even after the filing, the OHA affirmed their denial, but advised Ms. Fernandez that “Should Mr. Rosario win his appeal to the Social Security Administration’s denial, please contact our office and we will reconsider our decision.”

Social Security reversed its decision and granted Sammy Rosario benefits back to September 2011 – less than three months after the filing of the fair housing complaint – but OHA did not reconsider. Instead, they advised that Ms. Fernandez would need to go through the entire reasonable accommodation process again. Instead of allowing Mr. Rosario the accommodation he needed, the OHA decided to use the accommodation as a negotiating point in the fair housing investigative process instead of immediately providing the necessary accommodation.

On March 19, 2015, Samuel Rosario had an accident where he fell, causing injury to his head and bruising to his eyes. He was admitted into the hospital for nine days, where he received needed physical therapy. Soon after arriving back home on May 29th, 2015, Mr. Rosario was found dead in the kitchen of his apartment. After an investigation and autopsy, it was determined that the cause of Mr. Rosario’s death was an unwitnessed fall, causing head injury. After completing the investigation, the Sanford Police Department determined that Samuel Rosario was injured while experiencing an unwitnessed seizure and was desperately seeking for help. The evidence of the trail of blood led from his bedroom to the bathroom, where there was a considerable amount of blood. The blood trail continued into the kitchen where Samuel Rosario experienced another seizure or fainted and hit his head, which was ultimately determined as the cause of his death.

On August 29, 2014, the Florida Commission on Human Relations determined that there was cause to believe that Samuel Rosario was denied a reasonable accommodation under the Fair Housing Act. However, unlike the reversal of the Social Security Disability determination, the denial of an accommodation cannot be granted retroactively, and Stephanie and her brothers and sister cannot bring their father back.

If Sammy Rosario had a live in aide, he would not have died. He would not have fallen, and if he had fallen, he would not have bled to death alone in his home. Over fifty percent of all fair housing complaints filed against housing providers in the United States are as a result of a denial of a reasonable accommodation or a reasonable modification in a home. Most of these accommodations cost nothing to a provider, yet may mean the difference between living independently and living in an assisted living facility or nursing home, or as in this case, the difference between life and death. For a federally subsidized housing provider, such as the Orlando Housing Authority, the subsidized housing provider has the obligation to pay for and provide a modification to the premises (such as a roll in shower or permanent ramp), or an accommodation by a change in a rule, such as a larger apartment to accommodate a live in aide, or relocation to a first floor apartment.

Disability Independence Group and Morgan & Morgan is pleased to represent the family of Samuel Rosario to ensure that a housing provider cannot ignore the needs of their residents with disabilities, and that accommodations are essential to independent living.

Litigation – Fair Housing Reasonable Accommodations – Hey Mr. Landlord, please can you make one little change so I can live in my home?

Last month, Disability Independence Group filed two cases, one on behalf of a woman who is blind, and another case on behalf of a veteran who had a massive heart attack and needed a simple accommodation.  Instead of allowing a simple and easy accommodation, the landlord decided to find some way to evict them.   Many landlords believe that the terms and conditions of the apartments they rent are not subject to modification – it’s “take it or leave it.”  But the Fair Housing Act requires landlords to make modifications to rules, policies or procedures so that tenants with disabilities can have the same opportunities to live in a home and in an integrated community.

BLIND AND WITHOUT A PATH – REID V. CRYSTAL LAKES

Debra Reid is an elderly woman who became blind as a result of a side effect of a medication for headaches.  For the past five years, she has learned how to become independent, including using a white cane, and she uses the county’s paratransit system to go to areas throughout the city.   Even though the landlord knew that Ms. Reid was blind, they would always give her lease, notices, and other materials in print to sign, and then she would ask her neighbor to read it to her.

Upon using the sidewalk and path of travel, Ms. Reid would use her cane to determine if a car was blocking her path of travel.  Often, vehicles would block her access from her unit to the parking lot where she would have paratransit pick her up.  The neighbors that would park there would yell and would harass Ms. Reid when she exited her home and attempted to find a way to reach the paratransit vehicle.

Ms. Reid went to the property manager for Crystal Lakes and asked her to block the one spot in front of her path of travel so she could get access to the paratransit vehicle.  She even offered to pay to have the space painted so other vehicles would not park in that space.  The employee of Crystal Lakes refused the accommodation and advised Ms. Reid to call the police if neighbors were harassing her about their vehicles.  She did, and still there was no help.

Finally, Ms. Reid contacted Disability Independence Group and Housing Opportunities Project for Excellence for help.  However, upon receipt of assistance, the landlord agreed to provide her with a path of travel but claimed that she had vandalized the vehicles with her white cane when she attempted to get to her car!  In addition, the landlord decided not to renew Ms. Ried’s lease for another year because they claimed to no longer accept her rent subsidy.  Miami-Dade County does not permit landlords to discriminate based upon the renter’s source of income.  As such, while the termination was due to the Ms. Reid’s request for accommodation, the proffered reason by the landlord was also discriminatory.

HEART ATTACK AND NO WAY TO GO HOME – PEREZ v. F.C.D.

Until April 5, 2015, Fabio Perez was an active man and veteran.  He suffered a massive heart attack while in the hospital undergoing a minor procedure and almost died.  His heart was so weak that he had an external defibrillator installed.  He could hardly walk without assistance or an assistive device.

Mr. Perez lived on the second floor of the apartment complex.  When he first moved in, the landlord asked if Mr. Perez could climb stairs, and he advised Mr. Perez that the elevators were only used for moving in and moving out.   The reason why the landlord did not have the elevators operating all the time was because the elevator company wanted to enter an agreement for $500 a month to maintain and repair the elevator and the landlord just did not want to spend the money.

After his heart attack, the landlord went to the ICU to collect his rent, and Mr. Perez was required to give his landlord his ATM card and PIN# so his landlord could withdraw money for the rent. Thereafter, Mr. Perez asked his landlord to make sure the elevators were turned on when he returned.  His landlord said no.  Thereafter, on April 29th, Mr. Perez got a letter from his doctor explaining that he could not use the stairs, and he called his landlord saying that he had a letter to prove he cannot use the stairs and requested that the elevators be turned on.  Again, his landlord said he would not turn on the elevators.

Mr. Perez contacted Disability Independence Group and asked for help.  Matthew Dietz contacted the landlord who assured that the elevator was always working, but when Mr. Perez was discharged from the hospital on May 8^th, the elevator was not working.  The elevator was finally turned on May 13^th.

While he was hospitalized, Mr. Perez hired a housekeeper to clean his house and feed his cat.  However, two days following his return, the landlord went to see Mr. Perez and demanded that he sign a new lease which ended his tenancy within a few months and included new conditions, limitations, and charges.  When Mr. Perez refused to agree, the next day, the landlord inspected the apartment for the first time and brought Mr. Perez’s neighbors to the inspection. The landlord moved and looked underneath furniture and cited Mr. Perez for having an unkempt apartment and for the presence of roaches.

This caused so much stress for Mr. Perez that he was required to go back to the hospital via ambulance.  While he was in the hospital, the landlord commenced eviction proceedings.  DIG is defending Mr. Perez and prosecuting the Fair Housing case on his behalf.

Fair Housing for Persons with Disabilities….What can a housing provider ask you?

 

By: Sharon Langer

At Disability Independence Group, we receive many inquiries from tenants or persons who live in condominiums or neighborhood associations about overly intrusive questions about disabilities, and why the person would need an accommodation because of his or her disability.

The underlying rule is that a person with a disability or a person associated with a person with a disability (such as a child with a disability) has the right to apply for and live in any housing unit regardless of their disability, and are entitled to an accommodation because of their disability. The only exceptions is where the disability poses a direct threat to the community or the accommodation would be a fundamental alteration to the development. When a housing provider rejects a tenant with a disability based on something related to their disability, it has violated the law.

A person with a disability is defined as a person who lives with a mental or physical disability that substantially limits their ability to perform one or more life activities; a person that has a record of the disability; or a person that is considered by others to have a disability. A housing provider may not ask you questions about the nature or extent of a disability when you apply to rent or buy an apartment or house.

Further, a housing provider cannot ask questions about a disability or need for an accommodation if the disability or need for an accommodation is obvious. An example of an obviously reasonable request would be the need of a person who uses a wheelchair or a walker to have a designated accessible parking space by the entrance to the apartment.In some cases a landlord may be able to ask for proof of the disability or proof of the relationship between the disability and the requested accommodation. If the disability is not obvious or the need for an accommodation or modification is not obvious, the landlord may only ask for necessary disability-related information.

A person with a disability may offer verification of their impairment by:

• Offering a finding from the Social Security Administration of Disability
• Offering a doctor, medical provider, peer support group, non-medical service agency or reliable third party’s information about their disability.

Further, for need for a certain accommodation, where the need is not obvious, you should offer a statement from a medical professional.

If you need a structural change at you home (such as grab bars in a bathroom), or even the common areas of a condominium (such as ramping steps, or a pool lift), in most circumstances, you will be responsible for the costs of providing the structural element. However, in some jurisdictions, and in all federally funded apartment complexes, the housing provider would be responsible for the costs in installing the accessible structural element.

If you have any questions, or need more information, please go to our website at http://www.justdigit.org, or call us at (305) 669-2822.