Vera Institute of Justice Federal Laws and Case Law Impacting DV and SA Organizations March 14, 2017 >>Today we will be discussing federal disability laws and how they impact domestic violence and sexual assault service providers and their programs. We are pleased to bring this to you as part of our 2017 our 2017 End Abuse of People with Disabilities webinar series. We have just a few quick logistical items to go over before we begin today. We'd like your assistance in testing the captioning pod. The captioning pod is located in the bottom left-hand corner of your screen directly below the presentation. The words I am speaking should appear in the captioning pod. If you can see the captioning, please go ahead and raise your virtual hand using the virtual person at the top of your screen. Okay, great. If there is anyone that cannot see the captioning, please send us a message in the Q&A pod. [no audio] >> I'm sorry, everyone. I think we lost our person that was speaking, Shannon. I think she's gone. So if everybody could let us know if you can see the interpreter pod clearly by raising your hands. Looks good. Looks good. Next, in the pod to the right of the presentation you should see our American Sign Language interpreter. If you can't clearly see them or the lighting is too dim to see, please use the Q&A pod to contact us. I don't have the script and I will move us into the main screen and turn it over to Jannette Brickman who is going to be our speaker today. Jannette, I'm going to let you introduce yourself. How does that sound? >> JANNETTE BRICKMAN: That is not a problem. It's no problem at all. Thank you for having me. Can everyone hear me okay? Just a quick sound check. Perfect. Okay. Thanks a lot. Thanks for having me and taking time out of your day to come to the webinar that I'm hoping won't be as dry as maybe the title would suggest. But to give a very quick overview, my name is Jannette. I have been working at Vera since 2010, and prior to that, which may be Jermaine --germane to what all of you have been doing I was a director of a shelter. And I have been a director of a center, too. I am an attorney. I've been --I practiced employment law, which, again, the Americans with Disabilities Act came up quite a bit within that realm, but have since moved on to all domestic relations. I do volunteer my time when I'm not working at Vera at the local services --my local legal services where I do domestic violence custody cases mostly, either in orders of protection or in dissolution of marriage cases. But I've been in the field since 1992 working in domestic violence and sexual assaults, and really happy to share with you some of what I have learned along the way. I do kind of wish looking back when I was the director of a shelter that I had the ability to hear a presentation like this. So I did try to keep in mind what I know my role was and tried to craft this particular presentation in a way that's going to be real useful to you all. This is a primer. This is not in any way, shape or form a full, in-depth discussion about these --this is something that hopefully will give you enough information so that you'll know what questions to ask, all of that kind of stuff, in the future. So if you have a question moving forward, I will probably glance at the Q&A pod periodically. So type your question there or we will have time for questions at the end, but let's get rolling. So these are the laws we are going to be talking about today. First we're going to talk about the Americans with Disabilities Act. We will move into the Rehabilitation Act, which really does mirror the Americans with be disabilities act in many ways but there are some distinctions and so we'll just point those out as we get there. Then the Fair Housing Act, which um is of you may be surprised that that's on here, but for those of you who are in residential services, this could apply, and I say could because it's somewhat up in the air and we'll get to that --what that up in the air piece is when we get to that piece of the presentation. There is definitely overlap among all three of these particular pieces of legislation, but to be very clear, one of these will apply to you and your services. Then a quick note before we get started, these are minimum requirements. We're talking about the floor here, not the ceiling. We'd really like to see you strive more toward --toward more excellence in terms of reach for the ceiling in terms of inclusion and do more than what the law requires. So these are going --this is going to be a discussion about the bear minimum. And also another note, these are federal laws. Your local or state laws may in fact require more than these federal laws, and they often do. So it is not an effort in futility to go and check out what your state and local laws are. They very likely may require more on your end than what we're going to be talking about here, but this is again a nice baseline to start the discussion. And then another quick caveat. You know, don't forget that your role at the end of the day is first and foremost to provide services for someone who has been victimized by violence. I think a lot of times, and I will cop to this myself, back in the day, it was a long time ago, and I hope that I have learned my lesson since, but I think when someone comes in seeking your services and they have a disability, your focus tends to move toward how are we going to handle the disability within our services, and then you sort of forget and your focus moves off the fact they have been victimized, that's what they're there and that's where your focus should still be. Don't let the fact that they are --the fact that they are victims of violence be overlooked by the fact they have a disability. That's just a little caveat as we start to move forward. So let's get into the meat of some of these. This is the Americans with Disabilities Act. I am sure many of you have heard of it. It's been around for a long time. It was passed in 1990, and the purpose is to provide a clear --whoops, sorry, I don't know why that just did that. I didn't touch anything. To provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities. So for those of you who don't spend their free time reading purpose areas of federal legislation, I provided it for you, because that's a pretty clear --I mean, I really like --it's a concise, clear mandate for what this act is designed to do. It's really about integration and access, and as we move forward and we talk about the distinctions, to be very clear here, federal funding does not matter. It does not matter. It is not because you get federal funding. It is not any other reason other than the fact that you are a place of public accommodation, and we're going to be moving into that. But the Americans with Disabilities Act covers a host of things. I used to be an employment lawyer before I was a domestic relations lawyer, and one of the main areas that legislation comes up is discrimination within the Americans with Disabilities Act. I bring this up because oftentimes you are also going to be --the Americans with Disabilities Act will apply to you as an employer. So it started out with 25 employees, if you had 25 employees, but then within two years it quickly moved to 15. So now we're down to 15. If you are a place of employment that has more than 15 employees, the Americans with Disabilities Act applies to you. So I'm only bringing that up as a point of just knowledge that the Americans with Disabilities Act may apply to you in more than one realm. So it also applies --sorry. Gosh, I don't know what's going on with this thing. I'm sorry about that. Government services as well. We'll talk about that only because you all are advocating for victims of victims of domestic violence and sexual assault within government services, I.E. courts, or other government services like snap services or other food type services. So I'll bring that up very briefly so you know as you're advocating what you may be advocating for in terms of the disability. Then the ding-ding-ding piece, places of public accommodation and services provided by private entities. Also called Title III. These are title, 1, II,, II. >> EUFPLT: ', IV and V. Telecommunications is not something you will be concerned about. It's about making services available, and it relates to common carriers like AT&T, Verizon, that kind of thing. Not really anything you need to be aware of, but I would like for you all to know where you fall within the realm of the five titles. And then kind of a catch-all, protection from retaliation. So those are the five titles of Americans with Disabilities Act. Let's move on. to who is protected under the Americans with disabilities. Protect an individual with a disability, and that is a physical or mental impairment that substantially limits one or more major life activities. We're going to talk more about that, we're going to dive into it a little deeper, but --sorry, this thing is having a mind of its own today. I apologize. And then a person who has a history or a record of a disability. So that could be perhaps a survivor of cancer who is now in remission, or a drug addict who is in recovery. So that's someone who has a history or record of a disability. And then a person who is regarded by others as having such a disability. So they may actually have a disability, but it doesn't meet that definition up above that it substantially limits one or more major life activities or they don't have a disability and someone erroneously thinks he or she does. And then this often comes up again. It comes up a lot in employment cases. But drug addiction as well. So a quick note here is that the Americans with Disabilities Act does not protect someone who is currently using illegal drugs. Currently meaning you all, if you're assessing this, having a reasonable belief that they're currently using illegal drugs. So what the --what the test there is is this reasonable belief. If this does come up for you where you're serving someone who you think is currently using illegal drugs, the issue is going to be was your belief about that reasonable? But it does protect someone who is no longer using drugs and is in recovery. So we'll just make that point. Severe alcohol use and alcoholism can be considered a person with a disability. And it also protects a person, I think I mentioned above, who is erroneously regarded as being a drug addict. They go into some case law regarding even guests of folks --this comes up more in the Fair Housing Act --but guests who are erroneously thought to be drug addicts. So it really does try to encompass as many people as possible under this particular definition. Okay? More definitions. What are we talking about in terms of an impairment. This is very broad. Any physiological condition or disorder affecting one or more of the body's systems. It's extremely brought and meant to be extremely broad. A major life activity includes everything from caring for one's self, eating, walking, standing, seeing, hearing, breathing, learning. You can see this is a very broad list. Think of almost anything and it's going to fit. And --when the drafters drafted this particular legislation they emphatically decided it wasn't going to be a list, that it is something extremely broad, should be considered broadly, and then a reasonable accommodation that we're going to get into more, but it's pretty much a modification or adjustment to the typical way in which things are done. So any kind of modification. And reasonable is extremely subjective, and it's very case specific. When it says often oftentimes here, I would say most times. It's very fact based. So this is where it can get a little tough when you're talking about this kind of legislation because it is so very case specific. So Title II, I wanted to touch on it quick --don't forget Title I. We have Title I above us, which is employment, and we really kind of encourage people to be good role models, too, in terms of your hiring practices, your employment practices, so if you have 15-plus or more employees, this does apply to you in an employment realm, but otherwise we're just going to move on. So Title II, size of your entity does not matter. Title II. Number of employees is irrelevant, whether you receive federal funds doesn't matter, state and local gifts --they're just covered, period. Okay? So some domestic violence and sexual assault programs are operated by the state or local government and then they would be directly covered under Title II. But most aren't, so again I'm putting this out here just so that you know based on your advocacy services for clients. There is a lot of information out there about how courts and other legal services, for instance, should make themselves accessible and available to folks with disabilities. So it's just something to consider. It does come up periodically --actually, it comes up probably more often than we would hope in terms of what's afforded people in court hearings and in the actual courthouse itself. Some court houses are quite old and don't have elevators or ramps, and this is when that would become an issue for you all as you advocate. So we're talking --I am so sorry. I don't know this thing keeps going backwards. So unless you're --you're not required to make changes if there is an undue financial and administrative burden to the government building. You are required, however, to make reasonable modifications to policies, practices and procedures where necessary to avoid discrimination. This is going to be very similar to what you're going to find yourselves under as a place of public accommodation. So again a big caveat here is unless they fundamentally alter the nature of the service program or activity being provided. We will get into that as well. One example I can give you really quickly and it came up in our --I work on the supervised visitation initiative, and that came up for us where somebody was asking for a modification to the supervised visitation center which in general --there are lots of facilities --they are locked facilities because they are --they are flight risks or kidnapping risks and all that, and someone wanted an accommodation that they not be locked in. They felt that that was triggering for them in terms of posttraumatic stress disorder. But not locking the doors really fundamentally altered the nature of the service that the supervised visitation center was providing, so they were not required to unlock the door to meet the person's requested accommodation because the accommodation just totally changed the services. So that would be one example that comes to mind on this regard. So there is a question. Let me just glance at it. Could you talk about how domestic violence victims can be afforded rights under the ADA event for temporary trauma-related mental impairments --I think we're going to get to some of that when --if you could hold that question, I hope it's okay if I don't answer it. Later on down the line let's come back to that. But, yeah, victims of domestic violence themselves could be suffering from trauma-related mental impairments and the fact they're temporary does not take them out of the Americans with Disabilities Act, as long as it is meeting the definition at that moment, it does not have to be chronic, it does not have to be permanent. Okay. We'll get to that. Here we are to you all. This is where you all can start paying attention again, if you zoned out and didn't care about the government stuff. But this is you. Title III in terms of public accommodations. What it's really getting at is that people with disability --disabilities can enjoy the full, equal enjoyment of goods, services, facilities, privileges, advantages or recommendations offered by a place of public accommodation. That's the purpose right there. So the goal here is to provide services in the most inclusive and integrated way possible. And you, so we're very clear here, are a place of public accommodation. This definitely applies to you. Doesn't matter if you have two employees. Doesn't matter if you receive public funding. Don't forget. Then the other thing a lot of domestic violence and sexual services are housed within an umbrella organization, a main office. You could have multiple offices. You could have satellite offices. You could have support groups that take place elsewhere off-site, maybe at a public library or whatever it is that you all have your groups, this includes all of it, all of your services, not just the shelter, not just your main office. So support groups, what I have been asked in the past, is, can there be a specialized group? For instance, survivors with cognitive disabilities. Yes, you may offer that, but you cannot mandate it. They must still be allowed to attend the general support group as well. The other piece that sometimes is overlooked is it includes your website. You know, if you have one. It needs to be inclusive and accessible. And what --what surprises a lot of people it can includes events such as fund raisers or other special events. You may have awards ceremonies. You may have events honoring folks in your community. These should be accessible as well. If you're putting it on, if you're sponsoring it, then you're kind of responsible for making it accessible. I think this thing is calming down and actually not slipping ahead on me. I don't know why it's doing that. Now we're going to dive into more of this, but this is really the basics of the ADA on this slide. There should be reasonable modification to policies, practices and procedures, and then there's a requirement for architectural modifications for new and altered buildings. A lot of times people focus on this. This is what they think of as the ADA requirements, is just this architectural piece. But it's so much more. It's really just as much as that first piece about modification to policies, practices and procedures. Effective communication. We're going to dive specifically into that. And then barrier removal in existing buildings, but when it's readily achievable. That's a big piece right there, readily achievable. We're not going to bankrupt anybody by making them do modifications to a building that aren't readily achievable, and what readily achievable means is easy to do without much difficulty or expense. But here's another caveat... your entire budget for your umbrella organization is considered, not just your center or shelter program budget. So if you're part of an overarching umbrella organization, whether they talk about what is readily achievable, easy to do without much difficulty or expense, they are looking at the entire agency budget. So a good tip for the future is to always include an --a line item for ADA modifications in your annual budget. Just a note of --for that in the future. Let's ask, do we have an actual poll, or are we just going to read from this, Shannon? I'm sorry. We do have a polling question. I can start asking --or reading it to you. But let's get you all interacting a little bit here. You have a new resident in your shelter program, and you are reviewing the rules for keeping the shelter clean. I'm sure none of you have any of that. The resident, as disclosed during your intake and orientation process, has a disability that makes it difficult for her to stand for very long periods of time. The last resident who vacated was signed up for the vacuuming chore, and your policy is that new residents simply take over the most recent vacated resident's chore. You have this policy because it avoids negotiations and disagreements over more or less desirable chores. It has worked well for many years, as all disagreements have ceased. So I think anyone who has been the director of a shelter or who works in a shelter can understand this is a big deal, assigning chores. So what may be a reasonable accommodation for this resident? A., nothing. This was an easy policy to enforce and it's worked well for many years with reasonable justification for its existence. B. ask another resident to switch with her. C. give her a pass until the next resident vacates or until a chore comes up that she is able to do. So let's do by way of hands who thinks A., nothing, this is an easy policy to enforce and it works well and has a reasonable justification for its existence? Anyone think A.? Okay. What about B., ask another resident to switch with her? We're getting a lot of hand raises at this point. Okay. Yep, it's climbing. So we have a lot of folks who think B. is a very --it's a good reasonable accommodation. What about giving her a pass until the next resident vacates or until a comes up she is able to do? How many people think that? Okay. So we've got quite a few people raising their hands on that one, too. So nobody agreed that she should be charged with vacuuming when she can't stand for very long periods of time. We don't know how big the shelter is, but most shelters are fairly large and that would seem unreasonable for her. The fact there was a very reasonable justification for the policies --policy's existence --I think B. and C., either one could work in this regard. I think both are reasonable accommodations for this resident who absolutely deserves an accommodation here. So that's just an example of what we're talking about when we're talking about changes to policies and procedures and practices. This was a policy that had been in existence for years, but that doesn't mean it has to be for every single person, and it was a perfectly fine request. Let's go into more policy modification examples. Animals come up a lot as an example when you are talking about policies. Most shelters --more and more are allowing pets to come in, but as we know service animals are not pets. So we're talking about emotional support animals and trained service animals here. Even if other residents are allergic. So there might be some allergies. However, another caveat we are always thinking ahead, what if the allergy itself is so severe that it rises to a level of disability? Then you have a little bit of --maybe a possible different reasonable accommodation for that person with the service animal. But for the most part, there are accommodations that you can make to people bringing in service animals. It's not about fear or discomfort. There could be people who just don't like dogs or animals, and that's not something that we're going to be discussing here. It needs to rise to a level of disability that would keep something like that out. Another thing to note here, emotional support animals that you see and trained service animals. So what does "trained" mean? Trained means any animal who is individually trained to assist a person with a disability. What's missing in that definition you might note is professionally trained. It does not mean professionally trained. It means individually trained. It could be trained by the person him or herself. So just individually trained to meet the needs of that person with that disability. That is a trained service animal. There does not need to be a note from a vet. It doesn't have to have gone through any of those certification processes, none of that. Okay. But you are allowed, as you note on this second point here, minimal inquiry of a disability and need for the animal's presence is allowed. That's okay. You can ask questions. What does this dog assist you with? That's a perfectly fine question to ask. But again, as always, it's not --it's not required if it's --if it fundamentally alters the nature of the program and places an undue burden on the program. So I was trying to think of an example, like why would a dog's --or service dog there might be something like somebody --I think I read where someone had a monkey that was their support animal but that's not going to be covered here. So just as a clarification. Thank you. He so what if you were a shelter for --you were --in service treatment for people with extreme phobias to all animals? That's going to probably fundamentally alter the nature of your program to allow even a service animal in. That would be a very extreme example, and it's a silly example, but it's an example of what we are talking about here in terms of fundamentally altering the nature of a program. Service animals tend not to do that. So it's really something that's going to be on you to make the modifications to make sure that they are allowed in. It's completely their responsibility to do that. Some modifications that we've heard that are pretty effective is you do staggered eating times or putting people in completely separate areas of the house so that they don't have to interact with the a dog. Maybe clean a little bit more. This poor woman who was vacuuming earlier, perhaps she needs to vacuum more often. That kind of stuff to temper some of the effects someone might who have an allergy or aggrade of a dog might have by having a dog in the shelter. Medicine comes up a lot in shelters. I don't know about you all, but for me when I was a director, it came up quite often. Let's also not forget accommodations due to medication needs or the side effects from medication. An example of that might be you closed the kitchen at 10:00 just to keep things easy and uniform and once the kitchen is cleaned we don't open it back up again, but somebody may need access to either food, to take with their medication, or their actual medication, diabetes medication, insulin, is often refrigerated. I think most diabetes medicine is. So think about that. But then also the side effects. If a side effect keeps someone --a side effect of medication is that someone is incredibly drowsy and hard for them to wake up in the morning, you would want to probably consider that in --some shelters have a --shelters have --well, down below here we have a job search requirement. You need to be out of the shelter by such and such a time. You can't stay all day. Well, they might have to. They might be suffering from some effects of medication, and so think about that when you are doing some policy modifications. So we have already kind of discussed chores. Make sure that the chores are something that people with disabilities can handle. Some people who have maybe slight vision impairment, not completely blind or completely blind, you might want to really think about putting them in the kitchen and doing chores there if there are any sharp edges that --you just don't want to put them in danger. A lot of shelters have mandatory participation in certain support programs, and I think at this point when you're dealing with folks with a disability you want to be flexible. So flexibility really is the key on that one. For job search requirements, again, a lot of shelters do have that as part of their programming, and someone with a disability may not be ready, able or it may not even be necessary for them to be searching for a job. They may be adequately funded through various government supports. They may not be physically able. Or they may not be emotionally or mentally able to look for a job yet. So you do want to think about that when you're talking about shelter policies. Personal care attendants. We are going to talk a little about that here. You are not required to provide a personal care attendant. But you are required to modify your policies and procedures that might act to prohibit a personal care attendant from coming into shelter with a person with a disability. So again, unless it's fundamentally alters the nature of the programming, I think an obvious example of that would be if someone’s personal care attendant was their abuser, you are not going to allow that personal care a10 current in because it would fundamentally alter the nature of the programming. But conversely, you also can't deny access to a person due to the lack of a personal care attendant. I think that's a piece that is often missing when people are talking about personal care attendants. So if that does happen to come up for you all where someone is coming into shelter who needs a personal care attendant but doesn't have one, I think you might want to develop relationships with your Independent Living Centers for ideas on that one. And again the other idea, we're talking about this is the floor, not the ceiling, you aren't required to provide a personal care attendant, but think about what kind of shelter you want to be. Is that something that you want to take measures to see if you could? Just some thoughts out there to consider as you think about this stuff. Let me look at some of the questions. I'm sorry, we do have some questions. Sorry. I am a canine handler --someone is saying she is a canine handler for the facility who provides emotional help to the clients. Policy respects religious beliefs to avoid a canine. I think a religious belief might rise to something you would have solid footing on denying that accommodation, but it's not that you can't respect all of that, and it's not that they don't matter. It's what effect does it have on a person with a disability and what accommodation then are you going to be able to offer them? So it might be that you find an accommodation perhaps outside of the shelter. If you would have normally taken that person in without a service animal but will deny them because of the service animal, that's where the --that's where the issue comes to play. So then you just --you can't just outright deny services. Now you're seeking a reasonable accommodation for that person seeking shelter that could include an emergency motel stay, that kind of thing. So what I'm saying is you can't just wash your hands and say, oh, we don't have room or we don't allow dogs. So it's more of the inquiry doesn't end there. It continues. And your responsibility to provide shelter for that person does not, in fact, continue. And so the comment is coming up that Muslims can't be around dogs. Again, if you would have offered that person a space without a dog, without a service animal, it's not that you can't deny because someone who is Muslim is staying in your shelter. It's that the inquiry continues. Your reasonable accommodation requests continue for now the person with the disability and you search for accommodations elsewhere. I hope that makes sense. Okay. Let's move on --hang on. Yeah, the Fair Housing Act. We're going to get to that. People who come in shelter need to be able to care for themselves. How can we shelter people who need a personal care attendant to care for them and don't have that personal care attendant. So I hope I have given you some ideas. Make --get some relationships going with the Independent Living center that's in your area, and it's not that you just three --throw your hands up and say we can't help that person. It's that you continue to find the accommodation that works for everyone. Yes, they may need someone that has to care for them, and you are not required to provide one, but don't you want to? And do you want to then deny service --at the end of the day, you would be denying services to someone who has a disability for their lack of personal care attendant who, again, may be their abuser, and so then what inquiries do you need to keep making so you are still providing services to someone who reached out to you for domestic violence services? And so I think a lot of Independent Living Centers are very amenable to working with shelters that can assist you there. Now we're going to go on to effective communication. So in general, auxiliary aids are not required again if there's an undue burden or a significant difficulty or expense. Even TTY machines, they're not required but highly recommended. They are highly recommended. Interpreters are, again, at your expense. So this is where you probably want to have a line item moving forward in your budgets to provide for interpreters within your shelter. There's always that caveat, unless it's an undue burden or fundamentally alters the nature of the programming --this one is harder to figure out in terms of what that might look like. I wasn't able to find any case law on an interpreter fundamentally altering the nature of the programming, where interpreters come into play, they're often coming in when defendants, either in criminal cases, or protection orders, are challenging the use of interpreters within the court system. But I have not yet been able to find a case where an interpreter being provided for somebody fundamentally alters the nature of the programming. You all may be able to come up with an example, but I flat out could not. The practice is to ask the person with the need what their preferred method of communication is and use that. There are so many ways of providing interpretation services that people are going to use different ones. Some people --like, for instance, we have two going right here. We have American Sign Language and we have closed captioning. So some people may prefer certain methods and so you do want to ask them instead of making the assumption that they prefer one or --one over the other or perhaps there is one you haven't used in the past and you would want to follow up on that and use their preferred method. This is a good question to ask yourself, what are the consequences of miscommunication or misunderstanding the communication in the kind of work that you do? These are people who are looking for services, possibly even advocacy services, possibly even legal services. What are the consequences of them not quite understanding what their rights are and what their --what their choices in moving forward are. It's huge in terms of --the general notion of autonomy in making decisions that they understand all of the avenues in front of them. So I really think the consequences of miscommunication are more dire within the shelter and rape crisis center services than they are in a retail shop where you are just buying an item of clothing. Misunderstanding the price of something is highly different than what we're talking about here. So let's do another polling question. I'm sorry these weren't actually put in as polls but we'll just do our hand raising again. You are doing an intake for a new shelter resident, her name is Miranda, and you are using your standard guide of question to move you through the intake process. You are obtaining a history of the violence that she has experienced and asked her "when was the last time you experienced violence by Dave?" At this point you're unsure if she understands the time element, as you suspect she may have a cognitive disability but you don't know for sure. You want to make sure she understands you, so you ask her "do you understand my question?" She said she understands, so you move on. Is this a good example of effective communication? So how many people say, yes, you sought clarity when you needed it? Raise your hands. Okay. We had a couple people raise their hands. So the second option is, no, you still have no indication if she understands the question. Okay. Quite a few people are raising their hands here. Okay. How many of you are just not sure on this one? Okay. So on this one, you know --I obviously wrote this, but I think that, no, you really still don't have any indication if she understands. Saying yes could be that that's the way they respond to almost every inquiry. Do you understand? Yes. Some people, that's just what they're going to do, whether they understand it or not. It doesn't really do much for really getting at their level of understanding. So let's get to some examples here. When we're talking in general about effective communication, look at your program materials. Are they written in plain language? You know, I come from the legal field, and when we talk about legalese, it can be very challenging, even for lawyers, to understand. So I've always been particularly aware of doing things in plain language. When you describe even advocacy services or the court process, you really want to be able to make sure that things are easily understood. Then during intake, do you make accommodations for people with cognitive disabilities or developmental disabilities? A lot of times people's intake will include such questions as when did this happen? Even at legal services where I volunteer, we often say, "when was the first episode of violence? When was the last episode --most recent episode of violence? And what was the most severe?" That's a typical question that people ask. That's I don't think really all that effective. It's better when you can ask "what was happening around the time of the last incident? Do you remember? What was the weather like?" If you're really questioning whether they're having a time element issue, "was it light outside? Was the television on? What was on the TV?" Sometimes you can narrow down the timing based upon oh, okay, I don't know, "wheel of fortunate" was on the TV. You know that's only at 7:00 p.m. in your area. That really helps you figure out what was going on, what was the weather like, was there snow. And then instead of saying "do you understand", "can you explain to me what we just talked about?" It allows them to relay back to you that you're going to be clear if they're understanding it or not. Someone is suggesting using even --even suggesting that holiday benchmarks such as birthdays help narrow down a time for someone who may not understand well enough. And anything that's got a benchmark to it, like the weather or your birthday or the holiday or something like that I think is a great idea. Yeah. Putting it outside their memory as being the only indicator of when it happened is a great tip here. Thank you for that. So architectural issues, this is something that comes up a lot in the other grant program we work on in terms of supervised visitation centers. The ADA requires removal of architectural barriers and structural communication barriers when they are readily achievable. So we're talking about removal of barriers like stairs and installing a ramp. That's almost always considered readily achievable. Visual fire alarms for people who are Deaf. That's almost always considered readily achievable. But there are priorities that they have come up with that you don't just willy-nilly do barrier removal in any order that you see fit. There are priorities for that. So access to parking areas, public sidewalks and public transportation is a big one. Oftentimes you will see ramps being one of the first things that someone does. Getting dedicated handicapped parking is usually one of the first things. Getting those curb cuts into the sidewalk that allows for easy access to the sidewalk from a parking lot is usually one of the first things that you see people doing. And then access to areas where services are provided. So into the building and out of the building, the ramps we talked about, access to restroom facilities, and you know, any other measures necessary to provide access. So this is the order that you should go in if you are charged with making these particular changes. Let me look at the questions. Sorry. The question going back to interpretation and I'm Saar I didn't see this before, the question was, we've had people who needed an interpreter, but only wanted someone from several counties away to interpret because they were afraid of otherwise being outed as seeking services. Is that a reasonable accommodation? You are charged with paying for the interpreter, but, again, it is something that if they have one that they are having reasons that they don't --maybe --that to me is a safety concern. If their fear of being out relates to their safety, which it sounds like it does, that sounds like a reasonable accommodation to me. Let's go back to architectural issues. Sorry for the hopping around. I am trying to pay attention to the questions, and do this at the same time. So then the architectural issues, you've got these removal of general architectural barriers and structural communication barriers when they're readily achievable, but then the other issue is if you then start altering or remodeling your building, you are now charged with making certain changes to your building, regardless if you had planned to do them or not. So once you start hammering and nailing, you've got some alterations to make if they're necessary. So the accessible entrance --these are order that you want to take them in. Accessible root route to the altered area you are remodeling, at least one accessible restroom. Accessible telephones. Those are becoming less of an issue as I think cell phones are popping up, but we still have office phones, so they need access to those. If you make them accessible to others. Accessible drinking fountains. Then additional accessible elements, maybe like parking. Maybe you didn't have that before and now you're making cheese changes and now you are charged with moving forward with these other changes. I'm looking at the clock. I'm sorry, I'm taking longer than I thought I would. Who you do you know if someone has a disability. What are you able to ask and what do you need to know? Think about it this way? What do you need to know? That they have a disability or accommodation? What we suggest as best practice is that you can ask if someone needs an accommodation, but you need to skit of everyone. So that could become part of your routine screening. Is there any accommodation that you need that we need to know about? You can request information necessary to verify that the person meets the ADA definition of a disability. Describes the needed accommodation and shows the relationship between the person's disability and the need for requested accommodation, but what you don't want to do is send people on these wild chases around town asking for documentation when really the issue is to try to meet them where they're at with minimal effort on their part. You just kind of want to have an integrated accessible place without too much verification duties that you are going to put on them, but the question that was asked earlier, okay, why do you need an interpreter a couple counties away? That's a decent question that kind of goes into this particular point being made here. You're asking for information that's going to more shore up the gap between the accommodation that they're requesting and their disability. So I think that's a really good question here. You can inquire why that person, why --why a few counties away. That's well within your kind of rights. You're not going to be tramping on anybody's rights by asking those questions and following up. So that is the Americans with Disabilities Act in a very quick nutshell. We're going to do so the Rehabilitation Act in an even quicker nutshell because it mirrors the ADA in so many ways. There's a lot of overlap --oops, I think we lost our interpreter. I will pause while that gets back up. Did we lose that for everyone or was that just me? >> Jannette, I believe we lost it for everyone. If everyone could have a moment we're going to work with our interpreters to make sure that they get back online. >> JANNETTE BRICKMAN: There they are. You're back! Okay. Are we good to keep going? Okay. Super. So the Rehab Act is very, very similar, but here's where the differences apply. It only applies to agencies receiving federal funding. So this is where it is different from the Americans with Disabilities Act. But I'm going to guess it is going to be applicable to most of you as you all probably receive a decent amount of federal funding. So just keep that in mind, that this is now two acts that apply to you. And it's all found within Section 504. No qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subject to discrimination under any federally funded program. That's basically the act right there. Here's where there are a few differences. So all federally funded programs and activities must be readily accessible to and usable by people with disabilities even if --here's the big piece --even if make jury structural alterations are needed to achieve accessibility. This is not the readily achievable standard of the ADA. So the even if major structural alterations are needed to achieve accessibility. So this is a little bit of a higher bar to reach. So the question naturally becomes what if you're covered by both? Which a lot of you are going to be. You must meet the Section 504 requirements that we just said, but you wouldn't face any ADA violations unless the modification was also readily achievable and wasn't done. If you're covered by the ADA, you must make these readily achievable modification,, even if the program can be made accessible without architectural modifications. The bottom line is you must meet the program accessibility and readily achievable requirements if you're covered by both Section 504 and the ADA. So that's kind of where we're at there. So that's really it for the re has been act. They're very, very similar. But that's a big distinction right there. Okay. So the Fair Housing Act. This is going to apply to shelter-based --or transitional housing residential programs about that when I said earlier this may or may not apply to um is of the residential programs that are in attendance here, it's really a state-by-state assessment as to whether emergency shelters are covered. And it also could include motels. When I said earlier that an accommodation could be that someone go into an emergency --like if they could not come into shelter and they still had to be accommodated by the shelter, motels use as emergency housing have been found to be included under the Fair Housing Act. There was one Ninth Circuit case, and this is why it's sort of up in the air that said it was not going to assume that all shelters were per se covered. So that's where it's not a done deal that every single emergency shelter is going to be covered under the Fair Housing Act, but quite a few will, and quite a few domestic violence shelters will for reasons we're about to get to. So we're going to cover that here. So the Fair Housing Act was amended in 1988 to protect people with disabilities from discrimination. In essence it means people with disabilities can't be denied access to housing. And, again, as is true with both the Rehab Act and the ADA, people currently engaging in the use of illegal drugs do not get protection from this act. So that's no different in all three, all three are the same. So what are the disabilities covered under the Fair Housing Act? Pretty similar. So developmental disabilities. Again, these are not --it's not an exhaustive list. But we're talking about developmental disabilities like cerebral palsy, down syndrome, physical disabilities like spinal cord injury, loss of move 789, long-term systemic conditions like diabetes, hearted disease, cognitive disabilities, a stroke or brain injury, and he sensory disabilities like blindness or deafness. And another point here is there are often --I'm sorry, forgot to men which this --there are often state fair housing laws as well as just like with the ADA you're going to want to look at those state laws to make sure that you're in compliance with those as well. And the illegal drugs, do not include prescription medication, and this is a federal law, so it is a federal --you're going to be covering marijuana most likely. There are a lot of states now that now have legalized marijuana, I'm sitting in one of them, although I can say I honestly do not partake, but I'm in Colorado, we do have legalized marijuana, but when you are talking about federal laws, you're only referring to the drugs that are considered illegal in the federal realm. So that would include marijuana. So the federal housing act refers to dwellings. So what is a dwelling? A dwelling --this is where some of the shelter-based stuff gets a little murky. But the dwelling is any building or portion designed or intended for occupancy as a residence by one or more families. So these are the things that are specifically considered within the Fair Housing Act when deciding if something is a dwelling or not. The length of stay, the intent to return each night to a particular abode, the amenities included, whether the individual has another current residence that he or she intends to return to. So this is something that's a big piece for domestic violence shelters, because a lot of times domestic violence shelter residents are going to have another residents dense that they left that they're highly unlikely to return to based on their safety concerns. So is there rent payment or terms of occupancy agreement? And how the housing is marketed. And if the primary purpose is treatment, like a drug treatment facility, and the housing is incidental to the program, it may not be a dwelling. So you know, again, this would be an extreme example, but if your shelter-based program is all about intervention strategies and therapeutic programming, but it just so happens to target victims of domestic violence, it may not be a dwelling, but for most emergency shelters that provide shelter for victims of domestic violence, the shelter is the major part of the program. So it really is going to be considered a dwelling for most states and most shelters. So another thing to mention in like --and partly why we're including it here in this presentation is who can be held responsible for violations? And I should tell you making a fair housing violation complaint is pretty easy to do. It's not --you don't need a lawyer to do it. You just file complaint. It's very simple. But the people who can be held responsible for violations are all the parties related to the transaction. All the parties. So that includes the property owner, it includes the nonprofit sponsor, like if you guys don't own your shelter, you guys are still a party to the transaction, and here's something that I don't mean to scare you all with, but the individual staff. So you really want to be on your game when you are talking about fair housing. The investigators and the investigations that take place are neutral, so they're not advocating for the housing or --and they're not advocating for the person who filed the complaint. They really are a very neutral body that simply comes in and investigates whether a Fair Housing Act violation has taken place, and really anyone can complain. Again, it's very easy. So just a caveat there. So requests for accommodation, under the Fair Housing Act, the duty arises when the housing provider has knowledge that a disability exists and that an accommodation or modification may be required. So the request can be verbal, but it must be made by the resident. What we tend to suggest for folks, if it's verbal, that at some point it get committed to writing so that there's --that there is a record of it. And I'm sorry, once again I am seeing a question, is abuse of prescription drugs included in the illegal drug use? No, it is specifically not. You could abuse it. You could have an issue with it. It could even rise to a disability. But the abuse of prescription drugs are specifically not included in that illegal drug use caveat. Thank you. I had that written down but I guess I skipped over it. I'm sorry about that. So the request should also describe the need for the modification or accommodation and requests are really evaluated on a case-by-case basis, but under the Fair Housing Act they've made a point of noting that an undue delay in responding can be a failure to provide accommodation. So that's something to consider. You really do want to make these accommodations --respond to these accommodation requests as soon as you can. So let's do our last polling question and see where we come out. So there's a resident who comes to your shelter with severe posttraumatic stress disorder, readily disclosed to you at the orientation. So it's not a surprise. As her stay continues with you, she comes to you and says her PTSD is being aggravated by the closed in and locked in feeling she has at the shelter. She asks as an accommodation that she be per mid to keep the door opened off the back living room where the residents tend to congregate and watch television. She explains that this will alleviate her fear of being locked in. How many of you think this is a reasonable accommodate? Okay. We've had about 15 or so people raise their hands. How many do not think that this is a reasonable accommodation? Okay. So more people are raising their hands here. This actually came up --again, this is pretty similar actually to the supervised visitation center that --example I gave earlier, but this did come up for me when I was the director of a shelter. We determined again maybe your mileage may vary, as the saying goes, I did not think this was a reasonable accommodation. Part of a shelter and central programming is providing physical safety, and the other residents in that particular case certainly did not feel safe having the door wide open in the back. Like, I mean propped open. Not just unlocked but propped open. Maybe I wasn't clear on that one. So this was an example of something that just isn't going to work. It would really fundamentally alter what you were doing. And probably not reasonable. Okay. Again, under the Fair Housing Act, verification is permitted, but only minimal verification is permitted. So there are a couple of ways of thinking about it. If the disability is obvious or otherwise known and the need for accommodation is clear, you know, you don't need to request verification of a disability or accommodation. You know, I think the obvious example would be a wheelchair user. You're not going to be requesting that someone verify their disability. If a disability is known but the need for accommodation is not clear, you request only the information necessary to evaluate the disability related need for the accommodation. I think we talked a lot about that. Very similar to the Americans with Disabilities Act where you can inquire about how does this service animal --service dog assist you in your disability? What is the actual need here? And if neither the disability nor the accommodation is clear, you can ask for clarification on both. But again you're going to keep it minimum minute pull. The spirit of the law is to remove barriers, not to create them with paperwork. You don't want to send people on wild chases all over the town just to be permitted to come into your shelter, and I don't think any of you would do that anyway, but just as a note. So --one last thing about violations of the Fair Housing Act, people have a year to file a complaint. So I think most shelters, at least that I know of, they tend to keep paperwork for longer than a year, but specific to the Fair Housing Act, you might want to keep intakes and requests for applications or whatever it is that you use, if you have a transitional housing unit that requires an application, if you reject them for housing, I would keep that paperwork for at least a year just to cover yourself. You know, after a year, their complaint window closes and you would be free to get rid of that paperwork. Okay. There's another question about is prohibiting the use of the shelter elevator by those who do not have a disability acceptable? Can we require verification? My gut reaction to this one is you would not want to prohibit the use of a shelter elevator by those who do not have a disability. Because honestly you don't know they don't have a disability. There are so many disabilities that are hidden. It's like that old adage where you just don't approach people with handicap stickers on their car --you know, I have' heard so many people say, I didn't see them in a wheelchair. Why are they using the handicapped parking? Well, you don't know what their disability is. And if the elevator is available to all, it should be available to all, and so requesting that people not use the elevator unless they can show that they have a disability I think --they may not feel comfortable disclosing their disability to you but they do have a disability, and you have an accommodation right in front of you, so I would say that that's --it's not that it's unacceptable. It's just going to put people in a position of having to disclose a disability they may or may not want to when your shelter is equipped to handle their disability. It doesn't seem to me like it would rise to the level of needing a verification. Chime in if anyone disagrees with me on that one, but that's how I would handle it. Okay. So reasonable accommodations here. Again, very similar. Changes made to the policy, program or service that allow the person with a disability to use and enjoy a dwelling, which sort of --it's sort of the opposite that elevator question was sort of an opposite where could you don't have to make any changes. You already have the elevator. So you already have the ability to allow someone to --with a disability to use and enjoy your dwelling. Any physical change to the person's living space or common living area. A really good example of that would be grab bars in the bathrooms or paper towel racks being put down lower in the kitchen, railings installed if need be, and sometimes you can allow people living in your housing to make reasonable a--modifications at their cost if they're requesting it. These are generally for nonemergency shelter type stuff. So that would be more of like a rental unit. If they want to put up a grab bar, they can. I think for shelters where it's an emergency, nonpermanent stay, you would probably want to go ahead and make those changes. I'm running out of time so I'm going to expedite this a little bit. So, again, we have the same kind of reasonable exceptions to policies and practices. We've got the animal policy we talked about earlier, but just to give you some other examples that aren't necessarily disability-focused that the Fair Housing Act has seen with --you know, in terms of accommodations or discrimination policies that you want to be really clear about, and maybe this would help you think through some of the policies that you have, you know, this rule that children may not run in the facility, we've seen that, you know, from a fair housing perspective discriminating against children. A requirement child sitters be at least 18 years of age. I have seen that a lot in domestic violence shelters. It becomes some of what a liability issue for folks, they think of it in that way, but if your --sitters are often under the age of 18. You know, a lot of people use baby-sitters under the age of 18. So that's just another --that's more for like the long-term shelters like transitional housing I think that that would apply to. Having a curfew just for children, they're very clear if the Fair Housing Act that parents are allowed to be parents to their children and they determine bed times. They determine schooling, like below here, not permitting home schooling or the school of choice. So those are just some other examples. I just wanted to give some other non-disability related questions --issues that have come up within the fair housing realm. And then I think this might be wrapping it up. Accommodations are reasonable if it's related to the disability, it's not an undue or undue administrative and financial burden, and it doesn't fundamentally alter the nature of the provider's operations and it doesn't pose a direct threat to the health or safety of others and would not result in substantial physical damage to the property of others. So those are some of the fair housing issues that have come up. Examples of discriminatory practices. Harassment by other residents, I don't about you all, but that has come up for me when I was a director of a shelter. So someone making a discriminatory statement to another resident in your shelter based on either disability or other factor, and you fail to act on that, it could --you could become liable for that. Termination from housing. It's not about discomfort. So this is example recently came up for us at legal services here where someone was evicted from a homeless shelter for urinating on the floor, and the other residents were really turned off by that. You know, for obvious reasons. But the legal services staff decided to take that case on because they --tend of the day, she really was terminated based on a perceived disability. So that's another example. It's really --it's not about discomfort, but if it becomes threatening or harassing themselves or intimidating, then that is something that they can be terminated for. Same thing with the dogs. I should have mentioned, in terms of the dogs for --service animals, if they misbehave, if they --for instance, I have never heard of this happening, but if they attacked another resident or otherwise misbehaved, that is okay to then ask that resident and their dog to leave. And I think the ASL interpreter has frozen. I hope that's not --frozen. I hope that's not for everyone. Looks like it's just me. Sorry. Okay. Then, another, example based on failure to do chores when the disability prevents them from doing so. That has come up in fair housing as well. I'll leave you before we do some questions with some of the resources --these are really great synopsis guides to everything that we've talked about here. I provided the links, but if you want to learn more about this and dive much deeper into this some of the other issues that have come up, I've provided you the ability to do that here. Okay. So I think we have time for more questions? >> Thanks so much, Jannette. So if you have a question about some of the materials that are being --have been presented here, please go ahead and use that Q&A pod, which is to the right of the PowerPoint and type in your question there, and we will read it out loud. Jannette, just going back through some of the questions that came up earlier in the presentation, you mentioned a Ninth Circuit case. Can you repeat the name of that Ninth Circuit case for our participants? >> JANNETTE BRICKMAN: Sure. I didn't mention the actual case, but I will let you know. I just found it. Community housing incorporated versus City of Boise. >> Great. Thank you so much. >> JANNETTE BRICKMAN: If any of you are lawyers and feel like looking it up, it's at 490F 3-D 1041. >> So moving on, so this kind of goes off of what you were kind of discussing in the end related to, I think, connected to staff health and well-being, but if a resident's self-care is exposing others to health risks --risk they cannot be denied shelter. That is a question there. >> JANNETTE BRICKMAN: What would a resident self-care --if you --whoever asked that, if you could clarify like what kind of self-care would pose a risk to another resident. >> If you - >> JANNETTE BRICKMAN: You see what I mean? Like every situation is going to be very much based on the very specific nature of your shelter, your community resources, what you're able to accomplish, and the facts of the situation. So, yeah, go ahead. I'm sorry. >> That's okay. So we have a question about where to access the PowerPoint. To the right of the Q&A pod there are two files, it's our "files for download" pod. You can click on one of those files and I believe it's "understanding the law" and you can click on that file and download the PowerPoint for your use. So we have a question as --coming if in from an RCC shelter. As an RCC shelter we've gotten requests for home-based or phone counseling for access. They are not services we typically offered. Are they considered reasonable accommodation? >> JANNETTE BRICKMAN: It's something they've asked for that would --it sounds like shall, if I'm understanding this correctly, it sounds like they have asked for that as an accommodation. It's not something you typically offer but you have the ability to provide based on their safety concerns, yes, I would think that would be a reasonable accommodation. >> And just to clarify, I apologize for using the short version. An RCC --an RCC is a rape crisis center. I apologize for using that abbreviation on that. So we have some clarification from the --we have some clarification from the question earlier. Do you know what, for this individual, I'm going to pass your contact information along to Jannette because it seems a little bit more in depth and so I am going to let Jannette address you via email about safe health and accommodations. >> JANNETTE BRICKMAN: That's fine. I'm email you back. Yeah, I'll get to you. >> So going back to service animals, it was this individuals understanding an emotional support dogs are not covered under the ADA. Can you clarify that for us? >> JANNETTE BRICKMAN: I have seen emotional support animals covered. >> So I'm going --we have a couple of other experts here on the Vera staff who are going to chime in on this as well because I think this is something that comes up a lot for a lot of groups. But moving on to a couple of other questions - >> JANNETTE BRICKMAN: Okay. So --yeah, someone just reminded me. Not covered under the ADA but covered under the Fair Housing Act. >> Okay. So that's a clarification for everyone. Emotional support animals are not going to be something that is covered under the ADA but will be covered for those of you where the Fair Housing Act applies. We have someone here talking --sharing with everyone else that getting a video phone for --installing videophones for free for Deaf and hard of hearing residents is something easily accessed in your community. So this individual would like to share that email and can share some of that information if there is some sort of national resource you would like to share with us, we are always looking to share great resources that all of I don't you know about. So we only have a couple more minutes. If we did not get to your question, I'm going to tackle these questions --pass these questions on to Jannette as well as some of the other experts we have here on Vera staff and we will make sure to get all of these addressed for you, but I want to thank you all for being such great participants in this webinar today. This is a really important topic, and I also want to thank Jannette for sharing all her knowledge and expertise with us here today. But I wanted to give everyone an opportunity to take our post-webinar survey. If you can go to the pod right below the PowerPoint presentation, click on "understanding the legal framework survey" and that's going to take you to a different screen outside of our webinar, but that is for just a survey for you to be able to give us some feedback, and I would encourage you to take five minutes to complete that for us. We really do rely on your feedback to continue to bring you webinars that are going to meet your needs and give you information that's important to the field. You can also download a record of attendance, and that file is included in the files for download. I will leave this PowerPoint open --or I'll leave the presentation open for a few minutes so you can access all these materials, but they will also be sent out to you in a follow-up email in the next couple of days. So I want to thank you all again for attending. And please join us for future webinars. Have a good afternoon.