Transforming Our
Work: Federal Laws and
Trauma-Informed,
Accessible Programs for
Survivors with Disabilities
Kelly Miller, J.D.
Idaho Coalition Against Sexual & Domestic
Violence
Presentation Overview
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Transformations
Governmental change
Organizational change
Individual change
Transformations
Transformations (2)
• Governmental Change
• Historical oppression in both fields >antidiscrimination laws
Transformations (3)
• Organizational Change in both disability and
domestic and sexual violence movements
• Language
• Organizations
• Systems
Transformations (4)
• Individual Level Change
• Fear and stereotype > training and
experience in disability issues
• Attitudinal barriers > being present and
aware of labels and not acting on them >
not believing the labels!
Governmental Change
Governmental Change (2)
• Federal Anti-Discrimination Laws
• Eliminate discrimination against survivors of
domestic violence or sexual assault who have a
disability
• Each of the laws provides similar protections
• Both intentional and unintentional discrimination
are against these laws
Federal Anti-Discrimination Laws
Safeguards against discrimination under federal fair
housing & disability rights laws.
• Section 504 of the Rehabilitation Act of 1973. 29
USC § 794
• Americans with Disabilities Act (ADA ), 42 USC §
12101
• Title III Public Accommodation
• Amendments 2008 - broad definition of
disability
• Fair Housing Act (FHA). 42 USC § 3601
Who is protected?
• ADA, FHA, and Section 504
o Individuals with disabilities are protected.
o Definition of disability in all three acts is based on
the definition in Section 504. 29 USC § 705(20).
2008 ADA Amendments
o Protect individuals who do not have a disability but
are treated differently because of their history of
having a disability or because someone believes
that you have a disability.
Disability Defined
• A three-part definition
– “physical or mental impairment that substantially
limits one or more major life activities” of an
individual,
– “record of such impairment,” OR
– being “regarded as having such impairment.”
Disability Defined (2)
• Physical Impairment: (28 CFR 36.104, App. B
at 701-02)
A physiological disorder or condition, cosmetic
disfigurement, or anatomical loss of affecting one or
more of the body systems.
Disability Defined (3)
• Mental Impairment (28 CFR 36.104, App. B at
702):
Any mental or psychological disorder such as:
intellectual disability, organic brain syndrome,
emotional or mental illness, or specific learning
disabilities.
Alcoholism (whether or not in recovery) and former
drug users are considered individuals with
disabilities.
Disability Defined (4)
• Substantially limits one or more life activities
(28 CFR 36.104, App. B at 691):
Major life activity is an activity that an average
person can perform with little or no difficulty. This
includes, but is not limited to: walking, speaking,
breathing, seeing, hearing, learning, caring for
oneself, manual tasks, sitting, standing, or reading.
Disability Defined (5)
• Record of such impairment (29 CFR §
1630.2(k)).
Includes people who have a history of or have been
misclassified as having an impairment defined above.
(28 CFR 36.104, App. B at 692)
Disability Defined (6)
• Regarded as having such impairment:
– Physical or mental impairment that does not
substantially limit major life activities but that is
treated by recipient as being such limitation;
– Physical or mental impairment that substantially
limits major life activities only as a result of the
attitudes of others toward such impairment; OR
– No impairments but is treated as having such
impairment.
Disability Defined (7)
• Association: (28 CFR 36.205, App. B at 704)
• Also protect individuals from discrimination based
on their association with an individual with a
disability.
• For example, a parent may not be
refused services because of the disability
of the child.
Who is not protected?
• Current Illegal Drug Users
• Individuals who currently engage in illegal drug use
and unlawful use of prescription drugs are not
afforded protections of federal laws.
• A provider may ask, but does not have to, if
s/he asks all prospective residents, if they
are currently using illegal drugs or have
been convicted of a crime.
Direct Threat
• A determination that an individual poses a direct
threat must rely on an individualized assessment
that is based on reliable objective evidence.
• The assessment must consider:
(1) the nature, duration, and severity of the risk of injury;
(2) the probability that injury will actually occur; and
(3) whether there are any reasonable accommodations that
will eliminate the direct threat.
Take Home Message
Laws do not allow for exclusion of individuals
based upon fear, speculation, or stereotype
about a particular disability or persons with
disabilities in general.
Organizational Change
Reasonable Accommodations
• Section 504, ADA, and FHA all provide
reasonable accommodations for individuals
with disabilities
• Accommodation is a change, exception or
adjustment to a rule, policy, practice, or
service (written or unwritten)
• HUD DOJ Joint Statement May 17, 2004
Reasonable Accommodations (2)
• Process - oral or written - no magic words
• “I can’t… I’m having trouble…”
• “We can provide reasonable accommodations for
persons with a disability, if you think you are
eligible, we can consider your request.”
Reasonable Accommodations (3)
• Must consider any request and provide it if it
does not change the basic nature of the
program (“fundamental alteration”) or result in
undue financial or administrative burden
• Document information on accommodation
requests and maintain confidentiality
Reasonable Accommodations (4)
• A housing provider/program may not ordinarily
inquire as to the nature and severity of an
individual's disability. 24 CFR 100.202 (FHA).
• If an individual is applying for a unit designed
or designated for individuals with a disability, it
is legal to ask if the applicant qualifies for
such a unit. 24 CFR § 100.200-202.
Reasonable Accommodations (5)
• Disability + need for accommodation readily
apparent = do not ask!
• If a person’s disability is obvious or known to
the provider and if the need for the requested
accommodation is also readily apparent or
known, then the provider may not request any
additional information about the survivor's
disability or the disability-related need for the
accommodation.
Reasonable Accommodations (6)
• If the requester's disability is known or readily
apparent to the provider, but the need for the
accommodation is not readily apparent or
known, the provider may request only
information that is necessary to evaluate the
disability-related need for the accommodation.
Reasonable Accommodations (7)
• In response to a request for a reasonable
accommodation, a housing provider may request
reliable disability-related information that:
(1) is necessary to verify that the person meets the Act’s
definition of disability (not obvious or otherwise known);
(2) describes the needed accommodation; and
(3) shows the relationship between the person’s disability
and the need for the requested accommodation.
HUD DOJ Joint Statement May 17, 2004.
Take Home Message (2)
• Reasonable accommodations should be an
individualized and survivor-centered
interactive process.
• Our work embraces the value of believing
survivors. If a survivor says she/he has a
disability, assume she/he is protected by the
federal disability rights laws.
• Consider active accommodations.
Reasonable Modification
• Section 504, ADA, and FHA all provide
reasonable modifications
• Modification is a structural change to physical
structure - for individuals with disabilities
• Under ADA Modification refers to program policy
• Under FHA Accommodation refers to program policy
• If program receives federal funding – program
must pay for reasonable accommodation
HUD DOJ Joint Statement March 5, 2008
Organizational Change (2)
Transforming Our Organizations
• Physical accessibility
• Programmatic accessibility
• Attitudinal
Physical Accessibility
• Barrier-free information and referral services
• Plan for physically accessible facilities
• Barrier-free sleeping rooms and common
areas
• Visual and auditory alarm systems
• Transportation
• Access to interpreters
• Communication assistance and auxiliary aids
Programmatic Accessibility
Trauma-informed Approach
Strengthen survivors own psychological
capacities to deal with the multiple complex
issues that they face in accessing safety,
recovering from the traumatic effects of
domestic violence and other lifetime abuse, and
rebuilding their lives.
National Center on Domestic Violence,
Trauma, and Mental Health
Trauma-informed Approach (2)
Ensuring that all survivors of domestic violence
have access to advocacy services in an
environment that is inclusive, welcoming, destigmatizing, and non-re-traumatizing.
National Center on Domestic
Violence, Trauma, and Mental Health
Trauma-informed
Accessible Intake
• Ask minimal intake/qualifying questions
• Provide a list of available services - a
welcome packet - to all persons seeking
assistance from the transitional housing
program
Trauma-informed
Accessible Intake (2)
• Ask each individual at intake whether there is
anything that they need in seeking services or
shelter
• Ensure everyone knows about their rights,
including information on accommodations and
modifications for individuals with disabilities
Trauma-informed
Accessible Intake (3)
• Education and training of intake staff on
learning to recognize direct threats and to
NOT deny shelter or services based on
assumptions, stereotypes, or fear
• Have a referral process ready for those
survivors that need emergency services
• Know your referral community
Trauma-informed
Accessible Intake (4)
• Avoid making assumptions or asking
questions about a person based on a
disclosure or your perception that the survivor
has a disability
• Avoid asking whether the survivor might need
a referral to [ ] based on staff perception of
disability
Individuals with a
Mental Health Need
• It may be permissible to ask a person about a
disability after they have been approved for
residency – separate from intake staff and intake
process!
• Only credentialed mental health professionals
should administer a psychiatric screening,
diagnose, counsel, or treat a victim with mental
health issues
• Differentiate advocacy v. counseling
Individuals with a
Mental Health Need (2)
• Stress Management - allow victims to develop
methods for protecting themselves in new
housing environment
• Privacy
• Secure, private sleeping space
• Control sensory stimulation - quiet room,
headphones
National Center on Domestic Violence,
Trauma & Mental Health
Individual with an
Intellectual/Cognitive Disability
• Provide training for staff from Developmental
Disability advocacy community to avoid
stereotyping or making assumptions about a
victim with an intellectual disability
• Identify barriers to accessing services
• Understand dynamics of caregiver abuse
• Safety planning accommodations
Medications
• Do not ask what medications they or their
children are taking during intake
• Do not include the medication question on
application forms for the client or their children
• Sample illegal questions on intake forms:
• Type of medication and dosage
• For what illness is the medication prescribed
Medications and Intake
• Avoid asking if they are missing any
medications
• Consider asking each individual whether there
is anything that they need
• Tell every individual seeking assistance that in your
experience when victims leave an abuser, they
may have to leave important medicines behind
• Ask each individual if are there emergency or
prescription medications that they left at home and
might need help from an advocate in obtaining
Medication Storage
• What are you afraid of?
• Explain your organizational concerns and
relating policies regarding medications and
safety in communal living
• Provide policies and consequences for
violations of policies in writing to residents
Medication Storage (2)
• Provide individual lock boxes in each
sleeping room bolted to the furniture
• Provide a locker with locks for all valuables
in a common area that residents can
access at anytime
• Small refrigerators with locks
• Fanny packs for emergency medications EPI pen, diabetes, or heart medicine
Medication Effects
• Consider the effects of medications and any
requirements of communal living - dizziness,
lethargy, anxiety, headaches, nausea
• Accommodation!
• Effects may require:
• Privacy
• Sleep
• Special dietary needs
Federal Laws and
Illegal Drug Use
• FHA and ADA does offer protections to persons
who are recovering from substance abuse
• FHA does not offer protections to person currently
engaging in illegal use of controlled substances
• Can ask if survivor is currently using illegal drugs,
but only if you ask it of everyone!
• Consider the environment created by random
drug testing . Just don’t do it!
Service Animals
• Beginning on March 15, 2011, generally only trained
dogs are recognized as service animals under Titles II
and III of the ADA.
• Dog has to be trained to perform tasks that mitigate
the effects of a physical or mental disability
• Emotional support only not recognized under ADA.
However, emotional support animals still recognized
under the Fair Housing Act
Service Animals –
Mental Health Tasks
• Grounding – involves “recognition and response” to
avoid a psychiatric episode
• Calming a person who suffers from panic attacks.
• Reminding the person to take medication.
• Performing safety checks or room searches for
persons with PTSD.
• Sources: Psychiatric Service Dog Society
(PSDS) URL: “www.psychdog.org”; Official
Commentary to ADA Regs.
Service Animal
• General. A public entity shall modify its policies,
practices, or procedures to permit the use of
service animals by an individual with a disability.
• New ADA Regulations on Service
Animals, 28 C.F.R. Part 35.136(a)
Service Animal (2)
• A public entity may ask an individual with a
disability to remove a service animal if:
– The animal is out of control and the animal’s handler
does not take effective action to control it; or
– The animal is not housebroken. (cannot remove the
animal that has a toileting accident due to illness or
accident).
28 C.F.R. 35.136(b)
Service Animal (3)
• Must be under handler’s control and have a harness,
leash, or other tether (unless the handler is unable
because of a disability to use these, or the use of
these would interfere with the service animal’s safe,
effective performance of work or tasks).
28 C.F.R. 35.136(d)
• Service animal/no harness must be under the
handler’s control by voice, signals, or other effective
means.
28 C.F.R. 35.136(d)
Service Animal (4)
• A public entity shall not ask about the nature or
extent of a person’s disability.
• A public entity may (but remember you don’t
have to!) ask two questions:
– Is the service animal required because of a disability?
– What work or task has the service animal been
trained to perform?
28 C.F.R. 35.136(f)
Service Animal (5)
• You cannot require documentation or proof that the
animal has been certified, trained, or licensed as a
service animal.
• You cannot make inquiries about a service animal
when it is “readily apparent” that an animal is trained
to do work or perform tasks for a person with a
disability.
28 C.F.R. 35.136(f)
Service Animal (6)
• Persons with disabilities shall be permitted to
take their service animals in all areas of the
school’s facilities where other students and
members of the public are allowed to go.
28 C.F.R. 35.136(g)
Service Animal (7)
Our work embraces the value of believing
survivors. If a survivor says s/he has a disability,
assume s/he is protected by disability rights laws.
Beyond the Federal Laws
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Welcoming Environment
Assessment of Barriers
Staff & Board Development and Leadership
Organizational Practices and Culture
Policies and Governing Documents
Community Partnerships & Linkages
Individual Behavior Change
Change
If we are to create change with integrity,
we must be willing to acknowledge our
own attitudinal barriers.
We must recognize and consciously
resist acting on fear, speculation,
assumptions, or stereotypes.
What can you do?
Maya Angelo
“I’ve learned that people will forget
what you said, people will forget what
you did, but people will never forget
how you made them feel.”
Maya Angelo
Action Steps
• Identify two changes you can make to change
your individual behavior
• Be an influencer! Identify two changes your
agency can take to improve trauma-informed,
safe and accessible services and programs in
your community
• Increase your awareness and be conscious of
labels and fear based on assumptions
Contact Information
Kelly Miller, J.D., Executive Director
Idaho Coalition Against Sexual & Domestic
Violence
300 E. Mallard Drive, Suite 130
Boise, Idaho 83706
(208) 384-0419, ext. 306
kelly@engagingvoices.org
Disclaimer
This presentation contains references to several
laws relating to accessibility under federal antidiscrimination laws. It is not meant to be a
complete review of the applicable laws. It is written
for non-lawyers and is not intended to provide
specific legal advice. Laws change over time, so if
you want legal information for a specific situation,
consult an attorney.