Cheers to 20 years!

2002-2022

The darkest hour is just before the dawn.

For almost 100 years, the U.S. Constitution has guaranteed that there are liberty interests that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” For persons with disabilities, the fundamental freedom of bodily autonomy and community inclusion has been deeply wounded over the past month. Over the last month, the Supreme Court has removed the teeth from laws that protect women and persons from disabilities from discrimination by eliminating any damage remedy for emotional harms. In addition, the Court also emitted a preview of a decision that will reduce the choices of a person to regulate their own healthcare decisions. For the disability community, this interest in bodily autonomy had been a long and hard-fought battle that continues to this day. Only in 1927, the Supreme Court in Buck v. Bell, permitted the sterilization of a woman who may have had a disability, stating that “[t]hree generations of imbeciles are enough.”

However, I do have hope in one day where, instead of these ideals being traditional liberty interests as interpreted by court, these liberty interests are codified in a true civil rights law that enumerates the right to privacy, the freedom of bodily autonomy and provides a remedy against the infringement of these rights.

Work Hard Dream Big

We will add another section next month.

Over the last twenty years, we have focused on many important elements of community living for persons with disabilities.

Over the next year, I will reflect on each one of these issues and the progress that we have made in the past twenty years.

• Voting – Ensuring accessible voting as well as outreach into the disability community.

• Housing – Ensuring accessible multi-family housing and ensuring that accommodations are provided to ensure that persons with disabilities could use and enjoy their homes like anyone else.

• Safety – Providing communication tools and training to prevent harm to persons with intellectual or developmental disabilities when encountering first responders.

• Effective Communication – Defining effective and equal communication access for the Deaf and Hard of Hearing and ensuring that medical needs are met, and employment opportunities are maintained.

• Freedom of Choice – Providing the ability to have the right to control one’s future is an issue in which all persons have a right, and is often denied to persons with disabilities. This includes protecting the rights of parents with disabilities to have and raise children throughout the dependency process, in addition to ensuring freedom from guardianship services whenever possible.

• Institutionalization and Medical services – Forced the closure of nursing homes that serve medically fragile children by ensuring provision of adequate services in homes.

• Animals for Persons with Disabilities – The choice of what to do to assist a person with a disability is that person’s choice, and animals have been used to assist persons with disabilities for years, and it is only growing.

• Education access – All persons are entitled to an equal access to an education. This includes a program to ensure an adequate education, or appropriate accommodations that measure each person’s intelligence, instead of disability. 

• Expanding Disability Inclusion in the Legal Profession – Ensuring that, as a profession, the doors to the courthouse are open to all persons with disabilities, and that persons with disability who want to be lawyers are given a fair opportunity to do so.

• Public Accommodations – People with disabilities have the right to physical access and freedom from unduly restrictive qualification rules so everyone has the right to equal use and enjoyment of all places of public accommodation. 

On April 28, 2022, the United States Supreme Court, in Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562 (2022), found that damages are unavailable for discrimination without a physical injury in all federal disability laws (such as the ADA and Section 504), and some sex and raced based discrimination laws. As a result of this decision, and the lack of development of Florida state and local remedies, most cases involving the day to day lives of persons with disabilities will not be able to be brought.

This decision overturned almost thirteen years of caselaw in the 11^th Circuit (Florida, Alabama and Georgia) as well as in most courts across the United States by finding that in certain civil rights statutes that are premised on the receipt of federal financial assistance, damages for mental pain and suffering that are not a result of a physical injury are not compensable. Now, unless a claim for disability discrimination results in a physical injury or the victim suffered some actual monetary damages, there will be no claim for any damages in federal court. However, even if there is a claim for actual damages, a victim still has a high hurdle before even actual damages can be obtained. In order to get damages, the victim must establish that a key decisionmaker had knowledge of the protected rights, and notwithstanding that knowledge chose to discriminate.

In 2007, my client, Annette Sheely, prevailed in a case which permitted damages for psychological harm as a result of discrimination when she wanted to accompany her son – with her service animal – into the waiting area of an MRI facility.[i] Since Ms. Sheely’s case, I have handled over 20 reported cases that have upheld or involved this ability to receive damages, and dozens of others that were not published.[ii] In addition to my cases, there have been thousands of other cases that have relief on these cases which had set the standard for receiving damages under Section 504 and the ADA.

However, last week the Supreme Court had disagreed with this line of cases. For Section 504 of the Rehabilitation Act and laws that rely on the interpretation of Section 504 (like the ADA), Congress used its power under the Spending Clause of the U.S. Constitution to give them the authority to make these laws. Under the Spending Clause, a court must interpret the damages in the same way as a contract would be interpreted. Prior to the Supreme Court decision, most courts ruled that emotional harm from discrimination were foreseeable damages if discrimination occurred and the contact was breached. The Supreme Court disagreed and found that emotional harm was not foreseeable. I believe that this is incorrect. Emotional damages are the main and expected injury from discriminatory behavior, and as such, it is foreseeable. Now, the only remedy would be to change the law and specify that damages are available.

What claims still exist for victims of disability discrimination?

Will these claims for disability discrimination in public accommodations or governmental facilities be brought?

What about other claims that can be used in addition to Section 504 or Title II of the ADA?

What can we do if we would like to bring a case?

Read the entire article here

On May 16, 2022, the parents who were plaintiffs in the Hayes v. DeSantis case were required to dismiss their case because the science has advanced to the point where it was clear that any court would not require the state or a school district to require other children to be masked, or teachers to be immunized. Due to the existence of vaccines, boosters and the use of masks, the risk of contracting COVID-19 is minimized, and if one of these children did contract COVID-19, the risk of death or serious injury is rare.

However, in August of 2021, parents with children who were immunocompromised were placed in a dilemma because of political dogma. They were advised that they would be required to place their children in public school and because of other’s convenience, they would be subject to a virus that would likely be fatal to each of the children. This was not an acceptable risk for any parent of a child who has a disability.

Because of this choice between attendance at school and safety, nine parents decided to sue on behalf of their children who were between 5 and 11 years old and had disabilities that caused them to be immunocompromised. Under the Americans with Disabilities Act, all persons with disabilities are entitled to the equal use and enjoyment of all programs and services of governmental entities, unless inclusion would result in an undue administrative or financial burden. The convenience of others would never qualify as an undue burden.

These parents have consistently ensured that their children were protected to the utmost, from using masks, social distancing, proper ventilation, and now that vaccines are available, all have been vaccinated, and, due to their immunocompromised state, are eligible for an additional dose 28 days after their second dose. As such, nine months following the filing of the suit and advances in protection, the question is what the risk of is becoming ill with a COVID-19 variant if these children continue with all of these methods of protection.

On March 30, the New England Journal of Medicine published an article that contained a study[1] of the vaccine’s effectiveness for children from 5 to 11 years old in January and February 2022, and for adolescents between 12 to 18 from July 1, 2021, to February 17, 2022. The study included 1185 hospitalized case patients with Covid-19 and 1627 controls without Covid-19 at 31 hospitals in 23 states. Approximately 75% of the participants in this study had at least one underlying medical condition.

In the study, children 5-11 had only recently been authorized to receive the vaccine and on average had been vaccinated one month earlier, and in this one-month span, the risk of hospitalization for Covid-19 during the period of Omicron decreased by 68% in comparison to children not vaccinated. For adolescents, a booster increases the effectiveness against hospitalization, and children under 12 should have that same effect.  Pfizer contents that the booster for children 5 to 11 leads to a sixfold increase in antibodies, and in a smaller sub-analysis demonstrated a 36-fold increase in antibodies against the Omicron strain.[2] While the vaccine is far from a magic bullet for these children that guarantees safety, the combination of the vaccine, booster, and other precautions minimizes possible risks.

For children who are unvaccinated, the situation continues to be dire. In the New England Journal of Medicine report, 90% of the children from 5 to 11 with critical Covid 19 in the hospital were unvaccinated.

The American Association of Pediatrics, Florida Chapter, Lisa Gwynn, DO, MBA, MSPH, FAAP said that the vaccine “has been proven to prevent serious illness, hospitalizations and long-term symptoms from COVID-19 in children and adolescents, including those who are otherwise healthy. The evidence is clear that when people are vaccinated, they are significantly less likely to get very sick and need hospital care. There is widespread consensus among medical and public health experts about the life-saving benefits of this vaccine.”[3]

The risk of the children in this case has been lessened because of vaccination and the continued use of protective devices and practices. On the same day that the Federal District Court in Miami dismissed this case, the Eight District Court of Appeals vacated their stay on a similar ban against mask mandates in Iowa, again because of the change in circumstances.[4]

They will continue to take every precaution that is in their power to do. However, no parent should be put in a position where they need to sue their schools because of a blatant disregard for their child’s health solely because of the direction of the political winds. Most of the school districts that were defendants in this case initially ensured that these vulnerable children would be safe, but each eventually followed the State of Florida’s political mandate. Each of these school districts disregarded the science and potential danger to these children. Each of these school districts maintained that the parents had no right under the law to assert their rights. Each of these school districts failed to implement appropriate safeguards, so these children were adequately protected.  

In this matter, the development of vaccines and boosters are winning the race against the mutations of the COVID-19 pandemic. However, next time, science may lose to the application of bleach, horse medicine, and ultraviolet light treatments, and our schools and state would be willing to sacrifice children and persons with disabilities in a pyrrhic victory for parental rights to avoid inconvenience for their child.

[1] (2022) BNT162b2 Protection against the Omicron Variant in Children and Adolescents. N Engl J Med DOI: 10.1056/NEJMc2205107, found at https://www.nejm.org/doi/full/10.1056/NEJMoa2202826?query=recirc_curatedRelated_article

[2] April 14, 2922 https://www.nbcnews.com/health/health-news/pfizer-says-covid-booster-kids-5-11-ups-antibodies-omicron-rcna24332

[3] https://www.fcaap.org/posts/news/press-releases/fcaap-statement-regarding-the-covid-19-vaccine-and-floridas-children/

[4] Arc of Iowa v. Reynolds, 21-3268, 2022 WL 1529614 (8th Cir. May 16, 2022)

“What mental health needs is more sunlight, more candor, and more unashamed conversation.”

– Glenn Close

Marcus Lemonis, businessman, television personality and philanthropist, recently gave a speech where he discussed mental health in business. He said, “Mental health is one of those things in business that is a ‘secret demon’ because you ultimately don’t show it to anybody. As business owners and as leaders, we want to hide that demon from people, because we don’t want people to think we are less than or weak.” This really resonated with me. I think this is so true, not only in business, but for those of us doing our best to heal from trauma.

It makes me wonder…How many of us suffer in silence? How many of us dealing with trauma, whether it is a physical injury, an emotional ordeal or something else affecting our mental health, wake up every morning, feel the sting of the pain, but still get up, get dressed, put a smile on our face and power through our day, as if nothing is wrong? I imagine that describes many of us. And our mental health is suffering because of it.

For me, suffering from a physical disability as a result of a freak accident almost eight years ago has obviously created a lot of trauma in my life. As I struggle and fight to walk again, I feel the need to constantly portray an image of strength and positivity, even on my weakest days. It’s a coping mechanism for me to seem stronger than I am, happier than I am and not as weak as I really am. And, honestly, it’s exhausting. I don’t want to inconvenience anyone, and I feel like putting on a brave face will ease everyone’s pain around me, including my own struggle. I agree with Marcus Lemonis that often times, admitting we are suffering in silence can make us seem weak or less than. This is especially true for those of us who have experienced extreme trauma. I’ve been rehabbing and in physical therapy for almost eight years now, since my fall and subsequent spinal cord injury. This eventually takes a toll. Physically, of course, but also mentally.

What I am hoping, is that as mental health becomes more of a topic of discussion, including with business leaders like Marcus Lemonis, more light is shed on the importance of all of us being able to share what is really going on in our lives, how difficult these things really are and take the time we need to heal. As more and more people begin to feel comfortable sharing their mental health issues, I can only hope that we all won’t feel the need to suffer in silence any longer.

I read this quote the other day and it truly shook me to my core. “It is absolutely terrifying the kind of deep suffering the happiest looking people are able to hide inside themselves.” I have been sharing videos of my rehab, my physical therapy, my progress, no matter how much I struggle on my social media for several years now, just in the hope that people will see we all struggle in various aspects of our lives. But it helps me too, to share my journey. It helps me share the true nature of just how difficult this process has been for me. And that, in turn, will hopefully ease that “secret demon” Marcus Lemonis refers to, in myself, in all of us, and bring it out to the forefront.

So, I think it’s appropriate to close with this wonderful quote from the late Fred Rogers, “Anything that’s human is mentionable, and anything that is mentionable can be more manageable. When we can talk about our feelings, they become less overwhelming, less upsetting and less scary.” 

May is Mental Health Awareness Month and I want to share some alarming information on the long-term effects of domestic violence on a victim’s mental health and share an approach to healing that we use in our community.

The basic facts on the effects of domestic violence on mental health are the following: 

Domestic violence can cause victims to suffer from serious mental health conditions for years, if not for the rest of their lives.

Such conditions include depression (Arroyo et al., 2017), generalized anxiety disorder (Beck et al., 2014), and high rates of post-traumatic stress disorder (PTSD) (Kastello et al., 2015).

The pervasive effects of PTSD negatively impact victims’ emotional well-being, relationships, livelihoods, and physical health.

Victims of domestic violence who are able to escape their abusers, often deal with negative impacts long after reporting the abuse and leaving the relationship (Maddoux et al., 2017). Those who have children with their abuser often find themselves entangled in a family court system that re-traumatizes them by allowing their abusers to file repeated court orders (Douglas, 2018) and forcing victims into mediation with their abusers.

Victims of domestic violence are often economically impacted. Some victims find it difficult to maintain employment, while others are not able to attain higher paying jobs because of their anxiety levels (Beck et al., 2014).

Mental health professionals now recognize that both adults and children who have experienced domestic violence benefit greatly from what are called trauma-informed practices. This type of help focuses on understanding the specific impacts of trauma associated with domestic violence, and then using specific techniques that work holistically to help victims fully understand the effects their experiences have had on their mental health.

It offers them coping mechanisms to overcome their challenges and helps them recognize their inherent strengths and abilities. Mindfulness-based therapies are also used. These trauma-informed practices prioritize the need for victims to feel not only physically safe but also psychologically safe, empowering victims to feel that they have control over their lives (Goodman et al., 2018).

To be a successful trauma-informed system, all services throughout that system, must be trauma-informed. It means ensuring that all survivors of domestic violence have access to advocacy services in an environment that is inclusive, welcoming, destigmatizing, and non-retraumatizing.

We are fortunate in Miami-Dade County that our Miami Inclusion Alliance Partners all recognize the importance of this approach to helping victims and survivors and have incorporated these principles into their work. It is critical that all members of the safety net for victims uses this approach and that is what we as a community a striving for now. 

Accessibility & Inclusion Resources

Nonprofits and social ventures have the power to advance the equity of people living with disabilities. This initiative serves to connect Miami’s leaders with key accessibility and disability inclusion organizations to increase awareness and cultivate welcoming spaces within Miami’s social impact ecosystem. 

We continue to amplify these collaborations by partnering with local organizations that offer their services and by supporting nonprofits and social ventures in budgeting for these services to welcome individuals of all abilities into their programming.

Here’s what’s on the menu

STIPENDS

SERVICES

TEAM TRAININGS

DIG is always looking for new ways to increase and enhance inclusion to all persons with disabilities. So, we are excited to let you know that we have recently added a new feature to our website. We have added an AI-powered application to complement and improve our user’s experience developed by AccessiBe.  Our view of electronic accessibility is that it must be as accessible to the entire community of persons with disabilities, this includes persons who are blind or print-impaired, deaf, learning disabilities, developmental disabilities, and intellectual disabilities.

What we like about AccessiBe’s application is that it adds features to make our website easier to read and navigate. One example is the ADHD Friendly profile. When this feature is turned on, a bar appears on the screen so that the user can focus on a small section of our website at once and they are not overwhelmed or distracted by all of the other content on the page. The bar can move up and down on the screen while the user is reading the page. We also like the seizure safe profile and the cognitive disability profile.

AccessiBe uses technology to automatically transform our website so that the user can adjust and optimize their experience to meet their individual needs. When the user activates the application, they can choose from several different features including different set accessibility profiles, and further enhance the experience with specific content adjustments, color adjustments, orientation adjustments, and cursor adjustments.

Let us know what you think. 

WIPA program and SSA Beneficiaries with Psychiatric Disabilities

A large portion of beneficiaries who could potentially receive WIPA services are individuals with mental health diagnoses. There is a high rate of unemployment/underemployment of this population.

Social Security Disability Insurance (SSDI) and Social Security Income (SSI) both provide needed financial assistance to many people in the United States who have mental health conditions. The two programs are run by the US Social Security Administration (SSA). SSDI provides monthly income to individuals who are limited in their ability to work because of a physical or mental disability. Currently almost nine million individuals receive SSDI, and as of 2013, 35.2% of recipients qualify for disability based on a mental health condition. 85% of people with Mental Illness want to work but are afraid to lose their disability status and healthcare.

How WIPA can help?

Community Work Incentives Coordinators, CWICs, address employment barriers by educating beneficiaries and their advocates/professionals and supporting the various federal and state work incentives

Counseling beneficiaries to understand in their individual situation

• SSA benefits
• Healthcare
• Housing and work incentives
• Other federal and state benefits and incentives

Community Work incentives Coordinator can provide thorough, timely and accurate information, a variety of benefit scenarios, and facilitate the beneficiary to make informed choices about work, benefits, and financial stability and as a result the SSA beneficiaries with psychiatric disabilities will be able to:

• Develop economic security and the ability to support oneself and/or family
• Develop assets and achieve financial goals and
• Achieve a higher socioeconomic status

If you are one of the many SSDI or SSI disability beneficiaries who want to work, a WIPA project can help you understand the employment supports that are available to you and enable you to make informed choices about work and achieving financial independence. For additional questions please call your local WIPA project at 305 453 3491

Resources:

https://www.nami.org/Learn-More/Public-Policy/Social-Security-Income-(SSI)-and-Social-Security-D#sthash.pbJOrPbS.dpuf

https://www.nami.org/Find-Support/Living-with-a-Mental-Health-Condition/Succeeding-at-Work

https://choosework.ssa.gov/findhelp/

The wallet card is a tool to be used by a teenager or an adult with a disability.

Currently, we have developed cards for persons with Autism Spectrum Disorder (ASD) or intellectual disabilities. 

We have finished our new caregiver card.

You can start ordering them online on our website.

Access The Vote Florida (ATVFL) is a state chapter of AAPD’s REVUP Campaign. REV UP stands for: Register! Educate! Vote! Use your Power!

We will be meeting by Zoom every Friday at 11am. The first Friday of the month will be a full chapter meeting and the other weeks will be committee meetings.

Email Olivia at oliviab@drflorida.org to get on our mailing list.

The chapter is a statewide coalition of organizations and self-advocates that are working to raise awareness about issues that impact persons with disabilities, encourage people with disabilities to participate in the voting process, and educate elected officials on issues important to persons with disabilities.

The video below was created as a virtual presentation for the 2021 Family Cafe.

The video will explain who ATVFL is, what we have done so far, and what we plan to do in the future.

The presentation will encourage self-advocates to join and become involved.

This event is on hold until it is safe to meeting in person again. However, if you are looking for something fun to do, you should check out My Squad. A new program sponsored by the City of Coral Gables. You can text (305) 978-1196 (text preferred) for more information.