Options Counseling

1. Options Counseling This document contains general information for educational purposes and should not be construed as legal advice. It is not intended to be a comprehensive statement of the law and may not reflect recent legal developments. If you have specific questions concerning any matter contained in this document or need legal advice, we encourage you to consult with an attorney. Created in 2011 by Disability Rights North Carolina.

2. What Will You Learn Today? • Overview of state and federal law • Motivational Interviewing skills • Self-advocacy skills and how to support an individual’s self-advocacy • Developing effective action plans • How to be an effective Options Counselor

3. Overview of Laws Affecting People with Disabilities

4. Legal Rights

5. Disability Rights Movement • 1841 – Dorothea Dix begins her work on behalf of PWD • 1848 – First residential institution for people with mental retardation in Boston. Beginning of institutionalization of hundreds of thousands. • 1920 – Civilian Vocational Rehabilitation Act • 1933 – FDR, first head of government with severe physical disabilities • 1935 – Social Security Act establishes federal old-age benefits and grants to states for assistance to blind individuals and children with disabilities • 1949 – National Foundation for Cerebral Palsy founded (later UCP) • 1950 – Association for Retarded Children of the US created (later Arc) • 1956 – SSDI created • 1961 – JFK appoints President’s Panel on Mental Retardation

6. Disability Rights Movement • 1962 – President’s Committee on Employment of the Handicapped • 1965 – Autism Society of America founded • 1968 – Architectural Barriers Act mandates access to federal facilities • 1972 – SSI created • 1973 – Rehabilitation Act of 1973 – greatest achievement thus far • 1975 – Education for All Handicapped Children Act (later IDEA) • 1977 – Occupy HEW demonstrations in 10 cities • 1988 – Fair Housing Amendments Act • 1990 – Americans with Disabilities Act • 1999 – Supreme Court rules in Olmstead v LC that the ADA requires public agencies to provide services in the most integrated setting • 2008 – ADA Amendments Act

7. Americans with Disabilities Act of 1990 • The ADA is a federal civil rights law for people with disabilities. • It covers employment, state and local government services, public accommodations, and telecommunications for the deaf. • The ADA is designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same opportunities that are available to persons without disabilities.

8. Structure of the ADA • Title I: Employment • Title II: State and Local Government Services and Programs • Title III: Private Entities Operating Public Accommodations or Commercial Facilities • Title IV: Telecommunications • Title V: Miscellaneous

9. Title I - Employment • Applies to private employers, State and local governments, employment agencies, and labor unions • Must have 15 or more employees • Prohibits discrimination in all employment practices, incl. job application process, hiring, firing, advancement, compensation, training & other terms, conditions, privileges of empl’ment • Requires employer to provide reasonable accommodation when requested • Enforced by EEOC

10. Reasonable Accommodations under the ADA • A reasonable accommodation is any modification or adjustment that will enable a qualified person with a disability the same benefit equal to that of a person without a disability. • Reasonable = Does not fundamentally alter the nature of a service, program, or activity; and is not an undue financial hardship • If requested accommodation is not reasonable, should look to another accommodation that would not be a hardship/fundamental alteration

11. Title II: State and Local Governments • May not refuse to allow a person with a disability to participate in a service, program, or activity because of the disability. • Required to make reasonable accommodations (or “modifications”) to policies, practices and procedures that deny equal access. • Must furnish auxiliary aides and services when necessary to assure effective communication. • May not impose special charges on individuals to cover the costs of necessary measures.

12. ADA Title II (cont’d) • Title II covers access to: • Courts • City Council meeting • Police/Fire departments • City/County programs and activities • Enforced by: • US Dept of Justice (State/local govt) • US Dept of Transportation (transportation)

13. Integration mandate & Olmstead • The “integration mandate” of Title II of the ADA requires public agencies to provide services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” • Olmstead is a US Supreme Court decision affirming that mandate

14. Olmstead (cont’d) • Supreme Court ruled in Olmstead that states are required to place persons with mental disabilities in community settings when • treatment professionals have determined community placement is appropriate, • transfer to a less restrictive setting is not opposed by the affected individual, and • the placement can be reasonably accommodated by the State

15. Title III: Places of Public Accommodation • Public accommodations are any place, building, or outdoor space which a member of the public can enter with or without a fee. • Does not include "private clubs" (those for which membership must be voted on by other members) and operations owned or operated by religious entities, unless the facility rented out for a public function. • Enforced by the US DOJ

16. Categories of Public Accommodations • places of lodging (e.g., hotels, motels) • establishments serving food and drink (e.g., restaurants, bars) • places of exhibition or entertainment (e.g., theaters, stadiums) • places of public gathering (e.g., auditoriums, convention halls) • sale or rental establishments (e.g., bakeries, clothing stores, video stores) • service establishments (e.g., professional offices of doctors, dentists, lawyers, gas stations, funeral parlors) • stations used for public transportation • places of public display or collection (e.g., museums, gardens, galleries) • places of recreation (e.g., parks, zoos) • places of education (e.g., private schools) • social service centers (e.g., homeless shelters, day care centers) • places of exercise or recreation (e.g., gymnasiums, golf courses).

17. Title III Obligations A public accommodation: • cannot deny goods or services because a person has a disability or is associated with a person with a disability, • cannot offer only unequal or separate benefits, AND • must offer services in the most integrated setting possible. Special programs for people with disabilities can still be offered, as long as the programs offered to all other people are still available to those with disabilities.

18. Test your comprehension

19. How many titles does the ADA have? • Does the ADA cover the federal govt? • Must a city council provide an ASL interpreter at every meeting? • Can a city museum offer separate tours for people using AM/FM transmitters? • Must the Moose Lodge adhere to the ADA?

20. Who is protected by the ADA? • A person with • a physical or mental impairment • that substantially limits one or more major life activities; • A person with a record of such an impairment; • A person who is regarded as having such an impairment.

21. Major Life Activities • Seeing • Hearing • Walking • Speaking • Breathing • Learning • Working • Caring for oneself • Performing manual tasks • Standing • Lifting ADAA added: • Bending • Eating • Sleeping • Reading • Concentrating • Thinking • Communicating

22. Duration of Impairment • Temporary non-chronic impairment of short duration, such as a broken bone that is expected to heal normally, usually not substantially limiting • ADAA: Impairments that are episodic or in remissionare disabilities if they would substantially limit a major life activity when active

23. Mitigating Measures ADAA: Cannot consider the following when determining whether someone qualifies as “disabled” entitling them to protection under the ADA: • Medication, medical supplies and equipment, low vision and hearing devices, prosthetics, mobility devices, etc. • Use of assistive technology • Learned behavioral or adaptive neurological modifications NB: Ordinary eye glasses are considered

24. Not protected • An individual who poses a direct threat to the health or safety of others • Must be based on medical or other objective evidence. • Must consider factors such as duration of the risk; nature and severity of the potential harm; and the likelihood of occurrence and the imminence of the potential harm, etc. • Current users of illegal drugs • Pyromania, kleptomania, compulsive gambling

25. Test your Comprehension

26. True/False • If a woman with severe hearing loss can hear well with hearing aids, she is not “disabled” under the ADA. • If a person does not have a mental illness, but her employer thinks that she does, she is protected by the ADA. • A man with near-sightedness wears glasses to correct his vision. He is protected by the ADA.

27. Auxiliary aids & services • A public accommodation must furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. • This includes an obligation to provide effective communication to companions who are individuals with disabilities. • Family member, friend, or associate • Who is an appropriate person with whom the public accommodation should communicate

28. Auxiliary aids & services • ADAA added definition of auxiliary aids and services • Includes “qualified interpreters and other effective methods of making aurally delivered materials available to individuals with hearing impairments”

29. Auxiliary aids & services: Examples • Qualified interpreters on-site or through VRI • Notetakers • Real-time computer-aided transcription services • Exchange of written notes • Telephone handset amplifiers • Telephones compatible with hearing aids • Video text displays • TTYs, captioned phones, and videophones . . . • Or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing.

30. Auxiliary aids & services • A public accommodation should consult with PWD whenever possible to determinate what type of auxiliary aid is needed to ensure effective communication • But the ultimate decision rests with the public accommodation • Shall not require a PWD to bring another individual to interpret for her

31. Test your comprehension • Can a doctor insist that passing notes is an effective means of communicating about an upcoming surgery? • Is VRI preferred to in-person where a doctor is communicating about an upcoming surgery? • Must a school provide auxiliary aid or service for deaf parent at a parent-teacher conference? • If a patient requests an interpreter and then misses an appointment, can she be charged a fee?

32. Service animals • US DOJ has limited the definition of service animal under the ADA to dogs only • In some cases, can also be a miniature horse • No other species of animal

33. Service animals • Dog must be individually trained to do work or perform tasks for the benefit an individual with a disability • Ex: alerting individuals who are deaf or hard of hearing to the presence of people or sounds; interrupting impulsive behaviors • Comfort, companionship, crime deterrent are not work or tasks

34. Service animals Permissible questions: • Is the animal required because of a disability? • What work or task has the animal been trained to perform? • Cannot require proof of training, certification • Cannot require surcharge • Dog/horse must be on harness, leash or other tether unless unable b/c of disability

35. Other Disability Rights Laws

36. Fair Housing Act • Prohibits discrimination in renting, selling, advertising, or imposing terms and conditions of use of property. • Housing provider must provide reasonable accommodations to policies and procedures. • Landlord must allow reasonable modifications at the tenant’s expense. • Follow post-1991 Building Requirements NC State FHA is substantially similar

37. Architectural Barriers Act • Requires access to facilities designed, built, altered, or leased with federal funds • The Access Board develops and maintains accessibility guidelines under this law. • Federal agencies are responsible for ensuring compliance with accessibility guidelines when funding the design, construction, alteration, or leasing of facilities.

38. Air Carrier Access Act • The Air Carrier Access Act prohibits discrimination on the basis of disability in air travel and requires air carriers to accommodate the needs of passengers with disabilities.

39. Rehabilitation Act (Section 504) • Prohibits discrimination in federally funded programs. • “No otherwise qualified person with a disability . . . shall . . . be denied access to, or the benefits of, or be subjected to discrimination under any program or activity provided by any institution receiving federal financial assistance.”

40. Voting Rights Laws • Help America Vote Act (HAVA) -- Requires that every person be able to vote privately and independently • NC State Law • Any voter is entitled to assistance from certain family members • Entitled to assistance from any person of choice if the voter is unable to enter booth w/o assistance or unable to mark ballot w/o assistance because of physical disability, illiteracy or blindness

41. NC’s Persons with Disabilities Protection Act • NC’s version of the ADA • Recently amended to conform with to the ADA Amendments Act • Covers employment, state/government services, and places of public accommodation • Enforced in state court

42. Guardianship • Guardianship is a two-part process: • First, person must be deemed “incompetent” by a clerk • Then, if declared “incompetent,” a guardian is appointed

43. Legal definition of “incompetent” • Lacks sufficient capacity to manage the adult’s own affairs – or – • to make or communicate important decisions concerning the adult’s person, family, or property • whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury or similar cause or condition. G.S. 1101(7)

44. Appointment of guardian • If respondent is adjudicated incompetent, Clerk must appoint a guardian • General guardian • Guardian of the estate • Guardian of the person • Can be person, corporation, or “disinterested” public agency

45. Limited guardianship • Guardianship should be limited when possible, seeking to preserve the opportunity for the person to exercise all those rights that are within his or her comprehension and judgment. • The law encourages the Clerk to fashion a guardianship that is individualized to meet the functional needs of the Respondent.

46. Alternatives to Guardianship • Power of attorney • Health care power of attorney • Advance instruction for MH treatment • Representative payee • Special needs trust • Special bank account • In-home assistance

47. Motivational Interviewing andthe Options Counselor

48. Options Counseling An interactive process where consumers and family members are supported in their deliberations to determine appropriate long-term support choices in the context of the consumer’s needs, preferences, values, and individual circumstances.

49. Using Motivational Interviewing Motivational interviewing is a “collaborative, person-centered form of guiding to elicit and strengthen motivation for change.”

50. Training Goal • You will not be an expert in using the motivational interviewing model at the end of this presentation. • The goal is to give you a framework to use when you are counseling clients in the options counseling program.