Welcome to KNOW YOUR RIGHTS - SAMHSA · Rehabilitation Act of 1973 (“Rehab Act”) Applies to Federal government, Federally funded state/local government activities, and Federally

Welcome to KNOW YOUR RIGHTS: Housing, Health Care, and Other Forms

of

Discrimination Against

People with Alcohol/Drug Histories

WEBINAR

1

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WELCOME to the Know Your Rights Webinar Series!

Presented by:

Today’s presenters are:–

Sally Friedman, Esq.–

Judy Whiting, Esq.

Prepared by the Legal Action Center with support from Partners for Recovery 22

WELCOME to the Know Your Rights Webinar Series! (cont.)

Funded by:

“Partners for Recovery”

initiative of the federal government’s Center for Substance Abuse Treatment



Who is the Legal Action Center?

National non-profit law firm Policy and legal work on anti-discrimination issues affecting people with–

Alcohol or drug histories–

Criminal records or–

HIV/AIDS



Have a Question During this Presentation?

Use the chat feature on the upper right-hand corner of your screens.

Will answer some questions at end, and will try to answer others on website.


Today’s Materials

Know Your Rights: Are You in Recovery from Alcohol or Drug Problems? brochure

This PowerPoint presentation

Download them on http://www.pfr.samhsa.gov or http://www.lac.org. On the LAC site, click both on http://www.lac.org. Click on “Trainings and Technical Assistance,” and then “Alcohol & Drugs / Criminal Record.”You will also see materials distributed at a live training series on the same topic.


http://www.pfr.samhsa.gov/

http://www.lac.org/

http://www.lac.org/


Recording

of this webinar

available at http://www.lac.org


http://www.lac.org/

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Who’s today’s audience?

This training is for . . .

People in treatment or recovery from alcohol or drug problems

Anyone supporting the rights of people with current/past alcoholor drug problems

Landlords, health care providers, government officials, and others who want to comply with anti-discrimination laws

Anyone else interested in the topic.

Prepared by the Legal Action Center with support from Partners for Recovery88

This training is about . . .

Federal laws prohibiting discrimination against people with disabilities and

How these laws protect people with or in recovery from alcohol or drug problems.


This training is about . . .

Laws prohibiting discrimination

against people with disabilities in:

HousingGovernment activities and programsPublic accommodations ––

health care, schools, social service programs.


Save the Date!

Upcoming Webinars:

Medication-Assisted Treatment: Special Anti-Discrimination Issues

New Federal “Parity” Legislation for Insurance Coverage of Addiction Treatment

August 11

August 26


Today’s training objectives

1.

Understand rights under federal anti- discrimination laws.

2.

Understand how to exercise those rights.3.

Know how to help others understand and exercise those rights.


Sounds familiar?

Parts of this webinar are similar to webinar on employment discriminationBut pay close attention – there are differencesDiscussion of what constitutes discrimination in housing, government activities & programs, and public accommodations is all NEW


Part 1

What Is Discrimination?


DISCRIMINATION IS . . .

treating a person less favorably/differently because of his/her STATUS

. . . when the law does not permit it.


DISCRIMINATION IS . . .

Examples of status protected by law:

RaceAgeDisabilityGenderReligion


DISCRIMINATION: ExamplesDISCRIMINATION: Examples

Landlord refuses to rent to someone because that person is in recovery from alcoholism.

Employer refuses to hire someone because they are over 40 years old.


DISCRIMINATION: CASE-BY-CASE DECISION

Must look at each person individually.

May not make generalizations about a person based on status (e.g., based on the mere fact that the person has a disability or is a certain race or religion).


DISCRIMINATION IS NOT

. . .

treating a person less favorably/differently because

of his/her CONDUCT.


It’s not

discrimination to . . .

●

Fire a person who causes an accident at work because she is under the influence of alcohol or drugs.

●

Evict a tenant who started fire while high.


Today’s Presentation/Discussion

Focuses on discrimination in

Housing Gov’t Activities & ProgramsPublic Accommodations


Part 2

Which Laws Prohibit Such Discrimination Against People with Alcohol/Drug Histories?


WHICH LAWS APPLY?

FEDERAL LAWSAmericans with Disabilities Act –

“ADA”

(42 U.S.C. §12101 et seq.)

Applies to State and local government agencies. They are covered by “Title II” of the ADA.

Applies to “Places of Public Accommodation” – private places open to the public (e.g. hospitals, doctors’ offices, day care, hotels). They are covered by “Title III” of the ADA.


FEDERAL LAWS (cont.) WHO MUST FOLLOW THESE LAWS?

Rehabilitation Act of 1973 (“Rehab Act”)

●

Applies to Federal government,

●

Federally funded state/local government activities, and

●

Federally funded

private programs or activities.


WHICH LAWS APPLY?

Fair Housing Act

Applies to most housing providers (landlords), whether private or public

Others who sell or rent housing (brokers)


WHICH LAWS APPLY?

(cont.)

States and cities also have laws prohibiting discrimination.

How do you find out if your State/locality has applicable laws?


WHICH LAWS APPLY?

(cont.)

One way: Contact the State agency that oversees alcohol and drug treatment programs. They might know of local resources.

For a directory of such state agencies, visit http://www.samhsa.gov/Grants/ssadirectory.pdf.


http://www.samhsa.gov/Grants/ssadirectory.pdf

WHICH LAWS APPLY?

(cont.)

Another way: Every State has an agency charged with enforcing State anti-discrimination laws. Some cities have them as well.

To find your State’s or City’s agency, you can:

Do an Internet search typing the name of your state or city and the words “human rights agency”

more…


WHICH LAWS APPLY?

(cont.)

Another way (cont.):

Ask your State’s Attorney General’s office

Ask the local or regional office of the federal agency that enforces federal anti-discrimination laws. Visit http://www.hud.gov (housing discrimination) or http://www.doj.gov (discrimination by public accommodations or local/state government agencies)


http://www.hud.gov/

http://www.doj.gov/

WHICH LAWS APPLY?

(cont.)

Another way (cont.):

The Legal Action Center has compiled information about anti-discrimination laws in a number of states. If your state is listed on the next slide, you can get a summary of the relevant laws on our website.

Go to http://www.lac.org.Click on “Trainings and Technical Assistance,”

“Training Materials”

and then “Alcohol/Drugs & Criminal Record.”


http://www.lac.org/

WHICH LAWS APPLY?

(cont.)

State law information available for:

Alaska Maryland TexasCalifornia MassachusettsColorado MinnesotaConnecticut New MexicoGeorgia New YorkIllinois North CarolinaIndiana OregonKentucky Pennsylvania


Part 3

WHO IS PROTECTED BY THESE LAWS?


Who is Protected?

Proving “disability” under anti-discrimination laws is NOT same as proving “disability” for government benefit programs, like SSI.


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Who is Protected? (cont.)

What is a “disability”?

“a physical or mental impairment that substantially limits one or more major life activities”

a history (“record of”) such an impairment or

being “regarded as” having such an impairment



What is a “disability”?

(cont.)

Court will make an individualized determination. There are no automatic disabilities.

A person has a “disability” only if she or he has an impairment that substantially limits – or once limited – one or more of her or his major life activities, such as caring for self, walking, talking, or working.



Alcoholism –

Joseph

Landlord just learned – Joe in alcoholism treatmentLandlord had problems with former tenant who was alcoholicEvicts Joseph because: “I don’t want another alcoholic tenant”Joseph –

has a “disability”

under these federal

anti-discrimination laws?Prepared by the Legal Action Center with support from Partners for Recovery 36


Likely YES. Alcoholism

generally is a “disability”

regardless of whether it is:

●

Past or

Current

BUT Joseph still must prove that his alcohol abuse/alcoholism substantially limits or limited his major life activities or that his landlord regarded him as having an impairment.



2008 Amendments to the ADA

It’s now easier to prove “disability” as a result of the ADA Amendment Acts of 2008.

This law – which took effect 1/1/09 – clarifies that Congress meant the term “disability” to be interpreted broadly.



Drug abuse/addiction –

Julie:

In recovery for cocaine addiction for 5 yearsIn apartment for 3 years – excellent tenantLandlord just found out she is in recovery Started eviction proceedings because of her past drug addiction.

Is Julie protected by anti-discrimination laws?


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Likely YES.

People with a past drug addiction have a “disability”if –

–

It substantially limited

that person’s major life activities OR

–

The person is regarded

by others as having an impairment.



This includes

people who:

●

have successfully completed drug treatment●

are currently in treatment●

have achieved recovery without treatment



But what about Tammy? She has a cocaine addiction, but her landlord never had any problems with her. Suddenly he learns about her addiction and starts proceedings to evict her.

Do you think Tammy is protected by these federal anti-discrimination laws?



Tammy (cont.)

NO.

Federal laws do not protect individuals who are “currently engaging in the illegal use of drugs.”



What does “illegal use”

mean?

●

Use of Illegal drugs (e.g., heroin, cocaine)●

Unlawful use of controlled substances that can be prescribed:●

no prescription●

fraudulent prescription ●

misuse of legitimately prescribed medications


WHO IS PROTECTED (cont.)?

What does “illegal use”

mean?

●

What if became addicted to Percocet while taking the medication in prescribed manner and prescribed amounts?

●

Not “illegal”

use, so are protected.



When is illegal use of drugs “current”?

No black & white definition.

Question: is the use recent enough so that it is reasonable to assume that it is an ongoing problem?

more…



When is illegal use of drugs “current”?

(cont.)

Many courts have found that it was reasonable to assume that illegal use of drugs was “current”

if:

used within the last few monthsrisk of relapse/pattern of relapse may support

conclusion that use is ongoing problem.



What about relapse?

●

What if relapse after 2 years of recovery? Protected?

No.


Part 4

What RIGHTS Do These Laws Give People With Past or Current Alcohol/Drug Problems in –

HOUSING?


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What rights do these laws give? HOUSING

The 3 Relevant Laws:

Fair Housing Act

Rehabilitation Act – if federally funded housing

ADA (Title II) – when local/state government is providing housing



Protections

Individuals with disabilities may not be

–

Excluded from or denied equal benefits of housing opportunities offered by private entities or local, state, or federal government because of disability



Protections

Prohibits disability-based discrimination against –

Individuals with disabilities and

Persons or agencies associated with people with disabilities (e.g. alcohol and drug treatment programs)



(cont.)

Example –

Yvonne & Robert

Find great apt. Landlord says “it’s yours” if credit report is good.Landlord sees them entering weekly AA meeting.Two days later, landlord says he has rented the apartment to someone else.

Discrimination?



(cont.)

ANSWER –

Yvonne & Robert

Depends on the reason.

Illegal to deny if reason is his belief that they are alcoholics. Federal Fair Housing Act prohibits most landlords from discriminating against prospective tenants on the basis of disability, including being in recovery from addiction.



(cont.)

ANSWER –

Yvonne & Robert

But the landlord may deny them the apartment

if the reason is their conduct–

Cannot show they can afford the rent,History of non-payment in other apartments, or Credit check was bad.



(cont.)

Yvonne and Robert (cont.)

What kind of proof do Yvonne & Robert need?

Direct evidence is good, butMay also prove that reasons offered are not

the real reasons (“pretext”)



(cont.)

Yvonne and Robert (cont.)

What if instead of seeing Yvonne and Robert at the AA meeting, the landlord sees them hanging out on the corner, drinking from a brown paper bag, staggering and shouting rudely at passersby?

Do you think the landlord may legally deny Yvonne and Robert the apartment in those circumstances?



(cont.)

ANSWER –

Yvonne & Robert

Yes.

Federal anti-discrimination laws do not require landlords to rent to anyone whose behavior

indicates they would be a

nuisance.



(cont.)

What about refusing to rent to recovery homes?

Green Valley Recovery Houses wants to rent a private house to use as a recovery home. The landlord refuses to rent to Green Valley because neighbors don’t want “addicts”

around their children.

Do you think the landlord can legally refuse to rent to Green Valley for that reason?



(cont.)


(cont.)

No.

Green Valley is also protected by the Fair Housing Act because of its

association with people with disabilities.



(cont.)


(cont.)

BUT

what if Green Valley had a history of not paying rent in its other

recovery home? Or if the other home was a nuisance?



(cont.)


(cont.)

Not illegal discrimination

to refuse to rent because of tenant’s past conduct.



(cont.)

Stay tuned…..

When local governments try to keep out alcohol/drug programs and recovery homes. Coming up in “zoning” section.Discrimination by recovery home operators –August 11th.


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(cont.)

What about public housing?


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(cont.)

Public housing:

Federal law prohibits housing authorities from leasing to persons if any members of their households:

●

Currently USE DRUGS ILLEGALLY

or

●

Abuse ALCOHOL

or have a pattern of abuse that may threaten health and/or safety of residents.



(cont.)

Public housing (cont.):

People may

live in public housing if they are not using drugs illegally OR their alcohol abuse/pattern of abuse does

not pose a threat to the health and/or safety of residents.



(cont.)


How can individuals with alcohol/drug histories prove that they are not a “threat to the health/safety of others”?

Generally may present evidence of rehabilitation

more…

6767 Prepared by the Legal Action Center with support from Partners for Recovery


(cont.)


Letters from treatment program, employers, schools, vocational training programs, other landlords.

See “How to Gather Evidence of Rehabilitation” at http://www.lac.org. Click on “Free Publications” and then “Criminal Justice Publications.”


http://www.lac.org/


(cont.)


How do public housing authorities learn about someone’s alcohol or drug history?

Criminal background checks. These are covered in Webinar on Criminal Record

issues.


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Part 5

What RIGHTS Do These Laws Give People With Past or Current Alcohol/Drug Problems to be Free of Discrimination by –

GOVERNMENT ACTIVITIES & PROGRAMS?


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What rights do these laws give? GOVERNMENT ACTIVITIES

& PROGRAMS

(cont.)

Government agencies (federal, state and local) may not discriminate against persons with disabilities. This anti-discrimination rule applies to all government programs, services, and activities.


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& PROGRAMS

(cont.)

Examples

of government programs & services that may not discriminate:

●

Public assistance, Medicaid & other government benefits

●

Zoning●

Occupational/professional licensing

●

Job training●

Government health programs



& PROGRAMS

(cont.)

Public Assistance, Medicaid & Other Government Benefits


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& PROGRAMS

(cont.)

Example –

Rachel

6 years in methadone maintenance treatment for heroin addiction Applied for public assistanceWorker asks if has drug or alcohol problem Rachel says she used to, but now is in methadone treatment.

Do you think the public assistance office may legally deny Rachel's application because of her past drug addiction?



& PROGRAMS

(cont.)

ANSWER –

Rachel

No. The ADA (Title II) and the Rehabilitation Act prohibit Federal, State and local government programs from discriminating on the basis of disability. The welfare office, which is part of a state agency, may not deny Rachel benefits because of her past addiction to heroin.



& PROGRAMS

(cont.)

Rachel

But what about the fact that she is taking methadone? May the public assistance office deny her application because she's in an opioid treatment program?



& PROGRAMS

(cont.)

ANSWER –

Rachel

No.

That’s discrimination, just as it would be to deny benefits because someone is in any other form of treatment.



& PROGRAMS

(cont.)

●

HOWEVER, some federal laws limit the rights of people with drug-related convictions:

●

Public assistance & food stamps

●

Student loan suspension



& PROGRAMS

(cont.)

Public assistance & food stamps: 1996 welfare reform law imposed a lifetime ban on federal cash assistance & food stamps for anyone convicted of drug-related felony after 8/22/96.

●States may “opt out,”

and many have.

●

Individual states’

laws are available on Legal Action Center’s “After Prison: Roadblocks to Re-entry”

Report, http://www.lac.org

(link available at bottom of home page, and go to “What’s the Law”)


http://www.lac.org/


& PROGRAMS

(cont.)

Student loan suspension: People convicted of drug sale & possession offenses while enrolled in school

& while receiving federal financial assistance

become ineligible for federal student loans, grants and work assistance unless they complete a treatment program.

●Before 7/1/06, suspension applied regardless of when the conviction occurred –

even if it was years before the student received federal financial assistance. But that changed.



& PROGRAMS

(cont.)

–

Student loan suspension (cont.):

●Applies to convictions for drug sale & possession offenses only; not arrests.

●Length of suspension depends on the conviction and evidence of rehabilitation. Can be overcome upon completion of treatment.

●State-funded programs may have different rules



& PROGRAMS

(cont.)

Zoning Discrimination(“NIMBY”)


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& PROGRAMS

(cont.)

What is zoning discrimination?

Legitimate zoning functions: limit traffic, noise, pollution

Illegitimate uses of zoning powers: exclude individuals with disabilities or the providers that serve them



& PROGRAMS

(cont.)

Example –

Town of Oakville

New Life outpatient drug treatment program wants to locate a new site in mixed use district zoned for counseling programs.

Residents and merchants band together to keep “drug addicts”and “criminals” out of the neighborhood.

Oakville town council passes law to prohibit drug treatment programs from locating in this type of district.



& PROGRAMS

(cont.)

Oakville

(cont.)

Do YOU think the town of Oakville is legitimately exercising its zoning authority?

Or is it violating federal anti-discrimination laws?



& PROGRAMS

(cont.)

Oakville

(cont.)

Illegal discrimination to single out program that serves individuals with disability of alcohol/drug abuse or addiction.



& PROGRAMS

(cont.)

Other examples of zoning discrimination:

Distance requirements particular to alcohol/drug programs

Requiring alcohol/drug programs to apply for special permits not required of others



& PROGRAMS

(cont.)

Occupational & ProfessionalLicensing and Credentialing


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& PROGRAMS

(cont.)

Same anti-discrimination principals apply:

Legal to require applicant to meet generally applicable qualificationsBUT qualified individuals may not be denied licensure because of disabilityRequires individualized consideration



& PROGRAMS

(cont.)

Example –

Suzanne

Applied for nursing license. Terminated from home health aide job 10 years ago due to misconduct caused by her former drug addictionGraduated from nursing schoolIn recovery for 9+ years and solid employment record and other evidence of rehabilitationLicense denied due to lack of “good moral character” based on former addiction

Do YOU think the licensing board’s decision violated federal anti-

discrimination laws?



& PROGRAMS

(cont.)

Suzanne

Yes –

if decision was based on past addiction without regard to evidence of recovery and track record since job termination 10 years earlier.

Licensing agencies must make decisions based on that applicant’s situation and not on generalized assumptions



& PROGRAMS

(cont.)

Alcohol/drug counselor credentials

May state require pre-determined amount of time in recovery for alcohol/drug counselor credential or certificate?

Such flat rules are potentially discriminatoryNo room for individualized evaluation


Part 6

What RIGHTS Do These Laws Give People With Past or Current Alcohol/Drug Problems in –

PLACES OF PUBLIC ACCOMMODATION?


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What rights do these laws give? PUBLIC ACCOMMODATIONS

“Places of public accommodation” –privately owned/operated places open to the public, such as:

–

Schools and universities–

Doctors’

offices & other health care providers and facilities

–

Social service facilities (e.g., day care center, homeless shelter)



(cont.)

Example –

Jane

Jane goes to Downtown Medical Group for a stomach problemDiscloses her current drug problem on the medical historyDowntown Medical Group will not treat her and refers her (and “people like you”) to City-run clinic

Violates Federal anti-discrimination laws?Prepared by the Legal Action Center with support from Partners for Recovery9595


(cont.)

Likely YES.

–

Clear

that the denial of care was because of Jane’s current drug problem.

–

This was not a legitimate reason for referral.

BUT doesn’t Jane’s current illegal use of drugs remove her from the protections of these federal laws?



(cont.)

Not when it comes to health care.

ADA’s general exclusion for individuals currently engaging in the illegal use of drugs does NOT apply to discrimination in the delivery of health care.


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Part 7

Responding to Violations of Your Rights Under

Anti-Discrimination Laws


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REMEDIES

Yvonne and Robert

Remember when Yvonne and Robert were denied an apartment because their landlord found out they attend AA?

Is there anything they can do to exercise their rights without hiring a lawyer?


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REMEDIES

(cont.)

Informal resolution

Always worthwhile to try informal resolution .

Attorney assistance is valuable, but you can do it on your own too.


REMEDIES

(cont.)

Robert & Yvonne can try to EDUCATE the landlord

Violation of anti-discrimination laws is often due to ignorance.

Educating a landlord, or place of public accommodation, can sometimes result in the changes you want.


REMEDIES

(cont.)

NIMBY problems

Zoning discrimination resulting from “not-in-my-backyard” sentiment sometimes can be addressed through negotiations, including threat or legal action.

BUT if that doesn’t work…


REMEDIES

(cont.)

FORMAL CHALLENGE

You can challenge the violation of your rights in other more formal

ways:

1.

File a discrimination complaint with the federal government agency

that is charged

with enforcing the anti-discrimination laws. You do not need a lawyer for this “administrative”

complaint.


REMEDIES

(cont.)

File a complaint with the federal agency:

Housing

–

U.S. Department of Housing and Urban Development (HUD) http://www.hud.gov

Public Accommodations

and Local/State

Government Services & Activities

–

U.S. Department of Justice (DOJ) http://www.usdoj.gov

Federally-funded programs/activities

–

Contact the Federal agency that funds or regulate the program at issue.


http://www.hud.gov/

http://www.usdoj.gov/

REMEDIES

(cont.)

Formal challenge

(cont.)

2.

In most cases, you also can file a discrimination lawsuit

in federal court.

A lawyer is generally critical to success in a lawsuit.


REMEDIES

(cont.)

Do not sleep on your rights!

There are deadlines for filing complaints with government agencies and for lawsuits in court.

Be sure to check on the time limits for filing any complaint – with a government agency or in court.

Time limit for housing complaints filed with HUD is 1 year, and for complaints against state/local governments, filed with DOJ, it is 180 days.


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REMEDIES

(cont.)

There also are deadlines for filing lawsuits (“statute of limitations”).

Be sure to check these too!!


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REMEDIES

(cont.)

Remember!

Your state and city may have additional discrimination laws and procedures to enforce them.

Check with your state/local agency to learn about any time limits.


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HAVE QUESTIONS?

Visit our website. We will post answers to questions submitted during today’s webinar.

Go to http://www.lac.org. Click on “Trainings and Technical Assistance”

and look for the

“training materials”

section.


http://www.lac.org/

WANT MORE INFORMATION?

Visit the websites of:

●

Partners for Recovery

(PFR) http://www.pfr.samhsa.gov

●

Legal Action Center, http://www.lac.org.

–

Both websites contain the Know your Rights materials developed under PFR and other useful information.


http://www.pfr.samhsa.gov/

http://www.lac.org/

Thank you!

Prepared in 2009 by –the Legal Action Center,

under a subcontract with Abt Associates, Partners for Recovery

Initiative of the Center for Substance Abuse Treatment


Documents

Welcome to KNOW YOUR RIGHTS - SAMHSA · Rehabilitation Act of 1973 (“Rehab Act”) Applies to Federal government, Federally funded state/local government activities, and Federally