Disability Civil Rights Complaint September 21st

Sep 21, 2018 -- Posted by : admin

September 21, 2018

US Department of Homeland Security
Federal Emergency Management Agency
US Department of Health and Human Services
US Department of Justice

Civil Rights Complaint

To Whom It May Concern:

In 2007, the US Department of Justice instructed state and local governments in their ADA Best Practices Tool Kit for State and Local Governments, Chapter 7 thatThe ADA requires people with disabilities to be accommodated in the most integrated setting appropriate to their needs, and the disability-related needs of people who are not medically fragile can typically be met in a mass care shelter. For this reason, people with disabilities should generally be housed with their families, friends, and neighbors in mass care shelters and not be diverted to special needs or medical shelters.” … Special needs and medical shelters are intended to house people who require the type and level of medical care that would ordinarily be provided by trained medical personnel in a nursing home or hospital.”

“The ADA requires emergency managers and shelter operators to accommodate people with disabilities in the most integrated setting appropriate to their needs, which is typically a mass care shelter” … “Local governments and shelter operators may not make eligibility for mass care shelters dependent on a person’s ability to bring his or her own personal care attendant.”

Despite this, the use of “medical special needs shelters”, “medical friendly shelters”, “special needs shelters” “Federal Medical Stations” and other terms describe the only type of emergency sheltering provided for many individuals with disabilities living in the community and not appropriately served in a nursing home or hospital. The use of these facilities has been prevalent in many of the recent disasters requiring evacuation of disaster impacted communities.

These shelters have operated in Florida, Louisiana, South Carolina, North Carolina, Virginia and other states with federal disaster declarations over the past three years. Some of these are open and operating in North and South Carolina as we write this complaint, including people who are being sheltered in what is described as circumstances that are “less than optimal”.

We disagree with the use of any of these facilities to meet the disaster related sheltering needs of individuals with disabilities who “don’t require the type and level of medical care that would ordinarily be provided by trained medical personnel in a nursing home or hospital”[1]. Each of these facilities is a place of public accommodation and most receive some federal funds. Thus, these facilities must comply with Title II of the ADA and Section 504 of the Rehabilitation Act.

We have also seen the use of “evacuation centers”, including those funded with FEMA P-361 grant funds,[2] which, despite the grant instructions, are repeatedly described by local and state government as “different than shelters” and “not required to provide disability accommodations” such as accessible bathrooms, personal assistance, interpreters, cots and other reasonable accommodations.

Under the Rehabilitation Act, “entities selected to receive a grant, cooperative agreement, or other award of federal financial assistance from the U.S. Department of Homeland Security (DHS) or one of its Components, including State Administering Agencies must comply with civil rights obligations.” “Sub recipients have the same obligations as their primary recipient to comply with applicable civil rights requirements and should follow their primary recipient’s procedures regarding compliance with civil rights obligations.”[3] However, time and again, individuals with disabilities are not being accommodated “in the most integrated setting appropriate to their needs, which is typically a mass care shelter”.

The members of the Partnership for Inclusive Disaster Strategies, our members and other emergency inclusive emergency management stakeholders we work closely with have all witnessed civil rights violations due to failure to provide necessary guidance, training and technical assistance to state and local government, failure to monitor compliance, and failure to enforce civil rights laws that apply before, during and after disasters. Adding to this is the conflicting information provided by the federal, state and local government to disaster impacted individuals and communities about the requirements for sheltering individuals with disabilities in emergencies and disasters.

Current guidance includes:

HHS Office for Civil Rights (OCR)

“Being mindful of all segments of the community and taking reasonable steps to provide an equal opportunity to benefit from emergency response efforts will help ensure that responsible officials are in compliance with Federal civil rights laws and that the disaster management in the affected areas by Hurricane Florence is successful”[4]

HHS Centers for Disease Control and Prevention (CDC)

“Somewhere between a temporary shelter and temporary hospital, a Federal Medical Station is a non-emergency medical center set up during a natural disaster to care for displaced persons with special health needs—including those with chronic health conditions, limited mobility, or common mental health issues—that cannot be met in a shelter for the general population during an incident.”[5]


HHS Office of the Assistant Secretary for Preparedness and Response (ASPR)

Federal Medical Stations “sustain from 50 to 250 stable primary or chronic care patients who require medical and nursing services.” Federal Medical Stations provide “low acuity care for patients with chronic illnesses whose access to care is impeded due to the disaster.”[6]

DOJ

“Shelters are usually divided into two categories: (1) “mass care” shelters, which serve the general population, and (2) “special needs” or “medical” shelters, which provide a heightened level of medical care for people who are medically fragile. Special needs and medical shelters are intended to house people who require the type and level of medical care that would ordinarily be provided by trained medical personnel in a nursing home or hospital.”[7]

DHS Office for Civil Rights and Civil Liberties (CRCL)

“Under federal civil rights laws, sheltering services and facilities must be accessible to children and adults with disabilities. Sheltering and temporary housing of persons with disabilities must take place in the most integrated setting appropriate to the needs of the person, which in most cases is the same setting people without disabilities enjoy. See, Guidance on Planning for Integration of Functional Needs Support Services in General Population. The intent of this federal guidance is to ensure that individuals are provided appropriate accommodations and are not turned away or moved from general population shelters and temporary housing or inappropriately placed in other, more restrictive, environments (e.g., "special needs" shelters, institutions, nursing homes, and hotels and motels disconnected from other support services).”[8]

FEMA

  • “Segregating children and adults with and without disabilities who have access or functional needs and those with whom they are associated from general population shelters to “special needs” shelters is ineffective in achieving equitable program access and violates Federal law. People with disabilities are entitled by law to equal opportunity to participate in programs, services, and activities in the most integrated setting appropriate to the needs of the individual. Additionally, children and adults with and without disabilities who have access and functional needs should not be sheltered separately from their families, friends, and/or caregivers because services they require are not available to them in general population shelters.”[9]
  • “providers must be aware that they may fall into more than one category of provider. For example, a state agency that receives Federal financial assistance must comply with laws that apply to Federal financial assistance recipients as well as to laws that apply to state and local governments. Non-profit organizations that receive Federal financial assistance to provide food, clothing, shelter, or transportation in connection with an emergency must comply with obligations applicable to recipients of such assistance as well as requirements generally applicable to nonprofit organizations that provide services to the public.”[10]

One example that adds to the confusion for disaster impacted individuals with disabilities in some states is that they are told that if they need back up power for operating medical equipment, they can only be served in “special medical needs” shelters. However, in another state, if an individual needs back-up power to meet disability related needs, they must “bring their own backup power and connectors” to the “special medical needs shelters”. Strangely, in most of these “special” shelters individuals with disabilities are also told that they will only be admitted if they bring their own caregivers, and that, despite the descriptor of “medical needs shelters”, the level of care provided is described as “medical monitoring”. Medical care is actually not provided in many of these medical shelters. [11],[12]

The Partnership for Inclusive Disaster Strategies and our national members have attempted to work collaboratively with the FEMA Office of Disability Integration and Coordination, the DHS Office for Civil Rights and Civil Liberties, the HHS Office of the Assistant Secretary for Preparedness and Response, the HHS Administration for Community Living and the DOJ Civil Rights Division Disability Rights Section, to resolve these and other issues regarding the rights of 61 million Americans with disabilities[13] and the access and functional needs of many others before, during and after disasters. We have repeatedly invited their representatives to join us in our daily (during disasters with large evacuation and sheltering operations) and weekly stakeholder meetings (during steady state and more localized disasters). All have been included in our daily and weekly invitations since hurricane Harvey made landfall, over one year ago. Only the DHS Office for Civil Rights and Civil Liberties Anti-Discrimination Team has regularly attended our meetings and consistently worked collaboratively with us. The Officer for Civil Rights and Civil Liberties has invited us to meet with her and others, and we are hopeful that the many issues raised will be addressed, however, the issues we raised remain unresolved. We have requested training from the DHS Compliance Office to help disability organizations navigate these and other issues, but we have not been successful in getting training scheduled.

Further confounding the problem with inconsistent civil rights guidance and lack of enforcement from the responsible federal agencies, is a lack of clarity about which agency “owns” the obligation for enforcing the requirement to provide sheltering to individuals with disabilities in the most integrated setting throughout emergencies and disasters. We are much less concerned with which federal entity is responsible for enforcement, and far more concerned with who we can look to for enforcement of civil rights obligations currently harming children and adults with disabilities and those who will be harmed as soon as the next disaster. We are not simply looking for who to blame, rather, we are looking for how to assist those responsible, since our members are the nation’s leading experts on disability inclusive emergency management and we have a footprint in almost every community across the United States.

If federal responsibility is not already settled, ownership must be immediately assigned, and compliance enforced. If ownership has been determined, the responsible federal agency has failed to act, and this failure must be immediately addressed, and compliance enforced.

The impact of the inconsistencies and non-compliance have resulted in the denial of equal access to emergency programs and services for disaster impacted individuals with disabilities, violating their civil rights.

  • Some individuals with disabilities choose to remain in harm’s way, even in a mandatory evacuation, rather than evacuating to special medical needs shelters, hospitals and nursing homes unable to provide the disability assistance they require.
  • Some individuals with disabilities who evacuate are denied access to general population community shelters and are instead transferred (often against their will) to special medical needs shelters or directly to hospitals and nursing homes even though they do not require hospitalization or nursing home care.
  • Individuals with disabilities who are denied access to community sheltering are often admitted to hospitals and nursing homes without discharge plans, and these individuals sometimes remain institutionalized in these facilities long after the disaster has ended.
  • Many “special medical needs shelters” do not have adequate emergency plans in place for sheltering-in-place and evacuation. For example, one currently open “special medical needs shelter” reportedly plans, if necessary, to evacuate shelterees with disabilities and bariatric needs housed on the 3rd floor of their shelter using “bed sleds”.
  • Some individuals with disabilities are forced to pay for their evacuation and sheltering (whether in a hotel or in a hospital) while others who are allowed in the community shelter benefit from government funded transportation and sheltering at no cost to them.
  • The failure to provide equal access to community shelters harms not only individuals with disabilities, but also communities with limited acute care beds, first responders and skilled medical professionals when they are needed most.

We are requesting that the US Department of Homeland Security, the Federal Emergency Management Agency, the US Department of Justice and the US Department of Health and Human Services immediately address these violations of disability civil rights throughout federally declared disasters and provide accurate and consistent information to state and local emergency planners, shelter operators, and all stakeholders who may be impacted by the misinformation and subsequent actions denying the civil rights of disaster impacted individuals with disabilities.

We expect immediate enforcement of the rights of disaster impacted individuals with disabilities to be served in the most integrated setting appropriate to their needs, which, as the Department of Justice wrote in 2007, “is typically a mass care shelter”[14]

Due to the urgency of the issues included in this complaint, and the failure of FEMA, HHS and DOJ to attend our daily meetings, we are requesting an immediate meeting with the senior officials responsible for resolving these civil rights issues and ensuring compliance with the civil rights of disaster impacted individuals with disabilities.

Sincerely,

Marcie Roth
Chief Executive Officer
marcie@disasterstrategies.org
(301) 717-7447

CC: Cameron Quinn, DHS
Brock Long, FEMA
Robert Kadlec, MD HHS
Lance Robertson, HHS
John Gore, DOJ



[1] https://www.ada.gov/pcatoolkit/chap7shelterprog.htm

[2] https://www.fema.gov/fema-p-361-safe-rooms-tornadoes-and-hurricanes-guidance-community-and-residential-safe-rooms

[3] https://www.dhs.gov/sites/default/files/publications/dhs-civil-rights-evaluation-tool.pdf

[4] https://www.hhs.gov/about/news/2018/09/13/ocr-issues-guidance-to-help-ensure-equal-access-to-emergency-services-medical-information-during-hurricane-florence.html

[5] https://www.cdc.gov/phpr/stockpile/fedmedstation.htm

[6] https://www.phe.gov/Preparedness/support/medicalassistance/Pages/default.aspx

[7] https://www.ada.gov/pcatoolkit/chap7shelterprog.htm

[8] https://www.dhs.gov/sites/default/files/publications/notice-nondiscrimination-during-disasters.pdf

[9] https://www.fema.gov/media-library-data/20130726-1831-25045-7316/fnss_guidance.pdf

[10] https://www.fema.gov/media-library-data/20130726-1617-20490-6430/section689referenceguide.pdf

[11] https://www.scdhec.gov/sites/default/files/Library/ML-025588.pdf

[12] https://files.nc.gov/ncdps/documents/files/00-CRES2011-final.pdf pp 109-112

[13] https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html

[14] ADA Best Practices Tool Kit for State and Local Governments, Chapter 7

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