# Presentation: 066583

## Direct Threat

- Requirements and Processes

## The Law Governing “Direct Threat”

- Legal definition: a _*significant risk *_of _*substantial harm*__ _to the health and safety of the individual or others that *cannot be *_*eliminated or reduced  to an acceptable level *_by reasonable accommodation or modification

## The Law Governing “Direct Threat”

_**KEY POINT**_: the burden of proving “direct threat” is on Job Corps
- This means you:
- must have specific, objective evidence to prove that this person poses a direct threat **at this time**
- must assume that no direct threat exists where the evidence is:
- Equivocal, or
- Insufficient to prove direct threat

## Factors for Determining “Significant Risk of Substantial Harm”

- Nature and severity of the risk
- The type of potential harm is various types of injury to self (assessment form will list specific facts based on previous attempts)
- Duration of risk
- How long is the risk likely to last?
- Likelihood that the potential harm will occur
- High medium or Low
- Imminence of the potential harm
- How soon is the harm likely to occur?

## Where the other four factors are satisfied

- Is the “significant risk of substantial harm” related to a disability?
- If **yes:  **you **must consider** the availability of any accommodation(s) that would reduce or eliminate the risk.
- If **no:  **you** do not **have to consider accommodation.

## Guiding Principles for Direct Threat Assessment

- Ultimate goal:  Determining a **specific **applicant’s or student’s **current** ability to safely participate in Job Corps
- Assessment must be **individualized **
**Specific risk **must be identified
- If psychiatric disabilities / conditions involved, must identify **specific behavior **that would pose threat

## Guiding Principles for Direct Threat Assessment

- Threat must be:
- Serious
- Likely to occur (not speculative)
- Allowable considerations:
- Objective factual evidence
- Input from the applicant or student
**most current** medical/mental health/substance abuse knowledge

## Guiding Principles for Direct Threat Assessment

- Objective medical evidence, such as:
- Applicant’s medical/mental health/substance abuse history
- Opinions of experts
- Opinions of treating providers with direct knowledge of the applicant
- Plus, if threat is related to disability or medical condition must consider reasonable accommodations or modifications that could reduce or eliminate the threat.

## Direct Threat Process

- A direct threat assessment will be done at the center level if information received from the applicant or particular responses to the safety and risk questions on the ETA 6-53 indicates that the he/she may have a condition, disability, or behavior that** **poses a significant risk of substantial harm to the health or safety of the individual or others.

## Direct Threat Process

- The Health and Wellness Manager will do an initial review of the applicant’s health documentation and forward the applicant’s information to the appropriate licensed center health provider for a direct threat assessment
- Currently there is detailed guidance in Program Instruction 07-16.

## TRUE OR FALSE

- Direct Threat

## Answer “True” or “False”

- Direct threat only deals with persons with a disability.
- False

**Notes:**
A person may pose a direct threat due to behaviors not connected to a disability ( i.e. threaten staff, students, or center )

## Answer “True” or “False”

- You can consider evaluations from treating providers in assessing disability-related direct threat.
- True

## Answer “True” or “False”

- You only have to consider accommodations that can reduce or eliminate direct threat if the threat is related to a psychiatric issue.
- False

**Notes:**
Any disability, including physical and cognitive disabilities...not just mental health disabilities

## Answer “True” or “False”

- Individuals on certain medications that may cause problems with concentration are automatically a direct threat.
- False

## Answer “True” or “False”

- A recent suicide attempt or hospitalization for  substance abuse treatment makes you a direct threat.
- False

## Answer “True” or “False”

- Due to the nature of sexual molestation  having this background makes you a direct threat.
- False

**Notes:**
However, several factors should be considered............

## Answer “True” or “False”

- Due to the nature of Bipolar disorder, having this diagnosis makes you a direct threat.
- False

## FREQUENTLY ASKED QUESTIONS

## Frequently Asked Questions

- What happens if direct threat occurs after student is on center?
- For current students, an assessment may be conducted where there is a reasonable belief based on objective evidence that the student may have a condition, disability, or behavior that poses a direct threat.  If the CMHC or health provider is not available to do a direct threat assessment or the situation is life threatening, the center should follow their SOP/COP for these situations and send the student to the nearest emergency room or contact local law authorities.
- Is there a SOP/COP needed for direct threat?
- There is not a requirement for a Direct Threat SOP/COP at this time, but centers should have SOP?COP for handling psychiatric and medical emergencies.

## Frequently Asked Questions

-  Student poses direct threat or does not pose direct threat. Why fill out form if not direct threat?
- It is possible to do a direct threat assessment and find that you do not have sufficient information to support a recommended denial for direct threat.
- Do all centers have to use the Direct Threat Assessment Form?
- Yes, all centers should use the Direct Threat Assessment Form included as an attachment with the program instruction

## Frequently Asked Questions

-  What is an example of a direct threat at the center level that is not a disability?
- Student can have behavior problems like fighting, intimidating students/staff that may be a direct threat, but student may not necessarily have a disability related to the behaviors.

## Frequently Asked Questions

-  What is a possible example of  direct threat and substance abuse?
-  Applicant has recent incidents and repeated history of near fatal overdosing who admits to currently using.
- Student on center with acute withdrawal symptoms may be considered a safety issue and thus a possible direct threat.
- Assessment must be individualized and of course if it is a current student and medical attention is needed, please send to the emergency room without delay.

## Frequently Asked Questions

-  Applicant reports recent drug abuse, cannot deny, but can we ask that they complete a treatment program?
- For an _applicant,_ _only_ if there is documentation of the recommendation for treatment from the treating provider- see Appendix 104 in PRH 1.
-  For _current students_, the TEAP Specialists can do an assessment and make a recommendation for a MSWR if appropriate for treatment

## Frequently Asked Questions

- What are examples of accommodations that might reduce or eliminate a direct threat?
- Case by case
- Permitting time off during regular training hours for  appointments
- Establishing a  modified training schedule
- Allow telephone calls during work hours to doctors and others for needed support
- Provide sensitivity training to coworkers
- Modifying or changing job tasks or responsibilities
- Offer reassignment to a different trade

## Frequently Asked Questions

- When students come back from an MSWR leave should they be evaluated for direct threat?
- It depends. Students returning from MSWR should provide the documentation requested by the center regarding treatment and seen by the CMHC.  If the CMHC has a reasonable belief based on objective evidence that the student may have a condition, disability, or behavior that currently poses a direct threat, then a direct threat assessment can be done.  Otherwise follow your center's current procedure for students returning from MSWR.

## Frequently Asked Questions

- There is a continuing issue on center that
- applicants are not disclosing mental health
- histories and the students later disclose significant
- history when on center.
- You can do a direct threat assessment at any time, even if the student is on center if there is a reasonable belief based on objective evidence that the student may have a condition, disability, or behavior that _currently_ poses a direct threat.  If the student is a direct threat and there are no accommodations or modifications to reduce or eliminate the threat, you can consider a MSWR.

## Frequently Asked Questions

- How would the center document/deal with an individual who is self-injurious (cuts themselves) who has not disclosed the issue but it is obvious from marks on the body?
- You would need more information in this scenario because there are different reasons for individuals who cut themselves — some who cut to relieve anxiety and others who cut in attempt to commit suicide.  There is a need to conduct a full assessment in order to determine if direct threat exists.

## Frequently Asked Questions

- Will centers be able to request additional information regarding a student’s current mental health?
- It depends.  If the needed information is medically necessary information for the center to make a determination, then they may request additional information.  The request for information cannot be based upon “suspicions” or be a “fishing expedition.”

## Frequently Asked Questions

- How do you deal with students who have visible negative (e.g. gang-related) tattoos, which could suggest direct threat?
- Student should be asked if he or she is willing to cover it during Job Corps enrollment or cover it as best possible depending on the location of the tattoo.  In and of itself, the tattoo is not a direct threat.

## Information About Legal Requirements

- Civil Rights Center (CRC)
- 	U.S. Department of Labor
- 	200 Constitution Avenue N.W.
- 	Room N-4123
- 	Washington, D.C. 20210
- 	_http://www.dol.gov/dol/oasam/crchome.htm_
- EEOC Guidance on Psychiatric Disabilities (includes direct threat info)
- 	_http://www.eeoc.gov/policy/docs/psych.html_