PANEL: FAIR HOUSING AND OLMSTEAD UPDATE

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1 PANEL: FAIR HOUSING AND OLMSTEAD UPDATE Reasonable Accommodation Reasonable Modification Section 504 of the Rehabilitation Act (Section 504) Olmstead

2 The Fair Housing Act (FHA) and Disability Comprises over 40% of the cases HUD receives. The 1988 Amendments Act added disability as a protected class. Defined disability consistent with Section 504 Prohibits illegal inquiry into the nature or severity of disability Added three disability-specific provisions: Accommodation, Modification and Design and Construction

3 Disability defined: A physical or mental impairment that substantially limits one or more of a person s major life activities, a record of having such an impairment, or being regarded as having such an impairment. 42 U.S.C. Section 3602(h). The definition does not include current illegal use of or addiction to a controlled substance.

4 Disability Physical or mental impairment Some examples can include, but are not limited to: diseases and conditions as orthopedic, visual, speech and hearing impairments, autism, epilepsy, multiple sclerosis, cancer, heart disease, diabetes, emotional illness Substantially limits Limitation is significant or to a large degree. Major life activity Those activities that are of central importance to daily life, such as a seeing, hearing, walking, breathing, performing manual tasks, caring for one s self, learning and speaking.

5 Individuals NOT protected under anti-discrimination laws Individuals currently engaged in illegal drug use. Individuals who pose a direct threat to the health or safety of other individuals or substantial physical damage to the property of others.

6 Disability as a Protected Class Reverse discrimination suits not allowed with disability. 42 U.S.C. Section 3604(f)(1) To discriminate in the sale or rental, or otherwise make unavailable or deny a dwelling because of disability. 42 U.S.C. Section 3604(f)(2) To discriminate in the terms conditions or privileges or in the provisions of services or facilities in connection with because of disability. 42 U.S.C. Section 3604(f)(3)(B) Reasonable Accommodation 42 U.S.C. Section 3604(f)(3)(A) Reasonable Modification

7 Reasonable Accommodation vs. Reasonable Modification ACCOMMODATION To refuse to make a reasonable accommodation to rules, policies, practices or services, when such accommodation may be necessary to afford such person equal opportunity to use and enjoy a dwelling. 42 U.S.C. Section 3604(f)(3)(B) MODIFICATION A refusal to permit, at the expense of the disabled person (in the private market, not federally funded housing), reasonable modifications of existing premises occupied or to be occupied by such person if such modification may be necessary to afford such person full enjoyment of the premises. 42 U.S.C. Section 3604(f)(3)(A)

8 Reasonable Accommodation vs. Reasonable Modification Reasonable Accommodations: Are changes to rules or policies in order to afford a person with a disability equal opportunity to use or enjoy a dwelling. E.g., waiver of a no pet policy. Reasonable Modifications: Are structural changes to housing to make housing physically accessible to people with physical disabilities, such as widening of doorways or installation of ramps. Under the Fair Housing Act, tenant pays for the requested modification. Example: A tenant who uses a wheelchair and who lives in privately owned housing needs a roll-in shower in order to bathe independently. Under the FHA the tenant would be responsible for the costs of installing the roll-in shower as a reasonable modification to his unit.

9 What are the elements of a Reasonable Accommodation/Modification claim? Disabled within the meaning of the Act. Housing provider knew or should have known of the disability. Reasonable Accommodation or Modification was requested. Accommodation or Modification was reasonable and necessary to offer disabled person equal opportunity to use and enjoy the dwelling. Accommodation or Modification denied or so delayed as to equate to denial.

10 Reasonable Accommodation FHA s protection against disability discrimination also covers buyers/renters without disabilities who live or are associated with individuals with disabilities. 42 U.S.C. Section 3604(f)(1)(B) and (f)(1)(c) and 42 U.S.C. Section 3604(f)(2)(B) and (f)(2)(c). Housing providers are required to provide accommodations where the requested accommodation is both REASONABLE and NECESSARY.

11 Examples of Reasonable Accommodations A resident with a mobility impairment, who is substantially limited in her ability to walk, requests an assigned accessible parking space close to the entrance to her unit as a reasonable accommodation. There are available parking spaces near the entrance to her unit that are accessible, but those spaces are available to all residents on a first come, first served basis. The provider must make an exception to its policy of not providing assigned parking spaces to accommodate this resident. A housing provider has a policy of requiring tenants to come to the rental office in person to pay their rent. A tenant has a mental disability that makes her afraid to leave her unit. Because of her disability, she requests that she be permitted to have a friend mail her rent payment to the rental office as a reasonable accommodation. The provider must make an exception to its payment policy to accommodate this tenant. Live-in aides for people with disabilities are specifically authorized in federally subsidized housing and commonly accepted as accommodations in private housing (see, e.g., 42 U.S.C. 1437a(b)(3)(B); 24 C.F.R (2012).

12 How should requests be made? Verbally or in writing (helpful if the request is in writing). The words reasonable accommodation do not have to be used when making a request. As long as requester makes a request so that a reasonable person would understand the request to be a request for an exception, change, or adjustment to a rule, policy, practice or service because of a disability.

13 Known Disability vs. Unknown Disability If the disability and need for the accommodation are both obvious and known, then the housing provider may not request any additional information. If the disability is known, but the need for the accommodation is not known, the housing provider may request limited info to help evaluate the disabilityrelated need. If the disability is not obvious, the housing provider may verify that the person meets the Act s definition, describes the needed accommodation and shows the relationship between disability and need for the accommodation.

14 What questions can a housing provider ask? A housing provider may not inquire as to the nature and severity of an individual s disability Housing provider should not ask whether applicant takes prescription drugs, has been hospitalized recently, is capable of independent living, applicant will waive right to confidentiality concerning medical records. In response to a request for a reasonable modification or accommodation, a housing provider may request reliable disabilityrelated information that: (1) is necessary to verify that the person meets the Act s definition of disability (impairment that substantially limits one or more major life activities), (2) describes the needed modification, and (3) shows the relationship between the person s disability and the need for the requested modification/accommodation. Information must be kept confidential and not shared with others.

15 Is there a need for the Accommodation? A person with a disability must demonstrate that s/he is disabled and must show that the accommodation (use of a support animal, for example) is necessary in order to ameliorate the person s disability. Necessity requires at a minimum the showing the desired accommodation will affirmatively enhance a disabled [person s] quality of life by ameliorating the effects of the disability. Bronk v. Ineichen, 54 F.3d 425, 429 (7 th Cir. 1995). It must be shown that there is a nexus between the requested accommodation and the disability. If the proposed accommodation provides no direct amelioration of a disability s effect, it cannot be said to be necessary. Bryant Woods Inn v. Howard County, 124 F.3d 597, 604 (4 th Cir. 1997).

16 What is reasonable? A reasonable accommodation is reasonable when it does not: (1) Pose an undue financial and administrative burden, (2) It does not constitute a fundamental program alteration, and (3) It does not create a direct threat to the health and safety of others.

17 Defense: Undue Fiscal and Administrative Burden Most courts hold that some level of expenditure is required for reasonable accommodations. Example: A person receiving Social Security Disability receives his/her check on the 3 rd of each month. A housing provider may be required to accept rent on the 3 rd of the month rather than the 1 st of the month as a reasonable accommodation. It may be inconvenient for the housing provider and require processing by staff, but it would not pose an undue administrative burden, per se.

18 Defense: Fundamental Alteration of the Program A fundamental alteration is something that alters the essential nature of a provider s operations. Fundamental alteration would include, for example, requiring a housing provider to add supportive services (i.e., counseling, medical, or social services) that fall outside the scope of existing services offered by the housing provider. For example, a housing provider that is funded to accept tenants with mental health disabilities will not be required to accept a tenant whose only disability is mobility impairment, because it would constitute a fundamental alteration to the program or providing housing to persons with psychiatric disabilities.

19 Defense: Health & Safety-Direct Threat Housing provider is not required to permit accommodations or modifications that would present a direct threat to the health and safety of others. A claim that an individual s tenancy poses a direct threat to others must be based on objective evidence (e.g., a history of overt acts or current conduct. Housing providers must establish a nexus between the fact of the particular individual s tenancy and the asserted direct threat. 53 Fed. Reg , (1998). Callander v. Northern Management Real Estate Services, Inc., et al. Affirmative obligation to accommodate, if possible. The defense is only available where the threat cannot be ameliorated by a reasonable accommodation.

20 What if request is unreasonable? If the request is unreasonable, the availability of other less expensive alternative accommodations that would meet the requester s disability-related needs should be considered. A housing provider may offer an alternative accommodation (interactive process). Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891, 19 A.D.D. 619 (7 th Cir. 1996). Example: A disabled tenant is unable to open the dumpster for trash collection. Tenant asks that the housing provider send a maintenance staff to his apartment everyday to collect trash. The housing development is a small operation with limited financial resources and staff who are on site 2x week only. Alternatively, placing an open trash collection can in a location that is readily accessible to the tenant may be sufficient to accommodate the tenant s disability.

21 Accommodating disability-related poverty May be required: Applicant for housing had insufficient income due to loss of work, which was due to disability. Applicant requested, as accommodation to his disability, that he be permitted to have his mother, who had sufficient income, cosign lease. Court recognized financial accommodations for disability. Giebeler v. M & B Assocs., 343 F.3d 1143 (9 th Cir. 2003). Found to be an accommodation because inability to qualify was directly related to applicant s disability. Not required: A housing provider need not waive the security deposit or lower rent to make a unit more affordable.

22 Reasonable Modification The Fair Housing Act makes it unlawful for any person to refuse to permit, at the expense of the [disabled] person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises, except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear expected. 42 U.S.C. Section 3604(f)(3)(A); 24 C.F.R. Section

23 Reasonable Modification The same requirements under reasonable accommodations applies to reasonable modifications. Must meet the Act s definition of disability and prima facie elements Must be reasonable Disabled individual must show an identifiable relationship, a nexus, between the modification and the individual s disability. Examples of modifications include widening doorways to make rooms more accessible for wheelchair users, installing grab bars in the bathroom, lowering kitchen cabinets to a height suitable for persons in wheelchairs, adding a ramp to the primary entrance to make it accessible, or altering a walkway to provide access to a public or common use area.

24 Reasonable Modification Request may be made at any time during the tenancy. Cost on the renter under FHA (maintenance issues depends). Interior: Where it is reasonable, a housing provider may condition permission on renter agreeing to restore interior to the condition that existed before modification. Exterior: A housing provider cannot require a tenant to restore a modification done to the exterior of the dwelling/common areas. Interest bearing escrow accounts possible on a case-by-case basis. Housing provider may request: A reasonable description of the proposed modification, and Reasonable assurance that the work will be done in a workmanlike manner, and Any required building permits will be obtained by the renter

25 Who may be liable? Courts have applied the Act to: Individuals Corporations Associations (including Condo Associations) Property owners Housing managers Homeowners and condominium associations Lenders, real estate agents, and brokerage services. Courts have also applied the Act to state and local governments, most often in the context of exclusionary zoning or other landuse decisions.

26 Section 504 Section 504 prohibits discrimination on the basis of disability in any program or activity that receives Federal financial assistance. 29 U.S.C. Section 794. Federal financial assistance under Section 504 does NOT cover private owners accepting Section 8 vouchers or Low Income Housing Tax Credit housing providers.

27 Section 504 Federal Financial Assistance Most local housing authorities receive Federal financial assistance and, therefore, are covered under Section 504. Privately operated, federally-subsidized apartment complexes or housing facilities fall under Section 504. Examples of housing programs to which HUD provides Federal financial assistance include public housing, project-based housing assistance programs, housing for persons with disabilities (Section 811), housing for the elderly (Section 202), and programs for the homeless.

28 Section 504 Recipients may not provide different or separate housing, aid, benefits, or services to individuals with disabilities or to any class of individuals with disabilities unless such action is necessary to provide qualified individuals with disabilities with housing, aid, benefits, or services that are as effective as those provided to others. 24 C.F.R. Section 8.4(b)(1)(iv). All programs, services and activities must have information in alternative formats that are used by people with different types of disabilities. Why? All applicants/tenants have the right to receive information necessary to understand and participate in the program and enjoy benefits of the project or assistance.

29 Section 504 Persons with disabilities, including those individuals transitioning from institutional to community-based settings, have the right to participate in HUD-funded programs and are entitled to equal opportunity in housing. Non-disabled person may be excluded from the benefits of a program if the program is limited by Federal statute or Executive order to individuals with disabilities. A specific class of individuals with disabilities may be excluded from a program if the program is limited by Federal statute or Executive order to a different class of individuals. 24 C.F.R. Section 8.4(c)(1) Housing Opportunities for Persons with HIV/AIDS (HOPWA) program.

30 Section Equal Access Program accessibility - providers must make their programs accessible to persons with disabilities. If a housing provider provides computer classes to its tenants on-site and the building where the classes are held is a nonaccessible building, either the facility must be made accessible or classes must be transferred to accessible building. Providers may not impose terms or conditions that are different than those required of or provided to non disabled persons. For example, housing provider can not require all persons with disabilities live on certain floor/building and can not refuse to provide services such as maintenance, cleaning, janitorial services or other services which are made available to other residents.

31 Who pays for the modification under Section 504? Unlike the Fair Housing Act, under Section 504, recipients of federal financial assistance should treat reasonable modification requests like reasonable accommodation requests the housing provider must grant the modification request and pay for the modification unless it constitutes an undue financial or administrative burden or a fundamental alteration of the program.

32 Section 504 Reasonable Modification A tenant who uses a wheelchair and who lives in housing that receives federal financial assistance needs a roll-in shower in order to bathe independently. Under Section 504, the housing provider would be obligated to pay for and install the roll-in shower as a reasonable accommodation to the tenant unless doing so was an undue financial and administrative burden or unless the housing provider could meet the tenant s disability-related needs by transferring the tenant to another appropriate unit that contains a roll-in shower.

33 Responsibilities of persons with disabilities under Section 504 To pay rent and other charges timely To care for and avoid damaging the unit and common areas To create no health hazard or safety hazards To report maintenance needs Not to interfere with the rights and enjoyment of others and not to damage the property of others Not to engage in criminal activities that threaten the health, safety or right to peaceful enjoyment of other residents or staff Not to engage in drug-related criminal activity To comply with necessary and reasonable rules and program requirements

34 Olmstead v. L.C. Landmark U.S. Supreme Court decision Facts: Two women, both of whom had mental illnesses and who were residents of Georgia Regional Hospital (state psychiatric hospital), sought placements in the community. Hospital treatment professionals agreed the needs of the women could be met in the community. The state had slots available in its community-based program. The women remained institutionalized after their request for community placement.

35 Olmstead v. L.C. The women filed suit alleging the state s failure to discharge them to a community-based setting was discrimination under Title II of the Americans with Disabilities Act (ADA). Title II of the ADA prohibits people with disabilities from being excluded from participation in or denied the benefits of the services, programs, or activities of a public entity (including state government and health care services that are funded and administered by state agencies), or subjected to discrimination by any such entity.

36 Olmstead v. L.C. The Supreme Court agreed with the lower courts judgment that the plaintiffs were protected by the ADA and were subjected to discrimination by being kept in an institutional setting. The ruling requires states to eliminate unnecessary segregation of persons with disabilities and to ensure that persons with disabilities receive services in the most integrated setting appropriate to their needs.

37 Resources to consider: HUD.GOV HUD/DOJ Joint Statement (Reasonable Accommodation) atement.pdf HUD/DOJ Joint Statement (Reasonable Modification) onable_modifications_mar08.pdf

38 Resources to consider: 42 U.S.C 3601 et seq. Code of Federal Regulations (24 C.F.R. parts 100, 103 and 180). Housing Discrimination, Law and Litigation, Robert G. Schwemm Fair housing websites: o National Fair Housing Advocate: fairhousing.com o (disability) o U.S. Department of Justice housing section: Case law: Westlaw and Lexis

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