1. No category

Fair Housing Training
Fair Housing and Reasonable
Accommodations for Seniors
Catherine Ross-Perry
U.S. Department of HUD
Fair Housing & Equal Opportunity
California FEHA
y Same bases as FHAA, plus
Marital status
Sexual orientation
y Ancestry
y Source of Income
y
y
y
Discrimination based on age and arbitrary factors
prohibited under the Unruh Act
Federal Fair Housing Act
7 protected bases:
• Race
• Color
• Religion
• National Origin
• Sex
• Familial Status
• Disability
(Ref: 24 CFR 100, et seq.)
What is covered?
y FHAA– exemption for owner-occupied buildings with no
more than four units, sale or rental of single-family housing
without the use of a broker, and housing operated by
organizations and private clubs that limit occupancy to
members.
y FEHA – all housing except renting a portion of a single-family,
owner-occupied house to one person; and religious
organizations which own or operate housing accommodations
for non-commercial purposes may give a preference to persons
of the same religion
y Unruh – all business establishments
Fair Housing Act prohibitions
•
•
•
•
•
•
•
•
Refusal to rent or sell
Refusal to negotiate for housing
Make housing unavailable
Deny a dwelling
Set different terms, conditions, or privileges
Provide different housing services or facilities
Falsely deny that housing is available
For profit, persuade owners to rent or sell
(blockbusting)
Protections based on disability
y Housing providers must provide reasonable
accommodations and reasonable modifications
y This protection extends only to people with
disabilities
y Requires individualized rather than consistent
treatment
More FHAA prohibitions
y Threaten, coerce, intimidate, or interfere with
anyone exercising a fair housing right, or assisting
others to exercise a fair housing right
y Advertise or make any statement that indicates a
preference or limitation based on a protected
category. Applies even to otherwise exempt housing.
y Also covers mortgage lending and insurance
Who is a person with a disability?
y Individual with handicap (disability) defined:
{ Physical or mental impairment that
{ Substantially* limits 1 or more life activities, or
{ has a history of impairment, or
{ is regarded as having impairment
24 CFR 8.3, 24 CFR 100.201. *Note: recent case law and changes to
ADA regulatory definition of disability may ultimately result in
elimination of requirement that impairment be “substantial”
State law does not require “substantial”
Illness Does Not Equal Disability
Impairment of life activity
A medical diagnosis (e.g., cancer)
y Physical: Caring for one’s self, performing manual
tasks, walking, seeing, hearing, speaking,
breathing, many others
y Mental: Caring for one’s self, learning, working,
interacting with others, remembering, many
others
y Developmental: Ability to learn with onset before
age of 18
is not the same as a disability (e.g., mobility limitation)
Not all people with a diagnosis for an illness or a
medical condition are impaired by that, though they
may sometimes be regarded as such and become
entitled to protection under fair housing laws
May not include current abusers of alcohol or unlawful drugs
who constitute a “direct threat” to others or property. (24
CFR 8.3)
Americans with Disabilities
Record of Impairment
Record of impairment:
y Actual history of impairment
y Misclassified as having impairment
y
y
Regarded as impaired:
y No substantial impairment, but is treated or
regarded by others as being impaired
(24 CFR 8.3)
y
y
50 Million persons, age 5 and older, in the United
States are identified as persons with disabilities
32 million Americans are age 62 or over
3.3 million are 85 & older, Projected to grow to 6
million by 2010 (almost double)
At some time in their lives 70% of all Americans will
have a temporary or permanent disability that
makes climbing stairs impossible
A.
BASES for 61,093 FH
COMPLAINTS FYs 20052010
18000
16000
14000
12000
10000
8000
6000
4000
2000
0
26,459
DISABILITY
21,813
9,295
RACE
FAMILIAL STATUS
7,887
NATIONAL ORIGIN
6,394
SEX
1,693
RELIGION
1,236
COLOR
3,539
RETALIATION
Source: HUD TEAPOTS database
2009 R.A. Complaints
y Of approximately 10,242 complaints of housing
discrimination filed in 2009 with HUD & state/local
fair housing enforcement partners:
y 44% allege discrimination on basis of disability
(4,458 complaints)
y 54% allegations of disability discrimination involve
reasonable accommodation/modification issues
(about 2,430 complaints)
What, When, How
Reasonable Accommodation
y WHAT:
y Accommodation to rules,
policies, practices or
services
y WHEN:
y Anytime before & during
tenancy (application,
tenancy & eviction)
y HOW:
y Tenant/Applicant asks for
it, may need to
reveal/document
disability if not apparent
• Making a change to a rule, policy, practice, service or
procedure
• when such accommodations are necessary to afford a
handicapped (disabled) person
• equal opportunity to use or enjoy the dwelling or
program
Need, Cost, Reasonable, Defense
y NEED:
y Necessary to afford equal
housing opportunity to
use/enjoy dwelling
y COST:
y Housing Provider pays
y REASONABLE:
y Feasible and practical
y DEFENSES:
y Undue financial or
administrative burden or
fundamental alteration in
nature of business
Analyzing Reasonable
Accommodation: do the DANCE
Procedures for analyzing a request for reasonable
accommodation:
y D = disabled
yA
yN
yC
yE
Cautions on asking for information
about disability
• Strictly limit documentation sought to that which
establishes existence of impairment, and nexus
• Do not ask for, or record, medical history or specific
diagnosis
• Documentation requirement may be waived where
impairment is obvious
• Certification of disability may be by any health care
professional with knowledge of person’s disability
• Safeguard all medical documentation by restricting
access only to those with a strict need to know
Accommodation requested
y D = disabled
y A = asked for accommodation (orally or in writing)
yN
yC
yE
Nexus
Fundamental Change
y D = disabled
y D = disabled
y A = asked for accommodation
y A = asked for accommodation
y N = nexus
y N = nexus between accommodation sought and
disability
y C = change to fundamental nature of program or
activity may be grounds for denial
yC
yE
yE
Excessive Burden
y D = disabled
y A = asked for accommodation
y N = nexus
y C = cost
y E = excessive administrative and financial burden
may be grounds for denial
Excessive or undue financial or
administrative burden
• Burden must be actual and demonstrable, not speculative
• Consider scope of program, resources available
• Do not consider others who may make similar requests in
the future as a defense for denying
• Each request should be evaluated independently using
the D-A-N-C-E paradigm. Denials on basis of undue
financial burden may be raised only when funds actually
become insufficient to permit granting this specific
request
Examples of reasonable
accommodations
y Request for service, assistance or “emotional
support” animal in no-animal building
y Request to relocate to ground floor or accessible unit
y Request for voucher extension to locate suitable,
accessible rental unit
y Request to waive credit criteria when credit
delinquencies are related to disability
y Request to have care provider
Examples of Reasonable
Accommodation
y Advance notice of painting to a tenant with multiple
chemical sensitivity
y Creating a reserved parking space for a tenant with a
mobility impairment who needs to park close to the
dwelling unit
y Waiving a parking fee for a disabled tenant’s personal
care provider
y Assisting an applicant with a developmental disability in
completing a standard rental application
What, When, Where
Reasonable modification
y WHAT:
y Reasonable modification is a request to alter the
physical structure of a dwelling where necessary for a
person with a physical disability to be able to have
equal use and enjoyment of it
y Physical modification to
existing premises
y WHEN:
y Anytime during tenancy
y WHERE:
y Interior of Unit
y Section 504 does not differentiate between
accommodations and modifications
y FHA & CA FEHA differentiate
y Exterior of Premises
y Common Use Areas
Need, How, Cost, Reasonable
y NEED:
y HOW:
y COST:
y REASONABLE:
y Necessary to afford equal
housing opportunity to use
or enjoy dwelling
y Tenant asks for it/May
need to reveal and
document disability
y Private housing: Tenant
pays
y Funded housing: Provider
pays
Restoration
Private, unsubsidized housing:
yTenant may be required to restore interior, especially
if reducing marketability
yInterest-bearing escrow account to guarantee
restoration of interior (24 CFR 100.203)
y Workmanlike Manner
y Permits (if required)
Excessive or undue financial or
administrative burden
Reasonable Modification Examples
• Burden must be actual and demonstrable, not speculative
• Consider scope of program, resources available
• Do not consider others who may make similar requests in
the future as a defense for denying
• Each request should be evaluated independently using
the D-A-N-C-E paradigm. Denials on basis of undue
financial burden may be raised only when funds actually
become insufficient to permit granting this specific
request
y Wrapping pipes under sinks with insulation
y Providing Braille numbers on front door
y Installing pictures or color coded signs for people
with cognitive disabilities
y Removing protruding objects from pathways
y Widening doors
Reasonable Modification Examples
y Installing wheelchair ramp to entrance of dwelling unit
y Lowering kitchen counters
y Installing front-loading washer/dryer
y Providing visual alarm for hearing impaired persons
y Providing auditory alarm for visually impaired persons
Interactive process
• Consider the RA request as made by the person
with disability
• If request poses excessive burden, engage in an
interactive process to determine if an alternative,
less-burdensome accommodation would offer
equally effective, if not identical, results
• If accommodation cannot be granted
immediately, consider interim accommodations
Requesting an accommodation
If the request is denied
y Written request is best – not required, but creates a
record
y Consult an advocate – e.g., private Fair Housing
organization, Independent Living Center, Legal Aid,
SF Human Rights Commission
y No specific form is required
y Contact HUD or DFEH – file a complaint
y Need not use the term “reasonable accommodation”
y May have to supply a doctor’s verification
y HUD/DFEH will investigate – may lead to a charge
and administrative or court proceeding
Cost of Failure to Make RA
Hoarding
y Complainant requested parking space close to her
unit, to avoid using stairs due to her disability
y Respondents repeatedly denied the request
y the acquisition of, and failure to discard, a large
number of possessions that appear to be useless or of
limited value
y Complainant had to crawl up 16 stairs each time she
returned home
y Complainant filed complaint with DFEH
y living spaces are sufficiently cluttered so as to
preclude activities for which those spaces were
designed
y DFEH and Complainant prevailed at trial. During
jury deliberation for punitive damages, parties
settled for monetary award to Complainant and her
parking space, as initially requested.
y significant distress or impairment in functioning
caused by the hoarding
Hoarding, Housekeeping,
Animal Hoarding
y Hoarding and poor housekeeping are not the same
y Poor housekeeping is lack of cleanliness or
degradation from neglect
y Hoarding is related to the volume of clutter in the
unit, not the cleanliness of the unit
y Animal hoarding involves the hoarding of animals. It
is best to contact your local Humane Society
More about Hoarding
y Hoarding often begins in childhood
y Family history of hoarding is common
y May be precipitated by loss
y Chronic or worsening
y Resistant to treatment
y Reasons for saving include sentimental value,
anticipation of need, intrinsic value
Effect on Housing
y Hoarding behavior may jeopardize housing, whether public,
subsidized, or private rental, or homeownership
y May result in code violations and/or lease violations
y May result in failure to pass annual inspection in
subsidized/public housing
Common Code Violations
y Blocked egress
y Fire load
y Fire hazards (items in oven, near heat source, etc)
y Trip hazards
y Crush hazards
y Infestation
y Plumbing not functioning
y Sanitation concerns (rotting food, feces, needles, etc)
y Structural safety (weight of items)
Hoarding & Fair Housing
y Hoarding behavior is often symptomatic of a
disability
y If hoarding behavior is the result of disability,
there are fair housing implications
y If the hoarding is associated with a disability, the
person has the right to request a reasonable
accommodation
y A reasonable accommodation would still require that
minimum health and safety requirements are met
Reasonable Accommodations
for Hoarding
y The request for accommodation must come from the
person who needs it, or someone acting on their
behalf – not the housing provider
y Common requests include asking for more time to
comply with the rules – e.g., clear a path through the
unit, move belongings to storage, call in resources
y A reasonable request may include a plan to indicate
continuing compliance – but beware of different
terms and conditions
Smoking
Reasonable policies
y There are no statutory or regulatory provisions
governing smoking in assisted housing
Examples:
y HUD assisted properties are required to comply with
applicable state and local laws, which would include
any laws governing smoking in residential units
y Owners are free to adopt reasonable rules related to
the safety and habitability of the building and
comfort of the tenants
y no indoor smoking
y
HUD Occupancy Handbook 6-19 (6/07)
CA Smoke Free Housing Law
y no incense
y no candles
y no smoking anywhere in the complex
Other Laws Regarding Disability
Discrimination
y Effective 1/1/12
y Gives multifamily property owners and managers the power to
prohibit smoking in rental units
y In dwelling units, other interior or exterior areas, or on the premises
y Federal, state, and local requirements governing lease changes apply
y 31% of CA’s housing is multiunit – apartments, condos
y CA Civ. Code §1947.5
y Section 504 of the 1973 Rehabilitation Act
y Applies to federally funded housing
y Does not apply to private housing or Section 8 housing
providers
y Americans with Disabilities Act (ADA)
y Title II applies to state or local government housing
Section 504 of the Rehabilitation
Act of 1973
“No qualified individual with handicaps shall, solely on the
basis of disability, be excluded from participation in, be
denied the benefits of, or otherwise be subjected to
discrimination, under any program or activity that receives
Federal financial assistance from (HUD)”
ySpecifically prohibit methods of administration which
have the effect of discrimination, even where unintentional
(24 CFR 8.4)
yAny HUD funding to program may mean entire program
area is covered by 504
Section 504 prohibitions
y Denying ability to participate in housing or services
y Providing housing or services that are not equal, not
so effective as, fail to achieve same benefit as those
provided to others or
y Having the effect of discriminating, even when not
intentional
(24 CFR 8.4)
Americans with Disabilities Act of
1990
y Title II: Prohibits discrimination on basis of
disability in state and local government services
y HUD enforces in programs receiving HUD funding
y (28 CFR Part 35)
Title II of the ADA
y Prohibitions on basis of disability very similar to those of
Section 504: covers housing, programs & services
y As with 504, prohibits methods of discrimination that
have effect of discrimination (24 CFR 25.130)
y As with 504, imposes programmatic requirements (see
slide above)
y Physical accessibility requirements apply only to
common-use areas of residential housing (e.g., rental
office, parking lot, common grounds). Accessibility
standard: ADAAG or UFAS
Internet Resources
y CA Dept. of Fair Employment and Housing (DFEH)
http:// www.dfeh.ca.gov
y HUD’s Fair Housing Laws
http:// www.hud.gov/offices/fheo/FHLaws/index.cfm
y HUD’s Section 504 – Rehabilitation Act 1974
http://www.hud.gov/offices/fheo/disabilities/sect504do
cs.cfm
y American with Disabilities Act
http://www.usdoj.gov/crt/ada
For more information:
Catherine Ross-Perry, HUD-FHEO, San Francisco
y phone: 415/489-6555 or [email protected]
HUD-DOJ Joint Statements
y HUD-DOJ Joint Statement on Reasonable
Accommodation:
http://www.hud.gov/offices/fheo/library/huddojstateme
nt.pdf
y HUD-DOJ Joint Statement on Reasonable Modification:
http://www.justice.gov/crt/about/hce/documents/reaso
nable_modifications_mar08.pdf