Reasonable Accommodation in MHSA Housing Anne Cory MHSA TA Operations Call Corporation for...

Reasonable Accommodation in

MHSA Housing

Anne Cory

MHSA TA Operations Call

Corporation for Supportive HousingJune 1, 2011

www.csh.org

http://www.csh.org/

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Fair Housing Overview

The Federal Fair Housing Act and the California Fair Employment and Housing Act prohibit discrimination in housing on the basis of:– Race, Color, Religion, Sex, National Origin,

Familial Status, Disability, Sexual Orientation, Source of Income, Marital Status, Ancestry.

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Targeting housing for homeless people, chronically homeless people, or people with disabilities does not violate any Fair Housing laws.

A housing provider can discriminate in favor of groups if the discrimination—

• Is necessary to achieve a public policy purpose compelling enough to override the discriminatory effect and

• Effectively carries out the intended purpose.

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A policy/law/program that, on its face, discriminates against a “protected class” of people violates Fair Housing laws.– Example: a city limit on the number of people

with disabilities who may benefit from a housing trust fund.

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A policy/law/program that does not seem to discriminate and is outwardly neutral, but has a disproportionately adverse impact on protected class of people (“disparate impact”) also violates Fair Housing laws.– Example: limiting a program to residents of a

geographic area may disproportionately impact a protected class underrepresented in that area.

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Fair Housing in Practice

Many elements of housing operations are guided by Fair Housing laws: – Affirmative Fair Marketing Plan– Tenant Screening & Selection

Reasonable Accommodation is the process used to adapt housing to meet the needs of persons with disabilities.

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Fair Housing in Practice

HUD/DOJ Statement: One type of disability discrimination

prohibited by the (Fair Housing) Act is the refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.

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Reasonable Accommodation

A "reasonable accommodation" is a change, exception, or adjustment to a rule, policy, practice or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling.

Relationship must exist between disability and accommodation.

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Reasonable Modification

A reasonable modification is a structural change made to existing premises occupied (or to be occupied) to a person with a disability in order to afford such a person full enjoyment of the premises.

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Reasonable Modification

As with a reasonable accommodation, to show that a requested modification may be necessary, there must be an identifiable relationship – or nexus – between the requested modification and the individual’s disability.

The requested modification must be reasonable.

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Reasonable Accommodations

Requests for changes to:

– Rules

– Policies

– The way services are provided

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Reasonable accommodations are auxiliary services, aids, or barrier removals.

Undue burden is evaluated in light of the nature and cost of the accommodation, the financial resources of the facility, the financial resources of the entity, and type of operation.

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Aren’t we required to treat everyone the same?

No…..

However, you must offer everyone the opportunity to request a reasonable accommodation or modification.

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What do the property manager and service provider need to do to ensure reasonable accommodations are available to applicants and tenants?– Language– Forms– Processes

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Most Frequent Request Areas:– Intake and Screening– Occupancy– Daily interactions with tenants– Property Management rules– Maintenance

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Verbal requests must be considered; Watch for implicit requests; Use standard forms for requests.

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Reasonable Accommodation Request Process– When can an applicant or tenant

request a Reasonable Accommodation?– What process should be followed?– What factors should be considered?

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When considering a reasonable accommodation/modification request a Housing Provider can only take the following four factors into consideration:

1) Disability: Is the individual qualified?

2) Necessity: Is the request for an accommodation or modification necessary?

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When considering a reasonable accommodation or modification request a Housing Provider can only take the following four factors into consideration:

3) Cost: Would the requested accommodation impose an undue financial or administrative burden?

4) Would the requested accommodation or modification require a fundamental alteration in the nature of the program?

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In rental housing:– Tenant is often required to make physical

changes at their own cost; and– The landlord is allowed to require the

renter to agree to restore the premises to their original condition.

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Forms and processes should aim to:

Determine that an individual (or the prospective tenants) are qualified under the law for a reasonable accommodation or modification, and

Verify that what is being requested is consistent with the needs associated with the individual(s) and their disability.

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What kinds of information, if any, may a housing provider request from a person with an obvious or known disability who is requesting a reasonable accommodation?– Only information that is necessary to

evaluate the disability-related need for the accommodation.

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If a disability is not obvious, what kinds of information may a housing provider request from the person with a disability in support of a requested accommodation? – In response to a request for a reasonable

accommodation, a housing provider may request disability-related information to:• Verify the disability• Describe the accommodation• Show the nexus

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Who Decides What Is Reasonable?– What amount of input, if any, does the

housing provider have in deciding whether the requested accommodation is reasonable?

– Does the housing provider need to follow exactly what has been requested of them?

– Does the housing provider have a say in what accommodations are to be made?

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Courts are divided… There exists much uncertainty about where the

limits are drawn on how much voice each of the parties have in determining whether the requested accommodation is unduly burdensome or constitutes a fundamental alteration.

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Reasonable Accommodation and Eviction

The reasonable accommodation mandate applies to the termination of a lease just as it does to the terms and conditions of a lease.

Even when a tenant could legitimately be subject to eviction, a landlord cannot necessarily evict a tenant with a disability solely because of behavior related to the tenant's disability.

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Compliance with procedural protections is not a substitute for providing a reasonable accommodation when requested to do so.

Accommodations might take the form of a tenant agreeing to modify his or her own behavior, or might involve a landlord altering its policy or rules, and possibly even absorbing some cost.

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In order to receive an accommodation as an alternative to eviction, the tenant must establish the link between the tenant's noncompliance with a lease and the tenant's disability.

Once a tenant shows that a disability is the reason for noncompliance with a lease, the tenant must show that an accommodation will allow the tenant to remain compliant with the lease.

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Exemptions From Protection

The requirement that a landlord accommodate a tenant by not proceeding with an eviction does not mean that a tenant will be allowed to continue violating lease provisions.

If the lease violation is related to current illegal drug use, a landlord will not be required to keep a tenant even if the tenant commits to enrolling in a drug treatment program.

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Courts are also unlikely to require landlords to make accommodations that are related to a tenant's lack of income and consequent inability to pay rent.

Despite showing a clear relationship between the lack of income and disability, the courts in certain cases refused to require accommodations that would allow the prospective tenants to overcome income-related barriers to housing.

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Another explicit exemption from protection under the Fair Housing Act is any tenant "whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.“

Courts have held that landlords must show that "no reasonable accommodation will eliminate or acceptably minimize the risk [a tenant] poses to other residents" before proceeding with an eviction.

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Conclusion

The bottom line is to work with your residents and engage in an interactive process.

If management cannot grant the request for an accommodation or modification, is there an alternative accommodation or modification that would effectively address the requester’s disability-related needs?

If there is, you should propose it. And you should document in writing your proposed solution.

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Resources

U.S. Department of Housing & Urban Development: www.hud.gov/fairhousing

http://www.hud.gov/fairhousing

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Resources

BETWEEN THE LINES: A QUESTION AND ANSWER GUIDE ON LEGAL ISSUES IN SUPPORTIVE HOUSINGCALIFORNIA EDITION, 2010www.csh.org

http://www.csh.org/

For More Information

www.csh.orgOr call CSH for technical assistance

http://www.csh.org/

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