Reasonable Accommodations and Modifications for People with Disabilities Deborah Thrope, Staff AttornEy National Housing Law Project AIDS LEGAL REFERRAL PANEL November 10, 2016 Most HUD complaints are made on the basis of disability discrimination. It used to be race but disability is now the highest with about 45% of HUD complaints. Of the disability-related complaints, failure to provide a reasonable accommodation is by far the largest percent.

What we’re covering today Housing obstacles faced by people who experience disabilities Housing rights and protections available for people with disabilities How to analyze a reasonable accommodation and reasonable modification request

Common Housing Issues Faced by People with Disabilities

Obstacles to Finding Housing Poor rental, credit, or criminal history due to disability Lack of units that are accessible for people with mobility impairments Refusal to rent to an applicant who has a service animal Stereotypes about individuals with disabilities Insufficient income to pay the rent

Obstacles to Maintaining Housing Tenant needs a transfer, but housing provider says that it lacks another accessible unit Tenant needs a modification to make the apartment physically accessible Tenant in subsidized housing may be absent from the unit during hospitalization or treatment Tenant needs disability-related changes in policies or rules, including lease terms. Examples of when the tenant may be unable to fulfill a lease or program requirement due to disability: Inability to leave the unit to pay rent or to attend meetings at the housing provider’s office Inability to exclude an abusive family member from the unit Failure to pay the rent on time due to receipt of benefits Exhibition of disruptive behavior caused by disability-related symptoms

Teresa Tenant, Teresa, comes to you with a 3-Day Notice to Comply with the Lease or Quit due to a “foul odor coming from her apartment” You visit her apartment and find this: The rest of the rooms have clutter piled almost to the ceiling. Teresa wants to stay and says she just needs time to clean. What can you do to help Teresa remain in her home? Can you request a reasonable accommodation? What is the specific ask? An exception to something in the lease about maintenance of unit. Or, nuisance. Does Teresa experience a disability? Hoarding is in most recent version of DSM IV. In any case, associated with a range of disabilities. To whom should you make the request? LL

Reasonable Accommodations

Key Laws that Authorize RAs Fair Housing Act (FHA): 42 U.S.C. § § 3604, et seq Section 504 of Rehabilitation Act: 29 U.S.C. § 794 Americans with Disabilities Act (ADA): 42 U.S.C. §§ 12131, et seq (and ADA Amendments Act of 2008) State laws, such as California’s Fair Employment & Housing Act (FEHA) State law offers similar protections but I will point out a few places where state law protections are broader than federal law, throughout the presentation. FHA applies to a broad range of housing providers. Section 504 applies to entities that receive federal assistance such as HUD-subsidized housing, DV shelters, and others. It doesn’t apply to private landlords including housing providers who accept vouchers. Section 504 creates a heightened obligation to make sure that all people with disabilities can use federally-funded programs. Section 504 includes the right to reasonable accommodations and modifications as well as new construction accessibility requirements 24 CFR 8.20 Important to note that Section 504 does not apply to private housing or housing providers who accept Section 8 vouchers. Title II of the ADA prohibits discrimination in state and local government services. Title III Prohibits discrimination in public accommodations. The ADA includes prohibitions on the basis of disability that are very similar to those of Section 504: covers housing, programs & services As with 504, the ADA prohibits methods of administration that have effect of discrimination (24 CFR 25.130) imposes programmatic requirements. 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 Also note that state FH laws require LLs to make reasonable accommodations. DFEH Council is in the process of drafting regulations related to RAs. Formal comment period starts on Friday. Invited to join working group drafting comments.

What is a Reasonable Accommodation? A reasonable accommodation is a change in a rule, policy, practice, or service that may be necessary to allow a person with a disability the equal opportunity to use and enjoy a dwelling.

PERSON WITH A DISABILITY makes a request that is When Must a Housing Provider Grant a Request for Reasonable Accommodation? When a PERSON WITH A DISABILITY makes a request that is NECESSARY and REASONABLE

Who is a person with a Disability? Handicap (disability) is defined as a physical or mental impairment that: Substantially* limits one or more life activities or Has a history of impairment or Is regarded as having an impairment *CA state law does not require that the disability “substantially” limit Impairment of Life Activity: Physical- Caring for one’s self, performing manual tasks, walking, seeing, hearing speaking, breathing, an many others Mental: Caring for one’s self, learning, working, interacting with others, remembering Developmental: Ability to learn with onset before age of 18 Note: A medical diagnosis is not the same as a disability. Not all people with a diagnosis for an illness or a medical condition are impaired by it, though they may sometimes be regarded as such and become entitlted to protection under FH laws.

Current Illegal User of a Controlled Substance The only exception to the definition of disability: A current illegal user of a controlled substance is not disabled for the purposes of reasonable accommodation. However, an individual with a disability can include someone who has successfully completed a drug rehabilitation program, is currently in such a program, or is mistakenly regarded as engaging in illegal drug use. Cite is to 42 U.S.C. Sec. 12210(b). Former substance abuse: Explain to provider that substance abuse is a disability. “Nothing . . . Shall be construed to exclude as an individual with handicaps an individual who – (I) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use; (II) is participating in a supervised rehabilitation program and is no longer engaging in such use; or (III) is erroneously regarded as engaging in such use, but is not engaging in such use.” – 29 U.S.C. §705(20)(C)(i)

When is an Accommodation Necessary? There is a nexus or connection between the disability and the requested accommodation. The change enhances the tenant’s use and enjoyment of the unit by ameliorating the effects of the disability.

When is an Accommodation Reasonable? No undue financial or administrative burden on the landlord or housing provider Considerations for undue financial burden: benefit to tenant, costs, financial resources, and availability of less expensive accommodation. Will often cause some financial burden, which must be absorbed by the housing provider. Can not fundamentally alter the nature of the program. Fundamental Alteration: the request would require the provider to change the nature of the services it provides Recent case in D.C. Hearing impaired client was denied an accommodation for documents in an accessible format from PHA. PHA argued financial burden. HUD wrote an opinion letter explaining that the PHA had to look at its entire budget to determine whether or not financial burden. How much is in reserves for example? Raises issue that PHAs are not required to put money aside for RAs which is problematic.

Exception: Direct Threat An accommodation may be denied if the tenant poses a direct threat to the health and safety of others. The threat must be objective, not subjective.

Direct Threat Assessment Must assess: Nature, duration, severity of risk; Probability that potential injury will occur; Whether reasonable accommodation will mitigate risk. Cite to: 24 C.F.R. § 9.131(c); 28 C.F.R. § 36.208(c); HUD-DOJ Joint Statement, Q. 5; cf. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 86 (2002). Case example of an elderly gentleman who received a notice to quit. Requested RA and LL argued direct threat.

How a Request is Made Requests may be oral or written. If possible, it is always best to make them in writing, but doing so is not necessary. The reasonable accommodation process begins once a tenant tells a housing provider that they are disabled and need something changed in order to accommodate that disability.

Elements of a Request Disability: State that the tenant has a disability. It does NOT need to say the name of the disability, just the symptoms that necessitate the accommodation. Accommodation: The request should state what accommodation the tenant is looking for. Necessary: The request should state how the accommodation is related to the person’s disability and how it will help them access, utilize, or remain in the housing program.

Verification of Disability Three possibilities 1. If a person’s disability is obvious or known, and the need for the requested accommodation is known, then the housing provider should not ask for any more information. 2. If the disability is known or obvious, but the need is not, then the housing provider should ask only for information necessary to verify the need for the accommodation. 3. If neither the disability nor the need for the accommodation is readily apparent, the housing provider should ask for verification of both the disability and the need for the accommodation.

Denial of Accommodation If the housing provider finds that the requested accommodation is not reasonable, its obligation does not end. The provider must engage in an interactive process and try to determine with the tenant if another accommodation is feasible. If no alternative accommodation is agreed to, it is treated as a denial of the original reasonable accommodation request. For federally assisted housing – the Section 504 hearing may substitute as the interactive process.

Santiago You meet Santiago at intake. He has a 30-Day Notice to Quit. Management received several complaints that Santiago is acting aggressively towards neighbors by yelling at them as they pass by his front patio. People report being scared. Neighbors also complain that Santiago has been watching TV loudly late at night. Santiago says he can explain his behavior but he refuses to talk to management about these issues. What questions will you ask at intake? How can you help?

Examples of Accommodations

Admissions Considering disability as a mitigating factor when determining eligibility – for example, where there are problems with the rental history related to the disability Rescheduling meetings/holding them in the applicant’s home or accessible location Alternative forms of communication Accepting co-signors for people who are low-income because of disability

Locating Voucher Unit Provide current listing of known accessible units Extending voucher search time Increasing payment standard Renting from a relative

Occupancy Unit size – extra rooms for disability-related needs Must allow live-in aide Must allow service/companion animals Includes shelters & congregate living situations Increase in utility allowance Unit transfers Parking

Eviction/Termination Can request reasonable accommodation at any time, including after eviction/termination has begun Landlord must consider RA requests until judgment of eviction is entered by the court Must consider whether or not a RA would allow a person with a disability to remain Can reinstate voucher/tenancy

Enforcement HUD Complaint DFEH Complaint Federal Court State Court

Tenant and Max

Reasonable Modifications

Reasonable Modification 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. Anytime during tenancy. Modifications may be made to the interior of the unit, exterior of premises, and common use areas. Need: The tenant is entitled to a reasonable modification that is necessary to afford equal housing opportunity to use or enjoy dwelling. How: Tenant asks for it/may need to reveal and document disability. Tenant responsibilities include guaranteeing construction will be accomplished in a workmanlike manner, permits if required, and escrow to pay for interior retrofitting upon vacating.

Who pays? Private housing: Tenant pays for construction and may be required to restore interior especially if reducing marketability. Subsidized housing: Housing provider pays unless doing so would pose an undue financial burden. For private tenants, may be required to put money into an interest bearing escrow account to guarantee restoration of interior. For subsidized tenants: Rationale: HUD money goes into property’s escrow account for maintenance or redevelopment, and accessibility modifications may be within normal scope of expected maintenance/restoration

Meet Tyrone Tyrone rents an apartment using a Section 8 voucher. He needs to install a wheelchair ramp in the entryway of his home. Tyrone requests that his landlord allow him to construct a wheelchair ramp. Who should pay for the construction? Are there other modifications or accommodations that Tyrone could request that would allow him to live in an accessible unit? Under Section 504: Identify accessible units on Section 8 Referral List and “otherwise assist family to locate an accessible unit” (i.e., extension of voucher period; approve request for exception rent under 24 CFR Section 982.504(b)(2))

Questions? Contact Information: Deborah Thrope, National Housing Law Project, dthrope@nhlp.org; (415) 546-7000 ext. 3124