Reasonable Accommodations and Modifications Presented by Joe Garcia, Fair Housing Center Ben Watson, Nebraska Equal Opportunity Commission

Introduction Joe Garcia Director joe@fhasinc.org 402-934-6669 Prior to that I was an Investigator at the NEOC. Prior to that I worked in education as a Title IX Investigator and travelled across western Iowa teaching various campuses about that subject.

Introduction Ben Watson Unit Director – Housing Unit Director – Education and Outreach ben.watson@nebraska.gov 402-595-2099 Prior to that I was an Investigator at the NEOC. Prior to that I worked in education as a Title IX Investigator and travelled across western Iowa teaching various campuses about that subject.

Protected Classes under the Fair Housing Act Race Color Religion National Origin Disability Familial Status Sex

“substantially limits” (broad coverage) Definition of Disability Physical or Mental impairment which “substantially limits” (broad coverage) one or more major life activities

Who is disabled? Actual impairment Record or History of such impairment Regarded or Perceived as having such an impairment

An impairment that is episodic or in remission Actual or Record of An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Examples of Actual and Record of Disability Physiological disorder or condition Cosmetic disfigurement Anatomical loss Mental or Psychological disorder or condition Under Physiological, we have Neurological, Musculoskeletal, special sense organs, respiratory, speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, endocrine. Under Mental we have mental retardation, organic brain syndrome, emotional illness, mental illness, specific learning disabilities.

b. The buyer/renter treated in the manner because of attitudes “Regarded as” Perceived Disability Treated as if one has a disability covered under the Americans With Disabilities Act and complains of harm based on disability discrimination. This is done when: a. The buyer/renter has a medical condition that is not covered but the medical condition is regarded as being covered b. The buyer/renter treated in the manner because of attitudes

“Regarded as” (1)shall not apply to impairments that are transitory and minor. Transitory means an impairment with an actual or expected duration of 6 months or less. Some impairments of less than 6 months may be substantially limiting. (2) Are not entitled to consideration for reasonable accommodation under the ADAAA

Other persons covered under the ADA Any person associated with the buyer or renter who has a disability Any person residing in or intending to reside in the dwelling along with a person with a disability

Exclusions of some medical conditions are not changed under the ADAAA Current illegal use of drugs Psychoactive substance use disorders from current illegal use of drugs Sexual Impairments Compulsive Behaviors

Major Life Activities include: Walking Speaking Breathing Seeing Hearing Learning Performing manual tasks Standing Thinking Caring for oneself Working Eating Sleeping Sitting Lifting Bending Reading Concentrating Communicating

the ameliorative effects of Other than ordinary eyeglasses or contact lenses whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures:

Mitigating Measures Medical supplies Equipment Appliances Prosthetics Oxygen therapy equipment and supplies Hearing aids and cochlear implants; other implantable hearing devices Mobility devices Animals

Remember… Not all disabilities are visible The nature of a person’s disability is a private manner A housing provider is not entitled to inquire for details

best and objective medical evidence available. The medical provider decides whether a person is in the protected class of disability based upon the best and objective medical evidence available. Treating physician familiar with impairments Physician aware of the person’s limitations Vocational Rehabilitation Therapist Others? Social worker? Nurse? Counselor?

What is a Reasonable Accommodation? Request for changes in the rules, policies, practices, or services necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling.

What Gives Rise to a R/A Request? The person has a disability within the meaning of the law. The housing provider knows, or should know, of the disability. The accommodation is needed to allow the tenant to have the full benefit of the housing. The housing provider knows, or should know, of the need for the accommodation. “Should know” = person in wheelchair needing parking close to building

Examples of ways an accommodation might be requested… A tenant/buyer states it is needed. 2. A tenant/buyer submits a medical prescription which demonstrates there is a connection between the disability and the request for the accommodation. 3. Someone acting on behalf of the person with a disability makes the request. A tenant states he or she will need a 2-bedroom unit for the person who will live with them to provide medical assistance A tenant submits a medical prescription for a service/companion animal and demonstrates there is a connection between the disability and the request for the accommodation Someone acting on behalf of the person with a disability makes the request. The Act does not require that the request for accommodation be made in any particular manner or at any particular time. The person making the request does not have to use the magic words: “Disability”, or “Reasonable” or Accommodation”, and does not need to mention “ADA” or the Fair housing Act. However, the request has to be made unambiguous, so that it is clear

What is Reasonable? Does not pose a *financial and administrateive hardship (undue burden) Does not create a *safety/health threat or threat to property. Must be a direct threat. Is *not disruptive to the peaceful enjoyment of other tenants Does not impose a fundamental alteration in the nature of the housing provider’s program.

UNDUE BURDEN Excessively costly, extensive, substantial, or disruptive, financially and administratively. Takes into account the cost of the accommodation in relation to the total resources of the landlord.

“Direct Threat” What is it? The accommodation poses a health or safety issue to the housing provider, tenants, or others , and/or poses a threat of physical damage to the property of those people, and such threat cannot be removed by reasonable accommodation Use these factors to decide: Duration of the risk Nature and severity of the potential harm Likelihood that the potential harm will occur Imminence of the potential harm

Disrupting Peaceful Enjoyment If an accommodation would significantly disrupt the peaceful enjoyment of other tenants, it might not be reasonable. “I am required to play extremely loud music at night to relieve stress related to my anxiety.”

Fundamental Alteration Does the accommodation being requested fit within the scope of the services you provide as a housing provider? Ex1: An accommodation request by a person who has trouble leaving her apartment for the apartment manager to go grocery shopping for her once every two weeks. Ex2: An accommodation request by a person who has trouble leaving her apartment for maintenance personnel to come by and pick up her garbage and take it to the dumpster twice a week.

What is Reasonable? redux Does not pose a *financial hardship (undue burden) Does not create a *safety/health threat or threat to property. Must be a direct threat. Is *not disruptive to the peaceful enjoyment of other tenants Does not impose a fundamental alteration in the nature of the housing provider’s program. If a request doesn’t trigger any of these problems, it has a very good likelihood of being considered “Reasonable”.

Some Suggestions for Accommodations No charge for additional paperwork associated with making an accommodation (or allowing a modification) No charge for a tenant moving from a non-accessible unit to an accessible one Allow the prospective tenant/buyer assistance for completing application material

Criminal History Policies – Reasonable Accommodations? If the person was convicted of the illegal use of legal or illegal drugs and has been or is in a drug rehabilitation program, the person will have to be regarded as having a medical condition requiring consideration of a reasonable accommodation. The same is true for convictions related to alcoholism: convictions related to alcohol abuse of a person who currently is under medical treatment, or successfully completed medical treatment, will have to be regarded as having a medical condition requiring consideration of a reasonable accommodation.

Service/Companion Animals and Reasonable Accommodation This presentation will help to clarify the rights of persons with disabilities to have a service/ companion animals, and will help to clarify the responsibilities of housing providers. The Fair Housing Act prohibits housing providers from treating applicants for housing, or residents unfairly, because they are in the protected class of disability. Refusal or unwarranted delay in allowing a person with a disability a reasonable accommodation, is a violation of federal and state housing laws, unless the housing provider falls into one of the exceptions.

What is a service animal? Any animal individually trained to perform tasks for the benefit of a person with a disability No national standard regarding the training or performance of a service animal, including guide dogs This is an ADA term. “Service animal” or “service dog” does not appear in the FHA.

What is a companion animal? Also referred to as assistive, emotional support or therapeutic animals Typically for persons with mental or emotional disabilities Assist with depression or anxiety Provide emotional support There is no national standard regarding the training or performance of a companion animal. Companion animals are not included in the ADA, and the words companion animal do not appear in the FHA.

What is an assistance animal? Assistance animal is the technically correct term that covers both Service and Companion animals in housing and under the Fair Housing Act. In housing there is no distinction between a service dog and a companion animal. The FHA affects Assistance Animals.

Why must one allow an animal when there is a “no pets” policy? Under Federal and State Fair Housing laws, tenants may ask their housing provider to make reasonable accommodation to the “no pets” policy. An accommodation request is just a request for an exception to a rule because of a disability-related need. Your no pet policy is just a rule, like any of your other policies or rules. Once the need for the animal is verified by a qualified professional the exception must generally be made.

What about a pet deposit? NO, but… Tenant is responsible for the actions of the animal Tenant can be held accountable for any damage to property Tenant must comply with established policies regarding maintenance and cleaning, or leash policies and noise guidelines

State: The owner/manager complies with fair housing laws. What if other tenants complain about an exception being made to the pet policy? State: The owner/manager complies with fair housing laws. No information about the disabled tenant’s situation. One may also refer the inquiring party to the Fair Housing laws.

What is the tenant’s responsibility regarding the service/companion animal? Require the tenant to supervise and maintain control of the animal at all times Require the tenant to immediately remove animal waste from common areas

Where must one allow the animal on the property? The service/companion animal must be allowed to accompany the tenant at all times, and everywhere on the property except where animals are specifically prohibited to maintain safe operation

Areas where animals may pose significant health or safety hazards, such as swimming pools, may be designated as off-limits to service/companion animals (but such designations may not interfere with the disabled person’s right to fully enjoy the amenities)

Some Suggestions for Accommodations The landlord cannot charge a tenant for additional paperwork associated with making an accommodation If a person needs help in completing application material, it should be provided If a person fails to fill out your paperwork, you cannot deny the accommodation request solely on that factor.

Breed, size, and weight limitations do not apply to assistance animals. Determinations that an animal poses a direct threat of harm to others must be made on an individual assessment based on objective evidence about the specific animal in question. Not mere speculation or worry. Not based on actual damage other similar animals have caused.

What information may one request from tenants regarding service animals (or any accommodation)? One may ask the tenant to provide documentation from a qualified professional regarding the need for an assistance animal (or other accommodation) One may not ask the tenant to provide any details regarding the nature of the disability, medical records, or proof of training Remember, anyone with an actual disability or a record of a disability is entitled to a reasonable accommodation if needed to provide them with equal enjoyment of their dwelling.

More thoughts on Reasonable Accommodations and Animals Most important thing to remember is the interactive process. Paperwork should not be made mandatory, nor implied that it is mandatory. Come up with an alternative system. Permission slips / medical releases – why? Be careful being overly picky about language.

Reasonable Modifications

Reasonable Modification: It is unlawful to refuse to permit reasonable modification of existing premises occupied or to be occupied by a person with a disability if such modification may be necessary to afford full enjoyment of the premises.

Tenants with Disabilities: How it works… Tenants with Disabilities: Pay for the work themselves Seek advance approval from the housing provider. Obtain any building permits and meet building standards Restore interior of unit upon ending the lease

24 C.F.R. § 100.203 (Code of Federal Regulations) The landlord allowing the modification: May not increase the security deposit. May negotiate a provision for the tenant to pay into an interest bearing escrow account, over a reasonable period, a reasonable amount of money not to exceed the cost of restoration. May not require the tenant to use specific contractors or companies to do the work

What is different under 504? Section 504 of the Rehabilitation Act of 1973 changes your obligations. Recipients of federal financial assistance must provide modifications unless doing so would result in a fundamental alteration in the nature of its program or an undue financial and administrative burden. Cost is on housing provider to make the modifications.

Questions? ben.watson@nebraska.gov 402-595-2099