Avoid Seven Mistakes When Verifying Disability
April is National Fair Housing Month, which, according to HUD, is time for people to come together “as a community and a nation to celebrate the anniversary of the passing of the Fair Housing Act (FHA) and recommit to that goal which inspired us in the aftermath of Rev. Dr. Martin Luther King Jr.’s assassination in 1968: to eliminate housing discrimination and create equal opportunity in every community.”
Housing discrimination persists, and one major category of discrimination complaints under the FHA is discrimination based on disability. In fact, more than half of all fair housing complaints are for disability discrimination, many involving disputes over reasonable accommodation requests. According to the FHA, it’s unlawful to discriminate against applicants and residents because of their disability or the disability of anyone associated with them. But the law goes further by requiring you to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to give a resident an equal opportunity to use and enjoy a dwelling. It is unlawful to wrongly withhold such an accommodation.
Sites must consider a reasonable accommodation request by an individual with a disability, whether it’s physical or mental, obvious or not. Some disabilities, like visual or hearing impairments, are obvious or apparent, while other disabilities show little outward sign of impairment. But it doesn’t matter as far as the law is concerned. If the request is for someone who doesn’t have an obvious or apparent disability, then the law permit sites to request disability-related documentation to verify that he qualifies under the FHA’s definition of “disability.”
We’ll go over seven common mistakes site owners and managers make when asking for disability-related information, to help you avoid the missteps that often lead to fair housing trouble.
Mistake #1: Asking for Disability-Related Information When You’re Not Supposed to
Don’t ask applicants and residents any questions related to a disability unless you’re sure it’s allowed under fair housing law.
Under the FHA, it’s generally unlawful to ask an applicant or resident whether he (or someone in his household) has a disability or to ask about the nature or severity of a disability. Unless he’s requested a reasonable accommodation, you could get into hot water if you ask any questions about an applicant or resident’s disability.
There are a few questions you can ask. For example, federal guidelines allow you to ask about an applicant’s ability to meet the requirements of tenancy—as long as you ask all applicants, regardless of disability, the same thing. You also may ask whether applicants are qualified either for a dwelling available only to individuals with disabilities or for a priority available only to such individuals.
Federal law also allows you to ask questions concerning current illegal drug use or convictions for the illegal manufacture or distribution of a controlled substance. Although the law protects applicants recovering from past drug addiction, it specifically excludes individuals who are currently using illegal drugs.
Mistake #2: Asking for Verification When There’s an Obvious Disability-Related Need for Accommodation
Get to know when you can ask for disability-related information from applicants or residents who request reasonable accommodations. In general, sites are entitled to obtain information necessary to evaluate whether the requested accommodation may be necessary because of a disability, according to federal guidelines. Whether it’s necessary to ask for disability-related information boils down to two questions:
- Is the request by or for someone with a disability?
- Does the person have a disability-related need for the requested accommodation?
If a person’s disability is obvious, or otherwise known to the site, and if the need for the requested accommodation is also readily apparent or known, then you can’t ask for any additional information about the individual’s disability or disability-related need for the accommodation, according to federal guidelines. For example, if an applicant with an obvious mobility impairment asks for a parking space near the entrance to the building, then you can’t ask him for further information, because both the disability and the disability-related need for the accommodation are readily apparent.
However, reasonable accommodation doesn’t mean that anyone with any disability must have every request approved. If there’s no connection between the disability and the request, the landlord isn’t required to grant the accommodation.
That’s why the guidelines allow you to ask for additional information from an applicant with an obvious disability if the need for an accommodation isn’t readily apparent.
Mistake #3: Treating Requests from People Who Don’t Have Obvious Disabilities with Suspicion
Everyone needs to understand that all disabilities are equal under the law. As far as fair housing law is concerned, a resident with a physical disability is no “more disabled” than a person diagnosed with depression. It doesn’t matter whether it’s a physical disability that can be seen, a physical disability that can’t be seen such as lupus or epilepsy, or an emotional or mental illness like depression. All people with these disabilities have equal standing under the law, and each is just as entitled to his particular reasonable accommodations as the others.
When handling a reasonable accommodation request from someone who doesn’t have an obvious or apparent disability, federal guidelines allow you to request reliable disability-related information that is:
- Necessary to verify that he meets the FHA’s definition of “disability” (that is, has a physical or mental impairment that substantially limits a major life activity);
- Describes the needed accommodation; and
- Verifies the connection between his disability and the need for the requested accommodation.
The type and source of documentation that may be required to verify disability depends on the circumstances, according to the guidelines. Verification may come from an applicant himself, for example, with proof that an individual under age 65 receives Supplemental Security Income or Social Security Disability benefits or “a credible statement by the individual.” A doctor or a medical professional, peer support group, or reliable third party in a position to know about the individual’s disability may also provide verification of a disability. In most cases, the guidelines state that an individual’s medical records or detailed information about the nature of his disability are not necessary to verify a disability.
Once it’s established that the applicant has a qualifying disability, the site may seek information necessary to evaluate whether the requested accommodation is needed because of that disability. The information must be kept confidential and may not be shared with others (absent disclosure required by law) unless they need it to evaluate the accommodation request.
Mistake #4: Adopting a ‘One Size Fits All’ Policy for Disability Verification
Consistency is often the key to fair housing compliance—but not when it comes to reasonable accommodation requests. Each of these disability accommodation requests is unique and must be considered based on its specific facts.
The same holds true when asking for disability-related information related to reasonable accommodation requests. Verification of disability should not be seen as if we do it for one, we must do it for all. In some instances, you can ask applicants and residents who request reasonable accommodations to provide certain disability-related information—just don’t make the mistake of assuming you can do the same with everyone who makes a reasonable accommodation request.
When it comes to asking for disability-related information, tailor your requests to what you need to evaluate the reasonable accommodation request. Let’s say a person in a wheelchair wants a reserved parking space. You shouldn’t ask her for documentation because both the disability and the need for the requested accommodation are obvious. If the same resident wants a flashing light fire alarm, the mobility disability is obvious, but the need for the accommodation, which is usually associated with a hearing impairment, is not. That means you can’t ask her to verify the disability, but you can ask for information to verify that there is a disability-related need for the requested accommodation.
But take a third example: A resident walks into your office and says he needs a parking space right near the entrance, but he needs a quick answer because he has to get to his aerobics class. In circumstances like these, you can ask for verification of the disability and the disability-related need for the requested accommodation because neither is obvious or apparent.
Mistake #5: Requiring Everyone to Use Your Forms
It’s a good idea to have standard forms for verifying disability, but it’s a bad idea to refuse to consider reasonable accommodation requests when people don’t use them. For example, it’s a mistake to insist on using your forms when people come in with their own documentation to verify disability for a reasonable accommodation request. You can’t refuse to consider their paperwork just because it’s in a different format than your standard disability verification forms.
When people don’t come in with documentation, then you can use a standard disability verification form for reasonable accommodation requests when there’s no obvious disability-related need for the requested accommodation. The purpose of the form is to verify the existence of a disability—not what the disability is—and the disability-related need for the requested accommodation.
Also, don’t tell people to bring in a note from their doctor. The verification doesn’t have to be from a doctor—it may come from another healthcare provider, social worker, or other reliable third party in a position to know about the individual’s disability.
Mistake #6: Putting Too Much—or Too Little—Stock in Online Certifications
Knowing the rules on disability verification is essential to avoid the common mistakes that lead to complaints involving requests for assistance animals. It’s particularly important now that so many applicants or residents can go online and find a quick “certification” process to say their dog is a certified assistance animal, which really creates problems for management.
Verification, when appropriate, should come from a credible source. When an applicant provides you with an online certification that he needs an assistance animal, you should determine whether it meets the requirements that it’s reliable and from someone familiar with the applicant’s disability. It’s a mistake to automatically assume that an online certification wasn’t issued by any recognized group, or a medical or mental health provider, and deny the request.
Furthermore, just because someone obtains one of these easy online certifications doesn’t mean he’s not allowed to have the animal. If the person has a diagnosed medical or mental condition that requires an assistance animal, then the fact that the online certification may have no legal standing doesn’t end the conversation.
You still have the obligation to consider, respond, and act on the request, even though you suspect that the online verification submitted by the applicant is not sufficient to provide you with all the information you need to act on the disability accommodation request. You can send a written response to the request that it’s the rental owner’s and management’s policy to grant disability accommodation requests for assistance animals (which includes both trained service animals and untrained emotional support animals) but that you’ll need additional information from the applicant’s treating medical or mental health professional.
It’s important that you be able to receive confirmation from the applicant’s treating mental health or medical health professional to verify that the applicant is under the doctor’s or mental health provider’s care and treatment and that he has diagnosed a medical or mental condition that renders the patient disabled. Also, you may request confirmation from the treating doctor or mental health provider that the animals are prescribed to assist with the disability.
If the applicant or resident is unwilling to cooperate or obtain the proper medical or mental health provider’s assistance in verifying the information, then you may have a basis for denying the request. But this is a difficult area, so it’s important to get legal advice before taking any adverse action.
Mistake #7: Just Saying ‘No’
Don’t be too hasty to deny requests for reasonable accommodations if you’re dissatisfied with the response to your requests for documentation to verify disability. Even if the documentation isn’t sufficient, it’s a mistake to simply say “no” to an accommodation request. Whatever the circumstances, it’s a good idea to get legal advice before taking any adverse action, such as denying an accommodation request or imposing fines or starting eviction proceedings against a resident for violating your rules.
That’s because of the risk of a fair housing complaint unless you followed the rules to a tee. For one thing, you’ll need to double-check that your request for disability verification didn’t ask for anything you’re not entitled to, such as information about the nature of a resident’s disability.
Then, you should determine whether the documentation you received in response provides enough information for you to assess whether the resident is entitled to the requested accommodation. Check whether it’s from a reliable source, such as the applicant’s medical or mental healthcare provider, and verifies that the applicant has a disability and needs the requested accommodation because of that disability. If the documentation satisfies all those requirements, then it’s a mistake to ask for more disability-related information.
If it doesn’t, then you should engage in an interactive process to get the information you need to assess the resident’s accommodation request. For example, it’s common to see requests for multiple animals, where the documentation verifies that the resident has a disability-related need for an assistance animal, but doesn’t explain why he needs multiple animals, instead of just one. Let’s say a resident says he needs two dogs, and his verification indicates that he has a disability and needs a dog as an assistance animal, but doesn’t explain what two dogs will do that one can’t.
If he can’t come up with documentation to answer that question, you may be within your rights to allow him to keep only one, but it’s likely to provoke strong objections—and trigger a possible fair housing complaint. Instead of simply denying his request, it may be better to engage in an interactive process to come up with an alternative that would satisfy both parties. In situations like these, some sites would allow the resident to keep both dogs with the understanding that there will be no replacement when one of them passes on.
Editor’s Note: For more information, you can download our on-demand webinar, “When and How to Verify Disability After Receiving an Accommodation Request,” here.