Clearing up Misconceptions About Reasonable Accommodation Requests
This month marks the 44th anniversary of the signing of the Fair Housing Act (FHA), which protects individuals against discrimination in housing based on race, color, religion, sex, national origin, familial status, or disability. In honor of Fair Housing Month, we'll focus on reasonable accommodation requests by individuals with disabilities. This can be a confusing topic, so we're going to go over the rules and dispel common misconceptions about how to handle these requests properly.
Disputes about reasonable accommodations often lead to formal fair housing complaints. Overall, disability discrimination accounts for the most common source of complaints to federal, state, and local fair housing agencies. According to the most recent HUD statistics, 44 percent of the 10,000-plus complaints filed nationally in 2009 were based on disability, and roughly half of those—22 percent—involved reasonable accommodation requests.
We'll separate fact from fiction by clearing up the 10 most common myths about the law and explaining just what is required to identify and handle requests for reasonable accommodations properly.
Which Laws Address Reasonable Accommodations?
Federal civil rights laws prohibit discrimination against applicants or residents based on disability as well as other classifications. Beyond the following federal requirements, state and local laws offer additional protections. They vary widely and many of them set out more exacting requirements than federal laws, so it's a good idea to hire an attorney who's knowledgeable and experienced in federal, state, and local requirements to review your site's reasonable accommodation policies.
Section 504. Under Section 504 of the Rehabilitation Act, which covers multifamily assisted sites, owners must operate each existing housing project so that, when viewed in its entirety, it is readily accessible to and usable by persons with disabilities. Among other requirements, Section 504 requires owners to respond to reasonable accommodation requests from residents or applicants with disabilities for adjustments to site policies and/or physical alterations.
Generally, under Section 504, the owner must make and pay for reasonable structural or physical modifications to dwelling units and/or common areas that are needed by applicants and residents with disabilities, unless these modifications would change the fundamental nature of the project or result in undue financial and administrative burdens. Housing providers not subject to Section 504 may not have to pay for the modification, but they would have to allow it.
An owner does not have to allow a modification unless the resident's health care provider verifies the need for it. Although you may not ordinarily inquire into the nature and severity of an individual's disability, you may do so in response to a request for a reasonable accommodation or modification. Also, the requested physical modification cannot create a structural problem in the building or render it unusable by other residents.
Fair Housing Act. Under the FHA, all multifamily property owners (not just assisted housing providers) are obligated to operate their facilities in a nondiscriminatory manner and to meet specific requirements to make their properties physically accessible to persons with disabilities.
In addition, the FHA requires housing providers to provide “reasonable accommodations” to persons with disabilities—meaning that an owner may have to modify rules, policies, practices, procedures, and/or services to afford a person with a disability an equal opportunity to use and enjoy the housing. As guidance issued jointly by HUD and the Department of Justice (DOJ) makes clear, the FHA prohibits discrimination against the disabled by refusing to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied, or to be occupied, by a person with a disability if such modification is necessary to afford such person full enjoyment of the site.
10 COMMON MYTHS THAT COULD LEAD TO FAIR HOUSING COMPLAINTS
Myth #1: You Can't Get in Trouble by Treating Everyone the Same
Since fair housing law bans housing discrimination based on certain protected characteristics, it's natural to think that you can't be accused of a fair housing violation if you treat everyone the same. As a general rule, that approach may ward off discrimination claims based on many protected characteristics, but it will inevitably lead to a fair housing complaint if you apply it to individuals with disabilities.
By definition, the FHA's reasonable accommodation provisions require housing providers to make exceptions to rules, policies, practices, or services when necessary to allow an individual with a disability to fully use and enjoy the site. Two of the most common sources of disputes under the FHA's reasonable accommodation provisions involve assistance animals and parking, but sites face a wide range of requests for exceptions to rules and policies as a reasonable accommodation for an individual with a disability. Examples include requests for live-in aides, transfers to different units, early lease termination, and allowing a cosigner on the lease.
The best way to stay out of fair housing trouble is to develop policies that address particular circumstances rather than the type of people involved, says fair housing expert Doug Chasick. That is, instead of trying to treat all people the same, sites should adopt policies that treat people in similar circumstances the same way to ensure compliance with fair housing laws, he explains.
Myth #2: Only Formal Requests for Accommodation Must Be Considered
No “magic” words are required to make a request for a reasonable accommodation. An applicant doesn't have to mention the FHA or use the words “reasonable accommodation,” according to the joint HUD/DOJ guidelines on reasonable accommodations.
Although an applicant or resident isn't entitled to receive a reasonable accommodation unless he requests one, the law doesn't require that a request be made in a particular manner or at a particular time. The guidelines state that an applicant or resident makes a reasonable accommodation request whenever he makes clear to the housing provider that he's requesting an exception, change, or adjustment to a rule, policy, practice, or service because of his disability.
Disputes often arise because most requests for reasonable accommodations aren't labeled as such, Chasick says. “It's important to be an “active listener,” he adds. Often, people say they need or want something because of some difficulty or limitation. Or it could be a question about whether your site allows something or whether the applicant will be able to do something—which could be a prelude to an informal request for a reasonable accommodation. For example, a prospect may ask whether your site allows pets; if your answer is no, Chasick says that you should follow up with “why?” If the prospect answers that he needs a dog for emotional support, it should be considered as a reasonable accommodation request.
The law doesn't require the request to be in writing or for the person making the request to use your forms or follow your procedures. If a resident refuses to put his request in writing or use your preferred forms, fair housing experts say that your staff should fill out the forms themselves to document the request and how it was handled.
Myth #3: There's No Such Thing as Being Too ‘Helpful’
Even when your intentions are good, you can get in trouble by being too “helpful—that is, offering accommodations to people whom you believe to be disabled. Appearances can be deceiving, so the person may not have a disability.
Requests for a reasonable accommodation must be made by or on behalf of the individual with a disability. A housing provider isn't obligated to provide a reasonable accommodation to a resident or applicant if an accommodation hasn't been requested, according to HUD/DOJ guidelines.
Myth #4: Request Can Be Denied If Reason for It Isn't Obvious
Don't decide than an applicant or resident isn't entitled to a reasonable accommodation simply because he doesn't have an apparent disability or because the disability-related need for the requested accommodation isn't obvious.
The FHA's disability provisions may apply even if an individual's impairment isn't obvious or apparent. Examples listed in the HUD/DOJ guidelines include autism, epilepsy, cancer, heart disease, diabetes, HIV infection, emotional illness, drug addiction, and alcoholism.
Nevertheless, not everyone who has an impairment will qualify for the FHA's disability protections. The definition of “disability” requires that the impairment substantially limit one or more major life activities, which means that it has a significant impact on activities that are central to daily life, such as seeing, hearing, walking, or caring for oneself.
Myth #5: You Can Never Ask About an Applicant's Disability
It's true that the FHA usually bars housing providers from asking whether an applicant or anyone in his household has a disability and the nature or extent of any disability. But there's an exception that permits disability-related inquiries when necessary to respond to a reasonable accommodation request.
The exception allows housing providers to obtain information that's necessary to evaluate whether a requested accommodation is necessary because of a disability, according to the HUD/DOJ guidelines. But the exception is limited—you can't ask for documentation when both the individual's disability and need for the requested accommodation are obvious.
If the individual's disability is readily apparent—but the need for the requested accommodation is not—then you may ask for further information about the disability-related need for the accommodation. But if the individual's disability isn't obvious, then you may request reliable disability-related information to verify that individual meets the FHA's definition of a person with a disability—and, if necessary, that the requested accommodation is needed because of a disability.
Myth #6: You Can Require a Doctor's Note to Verify Disability
You may not insist on a doctor's note from an individual whose disability isn't obvious to verify that he has a qualifying disability in connection with an accommodation request.
Depending on the circumstances, the information verifying that the person meets the law's definition of an individual with a disability can usually be provided by the individual himself, including proof that he receives Social Security disability benefits or “a credible statement by the individual,” according to the HUD/DOJ guidelines. Alternatively, verification can come from a doctor or other medical professional, a peer support group, a nonmedical service agency, or “a reliable third party who is in a position to know about the individual's disability.”
In most cases, the guidelines state that an individual's medical records or detailed information about the nature of his disability is not necessary for this inquiry. Any medical information obtained must be kept confidential.
Myth #7: You Can Charge Extra Fees to Cover Costs of Accommodations
It's unlawful to require individuals with disabilities to pay extra fees or deposits as a condition of receiving a requested accommodation, according to HUD/DOJ guidelines.
For example, the guidelines state that a site may not require a resident who has a disability-related need for a motorized scooter to pay an extra deposit or to obtain liability insurance as a condition for allowing him to use the scooter outside his unit. Nevertheless, the site may charge the resident for the cost of repairing any damage to his unit or the common areas caused by the scooter if the site has a practice of assessing residents for any damage they cause to the premises.
Myth #8: You Have to Grant the Request Whatever the Cost
The law permits housing providers to deny a request for a disability-related accommodation when providing the accommodation would be unreasonable—that is, it would impose an undue financial and administrative burden on the community or fundamentally change its operations, according to the HUD/DOJ guidelines.
You can't reject a requested accommodation based on its financial and administrative burden simply because it involves some costs or extra paperwork. To determine whether a requested accommodation imposes an undue financial and administrative burden, it's necessary to consider factors such as the cost of the accommodation, the financial resources of the site, the benefits that the accommodation would provide, and the availability of alternatives that would effectively meet the resident's disability-related needs, according to the guidelines.
In some cases, a requested accommodation may be unreasonable because it fundamentally alters the site's essential operations. For example, the HUD/DOJ guidelines state that a housing provider would not be required to grant a request from a resident with a mobility impairment to take him to the store and help him shop for groceries. If the site doesn't provide transportation or shopping services for its residents, then granting the request would require a fundamental change in the nature of the site's operations.
Myth #9: All Animals Are Pets
Not all animals are considered pets under fair housing law, so sites with a no-pets policy must grant a reasonable accommodation request by an individual who has a disability-related reason to keep an assistance animal.
It's a mistake to deny a claim simply because you doubt that a resident who asks to keep an assistance animal qualifies under the FHA's definition of an individual with a disability. If the resident doesn't have an obvious disability, then you may ask for verification that he meets the FHA's definition of an individual with a disability. And if the disability-related need for the animal isn't apparent, you may request information to verify that the animal provides support that alleviates at least one of the identified symptoms or effects of the disability.
Myth #10: You Don't Need a Formal Process for Accommodation Requests
Although the FHA doesn't require housing providers to have formal rules or procedures for handling accommodation requests, the HUD/DOJ guidelines strongly recommend it. Having formal procedures could help prevent misunderstandings as to the nature of the request, and in the event of a later dispute, provide records that the requests received proper consideration, according to the HUD/DOJ guidelines.
Chasick says it's essential to document all requests for reasonable accommodations and how they were handled. He recommends adopting a written policy that specifically addresses how accommodation requests are handled under certain circumstances and keeping records to show your staff followed the policy for requests involving the same circumstances. If challenged, you'll be able to point to your policy and document that all people under the same circumstances were treated in the same way.
Written policies and procedures also help to keep requests from falling between the cracks. Sites have an obligation to provide a prompt response to an accommodation request, so an unreasonable delay in responding to an accommodation request may be deemed to be a failure to provide a reasonable accommodation.
Doug Chasick, CPM®, CAPS, CAS, Adv. RAM, CLP, SLE, CDEI: Senior VP, Multifamily Professional Services, CallSource; www.callsource.com.
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