How to Handle Requests for Reasonable Accommodations
Under the federal Fair Housing Act and HUD guidelines, you must make every effort to provide “reasonable accommodations” at your site for residents with disabilities. For example, if a resident with limited mobility requests a ground-floor unit, HUD expects that you would try to accommodate the request. If a prospective resident needs a larger unit than your occupancy standards dictate in order to provide space for a live-in aide, HUD wants you to attempt to provide the extra space.
In fact, these are two common reasonable accommodations requests—for ground-floor units and for larger units. We'll take a look at how HUD and compliance experts recommend you handle them.
Requests for Ground-Floor Units
You have only so many units on your ground floor, so you may often find that the number of requests you have for them outpaces the number of units you have available. HUD doesn't expect you to simply grant the request automatically, but rather to evaluate it in the context of federal fair housing law as it applies to persons with disabilities. The intent of the law is to help assure that these individuals have “an equal opportunity to use and enjoy your site.”
The HUD Occupancy Handbook (4350.3) stresses that a ground-floor unit request must be based on “need” and not on “personal preference.” If a household asks for a ground-floor unit to accommodate a family member with disabilities, you should advise the requestor that you will need to verify the need with the household member's health care provider or social services agency staffer. Let the requestor know that you will be asking the health care or social services provider to verify two things:
1. That the household member for whom the request is being made is a “person with disabilities” as defined by federal law; and
2. That the household member requires a ground-floor unit to help him or her cope with a disability.
Note that in your verification process, federal housing law prohibits you from asking about the nature and severity of the disability or any other details of the individual's medical condition.
On the basis of this verification, you can make the appropriate determination regarding the request: to reject it or approve it. If the health care or social services provider fails to verify both points, you can reject the request. If the verification is complete on both points—the household member has a disability and requires a ground-floor unit—you must approve the request and permit the household to have the ground-floor unit.
It may be that you do not have a ground-floor unit immediately available. If you think it will be some time until you have an appropriate unit ready, HUD suggests that you could require a household that is over-occupying or under-occupying a ground-floor unit to move. That type of transfer is reasonable if there is another unit at your site that is the right size for that household.
If you are not able to arrange for a transfer that makes a ground-floor unit available, you should establish a waiting list. Send a written notice to all qualifying households about the waiting list. Advise the household that they have been approved for a ground-floor unit and provide a time frame in which you expect that a unit will become available for them.
PRACTICAL POINTER: To make sure you get all the information you need to evaluate the request—and don't inadvertently ask for information you're not entitled to—consider using forms to document the reasonable accommodation request and the verification of the resident's need for the accommodation. See our Model Form: Ask Resident to Fill Out, Sign Forms for Accommodation Request and Verification. Note, however, that you cannot require a resident to fill out a form as a condition of considering his request for a reasonable accommodation.
Requests for Larger Units
Sometimes to accommodate a disability, a resident may request a larger unit. Often this request is due to the need for a live-in aide. Or a household member may need extra room for required medical equipment. HUD says that you should take steps to verify this need just as you do for the ground-floor unit request. You may, HUD notes, “impose a reasonable screening process” to help you determine whether the request for a larger unit is valid.
You should evaluate equally each request you receive for a larger unit to accommodate a person with disabilities. As with the request for a ground-floor unit, you should advise the requestor that you need to verify the household member's disability with his or her health care provider or social services agency staffer. You are looking for the same two pieces of information—that the person meets the definition of being disabled, and that the person needs a larger unit at your site to cope with the disability and to use and enjoy the housing. Be sure not to ask about the nature and severity of the disabilities or for any other details about the person's medical condition. Again, you can approve or reject the request based on the verification or lack thereof.
Just as what might be the case with the ground-floor unit request, you could be in a situation where you have approved the request for a larger unit, but do not have one available. You could transfer a household, if you have one that is under-occupying a unit and you have another available unit of the size that is appropriate for them.
If a larger unit is not currently available for the household needing it to accommodate a disability, you can advise them that they are approved for the larger unit and will be moved into the larger space as soon as possible. Be sure to advise them in writing and give them a time frame in which you expect their larger unit to become available.
When Request Isn't Reasonable or Real
Much of the time, requests for reasonable accommodations are legitimate. But sometimes, reasonable requests are anything but. In fact, sometimes they are questionable or even outright fraudulent. Attorney Kathelene Williams reports that there seems to be more and more abuse of the reasonable accommodation provision in HUD-assisted housing. She focuses her legal practice on fair housing, representing primarily HUD site owners and managers.
“The law has very good intentions, and there are residents who need the accommodation,” Williams says. “But many folks use it not because they need it, but to get what they want. And owners and managers are caught in the middle.”
The most common areas of abuse Williams sees are in requests for live-in aides, requests for companion animals, and requests for a reserved parking space. She has a few suggestions that may help to counteract the troubling trend.
Strengthen the verification. Most requests for verification of disability are fairly simplistic, Williams says, and that's fine if it works for you. But if you're having trouble with requests for live-in aides, for example, consider posing another question or two of the health care provider.
“Most doctors want to please their patients, so they will verify regardless,” she says. “Consider asking the doctor this: ‘Would you be willing to testify in a court of law if needed?’ That might make a doctor think twice about just signing off on the form.”
Another question to ask is what specific duties the doctor expects that a live-in aide would need to do. If it's things like going to the grocery store or cleaning the unit, Williams says that those are not duties for which a live-in aide is needed. Often, there are other means for helping residents with tasks such as those, she says.
Williams says that while you may wish to probe a bit deeper with the doctor, keep in mind that you may not ask about the nature or severity of the person's disability. If you want to add questions such as these to your verification form, check with your attorney first, she advises.
Trust your instincts. If something seems fishy about the request or the verification of the request, it probably is suspect, Williams says. If you don't see the limitations that the resident claims to have as a result of a disability, if it seems contrary to the evidence that the staff has witnessed—the resident drives her own car, carries her own groceries, is active with her friends—it's likely that the request is based on desire and not need. “If it feels wrong, chances are it's abuse of the system,” she says. “I tell my clients, if you think something's not right, pick up the phone and call the doctor's office. If he says that Mrs. Jones gets depressed in small spaces, so she needs to move from an efficiency to a one-bedroom, ask him to explain in detail what would be better about the one-bedroom versus the efficiency.”
Williams says she sees owners who are afraid to deny requests because they can't afford to fight the case in court, should it come to that, and they don't want to confront HUD.
“What I am seeing now is what I consider to be massive fraud,” Williams says. “It gives owners a bad taste about fair housing. The law doesn't say you get whatever you want,” she adds. “The law is there for those who have legitimate needs.”
Kathelene Williams: Law Firm of Williams and Edelstein, P.C., 7742 Spalding Dr., Ste. 478, Norcross, GA 30092; (770) 840-8483; President, Fair Housing Institute (http://www.fairhouse.net); Kathi@fairhouse.net.
'Person with a Disability' Defined
From HUD Handbook 4350.3, Glossary:
A person with a disability is any person who:
1. Has a physical or mental impairment that substantially limits one or more major life activities;
2. Has a record of such an impairment; or
3. Is regarded as having such an impairment.
The definition does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents the individual from participating in the housing program or activities, or whose participation, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.
As used in this definition, the phrase “physical or mental impairment” includes:
1. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or
2. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments; cerebral palsy; autism; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; mental retardation; emotional illness; drug addiction; and alcoholism.
3. “Major life activities” means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
“Has a record of such an impairment” means has a history of, or has been classified as having, a mental or physical impairment that substantially limits one or more major life activities.
“Is regarded as having an impairment” means:
1. Has a physical or mental impairment that does not substantially limit one or more major life activities but is treated by a person as constituting such a limitation;
2. Has a physical or mental impairment that substantially limits one or more major life activities, only as a result of the attitudes of others toward that impairment; or
3. Has none of the impairments defined in this section but is treated by a person as having such an impairment.
NOTE: The Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act and their implementing regulations, define an individual or person with a disability in virtually the same language. Section 504's definition of disability (handicap) is found at 24 CFR 8.3. The Fair Housing Act definition is found at 24 CFR 100.201, and the ADA definition is found at 28 CFR 35.104.
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