Separating Fact From Fiction: Clearing Up Misconceptions About Reasonable Accommodation Requests
This month Fair Housing Coach focuses on reasonable accommodation requests by individuals with disabilities. It can be a confusing topic, so we're going to go over the fair housing 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.
Communities are coming under increased scrutiny of the way they handle disability-related accommodation requests. As illustrated by recent enforcement activity, potential liability for failing to handle an accommodation request properly could amount to thousands—even millions—in damages if a complaint winds up in court.
Example: In December 2010, the U.S. Department of Justice (DOJ) announced an unprecedented $1.25 million settlement to resolve allegations that an Alabama community violated fair housing law by refusing to grant a resident's requests for a reasonable accommodation. The complaint alleged that the community ignored repeated requests by a resident with a mobility impairment to transfer to a ground-floor unit near the front of the building. As a result, according to the complaint, the resident fell down the stairs and suffered severe injuries, which eventually forced him to move out of the development. The company denied liability, but settled the case by paying the resident $1.195 million and an additional $55,000 in fees and costs to the government. Among additional requirements, the company agreed to hire a reasonable accommodation facilitator to handle requests for reasonable accommodations from more than 11,000 housing units in 85 properties managed by the company in 15 states [U.S. v. Warren Village (Mobile) L.P., December 2010].
Communities should brace themselves for an upswing in the number of disability-related accommodation requests they receive. In the short term, communities are likely to see an increase in accommodation requests from the many returning veterans who suffered physical and psychological wounds from duty in Iraq and Afghanistan. Meanwhile, rising rates of obesity and the aging population could lead to a spike in requests for reasonable accommodations, since both obesity and aging are correlated with impairments that may qualify as a disability under fair housing law.
Though it has been on the books for more than 20 years, the federal law on disability-related accommodation requests is often difficult to apply in the real world. The law requires housing providers to consider each request on a case-by-case basis, making it nearly impossible to find any cut-and-dried rules to follow. And the myriad of physical and psychological impairments that may qualify as disabilities, along with the wide variety of accommodations that may be requested, could lead to confusion—even misconceptions—about how to handle accommodation requests.
This issue aims to 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. Then, in the Coach's Quiz, you can see how much you have learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) bans housing discrimination based on disability, so it is unlawful to exclude or otherwise discriminate against applicants and residents because of their disability—or the disability of anyone associated with them. The FHA also imposes additional responsibilities on housing providers to, among other things, make reasonable accommodations to rules, policies, practices, or services, when necessary to afford a person with a disability an equal opportunity to use and enjoy their housing.
In essence, the reasonable accommodation provisions require communities to make exceptions to their general rules for individuals with disabilities under certain circumstances. The rationale is that a community's rules, policies, practices, and services may have a different effect on people with disabilities than on others, so treating persons with disabilities exactly the same as others may deny them an equal opportunity to use and enjoy their housing.
Only individuals who qualify under the FHA's definition of “disability” are entitled to a reasonable accommodation. Under the FHA, a disability generally means a physical or mental impairment that substantially limits one or more major life activities.
In addition, a reasonable accommodation must be necessary—one that allows an individual with a disability an equal opportunity to enjoy the housing. To determine whether a requested accommodation is necessary, there must be an identifiable connection between the requested accommodation and the individual's disability. Sometimes, it's easy to see the connection—for example, when a resident with a severe mobility impairment asks for an assigned accessible parking space as an exception to a community's general parking policy. But disputes often arise over the connection between a resident's disability and the need for the requested accommodation.
Example: The federal court in New Jersey recently ruled against a resident who sued his condo association for rejecting his request to leave his car in a guest parking spot as a reasonable accommodation for his disability. According to the community, the car had not been moved in two years, had an expired inspection sticker, and was inoperable. Allegedly, the condo association informed him that he was violating its rules and threatened to have the car towed. Although the resident asked to keep the car where it was, the condo association rejected the request. The car was towed and later crushed by the towing company.
The court ruled that the resident failed to prove his requested accommodation was necessary because there was no direct linkage between the requested accommodation and his disability. Although he was disabled, the resident couldn't prove that granting him the right to store an inoperable car for a long period afforded him an equal opportunity to use and enjoy his housing [Coe v. Society Hill at Piscataway Condo Assn., April 2010].
The FHA recognizes some exceptions to the reasonable accommodation rules. For example, housing providers aren't required to grant a request for a disability-related accommodation if it's unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. Moreover, the FHA doesn't protect an individual with a disability whose tenancy poses a direct threat to the health or safety of others or substantial physical damage to the property of others, unless the threat may be eliminated or significantly reduced by a reasonable accommodation.
10 MYTHS ABOUT REASONABLE ACCOMMODATIONS 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 community. Two of the most common sources of disputes under the FHA's reasonable accommodation provisions involve assistance animals and parking, but communities 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 on the type of people involved, says fair housing expert Doug Chasick. That is, instead of trying to treat all people the same, communities 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 Reasonable 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 joint HUD and 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.
Example: The D.C. appeals court recently ruled that a cooperative apartment association was liable for failure to grant a reasonable accommodation request related to its plans to exterminate the building for a bedbug infestation. The resident, who had mental health disorders, objected to the plan and denied access to his unit, which was described as “extremely cluttered.” When negotiations with the resident and his caseworker faltered, the co-op gave him a deadline to have the unit cleaned or readied for extermination. The resident said he needed more time and professional assistance to do it, but the committee eventually revoked his shares and sued to recover possession of the unit. With intervention by the court, the unit was cleaned and exterminated, so the court refused to order him out of the unit.
The court also sided with the resident on his fair housing claim, ruling that he made a reasonable accommodation request when he asked for more time to clean and exterminate the unit, and the co-op engaged in a discriminatory act by not making a more concerted effort to provide the reasonable accommodation before revoking his shares and suing him for possession [Rutland Court Owners, Inc. v. Taylor, July 2010].
Disputes often arise because most requests for reasonable accommodations aren't labeled as such, Chasick says. In fact, he warns that a prospect's use of the term “reasonable accommodation” could signal that the prospect is a tester, because most people aren't familiar with the formal rules under fair housing law.
Since most requests for reasonable accommodation come in other forms, it's important to be an “active listener,” Chasick says. Often, people say they need or want something because of some difficulty or limitation. Or it could be a question about whether your community allows something or whether the prospect 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 community allow 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.
Since it's the responsibility of the resident or prospect to make the request, you could be crossing the line by offering accommodations to someone you assume to be disabled based on her appearance, says Chasick.
Myth #4: Request Can Be Denied If the Reason for It Isn't Obvious
Don't make decisions about whether an applicant or resident is 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: 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. However, 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.
Example: In a January 2011 blog post, a top HUD official discussed how to handle an accommodation request when the resident's disability isn't obvious and the need for the accommodation isn't evident. Consider, he suggested, a resident who has a neurological condition that causes intermittent, but substantial, problems walking more than a short distance. If she asked for a transfer to a first-floor unit and a parking space closer to her building, the housing provider may have doubts about her need for the requested accommodations because she appears capable of walking without assistive devices. The official explained that the housing provider may request disability-related information that verifies that the resident meets the FHA's definition of having a disability, describes the needed accommodation, and shows the relationship between the person's disability and the need for the requested accommodation.
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 community 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 community may charge the resident for the cost of repairing any damage to his unit or the common areas caused by the scooter if the community 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 community, 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 community's essential operations. For example, the HUD/DOJ guidelines state that a community 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 community doesn't provide transportation or shopping services for its residents, then granting the request would require a fundamental change in the nature of the community's operations.
COACH'S TIP: Don't be too hasty in denying a request for an accommodation because it costs too much or involves a fundamental change in your operations. When a request is unreasonable, housing providers should engage in an “interactive process—discussions about the disability-related need for the requested accommodation and possible alternative accommodations—because doing so often leads to an effective accommodation that doesn't unduly burden the community, according to the HUD/DOJ guidelines.
Myth #9: All Animals Are Pets
Not all animals are considered pets under fair housing law, so communities 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.
Many disputes about assistance animals involve applicants or residents who don't have an obvious disability. Communities may question whether it's a bona fide request for a reasonable accommodation—or a ploy to get around your policies and keep a family pet.
It's a mistake to deny a claim simply because you doubt that the resident 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, according to the HUD official's January 2011 blog post.
COACH'S TIP: Although HUD says that communities may not deny an accommodation request because an assistance animal doesn't have specialized training, some courts have ruled otherwise. That's the issue in a case currently pending in the federal court in North Dakota, where a community is accused of violating the FHA by imposing fees and other requirements on “companion animals—animals that haven't been specially trained—but not on “service animals—animals that have been specially trained. The DOJ filed a brief to weigh in on the dispute, arguing that the FHA doesn't contain a training requirement and that emotional support animals, which don't require specialized training, may be necessary accommodations under the FHA [Fair Housing of the Dakotas, Inc. v. Goldmark Property Mgmt., Inc.].
Myth #10: You Don't Need a Formal Process for Reasonable Accommodation Requests
This one's a ringer—it's not really a myth, but it's not a good idea, according to fair housing officials. Although the FHA doesn't require communities 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.
Fair housing experts agree. 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. The HUD/DOJ guidelines state that communities 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.
Fair Housing Act: 42 USC §3601 et seq.
HUD guidance: Reasonable Accommodations Under Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf.
Doug Chasick, CPM®, CAPS, CAS, Adv. RAM, CLP, SLE, CDEI: Senior VP, Multifamily Professional Services, CallSource; (888) 222-1214; email@example.com.
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|March 2011 Coach's Quiz|