Special Issue: Documenting Disability-Related Accommodation and Modification Requests
In this special issue of Fair Housing Coach, we've collected some model forms for use in handling reasonable accommodation and modification requests by individuals with disabilities. Because disagreements involving such requests often lead to formal fair housing complaints, federal fair housing enforcement officials recommend the use of standard policies and procedures to prevent misunderstandings about the nature of requests and, in the event of later disputes, provide records to show that requests received proper consideration.
Our model forms, adapted from those used by the Department of Justice in a recent fair housing settlement and from contributions from fair housing attorneys Robin Hein and Terry Kitay, cover the basic requirements under federal fair housing law. Before using the forms, you should consult an attorney in your area to ensure that they are appropriate for use in your community and satisfy any applicable state or local requirements.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability.
The FHA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. In general, that means an impairment that is serious enough to substantially affect activities that are of central importance to daily life, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working.
In addition, the FHA's disability provisions protect individuals who either have a “record of” or are “regarded as” having such an impairment. An individual with a record of impairment is someone with a history of, or having been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. Being “regarded as” having an impairment means being treated by others as having such a limitation.
In addition to banning discriminatory housing practices applicable to all protected classes, the FHA provides additional protections to individuals with disabilities to ensure that they have the same opportunity as everyone else to have full use of the community. Under those provisions, the FHA makes it unlawful to:
Refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person an equal opportunity to use and enjoy a dwelling; or
Refuse to permit, at the expense of the disabled individual, reasonable modifications of the premises occupied by the individual if the modifications are necessary to afford the individual full enjoyment of the premises.
The law considers a reasonable accommodation to be a change, exception, or adjustment to a rule, policy, practice, or service as necessary to enable an individual with a disability to fully enjoy use of the property. Nevertheless, the law does not require owners to agree to a resident's request when it is unreasonable—that is, when the requested accommodation imposes an undue financial and administrative burden on the community or results in a fundamental alteration of its operations.
Under the reasonable modification provisions, owners must permit an applicant or resident with a disability, at his expense, to make reasonable modifications of the premises—the interior of a unit as well as public and common use areas—if necessary to afford him full enjoyment of the premises. When it is reasonable to do so, the FHA allows owners to condition approval of a modification request on the resident agreeing to restore the interior of the unit to the condition that existed before the modification, reasonable wear and tear excepted. In contrast, residents are not required to restore modification to areas outside their units.
6 RULES FOR DOCUMENTING DISABILITY-RELATED ACCOMMODATION AND MODIFICATION REQUESTS
Rule #1: Adopt Written Reasonable Accommodation Policy
Although it's not required under the FHA, fair housing experts advise communities to adopt formal policies and procedures for handling reasonable accommodation requests.
Here's a Model Form: Reasonable Accommodation Policy for Individuals with Disabilities that you can adapt and use to apprise applicants and residents of your policy on reasonable accommodations for individuals with disabilities.
MODEL FORM: Reasonable Accommodation Policy for Individuals with Disabilities
If a prospective resident, resident, or member of a prospective resident or resident's household has a disability, he or she may request a reasonable accommodation. Reasonable accommodations are changes, exceptions, or adjustments to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces.
It is preferred that all reasonable accommodation requests be submitted in writing to [insert name of property manager or designated employee]. Request forms for reasonable accommodations are available at the rental office. If a prospective resident, resident, or household member has difficulty filling in the form, [insert name of property manager or designated employee] will assist him or her in completing the form. Oral requests for reasonable accommodations will be recorded and processed in accordance with this policy.
We will review your request and respond as soon as possible. We will notify you if we need additional information and advise you of any conditions or alternative suggestions that will help you enjoy living in your home.
If [insert community's name] cannot grant the request as made, [insert community's name] is open to discussions and will engage in an interactive process with you in an effort to provide an alternate accommodation that satisfies the request. In the event the interactive process is unsuccessful, resulting in a conditional denial of the request, an explanation of the basis for such denial shall be included in the written notification. We invite further input and discussion to work through your request.
Rule #2: Get Requests for Reasonable Accommodations in Writing
An applicant or resident is not entitled to a reasonable accommodation or modification unless he requests one, but the law does not require that the request be made in any particular manner or at any particular time. Furthermore, the law does not require that the request come directly from the person with the disability—a family member or someone acting on his behalf may make the request.
Although you may ask applicants or residents to put requests for reasonable accommodations or modifications in writing, Hein warns that communities may not refuse a request simply because the individual makes the request orally or refuses to fill out your preferred form.
Here's a Model Form: Request for Reasonable Accommodation. Ask the applicant or resident—or the person making the request on behalf of the individual with a disability—to complete the form and return it to the office. This form also may be used for documenting an oral request of an applicant or resident who doesn't want to fill out the paperwork. The owner or manager can simply note on the form that the request was oral and that the applicant or resident did not want to fill it out.
MODEL FORM: Request for Reasonable Accommodation
If you, a member of your household, or someone associated with you has a disability, and believes that there is a need for a reasonable accommodation that will provide you with an equal opportunity to use and enjoy your dwelling (such as transferring to a different apartment unit, the allowance of assistance animals, the creation or reservation of accessible parking, the installation of bathroom grab bars, etc.), please complete this form and return it to [insert name of property manager or designated employee].
Name of Resident or Applicant:
Signature of Resident or Applicant:
The person(s) who has a disability requiring a reasonable accommodation is:
[ ] Me [ ] A person(s) associated or living with me.
Name(s) of person(s) with disability:
I or the persons associated or living with me have a disability and request the following:
Reasons for the request:
Signature of Requester:
For Management Use Only
Date received in office:
Management staff receiving request:
Rule #3: Have Written Policy on Reasonable Modifications for Individuals with Disabilities
Communities must consider requests for reasonable modifications not only to the interior of a unit, but also to lobbies, main entrances, and other public and common use areas of buildings. In general, the resident is responsible for paying the cost of the modification.
Here's a Model Form: Reasonable Modification Policy for Individuals with Disabilities that you can adapt and use to apprise applicants and residents of your policy on requests for reasonable modifications for individuals with disabilities.
MODEL FORM: Reasonable Modification Policy for Individuals with Disabilities
If a prospective resident, resident, or member of a prospective resident or resident's household has a disability, he or she may request reasonable modifications to the interior of units or the exterior and common areas of the community necessary to attain the full enjoyment and use of his or her home and the community.
Because our community is already in compliance with federal and state laws regarding the design and construction of apartments, any additions or changes usually must be made at the expense of the person with a disability. If the change or addition is one that will unreasonably interfere with a later resident's use and enjoyment of the apartment, the applicant or resident may also be responsible for the cost of restoring the unit to a useable condition. However, applicants or residents are not required to restore the exterior of the unit or common areas to their original condition.
Our community has the right to request and approve a description of the requested modifications, as well as how and when the work will be performed. All work must be performed in a workmanlike manner and in accordance with city, county, and state building codes or requirements. The plan or description does not have to be drawn by an architect, but must be complete enough for us to grant approval. If a building permit is required, the requester is responsible for obtaining it and all costs incurred. Any additions or changes made to the unit must fit in with the overall architectural look and design of the property.
You may use your own contractor to perform the work, provided we have approved the modification request and reached an agreement on how it will be performed. Or, if you like, we will have our contractor provide an estimate of the cost to perform the work before you finalize your decision on making the modification.
It is preferred that all reasonable modification requests be submitted in writing to [insert name of property manager or designated employee]. Request forms for reasonable modifications are available at the rental office. If a prospective resident, resident, or household member has difficulty filling in the form, [insert name of property manager or designated employee] will assist him or her in completing the form. Oral requests for reasonable modifications will be recorded and processed in accordance with this policy.
Once we have received a description of the requested modifications, we will review it and notify the requester of any additional documentation that is necessary for approval.
If the request is approved, the applicant or resident may be required to sign an agreement concerning how and when the modifications were completed. We will also need to know whether the requester would like for us to prepare or obtain an estimate of the costs to modify or restore the apartment.
If we cannot grant the request as made, [insert community's name] is open to discussions and will engage in an interactive process with the resident or prospective resident in an effort to provide an alternate modification that satisfies the request. In the event the interactive process is unsuccessful, resulting in a conditional denial of the request, an explanation of the basis for such denial shall be included in the written notification. We invite further input and discussions to work through your request.
Rule #4: Get Reasonable Modification Requests in Writing
A request for a reasonable modification may be made at any time during the tenancy. Examples of modifications include installing a wheelchair ramp, installing grab bars in a bathroom, and widening doorways to accommodate a wheelchair.
Here's a Model Form: Reasonable Modification Request that you can adapt and use to get the relevant information you need from a resident who requests a modification and to inform the resident of her responsibilities with regard to the modification. You may ask the applicant or resident—or person making the request on behalf of the individual with a disability—to fill out the form. It may also be used to document oral requests for modifications; owners or managers should note on the form that the request was oral and that the applicant or resident did not want to fill it out.
MODEL FORM: Reasonable Modification Request
If you, a member of your household, or someone associated with you has a disability, and believes that there is a need for a reasonable modification to the premises that will provide you with an equal opportunity to use and enjoy your dwelling, please complete this form and return it to [insert name of property manager or designated employee].
Name of Resident or Applicant:
Signature of Resident or Applicant:
The person(s) who has a disability requiring a reasonable modification is:
[ ] Me [ ] A person(s) associated or living with me.
Name(s) of Person(s) with Disability:
I or the persons associated or living with me have a disability and request that the owner or manager of [insert name of community] allow me to make changes or modifications to the unit or community.
Below is a list and description of the items I would like to have modified or changed. (Attach additional sheet if necessary).
Reasons for the request:
I understand and agree that I am responsible for all costs of making the changes and restoring the unit to a useable condition if the modifications or changes would unreasonably interfere with the next resident's or occupant's use and enjoyment of the apartment.
Please check one of the following and initial:
[ ] I will be performing the modifications myself and will submit a complete plan; the name, address, and phone number of any contractor who will be performing the work; and references. I understand that I will have to sign an agreement with management as to how and when the work will be performed before work may begin. OR
[ ] I request that management's contractor or service technician perform the work, for which I agree to make full payment in advance or as otherwise agreed. Please prepare a bid or estimate of the cost of the work and restoration costs (if applicable) and return it to me as soon as possible. I understand I will need to sign a separate lease addendum or agreement regarding payment of costs, completion of the work, and possible restoration costs.
For Management Use Only
Date received in office:
Management staff receiving:
Rule #5: Get Proof of Disability and Need for Accommodation in Appropriate Circumstances
Depending on the circumstances, the FHA limits the ability of housing providers to obtain disability-related information.
When considering a request for a reasonable accommodation or modification, communities may not request additional information when both the nature of the individual's disability and need for the requested accommodation or modification are known or obvious—the community must grant the request unless it is unreasonable. For example, if a resident whose arthritis impairs the use of her hands and causes her substantial difficulty in using doorknobs wishes to replace the doorknobs with levers, HUD says the community must grant her request because there is an identifiable relationship between the disability and the requested modification.
If either the disability or the need for the requested accommodation or modification is not readily apparent, then the community may request information that is necessary to evaluate whether the requested reasonable accommodation or modification may be necessary because of a disability. You may require such verification when you're unsure whether the accommodation is needed or reasonable—for example, when a resident asks to keep a service animal for a nonobvious seizure disorder at a community that has a no-pets policy, or requests a parking space closer to his unit, but has no apparent mobility disability.
In general, communities may not insist on verification from a medical provider (such as a doctor) that an individual meets the FHA's definition of disability. Depending on the nature of the individual's circumstances, federal enforcement officials say that the individual himself may provide verification, for example, by providing proof that he is receiving Social Security disability insurance benefits. Verification may come from a doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual's disability.
When requesting such information, fair housing attorney Theresa Kitay recommends sending a form directly to the third-party verifier. Ask the person making the request to sign the form to release the third party to disclose the information. Then send the form directly to the third party and have it sent directly back to you. “This approach will cut down on fraud, and will help you to control the information that you keep in your resident files. You don't want unnecessary information in your files about a resident's disability, course of treatment, and medications,” Kitay explains. The law requires housing providers to keep disability-related information confidential; it may not be shared with others (absent disclosure required by law) unless they need it to evaluate the accommodation or modification request.
Here's a Model Form: Reasonable Accommodation/Modification Verification Form, to use to verify that a requested reasonable accommodation or modification may be necessary because of a disability.
MODEL FORM: Reasonable Accommodation/Modification Verification Form
[Insert community name] permits reasonable modifications to the premises and provides reasonable accommodations to applicants and residents with disabilities who have a verifiable need for the requested modification or accommodation. A reasonable modification is an alteration to the interior of a unit, or common or public use areas, made necessary because of disability for the resident to fully enjoy the community. A reasonable accommodation is an exception made to the usual rules or policies made necessary because of a disability for the resident to use and enjoy an apartment community.
The applicant or resident has authorized you to provide the information requested on this form. Please answer the following questions:
Name of Applicant/Resident (print):
Request for Reasonable Accommodation/Modification:
Signature of Resident:
This signature authorizes the verifier to provide answers to the questions below to the best of his/her knowledge of this resident.
Is this applicant/resident disabled?
[ ] Yes [ ] No [ ] I Don't Know
The Fair Housing Act defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. The Supreme Court has determined that to meet this definition a person must have an impairment that prevents or severely restricts the person from doing activities that are of central importance in most peoples' daily lives.
Please describe in what manner this disability restricts the applicant/resident in activities that are of central importance to his or her daily life:
Does this applicant/resident need the accommodation requested above to be able to live in his/her apartment community? [ ] Yes [ ] No
If yes, please describe how this accommodation will enable the applicant/resident to use or enjoy this apartment community.
I hereby certify that to the best of my knowledge under penalty of perjury the information herein is true and accurate.
Name and Position of Verifier (please print):
Signature of Verifier:
Rule #6: Provide Timely Written Notice of Decisions on Disability-Related Requests
Promptly process requests for reasonable accommodations or modifications. Under HUD guidelines, an undue delay in responding to a request may be deemed a failure to provide a reasonable accommodation or modification.
In general, communities must grant a request for a reasonable accommodation or modification if necessary to afford an individual with a disability full enjoyment of the community. Conversely, a community may deny the request if it was not made by or on behalf of a person with a disability or if there is no disability-related need for the accommodation or modification.
In some cases, communities are not required to provide the specific accommodation or modification requested by an individual with a disability, says Hein. For example, an accommodation request may be denied when it is unreasonable—that is, when it would impose an undue financial and administrative burden on the community or it would fundamentally alter your operations.
Nevertheless, it is usually best to avoid making an absolute denial of the request, says Hein. Carefully consider offering an alternative accommodation or modification.
Or grant the request conditionally, making sure the conditions are not unreasonable, Hein advises. Even if you are not required to permit the specific accommodation or modification requested, the resident may be entitled to an alternative that is acceptable to the owner or management and reasonably obtains a similar result.
In any event, it's a good idea to get help from your attorney to resolve differences to head off what may otherwise lead to a formal fair housing complaint.
Here's a Model Form: Approval or Denial of Reasonable Accommodation or Modification Request, that you can use to notify applicants or residents about decisions on requests for reasonable accommodations and modifications. The form, adapted from one used in a recent Justice Department settlement, offers a checklist of possible responses to an accommodation request.
MODEL FORM: Approval or Denial of Reasonable Accommodation or Modification Request
[Insert applicant's/resident's name and address]
Dear [insert applicant/resident's name]:
On [insert date], you requested the following disability modification or accommodation [describe request]:
WE HAVE [check all that apply]:
[ ] Approved your request.
The following disability modification or accommodation will be approved [describe]:
The reasonable accommodation or modification work is expected to be completed by [insert date]:
[ ] Conditionally approved your request.
The conditions include [list]:
[ ] Granted your request in an alternative form.
The specific change or exception you requested cannot be granted at the subject property because [describe reason(s)]:
However, in an effort to accommodate your disability, we propose the following alternative and are willing to:
[ ] Can neither approve nor deny your request without further information [list information needed]:
[ ] Conditionally denied your request. This means that we are still willing to discuss and come up with an alternative proposal that allows you to use and enjoy the community and leased premises. We have conditionally denied your request because [list all reasons that apply]:
Here are some of the things we considered in conditionally denying or granting your request [list]:
In reviewing and evaluating your request, we spoke with the following people, reviewed the following documents, and performed the following investigation [list]:
Sincerely, Name of Property Manager or other Designated Employee [print]:
Requester acknowledges receipt of this completed form:
Name of Requester:
Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood and Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com.
Theresa L. Kitay, Esq.: Law Offices of Theresa L. Kitay, 578 Washington Blvd., Ste. 836, Marina del Rey, CA 90292; (310) 578-9134; email@example.com; www.kitaylaw.net.
Fair Housing Act: 42 USC §3601 et seq.
HUD/DOJ guidance: Reasonable Accommodations Under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf
HUD/DOJ guidance: Reasonable Modifications Under the Fair Housing Act, www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf
U.S. v. Warren Properties, Inc., Consent Decree, Alabama December 2010