Reasonable Accommodations Training_1

Report
REASONABLE
ACCOMMODATIONS
Providing Safe and Accessible Housing for
the Most Vulnerable
Natalie Shemmassian
October 7, 2011
Sources of Law
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Section 504 of the Rehabilitation Act of 1973
 Prohibits discrimination based on disability in programs receiving
federal funding
Fair Housing Amendment Act of 1988
 Title VIII of the Civil Rights Act of 1968 prohibited
discrimination based on race, color, religion & national origin.
 Extended protection of FHA to persons with disabilities
regardless of receipt of federal funds
 Discrimination is unlawful with respect to the terms, conditions,
or privileges of any sale or rental of a dwelling, or in the
provision of any services of facilities in connection with the
dwelling.
 Prohibits discrimination b/c of the renter’s association with a
person with a disability residing in or intending to reside in that
dwelling, such as a child, or b/c of any person associated with
renter or buyer or other person intending to reside or residing
in the dwelling.
...Continued
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Title II of the Americans with Disabilities Act of 1990
 Extended protections of Section 504 to all activities of
“public entities”—state and federal gov’t—regardless of
whether they receive federal $$$
M.G.L. c. 151B
 Prohibits all forms of discrimination in the sale or rental of
a dwelling to a buyer or renter b/c of person’s disability
 Discrimination is unlawful with respect to the terms,
conditions, or privileges of any sale or rental of a dwelling,
or in provision of services of facilities in connection with
the dwelling.
Housing Covered
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Under Federal Law:
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Section 504 covers only federally-assisted housing
Title II of the ADA covers public entities
Fair Housing Amendments Act covers virtually every kind of
housing
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Exempts owner-occupied housing with four or fewer units; OR
Owner if she is renting or selling her single family house
provided that the owner (a) doesn’t have an interest in more
than 3 such houses; (b) hasn’t sold a house within 3 previous
months; (c) doesn’t use real estate agent to sell or rent the
house; and (d) doesn’t use a discriminatory ad.
Exemption doesn’t apply to co-ops or condo associations
Under State Law:

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Multi-family housing
Except owner-occupied, two-family housing
Who is Protected?
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Under both federal and state laws, a person
who has:
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Physical or mental impairment that
substantially limits one or more major life
activities;
A record or history of such an impairment; or
Been perceived to have or are regarded as
having such an impairment
Protected Categories

Physical or Mental Impairment

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Any condition, disease, illness, disfigurement or
disorder (e.g. alcoholism, HIV infection, AIDS,
depression, mental retardation, deafness,
cancer, learning disorder)
Major Life Activity

Caring for oneself, performing manual tasks,
walking, seeing, hearing, breathing, learning,
working, etc.
…Continued
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Having a record or history of an impairment:
 If T is functioning well now, but has a psychiatric
history, and LL knows this or suspects this and
discriminates on this basis, she would be acting
unlawfully
Perceived as having an impairment:
 If LL refuses to rent to a homosexual b/c she
believes that he or his friends are likely to have
AIDS, the LL has acted unlawfully. This is true
whether or not he or his friends have AIDS.
Drug Addiction & Alcoholism

Current users of illegal drugs are not considered
disabled for purposes of RA

If T has had a history of drug abuse and no longer using drugs,
protected under state and federal discrimination laws and may
be able to ask for RA if T:
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Has successfully completed a rehab program;
Has otherwise been rehabilitated successfully; or
Is participating in a treatment or self-help program
Alcohol use:
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State/federal anti-discrimination laws: disabled and protected
if T is substantially limited
Federal law: most likely unprotected against discrimination if
current use of alcohol would prevent T from meeting his
tenancy obligations or would constitute a direct threat to health
or safety of other tenants.
What is a Reasonable
Accommodation?

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A change in rules, practices, policies or services
necessary “to afford [a disabled person] equal
opportunity to use and enjoy a dwelling.” 42 U.S.C. §
3604(f)(3)(b)
Examples:
 Permitting a disabled person to have a service animal
in his/her unit (including a “therapy” or “emotional
support” animal)
 Assigning and reserving a parking space for a
disabled person to make it easy to access his/her unit
 Permitting a disabled resident to have a live-in aide
 Allowing a disabled resident the opportunity to
comply with his/her lease prior to an eviction action
When Must Housing Provider
Grant a Request?
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Necessary + Reasonable=Must Grant Accommodation
T must meet the definition of disability
Show relationship/nexus between the disability
and requested accommodation
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Get MD’s letter explaining causal connection
Advocate should help with letter
T (or family member, legal rep) must request it—
verbal or written, but latter is easier to prove for
discrimination purposes
Before moving in and throughout occupancy cycle
Housing providers have a DUTY
Can HP inquire and/or request
more info on disability?
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Generally, HP may not inquire as to nature and
severity of disability.
If disability is not obvious and/or accommodation
is not apparent, HP may request reliable disabilityrelated info that is: 1) necessary to verify T meets
definition, 2) describes need for modification, and
3) establishes nexus between disability and
accommodation
If T is receiving SSI, SSDI, a housing provider will
probably consider T to be disabled.
Get MD or medical care provider to write a letter
detailing nature of disability
What is Reasonable?
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Practical and feasible
Doesn’t impose undue financial or administrative burden
Doesn’t require fundamental change to housing provider’s
program
 Not a cost-based analysis
 Determine primary purpose of the program and the
practical components necessary to achieve that
purpose.
Direct Threat Exception
The determination as to whether an accommodation is
reasonable depends on circumstances at the time of
request, and a request cannot be denied in
anticipation that similar requests will be made in the
future.
Reasonable Modification
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Physical change, such as to a dwelling unit, building, common
or public area, necessary to afford equal opportunity for use
and enjoyment by the disabled person.
Examples:
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Installing a door bell which flashes a light for the hearing-impaired
tenant.
Lowering a cabinet
Widening a doorway
Ramping a front entrance
Who pays?
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In public or subsidized housing and in buildings with 10 or more
units, LL must pay for reasonable physical modifications EXCEPT
if undue hardship
BUT required to permit T to make modification at her own expense
Preventing an Eviction
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Disabled T is being evicted b/c of behavior or
characteristics related to his or her disability
If T identifies a disability-related behavior or
characteristic that is causing him to be noncompliant
with lease, and proposes a change in his/her behavior
or LL’s policies that would eliminate or reduce the
impact of lease violation, then RA may protect T
against eviction.
Refer T to Tenancy Preservation Program
Establishing the Need for an
Accommodation
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T must show that an accommodation will
allow T to remain compliant w/ the lease.

Trial Court ruled in favor of T in an eviction
action when T was able to show that damage to
her walls was caused b/c she hit them w/ sticks
or threw water to drive away voices. Solution:
given a “nerf” bat to use instead. Citywide
Associates v. Penfield, 409 Mass. Super. Ct. 140,
564 N.E.2d 1003 (Mass. 1991)
…Continued
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Courts have required that LLs cease SP actions even
when no specific accommodation is requested, but
when access to services may allow T to alter behavior
or pinpoint other types of accommodations that will
allow T to comply w/ a lease.
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Cobble Hill Apartments Co. v. McLaughlin, 1999 Mass.
App. Div. 166 (Mass. App. Div. 1999)
Courts should allow T to define what accommodation
will allow continued tenancy, rather than allowing LL
to define what accommodation is acceptable.
Direct Threat Exception
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Explicit Exemption of FHA: “any tenant whose
tenancy would constitute a direct threat to the
health or safety of other individuals or whose
tenancy would result in substantial physical
damage to the property of others.” 42 U.S.C. §
3604(f)(9).
Individualized inquiry on question of
dangerousness: 24 C.F.R. § 9.131(c)
Factors: nature, duration, severity of risk;
probability that injury will actually occur; and
whether an RA will mitigate the risk
…Continued
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What type of action constitutes direct threat?
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No need for actual physical harm: T’s behavior escalates
from inappropriate to increasingly unpredictable and
intimidating actions.
Potential harm—T chasing children w/ knife, listening
to vulgar music, inappropriate sexual comments to
residents.
LL must show “no RA will eliminate or acceptably
minimize the risk [a tenant] poses to other
residents,” before proceeding w/ eviction.
BHA v. Bridgewaters, 452 Mass. 833 (2009)
Roe v. Sugar Mill Associates, 820 F. Supp. 636
(D.N.H. 1993)
Questions
Resources
Fields, Robert, A Handbook on Reasonable Accommodation in Housing
www.masslegalservices.org
Legal Tactics: Tenant’s Rights in Massachusetts or www.masslegalhelp.org
Department of Housing & Community Development, Memorandum on Reasonable
Accommodations and Modifications in State-Aided Public Housing,
June 11, 2009.
www.bazelon.org see materials on reasonable accommodations

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