“We Can’t Meet Your Needs”: Housing Discrimination Against Seniors with Disabilities Aisha Bierma

1. “We Can’t MeetYour Needs”:Housing Discrimination Against Seniors with DisabilitiesAisha Bierma

2. Fair Housing Laws that May Apply Include: • Fair Housing Act • Americans with Disabilities Act • Rehabilitation Act • State and Local Fair Housing Laws • Robert G. Schwemm & Michael Allen, For the Rest of their Lives: Seniors and the Fair Housing Act, 90 Iowa L. Rev. 121 (Oct. 2004)

3. Fair Housing Act42 U.S.C. § 3602(b) • Applies to “dwellings,” including: • Seniors apartments • Ownership townhomes & condos • Housing with services / assisted living • Nursing homes

4. Protected Classes under the Fair Housing ActSee 42 U.S.C. § 3604 • Race/Color • National Origin • Religion • Sex (including sexual harassment) • Familial Status (having children under 18 or being pregnant) • Disability

5. Examples of Disabilities42 U.S.C. § 3602(h) • Physical • Mental • Drug addiction • But not current, illegal use of a controlled substance • Alcoholism

6. Types of DisabilityDiscrimination • 1) Failure to provide reasonable accommodations and modifications • 2) Disability-based inquiries • 3) Discriminatory evictions and admissions • 4) Discriminatory terms and conditions

7. 1) Reasonable Accommodation (RA)42 U.S.C. § 3604(f) • Change, exception, or adjustment to a rule, policy, practice, or service • Common examples: • Allow service/companion animals in “no pet” building • Provide help filling out application form

8. Reasonable Modification (RM)42 U.S.C. § 3604(f) • Structural change to the premises • Common examples: • Widening doorways • Installing grab bars • Lowering kitchen cabinets

9. Proving a RA/RM • 1) Tenant has a disability, • 2) Accommodation/modification may be necessary to use & enjoyment of dwelling, • 3) Accommodation/modification will help overcome effects of disability, • 4) Accommodation/modification is reasonable.

10. “Unreasonable” Requests • 1) Impose an undue financial and administrative burden, or • 2) Require a fundamental alteration in the nature of the housing provider's operations

11. Hypotheticals • Hypos 1-3: • Using RAs/RMs to avoid evictions and secure admissions • Hypos 4-5: • Using RAs/RMs to help clients use and enjoy their current housing

12. Hypo 1 • Tenant (Betty) lives in a seniors apartment building. • Betty is “rude and abusive” to staff and other tenants because of mental health issues. • Seniors apartment says she will be evicted if she does not correct her behaviors.

13. Hypo 1 • Normally, this housing provider may have a policy that he evicts tenants who disturb their neighbors. • But Betty may be entitled to stay as a RA to this policy.

14. Hypo 1 • To be eligible for a RA of no eviction, Betty must show: • 1) She has a disability, • 2) The accommodation is necessary for her use and enjoyment of her dwelling, • 3) Accommodation will help overcome effects of her disability, • 4) Accommodation is reasonable.

15. Hypo 1: Sample Letter • Betty has a disability that entitles her to protection under the Fair Housing Act. • Under the FHA, Home X must make RAs in policies and procedures to allow persons with disabilities equal use and enjoyment of their housing. • Betty requests a RA that she be allowed to continue living at Home X. • Then describe plan to stop lease violations…

16. Hypo 1: Sample RA Plan • Sample plan to eliminate lease violations: • Therapy and support group • More visits from children or volunteers • Increased activities • Express concerns through intermediary

17. So if Tenant Violates Lease Due to Disability, She Must Stop or She Can Be Evicted? • Refer to RA four-part test. What is reasonable? • In some cases, must stop violation. • E.g. can’t pose a “direct threat” to others or property. 42 U.S.C. § 3604(f)(9) • However, sometimes it is reasonable to allow violations and an adjustment to lease terms.

18. Recommended RA/RM Approach for Lease Violations • Ideally, create plan to eliminate violations. • If violations cannot be fully eliminated… • Create plan to lessen them • Request expectations be adjusted as RA • Type of housing may affect what is reasonable.

19. Hypo 1: Alternative RA Letter for Betty • Include same info as in Slide 17, then: • “The following plan will help alleviate the concerns you have identified…” • “We also ask, as a RA, that your expectations of Betty’s behaviors be modified. This is reasonable because…”

20. Suggestion for Formulating RA Plans • Consult with outside experts for ideas, e.g. long-term care ombudsmen.

21. Hypo 2 • “My mom is being evicted from an Alzheimer’s assisted living facility because she wanders and can be aggressive.”

22. Hypo 2: Sample RA Plan • Medication adjustments • New primary care doctor • Cognitive assessment • External alarms on longer delay or magnetic locks • Bed or door alarm • GPS device

23. Hypo 2: Sample RA Plan • Staff training on these behaviors • Calming approaches like soft music • Paint external door in a bookcase pattern • Move to different room away from door • Extra staff time from facility • Family hires additional aide for night hours • Adjusted expectations

24. Hypo 3 • “I am being evicted because I left my water running again.” • Figure out: Did this applicant forget to turn off her water because of a disability?

25. Hypo 3: Possible RM Plan • Automatic faucet shut-off

26. Approach in Hypos 1-3 Can Be Used to Gain Admission • Example: “An nursing home says it ‘can’t meet my needs’ because I have difficult behaviors, so it won’t admit me.” • Potential Solution: Create RA/RM plan to help with behaviors and gain admission

27. Hypo 4 • “My nursing home took away my electric wheelchair because staff says I can’t operate it safely.”

28. Hypo 4: Sample RA Plan Will depend on source of concerns… • Physical or emotional therapy • Medication adjustments • Lowering speed on w/c

29. Hypo 4: Sample RA Plan • Restricting w/c use to certain parts of building, on temporary basis • Restricting w/c use to hours when more staff is on duty, on temporary basis • Adjustments to physical space (RM)

30. Hypo 5 • “I can’t walk up the stairs to my third-floor apartment anymore.” • “I need to move.” • “My landlord is making me pay for the rest of my lease term.”

31. Hypo 5: Possible RAs • Move to first floor in same building • Allow transfer to another building • Allow lease to end early • Samuelson v. Mid-Atlantic Realty Co., Inc., 947 F. Supp. 756 (D. Del. 1996)

32. Who Must Pay for a RA • The housing provider • If reasonable

33. Who Must Pay for a RM • In standard rental housing, a tenant. • Sometimes the housing provider, if: • Receives federal funds, e.g. Medicaid, HUD subsidies (Rehabilitation Act)

34. Tenant (or Associate) Must Request RA/RM • If staff hears what could be construed as RA/RM request, must respond • No “magic words” or form required • However, RA/RM letters are better (see example letter at end of slideshow)

35. More Sample RA/RM Letters • http://www.drcme.org/publications.asp?pubid=27&secid=172 • http://www.drcme.org/publications.asp?pubid=27&secid=173 • http://www.drcme.org/publications.asp?pubid=27&secid=174 • http://www.drcme.org/publications.asp?pubid=27&secid=175 • http://www.in.gov/ipas/2647.htm • http://www.oradvocacy.org/pubs/housingfacts3.htm • http://sdc.workndog.org/content/node/261

36. Discriminatory Questioning • With limited exceptions, landlord cannot ask disability-based questions of a prospective tenant • 24 C.F.R. § 100.202

37. Examples of Possible Discriminatory Questioning • “I applied to an apartment, and was given a questionnaire about my disabilities to see if I could ‘live independently.’” • “I applied to an assisted living facility, and the housing provider asked me details about my mental health.”

38. Discriminatory Evictions &Refusals to Admit Due to Disability • It is illegal to “discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter” because of her disability • 42 U.S.C. § 3604(f)(1)

39. Independent Living: Possible Disc. Evictions/Admissions • “My landlord is evicting me from my apartment because ‘it’s that time in my life to move on.’” • “A seniors ‘independent living’ building will not admit me because they say I can’t ‘live independently.’” • Law: Landlords cannot evict / refuse to admit someone because they need assistance. This rule applies to “senior housing.”

40. Housing with Services: Possible Disc. Evictions/Admissions • “My mom is being evicted from her Alzheimer’s community because she wanders and can be aggressive.” • “An assisted living facility won’t admit me because it ‘can’t meet my needs.’” • Law: HWS cannot refuse tenancy on these grounds if applicant/tenant will not ask for services beyond what it provides.

41. Nursing Homes: Possible Disc. Evictions/Admissions • “A nursing home won’t accept me because of my ‘difficult behaviors’ and mental illness.” • “A nursing home won’t accept me because I have AIDS.” • Law: Nursing homes must be able to house and care for most residents with disabilities.

42. Examples of RAs/RMs that May Assist with Evictions/Admissions • If applicant/tenant is said to be too “difficult,” write letter requesting a RA and propose plan to alleviate this perceived problem • If a tenant/applicant has needs beyond the housing provider’s capacity, request a RA that s/he bring in other service providers

43. 4) Discriminatory Terms and Conditions • It is illegal to have different terms, conditions, or privileges in rental property for individuals with disabilities. 42 U.S.C. § 3604(f)(2)

44. Examples of Possible Discriminatory Terms & Conditions • “My assisted living facility says I have to buy liability insurance because I use a wheelchair.” • “My nursing home took away my electric wheelchair.”

45. Examples of Possible Discriminatory Terms & Conditions • “My landlord says I can’t eat in the dining room because my disability makes others uncomfortable.” • “I applied for housing, and the landlord only does background checks for people with mental illnesses.”

46. Examples of RAs/RMs that May Assist with DiscriminatoryTerms and Conditions • If applicant/tenant is “dangerous with w/c”… • Write letter requesting a RA and propose plan to alleviate this concern. • If tenant is told she can’t eat in dining room… • Write a letter requesting an RA that she be allowed to do so.

47. 5) Fair Housing Laws Can Be Both a Shield and a Sword • Useful for negotiation, settlement, quick relief • If brought to court, FHA can provide: • Injunctive relief • e.g. “Stop the eviction,” “let this applicant move in,” “give him back his wheelchair” • Money damages • Attorney’s fees

48. Methods for Bringing a Fair Housing Claim • 1) Civil case in state or federal court • Can seek immediate relief • Assistance of lawyer highly recommended • 2) Complaint to HUD or another agency • Can be done with or without lawyer • Lawyer useful

49. Example of Where toFile Complaints • Office of Fair Housing & Equal Opportunity • Department of Housing and Urban Development • 451 Seventh Street S.W. • Washington, DC 20410-2000 • 1-800-669-9777 • To file a complaint online, go here: • http://www.hud.gov/offices/fheo/online-complaint.cfm

50. Additional Resources • HUD/DOJ, Reasonable Accommodations Under the Fair Housing Act (2004) • http://www.usdoj.gov/crt/housing/joint_statement_ra.pdf • HUD/DOJ, Reasonable Modifications Under the Fair Housing Act (2008) • http://www.usdoj.gov/crt/housing/fairhousing/reasonable_modifications_mar08.pdf. • John Marshall Fair Hous. Support Ctr., Senior Housing Research Project Final Report (2007) • http://www.jmls.edu/fairhousingcenter/commentary/Final-Report-Draft-11-06-2007%20_2_.pdf