REASONABLE ACCOMMODATIONS

1. REASONABLE ACCOMMODATIONS Providing Safe and Accessible Housing for the Most Vulnerable Natalie Shemmassian October 7, 2011

2. Sources of Law • 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.

3. ...Continued • 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.

4. Housing Covered • Under Federal Law: • 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 • 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: • Multi-family housing • Except owner-occupied, two-family housing

5. Who is Protected? • Under both federal and state laws, a person who has: • 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

6. Protected Categories • Physical or Mental Impairment • 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.

7. …Continued • 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.

8. 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: • Has successfully completed a rehab program; • Has otherwise been rehabilitated successfully; or • Is participating in a treatment or self-help program • Alcohol use: • 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.

9. What is a Reasonable Accommodation? • 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

10. When Must Housing Provider Grant a Request? • Necessary + Reasonable=Must Grant Accommodation • T must meet the definition of disability • Show relationship/nexus between the disability and requested accommodation • 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

11. Can HP inquire and/or request more info on disability? • 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 disability-related 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

12. What is Reasonable? • 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.

13. Reasonable Modification • 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: • 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? • 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

14. Preventing an Eviction • 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

15. Establishing the Need for an Accommodation • 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)

16. …Continued • 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. • 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.

17. Direct Threat Exception • 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

18. …Continued • What type of action constitutes direct threat? • 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)

19. Questions

20. 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