Accommodating Wheelchair Users: What Is "Reasonable"?

You already know you must provide reasonable accommodations for applicants and residents who are disabled and use a wheelchair for mobility. But as an owner or manager, you also must be certain that you maintain a safe environment for all your residents and visitors.

“There are several issues surrounding wheelchair use, and sometimes owners and managers get caught in the middle of them,” says attorney Kathelene Williams, who focuses her legal practice on fair housing, representing primarily HUD-assisted site owners and managers. “Owners and managers want to do the right thing, but sometimes they get requests that are not reasonable.”

For example, Williams says, if a resident asks to leave her wheelchair in the lobby so it's handy when she returns from an outing, you could agree—but you could be setting a precedent that is problematic. “What if someone damages it? What if you have an elderly population and lots of wheelchair users? If you say yes to one, you'll have to say yes to others who ask,” Williams says.

First Step: Know and Follow Applicable Laws

The challenge is to find the right balance to reasonably meet all needs. That means not only those of your residents and visitors, but your own needs to effectively and safely oversee and operate your site. A good starting point is to review what HUD and federal regulations require you to do. Chapter 2 of HUD Handbook 4350.3 covers the issues extensively.

HUD Handbook 4350.3. Federal fair housing law and HUD rules say you must grant a reasonable accommodation or modification request if a resident or an applicant needs the accommodation or modification to allow her to “use and enjoy” your site. But you are not required to simply grant each and every request. The regulations permit you to deny the request if granting it would put an “undue financial or administrative burden” on your site.

However, if the request for accommodation or modification is reasonable and you do not grant it, you could be found to be violating fair housing laws. “If a wheelchair user raises any kind of complaint, HUD takes it very seriously,” Williams notes. “HUD takes a pretty hard line with this.”

HUD's regulations offer some examples of typical modifications you would be expected to make if residents who use wheelchairs request them, such as:

• Widening doorways to make rooms more accessible;
• Installing grab bars in bathrooms; and
• Lowering kitchen cabinets to a height suitable for persons in wheelchairs.

Section 504. Sites that receive federal funds also must meet the physical accessibility requirements of Section 504 of the Rehabilitation Act of 1973. Section 504 (which is codified at 24 CFR Part 8) requires sites with more than five units to have a minimum of 5 percent of units—or at least one unit—that is “physically accessible” for persons who have mobility impairments.

Under HUD regulations, this applies to sites constructed after July 1998. The Uniform Federal Accessibility Standards (UFAS) spell out minimum standards for physical accessibility. Sites that have undergone “substantial alterations” also must meet these minimum requirements. (For a summary of physical accessibility requirements under Section 504 and HUD rules, you can check HUD Housing Notice 01-02, which was reinstated and extended with Notice 02-03.)

Fair Housing Act. In addition, buildings opened for first occupancy after March 13, 1991, should have been built in compliance with Fair Housing Act accessibility requirements. These requirements say that all ground-floor and elevator-accessible units, public-use areas, and common areas must be accessible to people with mobility impairments.

ADA. Your site also must comply with the Americans with Disabilities Act (ADA) regarding access to public areas. The ADA requires owners to remove barriers that prevent people with disabilities from getting to and using public-use areas. These are any areas that are open to the public, such as your leasing office.

The requirement to remove barriers applies only if barrier removal is “readily achievable.” This means that it must make sense from both structural and financial standpoints to remove the barrier. For example, if to widen an entrance, you have to tear down supporting beams, that's a barrier to removal that would not be considered to be readily achievable.

Working with Wheelchair Users

The Fair Housing Act and HUD regulations dictate that you and your staff can not make assumptions or ask questions about an applicant's or a resident's use of a wheelchair. Essentially, you should work with these individuals as you would with an applicant or resident who does not use a wheelchair.

You need to be sure you do not make any statements that indicate “any preference, limitation, or discrimination” based on the person's use of a wheelchair.

Another caution with applicants is not to assume he wants to live in a ground-floor unit or a particular area of your site just because of the wheelchair. If you “steer” applicants toward or away from any specific part of your site, you could be in violation of fair housing laws. “The bottom line is that you can't impede or discourage wheelchair users in any way,” Williams notes.

Extra Consideration for Motorized Wheelchairs

Motorized or electric wheelchairs can present many additional challenges, Williams points out, especially in older buildings. These wheelchairs tend to be much larger than non-electric wheelchairs. If you have the standard 32-inch doorway, for example, many motorized wheelchairs can't maneuver through that, she says. A 36-inch opening more comfortably accommodates the larger wheelchairs.

“There's a host of additional issues for modifying units and just managing the presence of these larger wheelchairs,” she says. “If the resident can't readily get the wheelchair inside her unit, you don't want her leaving it in the hallway or stairwell. That can be a liability issue for you and a safety issue for other residents.”

One issue with motorized wheelchairs that is getting some attention now, Williams says, is whether you can require a driving test of residents who use them. “Generally you can't, unless you have reason to think that the resident can't handle the wheelchair safely,” she says. “If you or your staff or other residents have seen the person running into walls or bumping into people, that's legitimate cause for concern. You should document what you and your staff have seen firsthand.”

Williams sees this issue growing “With more and more people using the motorized wheelchairs, this will become a bigger issue,” she says.

Finding Sensible Solutions

There's a legal framework that must guide your decision-making about accommodating wheelchair users. And as Williams points out, you will be held to those standards. Furthermore, if a wheelchair user files a complaint against you, a good deal of consideration is given to the individual.

“If there's a complaint, the first thing that will be looked at is what your accessibility should be for someone in a wheelchair,” she says. “When was your site built? Are you federally funded? What regs apply to your site? Is it in compliance? If it's not in compliance, that's a really big deal.”

Another issue considered in complaints is a resident's preference. For example, a resident who has lived at your site begins to need to use a wheelchair and he asks you to make modifications to the unit he currently occupies. Instead, you offer to move him to a unit that already has been modified. He's on the sixth floor now and wishes to remain there, but you want to relocate him to the ground floor. You think you are trying to make a reasonable accommodation, but the courts might think otherwise.

“In fair housing complaints, resident preferences are given a lot of weight,” Williams explains. “On the other hand, when managers or owners negotiate and keep things cooperative and friendly, that can work in their favor.”

If you have a resident whose request for accommodation or modification you would like to grant, but you simply can't handle it financially, you may have success helping the resident find outside funding for the modification, says Williams.

“If it's a financially troubled property, you might be able to prove that undertaking the requested modification is a financial or administrative burden,” Williams explains. “But that is often hard to do. What you can try—and what I've seen work in some cases—is to approach organizations that work with disabled individuals to help pay for the project. Some veterans groups might offer that also.”

Williams does see misunderstandings about what “reasonable” means when accommodating a wheelchair user or anyone who has a mobility impairment. Some individuals think the law means they can get whatever accommodation they want—they simply have to demand it and it will be given to them. That's not the case, she says.

“It's important for sites to have written rules and to apply them equitably across the board,” Williams says. “The best approach is to work with a resident to find sensible solutions, to meet a resident's needs in his unit, and work cooperatively.”

Further Reading: “Dos and Don'ts: Don't Require Residents Using Electric Wheelchairs to Get Liability Insurance,” Insider, July 2010, p. 9; “How to Handle Requests for Reasonable Accommodations,” Insider, May 2010, p. 1. Both articles are also available online at http://www.assistedhousinginsider.com.

Insider Source

Kathelene Williams: The Law Firm of Williams and Edelstein, P.C., 7742 Spalding Dr., Ste. 478, Norcross, GA 30092; (770) 840-8483; President, Fair Housing Institute (http://www.fairhouse.net); kathi@fairhouse.net.

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