How to Comply with New Guidance on Reasonable Modifications

March 25, 2009

Dealing with reasonable accommodations may be trickier than you think. Last year the Department of Justice (DOJ) and HUD jointly issued new guidance on reasonable modifications under the Fair Housing Act. Since then, HUD has issued new statements on the housing rights of disabled applicants and residents.

April 2009 marks the 41st anniversary of the signing of the Fair Housing Act (FHA) by President Lyndon B. Johnson. The FHA protects Americans against discrimination based on race, religion, gender, age, ethnic origin, or disability. In honor of Fair Housing Month and to help you build a successful compliance strategy, we'll review the highlights of the 2008 guidance, as well as some recent agency statements on the housing rights of disabled applicants and residents.

To avoid costly lawsuits and liability, work with your site's attorney to make sure your site meets all current requirements. Keep in mind that state and local laws vary widely, and many of them set out more exacting requirements than federal laws, so be sure to hire an attorney who is knowledgeable and experienced in federal, state, and local requirements. In addition, remember that some laws that apply to assisted housing do not apply to multifamily housing generally.

Conduct Survey to Assess Current Compliance

The best way to defend against disability-related litigation is to avoid it altogether, says real estate attorney Robert S. Fine. To evaluate the extent of your compliance with the requirements of the Americans with Disabilities Act (ADA), he strongly suggests conducting an ADA survey. For large or complicated sites, he believes it is essential. “Choose a professional with extensive ADA experience to perform the survey,” he says. “Be mindful of the great disparity in the knowledge and experience among architects and contractors with regard to ADA requirements and compliance. Checking references and resumes is crucial,” he adds.

This is good advice not just for complying with the ADA, but also for complying with the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, and other laws that apply to assisted housing sites. Fine recommends that you get a compliance review underway immediately if your site has not had one recently. Use it to determine if there are illegal barriers to access and/or discriminatory practices and policies in place at your site. Use the results to establish a compliance implementation plan that sets forth each item to be remedied and the projected costs and timeline. Be sure to include in the evaluation a consideration of whether policies and procedures are discriminatory in effect, if not intent.

Which Laws Address Reasonable Accommodations?

Federal civil rights laws prohibit discrimination against applicants or residents based on disability as well as other classifications (race, color, national origin, sex, age, religion, and familial status). State and local laws offer additional protections. Some have additional categories of protection.

Section 504. Under Section 504, which covers multifamily assisted sites, owners must operate each existing housing project so that, when viewed in its entirety, it is readily accessible to and usable by persons with disabilities. Among other requirements, Section 504 requires owners to respond to reasonable accommodations requests from residents or applicants with disabilities for adjustments to site policies and/or physical alterations.

Generally, under Section 504, the owner must make and pay for reasonable structural or physical modifications to dwelling units and/or common areas that are needed by applicants and residents with disabilities, unless these modifications would change the fundamental nature of the project or result in undue financial and administrative burdens. Owners must provide reasonable accommodations when they may be necessary to afford a person with disabilities equal opportunity to use and enjoy a dwelling unit and the public and common areas. Owners of sites not subject to Section 504 may not have to pay for the modification, but they would have to allow it.

An owner does not have to allow a modification unless the resident's health care provider verifies the need. Also, the requested physical modification cannot create a structural problem in the building or render it unusable by other residents.

PRACTICAL POINTER: Although you may not ordinarily inquire into the nature and severity of an individual's disability, you may do so in response to a request for a reasonable accommodation.

Fair Housing Act. Under the Fair Housing Act, all multifamily property owners (not just assisted housing providers) are obligated to operate their facilities in a nondiscriminatory manner and to meet specific requirements to make their properties physically accessible to persons with disabilities (see the series, “Complying with Federal Design and Accessibility Requirements, Parts 1-3,” Insider, June 2008, July 2008, and Special Issue 2008).

In addition, the Fair Housing Act requires housing providers to provide “reasonable accommodations” to persons with disabilities-meaning that an owner may have to modify rules, policies, practices, procedures, and/or services to afford a person with a disability an equal opportunity to use and enjoy the housing. As one federal court put it recently, “Under [the Fair Housing Act], a landlord has an affirmative duty to meet the needs of handicapped persons” [Fagundes v. Charter Builders, Inc., 2008].

As the new HUD-DOJ guidance makes clear, the Fair Housing Act prohibits discrimination against the disabled by refusal to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied, or to be occupied, by a person with a disability if such modification is necessary to afford such person full enjoyment of the site.

Modification vs. Accommodation

DOJ-HUD examples of reasonable modifications include, but are not limited to, widening doorways to make areas accessible to persons in wheelchairs, installing grab bars in a bathroom, and installing ramps to give access to a public or common-use area. A resident whose arthritis limits the use of her hands may replace the doorknobs with levers. A resident who uses a wheelchair may install a roll-in shower.

The new guidance makes this distinction: “Under the Fair Housing Act, a reasonable modification is a structural change made to the premises whereas a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service. A person with a disability may need either a reasonable accommodation or a reasonable modification, or both, in order to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces.”

As former Assistant HUD Secretary Kim Kendrick said, “Persons with disabilities have a right to have the place they call home altered in a way that will enable them to fully enjoy it.”

What Is 'Reasonable'?

When a household member requires an accessible feature, a policy modification, or other reasonable accommodation to accommodate a disability, the owner must provide the requested accommodation unless doing so would result in a fundamental alteration in the nature of the program or an undue financial and administrative burden. A fundamental alteration is a modification that is so significant that it alters the essential nature of the provider's operations.

As HUD notes in its guidance, Section 504 requires that in making an accommodation, a federally assisted housing provider is required to bear costs that do not amount to an undue financial and administrative burden. Neither Section 504 nor the Fair Housing Act requires owners to provide accommodations that are an undue financial and administrative burden.

In HUD-subsidized multifamily housing, if the owner believes a requested structural modification to the property is an undue burden, the resident still has the right to make the modification or accommodation at his own expense. (However, there is nothing to prevent residents from accepting assistance from nonprofit groups in funding these modifications.)

The accommodation bar can be very high for property owners. According to the Bazelon Center for Mental Health Law, some courts have required that owners cease eviction proceedings even when no specific accommodation is requested, but when access to services may allow the resident to alter his behavior to become compliant with a lease.

Example: A Massachusetts court rescinded an eviction of a resident with severe migraine headaches, depression, and post-traumatic stress disorder from a federally subsidized housing facility. The court found that the management company, although aware of the resident's mental health problems and of the link between her disability and her disruptive acts at the site, limited its efforts to accommodate her. The court noted that “the fact that a tenant does not request a specific or suitable accommodation does not relieve a landlord from making one,” particularly when the tenant is a person with a mental disability. The management company failed to show that it attempted to reasonably accommodate the resident prior to initiating eviction proceedings [Cobble Hill Apartments Company v. McLaughlin].

What Site Policy Should Include

Your site should have a clear, written reasonable accommodations policy and procedures document so that you can consistently and equitably respond to any request for reasonable accommodation by persons with disabilities, follow applicable laws, and ensure that disabled individuals enjoy equal access to housing. Developing this policy is a key part of a compliance plan, so make sure your attorney has experience drafting one.

In developing policy and procedures, keep in mind that the requirement to provide a reasonable accommodation is present at all times throughout the tenancy of a person with disabilities. While an individual with a disability is entitled to request an accommodation as soon as it appears that the accommodation is needed, he may make the request at any time during application or tenancy. Under the Fair Housing Act, a housing provider cannot deny or restrict access to housing because an applicant makes a request for a reasonable accommodation or modification. You should also be sensitive to the fact that individuals may become disabled during their tenancy and then may request accommodations, even if they were not disabled when they originally signed their leases.

If alteration of a unit will interfere with the next resident's use of the premises, the law allows an owner to require that the resident making the alteration remove or restore it when his lease terminates. This is not true for common areas. This expectation should be stated in your site's policy and in your agreement with the household.

The new guidance discusses retrofitting specifically. The Fair Housing Act sets basic accessibility requirements for all buildings designed and constructed since 1991. As the guidance makes plain, owners of sites that should have been constructed in accordance with these requirements but were not are obligated to retrofit their units to bring them into compliance with the act. If a resident of one of these sites requests modifications to a unit or public and common use area that should have been made at the time of construction, the owner has an obligation to make and pay for those modifications as part of its original (but unmet) obligation to conform to the Fair Housing Act design and construction requirements.

DOJ-HUD example: A resident with a disability who uses a wheelchair resides in a ground-floor apartment in a non-elevator building that opened in 1995. Under the Fair Housing Act, all ground-floor units in non-elevator buildings must meet the minimum accessibility requirements of the act. However, the doors in this apartment are not wide enough for passage using a wheelchair, in violation of the design and construction requirements, but they can be made compliant through retrofitting. According to HUD-DOJ, under these circumstances, one federal court has stated that the resident may have a potential claim against the housing provider.

In your policy, be clear about money issues. Owners may not require any increased security deposits for persons with disabilities or as a result of a request for a reasonable modification.

PRACTICAL POINTER: Requirements for verifying an individual's disability for purposes of reasonable accommodation are not the same as the requirements for verifying his eligibility for housing. See Handbook 4350.3, Sections 3-17 and 3-28 for proper verification methods. See also Section 2-23. A person who meets the definition of a person with disabilities used in civil rights protections may or may not meet the definition of a person with disabilities used for program eligibility purposes.

Topics

Compliance