Observing the Rights of Applicants and Residents with Mental Health Disabilities

September 20, 2009

Owners and managers of assisted housing often struggle to comply with fair housing requirements. Laws protecting people with disabilities can be especially tough to interpret. To help clarify the requirements, particularly with respect to people with mental health disabilities, the Insider recently spoke with Michael Allen, an attorney who specializes in cases involving the housing rights of people with mental and physical disabilities.

Owners and managers of assisted housing often struggle to comply with fair housing requirements. Laws protecting people with disabilities can be especially tough to interpret. To help clarify the requirements, particularly with respect to people with mental health disabilities, the Insider recently spoke with Michael Allen, an attorney who specializes in cases involving the housing rights of people with mental and physical disabilities. Before joining the Washington, D.C., firm Relman & Dane in June 2006, Allen directed the fair housing program at the Bazelon Center for Mental Health Law. He is an authority on the Americans with Disabilities Act and the Fair Housing Act.

A Large But Invisible Population

INSIDER: How many people in the United States are considered disabled by virtue of a diagnosis of mental illness?

ALLEN: It's hard to get a precise number, but about 10 years ago the Surgeon General issued a report on mental health that stated that in the course of any one year, one in five people in the United States would be affected by a mental health disorder, and during the course of a lifetime, probably one in two people. So we're talking about roughly 20 percent of the population on a year-over-year basis will have some sort of mental health disorder. It may be depression, anxiety, or something more serious—schizophrenia, bipolar disorder, psychoactive disorders, etc.

Not all of those people would be considered individuals with disabilities under the Fair Housing Act. But if you think about disability in the context of Social Security benefits, we know that there are roughly 2.5 to 3 million people who get disability benefits on the basis of mental health disorders. That means that there is not a single job in the United States that the Social Security Administration thinks that they can do. The definition under the Fair Housing Act is much broader. My best guess is probably five to 10 times that number—that is, somewhere between 12 and 20 million people in the United States.

INSIDER: So we're talking about a very large potential pool of people who might be renters in assisted housing programs. What kinds of claims against housing providers involve mental health disabilities?

ALLEN: Since 1988, when Congress added disability as a protected characteristic under the Fair Housing Act, it has been illegal for a housing provider to treat someone differently on account of a disability, including a mental health disability. A provider may either do so intentionally or unintentionally. If there are rules, policies, and practices that are neutral on their face but have a harsher effect against people with mental disabilities, that could be a violation as well. And then there's a very large category of discrimination that is exclusive to disability—that is, it doesn't apply to race or national origin or gender. And that is this concept of reasonable accommodation, which requires a housing provider to change its rules, policies, and practices when doing so is necessary to give a person with a disability an equal opportunity to use and enjoy the premises.

The kinds of claims that we see filed around the country tend to predominate in this area of reasonable accommodation. There may be, for instance, a site rule that says no animals are allowed on this property. But what about people who, on account of their disabilities, need a task animal? A seeing-eye dog is the classic example that's used in the HUD regulations. This animal literally helps the person to overcome the effects of her disability and then allows her to live safely and to use and enjoy the premises.

Companion or emotional support animals for people with mental illnesses have also been recognized under the Fair Housing Act. While a tenant without a disability would not be allowed to keep a dog as a pet, the rule might have to be waived for someone with a severe anxiety disorder who needs the companionship of a dog or other animal.

Another example of request for a reasonable accommodation might be the person who gets her Social Security disability check on the fifth of the month, and asks to be able to pay rent on receipt of that check without a late fee or a penalty. Another example is the person who finds herself in the hospital because of a mental health disorder and asks for a delay in recertification, or an opportunity to demonstrate that she's had a reduction in income on account of her disability.

Disability now is the largest class of fair housing complaints filed across the country, and among those complaints the majority are reasonable accommodation complaints. We still see others, including property manager inquiries about the existence or severity of a disability, which are illegal under the Fair Housing Act.

There are also a number of complaints about property managers who enforce “independent living criteria,” by which they refuse to rent to people who are deemed “unable to care for themselves.”

Avoiding Stereotypes

INSIDER: What are some of the myths or stereotypes that surround mental health as a disability?

ALLEN: The problems that are most relevant in the context of housing really grow out of society's myths about people with mental disabilities. The myth that leaps to mind first is that people with mental illnesses are somehow unpredictable, or maybe even dangerous. In fact, people with mental illnesses are no more likely to be lease breakers or law breakers. If anything, the research from the MacArthur Foundation Network on Mental Health seems to indicate that they are more likely to be victims than perpetrators. This is one of those myths that die hard, because there's just enough sensational coverage of some terrible incident involving somebody with a mental health disorder to keep that idea firmly planted in people's minds. By and large, though, people with mental health problems are living quiet lives and are certainly not people who are more dangerous or more unpredictable.

I've also seen property owners who think they can identify people with mental illnesses just by looking at them. And while that may be true with certain other kinds of disabilities—obviously somebody in a wheelchair, perhaps somebody who's blind—typically, mental illnesses are invisible. Although Down Syndrome and mental retardation may present some physical markers of the underlying disability, mental illness, anxiety, depression, post-traumatic stress disorder, schizophrenia, bipolar disorder, and the like are invisible. Many trained professionals can't identify a disability on sight, so it's particularly hazardous for a property owner to try to make guesses about whether or not somebody has a disability.

Related to that stereotype is the thought that people with mental illnesses aren't able to work and pay rent. But, as I said, a very small number of people have disabilities that are so severe that there aren't any jobs that they can do, and so they get a Social Security disability payment. The vast majority of the people with mental illnesses in this country are employed and are able to go about their lives pretty much the way that you and I do. It is inappropriate for a property manager to judge an application or judge compliance with a lease based on someone's disability or perceived disability.

I've certainly seen instances of housing providers who think that there should be special housing for people with mental illnesses. In fact, the housing that people with mental illnesses need looks pretty much like where you and I live. Most people with mental illnesses are not living in group homes or in treatment facilities. They are living out in the community, and they live in and use their housing just like everybody else.

One other myth among housing providers is that people who have disabilities, particularly people with mental health disabilities, are going to be asking for all sorts of changes in rules and policies—that is, reasonable accommodations. I think the facts bear out that while some certainly will ask for those changes, the vast majority of people with mental illnesses have no occasion ever to even divulge their illness or their disability, and have no reason to ask for a change in policy.

Understanding What Is Illegal

INSIDER: What are some policies or practices that the Fair Housing Act would bar as being illegal?

ALLEN: Inquiring about the existence or severity of the disability is illegal. There are now seven protected classes in the Fair Housing Act: race, color, religion, national origin, gender, family status (that is, the presence of children under 18), and disability. Unlike all those other protected classes, Congress realized that disability involves very private, confidential information. If your disability is visible, there's not much you can do to hide it. But if you have a mental illness, it is invisible almost by definition. Congress didn't want to open up people's private and confidential histories more than is absolutely necessary, so that's why the no-inquiry rule came into effect. Obviously, if you provide housing that is reserved exclusively for people with disabilities, you can ask the threshold question, “Do you have a disability,” and require very minimal documentation.

If someone asks for an accommodation, then the rules become a little different. An applicant or resident may have to show some more evidence of his disability. He may have to show why the change is necessary.

Also illegal are straight-out refusals to rent because of a mental disability, which is disclosed in a conversation about disability benefits or in the context of not providing information about rental history.

INSIDER: Let's say a site's policy is to check with the applicant's last one or two landlords about his rental history, and the manager discovers that an applicant has none because he was hospitalized or living with a relative. Can the site deny housing on that basis—because the applicant has no lease history? Or would that just be a pretext for discrimination?

ALLEN: I can't say whether an individual case is a pretext or not. I would say that the way the manager should handle the application conversation should be to explain that the site is applying a general, neutral rule that it applies to everybody. That would invite the applicant to say, “Would you accept, in place of landlord history, references from other people who will attest to my dependability or my creditworthiness, or my ability to follow rules?” That's a request for an accommodation, a change in rules, and the manager then has to ask himself: If making this policy change can satisfy the underlying principle of why I asked for the last two landlords, then I probably have to grant that accommodation and go about the process somewhat differently. So on the face of it, it's fine to apply that rule, but when the request for accommodation comes back, the manager must take it very seriously.

A case came up in Maryland about 11 years ago involving an applicant who was deaf. He was a psychologist life coach and had a thriving private practice. He wanted to move and he had a great landlord and credit history. He did his interview by telephone with a rental manager using the TTY system to communicate, so that the relay operator was typing the conversation. The applicant would speak, the operator would type, and the rental manager would see the typing, respond verbally, and the operator would then send the typed response back to the applicant. There was a transcript of the entire conversation. After the applicant fully qualified for housing, the manager said, “Oh, you poor dear. We don't have facilities or amenities that you need. Go down the street.” That case settled for $500,000 and free rent for the rest of his life.

INSIDER: What was the property manager's claim in that case? “I don't rent to disabled individuals”? Implicitly or explicitly, what was the manager saying?

ALLEN: She thought she was being kind and thoughtful, but in fact she was steering, and there was no defense of the case, quite frankly. Shortly after a complaint was filed, the landlord offered to settle it on those terms, because it understood its agent had messed up big time. There was no defensible policy. It was just a violation.

Other things that are illegal are requiring a cosigner, or charging higher rent or security deposits because of the history of disability. One thing that I see more in subsidized housing than in the private market is delaying responses to maintenance requests. Staff may think, “Oh, that Mrs. Murphy, she's up there all day long sitting around. She has nothing else to think of except the complaint, so we'll put her at the bottom of the list.”

Also, decisions to terminate or evict a resident who's seen as odd or eccentric is a potential violation of the Fair Housing Act if that action is taken more quickly than it would be taken against another resident.

INSIDER: Are there cases where the owner has to assume the resident has a disability, rather than the resident claim he has a disability?

ALLEN: In the context of accommodation, the onus is on the resident to make a request. Because owners are forbidden to ask about disability, the law has to operate in a way that doesn't then disadvantage that owner in a reasonable accommodation claim.

The owner doesn't have to assume that someone has a disability. The owner doesn't have to assume that somebody with a disability needs an accommodation—because the onus is on the resident or somebody acting on her behalf—a family member, social worker, Legal Aid lawyer, etc. But once the request is made, the picture is different.

Let's say a resident is charged with disturbing the quiet enjoyment of neighbors by banging on their doors late at night. The owner ought to treat that person as a lease violator. If it's a curable violation and state or federal law requires a cure notice, then you send out a cure notice. If it's not curable—that is, if it's a serious violation that's grounds for eviction—then you send out a termination notice. It's up to the resident then to come in and demonstrate that the violation occurred because of a mental disability. A resident might say: “I've lived here two years without incident, and this behavior happened because my medications were changed a week ago. I want you to take that into account and give me a second chance. Waive my lease violation and allow me to get back into good graces.” The owner then has an obligation to consider the request. The owner can say: “Show me that this is true. Give me a letter from your doctor explaining what happened. Show me that you can stay on the straight and narrow going forward so that this is not an ongoing problem.”

The owner's obligations at that point are described in a publication from HUD and the Department of Justice called the Joint Statement on Reasonable Accommodation. The Joint Statement talks about an “interactive process” in which, once a resident makes a request, the owner has a good-faith obligation to sit down, talk about that the request, and look for different ways of trying to accomplish what the resident is asking for.

INSIDER: At any point is the site owner obligated to bring in a third party—a social worker or a family member—or would that violate the privacy of the resident?

ALLEN: It depends on what the resident asks. Let's consider the same scenario we just talked about—it's two in the morning, and the resident is banging on doors. The resident might say, “I need help from the owner to put some safeguards in place. Please contact my sister who lives down the street, to see if she can help support me.” As long as it's not a burdensome request, the owner probably has to do it. Does an owner have to pay for a social worker to come in? Well, that's probably an undue financial burden, or a fundamental alteration of your business, because you're not running a social services program; you're running a housing complex.

INSIDER: If a disabled person is violating the lease terms, should the site manager treat the resident any differently than any other resident?

ALLEN: Absolutely not. It seems to me that it really is a bargain that was struck in adding disabilities as a protected class. That is to say, Congress said that we shouldn't treat people unfairly on the basis of their disabilities. That doesn't mean that people with disabilities get a go-free card. They ought to be treated equally, and that's the principal rule of the Fair Housing Act—to set a level playing field.

The only instance in which people with disabilities are to be treated differently is once an accommodation has been requested. And then the obligation is to treat that person differently as long as it isn't an undue burden or fundamental alteration. That is, you need to make sensible and modest changes in rules, but you need not excuse extreme violations.

The resident who beats up a neighbor, for instance, has gone over the line. The resident who sets fire to an apartment complex has probably gone over the line. To allow those residents to cure those violations would almost certainly require some form of undue burden or fundamental alteration. The owner also has to see to the safety of other residents. The Fair Housing Act demands equal treatment, so you should apply the same policy to everyone. So, with no accommodation requested, you would process a lease violation all the way to its end, up through eviction.

INSIDER: Is there a burden on the manager to avoid an eviction if a reasonable accommodation is not requested?

ALLEN: If no accommodation is requested, there is no obligation on the manager's part. But a resident can ask for an accommodation, at least according to one court in D.C., up until the marshal shows up to supervise the eviction.

INSIDER: Can you give an example of an owner or manager discriminating in a way that she might not be aware of? In other words, her actions are illegal, but not intentional?

ALLEN: There are several categories where unintentional discrimination comes up. One is a lack of knowledge of what's required under the Fair Housing Act. I think asking about disability is something people just may not know is wrong. Second is assuming that people with mental disabilities are somehow unqualified or unfit to be applicants or to rent, or steering people to housing that is labeled for people with disabilities. I think more education will help diminish those sorts of careless errors.

There are other instances where owners and managers have neutral rules that they try to enforce neutrally, but which have a harsher effect against people with disabilities.

I think that for years, owners and managers heard a lot of fair housing training about treating everybody alike, but they never got the second part of the training, which was: except when somebody with a disability asks you for an accommodation. If you don't have experience listening for and recognizing accommodation requests, there's a pretty good chance of an unintentional error that may lead to a complaint of housing discrimination.

Dealing with Alcoholism

INSIDER: Is alcoholism considered a disability in this context?

ALLEN: Alcoholism can qualify somebody as having a disability. A person who drinks can be disabled by the effects of the alcohol. A person who has been drinking for a long period of time, but who may now be sober, may still be affected by the underlying disease of alcoholism. In these cases, courts have said that the disease impairs them in major life activities, like interacting with other people, being able to care for themselves, etc. Purely on the basis of alcoholism a person can be considered to have a disability under the Fair Housing Act.

But the question is then what? If the person is actively drinking and trashes her apartment, she's violated the lease, and it's not something that can be excused by the fact that she has a disability. It would be illegal for a landlord to turn away an applicant on the sole basis of being an alcoholic. It would not be illegal to turn away a resident who, because she was drinking, had trashed the last two places where she lived.

So, again, having a disability is not a go-free card. It does ensure some basic level of fair treatment, but beyond that you'd have to look at each individual case to say what the impact would be.

INSIDER: If the owner goes through a neutral policy of finding out about an applicant's history and finds that he has caused property damage to a previous unit because of his alcoholism, could she turn that person down as an applicant because of the lease violation?

ALLEN: Absolutely. The Fair Housing Act doesn't seek to wipe out all of the reasonable screening and procedures that owners use. It just seeks to limit those that are discriminatory or have a discriminatory effect. You can't be in the property management business and have people who tear up your apartments. And perhaps the best predictor of someone who will tear up your apartment is someone who has torn up apartments in the past. The Fair Housing Act doesn't ask owners or anybody else to leave their common sense at the door.

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Don't Ask Too Much

Except at housing legally designated for people with disabilities, site owners and managers may not inquire about the disability status of an applicant, resident, or guest. Beware of asking questions like:

  • Do you have a disability?*

  • Can you live on your own?

  • May I see your medical records?

  • Are you on medication?

  • Why do you receive SSI?

  • Why don't you want to live in a special facility for the disabled?

  • Wouldn't you feel more comfortable in a unit on the ground floor?

The situation is different when someone asks for a reasonable accommodation based on his disability. In that case, you may verify that he has a disability-related need for the accommodation or modification before considering the request.

You may always ask questions related to an applicant's ability to meet the terms of the lease. Just be sure to ask the same questions of every applicant.

 

* You may not ask about disability status to determine someone's eligibility or suitability as a resident. You may, though, ask for the purposes of calculating adjusted income. According to Handbook 4350.3, “It is a good practice for a property's rental application to define ‘disability’ per program requirements and then ask if the applicant qualifies as a person with disabilities under that definition.” The application should also inform residents of how to request a reasonable accommodation. In addition, Allen advises that minimal documentation is required to verify disability when determining adjusted income. “There need be no conversation about what the disability is, what the diagnosis is, what the medication is, or what the treatment is, and, certainly, there should not be any requirement to show all of one's medical records,” he says.

 

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