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“We Can’t MeetYour Needs”:

Housing Discrimination Against Seniors with Disabilities

Aisha Bierma

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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)

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Fair Housing Act42 U.S.C. § 3602(b)

Applies to “dwellings,” including: Seniors apartments Ownership townhomes & condos Housing with services / assisted living Nursing homes

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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

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Examples of Disabilities42 U.S.C. § 3602(h)

Physical Mental Drug addiction

But not current, illegal use of a controlled substance

Alcoholism

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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

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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

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Reasonable Modification (RM)42 U.S.C. § 3604(f)

Structural change to the premises

Common examples: Widening doorways Installing grab bars Lowering kitchen cabinets

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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.

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“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

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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

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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.

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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.

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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.

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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…

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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

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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.

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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.

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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…”

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Suggestion for Formulating RA Plans

Consult with outside experts for ideas, e.g. long-term care ombudsmen.

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Hypo 2

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

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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

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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

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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?

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Hypo 3: Possible RM Plan

Automatic faucet shut-off

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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

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Hypo 4

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

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Hypo 4: Sample RA Plan

Will depend on source of concerns…

Physical or emotional therapyMedication adjustmentsLowering speed on w/c

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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)

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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.”

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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)

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Who Must Pay for a RA

The housing provider If reasonable

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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)

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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)

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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

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2) Discriminatory Questioning

With limited exceptions, landlord cannot ask disability-based questions of a prospective tenant

24 C.F.R. § 100.202

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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.”

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3) 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)

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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.”

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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.

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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.

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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

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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)

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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.”

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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.”

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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.

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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

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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

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Example of Where to File 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

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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

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Contact Information

Aisha Anderson Bierma Attorney at Law Legal Aid Society of Minneapolis Direct: 612-977-1806 E-mail: abierma@midmnlegal.org

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Sample LetterRequest for Reasonable Accommodation/ Modification

Dear Ms. Housing/Facility Manager:

I am writing to request a reasonable accommodation/ modification with regard to my disability, which substantially limits one or more of my major life activities.

Specifically, I am writing to request: describe the specific change in rule, policy, practice or service, or physical premises, you are seeking.

I need this accommodation so that I can live here as easily and successfully as the other residents and fully use and enjoy the premises.

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Sample Letter (con’t)

I have attached a letter from my doctor certifying that this request is necessary. (attaching such a letter may or may not be necessary)

As you probably know, because I have a disability, fair housing laws entitle me to reasonable accommodations/modifications.

Please respond to my request in writing within seven business days. Thank for your assistance.

Sincerely,

Your Name