basic provisions of the federal & state fair housing acts · prohibited practices under the...

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Fair Housing Act Overview

• 42 U.S.C. §3601 et seq. and 24 C.F.R. Part 100• Prohibits discrimination in housing and residential financing

transactions• Classes of persons protected by the Fair Housing Act


Siting of Properties and Designation of Housing Population

• Consider civil rights implications: Olmstead, Fair Housing Act, Title VI and Section 504

• WHERE the housing will be? Affirmatively Furthering Fair Housing (AFFH)

• HUD site and neighborhoods standards• WHO is the housing for? Families with children? Older

persons? • Olmstead - Integration of persons with disabilities into

community/HUD guidance


General Fair Housing Considerations

Multifamily BuildingsThose with No HUD Financing

Fair Housing ActADA Title II - state/local government

ADA Title III - public accommodationsState & Local Laws

Building Codes


General Fair Housing Considerations

Multifamily BuildingsThose with HUD Financing

Fair Housing ActADA Title II - state/local government

ADA Title III - public accommodationsSection 504

Architectural Barriers ActState & Local Laws

Building Codes


Design and Construction

Laws + Requirements • Fair Housing Act (all) – safe harbor

design/construction standards• Americans with Disabilities Act (all)• §504 of Rehabilitation Act (Federally-funded)• Architectural Barriers Act (Federally-Funded)• State and local laws similar to FHA and ADA (all)• Local building and housing codes



Design and Construction Standards• Fair Housing Act (Units and Common Areas) – no

standard, several safe harbors but usually Fair Housing Design Manual– must use one safe harbor for entire project

• Americans With Disabilities Act, Title III (For Private Housing, Only Public Areas or Commercial Space) –2010 ADA Standards for Accessible Design



Design and Construction Standards cont’d• Americans with Disabilities Act, Titles II and III (Buildings,

Public and Common Areas in Housing) – 2010 ADA Standards for Accessible Design

• Section 504 of the Rehabilitation Act of 1973 (Housing, including Common Areas) – UFAS OR 2010 ADA Standards for Accessible Design

• Architectural Barriers Act (Buildings and Housing) – UFAS



Section 504 General Accessibility Requirements• 5% of housing units overall and per development plus

additional 2% accessible for hearing & visually impaired• Non-dwelling spaces• Distribute accessible dwelling units throughout projects and

with sufficient range of size and amenities.



What Does This Mean for Your Housing Community?• Funding sources used determine applicable

design/construction requirements• Make sure developer, architect and CM understand applicable

standards, including whether construction tolerances are acceptable

• Consider third party certifications• Potential liability of developers, etc. if covered properties do

not meet accessibility standards


General Fair Housing Issues

What Does This Mean for Your Housing Community?• Funding sources used determine applicable

design/construction requirements• Make sure developer, architect and CM understand applicable

standards, including whether construction tolerances are acceptable

• Consider third party certifications• Potential liability of developers, etc. if covered properties do

not meet accessibility standards



Section 504 Reasonable Accommodations• Same definition as Fair Housing Act plus may include

structural modifications to units and public and common areas• Must be requested (Must be requested in such a

way that a reasonable person would understand that an exception to a rule or policy is being requested.)

• No fundamental alteration required, no “undue financial and administrative burden” – be clear about how this standard is a high one.

• Owner/housing authority pays for



Familial Status Discrimination

• Prohibited actions• Housing for Older Persons Act (HOPA)• Occupancy Guidance (Keating Memo)



Disability – What can a housing provider ask about?

• Under the Fair Housing Act, it is usually unlawful for a housing provider to (1) ask if an applicant for a dwelling has a disability or if a person intending to reside in a dwelling or anyone associated with an applicant or resident has a disability, or (2) ask about the nature or severity of such persons' disabilities

• Housing providers may make the following inquiries of all applicants, including those with and without disabilities:

– An applicant’s ability to meet the requirements of tenancy – If an applicant is a current illegal abuser or addict of a controlled substance– If an applicant qualifies for a dwelling legally available only to persons with a

disability or to persons with a particular type of disability– If an applicant qualifies for housing that is legally available on a priority basis to

persons with disabilities or to persons with particular disability



Legal Theories of Housing Discrimination• Intentional Discrimination• Disparate Impact: Discriminatory Effects Rule – 24 CFR

§ 100.500


Michigan Law/Standards

Elliot-Larsen Civil Rights Act, Act 453 of 1976

• The opportunity to obtain … housing and other real estate, and the full use of public accommodations… without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status or marital status as prohibited = a civil right



Elliott Larsen Civil Rights Act (Cont’d) • “Housing accommodation” is defined as improved or

unimproved real property, which is used or occupied or is intended, arranged or designed to be used or occupied as the home or residence of one or more persons.

• “Real Property” includes a building, structure.. leasehold… or condominium.



Prohibited Practices under the Elliott Larsen Civil Rights Act include but are not limited to:

• Discriminate in the furnishing of facilities and services related to real estate

• Represent that a property is not available • Advertise with preferences, limitations or

discriminate against any class of persons• Deny access to housing



Persons with Disabilities Civil Rights Act, Act 220 of 1976

• “The opportunity to obtain … housing, and other real estate and full utilization of public accommodations, public services.. without discrimination because of a disability is guaranteed by this act and is a civil right”



Persons with Disabilities Civil Rights Act, Act 220 of 1976 (Cont’d)

• “Disability” is defined as one or more of the following: – Determinable physical or mental characteristic resulting

from disease, injury, congenital condition of birth, or functional disorder, which limits one or more of the major life activities of that individual



Persons with Disabilities Civil Rights Act, Act 220 of 1976 (Cont’d)

• “Housing accommodation” includes improved or unimproved real property … which is used or occupied… as the home or residence of one of more persons

• “Reasonable accommodation” –a person shall accommodate a person with a disability for purposes of housing unless it would impose an undue hardship


Contact Information

Rochelle E. Lento, Senior Counsel Dykema Gossett PLLC

400 Renaissance Center Detroit, MI 48243

313-568-5322 or [email protected]

California | Illinois | Michigan | Minnesota | Texas | Washington, D.C. www.dykema.com

Exceptional service. Dykema delivers.

LEADING AGE MICHIGANFebruary 25, 2015

Fair Housing Acts Boot Camp: Recent HUD Conciliation Agreements, Reasonable Accommodations and Discriminatory Advertising and Marketing Issues

Phyllis Adams, Esq.(734) 214‐7664

[email protected]


Primary Areas of Discussion

Focus on Fair Housing Act

Multiple federal and state laws prohibit housing discrimination

Focus of this part of the presentation is on:•Reasonable accommodation issues regarding individuals with disabilities

•The Oakmont Senior Communities – HUD Conciliation Agreement (September 2014)

•Discriminatory advertising and marketing practices and recent Conciliation Agreement in west Michigan as to advertising practices


Recap: Discrimination on basis of handicap

FHA Section 3604(a)

Makes it unlawful:

•To refuse to sell, rent, negotiate for, or otherwise make unavailable or deny•A dwelling•To any person •On a discriminatory basis including handicap


Recap: Discrimination in services or facilities

FHA Section 3604(b)

FHA also prohibits discrimination:

• In terms• Conditions• Privileges of sale or rental• Of a dwelling• And in provision of services or facilities in

connection therewith


Recap: Equal housing and reasonable modifications and accommodations

FHA Section 3604(f)

Provides for equal housing opportunities for people with disabilities including:

• Permitting reasonable physical modifications of certain premises;

• Requiring reasonable accommodations in housing rules and policies; and

• Failing to including certain accessibilityfeatures in design and construction of new multi-family dwellings


Recap: basic rules

FHA application to CCRCs and Senior Housing with Services Providers

• No exemption for housing with services providers like CCRCs and ALFs

• Nursing homes – address on case-by-case basis

• Short-term residents may not qualify as residents of a “dwelling” because only brief stay

• Less clear if long-term stay residents• Even if not covered under FHA, NH would be a

“public accommodation” under the ADA and therefore subject to nondiscrimination requirement plus subject to nondiscrimination requirements as a CoP in Medicare/Medicaid


“Direct Threat” Exception to FHA

Exception for “direct threat” to health or safety of otherindividuals or if would result in substantial physical damage to property of others

Housing need not be made available to persons whose impairments make them dangerous to others (threat to self NOT included)

But, defense rarely succeeds because:

• Cannot presume persons with disabilities generally pose greater threat than people without disabilities

• Must have direct, objective evidence of overt acts or conduct posing threat to others

• Even if “direct threat,” must allow reasonable accommodations to address/eliminate risk


FHA Issues with Admissions and Discharges

FHA prohibits discrimination on basis of handicap in admissions and discharges

Cannot impose harsher terms/conditions on disabled residents, including if motorized carts:

• May not require higher security deposit • May not such resident to obtain special liability

insurance• Should not require “driving school,” safety test

or “license”

Cannot evict if resident is later disabled unless resident refuses to undertake reasonable accommodations at own expense to remain in unit

Provider not obligated to pay for additional support to maintain resident in that type of unit vs. licensed area of facility


Requirement to “live independently”

FHA violation to require resident to “live independently”

• HUD Regulations: housing providers not allowed to make pre-admission inquiries to determine (i) whether applicant has handicap; or (ii) nature or severity of handicap

• Should not require physical exam as a condition of admission; cannot require proof of person’s ability to “live independently.” (See HUD Memo, Gordon Mansfield/Joseph Schiff 1990)

• Cason v. Rochester Housing Authority (1990): pre-admission inquiries about applicant’s physical and mental impairments violated FHA


Case law confirming FHA violations related to requirement to “live independently” Niederhauser: May not employ “independent living” eligibility

criteria or require tenants to be “capable of tending to their needs independently”

Resurrection Community:

Alleged FHA violation because CCRC (i) discouraged prospective residents who used wheelchairs; (ii) required residents to “live independently”; and (iii) required residents to submit medical assessments conducted by CCRC employees as a condition of residency. Resulted in consent decree of $220K.

Forest Dale Violation of FHA where housing provider required resident to move out if “can no longer care for their personal needs”


Case law confirming FHA violations related to requirement to “live independently” – cont’d

Covenant Retirement Communities

• No steering -- cannot assign units based on disability by clustering wheelchair-dependent residents or requiring disabled residents to select ALF; must allow reasonable accommodations

• Can offer disabled resident a unit with easier access to dining or other services but cannot require

• Potential for “direct threat” defense to apply if threat to health/safety of others due to egress issues – assess carefully

• May not require resident to transfer from wheelchair to dining chair in community dining room without legitimate health and safety (“direct threat”) reason


What about “level of care” transfers?

Strawberry Point Lutheran HFA

Bell v. Bishop Gadsden (2006)

• HFA violated FHA by requiring resident discharge to SNF because of assistance required to transfer from bed to wheelchair

• May not force I/L resident to transfer to ALF or SNF due to disability but housing provider does not have to pay for support services

Weinstein (1996)Channing House (2009)

• Barring persons incapable of independent living if not licensed to serve such persons was permissible; must be clear State prohibition and reasonable accommodation

• Issue in Michigan: HFA may provide care for any medical condition if HFA, resident and resident’s physician agree. MCL 333.21325.


Best Practices for Admissions under FHA

1. Separate health-related inquiries into two stages

• Admission stage inquiries should be limited to narrow set of questions designed solely to determine eligibility using neutral factors.

• AFTER admission, health-related information may be used to assist resident in selecting service package but distribution should be limited and only on need-to-know basis. Should not be shared with admissions staff.

• If life-care, Type A contract, eligibility for residency may take into account resources available, which may implicate level of services required. Use caution.


Best Practices for Admissions under FHA – cont’d

2. Make assessments voluntary (and only post-admission)

• Medical assessment should not be required as a condition of admission. See Oakmont.

• Information should be treated as confidential and be available to staff only on limited need-to-know basis.

3. Other issues

• Eliminate language in residency agreement or policies suggesting resident must be able to “live independently” for admission, ongoing residency or to avoid transfer to ALF or SNF


“Reasonable Accommodations”

FHA Section 3604(f)(3)(B)

FHA requires housing providers to “make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling”

Accommodation NOT required if imposes:• “Undue financial or administrative burdens”

on provider• Requires “fundamental alteration” in nature

of programs, e.g., not required to offer new services not otherwise available

• Not required to offer relief from essential financial requirements of housing provider

• Must propose alternatives


Flow Chart of Reasonable Accommodation

Complainant has handicap or is associated with

handicapped person

Housing provider knows of handicap

or reasonably should

Complainant requests

accommodation

Housing provider determines if

accommodation is reasonable (feasible,

practical)

Undue financial or administrative

burden? Fundamental

alteration in nature of programs?

Implement reasonable

accommodation

Yes

Is there another solution? Housing

provider has burden

No


Examples of Reasonable Accommodations Required under FHAGeneral rule Very “facts and circumstances” specific and each

situation must be analyzed on case-by-case basis

No pet policies • Waiver of no pet policy – many instances• Not just recognized service animals

Guests • Waiving no-guest rule for resident needing live-in help

• Includes family members in some casesAdmissions process and forms

• Changes as to process for completion of paperwork or personal interview if other alternative available

• Large print notices for visually impaired tenant• Changing rent due date to allow tenant time to

deposit disability check


Examples of Reasonable Accommodations Required under FHA – cont’d

Parking Issues –MANY CASES

• Waiver of first come/first served parking spot policy

• May need to add handicapped parking places if reasonable

• May need to grant resident more than one handicapped parking place (if reasonable)

• May need to add “reserved sign” in parking area to save parking space for individual with handicap


Oakmont Senior Communities HUD Conciliation Agreement

(FHEO Case No. 05‐13‐0917‐B; complaint filed 4/20/13 with HUD; Conciliation Agreement dated September 2014)


Facts and Allegations

Oakmont Senior Communities

Oakmont advertised as “independent” and “enhanced care” (plus licensed assisted living and memory care in a licensed HFA). Complaint only as to “independent” and “enhanced care.”

Allegations Employee alleged retaliatory termination because she raised FHA issues based on Oakmont policies and practices including:•Illegally and regularly collecting medical data from applicants/current residents and using it to discriminate based on disability•Oakmont prohibited residents from returning to their units after hospital stays unless staff cleared them to do so


Penalties and Other Actions

Monetary Penalties

• $35,000 to employee

Other Actions

• Mandatory staff training by third party

• Marketing changes to clarify facilities are:• Residential senior housing facilities • Not licensed ALFs• Housing for older adults plus access to

independent contractors for additional services

• Residents responsible for obtaining services they may require

• Oakmont required to adhere to laws applicable to apartment complexes and other similar housing options


Policy Changes Required in Oakmont

Significant policy changes required

1. May not subject residents leaving for hospital stay to “gatekeeping” review before return; may discuss services available on campus and in community that resident could secure

2. May not require residents to sign in and out of buildings unless resident authorizes

3. May not track or restrict resident diets unless resident authorizes

4. May not require residents to submit medical information for approval or evaluation prior to or at any time during tenancy OR ask to authorize access to medical information

Resident MAY voluntarily share medical/dietary information or authorize dietary/location tracking


Changes to Residency Agreement Required

Access to Resident Personal and Medical Information and Payment

Residency agreement MAY NOT require residents to:

• Release personal and medical information for medical or emergency purposes

• Authorize Oakmont to obtain any medical information regarding resident from any source

• Complete authorization at time of admission for disclosure of PHI under HIPAA

• Set up credit/debit authorization for automatic debits for rent payment but ok if voluntary


Changes to Residency Agreement Required –cont’dConfidential Medical Report Required for Admission

Residency agreement MAY NOT:

• Require resident to provide confidential medical report from treating physician with medical history and current health

• Condition admission upon provision of medical information and assessment of resident’s physical and mental health

• Permit Oakmont to terminate residency for noncompliance with “reasonable behavior requirements” or “when such action is proper for the resident’s physical welfare or for the physical welfare of other residents”


Changes to Residency Agreement Required –cont’dOversight by Responsible Party

Residency agreement MAY NOT require responsible party (other than resident) on lease to:

• Monitor and make provisions for the physical and psychological needs and conditions of resident

• Be responsible for all care necessary to deal with any physical or psychological conditions of the resident or any changes therein


Changes to Residency Agreement Required –cont’dSelf‐Propelled Mobility Devices

Residency Agreement MAY NOT require residents:

• To operate self-propelled mobility devices in “safe manner” with “certain level of coordination, skill and good judgment”

• To keep wheelchairs and scooters at the lowest speed setting

• To purchase renter’s insurance with coverage for operation of mobility device with Oakmont as additional insured party and copy of the policy to Oakmont



Obligated to DELETE LANGUAGE:

• Allowing Oakmont to “require an alternate form of mobility” or terminate for “risk of injury” to others caused by an “inability to control” the device by resident

• Stating it was responsibility of resident and resident’s family to “assure proper instruction in the resident’s ability to operate the device”



Oakmont COULD:

•Require ALL residents to maintain renter’s insurance covering damages caused by resident to resident’s unit and to exterior and other common areas

•Prescribe generally applicable rules and regulations pertaining to safe use of motor vehicles, including self-propelled mobility deviceson the facility’s property


Changes to Residency Agreement Required –cont’dCannot require residents to be able to “live independently” or prohibit residents from arranging own support services

Required to state in the residency agreement that Oakmont MAY NOT:

•Turn down residents with disabilities

•Require eviction or encourage residents to move elsewhere if they develop a disability

•Prevent residents from using independent contractors to obtain care for disabilities

•Prohibit residents needing enhanced care and who may not be able to “live independently” although Oakmont not required to provide such services


Changes to Residency Agreement Required –cont’dCannot broadly prohibit “continuous nursing care” in unit if not provided by Oakmont

Required to DELETE LANGUAGE in resident agreement that Oakmont:

•Is not a licensed nursing home” and that it “may not accommodate persons who require continuous nursing care”

•Is “for people who are capable of living independently”

•May in its sole discretion terminate resident on 15 days’ notice if management “feels” that “resident’s physical welfare is being compromised by continuing residency at Oakmont


Changes to Residency Agreement Required

Required addition of non‐discrimination

Required to ADD language to residency agreement stating:

•Oakmont does not discriminate on basis of disability (existing language only addressed race, color, sex, religion, and national origin).


BUT WAIT – THERE’S MORE: Changes to Policies and Guidelines Also RequiredOakmont required to delete language in policies requiring “independent living”

Policies MAY NOT require residents to:

• Live independently and be able to feed themselves without assistance

• Interact “appropriately” with other residents and staff

• Not be a flight risk to wander away from the building

• Not be reliant on Oakmont staff to enter/exit building, dress, bathe, care for personal needs, manage bowel/bladder control, hear fire alarms or smoke detectors and respond appropriately

• Hire independent care providers


Changes to Policies and Guidelines Required

Oakmont COULDEstablish Neutral Rules

Oakmont COULD establish disability-neutral rules:

•Requiring residents to not be disruptive of other residents’ quiet enjoyment

•Prohibiting residents from causing damage to or soiling the facility, its buildings and common areas and other personal property maintained by Oakmont

•Limiting number of individuals who may use common areas (including eating areas) at one time and otherwise address issues of overcrowding in common areas for safety purposes


FHA Issues Related to DiscriminatoryMarketing and Advertising Practices


FHA Prohibition on Discriminatory Advertising

Section 3604(c) of the FHA

• Outlaws every discriminatory “notice, statement and advertisement” related to housing

• Broadly interpreted to apply to any applications, flyers, brochures, signs, banners, posters, billboards, solicitations, ads

• Essentially a strict liability standard because bans any housing-related communication that “indicates” discrimination

• May not indicate any preference, limitation, or discrimination based on FHA-prohibited grounds, e.g., disability

• Violation if communication conveys discrimination to an “ordinary reader” or listener regardless of intent


Issue 1: Prohibited words, phrases, photographs

May not use words, phrases, photographs, suggesting housing is unavailable to persons on basis prohibited by FHA

Prohibited terms include: restricted, exclusive, private, “traditional”, “no wheelchairs”, impaired, physically fit•Term “active seniors” may be problem per recent FHA cases and Conciliation Agreements•OK to describe accessibility features

Name suggesting religious affiliation may be problematic unless qualified “religious organization” under FHA (few qualified entities)•Use FHA disclaimer that no discrimination on basis of race, religion, etc.

Always a good idea to include FHA “equal opportunity” disclaimer in all ads, brochures, contracts, etc.


Issue 1: Prohibited words, etc. – cont’d

Problem with term “independent living” if describes type of people who may be acceptable residents

“Independent living” should only be used to describe the NATURE OF SERVICES OFFERED by housing provider•Cannot apply to the TYPE OF PEOPLE ALLOWED •Niederhauser (1998) (requiring residents to be able to “live independently” violated 3604(c))•Resurrection Retirement Community (2002) (statements in ads discouraged disabled individuals and suggested people with certain kinds of disabilities would not be comfortable living there)


Issue 1: Problematic photographs suggesting racial discriminationAll white models in ads and brochures may be discriminatory

Sanders v. General Service Corporation (1987)• Virtual absence of black models in ads violated

FHA because indicated racial preference to ordinary reader in area

Fair Housing Center of Metro Detroit v. Henry Ford Village, Inc. (1997)• All white models and text saying “Your Place –

Your Kind of People” suggested a racial preference to an ordinary reader given demographics

• Monetary award of $569,000 plus affirmative marketing plan

• Required to use Equal Housing Opportunity statement and logos in advertising going forward


Issue 1: Problematic photographs – cont’d

Recent enforcement and Conciliation Agreement in west Michigan

2014 Conciliation Agreement in west Michigan• Ads with majority white models indicated

race-based preference for tenants• % of whites in ads was 95% but racial

composition of county was 82% white and 9% black

• Required CAP, prominent display of Fair Housing poster, including Equal Housing Opportunity statement and logo in advertising, and employee education program.

What about ads that fail to show disabled individuals? Other minorities?


Issue 2: Selective media or advertising practices with discriminatory effectMedia and advertising practices that restrict info about housing opportunities

• Distribution/mail of brochures within limited geographic area that suggested racial bias

• Advertising in newspapers with particular geographic coverage or limited circulation to reach particular segment of community

• Inviting prospects to open house based on demographics that narrow pool of applicants in discriminatory way, e.g., using zip codes of predominantly white areas, church lists (where congregation is predominantly white)

• Using “prospect lists” from existing residents if current residents are predominantly white


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basic provisions of the federal & state fair housing acts · prohibited practices under the...

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