Disability is a protected class under the federal Fair Housing Act1, and includes both physical and mental disabilities.
“Can you handle your own finances?” “How do you get in and out of the shower?” “Don’t you need someone to take care of you?”
These are questions the average prospective tenant does not expect to hear when seeking an apartment. However, many people with developmental disabilities routinely get questions like these from housing providers. More people with developmental disabilities are living independently these days, and housing providers need to be mindful of their rights and responsibilities under the Fair Housing Act1.
What is a Developmental Disability?
Developmental disabilities are a diverse group of physical, cognitive, psychological, sensory, and speech conditions that begin anytime during development up to 18 years of age. About 17% of US children under 18 years of age have a developmental disability. Developmental disabilities include mental retardation, cerebral palsy, epilepsy, autism or other neurological conditions that result in limitations of general intellectual functioning or adaptive behavior. Some people with developmental disabilities use mobility aids such as wheelchairs, canes, or leg braces, and will require accessibility features in their dwellings, such as ramps, lever door handles, or bathroom grab bars. Others have speech disabilities and may speak very slowly or be difficult to understand. Some have sensory disabilities such as low vision or deafness. Some have learning disabilities, mental retardation or other cognitive conditions that cause their processing of information to be slower. A number of folks with developmental disabilities use the services of drop-in caregivers or live-in aides to assist them with activities of daily living (shopping, cooking, bathing, housekeeping, etc.).
A number of those with developmental disabilities have an “advocate” who may be a relative, friend, caseworker, or other individual who assists them in dealing with complex issues. For example, an advocate may accompany the prospective tenant to view an apartment and to help interpret the rental agreement. Often, an advocate is available to assist the tenant and the housing provider if a tenancy problem should arise.
Some people with developmental disabilities may seem unsophisticated or even naive. Housing providers often mistakenly react by treating them differently than they treat other tenants. Many tenants with a developmental disability report that housing providers have asked them extremely personal questions, entered their apartments without notice, or taken advantage of their lack of sophistication.
Like other tenants with disabilities, folks with developmental disabilities may have accommodation needs; like all other tenants, this group wishes to be treated with fairness, respect and dignity.
Many people with developmental disabilities may have problems accessing their unit due to their use of wheelchairs, crutches, or other mobility devices. They may need to make alterations in their units in order to have better and / or safe access. Fair Housing laws require that housing providers permit, at the expense of the person with a disability, reasonable modifications of existing premises if necessary for the tenant’s full enjoyment of the premises. For example, a tenant should be allowed to widen a doorway for wheelchair access.
A housing provider may condition permission for the modification based on the tenant agreeing to restore the unit to its original condition when the tenant vacates the unit. However, the tenant need not remove the modifications if they will not interfere with the next tenant’s use and enjoyment of the unit (for instance, a wider door need not be made smaller again). The housing provider may ask that the tenant set up an interest bearing account not to exceed the amount of the modifications to cover the cost of returning the apartment or house back to its original configuration.
A tenant with a developmental disability should be permitted to make the following types of reasonable modifications: installing ramps, grab bars, audible and visual call mechanisms, widening doors and lowering cabinets. The modifications are not limited to the tenant’s unit but may be requested for common areas, recreational areas, entrances to the building, laundry room and the garage. This is not an exhaustive list of the types of modifications that a tenant might request. A housing provider should review each request on a case-by-case basis.
While equal treatment is required in most respects, a housing provider has a duty to treat a tenant with a developmental disability differently with respect to reasonable accommodations. The need for reasonable accommodations can arise at the admissions stage, during the tenancy and during the eviction process. A housing provider must make reasonable accommodations in rules, policies, practices, or services, when necessary to provide tenants an equal opportunity to use and enjoy a dwelling. When a tenant’s disability makes it difficult for him or her to comply with certain rules, the housing provider may need to provide extra help and / or extra time so that the tenant can comply. For example, as an accommodation, a housing provider can make a phone call to remind a tenant with memory problems to pay rent on the first of each month.
Tenants with developmental disabilities may request reasonable accommodations orally or in writing. Once a tenant initiates an accommodation request, the housing provider is entitled, in most cases, to a letter of verification of the existence of the tenant’s disability and need for the accommodation.
There are very limited situations where a housing provider does not have to provide a requested accommodation. It is not a reasonable accommodation to tolerate a tenant who poses a direct threat to the health and safety of other tenants or employees of the housing provider. However, it would be a reasonable accommodation to approve a tenant’s plan for acceptable minimization or elimination of the direct threat of the behavior. If the tenant fails to follow the plan and repeats the violating behaviors, the tenant may no longer be entitled to the protection of the fair housing laws.
Examples of Reasonable Accommodations:
• Providing a prospective tenant with a disability with assistance in filling out the rental application upon request.
• If asked, considering an application despite poor credit if a prospective tenant with a disability offers to have the disability check directly deposited with a payee who will ensure the rent gets paid each month.
• Allowing a tenant to have a live-in caregiver, irrespective of occupancy standards, upon request.
• Showing a tenant with developmental disability how to use the stove, refrigerator, washer, dryer, door locks or fire extinguishers upon request.
• Reading notices to a tenant with a disability who has difficulty in reading upon request. Another option would be providing the notices in tape-recorded form or, with the tenant’s permission, sending copies of the notices to his or her case manager or other support person.
• Granting a parking space to a tenant with a mobility disability upon request, even if the tenant does not drive but has someone drive for him or her. (It is preferable to provide a reserved space for that specific tenant and to mark it with appropriate signage designating it as accessible.)
• Permitting a tenant to keep a medically necessary assistance animal despite a “no pets” policy upon request. (Because the animal is not a pet, no deposits / fees / rent can be charged for the animal upfront; however, the housing provider can charge the same cleaning deposit it charges all other tenants. Housing providers can expect the owner to manage the animal’s behavior (no constant barking, no property damage), to keep the animal under their control, and to handle the animal’s waste appropriately. If the animal causes damage, the resident is financial responsible. Such animals need not be trained, “certified,” nor have a special identifying harness or tag.)
• Granting permission upon request for a tenant to add grab bars to his shower, at the tenant’s expense, with the work done professionally, to code, with any required permits.
• Installing a ramp or widening a sidewalk upon request so a tenant can access the clubhouse. (Accessibility ramps are almost always considered reasonable and the widening of walkways would generally be considered so as well. The housing provider would be responsible for this cost unless they could demonstrate that the changes would either fundamentally alter the premises or pose an undue financial or administrative hardship on them.)
• Providing sufficient time when talking with a tenant who has a speech disability.
• When a housing provider has received complaints about the annoying behavior of a tenant, working with the tenant (and his or her advocate) when the tenant asserts that the behavior is related to his / her disability and requests that the provider negotiate a plan that will allow him / her to get assistance to remediate the problem.
Affirmatively Furthering Fair Housing
Housing providers can promote fair housing by planning and implementing a set of fair housing policies and procedures that address reasonable modification and accommodation requirements. This would include the following:
1. Signs in the common area that state management’s policies
2. An information sheet for applicants describing management’s policies and procedures with regard to accommodations and modifications during applicant screening and tenancy
3. Policy of reviewing reasonable modification and accommodation information with each tenant along with the rental agreement; copy issued to the tenant
4. Forms and procedures for staff to follow when there is a situation with a tenancy that may be covered by the Fair Housing Act and local ordinances
5. Arranging for fair housing training for managers, maintenance staff, and other employees or contractors / vendors
6. When working with tenants who have developmental disabilities, keep the following in mind:
• It is not appropriate to ask tenants or prospective tenants if they have a disability, what medications a person is taking, or probe about the nature or severity of a disability.
• Not all disabilities are visible, so it is best to inform all tenants about one’s fair housing policies and advise them about the availability of assistance for tenants who have disabilities.
• Each accommodation request must be evaluated on a case-by-case basis.
• Housing providers may not reject an accommodation request based on a desire to treat all tenants alike. Such a request can only be rejected if it is unreasonable under the circumstances, if it will impose an undue financial or administrative burden on the provider, or if it will require a fundamental alteration of the services provided to tenants. For example, if one older building in a complex has no elevator, it might be an unreasonable cost to provide a requested elevator, when the common room services available there could be moved to another, more accessible building for much less cost.
• Some people with developmental disabilities live in subsidized housing, while others have section 8 vouchers and seek housing in the community, and still others rely on no subsidies at all. It should be noted that while the federal Fair Housing Act does not cover section 8 voucher holders, many local communities have fair housing ordinances that do protect them against discrimination based on section 8 and some protect other legal sources of income such as disability income.
• If a tenant expresses concern over possible discrimination, don’t hesitate to suggest they contact their local fair housing agency.
• If the applicant / tenant identifies them to you, rely on their support system, including advocates, caregivers, social service workers, etc.
Remember, all tenants wish to be treated with respect and dignity. Although some people with disabilities may look or act somewhat differently than others, housing providers should treat them similar to the way other tenants are treated, with the same rights and responsibilities. It’s not only the ethical thing to do, it is your legal obligation under federal, state, and local laws.
For a wealth of information on disability as a protected class, including reasonable modifications and accommodations, sample forms and policies, etc. visit www.FHCO.org/disability.htm.
This article brought to you by the Fair Housing Council; a nonprofit serving the state of Oregon and SW Washington. All rights reserved © 2013. Write jbecker@FHCO.org to reprint articles or inquire about ongoing content for your own publication.
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Contact Jo Becker at jbecker@FHCO.org or 800/424-3247 Ext. 150