Winter, 2001 AT Advocate Newsletter

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Advocate
Newsletter of the National Assistive Technology Advocacy Project
A Project of Neighborhood Legal Services, Inc.
295 Main Street, Ste. 495 · Buffalo, New York 14203 · (716) 847-0650
(716) 847-0227 FAX · (716) 847-1322 TDD ·
e-mail: atproject@nls.org · Web Page: www.nls.org

Funded through a grant from the National Institute on Disability and Rehabilitation Research,
U.S. Department of Education, under contract number H224B990002. The opinions expressed do not
necessarily reflect the position of the U.S. Department of Education, and no official endorsement by the
U.S. Department of Education of the opinions expressed herein should be inferred.

Volume VI Issue 5 Winter 2001

THE FAIR HOUSING ACT AND ITS PROTECTIONS
WHAT TYPES OF DWELLINGS ARE COVERED?
WHO IS PROTECTED UNDER THE FAIR HOUSING ACT?
The Reasonable Modification Requirement
THE REASONABLE ACCOMMODATION REQUIREMENT
ENFORCING THE FAIR HOUSING ACT
Filing Complaint with HUD
Filing Action in Federal or State Court
Special features
Fair housing resources on the web
AT COURT WATCH
ADMINISTRATIVE HEARINGS

THE FEDERAL FAIR HOUSING ACT
A Tool to Obtain or Get Full Benefit From Assistive Technology in Rental Housing

Individuals with disabilities are often denied the opportunity to acquire, use and enjoy the residential premises of their choosing. Through assistive technology (AT), many of the traditional barriers to the use and enjoyment of residential space can be overcome. The focus of this article is to describe the protections of the federal Fair Housing Act applicable to persons with disabilities who seek rental housing of their choice or who wish to use AT to fully use and enjoy rental housing.

Title VIII of the Civil Rights Act, more commonly referred to as the Fair Housing Act, 42 U.S.C. § 3600 et seq., was passed in 1968 to provide protection against discrimination in the sale, rental and advertising of housing. Discrimination against an individual based upon membership in a protected class was made unlawful. The original protected classes under the Fair Housing Act were race, color, national origin and religion. Sex (i.e., gender) was added in 1974.

In 1988, the Fair Housing Amendments Act (FHAA) added two new protected classes: familial status and disability. In addition to outlawing discrimination based upon disability, the FHAA now requires that multi-family units be built to accommodate tenants with disabilities. It further requires landlords to allow reasonable modifications to housing units and to reasonably accommodate tenants with disabilities. The theories of reasonable accommodation and reasonable modification will be discussed in depth later in this article.

The protections of the Fair Housing Act and its amendments (hereinafter "the Act") are broad and apply to the sale and rental of all residential dwellings in both the private and publically subsidized market. 42 U.S.C. § 3603(a). The Act has been held to apply to mobile home parks, summer homes and even vacant land offered for sale or lease for the development of residential units. Temporary residences such as residence hotels, nursing homes, homeless shelters, and AIDS hospices may also come under the Act’s coverage. Cases involving the Act’s applicability to temporary residences have been decided by examining whether the occupants intend to remain in the residence for a substantial period of time, or whether occupants view the space as a place to return to or remain in. See, United States v. Hughes Memorial Home, 396 F.Supp 544 (W.D. Va. 1975); United States v. Columbus Country Club, 915 F.2d 877 (3d Cir 1990), cert. denied, 501 U.S. 1205 (1991); Garcia v. Condarco, 114 F.Supp 2d 1158 (D.N.M. 2000). Group homes and other congregate living arrangements involving non-related persons with disabilities are covered by the Act’s protections.

Exceptions to the Act’s coverage are few. Religious organizations and private clubs are in certain circumstances exempted from its provisions. The Act does not apply to rental units having four or less rental units where one unit is occupied by the owner. Sales and rentals of single family homes are similarly exempted as long as the owner owns less than three such homes and the sale or rental is accomplished without the use of a broker or agent. 42 U.S.C. § 3606(b). However, there are no exemptions to provisions prohibiting discriminatory advertising under the Fair Housing Act and those provisions do apply to rentals of owner occupied dwellings and sales of single family homes. Id. § 3604(c). State or local ordinances may provide broader protections than the Act and may eliminate or narrow federal law exemptions.

The Fair Housing Amendments Act uses the term "person with a handicap" to refer to one class of individuals protected by its provisions. Because "person with a disability" has become the preferred term, this article will use that phrase to describe the class created by the FHAA.

This definition does not include individuals who are currently using or addicted to controlled substances. 42 U.S.C. § 3602(h). Individuals who have a documented history of drug use or addiction, but who are not currently using illegal drugs may be entitled to the Act’s protections (if they fall under the definition of a person with a disability). In addition, individuals who have been perceived as using drugs or as having a drug addiction are covered under the definition of a disabled person if they can demonstrate that they are being regarded as having an impairment and that they are not using illegal drugs. See, United States v. Southern Management Corp., 955 F.2d 914 (1992).

Landlords may refuse to provide housing to persons convicted of illegally manufacturing or distributing drugs. 24 C.F.R. § 100.202(c)(4). The Act also does not protect those whose tenancy would pose a direct threat to the health or safety of other individuals or whose tenancy would result in substantial damage to the unit or to the property of others. 42 U.S.C. §§ 3602(h)(3), 3604(f)(9). A landlord or housing provider who uses this as a defense in legal action brought under the Act must support such a claim with recent, credible and objective evidence. See, Township of West Orange v. Whitman, 8 F. Supp. 2d 408 (D.N.J. 1988).

The Act’s definition of a person with a disability closely mirrors that used in the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. For this reason, cases decided under the Act often use decisions rendered under these statutes as authority. A list of major life activities is set forth in the regulations interpreting the Act and include caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, learning, breathing and working. 24 C.F.R. § 100.201(b). This list is not intended to be all-inclusive and has been expanded by case law.

In examining whether an impairment substantially limits a major life activity, the U.S. Supreme Court ruled in 1999 that the impairment must be considered in light of any measures that might be used to correct or mitigate its impact. In Sutton v. United Airlines, 527 U.S. 471 (1999), the Court ruled that plaintiffs who had severe myopia that was corrected with eyeglasses were not substantially limited by their condition and not protected by the ADA. Similarly, in Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), the Court held that the ADA did not apply to an individual with high blood pressure who, when medicated, did not experience any substantial limitation of major life activities. Under this reasoning, a person with an impairment that can be corrected through medication or other measures so as not to substantially limit a major life activity, would not be entitled to Fair Housing Act protections. See also, Albertsons v. Kirkenburg, 527 U.S. 555 (1999). [A thorough discussion of the Sutton, Murphy and Kirkenberg holdings appears in the Dec. 1999-Jan. 2000 issue of AT Advocate, available on our website at www.nls.org/av/av-1299.htm.]

The constraints on the Act’s coverage resulting from these decisions are ameliorated in some instances by the provision of the Act that provides protection to individuals "regarded as" having an impairment substantially limiting one or more major life activities. Under this definition, people who are mistakenly identified as having a substantially limiting impairment or who are treated by others as having such a limitation fall under the Act’s protections. See, 24 C.F.R. § 100.201(d).

The opportunity to make modifications to existing residential premises to allow for the use of AT opens the door to increasing the number of units accessible to individuals with disabilities. In addition, the reasonable modification mandate may allow a tenant to make changes to a unit that are specific to that tenant’s individualized needs. For example, a person with a hearing impairment might ask to install a visible smoke alarm or doorbell apparatus. The practical result of this aspect of the Act is to increase the housing options available to people with disabilities.

A landlord who refuses to allow a tenant with a disability to modify rental property in such a way that would allow full enjoyment of the premises is guilty of a violation under the Act. Modifications must be made at the tenant’s expense. The landlord must give approval for the modification and may condition approval upon reasonable assurances that the work will be done in a workman-like manner, that any necessary building permits will be obtained, and that the premises be restored to its prior condition when the tenant moves. 42 U.S.C. § 3604(f)(3)(A); 24 CFR § 100.203(b). There are several exceptions to the restoration requirement: wear and tear is exempted; the requirement applies only to modifications within the rental unit, not to common areas; and the restoration requirement must be reasonable.

Whether a landlord may charge an additional security deposit is a multifaceted issue. While it would be discriminatory for a landlord to charge a person with a disability an additional deposit beyond what is charged for a non-disabled individual, the law does allow landlords to require tenants to make payments into an interest-bearing escrow account to cover any costs associated with restoration of modifications at the end of a tenancy. Such a requirement must be reasonable in light of the extent and nature of the modifications involved. Obviously, in a situation where no restoration is necessary, such a requirement would be considered unreasonable, and a violation of the Act.

A reasonable accommodation is a change in rules, policies, practices or services that is necessary to give a person with a disability equal opportunity to use and enjoy a dwelling. 42 U.S.C. § 3604(f)(3)(B). The reasonable accommodation mandate is designed to further eliminate the barriers that have in the past segregated people with disabilities and curtailed integration into mainstream society. An accommodation may be requested even before the initiation of the tenancy when, for example, a person with a visual impairment may ask that the landlord have the lease and apartment rules in braille. Through the reasonable accommodation mandate, individuals with disabilities may request changes in rules and policies to allow for the use of AT devices and other aids for independent living.

An accommodation may be considered unreasonable when it represents a fundamental alteration in the nature of the services provided by the landlord.

Accommodations that result in a significant financial or administrative burden to the landlord also fall outside the scope of the mandate. A cost-benefit analysis has been used to judge the reasonableness of an accommodation request where the cost to the housing provider and the benefit to the person with the disability are weighed. The fact that an accommodation might cost the landlord money or have some negative financial impact on the housing provider is not dispositive. The housing provider, if challenged, must be able to show that the financial burden is significant or undue. For example, a tenant using a motorized wheelchair who lives in an apartment complex where parking is provided several blocks away may ask the landlord to allow him or her to park the van just outside the building in a space that is not designated as a parking space. The same tenant may also request that the landlord arrange for more frequent snow plowing to allow access to the parking spot. This fairly small increase in cost to the landlord would likely not be viewed as a significant burden. A landlord who denies a request for a reasonable accommodation which does not involve significant financial or administrative burden, or a fundamental alteration in provided services, violates the Act. See comments to the Act’s regulations at 53 Fed. Reg. 45003 (1988) .

To be entitled to an accommodation, a person must request one. The request may be made at any point: prior to the start of the tenancy, during the tenancy, or after an eviction action has been initiated. In the event the request is denied and the tenant decides to pursue legal action, the tenant must establish the following: first, the tenant must show that he or she is a person with a disability as defined in the Act. As discussed above, this requires proving that the tenant has an impairment that substantially limits one or more life activities. Second, the tenant must show that the housing provider knew or should reasonably be expected to have known of the disability. If the housing provider does not believe that the tenant has a disability, it is the housing provider’s responsibility to make necessary inquires and discuss its concerns with the tenant. Jankowski Lee & Associates v. HUD, 91 F.3d 891 (7th Cir. 1996). Third, there must be a showing that the accommodation requested is necessary to give the tenant an equal opportunity to use and enjoy the housing in question. To meet this criteria, the tenant must be able to prove that the requested accommodation will, at a minimum, enhance his or her quality of life by lessening the negative impact of the disability. Brook v. Ineichen, 54 F.3d 425 (7th Cir. 1995). The tenant must also prove a nexus between the accommodation requested and the amelioration of the disability to demonstrate that the accommodation is necessary. Finally, the tenant must show that the housing provider refused to accommodate the tenant. An inordinate delay in the approval of the accommodation may be interpreted as a refusal.

A tenant who requests a reasonable accommodation during an eviction proceeding must be able to establish a link between the violation of the lease or rental agreement and the person’s disability. The tenant must also show that the requested accommodation will allow the tenant to meet his or her rental obligations and responsibilities under the lease. In some instances, housing providers have been forced to cease eviction proceedings despite the fact that no specific accommodation has been requested, simply to give a tenant with the disability an opportunity to access services that may allow the tenant to comply with the lease agreement. Where the possibility exists that a reasonable alteration in rules or policy will allow a tenant with a disability to continue a tenancy, it is incumbent upon the landlord to make the necessary accommodation to preserve the tenancy.

A tenant faced with a violation of the Act has several options when deciding upon an avenue of redress. Many state and local governments have fair housing laws with enforcement mechanisms. A tenant should always examine the procedures available and make an informed decision as to any advantages associated with filing directly at the state or local level.

An aggrieved tenant may file a complaint with the United States Department of Housing and Urban Development (HUD) within one year of the discriminatory action. Even if the tenant has opted not to use the state or local procedures, HUD may refer the case to a state or local agency where the discriminatory practice has occurred if the agency has been certified by HUD as being :substantially equivalent." 42 U.S.C. § 3610(f). If the matter does remain with HUD, then HUD is required to determine whether reasonable cause exists to believe that a discriminatory housing practice has occurred. This determination must, by statute, take place within 100 days of the filing of the complaint. Id. § 3610(a).

Conciliation attempts will be made by HUD before it issues any formal charge. A conciliation agreement may include monetary and injunctive relief as well as provisions intended to further the fair housing law (e.g. mandatory training, donations to fair housing agencies, prominent display of fair housing materials, etc.). Conciliation agreements are subject to HUD approval. If HUD does not find that the agreement between the parties adequately protects the public interest it may reject the agreement and issue its own charge. Id. § 3610(b)(2), 24 C.F.R.§103.310(b).

In the event HUD does make a reasonable cause determination, either party may elect to have the case decided in federal district court. There, the complainant will be represented by the U.S. Justice Department. If neither party elects to have the matter adjudicated in federal court, the matter will proceed through the HUD administrative process. A complainant in a HUD proceeding may be awarded actual damages, injunctive relief, civil penalties of up to $50,000 and attorney’s fees.

Any party aggrieved by a final order in a HUD proceeding may obtain judicial review in the appropriate U.S. Court of Appeals within 30 days from the time the order is entered. 42 U.S.C. § 3612(i). The court may reverse only upon a showing that HUD’s decision was not in accordance with law, lacking observance of procedure required by law, or unsupported by substantial evidence.

A second option for a tenant confronted with a discriminatory housing practice is to bring a civil action in the appropriate federal or state court. Such an action must be filed within two years from the date of the discriminatory act. Available relief includes actual and punitive damages, injunctive relief and attorney’s fees. There is no cap on the amount of the punitive damages that may be awarded as there is in a HUD proceeding.

A tenant (or any other aggrieved party) filing an action under the Act may proceed directly to court; there is no requirement that a HUD action be filed first. However, an aggrieved party does have the option of filing both a HUD complaint and a private civil action. There are some limitations to this strategy: If there is a conciliation agreement resulting from the HUD proceeding a civil action may not be brought regarding the same discriminatory housing practice, unless its purpose is to enforce the terms of the underlying agreement. Also, if the HUD proceeding has reached the hearing stage, a civil action may not be brought. The advantage of pursuing a HUD complaint together with a civil suit is that the plaintiff/complainant may take advantage of HUD’s investigation of the claim which may prove useful in the discovery phase of the litigation. In the event that the HUD proceeding continues on and results in a final judgment, that judgment will preclude any further judicial action. Alternatively, the HUD proceeding would have to be discontinued once the trial of the civil action began. 42 U.S.C. §§ 3610(g), 3612(f).

In addition to providing for remedies through the HUD process and privately initiated lawsuits, the Act also gives the Justice Department authority to commence civil actions in "pattern and practice" cases and cases of particular importance. The Justice Department may also bring an action based on a HUD referral to enforce a HUD conciliation agreement. Id. §3614.

Through the use of assistive technology (AT), individuals with disabilities are able to achieve full integration into the community. They can attend school, receive training, enter the workforce, and take advantage of the many social and recreational opportunities that a community has to offer. These possibilities are threatened when housing discrimination makes the use of AT devices impossible at home. The Fair Housing Act provides a remedy through its reasonable modification and accommodation mandates and through its enforcement mechanisms. As housing options increase for people with disabilities, many of the barriers to full community integration are removed.

Our lead article was guest authored by Grace Andriette, Supervising Attorney of our Housing Unit at Neighborhood Legal Services in Buffalo. Grace is a longstanding advocate for Fair Housing Act rights and has worked on many cases to enforce the rights of persons with disabilities in rental housing. She also has extensive expertise involving the special rules that apply to persons with disabilities in public and federally subsidized housing programs, including the recent work incentives now available in many federal housing programs.

National Fair Housing Advocate Online - www.fairhousing.com
This resource for the fair housing advocacy community and the general public includes fair housing case law, reviews and information.

National Low Income Housing Coalition - www.nlihc.org
Policy and educational materials on affordable housing issues

The John Marshall Law School Fair Housing Legal Support Center - http://fairhousing.jmls.edu
A wealth of legal materials and links to other fair housing resources.

Bazelon Center for Mental Health Law - www.bazelon.org
National advocacy center devoted to the civil rights of people with mental disabilities.

Consortium for Citizens with Disabilities - www.c-c-d.org/tf-housing.htm
Information on affordable housing issues for persons with disabilities, advocates and service providers. Link to "Opening Doors," a quarterly newsletter on housing issues.

The Disability Resources Monthly Webwatcher - www.disabilityresources.org
Annotated and alphabetically organized disability resources.

In Blue v. Bonta (Calif. Court of Appeals, First App. Dist.), the appellants challenge a state Medi-Cal regulation which categorically excludes stairway chairlifts as covered benefits regardless of their medical necessity to any person. Following an adverse hearing decision, the lower court ruled for the state holding that the agency’s action is "ultimately a function of allocation of resources." The appellants argue that the regulation violates a statutory mandate to provide Medi-Cal coverage of durable medical equipment which encompasses stairway chairlifts. The appellants are represented by Michael Kluk of Protection and Advocacy, Inc., Stephen Ronfeldt of the Public Interest Law Project, and Jane Perkins of the National Health Law Project. [Copies of appellants’ Opening Brief and Reply Brief are available through the National AT Advocacy Project.]

In Sorrentino v. Novello (N.Y. Appellate Div., Fourth Dept.), the appellant challenges Medicaid’s denial of funding for a standing power wheelchair which was affirmed in the agency’s fair hearing decision. The Medicaid agency has argued that the medical benefits of standing could be met by providing a standing frame. Appellants urge that the decision should be reversed and funding approved, as the wheelchair and its standing mechanism are medically necessary for Mr. Sorrentino to achieve any functional mobility and to achieve medical benefits based on the better circulation and therapeutic weight bearing gained from the ability to safely raise to a standing position, without assistance, several times each day. Appellants are represented by Jim Sheldon of Neighborhood Legal Services in Buffalo. [Copies of appellant’s brief are available through the AT Advocacy Project.]

The following are selected decisions added to our hearing database in recent months:

Matter of John H. (New York): A Medicaid hearing decision awarded funding for an electric tilt table to facilitate improved circulation and prevent further skin breakdown on the buttocks, to improve bone density and muscle strength through weight bearing, and to decrease spasticity by prolonged static stretch of the lower extremity muscles. The tilt table in question will allow the 36-year old appellant, who works full-time (he receives Medicaid through the section 1619(b) program), to independently position himself from 0 to 90 degrees. The appellant was represented by Marge Gustas, staff paralegal, Neighborhood Legal Services in Buffalo.

Matter of Norman J. (Oregon): A Medicare hearing decision, rendered "on the record" without the necessity for an in-person hearing, awarded funding for a Lightwriter communication device even though the Part B claim predated the January 1, 2001 effective date of the new Medicare policy for approval of augmentative and alternative communication (AAC) devices found in National Coverage Decision (NCD) 60-23. This is one of more than 15 favorable hearing decisions on claims submitted prior to the effective date of NCD 60-23 which have approved funding for an AAC device despite the exclusion as a "convenience item" that previously appeared in NCD 60-9. The appellant was represented by attorney, Lew Golinker, of the AT Law Center in Ithaca, New York. [If you would like copies of either decision, contact Wilma Castro at the AT Advocacy Project, at 716-847-0650 ext. 271 or wcastro@nls.org.]

If you would like the AT Advocate Newsletter sent to you in a large-print or other alternative format, please let us know.

We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions and other administrative documents. We also have indexed more than 400 documents from more than 100 pending and decided court cases. All documents are available through our AT Resource Library. Please send us your hearing decisions, briefs and other documents involving AT.

The AT Advocacy Project will provide nationwide services to PAAT projects including technical assistance to advocates wanting to access funding for assistive technology for individuals with disabilities.