Legal Issues in Supportive Housing

Presented by Michael Allen

for

The Corporation for Supportive Housing

Chicago, Illinois

July 28, 2004

Contact Information

Michael Allen

1101 15th Street, N.W., Suite 1212

Washington, D.C. 20005-5002

Telephone: 202/467-5730, ext. 117

E-mail: Michaela@bazelon.org

Website: www.bettercommunities.org

Website: www.bazelon.org

Federal Laws

Civil Rights– U.S. Constitution– Fair Housing Act– Americans with

Disabilities Act– §504 of the

Rehabilitation Act

Program Rules– Public Housing– Tenant Based §8– Project Based §8– Tax Credit– §811/§202– McKinney-Vento– CDBG/HOME– Others?

U.S. Constitution

Equal Protection: Government (and agencies clothed with governmental authority) must justify different treatment

Due Process: Government (and agencies clothed with governmental authority) may not deprive any person of “property” without appropriate procedural protections

Fair Housing Act

“Protected Classes”– Race

– Color

– Religion

– National Origin

– Sex

– “Handicap”

– “Familial Status”

Applies to “dwellings”– Single family homes

– Apartments

– Group Homes

– Shelters

– Transitional Housing

– Nursing Homes

– Assisted Living

– Ships?

Fair Housing Act

Prohibited Practices– Refusal to rent/sell– Different terms/conditions– Advertising a “preference, limitation or

discrimination” on the basis of protected class– “Block busting”– Refusal to provide reasonable accommodation– Failure/refusal to provide accessible units

Definition of “Handicap,” Part I

“Physical or mental impairment….”

– Paralysis

– Blindness

– Mental Illness

– Addiction*

– HIV/AIDS

– Hypertension

– Cancer

– Etc.

“…which substantially limits one or more major life activities….”– Self care– Performing manual tasks– Walking– Seeing– Hearing– Speaking– Breathing– Learning– Working

Definition of “Handicap,” Part II

“…a record of having such an impairment,”– Cancer in remission

– Heart disease under control

– Addiction

– Psychiatric disability

– Others….

“…or being regarded as having such an impairment…”– Facial disfigurement

– Eccentricity

– Age deemed a disability

– Others…

Discrimination Can Occur at any Time

Advertising Application/Admission Terms and conditions during tenancy Termination/Eviction Post-Termination?

Forms of Discrimination

Intentional: Action taken because of protected class status

Disparate Impact: A neutral rule with a harsher effect on a protected class

Refusal to waive or amend rules (“reasonable accommodation”)

Refusal to permit physical modification, or failure to build accessible housing

Americans with Disabilities Act

State and local government programs (and their contractors) must serve people with disabilities in the “most integrated setting” appropriate to their needs

Accessibility standards “Reasonable accommodations” required

The Olmstead Decision

June 1999: Unnecessary institutionalization is a form of discrimination, illegal under ADA.

“Most integrated setting” means “...a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.”

§504 of the Rehabilitation Act

Applies only to recipients of federal $ No discrimination against people with

disabilities Specific requirements for accessibility:

– 5%: mobility impairments– 2%: hearing and vision impairments

“Reasonable Accommodation”

Addressing Legal Rights Issues: An Ounce of Prevention

It makes sense to have a knowledgeable lawyer review:– Development plans– Leases and rules and regulations– Resident handbooks and grievance procedures– Termination notices– Eviction cases– Others?

The Requirement of Reasonable Accommodation

“…discrimination includes…a refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”

Reasonable Accommodations in Operating Rules

The Mechanics of Reasonable Accommodation, Part I

Resident must:– Make the request– Demonstrate the existence of a disability– Demonstrate that the accommodation is

necessary because of the disability– Show that the accommodation will not impose

an undue financial or administrative burden on provider, and will not work a “fundamental alteration” in the provider’s service

The Mechanics of Reasonable Accommodation, Part II

If the resident’s request meets the threshold, then provider must grant the reasonable accommodation unless it can show:– Undue financial or administrative burden– Fundamental alteration of the service offered

Hypothetical #1

You run an affordable housing complex that has a “no animals” rule. Because of a progressive eye disease, a long-standing tenant is now legally blind. She requests an accommodation to the rule for a guide dog.– Must you grant the request?– Same answer for a new applicant?

Hypothetical #2

Suppose the request is for an emotional support dog.– Must you grant the accommodation for the

existing tenant? For a new applicant?

What answer if you ran transitional housing?

What answer if you ran a shelter?

Hypothetical #3

You run transitional housing for formerly homeless women. Some have suffered domestic violence, so you have banned male guests. A resident asks for an accommodation because her therapist believes that overnight visits by her 18-year old son will help with her depression.– Must you grant the accommodation?– What if the request was for her boyfriend?

Hypothetical #4

You run supportive housing for people with psychiatric disabilities, and have a policy that evicts residents who are involved in fights with other residents. One such resident asks for an exception to your policy because of a well-documented adverse reaction to a new medication.– Must you grant the accommodation?– What if the accommodation were based on the recent

death of the resident’s mother and its well-documented impact on his behavior?

Hypothetical #5

You run a sober living community which has a “no tolerance” policy for drugs and alcohol. A resident is caught drinking in her room, and asks for an accommodation based on the recent death of her mother?– Must you grant the accommodation?– Does it matter if the drinking took place off

premises?

Hypothetical #6

You run supportive housing for “hard to house,” formerly homeless people with psychiatric disabilities. A resident who has recently come in off the street with active delusions persists in waking the other residents at 3 a.m. night after night to warn them of an alien invasion. You and the other residents are beyond the breaking point, and you decide to evict the offender. After hearing of your decision, he asks for an accommodation to be allowed to stay because he simply can’t control his behavior.– Must you grant the request?

Tenant Selection

Basic Teaching of the FHA: Do not discriminate against someone with a disability? But can you discriminate in favor of a person with a disability?

If so, can you discriminate in favor of people with a certain kind of disability if that means discriminating against people with other disabilities?

Funding for Housing and Services

“Mainstream”: Must be available to all eligible applicants (usually based on income), without preference or discrimination

“Categorical”: Targeted to a specific population because mainstream sources are thought not meet the needs of the target population.

Mainstream Resources

Housing Public Housing Section 8 (TB) Section 8 (PB) Tax Credits CDBG/HOME Others?

Services/Benefits Medicaid Vocational Rehab Public Education SSDI/SSI TANF Food Stamps Veterans Benefits

Categorical Programs

Housing §202/§811 McKinney-Vento

– Shelter + Care

– Supportive Housing

– ESG

HOPWA Others?

Services/Benefits Mental Health Block

Grant Assertive Community

Treatment Others?

A Train Wreck Coming?

How does categorical funding mesh with the requirements of the FHA (non-discrimination) and the ADA (integration)?

Analysis: $1 of mainstream funding in a project means that it must comply with the mainstream rules for eligibility.– Serious implications for development of

supportive housing.

Tenant Selection Policies

If you use mainstream resources, can you: Rent exclusively to people with the preferred disability

and turn away others? Provide a selection preference for them? Rent exclusively to people who are in need of the

supportive services you intend to provide? Provide a selection preference for them? Advertise a “preference or limitation”? Accept referrals only from specified agencies? Hold a unit open while waiting for an applicant in the

target group?

Program/Service Requirements

Typical Obligations of Tenancy:– Pay the rent– Get along with the neighbors and respect their

right to “quiet enjoyment”– Keep the unit in good condition– Obey reasonable rules/regulations related to

health & safety and behavior– Obey the law

Can a Landlord Require More?

Service agreements “Social contracts” Medication/treatment compliance Day Treatment Sobriety Curfews Restrictions on guests

Can a Landlord Require More?

Why isn’t this discrimination on the basis of disability?– Refusal to rent– Differential terms and conditions– Refusal to accommodate– Violation of ADA requirement for “most

integrated setting?

Fair Housing Complaint Process

“Aggrieved Persons” Have Standing to Sue– Anyone affected by discrimination based on

any of the following:• His or her own disability;

• The disability of any person residing in a specific dwelling after it is sold, rented, or made available

• The disability of any person associated with the aggrieved person.

Potential Defendants

Any person or entity who commits “an unfair housing practice” can be held liable.– Owners and Management Companies– Newspapers– Real Estate Companies– Banks and Insurance Companies– Municipal Zoning Officials and City Council Members– Condominium and Coop Associations– Neighborhood Organizations and Individual Neighbors– Housing Finance Agencies and Licensing Authorities

Enforcement Options

Administrative Complaint– Must be filed within one year of discrimination– Agency investigation & determination of “cause”– If “cause,” government provides a lawyer

Lawsuit– Must be filed within two years of discrimination– Proceeds directly to court– Must hire own lawyer