U S DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
U. S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PITTSBURGH FHEO PRESENTS
REASONABLE ACCOMMODATIONS
Reasonable Accommodations • • General Purpose of Reasonable Accommodations Applicable Laws HUD’s regulations Who’s eligible for an accommodation? – Key Definitions – must meet the definition of disabled – Logical Nexus -- connection between disability and request • Verification Process • Interactive Process • Acceptable reasons for denial HUD FHEO Pittsburgh 3
The mind of the bigot is like the pupil of the eye; the more light you pour upon it, the more it will contract. Oliver Wendell Holmes HUD FHEO Pittsburgh 4
Applicable Laws and Regulations • Fair Housing Act – 42 U. S. C. Sec. 3604(f)(3) – Regulation: 24 CFR Sec. 100. 204 • Section 504 -- 29 U. S. C. Section 794(a) – Regulation: 24 CFR Sec. 8. 33 • Additional Guidance: HUD/DOJ Joint Statement on Reasonable Accommodations • FHEO Notice 2013 -01: Service Animals and Assistance Animals for persons with disabilities HUD FHEO Pittsburgh 5
Definition of Disability • “Individual with a disability” – Physical or mental impairment that “substantially limits” one or more major life activities – Has a record of such impairment – Is regarded as having such an impairment HUD FHEO Pittsburgh 6
Definition of Disability (cont’d)) • “Substantially limits” – Unable to perform a major life activity that the average person can perform; or – Significantly restricted in performing a major life activity as compared to the average person’s performance of that major life activity HUD FHEO Pittsburgh 7
Definition of Disability (cont’d) – Factors to consider in determining substantial limitation: • The nature of the impairment • The duration or expected duration of the impairment • The actual or expected permanent or long term impact resulting from the impairment – Recent changes in definitions under the ADA • Transitory – six months • Episodic – disability if meets the definition when active • Corrective measures – meds, etc. ; eyeglasses excepted HUD FHEO Pittsburgh 8
Definition of Disability (cont’d) • “Major life activity” – functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working – Illustrative, not exclusive – Examples of other possible major life activities HUD FHEO Pittsburgh 9
Exclusions • Currently using drugs illegally, when the covered entity acts on that basis – Persons who are recovering addicts • HUD program regulations based on occupancy requirements will take precedence – remember, the disabled person has to be “otherwise qualified” for the program. • Persons not presently using drugs but formerly addicted are considered disabled. Evidence of completion of rehabilitation/treatment is evidence of the underlying disability HUD FHEO Pittsburgh 10
EXCLUSIONS (cont’d) • Disability does not include: – – – – Homosexuality Transvestism Transexualism Pedophilia Exhibitionism Voyeurism Gender identity disorders (unless resulting from a physical impairment) HUD FHEO Pittsburgh 11
EXCLUSIONS (cont’d) – Other sexual behavior disorders – Compulsive gambling – Kleptomania – Pyromania – “Psychoactive substance abuse disorders resulting from current illegal use of drugs” HUD FHEO Pittsburgh 12
Definition of Reasonable Accommodation • Generally, any disability-related request asking for non-standard treatment • Fair Housing Act vs. Section 504 – Physical Modifications distinguished in FHA, not in Section 504 HUD FHEO Pittsburgh 13
Common Requests Seen • • • Assistance Animals Parking spaces Larger Units Grab Bars Roll-in Showers HUD FHEO Pittsburgh 14
Receiving the Accommodation Request • Can be verbal or written • Cannot insist on a written request, but can request them to provide one – Best practice: Draft a memorandum to the record if the request is verbal. • Request can be made to any employee – Maintenance sometimes has first contact HUD FHEO Pittsburgh 15
Verifying the Disability and the Nexus • Obvious disability or nexus – no need • If you need to verify: – Accept all evidence offered, then evaluate – Do not insist on evidence from a “professional” – Do not insist on a waiver/release – may offer that, but can’t insist upon it – Don’t use oath or perjury warnings – Don’t insist on a particular form -- again, may offer but cannot insist HUD FHEO Pittsburgh 16
The Interactive Process • Derived from ADA Title I regulations – HUD/DOJ Joint Statement (May 17, 2004) • Envisions reasonable negotiation to determine an appropriate reasonable accommodation • Entitled to the accommodation they request, so long as it doesn’t constitute a financial and administrative burden or a fundamental alteration of your program HUD FHEO Pittsburgh 17
Denying a Request • Does not meet the definition of disabled • Has not verified a non-obvious disability • Fundamental alteration of your program – Examples: medical equipment, shopping, housekeeping • Administrative and financial burden – case-bycase determination – Example – will have UFAS unit in two months; no need to completely modify another unit HUD FHEO Pittsburgh 18
Denying a Request (cont’d) • Provide a written determination stating why the request was denied • Constructive denial – Justice delayed is justice denied – Too much time passes without any word or progress HUD FHEO Pittsburgh 19
Questions on Reasonable Accommodations? HUD FHEO Pittsburgh 20
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