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Legal Issues in Supportive Housing

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 15 th Street, N.W., Suite 1212 Washington, D.C. 20005-5002 Telephone: 202/467-5730, ext. 117

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Legal Issues in Supportive Housing

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  1. Legal Issues in Supportive Housing Presented by Michael Allen for The Corporation for Supportive Housing Chicago, Illinois July 28, 2004

  2. 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

  3. 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? Federal Laws

  4. 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

  5. “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

  6. 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

  7. “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 I

  8. “…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… Definition of “Handicap,” Part II

  9. Discrimination Can Occur at any Time • Advertising • Application/Admission • Terms and conditions during tenancy • Termination/Eviction • Post-Termination?

  10. 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

  11. 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

  12. 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.”

  13. §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”

  14. 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?

  15. 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.”

  16. Reasonable Accommodations in Operating Rules

  17. 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

  18. 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

  19. 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?

  20. 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?

  21. 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?

  22. 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?

  23. 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?

  24. 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?

  25. 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?

  26. 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.

  27. 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 Mainstream Resources

  28. Housing §202/§811 McKinney-Vento Shelter + Care Supportive Housing ESG HOPWA Others? Services/Benefits Mental Health Block Grant Assertive Community Treatment Others? Categorical Programs

  29. 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.

  30. 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?

  31. 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

  32. Can a Landlord Require More? • Service agreements • “Social contracts” • Medication/treatment compliance • Day Treatment • Sobriety • Curfews • Restrictions on guests

  33. 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?

  34. 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.

  35. 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

  36. 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

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