More Than Four Walls and a Roof: Accessible, Affordable Housing for People with Disabilities

1. More Than Four Walls and a Roof: Accessible, Affordable Housing for People with Disabilities September 14, 2012

2. Contact Information: Julie Nepveu, Esq. Senior Attorney AARP Foundation Litigation 601 E Street, NW Washington, DC 20049 Email: JNepveu@aarp.org Web: www.aarp.org V 202-434-2075 TTY 1-877-434-7598 AARP

3. Goals: • Understand how obligation to affirmatively further fair housing applies to an aging population. • Understand opportunities to advocate for accessible, affordable housing for an aging population using fair housing tools. AARP

4. U.S. ex rel. Anti-Discrimination Center v. Westchester County • County received $52 million+ in CDBG, HOME, ESG funds from 2000-2006 • Receipt of funds required repeated AFFH certifications • Litigation brought under the False Claims Act: AFFH certifications were false because County did not consider race-based impediments to fair housing choice • Treble Damages • Share available to “relator” AARP

5. Westchester AI • 2000 and 2004 Analyses of Impediments (“AIs”): “The [Fair Housing Plan] describes the housing needs of handicapped persons, larger/smaller families [and] extended families….” • AIs do not identify any impediments on the basis of race, color, national origin or any other protected class, even though County is part of one of the most segregated regions in the country • No mention of housing discrimination or residential segregation AARP

6. Allegations of the Complaint • Westchester excluded consideration of impediments to fair housing based on race when it was required by statute to consider them. • Westchester did not engage in any independent analysis or exploration of impediments to fair housing choice • Westchester refused to identify or analyze community resistance to integration on the basis of race and national origin as an impediment. AARP

7. Allegations of the Complaint • As a matter of policy, County refused to monitor the efforts of participating municipalities to further fair housing and did not inform them that Westchester might withhold federal funds if the municipality did not take steps to further fair housing. • Throughout the false claims period, Westchester never required a participating municipality to take any steps to increase the availability of affordable housing or otherwise affirmatively further fair housing. AARP

8. AFFH Statutory Authority • FHA requires HUD to “administer [housing] programs…in a manner affirmatively to further the policies of [the Fair Housing Act],” including the general policy to “provide, within constitutional limits, for fair housing throughout the United States.” • 42 USC §3608(e)(5). AARP

9. “No Certification, No Money” • 42 U.S.C. §5304(b)(2): “Any grant under [the CDBG program] shall be made only if the grantee certifies to the satisfaction of the Secretary that … the grant will be conducted and administered in conformity with the Civil Rights Act of 1964 [42 U.S.C. 2000a et seq.] and the Fair Housing Act [42 U.S.C. 3601 et seq.], and the grantee will affirmatively further fair housing.” AARP

10. Executive Order 12892 (1994) • “[A]ll executive departments and agencies shall administer their programs and activities relating to housing and urban development (including any Federal agency having regulatory or supervisory authority over financial institutions) in a manner affirmatively to further the purposes of the [Fair Housing] Act….” §2-202 • See also Executive Order 11063, Nov. 20, 1962, §102; Executive Order 12259, Dec. 31, 1980, §1-202 AARP

11. CDBG/Con Plan AFFH Regs • A grantee is “required to submit a certification that it will affirmatively further fair housing, which means that it will (1) conduct an analysis to identify impediments to fair housing choice within the jurisdiction; (2) take appropriate actions to overcome the effects of any impediments identified through that analysis; and (3) maintain records reflecting the analysis and actions in this regard.” • 24 C.F.R. § 570.601(a)(2) • 24 CFR § 91.225(a). AARP

12. Preventing the Increase of Segregation • “…the affirmative duty placed on the Secretary of HUD by § 3608(d)(5)… requires that consideration be given to the impact of proposed public housing programs on the racial concentration in the area in which the proposed housing is to be built. Action must be taken to fulfill, as much as possible, the goal of open integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups whose lack of opportunities the Act was designed to combat.” • Otero v. New York City Housing Authority, 484 F.2d 1122, 1134 (2d Cir. 1973). AARP

13. Refraining From Discrimination is Not Enough • “…every court that has considered the question has held or stated that Title VIII imposes upon HUD an obligation to do more than simply refrain from discriminating (and from purposely aiding discrimination by others)…This broader goal [of truly open housing] …reflects the desire to have HUD use its grant programs to assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases.” • NAACP v. Sec’y of Housing and Urban Development, 817 F.2d 149, 155 (1st Cir. 1987). AARP

14. Same Obligation Imposed on Grantees • “When viewed in the larger context of Title VIII, the legislative history, and the case law, there is no way—at least no way that makes sense—to construe the boundary of the duty to [AFFH] as ending with the Secretary…. [t]hese regulations unambiguously impose mandatory requirements on the [recipients] not only to certify their compliance with fair housing laws, but actually to comply.” • Langlois v. Abington Housing Authority, 234 F.Supp.2d 33, 73, 75 (D.Mass. 2002) AARP

15. AFFH Enforcement Mechanisms • No Private Right of Action re: §3608 • Administrative Complaint to HUD • Administrative Procedures Act (for lawsuits against HUD) • Section 1983 (for lawsuits against recipients) • False Claims Act (for lawsuits against recipients) AARP

16. 40 Consortium Municipalities • County as a whole has 16% African-Americans • 40% of Consortium Municipalities have African-American populations of 1% or less • 60% of Consortium Municipalities have African-American populations of 3% or less • A handful of municipalities have African-American populations above 16%: Yonkers, New Rochelle, Mount Vernon, White Plains, Peekskill, Greenburgh AARP

17. Aging Population • People over 65 will increase from 1/8 to 1/5 of the overall population in the next 20 years: • 35.0 million (12.4%) in 2000 • 39.7 million (13.2%) in 2010 • 53.7 million (16.5%) in 2020 • 70.0 million (20.0%) in 2030 (last baby boomer turns 65). AARP

18. By 2050 • The number of people: • over 65 will more than double • over 75 will triple • over 85 will quintuple • In 2000 - 5 workers to every 1 person over 65. • In 2050 - 2 workers to every 1 person over 65. AARP

19. Source: United Nations Department of Economic and Social Affairs, Population Division. World Population Prospects. The 2004 Revision. New York: United Nations, 2005 AARP

20. Reality check • WE ARE NOT TALKING ONLY ABOUT OUR PARENTS • MOST OF US WILL SOON BE OVER 65 TOO (or are already there)! AARP

21. WAKE UP! • Most communities have not yet started to plan for an aging population. • Those communities that have started planning have not made major progress. • The longer we wait, the more difficult it will become to make the changes necessary to create environments for successful aging (Source: The Maturing of America—Getting Communities on Track for an Aging Population) AARP

22. Denial • Most people do not consider whether a home or community will meet their needs until it is obvious it does not. By that time, it is difficult to do make necessary changes, such as: • Moving elsewhere • Making home modifications • Influencing the way the community develops around them AARP

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24. Top Planning Challenges 1. Housing • Availability • Affordability • Accessibility • Financial • Access to Affordable Health Care • Transportation, providing services to scattered rural population, engaging healthy people (Source: The Maturing of America—Getting Communities on Track for an Aging Population) AARP

25. Fair Housing Act and Age • Prohibits discrimination on the basis of race, color, religion, national origin, sex, familial status and disability. • Age is not a protected class. AARP

26. Aging ≠ Disability • However, incidence of disability increases with advancing age: An estimated 40% of those 65 and older have a disability that affects one or more activities of daily living. • People aged >75 years are nearly 3 X as likely as those aged 65—74 to require the help in performing activities of daily living (e.g., eating, dressing, or bathing) and instrumental activities of daily living (e.g., household chores or shopping). • Older people are often regarded as having a disability. AARP

27. AARP Source: Administration on Aging (AoA), H.H.S., A Profile of Older Americans: 2011.

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29. Fair Housing Amendments Act • Specifically prohibits housing discrimination based upon physical or mental disability. • Generally, housing providers prohibited from: • discriminating against housing applicants because of their disabilities; • Discriminating against existing residents because of their disabilities; • treating people with disabilities worse than people without disabilities. AARP

30. FHAA Affirmative Obligations • Three affirmative obligations for housing providers. 42 U.S.C. § 3604(f)(3) makes it unlawful: • to refuse to permit reasonable physical modifications of certain premises; • to refuse to make reasonable accommodations in housing rules and policies; • and to fail to include certain accessibility features in the design and construction of new multifamily dwellings. AARP

31. Design and Construction • 42 U.S.C. § 3604(f)(3)(C) requires certain accessibility enhancing features. Failure to comply = unlawful discrimination • Applies to “covered multifamily dwellings” first occupied after March 13, 1991; 4 or more units: • Elevator building, all units covered. • Non-elevator building, ground floor units and public and common spaces covered. • Vast majority of multifamily housing built out of compliance. AARP

32. Six required FHA design features • Public and common use areas must be “readily accessible to and usable by handicapped persons.” • Doors wide enough for wheelchairs. • Accessible route into and through dwelling. • Light switches, outlets, thermostats, etc. placed in accessible locations. • Bathroom walls reinforced to allow grab bars. • Kitchen and bathrooms have space to allow wheelchairs to maneuver. AARP

33. Exceptions • Statute does not allow exceptions but HUD says accessible route is excused if impractical because of terrain, site. • Burden of showing impracticality is on those who design or construct the housing. • Compliance with American National Standards Institute (ANSI A117.1) or HUD guidelines is a safe harbor. • Compliance with state, local rules insufficient. AARP

34. Universal Design Features that support aging in place: • Lever door and faucet handles • Bathroom aids (grab bars) • Entrance without steps • Wide doorways • Bedroom on main level • Full bath on main level • Non-slip flooring • Public sidewalk outside home • Attached garage or covered parking immediately outside home AARP

35. Design and Construction Litigation Issues • Timeliness – Courts are split • Date of first occupancy • Date of sale of last unit • Continuing violation theory • When no longer “unavailable” • Proper defendants • Standing - Actual purchasers/renters; organizations • Damages and injunctive relief AARP

36. Americans with Disabilities Act • Prohibits unnecessary segregation and institutionalization of people with disabilities. 42 U.S.C. § 12132. • ADA regulations specifically direct public entities to "administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). • An integrated setting is one "that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible." 28 C.F.R. pt. 35, app. A (preamble to ADA regulations governing public entities) at 452 (1994). AARP

37. Intent of ADA • “For years, this country has maintained a public policy of protectionism toward people with disabilities. We have created monoliths of isolated care in institutions and in segregated educational settings.It is that isolation and segregation that has become the basis of the discrimination faced by many disabled people today. Separate is not equal. It was not for black[s]; it is not for the disabled.” • Americans with Disabilities Act Hearing before the Senate Comm. on Labor and Human Resources and Subcomm. on the Handicapped, 101st Cong., 1st Sess. 215 (1989) (statement of Sen. Weicker). AARP

38. Underlying Principals: • “[C]lear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream.It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals.” H.R. Rep. 100-711 at 18 AARP

39. Principles: Equality People with disabilities should have an equal opportunity to live where they want, and not be subjected to rules or requirements that are different from those applied to people without disabilities. AARP

40. Principles: Integration People with disabilities are entitled to live in communities with their neighbors. Integration does not just mean physical presence in a neighborhood, but participation in community services and activities. AARP

41. Principles: Choice People with disabilities are entitled to choose where they want to live. AARP

42. Principles: Individuality Housing providers must respect the unique needs and circumstances of individuals with disabilities and offer reasonable accommodations to meet these needs when requested. AARP

43. Stereotypes • Independent living requirements and advertising limit choice. • Landlords or housing providers may attempt to exclude older people due to: • Perceived Liability; • requirement that people be healthy, able to get around or able to live “independently”; • fear they will be difficult tenants or request modifications or reasonable accommodations. AARP

44. Segregation • Nursing homes and other housing types may be racially segregated or discriminate based on disability making it difficult for some to find an appropriate placement. • SeeSenior Housing Research Project, John Marshall Law School Fair Housing Legal Support Center AARP

45. Housing Options • Where do you want to live as you age? • remain in current housing; • other types of independent living; • assisted living; • nursing home; • continuing care retirement community. AARP

46. At home? AARP

47. In a nursing home? AARP

48. Survey Says… • The vast majority of older people want to age in their homes and communities for as long as possible. • 80% of the 50+ population are homeowners. • 20% of people 50+ are renters. • Health reasons become increasingly more important as a reason to move as people age. AARP

49. Aging in Place • Increased disability does not necessarily dictate a particular housing choice: needs can generally be met in the individual’s own home as well as in an assisted-living facility or a nursing home. • May need to modify home environment by adding supportive services and reconfiguring residences. • Relocating may entail loss of social networks and result in significant loss in quality of life, personal control and dignity, and an increased risk of decline in cognitive ability. AARP

50. AARP Foundation Housing Focus Area • At least 13 million low-income, 50+ households live in unaffordable and/or inadequate housing. • Unable to afford their mortgage or rent • Major home repairs rendering their homes inadequate • Difficulty accessing services in their community • Vulnerable housing due to natural disasters • Lack access to credible information to protect home AARP