Meeting Disability-Related Needs of Individuals with Mobility Impairments

This month, we're going to review the fair housing rules requiring communities to address the disability-related needs of individuals with mobility impairments.

Communities should expect increased demand to meet those requirements. Currently, veterans are returning from active duty in Iraq, Afghanistan, and other war-ravaged parts of the world. Up to a quarter of them have some type of service-related disability—including loss of lower limbs and other serious mobility impairments.

Moreover, communities will encounter more disability-related challenges as the population ages. The first wave of baby boomers has reached retirement age, and the predicted increase in age-related disabilities will fuel demands on multifamily housing communities for accessible housing and disability-related modification and accommodation requests.

This month, we'll lay out the basics of fair housing requirements and suggest seven rules for addressing the disability-related needs of individuals with mobility impairments. We'll also tackle an area of considerable confusion—the interplay between fair housing law and the Americans With Disabilities Act (ADA) in conventional housing communities. Finally, you can take the COACH's Quiz to see how much you've learned.

COACH'S TIP: Housing providers that receive federal financial assistance are subject to the requirements of Section 504 of the Rehabilitation Act of 1973, which may impose greater obligations than federal fair housing law with respect to disability-related matters. For more information on Section 504, visit HUD's Web site at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/disabilities/sect504.

WHAT DOES THE LAW SAY?

Since 1988, the Fair Housing Act (FHA) has banned housing discrimination based on “handicap—or as more commonly known—disability. In general, the law covers an array of physical or mental impairments that substantially limit one or more major life activities.

Many conditions substantially limiting mobility fall within this broad definition—it covers obvious impairments, such as a paralysis or loss of limbs, and other impairments that require use of a wheelchair, cane, or motorized device to get around. It also covers nonobvious impairments, such as heart disease and other conditions that impede the ability to walk due to nerve damage, muscle weakness, or shortness of breath.

On one hand, fair housing law treats disability the same as the other six protected characteristics (race, color, religion, national origin, sex, and familial status) by prohibiting housing discrimination against applicants or residents because of their disability or the disability of anyone associated with them.

Yet, fair housing law goes further by imposing a duty on housing providers to satisfy three additional disability-related requirements. Housing providers must:

• Make reasonable accommodations for individuals with disabilities;

• Allow individuals with disabilities to make reasonable modifications; and

• Make new covered multifamily housing accessible.

Reasonable accommodations. The FHA makes it unlawful to refuse to make reasonable accommodations in rules, policies, practices, or services when the accommodation is necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling, including the unit and common areas, according to a 2004 guidance issued jointly by HUD and the Department of Justice (DOJ). Requests must be made by or on behalf of an individual with a disability and considered on a case-by-case basis.

The fact that a person qualifies as having a disability doesn't mean that he's entitled to the requested accommodation. There must be an identifiable relationship between the requested accommodation and the individual's disability, and the request must be reasonable—that is, it mustn't impose an undue financial and administrative burden on the housing provider or fundamentally alter the nature of its operations.

The HUD/DOJ guidelines warn against simply rejecting requests that the community considers unreasonable. Instead, housing providers should engage in an “interactive process—that is, a discussion with the person making the request about whether there's an alternative accommodation that would meet the individual's disability-related needs without imposing an undue financial and administrative burden. If there is a reasonable alternative, then the housing provider must grant it, according to the HUD/DOJ guidelines.

Reasonable modifications. The FHA makes it unlawful to refuse to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by the person if the modifications may be necessary to afford the person full enjoyment of the premises. Reasonable modifications are structural changes to interiors and exteriors of dwellings as well as common and public use areas, such as widening doorways, installing grab bars in bathrooms, lowering kitchen cabinets, adding a ramp to a primary entrance, or altering a sidewalk to provide access to a public or common area.

The person with a disability must have the community's approval before making a modification, according to HUD/DOJ guidelines. The community may require the resident to provide a description of the proposed modifications and to obtain any building permits needed to make the modification. Although the community may not insist that a particular contractor do the work, it may require the resident to ensure that the work be performed in a workmanlike manner.

The resident is obligated to restore portions of the interior of the unit to its previous condition at the end of his tenancy only where “it is reasonable to do so” and where the housing provider has requested the restoration. A resident isn't responsible for restoring modifications to the exterior of the unit.

In some cases, it's hard to tell whether a particular request is for a reasonable modification or a reasonable accommodation. It makes a difference, principally in who is responsible for paying for the implementation of a request. The HUD/DOJ guidelines point to two examples: parking and removal of carpeting. As the guidelines note, courts have treated requests for parking spaces as requests for accommodations, putting the burden on the housing provider to pay the costs of creating signage, repainting markers, redistributing spaces, or creating curb cuts.

Depending on the circumstances, removal of carpeting could be either an accommodation or a modification, according to the guidelines. Consider, for example, an applicant with a disability who wants carpeting removed because her wheelchair doesn't move easily across the carpeting. If the community has a policy of not permitting a resident to change the flooring in the unit and there's a smooth finished floor under the carpeting, then allowing the resident to remove the carpeting would be a reasonable accommodation. But if there's no finished flooring under the carpeting, removal of the carpeting and installation of a finished floor would be a reasonable modification that would have to be done at the resident's expense.

Design and construction requirements. With few exceptions, multifamily housing consisting of four or more units with an elevator, which were built for first occupancy after March 13, 1991, must comply with the FHA's design and construction requirements. If the building doesn't have an elevator, all ground-floor units must meet these standards:

Accessible building entrance on an accessible route. All covered multifamily dwellings must have at least one building entrance on an accessible route unless it's impractical to provide one because of the terrain or unusual characteristics of the site.

Accessible public and common-use areas. The FHA requires accessible and usable public and common-use areas, which encompasses all parts of the housing outside individual units. This requirement also establishes minimal levels for accessible parking for residents and visitors.

Usable doors. All doors that allow passage into and within all premises must be wide enough to allow passage by people in wheelchairs, scooters, or walkers.

Accessible route into and through the unit. The FHA requires an accessible route into and through the dwelling unit, which begins at the primary entrance door to the unit and continues through the dwelling unit onto decks, balconies, and patios.

Accessible light switches, electrical outlets, thermostats, and environmental controls. In general, that means that the operable parts of the controls are located no higher than 48 inches, and no lower than 15 inches, above the floor.

Reinforced walls in bathrooms. Reinforcements in bathroom walls must be installed, so that grab bars may be added when needed around toilets, tubs, or showers. The law doesn't require installation of grab bars in bathrooms.

Usable kitchens and bathrooms. Kitchens and bathrooms must be designed and constructed so an individual in a wheelchair can maneuver about the space and use fixtures and appliances.

7 RULES FOR MEETING THE DISABILITY-RELATED NEEDS OF INDIVIDUALS WITH MOBILITY IMPAIRMENTS

Rule #1: Make Sure Leasing Office Is Accessible

Your leasing office must be accessible to people with mobility impairments. Because it's open to the public, a community's leasing office is considered a place of public accommodation, which means that it's subject to the ADA, in addition to the FHA.

At a minimum, make sure that there are no barriers to the entrance to the leasing office and that there's adequate accessible parking in the leasing office's parking lot, including parking that's accessible for vans. Bathrooms must be accessible for people who are using wheelchairs or other mobility devices. Failure to do so can lead to significant expenses in defending disability discrimination claims as well as the cost of retrofitting your office.

Example: In April 2010, a Tennessee community settled an ADA complaint, alleging that the company had failed to remove architectural barriers leading into and within its leasing office. Among other things, the settlement required removal of barriers including inaccessible parking in the leasing office's parking lot, an inaccessible route from the parking lot to the entrance, an inaccessible entry to the office, inaccessible men's and women's restrooms in the office, an inaccessible route into the leasing office from a sidewalk leading from the site's swimming pool, and an inaccessible after-hours drop box [ADA Settlement, Stoneridge Germantown Falls Apartments, April 2010].

COACH'S TIP: Information about ADA requirements for leasing offices and any other community facilities that are open to the public is available on the Justice Department's ADA Web page at www.ada.gov/.

Rule #2: Comply with FHA Accessibility Rules

With few exceptions, multifamily communities built within the last 20 years must comply with the FHA's design and construction requirements. Those rules require that all ground-level and elevator-accessible units, public-use areas, and common areas be accessible to individuals with mobility impairments.

Though the requirements have been in place for more than two decades, communities continue to draw the attention of federal fair housing enforcement officials for design and construction violations. Liability can reach the hundreds of thousands of dollars—not only in costs to remedy inaccessible design features, but also damages to individuals allegedly harmed by violations.

Example: In December 2011, the owners, developers, architect, and civil engineers of a 276-unit rental community in Louisville, Ky., agreed to pay $275,000 in damages—along with all costs involved in making the community accessible to individuals with disabilities—to settle allegations that they violated the FHA's design and construction requirements. The settlement called for significant retrofits of 138 covered ground-level units, the public and common-use areas, and the accessible routes. The required retrofits included modifying walkways; removing steps; providing accessible curb ramps; and providing accessible walks to site amenities, such as the clubhouse, pool, mailbox, and trash facilities. It also required the defendants to reconfigure thermostats and outlets to accessible heights, increase door widths, and reconfigure bathrooms and kitchens [United States v. Cogan, Kentucky, December 2011].

Rule #3: Don't Discriminate Against Individuals with Mobility Impairments

Fair housing law protects individuals with disabilities, including those with mobility impairments, from housing discrimination. Clearly, that means it's illegal to turn away a prospect who uses a wheelchair due to a mobility disorder regardless of the reason. It doesn't matter whether it's based on concerns about the community's image or potential liability or financial considerations. It's a violation of the FHA to deny housing to a prospect because he—or someone associated with him—has a disability.

Communities don't have to engage in such obviously discriminatory conduct to trigger liability under fair housing law. The law also bans unlawful steering, which means guiding, directing, or encouraging prospects to live in a particular part of your community or discouraging them from living in other parts. Don't make assumptions about where a prospect with a mobility disorder would prefer to live—for example, by showing him only ground-level units based on the assumption that it would be easier for him to get around. Limiting a prospect's housing choices based on a disability is prohibited under fair housing law.

The law also bans communities from imposing different terms or conditions—such as more stringent screening standards or payment of additional fees—on an applicant or resident because of a disability. That means that you may not require an applicant who uses a mobility device to pay a higher security deposit or to obtain extra liability insurance to cover potential damage to the walls or woodwork from its use.

Rule #4: Don't Ban Use of Motorized Mobility Devices

Take a hard look at your rules on the use of motorized vehicles to ensure that you don't inadvertently violate fair housing law. Communities have faced liability under fair housing law for prohibiting or unduly restricting the use of power-driven wheelchairs and other motorized devices by individuals with mobility impairments.

Example: In August 2009, the operator and manager of a retirement community in Indiana agreed to pay up to $116,000 to resolve allegations of disability discrimination for allegedly prohibiting the use of motorized wheelchairs and scooters in residents' apartments and in its common dining room during meals. The settlement required defendants to pay a total of $70,000 to three former residents and to establish a $25,000 settlement fund for others who may have been injured by the policy—in addition to a $21,000 civil penalty [United States v. Rathbone Retirement Community, Inc., August 2009].

Nevertheless, communities have legitimate concerns about property damage or injury to other residents caused by unsafe use of motorized vehicles—regardless of whether it's a moped or a power wheelchair. For example, a resident with a mobility impairment who drives her scooter in common areas at excessive speeds may pose just as much safety risk as a teenager racing his moped through the hallways. Moreover, the proliferation of varieties and models of mobility devices—ranging from power-driven wheelchairs and scooters to new types of devices, such as the Segway PT—may increase safety concerns if more people unfamiliar with their operation are using the devices.

Federal officials acknowledge that a community may protect its property and the safety of its residents with respect to motorized mobility devices. According to the HUD/DOJ guidelines, a reasonable accommodation may be conditioned on meeting reasonable safety requirements, such as requiring persons using motorized wheelchairs to operate them in a manner that doesn't pose a risk to the safety of others or cause damage to another person's property.

COACH'S TIP: Although the new ADA rules have only limited application in most conventional multifamily communities, it may be instructive to look at how the new rules treat wheelchairs and other power-driven mobility devices: The new ADA rule adopts a two-tiered approach to mobility devices, drawing distinctions between wheelchairs and “other power-driven mobility devices—that is, devices not designed for individuals with mobility impairments, such as the Segway PT, but which are often used by individuals with disabilities as their mobility device of choice. Under the ADA rule, wheelchairs (and other devices designed for use by people with mobility impairments) must be permitted in all areas open to pedestrian use. “Other power-driven mobility devices” must be permitted to be used unless the facility can prove that they cannot be operated in accordance with legitimate safety requirements. According to the Justice Department, this approach accommodates both the legitimate business interests in the safe operation of a facility and the growing use of nontraditional mobility devices, such as the Segway PT, by returning veterans with disabilities and other individuals with disabilities who are using these devices as their mobility aid of choice.

Rule #5: Curb Curiosity About Mobility Impairments

Make sure your staff understands and complies with fair housing rules governing disability-related inquiries. In general, it's unlawful to ask an applicant whether he or anyone associated with him has a disability or to ask about the nature or severity of such disabilities.

Time and again, fair housing expert Anne Sadovsky hears of inexperienced personnel blurting out inappropriate comments or questions related to a prospect's disability. The motives are often benign. Perhaps the employee is trying to engage in conversation with a prospect with an obvious mobility impairment about his condition or an unfamiliar mobility device. Perhaps it's curiosity because the prospect says he has a disability but doesn't show signs of an obvious impairment. Either way, it could be a problem. Sadovsky says the key is to provide fair housing training to all employees, particularly first-day training for new hires, to prevent them from inadvertently violating the law.

Nevertheless, the law allows some limited exceptions to the general ban on asking disability-related questions. One key provision applies to disability-related requests—either for a reasonable accommodation or a reasonable modification—but only when either the disability or the need for the requested accommodation or modification isn't apparent. If a resident asks for special parking privileges, but his disability isn't apparent, then you may ask for verification that he meets the FHA's definition of disability—that is, has a mental or physical impairment that substantially limits one or more major life activities. For example, the resident may have one of many mobility impairments that are not apparent, such as a lung or heart condition that doesn't require use of a mobility aid, but does limit the ability to walk long distances.

Moreover, an individual with an obvious mobility impairment may ask for an accommodation that doesn't appear to be related to his condition—for example, if an applicant in a wheelchair wants an exception to a no-pets policy to keep a dog as an assistance animal. Under those circumstances, the HUD/DOJ guidelines state that the community may ask the applicant to provide information about the disability-related need for the dog.

The HUD/DOJ guidelines lay out the specifics, but the bottom line is to understand and follow the rules regarding when you can—and can't—ask disability-related questions. The rules can be complicated, so get legal advice if there's any doubt about what to do in a particular case.

Rule #6: Carefully Consider Requests for Reasonable Accommodations

Be prepared to handle requests for reasonable accommodations by individuals with mobility disorders. Not all requests are labeled as such—they often are expressed as something the resident needs or wants because of a disability. That's generally enough to trigger your duty to treat it as a request for a reasonable accommodation. According to HUD/DOJ guidelines, a person makes a request for a reasonable accommodation whenever she makes it clear that she's requesting an exception, change, or adjustment to a rule, policy, practice, or service because of her disability.

To be entitled to a reasonable accommodation, there must be an identifiable relationship between the requested accommodation and the individual's disability. A prime example is a request for an exception to parking rules for an individual with a mobility impairment. Consider the example cited in the HUD/DOJ guidelines involving a request by a resident, who has a mobility impairment that substantially limits her ability to walk, for an assigned parking space near the entrance to her unit. The community has a policy of providing unassigned parking spaces to residents; although there are unassigned spaces near the entrance, they are available to all residents on a first come, first served, basis. The guidelines state that the community must make an exception to its policy of not providing assigned parking spaces to accommodate this resident.

Another example is a request for a transfer to a ground-level unit by a current resident who has a disabling mobility impairment. Failure to take such a request seriously—or an undue delay in your response—could lead to significant liability under fair housing law—perhaps reaching the millions.

Example: In December 2010, the owner of a 196-unit Alabama community agreed to a record $1.25 million settlement—the largest ever obtained by the Justice Department in an individual housing discrimination case—for allegedly refusing to permit a resident with a mobility impairment to move to a ground-floor apartment near the front of the building in a timely manner. During the delay, according to the complaint, the resident fell down the community's staircase twice, leading to severe and possibly permanent injuries. The community denied liability.

In addition to payment of damages and penalties, the settlement established new nondiscrimination and reasonable accommodation policies that will cover over 11,000 units in 85 residential properties spread among 15 states. The defendants must hire a reasonable accommodations facilitator to oversee requests corporate-wide; provide FHA training to all of their staff who are involved in the management, sale, or rental of units nationwide; and allow the United States to conduct fair housing compliance testing at any of their properties over a four-year period [U.S. v. Warren Properties, Inc., December 2010].

Rule #7: Carefully Review Requests for Reasonable Modifications

Fair housing law requires communities to allow an applicant or resident with a disability to make reasonable modifications to the interior of his unit—as well as common areas—to allow him to fully enjoy the housing and related facilities. Under the FHA, the housing provider must permit the modification, but the resident is responsible for paying for it.

Examples of reasonable modifications for people with mobility impairments include installation of a ramp into the building, lowering the threshold of a unit, or installation of grab bars in the bathroom. The HUD/DOJ guidelines also state that reasonable modifications may be made to public and common-use areas, such as widening entrances to fitness centers or laundry rooms.

A community may not insist that a resident move to a different unit in lieu of allowing him to make a reasonable modification. The HUD/DOJ guidelines cite the example of a resident with a mobility impairment who requests that he be permitted to install, at his expense, a ramp so he can access his unit using his motorized wheelchair. The existing entrance to the building isn't accessible because the route requires going up a step. The resident isn't required to accept an offer by the community to move to a different unit in lieu of installing the ramp since his request to modify his unit was reasonable and must be approved.

• Fair Housing Act: 42 USC §3601 et seq.

• HUD guidance: Reasonable Accommodations Under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf.

• HUD guidance: Reasonable Modifications Under the Fair Housing Act, www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf.

COACH Sources

Nanette Cavarretta, CAPs, CAM: Regional Manager, Epoch Management, Inc., 359 Carolina Ave., Ste. 100, Winter Park, FL 32789; (407) 629-5004; nan@epochmanagement.com.

Theresa L. Kitay, Esq.: Attorney at Law, 578 Washington Blvd., Ste. 836, Marina del Rey, CA 90292; (310) 578-9134; tkitay@kitaylaw.net.

Anne Sadovsky, CSP: Anne Sadovsky and Co., Dallas, TX; (866) 905-9300; anne@annesadovsky.com.

Carl York, CPM® Emeritus, CAM, CAPS: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.

ADA vs. FHA: Do the New ADA Standards Apply to Your Community?

Last fall, the Justice Department announced new rules under the ADA that, among other things, adopt new scoping provisions establishing accessible design standards that take full effect on March 15, 2012. The 2010 ADA Standards for Accessible Design include, for the first time, standards on making swimming pools, parks, golf courses, boating facilities, exercise clubs, and other recreation facilities accessible for individuals with disabilities, according to the Justice Department. There has been a lot of buzz about the new rules—leading to the obvious question: Do they apply to my community?

The short answer—in most conventional housing communities—is no. The ADA new rules don't apply to any community that wasn't subject to the ADA before the new rules were issued, according to fair housing expert, attorney Terry Kitay. In conventional housing communities, the FHA—not the ADA—applies to units, buildings, and common areas generally reserved for use by residents and their guests. In those communities, the ADA applies only to “places of public accommodation—that is, areas within the community that are open to the public.

In general, that's limited to your leasing office—not the pool or other amenities that are available for use only by residents and their invited guests. The ADA applies only if you make those facilities available to the public—for example, by renting them out to groups or individuals who are not otherwise associated with your community. Consequently, the new ADA rules for pools and other amenities don't apply in most conventional housing communities—if your pool wasn't covered by the ADA before the new rules were issued, then the new ADA requirements for pools don't apply.

Still confused? If you have areas within your community that are open to the public—such as day care centers, medical offices, or other facilities—get legal advice to ensure that you comply with all applicable accessibility requirements.

EDITOR'S NOTE: There's an exception that extends the ADA requirements to housing owned or operated by or on behalf of places of higher education, according to Kitay. Consequently, communities that offer student housing should consult their attorney to determine whether the ADA applies.