Slide #1 © 2007 Nan McKay & Associates Emily Wilcox Fair Housing Issues for Public Housing Managers...

Slide #1©2007 Nan McKay & Associates

Emily Wilcox

Fair Housing Issues for Public Housing Managers

©2007 Nan McKay & Associates


Fair Housing


We Will Cover…

Resources and Factual Overview Working with Advocates/good faith FH efforts Dealing with Fair Housing complaints New HUD Civil Rights Review Documents HUD’s New Freedom Initiative Memorandum


We Will Cover…

Reasonable Accommodation • Case Studies

Familial Status – common error* Hate crimes* Sexual Harassment* LEP/LAP*

• YOUR QUESTIONS!


Discrimination under the Fair Housing Act

No person shall be subjected to discrimination because of • race, color, religion, sex, handicap, familial status or

national origin • in the sale, rental or advertising of dwellings, in the

provision of brokerage services in or in the availability of residential real estate-related transactions. 24 CFR 100.5


Chicago Commission on Human Relations Fair Housing Ordinance

Because of his race, color, sex, gender identity, age, religion, disability, national origin, ancestry, sexual orientation, marital status, parental status, military discharge status or source of income in the terms, conditions, or privileges or the sale, rental or lease of any housing accommodation...


What is Discrimination?


What is Discrimination?

Under the FHA, discrimination is when PHAs:• Are neutral or do nothing to further fair

housing• Are passive about housing needs in the

community• Treat people with disabilities the same instead

of giving equal access


Inviting FHEO for a Visit?

No LEP/LAP Plan No fair housing complaint process No Section 504 coordinator No PHA office building accessibility No reasonable accommodation procedures No fair housing training for staff (including diversity

training) Poor confidentiality policies


Beginning Questions

How are applicants and participants notified of their right to request a reasonable accommodation? • If HUD asks your families today what is the

PHA’s reasonable accommodation policy, how would they respond?

• How would you/your staff respond?


“Fair Housing Laws” or “Civil Rights Laws”

Fair Housing Act (42 USC §3601-19, 24 CFR 100) Section 504 of the Rehabilitation Act of 1973 Americans with Disabilities Act U.S. Constitution - Equal Protection (1866 Civil Rights Act,

42 USC §1981-83) Title VI of the Civil Rights Act of 1964, 1968 (42 USC §

2000) Executive Orders Case law from US Supreme Court and local courts**


Fair Housing and Equal Opportunity (FHEO)


Minorities – Census Data

1 out of every 3 Americans (Census data 2006) In AZ, minorities are half the people under 20yrs

• But only 1 in 6 minorities in AZ are 60yrs and older Half the kids in US under 5yrs are Hispanic, Black,

Asian Number of legal immigrants ↑30% (1995-2005)


Persons with Disabilities

1 of every 5 Americans is a person with a disability – largest minority group in US

Adults with disabilities are poorer and more likely to be unemployed than adults without disabilities

27% of adults with a severe disability live in poverty 7.7% of non-disabled adults live in poverty


Aging in Place

Aging in place means that a person can grow older and not have to move

70% of seniors spend the rest of their life in the same home or apartment where they celebrated their 65th birthday • PHA expects and prepares for elderly families

to acquire special needs/disabilities


CHANGE

“Faced with changing one's mind, orproving that there is no need to do so,

most people get busy on the proof.”John Kenneth Galbraith


Open to Change

Reach out to advocates:• Powerful words: “We want your help.”

Ask others/Ask yourself:• How can we do better?• Approach your work with the nonprofit community on

the offensive – don’t wait for a lawsuit!


Customer Service as Fair Housing

How you communicate with your applicants/residents matters

Friendliness, empathy, listening (show that you have heard what has been said)

Share options and alternatives - explain Consistency


What Goes Around Comes Around

Agency that gives poor service ensures tenants bring poor attitudes when they conduct business

2 types of customers:• Those who are upset because PHA could have

controlled or avoided situation, and• Those who are upset but it has nothing do with PHA

or what PHA controls


Responding to Fair Housing Complaints

1. Is there a history with this participant?2. What staff are involved?3. What is it that this participant really wants?

4. Is this really just miscommunication?5. Be eager to LEARN from complaints


PHAs and Fair Housing

Your PHA will share and extend values inyour community regarding working withpeople with disabilities, different religions, racesand immigrant communities . . . whether the

PHA intends to or not. (Share good ones.)


Websites Domestic Violence/VAWA

• www.ndvh.org (365 Days/24 Hours/140 Languages)• 1-800-799-SAFE (7233)/1-800-787-3224 (TTY)

Voluntary Compliance Agreements• http://www.hud.gov./offices/fheo/library/index.cfm

Department of Justice and HUD• http://www.usdoj.gov/crt/housing/jointstatement_ra.htm

Fair Housing• http://www.fairhousing.com/index.cfm• http://www.bazelon.org/issues/housing/infosheets/13livein.htm


Websites Disability

• http://www.hud.gov/offices/pih/programs/ph/rhiip/phguidebook.cfm• http://www.hud.gov/offices/fheo/disabilities/sect504faq.cfm

Accessibility • http://www.fairhousingfirst.org• http://www.hud.gov/offices/fheo/disabilities/fhefhag.cfm

LEP• http://www.lep.gov/selfassesstool.htm• http://www.hud.gov/offices/fheo/promotingfh/lep-faq.cfm


PHA Civil Rights Monitoring


Civil Rights MonitoringCivil Rights Monitoring 11/9/2006 & 3/1/2007 – Fed Reg Notices 6/13/2007 – Final civil rights review

documents posted on www.hudclips.org• Joint effort by PIH and FHEO to increase

oversight of fair housing issuesTwo checklists – attachment A & B


Attachments A & B

• PIH is planning to conduct civil rights monitoring reviews of 20 PHAs in 2007

• Reasonable accommodation and LEP issues• Data collected helps HUD evaluate PHA

compliance with civil rights and fair housing laws and regulations


Attachment A

Attachment A – will be completed by a PIH reviewer• Will be completed as part of on-site

comprehensive/consolidated reviews• PIH reviewer completes form and sends it to FHEO

for review• This form leaves some discretion to the reviewer

and FHEO as to what is reported


Attachment A - Notice

Questions 1-5:• FH poster must be displayed• PHA Agency Plans, policies, regulations and

rules need to be posted and available to the public as well as participants

• Notice to participants regarding how to file a fair housing complaint


Attachment A – General FH

Very broad criteria that is being examine:• (Part II) “Is there anything else that is related to civil

rights or fair housing that should be noted…?”• Form suggests for PIH reviewers to gather

information from “media reports” and “racial/ethnic tensions” complaints at developments


Attachment A - LEP

Asks about LEP four-factor test and asks PIH reviewer to send in a copy of the analysis• Requests copy of LAP• Inquires into bi-lingual staff• Inquires into contracts for language services


Attachment B

Checklist purpose “serves as an alert to PIH and FHEO to certain PHA practices regarding Section 504”• Unlike A, this form is completed by the PHA

and collected by PIH during its on-site review• Results are referred to FHEO for follow-up


Attachment B

Specific questions regarding:• Section 504 coordinator• Units meeting UFAS-accessibility standards• Distribution of accessible units• Reasonable accommodation policy/process

Including how/when RA policy is given to applicants and residents


Attachment B

Additional inquiry into (are you documenting this?):• Service animals• Deposits• TTY• Alternative forms of communication• Mobility support, voucher exts, FMR exceptions for

HCV applicants/participants


Attachment B

Final question is very broad:• “What other rules or policies has the PHA

implemented that affect persons with disabilities?”

• Be prepared to show affirmative steps the PHA has taken to market to and support people with disabilities in the community


Attachments A & B

Expiration date of 2010 LEP and disability support issues are issues

HUD/FHEO is taking seriously Show good faith efforts and take affirmative

action – make a plan to deal with these issues!


New Freedom Initiative



Executive Order 13217 (Issued 6/18/01)• U.S. Supreme Court case Olmstead v. L.C.• Purpose: “de-institutionalize” persons with

disabilities • Purpose: to improve community integration• Serve people with disabilities in the most

integrated settings (ADA & 24 CFR Part 8)



Federal agencies and federally funded state programs must: Focus on “person-centered” planning Support reduction of “fixed facilities and fixed staff” Evaluate polices, programs, statutes, and

regulations to improve the availability of community-based services


PIH Letter 2007-01

PIH Letter (Issued May 2007)• Extension of PIH 2006-21 (HA), reinstated PIH

2005-5 (HA), New Freedom Initiative, Executive Order 13217

• See Sec. Jackson’s Letter to PHAs (Oct 2006)http://www.hud.gov/offices/pih/publications/me

dicareinitiative.pdf


PIH Letter 2007-01

PIH Letters are in effect until canceled:• Do not require annual renewal• More PIH letters are planned to reduce the volume

of notices that must be renewed each year• Issuance of the letter (versus a notice) shows New

Freedom initiatives and HUD’s integration priorities for people with disabilities are here to stay


July 9, 2007 Letter

HUD “strongly supports expanding accessible, affordable and integrated housing options…”http://www.hud.gov/offices/fheo/disabiliti

es/MFP-RebalancingMemo.PDF


July 9, 2007 Letter

Reiterates creation of local preferences Coordination with Medicaid offices and state

agencies administering Medicaid dollars Encourages engaging nonprofits, independent

living centers, local protection agencies Olmstead: “Integrated housing opportunities”


July 9, 2007 Letter

Would like to “highlight all of the efforts that your agency has made to promote community based housing options for people with disabilities and your success in implementing the MFP rebalancing initiative.”

“Please submit in writing, by August 31, 2007 details about how your agency…”


HUD References PIH Notices regarding disability laws:

• Notice 2002-01-Section 504 and accessibility compliance for people with disabilities• Notice 2003-31- Fair Housing Act of 1988, Section 504, the ADA, Architectural

Barriers Act.• Notice 2004-13 - Tracking vouchers for special populations on Form 50058

(vouchers for people with disabilities).• Notice 2005-5 - New Freedom Initiative • 05/17/2004 - HUD and DOJ Joint Statement• Notice 2006-13 - Compliance with the ADA, Section 504, the Architectural Barriers

Act of 1963, and the Fair Housing Act• 24 CFR Part 100 (FHA) and 24 CFR Part 8 (Section 504)• http://www.fairhousingfirst.org/


People with Disabilities and Reasonable Accommodation


People with Disabilities

Will sometimes asked to be treated differently so that they may have…• Equal use and enjoyment of housing• Equal access and opportunity to engage in PHA

servicesLast year, 66% of all fair housing complaints

were based on disability


Attitudinal Barriers and Etiquette

LANGUAGE MATTERS - People with disabilities are people first• Not handicapped/disabled people (respect)

Presume Competence Presume Ability

• Approach working with people with disabilities as people with different abilities


Attitudinal Barriers and Etiquette

“Discrimination is not a little matter. It’s not just something that happens and you get over it, or you get used to it after a while. Who should get used to being degraded? Who should have to ever get used to that?”


Working with People with Disabilities

Ask questions when unsure of what to do• Respect and courtesy

Reminder: person is not required to disclose a disability • No questions about nature or extent of disability

unless solely for purpose of finding what accommodation will work once one is requested


Communication

Some disabilities affect an applicant’s or participant’s ability to read or understand

TTY/Vision impairments (what are your PHA’s resources here – who do you call?)

PHA must take “appropriate steps to ensure effective communication…” • 24 CFR § 8


Section 504

PHAs must affirmatively ensure that people with disabilities have equal opportunity to participate in PHA programming and receive assistance

A “qualified” person with a handicap:• Must be afforded an opportunity equal to that

afforded to others, and/or• Must be provided housing or benefits as effective as

those afforded to others, and/or


Section 504

It is not necessary to produce an identical result…• The law affords people with handicaps an

equal opportunity to obtain the same result or to gain the same benefit


Section 504

PHAs administering public housing will incur costs to fully comply with the law • Modifications to a unit for a person with a

physical disability• Costs for assisted communication


Section 504

If a PHA employs fifteen (15) or more people it must have a designated employee to coordinate compliance with Section 504 and…• PHA must adopt grievance procedures that

incorporate due process standards to provide for resolution of complaints (24 CFR § 8.53)


Fair Housing Act - Definitions

Person with a disability (handicapped):1.Has a physical or mental impairment which

substantially limits one or more of such person’s major life activities; or

2.Has a record of having an impairment; or3.Is regarded as having such an impairment


Disability

(1) Substantially limits one or more of the major life activities…• Caring for one's self, performing manual

tasks, walking, seeing, hearing, speaking, breathing, learning, and working


Disability

(2) A record of such an impairment…• Person who has a history of an impairment

that substantially limited a major life activitysuch as someone who has recovered from an

impairment includes persons who have been misclassified

as having an impairment


Disability

(3) Being regarded as having an impairment…• Person is treated as if he has an impairment

Perception test: if PHA refused to serve the person because it perceived that the person had an impairment • Remember: we presume competence!


Excluded Under FHA Current drug users When alcohol use interferes with the rights of

others A person with a disability that poses a direct

threat or substantial risk of harm to others


Who Determines Disability Status


Disability - 3 DefinitionsABC…Easy as…123


Reasonable Accommodation Disability Definition

1.FHA, Section 504, ADA:(A) A physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) A record of such an impairment; or (C) Being regarded as having such an impairment


HUD’s Definition of Disability

2. HUD’s Definition of Disability (24 CFR 5.403):(A) Person meets the Social Security Administration definition of a person with disabilities as defined in 42 U.S.C. 423; or(B) Person has a physical, mental or emotional impairment that:

is expected to be of long-continued and indefinite duration; substantially impedes their ability to live independently; and is of such a nature that the ability to live independently could

be improved by more suitable housing conditions; or(C) Person has a developmental disability as defined in the Developmental Disabilities Assistance and Bill of Rights Act of 2000: “A severe, chronic disability that…


HUD Definition of “Disabled Family”

3. Disabled family means a family whose head, spouse, co-head, or sole member is a person with disabilities 24 CFR 5.403


HUD Definition of “Disabled Family”

Covers PHA eligibility for programs serving persons with disabilities • mixed population, preferences, special vouchers

Rent calculation deductions• disabled family $400, medical expenses

People with disabilities (HUD def) – disability assistance expenses


HUD Disability - 3 Definitions

Your verification forms must reflect these different definitions• Meaning: different verification forms

necessary for reasonable accommodation versus disability status for HUD program eligibility and rent calc deductions


Reasonable Accommodation


Short Version of RA

1. Was an accommodation requested?2. Is this a person with a disability?3. Nexus between disability and the specific

request?4. Is the request reasonable?5. Is RA in your application, occupancy, recertification

and termination notices?



Three most important words: document, document, and document.

From moment applicant or occupant requests an accommodation…• a paper trail must be created documenting

dates, times, conversations and paperwork exchanged


Don’t Treat Differently Unless They Ask

In each case,

participant with

disability must ask for

accommodation

before PHA treats

them differently


Mini-Procedural List

PHA should have written procedures:• Notification of all applicants and participants – when?• Standardized forms (live-in aide documentation)• Training front line staff – such as reception staff• PHA staff responsible for receiving request• PHA staff who oversees and reviews verification• Decision-making process

Ex. Who determines if a RA is an undue administration and financial burden? How is this documented? Where?


Mini-Procedural List

PHA should have written procedures:• Time periods for decision and implementation• Right of appeal/hearing processes• Handling confidential information

What is a “need to know” basisWhat happens when medical records or detailed

disability information is received by the PHA?


Reasonable Accommodation Process

• Qualify requestor as eligible to request an accommodation Broader definition for reasonable accommodation

• A NEXUS: Person must show limited access to the program due

to disability and the requested accommodation will remove that

limitation


Request Starts Process

ART OF THE REASONABLE ACCOMMODATION CONVERSATION:• Process may involve fluid negotiations on a

case-by-case basis• PHA may offer alternative options• Document from the beginning



1. What is the barrier to equal access or meaningful access to housing that this person is facing?

2. What kinds of accommodations will provide requestor with full use and enjoyment of the premises or program?

3. What accommodations will alleviate the effects of the disability on housing?


Treat Each Case Individually**

Treat each case on individual merits Requestor’s choice accommodation should be

carefully considered Not legit reason for denial: floodgates will

open (they will all want it)


PHA Can Not Ask If person has a disability (unless determining

qualification for program or type of development)

Nature or extent of disability Any question requiring waiving or disclosing

medical condition or history Can’t require tenant be able to live independently


Consideration of Reasonableness – Reasons to Deny


Consideration of Reasonableness

Maria receives SSI, she requests that she is moved from her unit near the elevator to a unit at the end of the hall where it is quieter.• PHA decision is:________?



Yan uses a wheelchair. Parking spaces were recently re-assigned after expansion of the parking lot in her development. Her new spot is much further from her unit. She requests a handicap parking spot.• PHA decision is______?



Carl is deaf and lives public housing. He requests a live-in aide and a larger unit size so that the live-in aide may have a bedroom as a reasonable accommodation.• PHA decision:_____?


Denying Requests

Requests for accommodations are not reasonable if • They impose undue administration and

financial burden on PHA or • The request fundamentally alters the nature of

PHA work


Determining Undue Burden

Determination of undue burden made on case-by-case basis, looking at factors such as:• Cost – document cost analysis!• Financial resources of the PHA (overall)• Benefits that the accommodation would

provide to the requester• Availability of alternative accommodations


Fundamental Change

• Fundamentally alters the nature of PHA work…

• a substantial change in the primary purpose or benefit of a program or activity

• Requesting supports outside housing services• Is person requesting social services?• Person requesting nonpayment of rent/no inspection?• Removing a load bearing structure?


Direct Threats

The assessment should consider: (1) the nature, duration, and severity of the risk of

injury; (2) the probability that injury will actually occur; and (3) whether there are any reasonable accommodations that will eliminate the threat.

OBJECTIVE DECISION


Requirement to Keep Confidential

Legal Aid calls to talk about Mr. Jones’ denial of a reasonable accommodation request…• Do you have a release to talk with legal aid or

another advocate? Have you talked to your staff about what

confidentiality really means?


Live-In Aides Screening your aides? Verify the need for an “aide” versus a “helper” Live-in Aide Criteria and Live-in Aide Housing

Agreement Live-in aide signs addendum making clear:

• Only for employment/no property interest in unit• Family is accountable for any lease violations by

the live-in aide


Service Animals

May the PHA choose to require animals to have formal training or certification in order to be considered service animals? NO (unless?)

Language: Companion animals, emotional support animals, therapy animals, assistance animals (make it easy!)• All animals could be support animals…


Learning Activities


Hate Crimes

San Francisco Housing Authority (DOJ)• HA had “knowledge of harassment incidents, but

failed to take reasonable steps to protect its tenants from this harassment, as required by law”

• Knowingly tolerated harassment of residents on the basis of race, color, religion, and national origin

• $180,000 plus attorneys fees plus new staff hiring


Hate Crimes

July 2007 - Connecticut Commission on HR• Private Landlord order to pay $15,000• A landlord has an obligation to get involved

when his tenant is being harassed by another tenant- especially if that tenant is victimized by incidents of a racial nature


Sexual HarassmentCovered under the Fair Housing Act1. Quid Pro Quo Sexual Harassment (“Something

for Something”)• A person in a position of power demands sexual

favors in exchange for perks or to live in an apartment or to fix the sink or threatens eviction if sexual favors are not performed

.


Sexual Harassment

2. Hostile Housing Environment• Photos, comments, and physical touching of

a sexual nature and/or unwelcome and unsolicited requests for sex have made tenancy or the housing search less desirable


Sexual Harassment

In United States v. Wones (D. Minn. 2006), a landlord engaged in unwelcomed sexual touching of and/or intercourse with female tenants, made unwelcome sexual advances• $352,500 to 20 identified aggrieved

persons, as well as a $35,000 civil penalty• FHEO, DOJ, National Fair Housing Adv


Familial Status Discrimination

The Housing for Older Persons Act of 1995 (HOPA)• “Housing for older persons” exception to familial status

protection under Fair Housing• Public housing program money is not “housing for older

persons money”• NOTE: Designated housing for elderly families and

disabled families in the public housing program cannot exclude children


Limited English Proficient Persons (LEP)


LEP

Title VI of the Civil Rights Act of 1964• No person in the US, “shall on the ground of

race, color or national origin, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”


LEP

Executive Order 13166 (Aug 2000)• Affects all federal agencies and recipients

HUD published proposed LEP Guidance Dec 19, 2003 in Federal Register

HUD published final LEP Guidance Jan 22, 2007 in Federal Register

HUD Website FAQs


Limited English Proficient Persons (LEP)

Persons who, as a result of national origin, do not speak English as their primary language • Limited ability to speak, read, write, or

understand English• Under Title VI and LEP Guidance may be entitled

to language assistance with respect to a particular service, benefit, or encounter


LEP and Citizenship

U.S citizenship does not determine whether a person is LEP• Title VI applies to citizens, documented non-

citizens, and undocumented non-citizens• A person who is a citizen may be LEP • A person who is not a citizen may be fluent in

English http://www.hud.gov/offices/fheo/promotingfh/lep-faq.cfm


LEP - English as the Official Language

Statement: But…English has been declared the official language in my state or city!

Response: A HUD recipient is still subject to federal nondiscrimination requirements, including Title VI requirements as they relate to LEP persons.


Very Short Version - LEP

4-factor analysis• No “one-size fits all”• But doing nothing is a sure loser

PHAs MUST take “reasonable steps” to provide meaningful access to programs

Reasonable steps may cease to be reasonable where costs imposed substantially exceed benefits


Very Short Version-LEP

Civil Rights Reviews – HUD/DOJ Meet with other federally funded agencies in

your community Must use “hard” numbers to show cost

analysis Will need to look at current tenants as well as

eligible populations in your community


LEP - LAP

Language Assistance Plans• “What immigrant nonprofit groups is the PHA

working with to meet local immigrant group needs?”

• The Housing Authority must show good faith efforts to help LEP people come forward

• Have posters http://www.lep.gov/govt.html hanging in all PHA offices.


LEP - LAP

• Find out what local government bodies have done or are planning to do regarding LEP.

• Include your participants and tenants in your LEP planning. Resident service stipends for residents able to

translate during briefings or informal CHA meetings Could consider participation of a public housing

tenant who provides assistance with translation as community service hours


LEP – HUD FAQ

May recipients rely upon family members or friends of the LEP person as interpreters?

Answer: Generally, recipients should not rely on family members, friends of the LEP person, or other informal interpreters….• Communication cost burdens are on PHA• “Please bring an interpreter…” (No Good)


Question Time

See the NMA LEP newsletters! Join Us September 24, 25, 2007 Anaheim, CA

• NEW Fair Housing Specialist (certification exam) No one was born knowing Fair Housing laws and

regulations…• ASK • [email protected]


Thank you!

Upcoming Lunch ‘n’ Learns: August 3rd – Reasonable Accommodation for

Persons with Disabilities August 17th – Navigating and Using IMS/PIC

Webinar! August 24th – Asset Management Update

Slide #1 © 2007 Nan McKay & Associates Emily Wilcox Fair Housing Issues for Public Housing Managers...

Documents

Transcript of Slide #1 © 2007 Nan McKay & Associates Emily Wilcox Fair Housing Issues for Public Housing Managers...