Disabled Resident Requests: Handling Them Takes Skill
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Disabled residents make requests. Residents request both reasonable modifications and reasonable accommodations. You need to know the difference between a modification and an accommodation. You need to know how to properly handle and document these requests. Clients constantly seek our advice on these issues. We will discuss recent Fair Housing accommodation and modification scenarios faced by Firm clients. We will use these real life scenarios to illustrate the rules and how to apply the rules to particular cases.
Let’s review some general principles. Disabled residents are entitled to make requests for reasonable modifications and accommodations. Modifications and accommodations allow disabled residents to use and enjoy the community on an equal basis with non-disabled residents. A modification is a physical modification to the resident’s unit or the common areas. An accommodation is an exception to a rule, policy, practice, or services. Generally, the resident must pay for modifications. Generally, the community must pay or bear the expense of accommodations.
Rhonda Resident informs you that her infant daughter, Betty Baby, is having trouble sleeping. Betty Baby can’t sleep because of noise and secondhand smoke caused by neighbors. Betty Baby’s doctor writes the community. Doctor states that Betty Baby’s current living conditions are unhealthy. Secondhand smoke is a “significant” health hazard. Experts have described a link between secondhand smoke and SIDS (Sudden Infant Death Syndrome). Baby Betty also can’t sleep because of the noise and has become irritable. Doctor states “he would appreciate the community’s willingness to allow Rhonda to break the lease.”
Lease provisions are rules. Rhonda has made a request for a reasonable accommodation. She has requested an exception to a rule, policy, practice, or service. Rhonda can’t leave without breaking her lease. Rhonda will be required to pay the lease break fee if she breaks. Rhonda has made a request for an exception to the community’s lease break rule. In appropriate circumstances, residents can ask for an exception to a lease provision, which requires residents to pay lease break fees.
Betty Baby’s disability is not obvious. Betty Baby’s doctor has not adequately informed the community as to whether Baby Betty is disabled under the Fair Housing laws. Betty Baby’s need for the accommodation is also not readily apparent. Abby Alert Manager may and does request further information as to Baby Betty’s disability. Abby requests this information by asking Rhonda to complete a reasonable accommodation request form. The form is completed and submitted to Baby Betty’s doctor. The form asks Baby Betty’s doctor whether or not Baby Betty is disabled within the meaning of the Fair Housing laws. Baby Betty’s doctor answers no.
Based on the doctor’s answer, the property again responds to Rhonda’s request in writing. Abby advises Rhonda that unfortunately at this time the property is denying Rhonda’s request to break her lease without penalty because Baby Betty is not disabled within the meaning of the Fair Housing laws. Abby tells Rhonda that the property is willing to maintain a dialogue with Rhonda on this issue. If Rhonda submits further information, the property will consider any additional information and reevaluate Rhonda’s request.
If a resident’s disability is not obvious, your inquiry should be limited to whether the resident is disabled under the Fair Housing laws. You may not and should not ever ask specific questions regarding the resident’s disability. You may determine that a resident is not disabled, but if and only if, you have requested the resident to provide information and resident has not provided that information. However, even in this case, you should still communicate with the resident in writing regarding the denial. Inform the resident that you have not heard from them so the request is being denied for this reason. However, you are not permanently denying the request. You are open to a dialogue on the subject. You will promptly consider any additional information that the resident provides in the future.
You should never determine that a resident’s condition or illness is not considered a disability under Fair Housing laws. Leave that to others, mainly the doctors or other health care providers. But, keep in mind that the information or documentation doesn’t necessarily need to come from a doctor. A peer support group, a non-medical service agency, or a reliable third party familiar with the resident’s disability can document a resident’s disability. In some instances, even a credible statement from the resident themselves is sufficient. You should never automatically deny a resident’s request. Even if the resident is not disabled and obtaining more information will not change this fact, you should never automatically deny the request without giving the resident an opportunity to submit further information.
Let’s change the facts of Betty Baby’s case to illustrate this point. After Betty Baby’s parents make the request, Abby says, “That’s the most ridiculous thing I’ve ever heard. I’ve heard some good ones in trying to get out of a lease, but this one takes the cake. Betty Baby is not disabled; all babies have trouble sleeping at night.” Abby denies the request based on her personal views of the situation and never allows Rhonda Resident to submit further information.
Three months later, Baby Betty is in the hospital. Baby Betty has an extremely rare blood disorder that is aggravated by secondhand smoke. Rhonda’s doctor would have informed the property about this condition if Abby had allowed Rhonda to submit more information. You know the rest of the story. Rhonda hires Sponge Bob Lawyer Pants to sue the property for big money. Similar to many real life scenarios that we deal with regularly, the lawsuit could have been avoided if Abby would have allowed the resident to submit further documentation.
Here is another scenario. According to your observation, Tommy Tenant has some trouble walking and only occasionally uses a cane. One day, Tommy’s Uncle Albert is in the leasing office to pay Tommy’s rent. Albert says, “Tommy’s been disabled since he was hit by a car in 1970. It sure would be nice if there was a handrail on those stairs coming down from Tommy’s building to the main sidewalk.” Sammy Sleepy Manager says, “Yes, that would be really nice.” Sammy brings it up with Ronnie Regional Manager at a manger’s meeting. Ronnie tells Sammy, “It’s a good thing that Tommy didn’t ask, because we have 12 buildings. If we put them in at Tommy’s building, we would have to put them in at all of the buildings. We’re not going to do that.” Nothing happens. Eight months later, Tommy files a Fair Housing complaint against the property for denying his request for a reasonable modification.
Tommy’s case illustrates the fact that a request does not have to come from the resident. The request can be made by anyone associated with the resident. Nor do requests for modification have to take any particular form. The request has to put you on notice that the resident is asking for the modification. Uncle Albert’s statement that it would be nice to have a handrail does not specifically request a modification. However, why leave the possibility open for the Colorado Civil Rights Commission to conclude that the statement was a request for a reasonable modification? Further, because Sammy Sleepy Manager didn’t follow up on the statement, Sammy has left the door wide open for Uncle Albert to lie about the exchange. Sammy will admit that Uncle Albert brought the subject up. Once Sammy has admitted this, which sounds true to you: a disabled resident’s uncle raises the handrail issue by stating that it would be “nice to have one,” or a disabled resident’s uncle raises the handrail issue by specifically requesting that one be installed? Not responding to a request is a denial. Not responding to a request promptly is also considered a denial.
Sammy should have been much more proactive in handling this situation. When the issue was raised, Sammy should have asked Uncle Albert if he was asking for a handrail to be installed. If Uncle Albert said yes, Sammy should have granted the request in writing. Sammy should not request further information from Tommy because both Tommy’s disability and the need for the modification are readily apparent. Uncle Albert is someone intimately familiar with Tommy’s condition. Uncle Albert is a credible third party who informed Sammy that Tommy has been considered disabled for over 35 years. Sammy’s written documentation should include the date of Tommy’s request and the fact that the request was promptly granted. Sammy could, but does not necessarily have to, make granting the request conditional on Tommy paying the cost.
Tommy’s request should not have been denied based on Ronnie Regional’s concern that the property would have to install handrails on all 12 buildings if Tommy’s request was granted. Granting a request for a reasonable accommodation or modification does not set a precedent. Requests are factually specific and are determined on a case-by-case basis. Never deny a request based on the logic that “if I do it for this resident, I will have to do it for all residents.” A particular resident is only entitled to a modification or an accommodation if they legally qualify based on the facts and circumstances of their individual case.
These real life scenarios illustrate the key rules in handling disabled resident requests. Numerous people other than the resident can make requests. The resident does not have to make the request. Only residents that are disabled under the Fair Housing laws are entitled to modifications and accommodations. If the resident is obviously disabled, you cannot request further documentation regarding the resident’s disability. If the resident is not obviously disabled, you may and should request further documentation regarding the resident’s disability. If the need for the resident’s request is not obvious, you can ask for more information. Disabled resident requests need not take any particular form. Granting a disability request does not set a precedent. Written documentation of disability requests is critical. Even if a disability request is denied, you should always clearly communicate to the resident that you are willing to discuss it further (maintain a dialogue), and that you will always promptly consider any additional information that the resident provides.
In today’s sue-happy world, handling disabled resident requests is a critical skill—a skill that you cannot afford to be without. Make sure that you have this skill. Attend the Firm’s Fair Housing workshops. Firm-sponsored educational workshops are free for all Firm clients. The Firm also regularly teaches Fair Housing at the Apartment Association of Denver, the Apartment Association of Colorado Springs, and for other multi-family professional trade organizations. If you don’t have this skill, please feel free to contact us regarding any disability request.