News

How to Properly Apply the HUD Minimum Rent Requirements

Owners participating in HUD Multifamily Housing Programs (MFH) are sometimes unsure of exactly how to apply HUD s minimum rent rules. HUD occupancy regulations require all households (except those with hardship exemptions) to pay a monthly rent of at least $25 [HUD Handbook 4350.3, par. 5-26(D)]. The minimum rent does not apply to Section 202 PAC, Section 202 PRAC, Section 811 PRAC, RAP, Rent Supplement, Section 221(d)(3) BMIR, or the Section 236 program.             When implementing the minimum rent rule, there are four basic requirements that owners must follow: Deduct the utility allowance (UA) from the minimum rent. The "minimum rent" is the "total tenant payment," which is rent plus the UA [4350.3, par. 5-26(D)(2)]. For example, assume a UA for a two-bedroom unit of $100. 30% of the resident s adjusted income is $15. The minimum rent is $25. $25 minus $100 = $75; the owner will send a utility reimbursement check of $75 to the tenant.Do not impose a minimum rent if a household is eligible for a hardship exemption. Households qualify for the exemption if they have a "financial hardship." 4350.3, par. 5-26(D)(3) states that a household qualifies for the exemption if they "would be evicted if the minimum rent requirement was imposed." Any household that cannot afford the minimum rent - for any reason - could be evicted. So, any household that cannot pay the minimum rent is exempt. HUD rules provide four specific circumstances for the exemption:The household lost eligibility for - or is awaiting an eligibility determination for - a federal, state, or local assistance program;The household would be evicted if the minimum rent was imposed;The household s income has decreased because of changed circumstances, including the loss of employment; orA death has occurred in the household.Households may not be evicted while the request for a hardship exemption is being considered. During this period of time, the minimum rent must be suspended. If a hardship is temporary, the household is exempt from minimum rent for 90-days but will have to repay the back rent. At the end of the 90-day period, the household must pay the minimum rent, retroactive to the initial date of the suspension [4350.3, par. 5-26(D)(3)(b)(2)]. Only households subject to minimum rent are eligible for hardship exemptions. Other households unable to pay rent due to income reductions should request an interim recertification.

Major Fair Housing Settlement in Housing Accessibility Case

The Department of Justice (DOJ) has settled a major fair housing and American with Disabilities Act (ADA) lawsuit against Mid-America Apartment Communities, Inc., and Mid-America Apartments, LP for $11.3 million to resolve allegations that these owners failed to build 50 apartment complexes in six states and the District of Columbia in accordance with the accessibility features required by the Fair Housing Amendments Act of 1988 and the ADA.             Under the agreement, the defendants must spend $8.7 million to retrofit 36 properties that they currently own. This is in addition to $2.4 million in retrofits that had been made after the DOJ filed suit. The defendants must also pay $175,000 to compensate victims and up to $25,000 for retrofits at properties they no longer own. They must also undergo training, construct any new multifamily housing in accordance with the applicable laws, and provide periodic reports to DOJ.             Most multifamily housing built for first occupancy after March 13, 1991 is required to have basic accessibility features. Public spaces (e.g., parking lots and leasing offices) built for first occupancy after January 26, 1993 are required to comply with ADA accessibility features.             Primary violations in housing developed by the defendants include: Routes to building entrances had steps and excessive slopes;Electrical outlets and thermostats were beyond the reach of wheelchair users; andKitchens and bathrooms had insufficient space for persons in wheelchairs to maneuver. Owners and managers of multifamily housing built for first occupancy after March 13, 1991 should fully understand the required design elements for these projects. These requirements apply to buildings with four or more units. In these buildings, all ground floor units must be accessible and if the building has an elevator, all units must be accessible. There are seven basic requirements that must be met: 1. There must be at least one building entrance on an accessible route; 2. Common and public use areas must be accessible and usable; 3. Buildings must have usable doors; 4. There must be an accessible route into and through the covered apartments; 5. Light switches, electrical outlets, thermostats and other environmental controls must be in accessible locations in covered apartments; 6. Bathroom walls in covered apartments must be reinforces for possible installation of grab bars; and 7. Kitchens and bathrooms in covered apartments must be usable.

HUD Resumption of Multifamily Production and Asset Management Activities

The HUD Office of Multifamily Housing (MFH) issued two memorandums on February 1, 2019 outlining the departments plan for prioritizing the backlog of work from the shutdown. One memo deals with the resumption of multifamily production activities and the other with asset management activities. Production Activities HUD is prioritizing its production activities as follows: Identify and prioritize work on loans that have been issued a firm commitment and are in a position to reach initial or final endorsement, meaning the complete closing package was submitted prior to 12/21/18, with only minor corrections necessary to close. Priority will be given to loans that have critical external deadlines such as LIHTCs, rate lock extension fees, and purchase sales agreements with substantial penalties.Conduct an inventory of applications currently in process that were received prior to the shutdown. Applications that were submitted during the shutdown will be date stamped 1/28/19 (the end of the shutdown) and assigned to underwriters for future processing. These assignments should be made by 2/5/19.Process applications that were in process prior to the shutdown. HUD will begin with applications that are close to issuance of either a commitment or an invite letter as determined by the HUD Regional Office.Address applications that were in mid-process or received immediately prior to the shutdown.Applications that were submitted during the shutdown. Lenders may continue to submit new applications for mortgage insurance. New concept meetings will not be scheduled until 2/19/19. Concept meetings already scheduled may be conducted at the discretion of the HUD field office. Third party reports (appraisals, market studies, environmental reports and CNA submissions) whose expiration dates have lapsed pending submission of an application due to the shutdown may have the expiration waived at the discretion of the Regional Office. For the foreseeable future, it is likely that lenders, borrowers, and other affected program participants will experience longer than normal application processing times. HUD expects to issue another update on development processing timing in a few weeks. Asset Management Activities HUD asset management priorities are as follows: Work related to tenant health and safety, including contract renewals and subsidy payments. HUD is currently allocating new funding provided by the Continuing Resolution (CR) to support the renewal of expiring Section 8 Project Based Rental Assistance (PBRA), Section 202 and Section 811 contracts. Additional funding is now available for ongoing Section 8 PBRA contracts to ensure timely payments through April 1. There are some properties with expiring contracts whose renewals were not fully processed by February 1. If affected properties have HUD-controlled reserves, loans may be requested from the reserve accounts. Requests may be sent to the assigned incoming field email box and must include a completed HUD-9250, the current balance in the account, the withdrawal amount, and a statement certifying that released funds will be reimbursed to the reserve account once subsidy payments are received.Meeting critical external deadlines, such as servicing actions in connection with FHA closings, and property sales that require HAP Assignment processing or 2530 clearance. If your property is in this category, you should submit a request for HUD to prioritize your action via the assigned incoming field email box.Other requests such as standard reserve for replacement withdrawals will be processed in the order received. Questions should be directed to assigned multifamily field offices as shown below. The HUD HQ contact is Brian Murray, Acting Director of the Office of Asset Management and Portfolio Oversight at Brian.A.Murray@HUD.gov or 202-402-2059. Office                   Email Atlanta                  Atl.incoming@HUD.gov Baltimore               BAL.incoming@HUD.gov Boston                  Bos.incoming@HUD.gov Chicago                 Chi.incoming@HUD.gov Detroit                  Det.incoming@HUD.gov Denver                  Den.incoming@HUD.gov Fort Worth             MFSoutwest@HUD.gov Jacksonville           Jax.incoming@HUD.gov Kansas City           MFSouthwest@HUD.gov Minneapolis            Mn.incoming@HUD.gov New York              NYC.incoming@HUD.gov San Francisco         SF.incoming@HUD.gov

Affordable Senior Housing - Demand Exceeds Supply

The Harvard Joint Center for Housing Studies recently published Housing America s Older Adults 2018. A highlight of the report is that over half of U.S. households are now headed by someone age 50 or older. This indicates that the living arrangements, financial resources, health, and functional abilities of those households will present serious challenges in the years to come. Baby boomers will soon begin turning 80 and will increasingly need more accessible and supportive housing than is either currently available or in the pipeline. In addition, many households in their 50s and early 60s are not financially prepared for retirement. A major reason for this is that fewer of these households are homeowners or have built the wealth that prior generations had by the same age. Other notable trends in the study: Many older Americans are burdened by housing costs. Nearly a third of households age 65+ (9.7 million) pay at least 30% of their income for housing, and more than half of these pay over 50%.There is a large wealth gap between older homeowners and renters. The median net worth of homeowners age 50-64 was $292,000 in 2016 - almost 60 times that of renters of the same age. The importance of homeownership in wealth building cannot be overstated. It is the single most valuable asset for most seniors and often enables a comfortable retirement.While median incomes in the last five rose for older adults, gains were not evenly distributed. From 2011 to 2016, median incomes rose 9.6% for those 65 to 79 and 5.2% for those 80 and older, but people age 50 to 64 saw an increase of only 2.6%.There is an historically high gap in homeownership rates between older whites and blacks. 81% of white households age 50+ own their homes compared to 57% of older black households. This 24% gap is the largest since record-keeping began in 1976.Growing numbers of older adults live in low-density areas. Between 2000 and 2016, the share of older adults living in low-density census tracts in 95 of the 100 largest U.S. metropolitan areas rose from 24% to 32%, an increase of almost six million adults. Providing services and transportation alternatives is more difficult in locations with more dispersed housing.There are not enough accessible units to serve the growing number of those with physical challenges. In 2016, 17% of households age 50+ included someone who had difficulty climbing stairs or walking (including 43% of those age 80+). Yet, only 3.5% of homes had the three key accessibility features: (1) single-floor living; (2) no-step entries; and (3) extra wide halls and doors.Many of the most vulnerable live alone. The share of households age 80+ that are single - person is now 57%. However, among renters of the same age, it is 77%. Single person households in need of support or care must rely on non-resident or paid caregivers, yet also have lower incomes than larger households. What this study makes clear is that there is currently a lack of adequate housing for seniors - especially affordable housing, and, in years to come, the need will grow. Unfortunately, the combination of greater numbers of lower-income older households and limited federal subsidies will only increase the gap between need and supply. This will result in more older adults being forced to cut back on necessities in order to pay for housing. At this point, there is no indication that there is the political will - or even recognition of the problem - to begin developing a long-term solution. While only a coordinated response from the nation s public, private, and non-profit entities will begin to address this issue, there is clearly almost no action at the public policy level. Until our elected officials begin to recognize and deal with this growing crisis, the private and non-profit sectors will have to find innovative ways to at least begin to address this growing problem.

Exceptions to Criminal Screening Policies as a Reasonable Accommodation

A court case in early 2018 provides a case study in why a company s criminal screening policies must sometimes be waived as a reasonable accommodation for a disabled person. The case was Simmons v. T.M. Associates Management, VA - February 2018. Facts 1. A community resident wanted her adult son to move in with her; 2. It was alleged that the son had a misdemeanor conviction for indecent exposure and the community denied his application on that basis alone; 3. The son asserted that his mental illness caused the act resulting in his conviction; 4. The mother asked the complex for an accommodation and reconsideration of the decision due to the mental disability; 5. The community refused, arguing that the Fair Housing Act (FHA) does not require a reasonable accommodation for persons convicted of a crime. The community argued that housing providers may issue blanket denials of housing to those convicted of crimes, regardless of an applicant s disability status - even if the crime derived from the disability. This was an elemental error in the respondent s argument and indicates a significant lack of understanding relative to fair housing law. While the FHA does not require an accommodation when the person requesting the accommodation represents a clear danger to the property, residents, or staff, there is no blanket exclusion from reasonable accommodations for persons with criminal records. Finding The court denied the community s request to dismiss the case. Reasoning 1. While the FHA does not always require an accommodation for a crime committed due to a disability (and certain drug and sex offender crimes need never be accommodated0, each case must still be considered on its own merits. 2. The son s misdemeanor conviction for indecent exposure does not make him a direct threat to the health and safety of others. Lesson s from this Case The primary lesson to be learned from this case is that owner s/manager s cannot have a blanket policy of rejection of either applicants or live-in aides based on criminal records.

Reasonable Accommodation Requests for Assistance Animals - Detailed Guidance

Dealing with Reasonable Accommodation Requests for Assistance Animals             One of the most contentious areas of fair housing law is the verification of requests for assistance animals - especially "emotional support animals," or "ESAs." This article is intended to address issues regarding the "verification" of the need for assistance animals in a residential setting, particularly those animals that provide emotional support or other seemingly untrained assistance to disabled individuals.             Much of the guidance and many of the recommendations contained herein are based on guidance from the Virginia Real Estate Commission and Fair Housing Board. Having reviewed this guidance in the context of federal fair housing law and relevant court cases, I am confident that the recommendations made here comply with the spirit and intent of federal fair housing law. Having said that, state and local fair housing laws can apply their own standards and before implementing the recommendations made here, housing operators should consult counsel that is familiar with state and local fair housing requirements.             Finally, the statements provided herein are designed to provide accurate and authoritative information with regard to the subject matter covered. It is provided with the understanding that no legal opinion is being provided and is based solely on the information that was available for review. Introduction             When federal fair housing law was amended in 1988 to include disability as a protected characteristic, legislators created targeted protections for disabled individuals. Disabled persons were given two specific rights under the law: (1) the right to seek reasonable accommodations (changes to rules, practices, policies, etc.), and (2) the right to modify (physically alter the premises) in order to ensure equal opportunity to use and enjoy the housing.             In recent years, one of the most common requested accommodations is the allowing of assistance animals in properties that do not allow pets. Service animals - such as dogs that guide visually impaired persons, alert hearing impaired persons to sounds and alarms, or perform tasks for mobility impaired persons - have been around for a long time and are familiar to most persons. Increasingly however, requests are being made for "emotional support animals," or "ESAs." These are animals that provide emotional support, comfort, or companionship to a person with a mental impairment. In many cases, these animals have no formal training, and when coupled with persons with "invisible" impairments, verification of the need for the animal can be challenging.             There is little doubt that some individuals "game the system," and abuse the legal protections in place for disabled persons, by fraudulently claiming an "invisible" impairment and declaring their pet to be an assistance animal. Over the past few years, there has been a rapid growth in the number of websites and other third-party sources offering assistance animal "certifications" without any first-hand knowledge of whether the animal provides a needed service or support, or even if the individual making the request is disabled.             Historically, housing providers have been hesitant to question such verifications - especially when an individual presents an assistance animal "certification" obtained from an online source - without the risk of inviting a discrimination charge. However, recent court cases and state interpretations for fair housing law lead me to the conclusion that this is not the case. The primary purpose of this article is to analyze both fair housing and health profession laws in an attempt to explain why a reasonable verification of the need for ESAs is both permitted and encouraged. Background             In the late 1980s, Congress amended the Fair Housing Act (FHA) to prohibit discrimination against persons with disabilities in residential housing transactions. To ensure full and equal access to housing, the FHA was further amended to provide disabled persons with additional protection in the form of requiring reasonable accommodations "in rules, practices, policies, or services when such accommodations may be necessary to afford such person an equal opportunity to use and enjoy a dwelling." (See U.S.C. 3604(f)(3)(B)).             A person is disabled under the FHA when the person: (1) has a physical or mental impairment that substantially limits one or more of their major life activities (courts have ruled that a "major life activity" is an activity that is of central importance to most persons daily lives); (2) has a record of having such an impairment; or (3) is regarded as having such an impairment. "Mental impairments" include, but are not limited to, "emotional or mental illness autism, epilepsy and emotional illness." [See 24 CFR 100.201]. Thus, an accommodation aimed at ameliorating the effects of a mental impairment may be required where it is shown that the accommodation is reasonable and necessary to afford a person with a mental or emotional impairment an equal opportunity to use and enjoy a dwelling.             The "mental impairment" section of the law is critical because so-called "invisible" impairments are often at the center of reasonable accommodation requests for assistance animals. A key to understanding why housing providers must at times permit assistance animals for invisible impairments is an understanding of the difference between an "assistance" animal and a "service" animal. Service Animals & Public Accommodations             The federal Americans with Disabilities Act, as amended ("ADA"), and counterpart state laws, prohibit discrimination against people with disabilities (physical or mental) in employment, the provision of public services, and in public accommodations. The laws focus, in part, that disabled persons have equal access to places of public accommodation (e.g., hotels, shopping centers, restaurants, movie theatres, sports venues, etc.) in all areas otherwise open to the public. In the housing context, the ADA generally applies to apartment community parking lots and leasing offices, since these areas are open to the public, but not to the apartments themselves.             Public entities covered by these laws must allow disabled persons to be accompanied by a service animal, narrowly defined as an animal trained to assist persons with visual, hearing, or mobility impairments [see 28 CFR 36.104]. Under the ADA, "the provision of emotional support, well-being, comfort, or companionship" is not, by itself, sufficient to be classified as a service animal [see 28 CFR 35.104].             When evaluating a reasonable accommodation request, a public accommodation may verify that an animal is required because of a disability (although no inquiry may be made about the nature of a disability) and ask what tasks the service animal has been trained to perform. In some states, including Virginia, it is illegal for a person to falsely represent an animal as a service animal in order to gain access for the animal to a public accommodation. Assistance Animals, Private Homes, & Fair Housing             While the ADA deals with "public" accommodations, the FHA focuses exclusively on accommodations needed by disabled individuals in order to have full and equal access to their home. These laws are much broader and require that housing providers accommodate not only service animals as defined by the ADA, but assistance animals that offer necessary support to disabled persons without regard to training or tasks performed. Therefore, accommodation of untrained emotional support animals, or "ESAs," may be required under the FHA if such accommodation is reasonably necessary to allow a person with a disability an equal opportunity to enjoy and use residential housing. Two important cases in this area are: Janush v. Charities Housing Development Corp., 169 F. Supp. 2d 1133, 1136 (N.D. Cal. 2000), which denied a motion to dismiss a claim to permit keeping birds and cats as emotional support animals because "plaintiff has adequately plead that she is handicapped, that defendants knew of her handicap, that accommodation of the handicap may be necessary and that defendants refused to make such accommodation "; andFair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778 F. Supp. 2nd 1028, 1036 (D.N.D. 2011), which held that "the FHA encompasses all types of assistance animals regardless of training, including those that ameliorate a physical disability and those that ameliorate a mental disability." When evaluating a reasonable accommodation request under fair housing, a housing provider may verify that the requester meets the definition of disabled (although it cannot inquire about the specific nature of a person s impairment) and may ask how the animal will allow the person with a disability to use and enjoy the dwelling. Assistance Animals & Accommodations Case Law             The law makes a clear distinction between public and private spaces with regard to protections for the disabled. During the rule-making process regarding assistance animals and fair housing, the Department of Housing & Urban Development (HUD) found "a valid distinction between the functions animals provide to persons with disabilities in the public arena, i.e., performing tasks enabling individuals to use public services and public accommodations, as compared to how an assistance animal might be used in the home."             In particular, HUD reasoned that assistance animals, including emotional support animals, "provide very private functions for persons with mental and emotional disabilities" that alleviate the effects of such disabilities without any specialized training. As a result, HUD determined that there is a notable difference in the type of accommodation one may need in order to access public venues such as restaurants, shopping centers, etc.) than in the type of accommodation a person with a disability may need in order to have full access and enjoyment of their home.             Federal courts have found HUD s reasoning persuasive in evaluating reasonable accommodation issues under the FHA for private residential housing. In Overlook Mutual Homes, Inc. v. Spencer, an Ohio federal district court weighed whether the FHA imposes a training requirement on an animal in order to be approved as a reasonable accommodation. This case was especially important because it rejected prior cases that imposed an ADA-like training requirement for animals to qualify as a reasonable accommodation. In this case, the court stated, "Simply stated, there is a difference between not requiring the owner of a movie theater to allow a customer to bring her emotional support dog, which is not a service animal, into the theater to watch a two-hour movie, an ADA-type issue, on one hand, and permitting the provider of housing to refuse to allow a renter to keep such an animal in her apartment in order to provide emotional support to her and to assist her to cope with her depression, an FHA-type issue, on the other hand."             Other federal courts have since adopted this position. In the Fair Housing of the Dakotas case noted above, the court denied summary judgment for a housing provider who refused to provide an accommodation to its policy of charging additional fees for an untrained assistance animal. Before reaching its decision, the court reviewed the competing positions on this issue and reasoned that it must necessarily distinguish accommodations for places of public accommodation from those for housing given the type of access a person with a disability needs in order to have full and equal enjoyment of each. Federal courts in Florida and Nevada have reached the same conclusions and determined that ESAs qualify as assistance animals under the FHA.             The clear trend in fair housing case law is to permit reasonable accommodations for untrained assistance animals when a relationship exists between the requesting persons disability and the function or assistance that the animal provides. If the requester is able to show how the presence of the assistance animal ameliorates one or more effects of their disability, such a connection exists, and the accommodation should be granted as "necessary to afford such person an equal opportunity to use and enjoy a dwelling." In essence, there must be a relationship between the person s disability and the function or assistance provided by the animal. However, there is no requirement under FH law that an animal must be trained or "verified" to provide the claimed assistance. Analysis             HUD, the Department of Justice (DOJ), multiple federal courts, and many states have determined that providing an accommodation to allow a disabled person to have full access and enjoyment of their home is different from providing an accommodation to access a public place for a short period of time. Therefore, there is a difference between ADA "service animals" and "assistance animals" for housing purposes and there is no training requirement for assistance animals.             There is no longer any question that animals are proving useful in lessening the effects of mental and emotional disabilities such as anxiety, autism, post-traumatic stress disorder ("PTSD"), etc. Reliable Verification of Disability             Housing providers seeking clarification about third-party verification should redirect their attention away from animal training or certification, which is not only unnecessary, but legally questionable. At the same time, housing operators should not be daunted by the prospect of potential litigation into accepting dubious verifications limited to vague statements of how an assistance animal would benefit the requester. On the contrary, owners and managers should insist on supplemental credible confirmation of the underlying disability. As with any reasonable accommodation request, housing providers are absolutely within their rights to focus first on establishing the legitimacy of the requesting party s disability status as defined by fair housing law. Then, as stated above, the only issue remaining is evaluation of information to determine whether the animal provides assistance that ameliorates the effects of the verified disability.             For example, if a person suffering from PTSD - as confirmed by their treating physician - receives assistance from an untrained dog in the form of emotional support, lessened anxiety, or exiting a building quickly when experiencing a flashback, the housing provider must make exceptions to any pet limitation policies that may normally apply to the housing in question (with no further requirement that the animal be trained, certified, or verified. However, if a prospective tenant or resident fails to provide credible documentation of either a qualifying disability or cannot show a relationship to the claimed assistance from the animal, the housing provider may request additional information from a reliable third party "in a position to know about the individual s disability." Best Practice Recommendations             When seeking verification of a disability or the need for an accommodation, housing providers should only request "reliable disability-related information" that (1) establishes that the person is disabled as defined by the FHA; (2) describes the needed accommodation (e.g., assistance animal); and (3) demonstrates how the requested accommodation is related to and will help ameliorate the effects of the disability. However, there are few (if any) circumstances where a housing provider will require access to an individual s medical records or details concerning the nature or severity of the person s disability. Also, care should be taken to keep the documentation confidential given its personal and health-related nature. Finally, it goes without saying that rules or procedures that unduly restrict the process a person with a disability uses when seeking a reasonable accommodation should be strictly avoided. The imposition of overly strict procedures for requesting an accommodation could dissuade a disabled person from doing so, and the policy itself could be a fair housing violation.             Housing providers should not impose additional deposits or fees as a condition of granting a reasonable accommodation request for an assistance animal. Charging such fees in the absence of significant damage, or based only on unjustified assumptions about an animal, goes against the anti-discrimination nature of the statutes in place to protect persons with a disability. The animal is essentially functioning as an assistive device in such circumstances; so just as a housing provider may not impose a separate deposit for a wheelchair for potential carpet damage, it may not demand upfront money for animal damage that may never occur. Of course, persons with a disability are responsible for any damages actually caused by an assistance animal, and housing providers have the right to seek recovery for damages the exceed normal wear and tear (whether caused by an animal or a wheelchair).             When a housing provider seeks additional information from a person seeking a reasonable accommodation for an assistance animal, I recommend granting a temporary exception to any pet limitation policy pending its submission. This temporary exception may serve to avoid claims that the housing provider refused the reasonable accommodation request. Ultimately, if the person seeking the reasonable accommodation for an assistance animal cannot provide reliable evidence supporting the disability or fails to establish the required relationship between the disability and the assistance the animal provides, then the housing provider may deny the request. Therapeutic Relationships             Determining the "therapeutic" relationship between the tenant requesting the reasonable accommodation and the verifying professional is one of the most contentious areas of fair housing law. The evaluation of a reasonable accommodation request is "a highly fact specific inquiry", as stated in Scoggins v. Lee s Crossing Homeowners Ass n, 718 F.3d 262, 272 (4th Cir. 2013). It demands individual, case-by-case consideration by housing providers. As a result, compiling an exhaustive inventory of "acceptable" documentation (or, alternatively, a list of unacceptable authenticators) for verification purposes is highly inadvisable, if not practically impossible, because a requester must be allowed to submit credible information that may not otherwise appear on a list.             I recommend against limiting the pool of acceptable persons or entities qualified to verify disability status - as well as the imposition of higher or different standards based on the type of disability. For example, limiting verification documentation exclusively to physicians, psychiatrists, or similar healthcare professionals may make it impossible for people with a disability who lack the financial or logistical ability to access standard medical care to obtain the required verification.             However, this does not prevent housing providers from asking verifiers for reasonable documentation of their reliability. The HUD/DOJ Joint Statement on Reasonable Accommodations provides examples of sources considered to meet the "reliable third party" standard. Generally, housing providers may ask that the verifier have a therapeutic relationship with the requester in order to establish their reliability as a "third party who is in a position to know" about the individual s disability.             For disability verification purposes, I recommend the guidance provided by the State of Virginia. A "therapeutic relationship" generally means the provision of medical care, program services, or personal care services done in good faith, in the interest of the person with the disability, by: (1) a mental health service provider as defined in the Code of Virginia; (2) an individual or facility under the rights, privileges, and responsibilities conferred by a valid, unrestricted state license, certification, or registration to serve persons with disabilities; (3) a member of a peer support group that does not charge service recipients a fee, or impose any actual or implied financial requirement, and who has actual knowledge about the requester s disability; or (4) a caregiver with actual knowledge about the requester s disability. Note - while this recommendation follows guidance from the State of Virginia, virtually all states have similar requirements with regard to recognizing a "therapeutic relationship."  It would be time well spent for housing providers to find out the specific requirements in their own state.             Housing providers may also request verifiers authenticate all or some of the following information to help evaluate their reliability and knowledge of the requester s disability: General location of the provision of care, as well as duration (for example, number of in-person sessions within the preceding 12-months);Whether the verifier is accountable to or subject to any regulatory body or professional entity for acts of misconduct;Whether the verifier is trained in any field or specialty related to persons with disabilities in general or the particular impairment cited (again, take care not to venture into the nature and scope of the requester s disability); orWhether the verifier is recognized by consumers, peers, or the public as a credible provider of therapeutic care. Examples of Presumed Reliable Third-Party Verifiers While not an exclusive list, following are some of the most common verifiers that normally should be considered reliable: Persons licensed or certified by a state board or audiology or Speech-Language Pathology; Counseling; Dentistry; Medicine; Nursing; Optometry; Pharmacy; Physical Therapy; Psychology; or Social Work, when acting within their scope of practice to treat the requester s claimed disability. Any health care provider on active duty in the armed forces or public health service of the United States at any public or private health care facility while such practitioner is so commissioned or serving, and in accordance with his or her official duties and scope of practice to treat the requester s claimed disability.Persons in compliance with the regulations governing an organization or facility qualified to treat the requester s claimed disability and licensed by an appropriate state health department, or other similar non-medical service agency.Unlicensed counselors or therapists rendering services similar to those falling with the standards of practice for professional counseling as defined under the appropriate state code. This would include members of peer support groups, so long as the person with a disability benefiting from such services is not subject to a charge or fee, or any financial requirement, actual or implied.A licensed or certified practitioner of the healing arts in good standing with his or her profession s regulatory body in any state, who has a bona fide practitioner-patient relationship with the requester in compliance with all requirements of the applicable state law and regulations. Online Disability Verifications or Other Formulaic Documentation               In situations involving verification from an out-of-state practitioner not regulated by your states medical board, the practitioner should be licensed or certified by both the other state s applicable regulatory body as well as the jurisdiction where the person with a disability was located at the time services were provided (presumably, in most cases, the state in which your housing complex is located).               Housing providers with reason to believe a disability verification was obtained via telemedicine in particular (e.g., online verification) may authenticate the information to ensure compliance with the appropriate state regulatory agency. Many states will require that practitioners who treat or prescribe through online service sites possess appropriate licensure in all jurisdictions where patients receive care.               In order to assess the reliability of the verifier when evaluating a reasonable accommodation request, a housing provider may question the basic nature of the interaction among the verifier and the requester. When perfecting a fair housing complaint for filing, HUD and many other fair housing agencies will ask medical or mental health professional verifiers to certify their willingness to testify under oath as to the disability-related need for the requested accommodation; housing providers may want to consider asking the same question. Again, it is important not to focus on the nature or severity of the condition or diagnosis, but rather the credibility of the information provided in establishing the verifier s qualifications as being in a position to know about the person s disability.               If a housing provider questions the validity of the patient-practitioner relationship, the verifier may be asked to affirm compliance with applicable state law governing the practice of health professions, as well as adherence to state bodies governing telemedicine. It is important that owners seek guidance from counsel in the states in which the relevant properties are located. Conclusion               The United States Supreme Court has ruled that the FHA is remedial in nature and requires "generous construction" in order to combat pervasive discrimination against persons with a disability. For this reason, housing providers may not challenge disability verifications on an arbitrary basis or require overly burdensome documentation from individuals making reasonable accommodation requests.               However, in order to preserve the integrity of the process for all parties, housing providers must be able to request and obtain reliable, credible disability verification in support of accommodation requests for assistance animals. Most state laws governing professional licensure of health care practitioners sufficiently addresses the stated concerns of housing providers regarding requests for a therapeutic relationship between the requester and the verifier. In many cases, state laws permit a level of verification strong enough to prevent the fraudulent "verification mills" cited by some industry advocates.               In summary, asking disability verification sources to document a therapeutic relationship with the accommodation requester is a reasonable way for housing providers to evaluate third-party reliability. While awaiting additional supporting information, it may still be prudent for housing providers to grant a temporary exception to any pet limitation policy, as part of the interactive process required by HUD with regard to reasonable accommodation requests. In this way, discussions remain open and the housing provider may avoid claims of undue delay in providing a response to the accommodation request, which could be considered a denial.

Affirmative Fair Housing Marketing Requirements for HOME Properties

The HOME final rule (24 CFR 92.351[a]) requires Participating Jurisdictions (PJs) and state recipients to develop, adopt, and follow written affirmative marketing procedures and requirements for rental and homebuyer projects containing five or more HOME-assisted units, regardless of the specific activity the HOME funds will finance. Affirmative marketing requirements also apply to all HOME-funded programs (e.g., homeowner rehabilitation, homebuyer assistance, and tenant-based rental assistance). The PJ, its subrecipients, and project owners it funds must implement the written affirmative marketing procedures for the program or project. The objective of affirmative marketing is to ensure that PJs, subrecipients, and project owners design and employ marketing plans that promote fair housing by ensuring outreach to all potentially eligible households, especially those least likely to apply for assistance. Affirmative marketing consists of actions to provide information and otherwise attract eligible persons to available housing without regard to any of the fair housing protected classes. The affirmative marketing requirements also apply to projects targeted to persons with special needs. If a PJs written agreement with a project owner permits a rental housing project to limit tenant eligibility or to have a tenant preference in accordance with HOME program rules, the PJ must have affirmative marketing procedures and requirements that apply in the context of the limited/preferred tenant eligibility for the project. The AM procedures must describe specific steps that must be taken to ensure applicants who are unlikely to apply for the housing without special outreach have equal access to housing opportunities generated by the use of the HOME program funds. There are five elements that each PJ or state recipient s marketing procedures must include: A description of how the PJ plans to inform the public, subrecipients, owners, and potential tenants about Federal fair housing laws and the PJs affirmative marketing policy;The requirements and practices that each subrecipient and owner of HOME-funded housing must adhere to in order to carry out the PJs affirmative marketing procedures and requirements;A statement of procedures to be used by subrecipients and owners to inform and solicit applications from persons in the housing market area who are least likely to apply for the housing without special outreach;A list of what records the PJ will keep, and what records the PJ will require subrecipients and owners to keep, regarding efforts made to affirmatively market HOME-assisted units, and to assess the results of these actions; andA description of how the PJ will annually assess the success of affirmative marketing actions and what corrective actions will be taken when affirmative marketing requirements are not met. PJs must implement their affirmative marketing procedures in project or programs that they administer directly. PJs must also provide their affirmative marketing procedures to subrecipients that administer all or a portion of the PJs HOME program and to owners/developers of HOME projects with five or more HOME-assisted units. The requirement to affirmatively market must be included in the written agreement between the PJ and the subrecipient or owner. The PJ must ensure subrecipients and owners have an understanding of the fair housing practices for advertising and soliciting applications (targeting populations should include those least likely to apply), know what records they must keep documenting compliance, and how the PJ will assess the owner s marketing procedures and their success. The HUD field office may request that a PJ provide the marketing procedures during monitoring and may evaluate whether the PJ is ensuring that subrecipients and owners comply with its procedures. Consequently, PJs must evaluate subrecipients and owners records during onsite monitoring to ensure compliance and documentation. There is no submission requirement for affirmative marketing procedures in the HOME regulations. However, as a best practice, HUD recommends that affirmative marketing procedures be included in the Consolidated Plan, so that the procedures are subject to public review and comment. PJs should review their affirmative marketing procedures at least every five years to determine if they are still appropriate to the market, or more frequently if the demographics and market conditions of the jurisdiction have changed significantly. A key takeaway from these requirements is that it is the PJ that is responsible for preparing the affirmative marketing procedures, and making those procedures know to subrecipients and owners. All owners of HOME-assisted projects should carefully review the written agreement and ensure that the affirmative marketing procedures in the agreement are being followed.

Exotic Emotional Support Animals - Court Case

The decision in a recent court case indicates that local laws against certain animals may not violate fair housing law. The case is Bauhman v. City of Elkhart, TX, March 2018. Facts of the Case 1. The city of Elkhart has an ordinance against exotic animals. 2. The resident had a seven pound ring-tail lemur as an Emotional Support Animal (ESA). 3. The resident claimed that she was disabled and that the lemur improved her qualify of life. 4. The lemur had bitten people three times, with the third time being within the city limits. 5. The City enacted the ordinance after the third incident, and banned exotic animals from being within the city limits. The ban includes all non-human primates. 6. The City denied the request for a reasonable accommodation. Ruling: The court ruled that the resident failed to show that the requested accommodation was "reasonable." Reasoning The resident failed to present any evidence to show that the threat of danger posed by the animal could be reduced or eliminated by any reasonable option. Takeaway This case serves as another reminder that while owners may not prohibit any type of animal as an ESA, there may be circumstances where it is unreasonable to allow certain animals in a residential environment. However, had the facts of this case been different (e.g., the animal had no history of proving to be dangerous), the court may have taken a different position and ruled that the city ordinance was a fair housing violation. In cases where particular animals are banned by local laws, property owners should not automatically deny requests for ESAs that fall within the ban. A request should be made to the locality to see if there is any procedure for requesting a reasonable accommodation and if there is, a request should be made. Failing to determine whether such a procedure exists may expose an owner to liability under fair housing law. Failure of the locality to grant a reasonable accommodation takes the burden away from the property owner and places it on the locality.