HUD Issues Olmstead Guidance

Yesterday, the Department of Housing and Urban Development issued a guidance document on the implementation of Olmstead in HUD-funded programs.  Integrated housing is a crucial piece of Olmstead implementation, so it's exceptionally important that HUD issued this guidance.  From the introduction:

Individuals with disabilities have historically faced discrimination that limited their opportunity to live independently in the community and required them to live in institutions and other segregated settings. In 1999, the United States Supreme Court issued the landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999), affirming that the unjustified segregation of individuals with disabilities is a form of discrimination prohibited by Title II of the Americans with Disabilities Act (ADA). Following the Olmstead decision, there have been increased efforts across the country to assist individuals who are institutionalized or housed in other segregated settings to move to integrated, community-based settings. In addition, states are “rebalancing” health care delivery systems by shifting away from an overreliance on providing long-term services and supports to individuals with disabilities in institutions, hospitals, nursing homes, adult care facilities, and other restrictive, segregated settings and moving towards a greater reliance on home- and community-based services. For many states, these efforts to comply with Olmstead and rebalance the way long-term services and supports are provided by moving individuals out of institutions and into the community are confounded by a lack of integrated housing options for individuals with disabilities. As a result, there is a great need for affordable, integrated housing opportunities where individuals with disabilities are able to live and interact with individuals without disabilities, while receiving the health care and long-term services and supports they need.

Individuals with disabilities, like individuals without disabilities, should have choice and self- determination in housing and in the health care and related support services they receive. For this reason, HUD is committed to offering individuals with disabilities housing options that enable them to make meaningful choices about housing, health care, and long-term services and supports so they can participate fully in community life. As more states facilitate the transition of individuals with disabilities from institutional or other segregated settings into their communities, the need for meaningful choice among housing options is critical. For communities that have historically relied heavily on institutional settings and housing built exclusively or primarily for individuals with disabilities, the need for additional integrated housing options scattered throughout the community becomes more acute.

HUD programs serve as an important resource for affordable housing opportunities for individuals with disabilities, including individuals who are transitioning out of, or at serious risk of entering, institutions. HUD funds the operation, management, development, preservation, and rehabilitation of affordable housing. HUD’s portfolio includes tenant-based housing vouchers, apartment buildings that serve a wide variety of individuals and families, and numerous other programs that provide permanent and transitional housing with or without supportive services to individuals with and without disabilities.

N.D. Ohio Grants Summary Judgment to Plaintiff in Fair Housing Act Failure-to-Accommodate Case

Last week, Senior District Judge James G. Carr of the United States District Court for the Northern District of Ohio issued an opinion in Vance v. City of Maumee, 2013 WL 2102845 (N.D. Ohio, May 15, 2013).  The principal plaintiff, a woman with significant and progressive disabilities that made it increasingly hard for her to climb stairs, had asked the city, 15 years after she bought her house, to pave the alley behind her house.  Because the alley was on the same level as her house, while the street in front of the house was down a substantial hill, paving the alley would enable her to get into her house without climbing the 18 stairs in front -- a climb she could no longer manage without crawling slowly on her hands and knees.  The plaintiff offered to arrange and pay for the repaving herself and to put up a bond, but the city council refused to consider her petition.  She then began construction on a parking pad behind her house, and incidentally put some gravel on the alley, but city officials threatened to fine her and placed a "road closed" sign in front of the alley.

On cross motions for summary judgment, the district court concluded that the city's actions constituted a failure to accommodate that violated the Fair Housing Act and the ADA.  Notably, the court rejected the city's argument that "the FHA protects only the right to live in a residential neighborhood, not the right to live in a specific dwelling."  To the contrary, the court concluded, "[t]he FHA protects the right of disabled individuals 'to enjoy the housing of their choice.' This encompasses a right to live in residential neighborhoods as well a right to live in the residence of one's choice."  The court also rejected the city's argument that the accommodation was not necessary to enable the plaintiff to live in her home:

The City has earlier suggested to Plaintiff that she install a chair lift on the stairs leading from her garage to the first floor of her home. Expense aside, Plaintiff told the City that a lift would not ameliorate the effects of her disability. This is so, according to Plaintiff, because the stairs leading from the garage to her first floor are “split”—the top section proceeds in a different direction than the bottom section. Plaintiff thus would either have to purchase two separate lifts or be stuck between the two sets of stairs leading from her garage to her home. 

The City now contends that Plaintiff should solve her own problem by installing a ramp or a driveway extension. According to the City's report, the ramp would consist of four smaller ramps, each 26 feet long, and multiple switchbacks. The report does not opine on the cost of installing either the ramp or the driveway extension. It was incumbent on the City to do so. 

Unlike in [an earlier case], the “alternatives” the City suggests to Plaintiff are both costly, or at least appear so, and unduly burdensome. Plaintiff, moreover, is will, as the ordinance allows, to bear the necessary costs for placing gravel on the alley. Thus the City would incur no construction burden or cost from allowing Plaintiff to make any necessary alley alterations. Moreover, accessing her home from her backyard would substantially alleviate the pain, inconvenience, and embarrassment Plaintiff currently endures.

Moreover, by allowing plaintiff to enter and leaver her home more easily would more completely make coming and going as relatively easy for her as for most homeowners. An accommodation which fails to reach this aspect of a disabled person's life also fails, in my view, to be as accommodating as, whenever reasonably possible, it should be.

This last paragraph, it seems to me, well encapsulates the antidiscrimination and integration purposes of the FHA.

A Response to the Free Press on Deinstitutionalization

I seem to have done a number of long, discursive posts lately.  Here's another.

My local big-city paper, the Detroit Free Press, has done a great series of articles over the past several months regarding the lack of services for people with mental illness in Michigan.  The series is a good example of what quality, in-depth journalism can be.  But in an editorial last Sunday, the paper took a wrong turn.  Among some other proposals that are quite valuable, that editorial argues that the state should “put a moratorium on closing psychiatric beds” and “should seriously consider adding some” at the state’s psychiatric hospitals. 

That argument reflects the view that deinstitutionalization was the cause of the problems in the mental health system, and that stopping or reversing deinstitutionalization will help solve those problems.  That view is widely held.  But it is wrong.  In my recent Cardozo Law Review article, I showed that where deinstitutionalization has not fully achieved its goals, that is not because psychiatric hospitals are a particularly good setting for serving people with mental illness.  Rather, it is because states have too often seen deinstitutionalization as largely an opportunity to save money.  They have closed institutions, but they have not sufficiently invested in the services and supports that enable people with mental illness to flourish in their homes and communities.

As the Free Press's own reporting shows, Michigan has replicated this pattern.  An article on September 16 observed that despite the heavy burden that deinstitutionalization placed on community mental health services, the money for those services “never materialized.  In fact, mental health spending failed to keep pace even with inflation.”

To respond to the failure to fund community-based services by choosing reinstitutionalization could make sense only if people with mental illness were better served in psychiatric hospitals than in their homes and communities.  But we know that the opposite is true.  Over the past four decades, a robust evidence base has demonstrated that people with mental illness are more likely to thrive when they receive appropriate services and supports in the community than when they are institutionalized.  The federal Substance Abuse and Mental Health Services Administration has concluded that independence and participation in society, as well as community relationships and social networks, are essential to mental health recovery.

The evidence has also identified the services and supports that people with mental illness need to thrive in the community.  These include: supportive housing, which provides stable and permanent housing to people with mental illness in their own apartments, with services coming to them as needed; intensive and coordinated clinical services, such as those provided by multimember, multidisciplinary Assertive Community Treatment teams; and community-based crisis services, which respond to mental health crises, defuse them, and address their causes without triggering prolonged institutionalization.  All of these services exist in Michigan, and many people with mental illness in the state are flourishing outside of psychiatric hospitals because of them.  But the state has failed to make sufficient investments in these community-based services.  The Free Press's reporting has shown us the results.

More than anything else, it is the state’s failure to provide appropriate community-based housing that has led to the problems of homelessness and incarceration that the Free Press's reporting identified.  In its most recent “Grading the States” report, for example, the National Association for Mental Illness rated Michigan below average in providing housing for people with mental illness. 

The solution to this problem is not to reinstitutionalize people with mental illness.  Reinstitutionalization is more costly, and less effective, than providing services in the community.  And it will likely violate the ADA, as interpreted by the Supreme Court in the Olmstead decision.  The U.S. Department of Justice has been aggressively enforcing the Olmstead community-integration mandate in recent years.  (As all three of my readers know, I played some role in this effort before I left my DOJ appointment and returned to my teaching job a year and a half ago.)  Reinstitutionalizing people with mental illness could tie up the state in lengthy and expensive investigations and, potentially, litigation with the DOJ and private advocacy groups.

Michigan should not go down that path.  Instead, it should—finally—make sufficient investments in integrated supported housing and other community-based services so that Michiganders with mental illness do not have to live on the streets or in a jail or prison.

National Fair Housing Alliance and PVA Settle Suit Against Housing Developer

See this post from the Blog of Legal Times.  Excerpts:

The National Fair Housing Alliance and Paralyzed Veterans of America settled a housing discrimination lawsuit against HHHunt Corporation on Wednesday. 

The lawsuit was initially filed on the grounds that HHHunt, a Virginia-based real estate development company, discriminated against people with disabilities since 2002 by constructing multifamily homes and public areas without the required accessibility features. 

* * * 

HHHunt is required to make the nine apartment complexes properly accessible to the handicapped within one to three years. An undisclosed amount will be paid to cover costs and attorney's fees for the National Fair Housing Alliance and Paralyzed Veterans of America.

DOJ Sues San Jacinto, CA, for Zoning Out Group Homes

See this article, which begins:

The U.S. Department of Justice has sued San Jacinto, claiming the city discriminates against disabled residents by restricting where group homes can operate. 

According to the complaint, which alleges violations of the federal Fair Housing Act and Americans with Disabilities Act, the city’s residential zoning does not allow group homes anywhere in the city, unless granted a special permit to be in areas zoned for multi-family housing. 

The complaint cited a November 2008 sweep in which city officials and armed sheriff’s deputies visited 19 group homes and interrogated the residents of those with mentally disabled inhabitants, but didn’t interrogate the residents of the other homes. 

Following that sweep, some group homes were shut down. Others that still operate have been visited repeatedly, up through this year, and have been fined from $100 to $1,000 a day.

Tenth Circuit Holds City Did Not Violate ADA or FHA by Denying Zoning Variance to Residential Treatment Center

Last week, the United States Court of Appeals for the Tenth Circuit issued an opinion in Cinnamon Hills Youth Crisis Center, Inc. v. Saint George City.  Cinnamon Hills had run a residential treatment facility in St. George, Utah, for some time.  It sought to create a new residential step-down program that would take up the top floor of a motel that the organization owned.  The city refused, however, to waive two provisions of its zoning code:  one that prohibited the occupancy of a motel room by an individual for more than 29 days, and another that prohibited residential uses in certain commercial zones.  Cinnamon Hills sued in the United States District Court for the District of Utah, alleging violations of the ADA, the Rehabilitation Act, and the Fair Housing Act.  The district court granted summary judgment to the city.

The Tenth Circuit affirmed.  The court concluded that the zoning provisions at issue neither were intentionally discriminatory nor had been shown to have a disparate impact on people with disabilities.  The court also concluded that waiving the 29-day and no-residential-uses-in-commercial-zones rule would not be a reasonable accommodation.  The relevant discussion from the court's opinion:

Of course, in some sense all reasonable accommodations treat the disabled not just equally but preferentially. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397-98 (2002). Think of the blind woman who obtains an exemption from a “no pets” policy for her seeing eye dog, or the paraplegic granted special permission to live on a first floor apartment because he cannot climb the stairs. But without an accommodation, those individuals cannot take advantage of the opportunity (available to those without disabilities) to live in those housing facilities. And they cannot because of conditions created by their disabilities. These examples show that under the FHA it is sometimes necessary to dispense with formal equality of treatment in order to advance a more substantial equality of opportunity. And that is precisely the point of the reasonable accommodation mandate: to require changes in otherwise neutral policies that preclude the disabled from obtaining “the same . . . opportunities that those without disabilities automatically enjoy.” Id. (second emphasis added).

But while the FHA requires accommodations necessary to ensure the disabled receive the same housing opportunities as everybody else, it does not require more or better opportunities. The law requires accommodations overcoming barriers, imposed by the disability, that prevent the disabled from obtaining a housing opportunity others can access. But when there is no comparable housing opportunity for non-disabled people, the failure to create an opportunity for disabled people cannot be called necessary to achieve equality of opportunity in any sense. So, for example, a city need not allow the construction of a group home for the disabled in a commercial area where nobody, disabled or otherwise, is allowed to live. See Bryant Woods Inn, 124 F.3d at 604; Wisconsin Cmty. Serv., Inc. v. City of Milwaukee, 465 F.3d 737, 752 (7th Cir. 2006) (en banc); Forest City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 152 (2d Cir. 1999).

And recognizing this necessarily marks the end of the road for Cinnamon Hills’s reasonable accommodation request. As we have already seen, no one, disabled or otherwise, is generally allowed to stay in a motel for more than 29 days or to reside in a C-3 commercial zone. To be sure, and as we have also seen, the city provides some limited exceptions to these rules (for law enforcement personnel and the like). But there is no evidence that the disabled, because of their disabilities, are any less able to take advantage of these exceptions than the non-disabled. Instead, the evidence shows that in seeking to occupy the top floor of a motel in a commercial zone, Cinnamon Hills is seeking an opportunity that isn’t available to others rather than one that is. And that’s a result the statute does not compel.

As in a lot of ADA/FHA zoning cases, the court here essentially collapses the reasonable accommodation inquiry into an inquiry into whether there is intentional discrimination.  There is an interesting law review note to be written comparing the analysis in zoning cases brought under the ADA and Fair Housing Act to that in zoning cases brought by religious groups under the First Amendment or RLUIPA.

Is the LA City Council Poised to Violate the ADA and the Fair Housing Act?

See this commentary on the Huffington Post.  An excerpt:

So why would the L.A. City Council pass a law that would shut down places like Keaveney House? The proposed Community Care Facilities Ordinance (CCFO) would do just that, and much more. In a misguided attempt to address nuisance "group homes," this dangerous ordinance will make it illegal to have unrelated people share a home in any residential neighborhood anywhere in L.A. 

Sound like overkill? It is. It's also discrimination -- against veterans in recovery, people with disabilities, and seniors on fixed incomes who live with roommates. The proposed ordinance violates fair housing law, the Americans With Disabilities Act, and the state's constitution right to privacy. If passed, disability rights advocates plan to sue, costing the city millions of dollars to battle a lawsuit, at a time when city workers are being laid off in droves. 

The proposed ordinance would shut down well-established, responsible owners of shared housing like New Directions, because this type of housing is not licensed. One of New Directions' houses does have a license, but only because it provides more intensive drug & alcohol treatment, so it is licensed by the California Department of Alcohol & Drug Programs. But the other houses are for veterans further along in their recovery, and no license exists for this type of housing with services, known as "supportive housing."

(The author of the commentary is the CEO of New Directions, just for full disclosure.)

DOJ Obtains $10.5 Million Settlement in Disability-Based Housing Discrimination Suit

See this press release, which begins:

The Justice Department today announced its largest-ever disability-based housing discrimination settlement fund to resolve allegations that JPI Construction L.P. and six other JPI entities (collectively “JPI”) based in Irving, Texas, discriminated on the basis of disability in the design and construction of multifamily housing complexes throughout the United States.

Under the settlement, which was approved today by the United States District Court for the Northern District of Texas, JPI will pay $10,250,000 into an accessibility fund to provide retrofits at properties built by JPI and to increase the stock of accessible housing in the communities where these properties are located. The settlement also requires JPI to pay a $250,000 civil penalty. This is the largest civil penalty the Justice Department has obtained in any Fair Housing Act case.

“Today’s historic settlement demonstrates the Justice Department’s commitment to protecting the fair housing rights of persons with disabilities,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “Builders of multifamily housing must consider accessibility at the outset, or they risk significantly greater expense to retrofit properties. As a result of this settlement, multifamily housing complexes will be retrofitted to comply with the Fair Housing Act and the Americans with Disabilities Act, and persons with physical disabilities will be afforded an equal opportunity to live in and visit these properties.”

S.D. Fla. Holds that Fair Housing Act Requires Allowing Emotional Support Animals as a Reasonable Accommodation

Earlier this week, Judge James I. Cohn of the United States District Court for the Southern District of Florida denied the defendants' motion for summary judgment in Falin v. Condominium Association of La Mer Estates, Inc., 2012 WL 1910021 (S.D. Fla., May 28, 2012).  The plaintiff claimed that the condo association violated the Fair Housing Act when it refused to waive its no-pet policy for his mother, who has a disability and uses an emotional support dog.  The association moved for summary judgment.  Among other things, it argued that the FHA does not require the accommodation of emotional support animals.  The court rejected that argument:

Defendants first point out that Ms. Falin's dog is not a “service animal” that is trained to perform a specific task, such as helping guide a blind person or recognizing the onset of seizures. Indeed, the record shows conclusively that the dog has no such training but instead serves as an “emotional-support animal” for Ms. Falin. This fact, however, is not dispositive of Plaintiff's claim. Some courts, looking to regulations promulgated under the Americans with Disabilities Act, have held that only a trained service animal may qualify as a reasonable accommodation under the FHA. See, e.g., Prindable v. Ass'n of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245, 1256–57 (D.Haw.2003), aff'd on other grounds sub nom.,Dubois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir.2006). But more recent decisions, recognizing that the FHA and its implementing regulations include no such training requirement, have concluded that an emotional-support animal may be a reasonable accommodation under the FHA when the animal is necessary for a disabled person to enjoy equal housing rights. See, e.g., Fair Housing of the Dakotas, Inc. v. Goldmark Prop. Mgmt., Inc.,778 F.Supp.2d 1028, 1035–36 (D.N.D.2011); Overlook Mut. Homes, Inc. v. Spencer, 666 F.Supp.2d 850, 858–61 (S.D.Ohio 2009); cf. Majors v. Hous. Auth. of DeKalb Cnty., 652 F.2d 454, 457–58 (5th Cir. Unit B Aug.1981) (reversing grant of summary judgment to housing authority on Rehabilitation Act claim concerning disabled person's emotional-support animal, and remanding for trial on factual issues). This Court finds the latter decisions more persuasive and adopts their reasoning here. Accordingly, the fact that Ms. Falin's dog is an emotional-support animal, rather than a trained service animal, does not entitle Defendants to summary judgment.

Good NYDN Article on Inaccessible Public Housing in the Bronx

The article begins:

A tenant leader at Soundview Houses is fuming over the city’s refusal to work with her to make the complex handicapped-accessible. 

Mary McGee, the tenant association president, says she can’t leave her building or even check her mail alone since a recent surgery temporarily confined her to a wheelchair. Two steps in the lobby, between the elevators and the front door, strand her inside unless neighbors lift her over them. 

”I’m a prisoner in my own home,” the petite and typically energetic woman said Wednesday.

HUD Charges Bank of America with Discriminating Against Borrowers with Disabilities

See this article, which begins:

The trouble continues for Bank of America (BAC). According to a press release issued Monday, the U.S. Department of Housing and Urban Development (HUD) alleges the bank is guilty of discriminating against borrowers with disabilities.

This is just one in a string of allegations against B of A, one of the nation's largest banks.

HUD claims Bank of America "imposed unnecessary and burdensome requirements on borrowers who relied on disability income to qualify for their home loans and required some disabled borrowers to provide physician statements to qualify for home mortgage loans."

David Ferleger has more here.

Georgia Health News on Supported Housing and the Georgia-DOJ Olmstead Agreement

See this interesting article about one of the pillars of the 2010 Olmstead settlement between the federal government and the State of Georgia.  An excerpt from the article:

Her apartment comes as a result of a housing initiative agreed to by the state of Georgia in a 2010 settlement with the U.S. Justice Department. 

According to that five-year pact, 2,000 individuals with serious and persistent mental illness will be placed in state-funded ‘‘supported housing’’ by 2015, as part of a broader commitment to establish community services for about 9,000 Georgians with mental illness. 

Such housing programs are designed for people with disabilities, mental illness or addictive disease. They feature ‘‘supports’’ such as counseling and offer help with everyday needs, including medication and transportation. They also help teach basic skills such as cooking, keeping a checkbook or applying for a job. 

Such arrangements can stabilize people who are homeless or at risk of institutionalization, experts say.

Taking a Tougher Stance on Fair Housing

See this article by that title.  It begins:

Communities that rely on federal money to preserve historic properties or install handicapped ramps may need to clean up and modernize regulations to get funding this year. 

Bucks County has been reviewing local municipal zoning regulations to ensure they are in compliance with the federal Fair Housing Act and thus eligible for the popular Community Development Block Grants. 

The review is in response to the U.S. Department of Housing and Urban Development’s recent crackdown on fair housing compliance.

City of LA Faces False Claims Investigation for Inaccessible Housing

See this article from the LA Times, which begins:

The U.S. attorney has launched a fraud investigation to determine whether Los Angeles city officials ignored federal laws designed to protect the disabled when building or fixing up housing. 

City Atty. Carmen Trutanich and the Community Redevelopment Agency received letters last week from the U.S. attorney's civil fraud unit instructing them to preserve records for housing developments that have received federal funds through the city since 1988 — a time frame that covers scores of projects. 

The investigation spans January 2001 to the present, the letters said. If violations are uncovered, city agencies that used federal housing funds could face financial penalties, lose out on future grants or possibly become the subject of a criminal investigation, said Bill Carter, Trutanich's senior deputy.

An interesting use of the False Claims Act, which has all sorts of unexplored uses in the disability context.

DOJ Sues University of Nebraska-Kearney for Disability Discrimination

See the press release, which begins:

The Justice Department today filed a lawsuit against the University of Nebraska at Kearney (UNK), the Board of Regents of the University of Nebraska and employees of UNK for violating the Fair Housing Act by discriminating against students with disabilities.

The lawsuit, filed in the U.S. District Court for Nebraska, charges that UNK and its employees engaged in a pattern or practice of violating the Fair Housing Act or denied rights protected by the act by denying reasonable accommodation requests by students with psychological or emotional disabilities seeking to live with emotional assistance animals in university housing. The suit also charges that UNK requires students with psychological disabilities to disclose sensitive medical and other information that is unnecessary to evaluate their accommodation requests. This lawsuit arose as a result of a complaint filed with the Department of Housing and Urban Development (HUD) by a student enrolled at UNK who sought to live with an emotional assistance dog that had been prescribed.

Nice Opinion on Zoning Accommodations for Group Homes

New on Westlaw: Developmental Services v. City of Lincoln, 2007 WL 1290082 (D. Neb., May 2, 2007). The court's introduction sums it up:

Evidence showing heaps of red tape, garnished with bureaucratic indifference and inconsistent and irrelevant posturing by city officials, elected and otherwise, does not make the City of Lincoln guilty of consciously intending to discriminate against people with developmental disabilities. But that evidence, and more, does prove that Lincoln denied a group home provider and its developmentally disabled clients reasonable accommodations to land-use requirements. As a result, taxpayers will have to pay the provider a lot of money for the City's violation of federal law. Sadly, by merely acting reasonably, Lincoln could have easily avoided that expensive outcome.

Housing Discrimination Complaints Hit Record

See this article by that title, which begins:

A record number of Americans are complaining about housing discrimination, with disability and race as the leading reasons for filing a complaint, according to the government's annual fair housing report.

Chapel Hill Settles Discrimination Lawsuit

See this article by that title. It begins:

Denying any wrongdoing, the town has agreed to pay $30,000 to settle a housing discrimination claim brought by the mother of a disabled girl.

In December 2005, the federal Justice Department sued the town for failing to provide a subsidized apartment with wheelchair access. Both parties have agreed to settle the dispute, but the U.S. District Court in Greensboro still must approve the agreement.

Under the settlement, the town would adjust its housing accommodation policy and retrain employees on the Fair Housing Act, which prohibits discrimination based on a disability.

"No one with a disability should be denied an accommodation they need to maintain their independence," said Kim Kendrick, assistant secretary for fair housing and equal opportunity with the U.S. Department of Housing and Urban Development.

Kari R. Johnson, a Raleigh lawyer representing the town, said Chapel Hill denies the allegations but settled to avoid fees that would have resulted from a protracted legal battle.