Handling Reasonable Accommodation Requests from Tenants with Nonobvious Disabilities

The DHCR recently revised Operational Bulletin 2016-1 to include changes or modifications made to an apartment that are reasonable modifications for a tenant with disabilities. Operational Bulleting 2016-1 provides guidance to owners and tenants of rent-stabilized apartments on how the DHCR will review the installation of individual apartment improvements (IAIs) when a complaint of rent overcharge has been filed or there is an investigation with respect to IAI installations.

Typically, when you make qualifying improvements or install new equipment in an apartment, you’re entitled to get a rent increase of 1/40th or 1/60th of the cost depending on how many apartments are in your building. You have to be able to prove the cost of the improvements and be able to show that you got the tenant’s written consent to them if you make improvements while a tenant occupies the apartment.

However, in the case of work done for a disabled tenant, the bulletin makes clear that physical changes to an apartment that are considered reasonable accommodations or modificaitons, such as installing grab bars in bathrooms, that in other instances might otherwise qualify as an IAI will not be subject to rent increases.

We’ll go over the legal requirements at the city and federal level to accommodate disabled tenants or applicants and how you can prevent discrimination claims from individuals with disabilities that may not be obvious or apparent.

LEGAL REQUIREMENTS

The New York City Human Rights Law (NYCHRL) protects the rights of people with disabilities by requiring owners to make reasonable accommodations for disabled tenants. A reasonable accommodation can be structural, such as a ramp at the building entrance to provide wheelchair access or installing grab bars in a bathroom.

A reasonable accommodation can also involve a policy change such as permitting a tenant who is blind or has a psychological disability to have a guide dog or companion animal, despite a building’s "no pets" policy. The Human Rights Law also requires the owner to pay for an accommodation if it is deemed reasonable – that is architecturally and financially feasible.

The NYCHRL defines “disability” as “any physical, medical, mental or psychological impairment, or a history or record of such impairment” [Section 8-102(16)]. At the federal level, the Fair Housing Act applies (FHA), and it defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. The definition involves three key phrases:

Physical or mental impairment. Federal regulations broadly define “physical or mental impairment” to include any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more specified body systems, including neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine. It also includes any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

According to federal regulations, examples of physical or mental impairments include, but are not limited to: orthopedic, visual, speech, and hearing impairments; cerebral palsy; autism; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; Human Immunodeficiency Virus (HIV) infection; mental retardation; emotional illness; drug addiction (other than addiction caused by current, illegal use of a controlled substance); and alcoholism.

Substantially limits. The federal Department of Housing and Urban Development (HUD) says that “substantially limits” means a limitation is “significant” or “to a large degree.”

Major life activity. According to HUD, “major life activity” means an activity that is of central importance to daily life, including, but not limited to: seeing, hearing, walking, breathing, performing manual tasks, caring for oneself, and speaking. HUD also notes that reproduction is a major life activity for certain individuals.

If an individual has a physical or mental impairment that substantially limits a major life activity, she is protected under the FHA’s disability-related provisions—even if the disability is not obvious or apparent. But the FHA also protects individuals who do not now have—or ever had—a physical or mental impairment that substantially limits a life activity. The FHA’s definition of “disability” includes an individual with “a record of” impairment, which means someone with a history of—or having been misclassified as having—a mental or physical impairment that substantially limits one or more major life activities. In addition, the law also protects an individual who is “regarded as” having such an impairment, a catchall phrase that includes an individual with—or without—an impairment when she is treated by another as having such an impairment.

FOUR TIPS FOR PREVENTING DISCRIMINATION CLAIMS

FROM TENANTS WITH NONOBVIOUS DISABILITIES

Given the broad definition of “disability” under the FHA and the NYCHRL, you shouldn’t rely on appearances to determine whether a prospect or tenant is—or is not—entitled to reasonable accommodations. You could get in trouble, for example, if you questioned the credibility of any tenant who says he is disabled but shows no outward sign of an impairment. Or you may recognize that a tenant has an impairment, but don’t know whether it is severe enough to substantially limit a major life activity. Here are four tips for navigating disability rights when asked for an accommodation request.

Tip #1: Listen for Accommodation Requests

Anytime a tenant asks you to make an exception to any of your policies or procedures, it should prompt you to think about fair housing rules governing reasonable accommodations for an individual with disabilities. The NYC Commission on Human Rights says owners must engage in a conversation with the person with a disability to help determine what type of modification or accommodation the person with the disability needs.

Neither the FHA nor the NYCHRL require an applicant or tenant to mention fair housing law or to use the words “reasonable accommodation.” Once someone asks for an exception to your rules, follow your building’s policies and procedures regarding reasonable accommodations for individuals with disabilities. You could ask the tenant or applicant to fill out a standard form for accommodation requests, although you may not ignore a request if the applicant refuses to use your form. If the tenant refuses, you could explain that the form will help you understand and communicate the request to the person evaluating it. HUD recommends that accommodation requests be put in writing to prevent misunderstandings about what is being requested or whether the request is made.

Tip #2: Ask for Information When Disability Isn’t Obvious

When you get an accommodation request from an individual whose disability is not obvious, you may ask for reliable disability-related information to verify that the person meets the FHA’s definition of having a disability—that is, he has a physical or mental impairment that substantially limits one or more major life activities.

But you may not demand a doctor’s note to verify the disability. HUD guidelines say that, depending on the circumstances, the information usually can be provided by the individual himself—either proof that he receives certain forms of Social Security disability benefits or a “credible statement by the individual.” Or verification can come from a medical professional, a peer support group, a nonmedical service agency, or a “reliable third party who is in a position to know about the individual’s disability.” According to HUD, the individual’s medical records or detailed information about the nature of the disability is not necessary in most cases.

Do not ignore a request for an exception to your rules—or reject it out of hand—even if you don’t see any outward sign of a disability. The law’s requirements governing reasonable accommodations apply regardless of the nature of the disability, so you have an obligation to treat the request seriously. Otherwise, you could face a penalty for a fair housing violation.

Tip #3: Determine Disability-Related Need for Accommodation

Once you are satisfied that the individual has a disability, then you must evaluate whether there is a disability-related need for the accommodation. There must be an identifiable relationship between the requested accommodation and the individual’s disability.

If in doubt about the connection between an individual’s disability and the need for a requested accommodation, it’s best to consult with your attorney on how to respond. Under HUD guidelines, you may ask for more information if necessary to evaluate if the reasonable accommodation is needed because of a disability. Nevertheless, legal guidance may be necessary to respond properly.

Tip #4: Evaluate Alternatives When Requested Accommodation Is Unreasonable

The law does not require you to make exceptions to your rules for an individual with a disability when the requested accommodation is unreasonable. But that doesn’t mean you may reject the request simply because it’s inconvenient or might involve some expense, because the term “unreasonable” has a specific meaning under fair housing law.

An accommodation is unreasonable when it would impose an undue financial and administrative burden; or it would fundamentally alter the nature of the building’s operations.

In one case, an owner persuaded a New York judge that it offered workable alternatives to unreasonable requests from disabled tenants related to its planned elevator renovation. The tenants, who lived on upper floors, had significant health problems, which made going up and down stairs very difficult. When they learned that the building’s only elevator would be shut down for months during renovations, the tenants sued for unlawfully denying their accommodation requests and asked for a court order to prevent the elevator shutdown.

Attempts to negotiate a reasonable accommodation were unsuccessful. The owner offered to move the residents to either a unit of their choice on the first floor or a larger unit in a building less than a mile away, at no additional cost. The owner also promised that the temporary move wouldn’t affect the rent-stabilized status of their present units.

The residents wanted to stay in their units. Among other things, they wanted the owner pay for a “para-transport service” to come to their units once a week and carry them up and down the stairs in a wheelchair or other specialized chair; the estimated cost of each roundtrip was $525 per person.

After a hearing, the court refused to issue the court order, ruling that the owner’s offer to move the tenant with the mobility impairment to the first-floor unit in the same building was reasonable. The owner showed that his preferred accommodation would cause undue hardship because of the risk of injury—and significant liability—if there were an accident while carrying him up and down the stairs.

The same was true for the other tenant. It was difficult for him to leave his unit due to Alzheimer’s disease, but the owner offered him a two-bedroom unit to accommodate his live-in aide. Although courts generally defer to the tenant’s view of his own needs in determining what a reasonable accommodation is, the court said that having him carried up and downstairs was simply not a viable option because it presented too great a hardship to the owner. Based on the possibility of injury to the resident or the people carrying him, along with the significant cost of the service, the court didn’t think his requested accommodation was reasonable [Picaro v. Pelham 1135 LLC, September 2014].

Under HUD guidelines, the determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the building, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs.

If you believe a request is unreasonable because it either requires fundamental alterations of your operations or imposes an undue financial and administrative burden, then you should suggest an alternative accommodation that would effectively address the individual’s disability-related needs. HUD and the NYC Commission on Human Rights suggest that the owner and the individual engage in an “interactive process” to discuss the disability-related need for the request as well as possible alternatives.

Editor’s Note: For further information, you can download the recording of the one-hour webinar, “When and How to Verify Disability After Receiving an Accommodation Request” here or at www.VendomeRealEstateMedia.com.