Transcript Housing Discrimination Against the Elderly Aisha Bierma

“We Can’t Meet
Your Needs”:
Housing Discrimination Against
Seniors with Disabilities
Aisha Bierma
1
Fair Housing Laws that
May Apply Include:
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Fair Housing Act
Americans with Disabilities Act
Rehabilitation Act
State and Local Fair Housing Laws
Robert G. Schwemm & Michael Allen, For the Rest of their Lives:
Seniors and the Fair Housing Act, 90 Iowa L. Rev. 121 (Oct. 2004)
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Fair Housing Act
42 U.S.C. § 3602(b)

Applies to “dwellings,” including:
 Seniors apartments
 Ownership townhomes & condos
 Housing with services / assisted living
 Nursing homes
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Protected Classes under
the Fair Housing Act
See 42 U.S.C. § 3604
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Race/Color
National Origin
Religion
Sex (including sexual harassment)
Familial Status (having children under 18
or being pregnant)
Disability
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Examples of Disabilities
42 U.S.C. § 3602(h)
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Physical
Mental
Drug addiction
 But not current, illegal use of a controlled
substance
Alcoholism
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Types of Disability
Discrimination
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1) Failure to provide reasonable
accommodations and modifications
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2) Disability-based inquiries
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3) Discriminatory evictions and admissions
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4) Discriminatory terms and conditions
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1) Reasonable
Accommodation (RA)
42 U.S.C. § 3604(f)
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Change, exception, or adjustment to a
rule, policy, practice, or service
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Common examples:
 Allow service/companion animals in “no
pet” building
 Provide help filling out application form
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Reasonable Modification
(RM)
42 U.S.C. § 3604(f)
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Structural change to the premises
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Common examples:
 Widening doorways
 Installing grab bars
 Lowering kitchen cabinets
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Proving a RA/RM
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1) Tenant has a disability,
2) Accommodation/modification may be
necessary to use & enjoyment of dwelling,
3) Accommodation/modification will help
overcome effects of disability,
4) Accommodation/modification is
reasonable.
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“Unreasonable” Requests
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1) Impose an undue financial and
administrative burden, or
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2) Require a fundamental alteration in
the nature of the housing provider's
operations
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Hypotheticals
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Hypos 1-3:
 Using RAs/RMs to avoid evictions and
secure admissions
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Hypos 4-5:
 Using RAs/RMs to help clients use and
enjoy their current housing
11
Hypo 1
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Tenant (Betty) lives in a seniors apartment
building.
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Betty is “rude and abusive” to staff and
other tenants because of mental health
issues.
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Seniors apartment says she will be evicted
if she does not correct her behaviors.
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Hypo 1
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Normally, this housing provider may have
a policy that he evicts tenants who disturb
their neighbors.
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But Betty may be entitled to stay as a RA
to this policy.
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Hypo 1
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To be eligible for a RA of no eviction, Betty
must show:
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1) She has a disability,
2) The accommodation is necessary for
her use and enjoyment of her dwelling,
3) Accommodation will help overcome
effects of her disability,
4) Accommodation is reasonable.
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Hypo 1: Sample Letter
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Betty has a disability that entitles her to
protection under the Fair Housing Act.
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Under the FHA, Home X must make RAs in
policies and procedures to allow persons with
disabilities equal use and enjoyment of their
housing.
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Betty requests a RA that she be allowed to
continue living at Home X.
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Then describe plan to stop lease violations…
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Hypo 1: Sample RA Plan
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Sample plan to eliminate lease violations:
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Therapy and support group
More visits from children or volunteers
Increased activities
Express concerns through intermediary
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So if Tenant Violates Lease Due to
Disability, She Must Stop or She Can Be
Evicted?
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Refer to RA four-part test. What is reasonable?
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In some cases, must stop violation.
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E.g. can’t pose a “direct threat” to others or property.
42 U.S.C. § 3604(f)(9)
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However, sometimes it is reasonable to allow
violations and an adjustment to lease terms.
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Recommended RA/RM
Approach for Lease
Violations
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Ideally, create plan to eliminate violations.
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If violations cannot be fully eliminated…
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Create plan to lessen them
Request expectations be adjusted as RA
 Type of housing may affect what is
reasonable.
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Hypo 1: Alternative RA
Letter for Betty
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Include same info as in Slide 17, then:
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“The following plan will help alleviate the
concerns you have identified…”
“We also ask, as a RA, that your
expectations of Betty’s behaviors be
modified. This is reasonable because…”
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Suggestion for
Formulating RA Plans
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Consult with outside experts for
ideas, e.g. long-term care
ombudsmen.
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Hypo 2
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“My mom is being evicted from an
Alzheimer’s assisted living facility because
she wanders and can be aggressive.”
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Hypo 2: Sample RA Plan
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Medication adjustments
New primary care doctor
Cognitive assessment
External alarms on longer delay or
magnetic locks
Bed or door alarm
GPS device
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Hypo 2: Sample RA Plan
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Staff training on these behaviors
Calming approaches like soft music
Paint external door in a bookcase pattern
Move to different room away from door
Extra staff time from facility
Family hires additional aide for night hours
Adjusted expectations
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Hypo 3
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“I am being evicted because I left my
water running again.”
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Figure out: Did this applicant forget to turn
off her water because of a disability?
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Hypo 3: Possible RM Plan
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Automatic faucet shut-off
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Approach in Hypos 1-3 Can
Be Used to Gain Admission
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Example: “An nursing home says it ‘can’t
meet my needs’ because I have difficult
behaviors, so it won’t admit me.”
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Potential Solution: Create RA/RM plan to help
with behaviors and gain admission
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Hypo 4
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“My nursing home took away my electric
wheelchair because staff says I can’t
operate it safely.”
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Hypo 4: Sample RA Plan
Will depend on source of concerns…
Physical or emotional therapy
 Medication adjustments
 Lowering speed on w/c
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Hypo 4: Sample RA Plan
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Restricting w/c use to certain parts of
building, on temporary basis
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Restricting w/c use to hours when more
staff is on duty, on temporary basis
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Adjustments to physical space (RM)
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Hypo 5
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“I can’t walk up the stairs to my third-floor
apartment anymore.”
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“I need to move.”
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“My landlord is making me pay for the rest
of my lease term.”
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Hypo 5: Possible RAs
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Move to first floor in same building
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Allow transfer to another building
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Allow lease to end early
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Samuelson v. Mid-Atlantic Realty Co., Inc., 947 F.
Supp. 756 (D. Del. 1996)
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Who Must Pay for a RA
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The housing provider
 If reasonable
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Who Must Pay for a RM
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In standard rental housing, a tenant.
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Sometimes the housing provider, if:
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Receives federal funds, e.g. Medicaid,
HUD subsidies (Rehabilitation Act)
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Tenant (or Associate)
Must Request RA/RM
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If staff hears what could be construed as
RA/RM request, must respond
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No “magic words” or form required
However, RA/RM letters are better (see
example letter at end of slideshow)
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More Sample RA/RM Letters
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http://www.drcme.org/publications.asp?pubid=27&secid=172
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http://www.drcme.org/publications.asp?pubid=27&secid=173
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http://www.drcme.org/publications.asp?pubid=27&secid=174
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http://www.drcme.org/publications.asp?pubid=27&secid=175
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http://www.in.gov/ipas/2647.htm
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http://www.oradvocacy.org/pubs/housingfacts3.htm
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http://sdc.workndog.org/content/node/261
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2) Discriminatory Questioning
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With limited exceptions, landlord
cannot ask disability-based questions
of a prospective tenant
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24 C.F.R. § 100.202
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Examples of Possible
Discriminatory Questioning
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“I applied to an apartment, and was given
a questionnaire about my disabilities to
see if I could ‘live independently.’”
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“I applied to an assisted living facility, and
the housing provider asked me details
about my mental health.”
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3) Discriminatory Evictions &
Refusals to Admit Due to
Disability
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It is illegal to “discriminate in the sale or
rental, or to otherwise make unavailable or
deny, a dwelling to any buyer or renter”
because of her disability
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42 U.S.C. § 3604(f)(1)
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Independent Living: Possible
Disc. Evictions/Admissions
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“My landlord is evicting me from my apartment
because ‘it’s that time in my life to move on.’”
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“A seniors ‘independent living’ building will not
admit me because they say I can’t ‘live
independently.’”
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Law: Landlords cannot evict / refuse to admit
someone because they need assistance. This
rule applies to “senior housing.”
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Housing with Services: Possible
Disc. Evictions/Admissions
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“My mom is being evicted from her
Alzheimer’s community because she
wanders and can be aggressive.”
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“An assisted living facility won’t admit me
because it ‘can’t meet my needs.’”
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Law: HWS cannot refuse tenancy on these
grounds if applicant/tenant will not ask for
services beyond what it provides.
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Nursing Homes: Possible Disc.
Evictions/Admissions
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“A nursing home won’t accept me because of
my ‘difficult behaviors’ and mental illness.”
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“A nursing home won’t accept me because I
have AIDS.”
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Law: Nursing homes must be able to house
and care for most residents with disabilities.
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Examples of RAs/RMs that May
Assist with Evictions/Admissions
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If applicant/tenant is said to be too “difficult,”
write letter requesting a RA and propose plan
to alleviate this perceived problem
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If a tenant/applicant has needs beyond the
housing provider’s capacity, request a RA
that s/he bring in other service providers
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4) Discriminatory Terms
and Conditions
 It is illegal to have different terms,
conditions, or privileges in rental property
for individuals with disabilities.
42 U.S.C. § 3604(f)(2)
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Examples of Possible
Discriminatory Terms & Conditions
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“My assisted living facility says I have to
buy liability insurance because I use a
wheelchair.”
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“My nursing home took away my electric
wheelchair.”
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Examples of Possible
Discriminatory Terms & Conditions
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“My landlord says I can’t eat in the dining
room because my disability makes others
uncomfortable.”
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“I applied for housing, and the landlord
only does background checks for people
with mental illnesses.”
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Examples of RAs/RMs that May
Assist with Discriminatory
Terms and Conditions
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If applicant/tenant is “dangerous with w/c”…
 Write letter requesting a RA and propose
plan to alleviate this concern.
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If tenant is told she can’t eat in dining room…
 Write a letter requesting an RA that she be
allowed to do so.
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5) Fair Housing Laws Can Be
Both a Shield and a Sword
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Useful for negotiation, settlement, quick relief
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If brought to court, FHA can provide:
 Injunctive relief
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e.g. “Stop the eviction,” “let this applicant move
in,” “give him back his wheelchair”
Money damages
Attorney’s fees
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Methods for Bringing a Fair
Housing Claim
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1) Civil case in state or federal court
 Can seek immediate relief
 Assistance of lawyer highly recommended
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2) Complaint to HUD or another agency
 Can be done with or without lawyer
 Lawyer useful
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Example of Where to
File Complaints
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Office of Fair Housing & Equal Opportunity
 Department of Housing and Urban Development
 451 Seventh Street S.W.
 Washington, DC 20410-2000
 1-800-669-9777
 To file a complaint online, go here:
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http://www.hud.gov/offices/fheo/online-complaint.cfm
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Additional Resources
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HUD/DOJ, Reasonable Accommodations Under the
Fair Housing Act (2004)
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HUD/DOJ, Reasonable Modifications Under the
Fair Housing Act (2008)
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http://www.usdoj.gov/crt/housing/joint_statement_ra.pdf
http://www.usdoj.gov/crt/housing/fairhousing/reasonable_modifications_
mar08.pdf.
John Marshall Fair Hous. Support Ctr., Senior
Housing Research Project Final Report (2007)
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http://www.jmls.edu/fairhousingcenter/commentary/Final-Report-Draft11-06-2007%20_2_.pdf
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Contact Information
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Aisha Anderson Bierma
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Attorney at Law
Legal Aid Society of Minneapolis
Direct: 612-977-1806
E-mail: [email protected]
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Sample Letter
Request for Reasonable Accommodation/
Modification
Dear Ms. Housing/Facility Manager:
I am writing to request a reasonable accommodation/
modification with regard to my disability, which
substantially limits one or more of my major life
activities.
Specifically, I am writing to request: describe the
specific change in rule, policy, practice or service, or
physical premises, you are seeking.
I need this accommodation so that I can live here as
easily and successfully as the other residents and
fully use and enjoy the premises.
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Sample Letter (con’t)
I have attached a letter from my doctor certifying that
this request is necessary. (attaching such a letter
may or may not be necessary)
As you probably know, because I have a disability, fair
housing laws entitle me to reasonable
accommodations/modifications.
Please respond to my request in writing within seven
business days. Thank for your assistance.
Sincerely,
Your Name
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