Verifying Disability and Need
When Can I Ask for Verification of a Disability and Need For a Reasonable Accommodation or Modification?
If the disability is obvious and need for the reasonable accommodation or modification is also obvious, the housing provider cannot ask for additional documentation (for example, a person with a visual impairment who uses a guide dog).
If the disability is obvious, but the need for the reasonable accommodation or modification is not clear, the housing provider is only allowed to request information to evaluate the disability-related need (for example, a person with a visual impairment who has an emotional support cat).
If both the disability and the need are not clear, the housing provider may request documentation that a tenant has a disability and has a disability-related need for the reasonable accommodation or modification (for example, a person with a mental health diagnosis or post-traumatic stress disorder who has an emotional support animal).
A housing provider may not ask:
- Questions about the nature or severity of a disability
- If a person is able to live independently
- Questions that would require a person to waive their rights to confidentiality regarding their medical condition or history
- To see medical records
If a person’s disability is not obvious or the need for the reasonable accommodation or modification is not clear, a housing provider may request verification from a medical professional (physician, mental or behavioral health professional, etc.). The medical professional does not need to be a physician but does need to be qualified to assess the disability and familiar with the person requesting the accommodation or modification.
A verification letter should be written by a qualified medical professional who is familiar with a person’s disability, or who is qualified to diagnosis or treat the person’s disability. A medical professional can include (but is not limited to) a doctor, nurse, psychiatrist, psychologist, behavioral therapist, optometrist, physician’s assistant, or nurse practitioner. The letter should be written on professional letterhead and should:
- Verify that the individual has a disability as defined by the Fair Housing Act. The actual diagnosis or the severity of the disability does not need to be disclosed.
- Demonstrate a relationship between the person’s disability and the need for the requested accommodation or modification (show how granting the request is necessary in order for the resident to be able to use and enjoy the premises on an equal basis).
Other forms of disability verification can include proof of Social Security Disability Income (SSDI), Medicare of Supplemental Security Income (SSI) for a person under the age of 65, veterans disability benefits, or services and benefits from a local, state, or federal agency. Housing vouchers or housing assistance received due to disability are also forms of disability verification.
What if You Believe a Request is Unreasonable?
Each reasonable accommodation or modification request is very individual and each request must be determined on a case by case basis. If the accommodation or modification proposed by a tenant is unreasonable, the housing provider must engage in an interactive dialogue with the tenant to determine if there is another solution or alternative accommodation that will meet the tenant’s needs.
A reasonable alternative accommodation may require negotiation between the tenant and the housing provider. If the alternative accommodation will effectively meet the disability-related needs, is reasonable, and does not pose an undue financial and administrative burden on the housing provider, the accommodation must be granted. The process of negotiating a reasonable accommodation or modification should be documented by both the tenant and the housing provider to protect their own interests should a dispute arise.
A housing provider may not stall or delay in responding to a request for reasonable accommodation or modification. Court cases have established that a delay in the approval process can be considered a denial of an accommodation or modification.
Reasonable Accommodation/Modification Request Evaluation “DANCE”
When evaluating a reasonable accommodation or modification request, the housing provider should assess the following to help determine the reasonableness of the request.
Disability: Does the tenant have a disability as defined by fair housing laws?
Accommodation: Is the tenant requesting a change in the landlord’s rules or practices?
Necessary: Is the accommodation or modification necessary for full use and enjoyment?
Cost: Does the accommodation or modification impose an undue financial or administrative cost on the landlord?
Effect: Would the accommodation or modification effect a fundamental change in the landlord’s business?
If the answer to the first three questions is yes and the answer to the last two questions is no, then the housing provider should grant the request.
Can a Housing Provider Charge Extra Fees and Deposits or Require Conditions?
Housing providers cannot place financial conditions upon the granting of an accommodation or modification or require some action or condition before granting a reasonable accommodation request. For example, a housing provider cannot require a resident with a disability to purchase insurance to protect the landlord should someone be injured by a wheelchair ramp. Housing providers are not permitted to charge fees for reasonable accommodations and must forego collecting pet deposits or pet fees for assistance animals.
Reasonable modifications are generally done at the tenant’s expense. The housing provider may require that a plan or sketch be provided, that the work will be performed in a professional manner, and that necessary building permits be obtained. A housing provider may not require a certain type of construction, a certain color, a certain contractor, or even a certain type of plan for a modification. If a housing provider would like a more expensive modification to meet any aesthetic concerns, the design must still meet the tenant’s needs and the housing provider should pay for the additional costs. If the resident installing the modification is going to be the only one using it, then that resident is obligated to provide the upkeep of the modification. If the modification is in common use areas, then the housing provider is obligated to provide upkeep, including insurance, for the modification.
Competing Disability Needs
Sometimes a reasonable accommodation request from a person with a disability can potentially have an impact on other tenants with disabilities. For example, a request for an assistance animal may negatively affect another tenant with a severe allergy to animals. In these cases, the housing provider must weigh the needs of both tenants with disabilities and try to come up with a mutually agreeable solution. It is important in this situation for the landlord to apply the same process for engagement
in an interactive negotiation and require appropriate verifications from both tenants. While this can be an extremely frustrating situation for a landlord, it is important to take the steps necessary to ensure the rights of all tenants to protect yourself from liability. Sometimes there is no easy answer or solution when there are competing disability-related needs, and as a housing provider, you may offer an alternative accommodation such as offering to release a tenant from a lease early without penalty. Tread carefully in these situations and reach out to your local fair housing group or attorney for guidance.
Reserved Parking Spaces
A reserved parking space is a common reasonable accommodation request. Do not make the mistake of denying this request because handicapped parking spaces already exist. ADA requirements concerning the number of handicapped parking spaces required at a property have no bearing on a reasonable accommodation request for a reserved parking space. While you may think you have provided the appropriate number of handicapped parking spaces for your property, there is often a demand for these spaces and visitors may park in them. Additionally, a tenant may require a reserved parking space on level ground or closest to their rental unit due to a mobility impairment or other medical condition. Courts have required housing providers to provide assigned parking spaces as reasonable accommodations even though the housing provider had a policy of not assigning parking spaces or had a waiting list for available parking.
While the actual granting of a reserved parking space is a reasonable accommodation, there may be some extra costs associated with it. Courts have placed the responsibility for providing the parking space on the housing provider, even if it results in some cost to the provider. Painting lines, creating signage, redistributing spaces, and creating curb cuts are examples of some costs that must be borne by the housing provider in order to grant the reasonable accommodation.
Even though the housing provider may be faced with costs in granting this request, it is unlawful to require persons with disabilities to pay extra fees as a condition of receiving accessible parking spaces.