HUD’s Office of Fair Housing and Equal Opportunity (FHEO) sent a Memorandum to its regional and field offices providing guidance regarding their responsibility to enforce disability-related civil rights laws. The Memorandum focuses on assisting people who have disabilities making or seeking to make a transition from an institution to community-based settings, and ensuring that the public housing and housing choice voucher (HCV) programs operate in a way that supports such transitions. The Memorandum can also serve as a useful reminder to affordable housing advocates.
The two disability-related civil rights laws are Section 504 of the Rehabilitation Act of 1973 (referred to as Section 504) and Title II of the Americans with Disabilities Act (ADA). Title II of the ADA requires states to administer their activities “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” The public housing and voucher programs administered by states and public housing agencies (PHAs) are funded by “federal financial assistance,” which is typically covered by Section 504 and a similar integration mandate. In 1999, the U.S. Supreme Court ruled in Olmstead v. LC that unjustified institutionalization of people with disabilities is a form of unlawful discrimination under Title II of the ADA.
HUD’s Section 504 regulations (24 CFR Part 8) impose an affirmative obligation on PHAs to assess the housing needs of people with disabilities, including people transitioning from institutions. The regulations also obligate PHAs to assure that notice of available voucher assistance reaches people with disabilities.
FHEO enforces Section 504 and Title II in part by conducting periodic monitoring reviews and compliance review. A monitoring review is not generally conducted on-site. It entails assessing the written policies, procedures, and operations of a state or PHA. A compliance review is conducted on-site when a Section 504 complaint is filed against a PHA or when an FHEO monitoring review raises concerns.
The Memorandum lists six types of activities FHEO staff should examine when conducting a monitoring or compliance review, including:
- Does the PHA perform outreach activities? For example, when opening the HCV or public housing waiting list, does the PHA reach out to underserved individuals in institutions who are ready to transition to community-based housing by reaching out to social service agencies, nursing homes, mental health facilities, or group homes? Does the PHA provide information about the availability of accessible housing by using interpretive services or assistive technology?
- Does the PHA require non-disabled households occupying an accessible unit to agree to transfer if someone with a disability needs the features of that home?
- Does the PHA’s waiting list identify people requiring accessibility features, and does the PHA have an up-to-date listing of accessible housing for the voucher program?
When an FHEO monitoring review finds that a PHA has not complied with Section 504 or ADA Title II, it must attempt to secure a Voluntary Compliance Agreement (VCA) with the PHA. The Memorandum offers a number of topics that might be included in a VCA, such as:
- Adoption of a local preference in HCV admissions policies for people with disabilities ready to exit institutions.
- An agreement to actively coordinate with local disability organizations and take advantage of the Department of Health and Human Service’s “Money Follows the Person” demonstration program, which allows supportive services available to institutionalized people to be available to them when they transition to community-based housing.
If an FHEO monitoring review raises concerns that do not rise to the level of noncompliance, staff are encouraged to suggest that a PHA undertake various activities, such as allowing PHA staff to take applications at institutions, encouraging landlords with accessible Low Income Housing Tax Credit properties to participate in the HCV program, and tapping PHA administrative fees to offer landlords incentives to make accessibility modifications.
Ten of the 16 VCAs on the FHEO website address Section 504-related issues (although not necessarily specifically addressing transition issues). View the FHEO Library at: http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/library
Although not stated by the Memorandum, in many instances it will be important for advocates to raise concerns or file complaints in order to better assure FHEO action.
The FHEO Memorandum is at: http://nlihc.org/doc/FHEO_Memorandum_Transition_from_Institutions_2011.pdf
For more information, FHEO’s disabilities webpage is at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/disabilities