Proposed Changes to the Fair Housing ACT (FHA)

Have you ever done a home visit and suggested a patient/client add grab bars and the patient responds by saying “oh my landlord won't let me do that?” Well there is a law called the Fair Housing Act (FHA) that gives patients/clients the right to make those home modifications and the landlord must allow it. As occupational therapists, we represent individuals with disabilities, and right now the law supports these reasonable accommodations under most circumstances.

Suppose you do a home evaluation in a multiplex apartment to determine if Jose's environment is suitable for his return to independent living. Jose is a stroke survivor. You recommend the addition of an assigned accessible parking space and a raised toilet seat in the bathroom to reduce fall risk and prevent injuries. You do another home evaluation for a different patient; Jennie has a diagnosis of cerebral palsy (CP) and is transitioning into adolescence. It is no longer appropriate for her mother to bathe her. You recommend the family install grab bars and get a bath bench.

In order to make these changes, Jose and Jennie need to modify their bathrooms and acquire a designated accessible parking space in the apartment building’s parking lot. The landlord or condominium board tells Jose and Jennie’s caregiver they do not assign parking spaces, and they do not allow tenants to make changes, such as adding a grab bar in their bathrooms, or any other adjustments to accommodate tenants.

Under the current law, the Fair Housing Act protects and supports these rights. If a person with a disability needs these changes to enjoy “full use and enjoyment” of their residence, they are entitled to make these changes. The law does allow the landlord to ask for a deposit for the cost of removing the grab bars when the tenant moves out. However, the landlord cannot prohibit the tenant with a disability from making those changes. With the new proposed rule this will change.

The proposed rule is called the Housing and Community Development Act: Disparate Impact Standard. If implemented the rule would allow landlords and owners to discriminate against people with disabilities by adding further burdens to individuals who are currently protected under the Fair Housing Act. Under the current FHA, a person with a disability need only request a needed accommodation. The assumption is that the person with a disability who requests the accommodation needs it, and it is up to the landlord to prove if the request is unreasonable or unnecessary. Among the problems within the proposed change is that it shifts the burden of proof from the landlord, to the person with the disability who makes the request for the accommodations. This means it will be up to the person with the disability to prove the landlord is discriminating against them, because of their disability, by refusing the requested accommodation, such as the assigned parking space and grab bars referenced above. Again, this is in contrast with current rule that places the original burden of proof on the accused party – the landlord – to prove he is not discriminating by refusing the requested accommodation.

This will inevitably affect occupational therapy’s ability to provide individualized, meaningful, and functional environmental modifications to allow for independent living. It will decrease the likelihood of accessible housing options for the most vulnerable populations. The lack of access to safe, reasonable, and necessary home modifications will increase secondary injuries, result in an increased number of individuals unable to return to living independently at home, and ultimately lead to suffering of whole communities. The seemingly unintended effect on the people with disabilities, the FHA is supposed to protect – referred to as a protected class — is called “disparate impact.”

Let’s look at the example above to see how this works… The patient/client needs to add grab bars to the bathroom for safe transfers. Currently the tenant with a disability is entitled to that accommodation, and if the landlord protested, it would be up to the landlord to prove that he/she did not need them or that it was an unreasonable burden to the landlord to allow the tenant to add grab bars to the bathroom.

If the new proposed regulations were to become law, the patient would have to prove why they need them and why they are not a burden to the landlord. If enacted the proposed change will make discrimination claims significantly harder to prove and ultimately increase allowable discrimination against the people we serve. The rule change also generalizes the affected protective class, by grouping all members into one category.

We see in our clients on a daily basis, that no two disabilities, families, or people are exactly the same! The whole purpose of occupational therapy is to recognize that everyone has individualized needs. One home modification is not suitable, nor necessary for everyone, even if two people have the same disability. The needs of one child with CP, will not be the same needs as another individual with CP. The same holds true for two different people who have had a stroke/CVA

The current rule is effective. It works. Our clients can get, install, and use the home modifications we recommend and they need. The rule change is unnecessary. It is aimed at fixing a problem that doesn’t exist and will surely create problems for the people we serve.

What the rule change will do is make it harder to file discrimination claims, when landlords refuse to allow our patients/clients to make the home modification that occupational therapy practitioners recommend, and it will likely increase discrimination against individuals with disabilities (Tran-Leung, Park, Chang, Dunn, Williams, 2019). This change will not only threaten public health in the form of our patient/client safety, it will also threaten further civil rights and discrimination laws and other protected classes.

This is just the tip of the iceberg. The big picture fear is that the current Administration will change this rule and then use it as justification to change other laws and rules that protect civil rights of protected classes, such as people with disabilities. This could include, for example the American Disability Act, the Rehabilitation Act, and other laws that provide antidiscrimination protection for people with disabilities and other protected classes. This snowball effect has the potential to put discrimination claims in employment, public accommodations, and many others in jeopardy.

To put this in perspective ... imagine you are a woman with 30 years of experience applying to be a rehab director of a major hospital. During the interview they ask you several questions about your family, how many kids you have, your husband’s job, and your emotional stability. None or few of the questions are related to the professional experience required for you to perform the job effectively. You find out through the grapevine they hired a male with 10 years’ experience. He seems significantly less qualified to hold the position. You decide to file a gender discrimination claim against the hospital. By shifting the burden of proof to you, you would now have to prove that the reason you did not get the job was based on your gender. How would you do that?! You wouldn't have access to their records or the qualifications of the male who got the job. You would have no way to prove your civil rights were violated because a male who is less qualified got the job. Thus, the burden shifting change proposed for the FHA is merely the tip of the iceberg, but there is something you can do about it.

What can you do about these proposed changes to the Fair Housing Act that will negatively affect out patients/clients? First, you can submit comments through websites referenced below that will help you write comments and file them for you with the federal register. Through your comments, you can express your concern, about how this will affect occupational therapists and the people we serve. Second, you can email your members of Congress. And third, you can monitor the law for changes and advocate in your local community. We highly recommend using electronic methods to contact your representatives as the information is delivered faster, is read by staffers, and used as quantitative data in the decision making process when considering your representative’s position.