April is Fair Housing Month, a time when we celebrate the Fair Housing Act and recommit ourselves to ensuring every American has access to housing that is free from discrimination.
Here’s an overview of our work for you in December 2018.
If we had to choose one word to describe our March 2018 activities at LeadingAge, it would be “clamorous.” As winter turned to spring, we raised our voice about a variety of issues that members care about. We’re happy to report that, in several important instances, our voice was heard loud and clear. Click the links to learn more about our work for you in March.
On July 14, the Senate passed HR 3700 under a unanimous consent agreement, meaning there was no opposition to the measure. The House passed the same bill unanimously in February. And the President has now signed it.
On June 29, LeadingAge issued an action alert, calling on senior housing advocates to urge their Senators to pass HR 3700. Thank you to all who did! Now is the time to thank every Senator for their support for this bill.
The Senate passed the Housing Opportunity Through Modernization Act (HR 3700/S 3083) before it adjourned for summer recess. This is a significant victory for housing advocates. The legislation will streamline tenant income determinations and rent setting, and vastly improve the ability to project-base vouchers, among other benefits.
On Aug. 7, 2015, HUD issued the long-awaited Section 8 Renewal Policy Guidebook (the “Guide”). A FAQ was distributed to HUD field offices on Oct. 30, 2015 to clarify some issues with the updated guide. The FAQ is organized by the chapters in the Guide.
"The key purpose of this [LeadingAge article] update," says Colleen Bloom, "is to highlight some advantageous opportunities outside of electing Option 4, a suggestion which flies in the face of old recommendations and long-standing beliefs dependent on Section 8 policies which go back original renewal policies (which go back to the mid-1990s), when long-term project-based Section 8 contracts first began expiring.
HUD's Office of General Counsel (OGC) has issued new guidance on criminal records and fair housing act standards in housing which applies not just to subsidized housing, but to all housing providers nationwide.
Every housing provider (not just HUD subsidized) needs to be aware that policies that exclude persons based on criminal history must be tailored to address such factors as the type of the crime and the length of time since conviction.
Disparate Impact and Criminal Records
On April 4, 2016, HUD's Office of General Counsel (OGC) issued a 10-page guidance document outlining how the 3-step disparate impact analysis process would be applied to criminal history policies used by housing providers to determine whether their criminal screening history reviews sufficiently consider such factors as type of crime and length of time since conviction, and whether any discriminatory effect caused by the practice is justified.
According to HUD OGC, “[b]ecause of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African Americans and Hispanics. While the [Fair Housing] Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification. Thus , a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such practices would violate the Fair Housing Act.”
Housing Providers Cautioned to Reevaluate Screening and Selection Policies
For some time now, housing providers have been urged to evaluate and reevaluate their tenant selection and criminal screening policies, and HUD has come out with various recommendations to owners to relax their positions on returning non-violent offenders into housing as part of family reunification efforts, etc.
The take-away from this latest document is that policies that exclude persons based on criminal history must be tailored to address such factors as the type of the crime and the length of time since conviction.
And, even then, such policies will be subject to review if challenged in court.
Additional Resources:
- LeadingAge review of 2013 final rule "Implementation of the Fair Housing Act’s Discriminatory Effects Standard," outlining the three-step analysis.
- December 2015 article regarding HUD Notice 2015-10 Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions
A recent consent order between the U.S. Department of Justice (DOJ) and a Virginia continuing care retirement community (CCRC) provides guidance on what senor living communities need to consider when drafting dining room policies as well as policies regulating the use of motorized wheelchairs and scooters.
The DOJ alleged the CCRC violated the Fair Housing Act based on a dining room policy the CCRC enacted in 2011 after 2 medical incidents in one of the dining rooms in the independent living portion (residential building) of the CCRC campus.
In response to the 2 incidents, the CCRC consulted its liability insurance carrier, legal counsel, and its resident advisory counsel and revised its policy to prohibit residents that resided in the assisted living, nursing or memory care units (healthcare building) from using the Residential dining rooms.
The CCRC quickly liberalized its policy after resident complaints and receiving notice from the State of Virginia that a more lenient policy would not violate state regulations.
After a lengthy DOJ investigation, the CCRC adopted a Dining Room and Events Policy (Dining Policy -- Appendix A of the consent order).
The dining policy allows all life-care residents of the CCRC to use the residential dining rooms provided that they can comply with the dining room rules and procedures. The rules specifically allow aides to accompany a resident that needs assistance to the dining room.
The dining policy states that any medical condition or concern about a resident’s ability to dine in the residential dining rooms pursuant to the rules are to be addressed on an individual basis through a well-defined reasonable accommodation process.
Providers need to be aware of the fair housing implications of restrictive dining room policies and possible discriminatory effects even though there may be no intent to discriminate against residents.
In addition to the dining room issues, the DOJ alleged that prior to 2013 the CCRC had a prior written policy that required residents who used a motorized wheelchair or scooter to pay a $300 non-refundable deposit, obtain liability insurance, and get permission from the CCRC to use the devise.
As part of the consent order the CCRC adopted a Motorized Wheelchair and Scooter Policy (Appendix B) that forbids those requirements, but includes safety rules and procedures to follow if there is an unexpected event or violation of the safety rules.
The Motorized Wheelchair and Scooter policy is similar to other policies contained in prior DOJ Fair Housing consent orders addressing this issue and provides clear guidance to providers about what is reasonable in regulating mobility devises in their communities.
Although the consent order is not an admission of liability by the CCRC, has no precedential value, and was entered into to avoid costly litigation, it nonetheless provides guidance on what the DOJ is analyzing when addressing Fair Housing allegations and what it views as reasonable policies and procedures with regard to dining rooms and mobility devices.
Finally, pursuant to the order the CCRC must pay a $40,000 civil penalty as well as $350,000 to cover any claims by aggrieved residents.
For questions, please contact Cory Kallheim at ckallheim@leadingage.org or Steve Maag at smaag@leadingage.org.
Fair Housing Enforcement Organizations Use Testing To Expose Discrimination
Discrimination based on race and on disability are the most common forms of housing discrimination, according to U.S. Department of Housing and Urban Development (HUD) findings.
As overt housing discrimination fades but subtle forms persist, proving violations of fair housing law has become more difficult. Investigations that include a testing component are more likely to result in favorable outcomes for the victims.
Fair housing organizations (FHOs) are nonprofit organizations that enforce the Fair Housing Act through investigations. Although FHOs conduct most of these tests, the U.S. Department of Justice and state and local government agencies also employ testing in fair housing investigations.
Paired Testing and the Housing Discrimination Studies
According to investigators, victims of discrimination encounter deceptive barriers that can be hard to detect, such as false information, neighborhood steering, and the application of different standards.
As a result, fair housing advocates have turned to testing as the most effective tool to investigate violations of fair housing law and gather litigation quality evidence of discriminatory practices.
Testing involves covert investigation by testers who pose as housing applicants and document the treatment they receive from housing providers. By comparing the ways different testers are treated, fair housing enforcement organizations (FHOs) are able to demonstrate that a violation of fair housing law has occurred.
Who are These “Testers” and How are They Funded?
The main source of support for many FHOs nationwide is HUD’s Fair Housing Initiatives Program (FHIP). MFOs also may receive funds from state and local governments, philanthropic groups, and court settlements with housing providers accused of discrimination.
Although FHOs conduct most of these tests, the U.S. Department of Justice and state and local government agencies also employ testing in fair housing investigations.
A discussion of certain testing activities by two FHOs -- Metropolitan Milwaukee Fair Housing Council and Northwest Fair Housing Alliance -- and a disability rights organization, Access Living of Metropolitan Chicago - their methods and findings, are detailed in a recent publication of Evidence Matters, a periodic publication from HUD’s Office of Policy Development and Research (PD&R).
Highlights include:
- Fair housing enforcement organizations engage in activities that promote housing choice, advocate for anti-discriminatory housing policies, undertake initiatives to build inclusive communities, and provide fair housing training and education.
- The Metropolitan Milwaukee Fair Housing Council, which performed more than 10,000 tests between 1977 and 2008, has used a variety of testing strategies to draw out recalcitrant landlords in cases where standard paired testing was less effective.
- The Northwest Fair Housing Alliance, based in Spokane, Washington has used various testing approaches to investigate lending discrimination, predatory lending, and fraudulent mortgage rescue programs.
- Chicago’s Access Living advocates for and enforces the rights of individuals with disabilities, using testers with disabilities whenever possible.
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