Reasonable accommodation in housing: you need not even write it down

It is Annex B of Regulation No. 9622 of the Housing Department, the protocol governing how a reasonable accommodation is requested and decided. The protocol itself defines a reasonable accommodation as any change, modification, alteration or adaptation to a policy, procedure, practice, programme or facility that gives a qualified person with a disability the opportunity to take part in or benefit from a housing programme or any other activity. And it distinguishes a reasonable modification: a structural change to existing premises occupied or to be occupied by a person with a disability, to let that person fully enjoy the dwelling, the common areas and other premises.

The protocol covers the Housing Department’s participants and applicants with disabilities. The definition of disability it uses is that of the Fair Housing Act, Title II of the ADA and Section 504 of the Rehabilitation Act, with their regulations codified at 28 C.F.R. Part 35 and 24 C.F.R. Parts 8 and 100, and the protocol itself says it will be interpreted broadly in favour of extensive coverage. There are two exclusions: the term disability does not include the current or illegal use of a controlled substance or addiction to it — though people recovering from substance abuse may not be discriminated against and are protected by the Fair Housing Act; and a participant will not be eligible if they represent a direct threat to the health or safety of others, or cause substantial physical damage to others’ property, that cannot be eliminated, mitigated or significantly reduced by an accommodation.

• That a disability exist as defined by the Fair Housing Act, Title II of the ADA or Section 504 of the Rehabilitation Act.Verified against the official source
• That there be a relationship or nexus: the modification or accommodation sought must relate to the person’s disability, and the request must show that relationship.Verified against the official source
• That the request not represent an undue financial and administrative burden nor fundamentally alter the nature of the Department’s operations.Verified against the official source
• If the disability is not visible or readily apparent, documentation from a reliable source verifying the disability and stating the disability-related need.Verified against the official source

• The Reasonable Accommodation Request Form, which the agent or Department staff hand over and may help complete. It is an administrative requirement: a missing form cannot delay or deny the request.
• Where the disability is not evident: a certification from a doctor, a licensed health professional, a professional representative of a social services agency, or a disability agency or clinic.
• That certification must verify the disability, state the disability-related need for the accommodation or modification and, where applicable, explain how the accommodation is likely to resolve the participant’s non-compliance problem.

1. 1

   Step 1: First: asking is easier than you think

   The protocol lowers four barriers at once. The request may be made by the participant with a disability or by another person living with them or acting on their behalf. The request need not be in a particular format nor mention the words "reasonable accommodation" or "reasonable modification" for it to count as one. The request may be verbal, though the Department encourages written filings. And it may be made at any time during the disabled person’s participation in a housing programme or residence in any given community. If someone told you that you had to fill in a specific form, say the exact phrase or wait for a date, the protocol says otherwise.

2. 2

   Step 2: The ten calendar days

   The protocol says it in its introduction: it is the Department’s responsibility to ensure the reasonable accommodation request is evaluated and to notify the participant or applicant within ten calendar days. There is an extension: if the documentation filed is insufficient for the evaluation within the ten days following filing, this term may be extended by up to ten additional days. And there is a practical note: even where the determination requires the Department’s review, the request remains subject to the ten calendar-day notification limit, so the Managing Agent must ensure the request is sent in time to allow that review.

3. 3

   Step 3: The form cannot be used as an excuse

   This is the protocol’s most useful protection and it appears twice. First: the agent or Department staff will give the participant, applicant or their representative the Reasonable Accommodation Request Form to complete, and if necessary they may help complete it; the form is an administrative requirement to document the request properly, it is the agent’s or the Department’s responsibility to ensure it is completed, and — the protocol says — in no way shall a reasonable accommodation request be delayed or denied based solely on the absence of this form. Second: staff must give guidance on the documentation required, and in no way shall a request be delayed or denied based solely on the absence of documentation prior to evaluation by the designated staff.

4. 4

   Step 4: The five criteria

   The Department assesses requests against five criteria. Request: that the Department receive a request, with the ease already described. Disability: that the person meet the definition in the Fair Housing Act, Title II of the ADA or Section 504; if the disability is not visible or evident, documentation from a professional must be provided. Relationship or nexus: the modification or accommodation sought must relate to the disability, and requests must show that relationship. Reasonable: the request must not represent an undue financial and administrative burden nor fundamentally alter the nature of the Department’s operations. Documentation: if the disability is not visible or readily apparent, documentation from a reliable source must be filed, and all information gathered will be kept confidential and shared only with those who need it to process the request and take the appropriate steps.

5. 5

   Step 5: What can be asked for: the protocol’s own examples

   The protocol lists examples of reasonable adaptations, and they are broader than people imagine: live-in aides, that is a companion or assistance; service animals and therapeutic and emotional support; accessible parking spaces; allowing an authorised representative or advocate to take part in the request or certification process and in any other meeting with Department staff; and adjusting the timeline and internal processes to better receive and accommodate the applicant’s specific needs. Note that two of those examples are not building works: they are procedural changes. A note on the source: in the printed list, the last two examples are both numbered "4".

6. 6

   Step 6: The procedure, step by step

   The participant or applicant states their need, in writing or orally. The Department recommends that requests be filed in writing directly at its offices or by post to the Secretaría de Subsidio de Vivienda y Desarrollo Comunitario, P.O. Box 363188, San Juan, Puerto Rico 00936-3188; and if an owner receives a request from a disabled tenant, they will immediately forward it by ordinary mail to that same address. The agent hands over the form and may help complete it. Staff give guidance on documentation. Once all necessary documentation is provided, the request goes to the coordinator for evaluation and determination: if filed by an applicant, it goes to the Department’s coordinator; if by a participant, to the managing agent’s coordinator. The coordinator assesses and gives a final determination or asks for further information.

7. 7

   Step 7: If they are minded to deny it

   There are two brakes here. First: if the coordinator’s determination is to deny the request, it must go to the Department’s operations coordinator for final review before notifying the participant, and the Department will provide a final determination within the following two days. Second, and it is the stronger brake: if the Department’s coordinator considers the request unreasonable, they will not deny the petition; instead they must open a dialogue with the person with a disability and the project’s administrator or the owner, in order to propose and find possible reasonable alternatives that can effectively meet the person’s needs without imposing an excessive burden on the programme or the Department. If you are told no without alternatives having been offered, the protocol was not followed.

8. 8

   Step 8: Reconsideration, informal hearing and resolution

   If approved, the coordinator forwards the documentation to the relevant programme area for implementation. If denied, the applicant may file a reconsideration within a maximum of ten days after notice. If the Department denies a petition, the decision will be notified in writing within ten business days and will explain the reasons for the denial. All determinations will offer the participant the right to review the decision at an informal hearing directly with the Department, and the participant will have ten days to seek that reconsideration or review. On the day of the hearing the participant may be accompanied by a representative, and must present their arguments and supporting evidence. The agency will give fifteen days’ advance notice of the day, place and time. The hearing may be postponed on five days’ notice at a party’s request. And once held, the presiding officer will have fifteen days to issue and notify the resolution.

9. 9

   Step 9: The federal complaint to HUD

   The protocol closes with a door that stays open even if the internal process ends against you: the participant may file a complaint with the Office of Fair Housing and Equal Opportunity of the United States Department of Housing and Urban Development. The protocol itself publishes its details: telephone 787-766-5400 extension 2012; fax 787-766-5353; Parque Las Américas I, Building 235, Calle Federico Costa Suite 200, San Juan, Puerto Rico 00918.

The need may be stated verbally to the project’s agent or staff. The Department recommends filing it in writing directly at its offices or by post to the Secretaría de Subsidio de Vivienda y Desarrollo Comunitario, P.O. Box 363188, San Juan, Puerto Rico 00936-3188. If the owner receives the request, they must immediately forward it by ordinary mail to that address. The federal complaint goes to HUD’s Office of Fair Housing and Equal Opportunity, at Parque Las Américas I, Building 235, Calle Federico Costa Suite 200, San Juan, Puerto Rico 00918.

• Waiting to get the form before asking, when the request may be verbal.
• Believing you must use the words "reasonable accommodation" for it to count.
• Accepting a delay or denial for a missing form or missing documentation.
• Leaving out the nexus: why the accommodation sought relates to the disability.
• Bringing a certification that verifies the disability but does not state the related need.
• Accepting a denial without the dialogue about reasonable alternatives having been offered.
• Letting the ten days to seek reconsideration and review lapse.
• Going alone to the informal hearing, when the protocol allows a representative.
• Not knowing the complaint to HUD’s Office of Fair Housing remains open.

These are the government pages this guide is based on.

• Departamento de la Vivienda

  Vivienda

  docs.pr.gov

• Puerto Rico Housing Department

  vivienda

  www.vivienda.pr.gov