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Current Legal Issues Facing Supportive Housing Facilities

Posted on: December 2nd, 2019

By: Joseph Colette

FMG Partner H. Joseph Colette discussed “Current Legal Issues Facing Supportive Housing Facilities” at the Georgia Supportive Housing Association’s 9th Annual Supportive Housing Conference, held at the State Bar of Georgia from November 18th to 19th.

Supportive housing provides at-risk populations, including individuals with physical, mental, or developmental disabilities, veterans, and reentry individuals, with stable housing with needed support services, such as case management, housing, and reasonable accommodations, peer supports, education, training, and other services. Mr. Colette originally assisted the Georgia Supportive Housing Association (“GSHA”) in obtaining its non-profit 501(c)(3) status. The GSHA is a membership network of non-profit housing developers, service providers, statewide agencies and organizations, corporations, associations and individuals with a shared goal: strengthening housing resources in the State of Georgia. The vision of the GSHA is to have a Georgia where individuals with disabilities can choose the housing and supports they need to thrive, obtaining and ensuring their stability, autonomy, and dignity.

Mr. Colette’s presentation included a historical overview of the Fair Housing Act of 1968, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the U.S. Supreme Court’s decision in Olmstead v. L.C. Mr. Colette also discussed the evolution of these civil rights laws and insight into the variations in federal and statewide implementation and enforcement activity on the 20th anniversary of the Olmstead decision.

The Fair Housing Act of 1968 (“FHA”), which applies to landlords, realtors, mortgage brokers, insurance agents, zoning codes, etc., prohibits the discrimination in the rental, sale, advertising, design, insuring, and financing of dwellings, and in other housing-related transactions, based on membership in protected classes. The protected classes originally included: race, color, financial status, religion, sex/gender, and national origin. The FHA was amended in 1988 (see the Fair Housing Amendments Act of 1988 (“FHAA”)) to include disability as a protected seventh protected class.

Reasonable accommodations and modifications were also newly-established legal requirements of the FHA. A landlord could not unreasonably refuse to provide a reasonable accommodation of a rule, policy, or procedure to address the needs of a person with a disability, and could not unreasonably deny permission to a tenant to make a modification of the premises to address the needs of a person with a disability. Section 504 of the Rehabilitation Act of 1973, which imposes greater obligations than the FHA,  prohibits discrimination on the basis of disability in any program or activity that receives federal funds. The language of both the later enacted FHAA and the Americans with Disabilities Act of 1990 (“ADA”) are rooted in the Rehabilitation Act of 1973. Section 504 also requires recipients to make reasonable accommodations, including structural changes, to enable access to housing for people with disabilities.

The ADA provides federal civil rights protections to individuals with physical and mental disabilities and guarantees them equal opportunity in public accommodations, employment, transportation, state and local government services, and telecommunications. The integration of individuals with disabilities into the mainstream of society is fundamental to the purposes of the ADA. Title II of the ADA prohibits discrimination by public entities in services, programs, and activities on the basis of disability, and applies to all types of state agencies, counties, municipalities and cities, and executive, legislative, and judicial branches of state and local government.

The passage of the ADA resulted in a myriad of discrimination lawsuits, many of which went before the U.S. Supreme Court. For resolution of these cases, the Court was required to interpret the broad anti-discrimination provisions of the ADA in a variety of specific contexts while at the same time balancing such questions as states’ rights and the definition of disability. One such case was Olmstead v. L.C., 527 U.S. 581 (1999).

In Olmstead, the Supreme Court determined that individuals with disabilities had the right to receive supports in the community rather than in institutions when three conditions were met:

1) The treating medical professionals determined that a community setting was appropriate;

2) The person with a disability did not object to living in the community; and

3) The provision of services in the community was a reasonable accommodation.

All states were required to take steps necessary to serve individuals with disabilities in the community when the aforementioned conditions were met.

Virtually all of the cases after Olmstead involved attempts to place people from individual institutions into the community. The major legal controversies raised by these cases involved interpretation of what is referred to as the “fundamental alteration” defense. A public entity’s obligation under Olmstead to provide services in the most integrated setting is not unlimited.  Therefore, a public entity may be excused in instances where it can prove that the requested modification would result in a “fundamental alteration” of the public entity’s service system.  A fundamental alteration requires the public entity to prove “that, in the allocation of available resources, immediate relief for plaintiffs would be inequitable, given the responsibility the State [or local government] has taken for the care and treatment of a large and diverse population of persons with…disabilities.” See Olmstead, 527 U.S. at 604.

If you have any questions or would like more information, please contact Joseph Colette at [email protected].

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