FHEO Issues Guidance to Assist Persons with Disabilities Transitioning from Institutions

By Guest Blogger Bryan Greene, General Deputy Assistant Secretary, U.S. Department of Housing and Urban Development (HUD), Office of Fair Housing and Equal Opportunity  

Today, I’m pleased to inform readers of recent guidance that HUD’s Office of Fair Housing and Equal Opportunity (FHEO) has issued to assist persons with disabilities in making the transition from institutionalization to community living. The Guidance issued on August 11^th, reflects FHEO’s commitment to ending the unnecessary isolation and segregation of persons with disabilities by eliminating procedural barriers to securing publicly funded housing opportunities.

Background

For decades, a consensus has been developing that the isolation and segregation of persons with disabilities is a violation of human and civil rights. This is apparent in the legislative history of the Americans with Disabilities Act (ADA), and in the voices of disability advocacy groups that demanded freedom from unnecessary confinement and segregation of persons with disabilities.

In 1999, the Supreme Court in Olmstead v. L.C. added powerful support for deinstitutionalization. The plaintiffs in Olmstead were two institutionalized women with disabilities, who were ready for discharge from a state-run psychiatric hospital in Georgia, but remained institutionalized because the community support services they required were in short supply – a situation shared by thousands of institutionalized persons with disabilities across the United States. The plaintiffs sued the State of Georgia, arguing that their continued institutionalization violated Title II of the ADA which mandates that state and local governments provide services to persons with disabilities in the most integrated setting appropriate to their needs. The Court agreed with the Plaintiffs and states and localities began the work of addressing the community-support needs of persons with disabilities.

In 2009, on the 10^th anniversary of Olmstead, President Obama called on HUD and the Department of Health and Human Services (HHS) to collaborate to search for and eliminate any remaining barriers to the community integration of institutionalized persons with disabilities. The HUD/HHS collaboration resulted in, among other things, two immediate actions that directly assisted the transition of 1,000 persons with disabilities from institutions to public housing: 1.) HUD issued 1,000 housing vouchers designated for persons transitioning from institutions; and 2.) HHS provided transition and community-based services to ensure a successful, long-term transition. As the office responsible for ensuring equal housing opportunities, FHEO has been committed to furtheringOlmstead, and the new Guidance is a direct result of that commitment.

FHEO’s Role in Olmstead

FHEO is responsible for enforcing federal civil rights laws, includingSection 504 of the Rehabilitation Act and Title II of the ADA, that mandate equal opportunity in housing and impose affirmative obligations to address the housing needs of persons with disabilities. Public Housing Authorities (PHAs) administer federally-assisted housing programs (public housing), and the receipt of federal assistance requires them to conduct their programs in a way that complies with these laws.

For example, Section 504 of the Rehabilitation Act (Section 504) requires PHAs to have, at minimum, 5 percent accessible units for persons with mobility disabilities and 2 percent of accessible units for persons with sensory disabilities, in public housing developments/projects.  FHEO monitors and conducts reviews of PHAs to ensure that they administer their programs in compliance with these laws. If such activities reveal noncompliance, FHEO is authorized to enter into a voluntary compliance agreement, or VCA, to remedy the noncompliance.  Each VCA is tailored to remedy the specific deficiencies by setting out specific actions that the PHA must take to do so.

The FHEO Olmstead Guidance

FHEO’s August 11^th Guidance directs its staff, when performing compliance and monitoring activities, to examine the extent to which PHAs meet their obligations under Section 504 and the ADA to afford persons with disabilities, transitioning from institutions, opportunities to participate in public housing, Housing Choice Vouchers or other services. It offers remedial and affirmative actions that may be included in a VCA with the PHA to address the deficiencies. Examples from the Guidance include:

• Examine the occupancy of accessible public housing units and if necessary, ensure that the PHA maintains a policy that provides that when accessible units are inhabited by non-disabled tenants, such tenants must transfer to a non-accessible unit if a person with a disability requiring the features of the unit, is eligible;
• Ensure that the PHA maintains a reasonable accommodation policy for persons with disabilities to use or participate in the housing program;
• Ensure the PHA has an up-to-date listing of accessible units known to the PHA for its voucher program, including occupied and vacant units as well as units that have been modified by the addition of accessible features and bedroom size;
• Ensure that the PHA waiting list contains information regarding individuals requiring an accessible unit;
• Encourage a PHA to create a preference for persons with disabilities transitioning from institutions; and/or
• Encourage a PHA to take applications at the institutions where persons with disabilities currently reside.

We expect that, as FHEO puts the Guidance into practice, an increasing number of PHAs will be successful in helping institutionalized persons with disabilities find suitable permanent housing and integrate in the community, thus, furthering the promise of Olmstead in a very real way.

If you are interested in learning more about the work of FHEO, please visitwww.hud.gov/fairhousing.

Bryan Greene is the General Deputy Assistant Secretary for Fair Housing and Equal Opportunity at the U.S. Department of Housing and Urban Development. In this position, he is charged with overseeing the policy direction and operational management of this 600-person office. Under his leadership, HUD has pursued large-scale high-profile cases that address systemic discrimination and provide widespread relief. Mr. Greene has devoted his professional career to fighting housing discrimination and promoting diverse, inclusive communities.