| (a) Applicability. This policy relates to a request
for Reasonable Accommodations made by an applicant or participant
of a Department program to a Recipient, or made by an applicant or
occupant to a property funded by the Department to the property. The
policy regarding a request for Reasonable Accommodation by the Department
is found at 10 TAC §1.1 of this chapter.
(b) General Considerations in Handling of Reasonable
Accommodations. An applicant, participant, or occupant who has a disability
may request an accommodation and, depending on the program funding
the property or activity and whether the accommodation requested is
a reasonable accommodation, their request must be timely addressed.
(1) When the Department monitors a property or activity
for how reasonable accommodation requests have been handled, it will
consider such things as whether the person working on behalf of the
program or property which the Department is monitoring:
(A) Timely received the request and recorded it;
(B) Took into consideration how action on the request
would impact the person making the request; and
(C) Engaged in communication with the requestor to
understand the nature of their request and whether there was a reasonable
way to make an accommodation.
(2) If the person responsible for responding to a request
for an accommodation needs assistance or clarification as to how the
requirement may apply to their program or property they should contact
the Compliance Division immediately to discuss the matter. The Compliance
Division cannot provide legal advice or direct the person to respond
in any specific manner, but they can, in some instances, point to
appropriate federal guidance or other resources such as the Texas
Workforce Commission Civil Rights Division. A person who contacts
the Compliance Division or anyone else for such reasons should document
such contact in their files because the process of obtaining guidance
may impact the timeliness of their response.
(3) Unless there is a clear documented need for a lengthier
process or there is a controlling federal statute or regulation specifying
a different deadline, when a person requests an accommodation they
should be given a response as soon as possible but not later than
14 calendar days.
(c) To show that a requested Reasonable Accommodation
may be necessary, there must be an identifiable relationship between
the requested accommodation and the individual's Disability.
(d) Responses to Reasonable Accommodation requests
must be provided within a reasonable amount of time, not to exceed
14 calendar days. The response must either be to grant the request,
deny the request, offer alternatives to the request, or request additional
information to clarify the Reasonable Accommodation request. Examples
when it would not be reasonable to wait 14 calendar days to provide
a response include but are not limited to: moving the due date for
rent to coincide with the date the requestor receives their social
security disability check; allowing a service animal in an emergency
shelter in spite of a no pets policy; or assisting an applicant with
a Disability that prevents them from writing legibly when they request
help filling out an program or project application. Should additional
information be required and an interactive process be necessary, this
process must also be completed within a reasonable amount of time.
An undue delay in responding to a Reasonable Accommodation request
may be deemed by the Department to be a failure to provide a Reasonable
Accommodation.
(e) When a participant, applicant, or occupant requires
an accessible unit, feature, space or element, or a policy modification,
or other Reasonable Accommodation to accommodate a Disability, the
Recipient must provide and pay for the requested accommodation, unless
doing so would result in a fundamental alteration in the nature of
the program or an undue financial and administrative burden. A fundamental
alteration is an accommodation that is so significant that it alters
the essential nature of the Recipient's operations. A Recipient that
owns a tax credit or Multifamily Bond Development with no federal
or state funds awarded before September 1, 2001, must allow but may
not need to pay for the Reasonable Accommodation, except if the accommodation
requested should have been made as part of the original design and
construction requirements under the Fair Housing Act, or is a Reasonable
Accommodation identified by the U.S. Department of Justice or the
U.S. Department of Housing and Urban Development with a de minimis
cost (e.g., assigned existing parking spot and no deposit for service/assistance
animals).
(f) A Recipient may not charge a fee, deposit, or place
conditions on a participant, occupant, or applicant in exchange for
making the accommodation.
(g) A Reasonable Accommodation request of an individual
with a Disability that amounts to an Alteration should be made to
meet the needs of the individual with a Disability, rather than being
limited to compliance with a particular accessible code specification.
However, the Recipient must still follow accessible code specifications,
as identified in its Contract or LURA.
(1) Recipients are not required to make structural
changes where other methods, which may not cost as much, are effective
in making programs or activities readily accessible to and usable
by persons with Disabilities.
(2) In choosing among available methods for meeting
the requirements of this section, the Recipient must give priority
to those methods that offer programs and activities to qualified individuals
with Disabilities in the most integrated setting appropriate.
(3) Undue burden.
(A) The determination of undue financial and administrative
burden will be made by the Department on a case-by-case basis, involving
various factors, such as the cost of the Reasonable Accommodation,
the financial resources of the Development, the benefits the accommodation
would provide to the requester, and the availability of alternative
accommodations that would adequately meet the requester's Disability-related
needs.
(B) In considering whether an expense would constitute
an undue burden the Department may, as applicable, consider the following
items (though it may consider factors not on this list):
(i) payment for Alteration from operating funds, residual
receipts accounts, or reserve replacement accounts must be sought
using appropriate approval procedures.
(ii) the approved amount must generally be able to
be replenished through property rental income within one year without
a corresponding raise in rental rates.
(iii) a projected inability to replenish an operating
fund account or the reserve for replacement account within one year
for funds spent in providing Alterations under this subsection is
some evidence that the Alteration would be an undue financial and
administrative burden.
(C) If providing accessibility would result in an undue
financial and administrative burden, the Recipient must still take
other reasonable steps to achieve accessibility.
(D) If a structural change would constitute an undue
financial and administrative burden, and the tenant/requestor still
wants that particular change to be made, the tenant/requestor must
be allowed to make and pay for the accommodation.
(4) Recipients are not required to install an elevator
solely for the purpose of making units accessible as a Reasonable
Accommodation.
(5) Recipients do not have to make mechanical rooms
and similar spaces accessible when, because of their intended use,
they do not require accessibility by the public, by tenants, or by
employees with physical disabilities.
(6) Recipients are not required to make building alterations
that have little likelihood of being accomplished without removing
or altering a load-bearing structural member, as a Reasonable Accommodation.
(h) If a Recipient refuses to provide a requested accommodation
because it is either an undue financial and administrative burden
or would result in a fundamental alteration to the nature of the program,
the Recipient must make a reasonable attempt to engage in an interactive
dialogue with the requester to determine if there is an alternative
accommodation that would adequately address the requester's Disability-related
needs. If an alternative accommodation would meet the individual's
needs and is reasonable, the Recipient must provide it.
(i) Examples of reasonable accommodations, while not
exhaustive, include moving the due date for rent to coincide with
the date the requestor receives their social security disability check;
providing a designated accessible parking space from existing parking
spaces; creating an accessible parking space to accommodate a wheelchair-equipped
van; allowing a service or support animal or animals in spite of a
no pets policy; modifying door knobs to levers; providing assistance
in filling out a program application for the activity or unit; in
the case of a service provider providing computer lab classes with
laptops, providing a loan of the laptop computer with the training
software; in the case of a weatherization provider serving a family
with a child with asthma, seeing if an alternative sealant could be
used when the sealant typically used may trigger an asthma attack;
installing grab bars; providing an accessible entrance to a resident's
current unit, unless it would be an undue financial and administrative
hardship or a fundamental alteration of the program to do so; and
providing a ramp in excess of usual specifications for such alternations
to accommodate a scooter type wheelchair, unless it would be an undue
financial and administrative hardship or a fundamental alteration
of the program to do so.
(j) Recipients must follow federal and state regulations
regarding service/assistance animals. A housing provider may not require
an applicant, participant, or occupant to pay a pet deposit if the
animal is a service/assistance animal.
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