FAIR Housing & People with Mental Illness


​DISABILITY DISCRIMINATION IN LONG-TERM CARE: 
USING THE FAIR HOUSING ACT TO PREVENT ILLEGAL SCREENING IN ADMISSIONS TO NURSING HOMES AND ASSISTED LIVING FACILITIES

​Third Circuit uses strong terms against disability-based discrimination in long-term care admissions:

"Here there was ample evidence that [the woman's] aggressive behaviors .. .rendered her . . . 'a challenging and demanding patient.'  We find that this fact alone cannot justify her exclusion from a nursing home .... Otherwise nursing homes would be free to 'pick and choose' among patients, accepting and admitting only the easiest patients to care for, leaving the more challenging and demanding patients with no place to turn for care. "
Accordingly, assuming plaintiff is handicapped, the Act requires defendants to demonstrate that no "reasonable accommodation" will eliminate or acceptably minimize the risk he poses to other residents at Sugar River Mills, before they may lawfully evict him.
JOINT STATEMENT OF 
THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 
AND THE DEPARTMENT OF JUSTICE
 
REASONABLE ACCOMMODATIONS UNDER THE
FAIR HOUSING ACT (2004)
5. How can a housing provider determine if an individual poses a direct threat?

The Act does not allow for exclusion of individuals based upon fear, speculation, or stereotype about a particular disability or persons with disabilities in general.

A determination that an individual poses a direct threat must rely on an individualized assessment that is based on reliable objective evidence (e.g., current conduct, or a recent history of overt acts).

The assessment must consider:

(1) the nature, duration, and severity of the risk of injury;

(2) the probability that injury will actually occur; and 

(3) whether there are any reasonable accommodations that will eliminate the direct threat. 

Consequently, in evaluating a recent history of overt acts, a provider must take into account whether the individual has received intervening treatment or medication that has eliminated
the direct threat (i.e., a significant risk of substantial harm).

In such a situation, the provider may request that the individual document how the circumstances have changed so that he no longer poses a direct threat.

A provider may also obtain satisfactory assurances that the individual will not pose a direct threat during the tenancy. The housing provider must have reliable, objective evidence that a person with a disability poses a direct threat before excluding him from housing on that basis.