0770-01-05-.30 - FAIR HOUSING COMPLIANCE, DISABILITY ACCOMMODATION, AND THE VIOLENCE AGAINST WOMEN ACT (VAWA)

0770-01-05-.30. FAIR HOUSING COMPLIANCE, DISABILITY ACCOMMODATION, AND THE VIOLENCE AGAINST WOMEN ACT (VAWA)

(1) Fair Housing (24 C.F.R. 982.54(d)(6)). It is the policy of the THDA to comply fully with all Federal, State, and local nondiscrimination laws and rules and regulations governing Fair Housing and Equal Opportunity in housing.

(a) Pursuant to the State of Tennessee's policy of non-discrimination and federal housing policy, the THDA does not discriminate on the basis of race, sex, religion, color, national or ethnic origin, age, family or marital status, disability, handicap, military status, sexual orientation or gender identity in its policies, or in the admission to or access to, or treatment or employment in, its programs, or services or activities.

(b) To further its commitment to full compliance with applicable Civil Rights laws, the THDA provides information to HCV Program applicants and participants regarding "discrimination" and any recourse available should they feel they have been victims of discrimination. Such information is made available during the eligibility briefing and the annual recertification appointment. Applicable fair housing information and the HUD Discrimination Complaint Form is included in the THDA applicant briefing packet and annual packet.

(c) Except as otherwise provided in 24 C.F.R. 8.21(c)(1), 8.24(a), 8.25, and 8.31, no qualified individual with disabilities shall, because the THDA's facilities are inaccessible to or unusable by persons with handicaps, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity that receives federal financial assistance. The THDA's central office and all field offices are handicap accessible. Program accessibility for the hearing impaired is provided by the TDD telephone number: (615) 532-2894.

(d) To ensure "greater mobility and housing choice" for extremely low income households served by the THDA, the THDA has created a statewide online rental housing search database available for any interested renter, TNHousingSearch.org. Information about the housing search engine will be provided to applicants at initial eligibility.

(2) Interpreters. The THDA will, as needed, make available an interpreter to assist non-English speaking families or a person of limited English proficiency. The THDA also works with organizations who assist hearing and sight-impaired persons to provide assistance where needed.

(3) Verification of Existence of a Disability. The THDA must verify the existence of a disability in order to allow certain income disallowances and deductions from income.

(a) Household Members Receiving SSA/SSI Benefits.

1. Verification of receipt of SSA benefits or SSI based upon disability is sufficient for verification of disability for the purpose of qualification for waiting list preferences or income disallowances and deductions based on disability. If SSA documents indicate that the household member has a permanent disability, no further verification in the future is necessary.

2. Individuals who receive SSI benefits for a permanent disability and then lose their SSI benefits, most likely due to employment, do not need to provide new verification of disability once SSI payments cease.

3. If an individual loses his or her SSI benefits because the SSA has determined that the person is no longer disabled, the THDA will require third-party verification from a knowledgeable physician (form THDA HM-350) to continue considering the individual as disabled.

4. Receipt of veteran's disability benefits, worker's compensation or other non-SSA benefits based on the individual's claimed disability are not sufficient verification that the individual meets HUD's definition of disability in 24 C.F.R. 5.603, necessary to qualify for waiting-list preferences or certain income disallowances and deductions.

(b) Household Members Not Receiving SSA Disability Benefits. The household must provide third-party verification for household members claiming disability who do not receive SSI or other disability payments from the SSA. The THDA will mail a Verification of Disability form to a knowledgeable physician identified by the household member to verify that the household member meets the HUD definition of disability. See § 0770-01-05-.30(4) for the HUD definition of disability.

(c) No staff member of the THDA is permitted to inquire about the nature or extent of a person's disability (24 C.F.R. 100.202(c)), a person's diagnosis, or details of treatment for a disability or medical condition.

1. If the THDA receives a verification document that provides such information, staff members will not place this information in the tenant file. Any such document will be returned to the household or destroyed.

2. Under no circumstances will the THDA request a participant's medical records.

3. The following inquiries are not prohibited, provided these inquiries are made of all applicants, whether or not they are persons with disabilities:

(i) Inquiry into an applicant's ability to meet the requirements of ownership or tenancy,

(ii) Inquiry to determine whether an applicant is qualified for a dwelling available only to persons with disabilities or to persons with a particular type of disability,

(iii) Inquiry to determine whether an applicant for a dwelling is qualified for a priority available to persons with disabilities or to persons with a particular type of disability,

(iv) Inquiry into whether an applicant for a dwelling is a current illegal abuser or addict of a controlled substance; or

(v) Inquiry into whether an applicant has been convicted of the illegal manufacture or distribution of a controlled substance.

(4) Disability Accommodations Policy (24 C.F.R. 700.245(c)(3); Joint Statement of HUD and DOJ, Reasonable Accommodations under the Fair Housing Act, May 17, 2004). The THDA's policies and practices are designed to provide assurances that all persons with disabilities will be provided reasonable accommodation so that they may fully access and utilize the housing program and related services. The availability of specific accommodations will be made known by including notices on the THDA forms to all families.

(a) Persons with Disabilities (24 C.F.R. 982.153(b)(6)).

1. According to the Federal Americans with Disabilities Act of 1990, with respect to an individual, the term "disability" means:

(i) A physical or mental impairment that substantially limits one or more of the major life activities of an individual;

(ii) A record of such impairment; or

(iii) Being regarded as having such an impairment.

(I) Those "regarded as having such an impairment" may include those with conditions such as obesity or cosmetic disfigurement, and individuals perceived to be at high risk of incurring a work-related injury.

2. Individuals with contagious diseases who do not pose a direct threat to others are covered by the Act. AIDS victims and those who test positive for the HIV virus are considered to have a disability.

3. An individual who has an infectious or communicable disease that is transmitted to others through the handling of food, the risk of which cannot be eliminated by reasonable accommodation, may be refused an assignment or a continued assignment to a job involving food handling. The Secretary of Health and Human Services annually will publish a list of those diseases that are transmitted through food handling.

4. Rehabilitated alcohol and drug users are considered to be persons with disabilities for purposes of the Act. However, current alcohol and drug users can be held to the same qualification standards for job performance as other employees.

(b) Qualification for Accommodation.

1. Substantially Limit Major Life Activity. To qualify for an accommodation, the Act requires that the disability substantially limit, or to a significantly large degree limit, major life activity. This is defined as those activities that are of central importance to daily life, such as seeing, hearing, walking, breathing, and performing manual tasks, caring for one's self, learning, or speaking.

2. Undue Hardship, Financial or Administrative. Requests for a reasonable accommodation from persons with disabilities will be granted upon verification that they meet the need presented by the disability and they do not create an "undue financial and administrative burden, " meaning an action requiring "significant difficulty or expense." This standard is not specifically defined in the Act. In determining whether an accommodation would create an undue hardship, the following guidelines are considered:

(i) The nature and cost of the accommodation needed;

(ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; and

(iii) The number of persons employed as part of the organization, the number of families likely to need such an accommodation, the effect on expenses and resources, or the likely impact on the operation of the program as a result of the accommodation.

(c) Request for Disability Accommodation. Individuals seeking an accommodation due to a disability must submit the THDA's Request for Reasonable Accommodation form to the THDA. A family member or other person familiar with the individual household member's disability may also make the request on behalf of the disabled member. The form helps the THDA staff understand the nature and scope of the request, identify which household member is affected, and explains the relationship between the requested accommodation and the individual's disability.

1. Once the THDA receives the accommodation request from the household, a Medical Certification of Reasonable Accommodation form will be sent to a medical professional identified to verify the request. Any medical professional familiar with the individual's disabling condition and the relationship between the requested accommodation and the individual's disability may complete and sign the form, including a physician, physician assistant, nurse practitioner, licensed therapist, licensed clinical social worker, psychologist, etc. In some cases, a service agency or other third party familiar with the individual's disability and related housing need may also complete the medical certification.

2. The following forms are used for verification:

(i) Medical Certification for Larger Unit Size. Used when the requested accommodation is for an increased subsidy standard/bedroom allocation.

(ii) Live-in Aide Medical Certification. Used when the requested accommodation is for a live-in care attendant.

(iii) Medical Certification for Reasonable Accommodation. Used for all other accommodation requests.

3. Once the appropriate medical certification form is received, if additional information is needed, it may be requested from the family or medical professional.

(d) Specific Accommodations.

1. Consideration for Requests for a Higher Subsidy Standard (Bedroom Allocation) or Payment Standard. When an accommodation request is submitted for an increased subsidy standard or bedroom allocation or an exception payment standard, which increases the cost of the subsidy, the THDA must weigh the financial and administrative burden granting the larger unit size or exception payment standard will have on the overall program and its applicants and participants against the individual's need for a larger unit size.

2. Subsidy Size Increases for Medical Equipment Use/Storage; Live-in Aide

(i) If an applicant or participant requests a reasonable accommodation for an increased subsidy size to store or access medical equipment, the THDA must determine that the size, amount, or nature of the equipment requires that an additional bedroom be granted for this purpose or if a less costly accommodation is available. The family may be asked to store the equipment in another room within the unit if so doing will not place a burden on the family, if the equipment may be suitably stored or used within another room within the unit. If an additional bedroom is granted for medical equipment, the primary purpose of the room must be medical equipment storage and use, and the client must need the room for medical equipment storage or access at all times (HUD PIH Notice 2009-22).

(ii) If a subsidy size increase is granted for medical equipment or a live-in aide, the THDA will verify before approval and at the annual HQS inspection that the additional room is being used for the stated purpose (equipment or live-in aide). If it is not being used for the stated purpose, the family will be considered "over-subsidized, " and the subsidy size (payment standard) will be reduced. If the THDA has cause to believe that the bedroom is not being used for its' stated purpose at a time other than annual, the THDA may schedule an appointment to verify that the additional room is being used for the purpose stated in the accommodation request. It is considered a violation of the family obligations, failure to supply true and complete information, when a family members states that they need an additional bedroom for medical equipment and storage or a live-in aide, and the family does not use the additional bedroom for this stated purpose. Therefore, if it is found that the family fraudulently requested the additional bedroom and is using it for another purpose at a time other than annual, the subsidy size may be decreased with a thirty (30) day notification and the family will be responsible for any overpayment.

(iii) A person may not be designated as a live-in aide if the medical certification verifies that full time live in care is required, and the person submitted as the aide works full time outside of the home, unless the family verifies that a service agency provides care during the day for the disabled member.

The person submitted as the live-in aide may be added as an "other adult" if desired and eligibility criteria are met.

3. Payment Standard Exception. If an applicant or participant requests that a higher payment standard be used as a reasonable accommodation to enable the applicant or participant to obtain a unit that meets their special needs, the applicant or participant must complete the THDA Request for Reasonable Accommodation form, and the THDA will mail a medical certification form to a knowledgeable medical professional to verify the need for the accommodation. If approved, the increase in the payment standard cannot exceed 120% of FMR.

(i) HUD has issued guidance, which allows the THDA to approve a payment standard of not more than 120 percent of the FMR without HUD approval if required as a reasonable accommodation for a household that includes a person with disabilities. This provision allows the THDA to establish a payment standard within limits, which were formerly permitted but designated for approval only by a HUD Field Office (24 C.F.R. 982.503(c)(2)(B)(ii)).

(ii) THDA must perform a rent reasonableness determination in accordance with the section 8(o)(10) of the U.S. Housing Act of 1937 and the HCV program regulations.

(iii) THDA must maintain documentation that the THDA performed the required rent reasonableness analysis.

(iv) In addition, the THDA must maintain documentation that the unit has the feature(s) required to meet the needs of the person with disabilities.

4. HUD Approval of Exception Payment Standard Amount. HUD may approve a Payment Standard amount that is higher than the basic range (90-110%) for a designated part of the FMR area if the field office determines that such approval is justified by either the median rent method or 40th percentile rent.

(e) Verification of a Request for Accommodation.

1. Individuals seeking an accommodation due to a disability must submit the THDA's Request for Reasonable Accommodation form to the THDA's 504 Coordinator. A family member or other person familiar with the individual household member's disability may also make the request on behalf of the disabled member. The form assists the THDA in understanding the nature and scope of the request, identifying which household member is affected, and explains the relationship between the requested accommodation and the individual's disability.

2. Once the THDA receives the accommodation request from the household, a Medical Certification of Reasonable Accommodation form will be sent to a medical professional identified to verify the request. Any medical professional familiar with the individual's disabling condition and the relationship between the requested accommodation and the individual's disability may complete and sign the form, including a physician, physician assistant, nurse practitioner, licensed therapist, licensed clinical social worker, psychologist, etc. In some cases, a service agency or other third party familiar with the individual's disability and related housing need may also complete the medical certification.

3. The need for a reasonable accommodation must be verified annually, particularly when the accommodation is an increase in subsidy size (HUD notice PIH 2009-22).

(f) Denial or Approval of an Accommodation Request. The accommodation approval or denial will be communicated within thirty (30) days of the date of request. Approvals may be verbally communicated to the family, but all denials will be stated in writing with an explanation for the denial reason.

(5) Guardianship/Conservatorship. When the head of household or sole household member has a physical or mental impairment that prevents them from taking care of their own basic needs and as a result is in danger of harm, a court may appoint a legal guardianship or conservator.

(a) Guardianship. A guardianship is a legal right given to a person to be responsible for the food, health care, housing, and other necessities of a person deemed fully or partially incapable of providing these necessities for him or herself. In cases where a guardian has been appointed, the THDA will conduct all necessary communication and appointments with the guardian on the family's behalf. The guardian must sign all required forms on behalf of the impaired person.

(b) Conservatorship. In some cases, the head of household or sole household member may also have a conservator. A conservatorship is a legal right given to a person to be responsible for the assets and finances of a person deemed fully or partially incapable of providing these necessities for him or herself. In cases where a guardian or conservator is assigned by a court, said person(s) must appear at any required appointments on behalf of the household and respond promptly to requests for information from the THDA. The guardian or conservator is acting on behalf of the head of household or sole household member, and thus, assumes the responsibility of cooperating with the family responsibilities for the household.

(c) Verification. The THDA requires proof of guardianship or conservatorship. Acceptable documentation is the "letter of authority" from a court or other acceptable court documentation.

(d) Group Facilities/Special Needs.

1. If an individual is residing in a group facility or special needs housing, the guardian who signs required housing assistance forms/paperwork on behalf of the family may not be the HAP payee because such a relationship may present a conflict of interest.

2. Where a legal guardian is appointed for an individual by a court, the guardian must appear on behalf of the family at required appointments, and/or complete all required paperwork. It is not appropriate for another individual working in the facility where the individual resides to complete or sign paperwork on an applicant or participant's behalf without the involvement of the legal guardian assigned by the courts.

3. If an individual resides in a group setting but does not have an incapacitating disabling condition or an appointed guardian or conservator, the individual should sign documents on their own behalf, as well as attend required appointments. A group home administrator or other representative may attend the appointment with the individual if they desire, but the group home administrator or representative must not sign required documents on the individual's behalf, unless the court has appointed that person the legal guardian or conservatorship.

(6) Violence Against Women Act (24 C.F.R. 5.2003; 5.2005; 5.2007; 5.2009). The law protects all victims (not just women) of domestic violence, dating violence or stalking, as well as their immediate family members, from being evicted or being denied housing assistance if an incident of violence is reported and confirmed. The VAWA also provides that an incident of actual or threatened domestic violence, dating violence or stalking does not qualify as a serious or repeated violation of the lease nor does it constitute good cause for terminating the assistance, tenancy, or occupancy rights of the victim. Furthermore, criminal activity directly relating to domestic violence, dating violence, or stalking is not grounds for terminating the victim's tenancy.

(a) Definitions for Purposes of VAWA.

1. Immediate Family Member. A spouse, parent, brother or sister, or child of the person, or an individual to whom that person stands in loco parentis (in place of a parent); or any other person living in the household of that person and related to that person by blood or marriage.

2. Domestic Violence. Felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabited with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction.

3. Dating Violence. Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship is determined based on a consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

4. Stalking. To follow, pursue, or repeatedly commit acts with the intent to kill, injure, harass, or intimidate or to place under surveillance with the intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such following, pursuit, surveillance, or repeatedly committed acts, to place a person in reasonable fear of the death of, or serious bodily injury to, or to cause substantial emotional harm to, that person; a member of the immediate family of that person; or the spouse or intimate partner of that person.

(b) General THDA Policy. The THDA strives to help child and adult victims of domestic violence, dating violence, sexual assault or stalking preserve their rental assistance. All persons who receive a housing choice voucher are notified of their rights under the Violence Against Women Act (VAWA) at the initial briefing. A copy of the HUD form 5066 is included in the Applicant Booklet and the Annual Packet distributed to participants at annual reexamination each year. Families are encouraged to notify the THDA when they need protection under this law. The THDA also works with owners to understand the Act and their obligations under it and the HAP Contract.

(c) Verification. HCV families who claim VAWA protection are required to provide the THDA with written documentation. HUD allows families to complete a written self-certification and has also expanded the scope of evidence that the victim may produce in order to support their claim. The evidence of violence may include, but is not limited to, a written statement from an eye witness, police records, employee/employer, agent or volunteer of victims service provider, attorney, medical professional, etc.

1. All requests for certification of VAWA protections from the owner to the family should also be made in writing.

2. The THDA will not consider it to be a program violation when VAWA families vacate the assisted unit without prior notice when they are fleeing documented violence. The THDA relocation policy considers documented domestic violence issues under the good cause policy for relocation.

(Original rule filed May 16, 1980; effective June 30, 1980. Repeal filed September 28, 2004; effective December 12, 2004. Repeal and new rule filed June 4, 2015; effective September 2, 2015. Amendments filed October 5, 2018; effective January 3, 2019.)

Authority: T.C.A. §§ 13-23-104, 13-23-115(18), 42 U.S.C. §§ 1437, and 24 C.F.R., Part 982.

The following state regulations pages link to this page.