HUD Handbook 4350.3 § 2-31

A.        In applying the nondiscrimination requirements of Section 504 and the Fair
                 Housing Act regarding persons with disabilities, owners must ensure that the
                 policies used at properties covered by this section are consistent with the
                 requirements in this paragraph and paragraphs 2-32 and 2-33 below.

       B.        Owners must determine the eligibility of each applicant on a case-by-case basis.

       C.        Owners must admit applicants in accordance with the eligibility requirements of
                 the particular program/project. (See Chapter 3.)

       D.        Owners must uniformly apply the eligibility and tenant selection criteria to all
                 applicants. (See Chapter 4.)

6/07                                              2-26                          HUD Occupancy Handbook
                                                                                Chapter 2: Civil Rights and
                                                                            Nondiscrimination Requirements

Requirements for Persons with Disabilities

Subsection 2:
Policies and Procedures to Ensure
Nondiscrimination and Promote Accessibility

E.       Owners must not make certain inquiries to determine eligibility.

                  1.       The Fair Housing Act regulations state that it is unlawful for an owner to
                           inquire:

                           a.       Whether an applicant for a dwelling, a person intending to reside
                                    in a dwelling after it becomes available, or anyone associated with
                                    an applicant or resident, has a disability; or

                           b.       As to the nature or severity of a disability of such person(s).

                  2.       Owners may, however, make the following inquiries, provided these
                           inquiries are made of all applicants, whether or not they are persons with
                           disabilities:

                           a.       Inquiry into an applicant’s ability to meet the requirements of
                                    tenancy; and

                           b.       Inquiry to determine if an applicant is a current illegal abuser or
                                    addict of a controlled substance.

                  3.       Some properties may be lawfully restricted to persons with disabilities in
                           general, or to persons that fall within one or more of three categories of
                           disability (i.e., physical disability, developmental disability, chronic mental
                           illness), such as Section 811 PRAC properties or Section 202 Direct Loan
                           properties. Owners of such properties may make inquiries of all
                           applicants to determine whether:

                           a.       An applicant qualifies for the housing that is available only to
                                    persons with disabilities, or to members of the category of
                                    disability served by the project; and

                           b.       An applicant qualifies for a priority available to persons with
                                    disabilities or to persons with a particular category of disability.

                  4.       It is unlawful for an owner to make inquiries designed to determine
                           whether an applicant may live independently.

                  5.       It is a good practice for a property’s rental application to define “disability”
                           per program requirements and then ask if the applicant qualifies as a
                           person with disabilities under that definition. The application should also
                           advise all tenants that if they have a disability, and need a reasonable
                           accommodation in order to participate in the application process or to
                           make effective use of the housing program, they have the right to request
                           such an accommodation. The application should define reasonable
                           accommodation and explain the process by which the housing provider
                           will consider requests for reasonable accommodations.
HUD Occupancy Handbook                                2-27                                                 6/07
Chapter 2: Civil Rights and
Nondiscrimination Requirements

                                                                Additional Nondiscrimination and Accessibility
                                                                   Requirements for Persons with Disabilities

                                                                                               Subsection 2:
                                                                           Policies and Procedures to Ensure
                                                                  Nondiscrimination and Promote Accessibility

6.     For a discussion of applicable marketing, application, and screening
                        practices, see Chapter 4.

             Example – What Owners May Ask or Must Not Ask Applicants Applying
                                   for Accessible Units
            An owner offers accessible units to persons needing the features of these
            units on a priority basis. The provider may ask applicants whether they have
            a disability such that they will benefit from the features of the units, but may
            not in such circumstances ask applicants whether they have other types of
            impairments.

F.        Owners may verify a person’s disability but must adhere to certain verification
                 guidelines.

                 1.     The owner may verify a person’s disability only to the extent necessary to
                        document that applicants:

                        a.       Are qualified for the housing for which they are applying **(see
                                 Figure 3-5 on determining project eligibility and Figure 3-6 for
                                 applicable disability definitions by program type):**

                        b.       Are qualified for deductions used in determining adjusted income;

                        c.       Are entitled to any preference they may claim;

                        d.       Who have requested a reasonable accommodation have a
                                 disability-related need for the requested accommodation or
                                 modification; and

                        e.       Need the design features of the unit.

                 2.     Owners may not require applicants to provide access to confidential
                        medical records in order to verify a disability.

                 3.     Additional information on verifying eligibility of persons with disabilities
                        can be found in paragraph **3-28** B and in **Appendix 6**.