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Know Your Rights, Rules & Regulations

Service & Support Animals & Housing

posted Sep 12, 2013, 9:29 PM by Neslo Ventures   [ updated Sep 12, 2013, 10:48 PM ]

This is an excerpt from Service and Emotional Support Animals as Reasonable Accommodations Under the Fair Housing Act.  The entire document is attached below.


The Fair Housing Act affords wide protection for individuals with disabilities, including: having a physical or mental disability that substantially limits one or more major life activities, having a record of such a disability, or “Emotional support animals have been proven extremely effective at ameliorating the symptoms of these disabilities, such as depression and post-traumatic stress disorder, by providing therapeutic nurture and support.” Bazelon Center for Mental Health Law, Fair Housing Information Sheet #6 Right To Emotional Support Animals In “No Pet” Housing being regarded as having such a disability.


A wide range of disabilities are covered under the Act; as “physical or mental impairment” includes the following: orthopedic, visual, speech and hearing impairments; as well as, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV/AIDS, mental incapacity, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance), and alcoholism.
Significantly, a housing provider may not refuse to let a disabled individual make reasonable modifications to their dwelling or common areas or refuse to make reasonable accommodations in rules, policies, practices, or services for the disabled individual to use the housing.

For this discussion, the key provision of the amended statute makes it “unlawful to refuse to make reasonable accommodations to afford a handicapped person equal opportunity to use and enjoy a dwelling.

Plaintiffs can prevail under the Fair Housing Act by proving discriminatory intent on the part of the defendant or on the theory that the defendant’s conduct has a disparate impact on individuals with disabilities.

Discriminatory intent cases are straightforward, as the housing provider refuses to provide housing to an individual solely because of that person’s race, color, national origin, gender, familial status, or disability. Courts follow the burden shifting method in analyzing disparate impact cases. In the case of a disabled person, the plaintiff must first establish a prima facie case of housing discrimination, showing the following four elements: 1) the plaintiff suffers from a disability; 2) the housing provider knew of the disability or should reasonably be expected to know of it; 3) the accommodation of the disability may be necessary to afford the plaintiff an equal opportunity to use and enjoy the dwelling; and 4) the housing provider refused to make such accommodation.

Victims of housing discrimination have a number of options under the Fair Housing Act; a complainant “may commence action under the federal act, in state or federal court, [or] by filing an administrative complaint with the Department of Housing and Urban Development (HUD).”

Additionally, state and local laws also prohibit discrimination based on handicap or disability such as the provisions found in the Illinois Human Rights Act or the Chicago Fair Housing Ordinance.

It should be noted that plaintiffs are not required to exhaust administrative remedies before resorting to the courts.

So, plaintiffs may initiate an action in federal or state courts without referring the matter to HUD or a state or local agency, such as the Illinois Department of Human Rights or the Chicago Commission on Human Relations. As stated previously, disabled individuals may be able to keep their service or support animals despite a “no pets” policy under the reasonable accommodation provision of the Fair Housing Act.


The original letter is attached below.

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
WASHINGTON, DC 20410-2000

February 17, 2011

TO:              FHEO Region Directors Regional Counsel Sara K. Pratt,
                    Deputy Assistant Secretary for Enforcement and Programs

SUBJECT:  New ADA Regulations and Assistance Animals as Reasonable Accommodations
                    under the Fair Housing Act and Section 504 of the Rehabilitation Act of 1973

I.    Purpose

This memo explains that the Department of Justice’s (DOJ) recent amendments to its Americans with Disabilities Act (ADA) regulations do not affect reasonable accommodation requests under the Fair Housing Act (FHAct) and Section 504 of the Rehabilitation Act of 1974 (Section 504). The DOJ’s new rules limit the definition of “service animal” in the ADA to include only dogs. The new rules also define “service animal” to exclude emotional support animals. This definition, however, does not apply to the FHAct or Section 504. Disabled individuals may request a reasonable accommodation for assistance animals in addition to dogs, including emotional support animals, under the FHAct or Section 504. In situations where both laws apply, housing providers must meet the broader FHAct/Section 504 standard in deciding whether to grant reasonable accommodation requests.


II.    Definitions of Service Animal


The DOJ’s new ADA rules define “service animal” as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The new rules specify that “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” Thus, trained dogs are the only species of animals that may qualify as service animals under the ADA (there is a separate provision regarding miniature horses) and emotional support animals are expressly precluded from qualifying as service animals.

Neither the FHAct, Section 504, nor HUD’s implementing regulations contain a specific definition of the term “service animal.” However, species other than dogs, with or without training, and animals that provide emotional support have been recognized as necessary assistance animals under the reasonable accommodation provisions of the FHAct and Section 504.

The new ADA regulation does not change this FHAct/Section 504 analysis, and specifically notes, “[u]nder the FHAct, an individual with a disability may have the right to have an animal other than a dog in his or her home if the animal qualifies as a ‘reasonable accommodation’ that is necessary to afford the individual equal opportunity to use and enjoy a dwelling, assuming that the animal does not pose a direct threat.”
2 In addition, the preambles to the new rules state that emotional support animals do not qualify as service animals under the ADA but may “nevertheless qualify as permitted reasonable accommodations for persons with disabilities under the FHAct.”

III.       Applying the Law

Under the FHAct and Section 504, individuals with a disability may be entitled to keep an assistance animal as a reasonable accommodation in housing facilities that otherwise impose restrictions or prohibitions on animals. In order to qualify for such an accommodation, the assistance animal must be necessary to afford the individual an equal opportunity to use and enjoy a dwelling or to participate in the housing service or program. Further, there must be a relationship, or nexus, between the individual’s disability and the assistance the animal provides. If these requirements are met, a housing facility, program or service must permit the assistance animal as an accommodation, unless it can demonstrate that allowing the assistance animal would impose an undue financial or administrative burden or would fundamentally alter the nature of the housing program or services. 4

Under the ADA, the animal need only meet the definition of “service animal” to be covered by the law. No further test or reasonable accommodation analysis should be applied . An individual’s use of a service animal in an ADA-covered facility should not be handled as a request for reasonable accommodation. If an animal qualifies as a “service animal,” ADA-covered entities may not restrict access to a person with a disability on the basis of his or her use of that service animal unless the animal is out of control and its handler does not take effective action to control it or if the animal is not housebroken. The service animal must be permitted to accompany the individual with a disability to all areas of the facility where customers are normally allowed to go.

The new ADA definition of “service animal” applies to state and local government services, public accommodations, and commercial facilities; the FHAct covers housing services and facilities; and HUD’s Section 504 regulations apply to all recipients of HUD-funds. Some types of entities, such as rental offices and housing authorities, are subject to both the service animal requirements of the ADA and the reasonable accommodation provisions of the FHAct or Section 504. Entities must ensure compliance under all relevant civil rights laws. Compliance with the ADA’s regulations does not ensure compliance with the FHAct or Section 504. An entity that is subject to both the ADA and the FHAct or Section 504 must permit access to ADA-covered “service animals” and, additionally, apply the more expansive assistance animal standard when considering reasonable accommodations for persons with disabilities who need assistance animals that fall outside the ADA’s “service animal” definition.

IV.       Conclusion

The ADA regulations’ revised definition of “service animal” does not apply to reasonable accommodation requests for assistance animals in housing under either the FHAct or Section 504. Rules, policies, or practices must be modified to permit the use of an assistance animal as a reasonable accommodation in housing when its use may be necessary to afford a person with disabilities an equal opportunity to use and enjoy a dwelling, common areas of a dwelling, or participate in, or benefit from, any housing program receiving Federal financial assistance from HUD, unless an exception applies.
_________________

1 Nondiscrimination on the Basis of Disability in State and Local Government Services, Final Rule, 75 Fed. Reg. 56164 (Sept. 15, 2010) (to be codified at 24 C.F.R. part 35); Nondiscrimination on the Basis of Disability in State and Local Government Services, Final Rule, 75 Fed. Reg. 56236 (Sept. 15, 2010) (to be codified at 24 C.F.R. part 36).

2 75 Fed. Reg. at 56194, 56268.

3 75 Fed. Reg. at 56166, 56240.

4 The request may also be denied if the specific animal in question poses a direct threat to the health and safety of others that cannot be reduced or eliminated by a reasonable accommodation or if the specific animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by a reasonable accommodation.


Claimant's Rights and Responsibilities

posted Nov 9, 2012, 6:14 PM by Neslo Ventures   [ updated Nov 9, 2012, 6:47 PM ]

AS PER THE VA:

M21-1MR

Part I Part II Part III Part IV Part V Part VI Part VII Part VIII Part IX Part X Part XI


Part 1. Claimants Rights and Responsibilities Updated 


Table of Contents 8/1/2002


Chapter 1 - Duty to Assist
Table of Contents 5/3/2012
Section A - Description and General Information 4/25/2007
Section B - Handling Claims Under 38 U.S.C 5103 5/3/2012
Section C - Requesting Records 3/30/2012


Chapter 2 - Due Process
Table of Contents 9/27/2011
Section A - General Information on Due Process 8/4/2009
Section B - Notice of Proposed Adverse Action 8/19/2005
Section C - Adverse Action Proposal Period Sep-11
Section D - Contemporaneous Notice 8/4/2009
Section E - Exhibits 8/4/2009




Chapter 3 - Power of Attorney
Table of Contents 3/28/2011
Section A - General Information on Power of Attorney (POA) 3/28/2011
Section B - Handling Power of Attorney (POA) Appointments 9/27/2011
Section C - Payment of Attorney or Agent Fees 2/29/2012


Chapter 4 - Hearings  9/27/2011


Chapter 5 - Appeals
Table of Contents 9/27/2011
Section A - General Information on Appeals 3/28/2011
Section B - Notice of Disagreement (NOD) 12/10/2009
Section C - Decision Review Office (DRO) Review Process 3/28/2011
Section D - Statement of the Case (SOC) and Supplement Statement of the Case (SSOC), 2/6/2012
Section E - Filing a Substantive Appeal 3/28/2011
Section F - Docketing, Certification, and Claims Folder Transfer 2/6/2012
Section G - Board of Veterans Appeals (BVA) Decisions and Remands 9/27/2011
Section H - Board of Veterans Appeals (BVA) Hearings 8/29/2011
Section I - Court of Appeals for Veterans Claims (CAVC), 8/19/2005
Section J - Special Appeal Issues and Cases 9/27/2011
Section K - Veterans Appeals Control and Locator System (VACOLS) 3/28/2011

2012 Military Advantage Benefit Guide Book

posted Sep 3, 2012, 9:01 PM by Neslo Ventures   [ updated Sep 3, 2012, 9:01 PM ]

Week of September 03, 2012

The 2012 Military Advantage Benefit Guide Book is packed with updated benefit information. Find answers to all your benefit questions -- Pay, TRICARE, VA Loans, GI Bill, Tuition Assistance, Transition, Family Benefits and More.

New VA Handbook - September 2012

posted Sep 3, 2012, 8:53 PM by Neslo Ventures   [ updated Sep 3, 2012, 8:53 PM ]

Week of September 03, 2012

The 2012 edition of the Federal Benefits for Veterans, Dependents and Survivors is now available online. Produced by the Department of Veterans Affairs (VA), the handbook's chapters cover such topics as VA pensions, home loans, medals and records, special veterans groups, and other federal benefits. It also has a listing of VA facilities, plus links to helpful websites and a telephone directory. The handbook is available in English or Spanish on the VA website at www1.va.gov/opa/publications/benefits_book.asp .

Know Your Voting Rights

posted Jul 31, 2012, 9:11 PM by Info @NesloVentures   [ updated Jul 31, 2012, 9:11 PM by Neslo Ventures ]

Week of July 30, 2012

With stateside elections coming up, people seeking clarification on topics such as where to send their ballots, where they can vote, state of residency and other issues should contact their unit voting assistance officers. These representatives can assist with gathering information about candidates or political parties as requested, but will not offer opinions in an attempt to sway a potential voter. Obtaining absentee ballots can be a simple process when using www.fvap.gov . All potential voters need is their state license or identification card number and voting residence in the U.S. to get started. For more information, contact your voting assistance office and visit the U.S. Office of Special Counsel website.

To keep up with political issues and legislation that affects military benefits, visit the Military.com Legislative Center.

Veterans Bill of Rights

posted Jan 24, 2012, 8:45 PM by Dawn Olsen   [ updated Jan 24, 2012, 8:45 PM by Neslo Ventures ]

New Garnishment Policy

posted Dec 7, 2011, 6:46 PM by Info @NesloVentures   [ updated Dec 7, 2011, 6:46 PM by Neslo Ventures ]

Veteran’s Disability Benefits Under Attack Again!

by Jere Beery Courtesy of Veterans Today

New garnishment policy enacted by the US Department of Treasury. Below is the explanation of the new policy enacted by the US Department of the Treasury. This legislation misses the mark on current federal garnishment protection under USC Title 42 §659.(h)(1)(B)(iii) for disabled veterans in receipt of disability compensation.

This language also contradicts the current language and protection under USC Title 38 §5301, which stipulate that any money traceable to VA disability is not considered property, nor subject to attachment, seizure, garnishment, levy under any legal process whatsoever. When civil courts garnish veterans’ disability under the premise of this new policy, it can be construed as double jeopardy, since federal laws already protect all benefit moneys against any garnishment order. The Department of Treasury would no legislative authority under the current federal statutes to garnish any veterans’ disability compensation, nor can it extend this fraudulent authority to the banks. To do so would constitute a violation of the federal laws that prohibit such legal process.

The U.S. Department of the Treasury recently enacted a new regulation that requires banks to protect federal benefits from being garnished. Before these protections were in place, exempting federal benefit payments from being garnished was hit or miss depending on your showing up in court or proving that the funds in your account were exempt. Here is what you need to know:

The new policy became effective May 1, 2011, and requires banks to review accounts when they receive a garnishment order. If the account contains federal benefits from any of the following sources, then the bank must protect those funds:

  • Social Security,
  • Supplemental Security Income,
  • Veterans Affairs, Railroad Retirement,
  • Railroad Unemployment Insurance
  • Civil Service Retirement System and Benefits from the Office of Personnel Management or
    Federal Employees Retirement System.

Well, at least a portion of them. In order for the federal benefits to qualify for protection, they must be directly deposited into the bank account. Federal benefit deposits made by check do not qualify for protection.

The protected amount would be based only on the federal benefit deposits identified in the previous two months immediately preceding the garnishment order. The bank is required to review the accounts of the person named in the garnishment order within two days after receipt of an order. For example, if during the look-back period the bank identifies two federal benefit deposits of $1,000 each, they are required to protect $2,000 of funds in the account.

The bank is required to review all accounts for the person named in the garnishment order, but is only required to protect funds in the account(s) where the federal benefits are direct deposited. So, if you move money from your checking account (where your VA benefit is direct deposited) into your saving account, the funds in your saving account are not protected from garnishment.

Any funds in the account in excess of the protected amount established during the two-month period preceding the garnishment order are not protected and are eligible for garnishment per the order received by the bank.
If the garnishment is to pay delinquent child support or a federal debt, then the above rules do not apply and all the funds are subject to the court order or IRS levy.

So, if your bank receives a garnishment order for you and your Veterans Affairs benefits are directly deposited, they should be protected. But, any money in the account in excess of two months of VA deposits or any money in other accounts at that bank would be fair game for the credit card company.

This new policy punishes veterans by seizing their disability compensation by attempting to redefine the garnishment protection under USC Title 42 §659 and USC Title 38 §5301. There are no special conditions on such garnishment for it protects any and all disability compensation disbursed by the Department of veterans Affairs. This language under this new law attempts to undermine the original intention of Congress under USC Title 38 §5301. It would not make sense for the federal government to implement laws that contradict other federal laws in such protection, consequently subjecting them to ambiguity in its interpretation.

It is hard to imagine that the other Veterans Service Organizations failed to understand the implications of this new law in its entirety, since, it does presents questions on whether current laws will supersede the existing federal statutes under USC Title 42 §659 and USC Title 38 §5301.

If you are a disabled veteran receiving service-connected disability compensation, you would be well advised to take your money out of the bank and bury it in a can in your backyard.

Contributing to this article;


Simon Alvarado, MSW
Legislative/Research analyst
Operation Firing For Effect

How & Where to report VA abuse & fraud

posted Aug 30, 2011, 7:25 PM by Info @NesloVentures   [ updated Aug 30, 2011, 7:27 PM by Neslo Ventures ]

How & Where to report VA abuse and fraud

War veterans who suffer physical and emotion illness frequently suffer financial hardships due to their inability to find suitable employment. Veterans Affairs (VA) offers substantial medical services and benefits to those who have suffered a disability.

Unfortunately, the VA disability benefits can serve as an incentive to commit fraud and abuse. Psychiatric disabilities, like Post Traumatic Stress Disorder (PTSD), is one area that has seen a substantial increase of claims. One study of veterans seeking a PTSD disability claim found that 69% of those veterans scored higher for symptoms of malingering than the control group of non compensation seeking veterans on the Minnesota Multiphasic Personality Inventory-2 (MMPI-2).

Just because someone does not appear to have a disability does it mean their claim is fraudulent. Before acting on your instincts to report fraud it is best to find out why they are receiving those benefits. If you have ever thought that someone in a handicap parking space looks healthy, but later come to learn that they are waiting for a kidney transplant, you learn not to judge by appearances. Another example is someone who often experiences seizures.

Because PTSD is not a affliction that can be measured it is difficult to determine who is a malingerer and who legitimately suffers from the disorder. There are legitimate psychological and mental impairments for collecting disability.

Before reporting a fraudulent claimant you need to understand more about their exact disability and to become familiar with the conditions/symptoms of their disability. Once you are familiar with their diagnosis and the symptoms of their disorder, then you need to consider things that are incongruent between their behavior and their diagnosis. That in-congruency is something the VA wants to know about.

You can contact the Department of Veterans Affairs’ hotline at (800) 488-8244, between 8:30 am – 4:00 pm EST, Monday through Friday–excluding Federal holidays. Write the VA hotline at: VA Inspector General Hotline (53E), P.O. Box 50410, Washington, DC 20091-0410. Or contact them by email: vaoighotline@va.gov

The types of complaints the VA hotline accepts:

  • Employee misconduct.
  • Patient abuse.
  • Serious safety violations.
  • Theft from VA beneficiaries.
  • Theft or misuse of Government property.
  • False claims by beneficiaries, claimants, patients, employees, or contractors.
  • Systemic problems with VA programs or operations.
  • Gross waste of funds or official time.

The VA hotline will want to know:

  • The particular VA facility or office involved.
  • The identity of the wrongdoer(s) and victim(s).
  • The alleged legal or policy violation(s) or other misconduct.
  • The effect of the wrongdoing, such as dollars lost, delay produced, etc.
  • The date(s) when the event(s) occurred.
  • The identity of any witness(es) to the event(s).
  • Copies of relevant documents that support the allegation.
  • Whether anyone else has already reviewed the allegation.
  • An address and telephone number of a named complainant and whether the complainant wishes confidentiality.

The VA does NOT want to know about:

VA Claim Decision Representation

posted Aug 30, 2011, 7:11 PM by Info @NesloVentures   [ updated Dec 7, 2011, 6:39 PM by Neslo Ventures ]

VA CLAIM DECISION REPRESENTATION:  Congressman Lane Evans of Illinois, ranking Democrat on the House Veterans' Affairs Committee and Congresswoman Shelley Berkley of Nevada, ranking Democratic Member on the Committee's Subcommittee on Disability Assistance and Memorial Affairs, introduced a bill (H.R.4914) that would permit veterans to hire an attorney when they disagree with a benefits claims decision of the Department of Veterans Affairs (VA). Currently, veterans are not allowed to hire an attorney until the end of the administrative appeals process, specifically, after the Board of Veterans Appeals has rendered a decision. Evans noted that many fine veterans service organizations have traditionally provided full representation to veterans and their families without cost and it is expected that these organizations would continue to represent most claimants.  Nonetheless, he and Rep. Berkley believe that in this day and age, veterans should not be prohibited from hiring an attorney if they choose to do so. Berkley commented there is no good reason why Congress should prevent veterans from exercising their choice to seek legal representation and the present needless prohibition should have been ended ages ago.

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