DATE OF HEARING:5/10/18The record was held open through 7/13/18 for submission of documents which were timely received.DECISION: Section 8 Existing Leased Housing Program participant Thelma Pough (“Participant”) brought this proceeding to challenge NYCHA’s 2/13 assessment of her rental share (Hearing Officer’s Exhibit 1) as well as its effective and/or explicit denial of her request for a reasonable accommodation of a separate bedroom for herself due to psychiatric diagnoses, first submitted 1/5/15 as receipt-stamped (medical letter dated 9/29/14) (Exhibit 2 and Exhibit B) and supplemented by subsequent additional medical provider letters dated 3/7/17 (Exhibit B) and 9/6/17 (Exhibit C). The only explicit letter of denial by NYCHA in evidence is dated 1/7/16 (Exhibit C). The parties agree that the issue of a third bedroom for Participant’s sole use has been the only issue remaining, and the third bedroom was approved sometime subsequent to the 9/17 medical letter. No document was submitted showing the effective date of this approval. Participant argues for credit for the third bedroom retroactive to 9/14 through 10/17.The Undisputed Evidence:The parties also submitted into evidence Participant’s 12/00 voucher for a three-bedroom apartment, at a time when 4 people were authorized occupants (Exhibit 1), and the landlord’s 10/12 renewal packet, with NYCHA’s 2/13 rent recalculations effective 3/13 (Exhibit A). Participant represented that she requested an accommodation in 5/14 (Exhibit XiC). The first medical letter was dated 9/14; Participant’s own Exhibit XID shows a receipt stamp of 1/15. No document shows clearly when Participant first discussed accommodation with NYCHA (no logs were submitted), or when issue was joined on accommodation. There was indeed a hearing process initiated in ’14 on the rent, which may have included the accommodation issue, but the adjournment stipulations do not so indicate (Hearing Officer’s Exhibit 2). This Hearing Officer was not assigned until 5/10/18; Participant was not represented earlier; and issues of rent calculation and reasonable accommodation are often heard together without necessarily a documentary distinction-i.e. of notices and the like.Thus the 9/29/14 medical letter submitted 1/15 is taken to be the first documentation supporting Participant’s request for a reasonable accommodation.The Arguments:The parties submitted post-hearing briefs, Participant’s Memorandum, NYCHA’s Opposition, and Participant’s Reply, respectively Exhibits X1-X3, with sub-exhibits.NYCHA argues that the first medical letter was insufficient because it did not properly refer to a diagnosis, in that certain words were not capitalized and hence did not refer to medical diagnoses. NYCHA also argues that the second medical letter was insufficient because it did not explicitly state a causal connection between the statement that Participant has certain psychiatric diagnoses and the fact that she needs a separate room. NYCHA further argues that it is NYCHA’s policy to make determinations on requests for reasonable accommodation based “upon the information provided by the Participant and their [sic] medical professional.”Participant points out that the pertinent federal law requires an “interactive” process between such parties as Participant and NYCHA, in that the entity receiving the accommodation request must actively assist a disabled person in clarifying her request.Findings and Conclusions:By approving Participant’s third request, NYCHA has already determined that it is reasonable. The remaining issue is when Participant completed that request.NYCHA errs in its supposition that the psychiatric profession requires that diagnoses be capitalized. NYCHA’s exhibit submission (Exhibit X2A) is not text from the Diagnostic and Statistical Manual of Mental Disorders 5 (DSM 5), which indeed uses capitals only for headings, which is the approved manual of the American Psychiatric Association (APA). NYCHA’s exhibit is a listing of approved billing codes by numerical code, alphabetized by name of diagnosis. This is not even the title page of DSM headings: The DSM does not list disorders in alphabetical order but in groupings by type, such as types of depression, and larger groupings separating personality disorders, for example, from disorders recognized as primarily physiologically caused. Apparently NYCHA did not recognize that it was viewing a list like headings (of billable codes organized by a different professional entity) which of course would be capitalized. Second, NYCHA is misleading in its statement of NYCHA’s policy in that NYCHA’s interpretation could be read as implying the approval of NYCHA’s completion of its obligation once it has reviewed a participant’s submissions. This is not the federal law, upon which NYCHA policy is based. Federal law clearly requires the agency affirmatively to assist a participant in understanding any shortcomings of her submissions and to correct them. This might hypothetically but not necessarily be done by the denial letters; denial letters do not now generally clarify the shortcomings in a participant’s submissions.It seems likely that had NYCHA correctly followed policy and clarified to Participant that it had doubts that the medical provider intended a causal connection in his second letter between the statement that she has certain diagnoses and that she needs a separate room, Participant and the provider could quickly have corrected her submission. Accordingly, it will be deemed that NYCHA and Participant so acted, and Participant’s submission would have been completed in 1/15. There is insufficient evidence that NYCHA received the first medical letter prior to 1/15. NYCHA generally makes adjustments retroactive to the month subsequent to the completion of submissions. Hence Participant’s grievance is sustained to the extent that she shall be given retroactive credit for an adjusted subsidy retroactive to 2/1/15.DISPOSITIONThe grievance is sustainedDated: August 14, 2018
