A Citizen, Pro Se

July 30, 2008

MCS as ‘Handicap’ – HUD’s 1992 Directive GME-0009

Filed under: Uncategorized — acitizenprose @ 6:00 pm

When I first spoke to Maurice J. McGough (HUD/FHEO official in HUD’s Region V (Chicago) office) about the threat to my health and safety from the landlord’s planned renovations, he brought up the difficulty of ‘proving’ MCS as a handicap because of ‘the Daubert Rule’ — and I’ll write more about Daubert elsewhere. In brief, it’s one of the Federal Rules of Evidence (based on a Supreme Court case) that allows ‘expert testimony’ to be torn to shreds if the facts brought forward are not widely and generally accepted. ‘Daubert’ has been used extensively in MCS cases having to do with toxic torts (chemical injury cases), Americans with Disabilities Act (ADA) and Worker’s Compensation, and McGough tried very hard to convince me that ‘Daubert’ would make it impossible for my MCS to be recognized as a handicap under the Fair Housing Act.

Well, I answered him, there has never been an MCS case brought entirely under the Fair Housing Act, without ADA or other laws being brought into the case. My case falls entirely under the Fair Housing Act, I told him, and I can build a Daubert-proof argument based on the civil rights definition of ‘disability’ in 24 CFR, HUD’s 1992 Directive recognizing MCS as a handicap warranting Reasonable Accommodation, and the HUD/DOJ 2004 Joint Statement on Reasonable Accommodation Under the Fair Housing Act. None of these sources require medical documentation or expert testimony — so Daubert could not be invoked.

McGough & Co. began working very hard to keep me so busy that I never had time to finish writing my Daubert-proof argument — although I still want to finish it, if time allows. But here’s one portion of it — excerpts (with my notes) from HUD’s 1992 Directive GME-0009, ‘Multiple Chemical Sensitivity Disorder and Environmental Illness as Handicaps’.

‘Multiple Chemical Sensitivity’ (MCS) and ‘Environmental Illness’ (EI) are two names for the same disorder. Here’s the definition HUD used in GME-0009:

[A]n acquired disorder characterized by recurrent symptoms, referable to multiple organ systems, occurring in response to demonstrable exposure to many chemically unrelated compounds at doses far below those established in the general population to cause harmful effects. No single widely accepted test of physiologic function can be shown to correlate with symptoms.

Translated into English, this means that people with MCS get very sick from tiny amounts of many different chemicals that are in common use. But here’s the important part: The HUD definition is based on symptoms, and it accepts the fact that no medical (physiological) tests ‘correlate with’ those symptoms. This means that, to HUD, medical tests (or the absence of medical tests) are immaterial to the definition of MCS, which is defined by sypmtoms.

MCS HUD 1992 Excerpts

HUD Directive GME-0009 found at www.fairhousing.com , on ‘HUD Resources’ page. Comments beginning [NOTE . . ..] are my statements, not part of HUD GME-0009. Otherwise [ ] square brackets are used to summarize content of GME-0009. Bolding is mine throughout, underlining in original.

Excerpts from HUD Directive GME-0009 1992
Multiple Chemical Sensitivity Disorder and Enviornmental Illness as Handicaps

[Cover memo April 14 1992 to all Regional Directors of FHEO]

The General Counsel has accepted the attached memorandum as the Department’s position on the issue of when Multiple Chemical Sensitivity Disorder (MCS) and Environmental Illness (EI) are handicaps [under the Fair Housing Act].

individuals disabled by MCS and EI can be handicapped under the meaning of the Act.

 

[Directive GME 0009 — March 5 1992 memo (the Directive) from Associate General Counsel for Equal Opportunity and Administrative Law to Frank Keating, General Counsel on MCS/EI as handicaps]

. . . we conclude that MCS and EI can constitute handicaps under the Act. Our conclusion is consistent with the weight of both federal and state judicial authority construing the Act and the interpretation of other Federal agencies [such as Social Security and Department of Education]. The Civil Rights Division of the Department of Justice has also informed us that it believes MCS and EI can be handicaps under the Act. In addition, HUD has consistently articulated this position, and FHEO agrees with our conclusion.

footnote 1: As for any handicap, whether or not a particular complainant is truly handicapped is subject to a case-by-case determination. . . . [credible and objective evidence needed to substantiate any claimed handicap.] . . . The Act requires only that reasonable accommodations in rules, policies, practices, or services be made when such may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas. . . ..

[…]

At least one court has accepted the following definition for MCS:

[A]n acquired disorder characterized by recurrent symptoms, referable to multiple organ systems, occurring in response to demonstrable exposure to many chemically unrelated compounds at doses far below those established in the general population to cause harmful effects. No single widely accepted test of physiologic function can be shown to correlate with symptoms.

[NOTE that this definition is the basis for GME-0009’s understanding of MCS. According to this definition, MCS is a disorder characterized by symptoms, affecting multiple organs systems at very low exposures to chemicals. The fact that there is no widely accepted physiological test included in the definition of MCS as a handicap. HUD’s 1992 Directive recognizes MCS as a handicap on the basis of symptoms, and assumes the absence of any widely accepted test. HUD’s 1992 Directive does not require any medical documentation or any specific medical (physiological) tests, and the presence, absence, validity, or invalidity of an MCS-handicapped person’s medical records is not a factor in defining MCS as a handicap under the Fair Housing Act.]

Footnote 3: [In the absence of a clear medical definition of MCS, some] attribute the purported symptoms of MCS to a psychological problem or to other physical causes, rather than to chemical sensitivities. . . . However, under the Act, a handicap may be either physical or mental. Accordingly, even if MCS was a psychological or mental impairment, rather than a physical one, a person with MCS would still be afforded full protection under the Act, so long as that condition substantially limited one or more of his or her major life activities, or the person had a record of such an impairment, or was regarded as having such an impairment. 42 U.S.C [Sec] 3602(b); 24 C.F.R. [Sec] 100.201

[Section] II. MCS and EI Generally Meet the Statutory and Regulatory Definition of Handicaps.

Subsection 802(h) of the Act defines handicap as follows:

(h) Handicap means, with respect to a person —

(1) a physical or mental impairment with substantially limits one or more of such persons major life activities,
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment [except for addictions to controlled substances]

[NOTE that HUD’s civil rights definition of handicap (disability in other sources) does not require medical documentation of a handicap, particularly under items (2) and (3). Also refer to HUD/DOJ 2004 Joint Statement of Reasonable Accommodations Under the Fair Housing Act (items 16 through 18), supporting other forms of verification such as the person’s own statements and/or the statement of a reliable third party. No medical records are required to establish a civil rights handicap under the Fair Housing Act.]

[…]

. . . the determination of whether any particular condition constitutes a handicap necessarily involves a case by case determination of all facts and circumstances relevant to whether the condition meets the Acts definition. . . . our understanding of the usual effects of MCS and EI is that persons with these conditions generally meet the Act’s definition of persons with a handicap.

[…]

[Courts, administrative agencies, and HUD] have found persons with MCS and EI to have a physiological disorder or condition, which, upon exposure to certain substances, causes the person to suffer substantial impairment of various body systems. [Including but not limited to neurological, musculoskelatal, special sense organs, respiratory (including speech organs), hemic, digestive, immunological.]

[Major Life Activities defined by HUD regulations:]

Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 24 C.F.R. 100.201

People with MCS and EI can have one or more major life activities affected by their condition. [Including but not limited to: working, speaking, breathing, caring for themselves; performing manual tasks – may be substantially impaired by chronic fatigue and the need to avoid exposure, they are often bed-ridden, walking, seeing, hearing, learning]

[NOTE that the need to avoid exposure is acknowledged here as a substantial impairment of major life activities under the heading of caring for themselves/performing manual tasks.]

[…]

Persons with MCS and EI may be substantially limited in major life activities due to their handicap. For such persons, exposure to a variety of common substances may cause them significant limitations to their major life activities, such as those listed, supra, . . .. Moreover, due to the frequency that ordinary living normally brings people into contact with the commonly found substances to which persons with MCS and EI typically react, persons with these disabilities may be severely constrained in their daily living and must make major adjustments to avoid exposure. Since it is critical that people with MCS and EI minimize their exposure to common substances found in or near most housing facilities, they generally face a significantly limited choice of housing.

[NOTE that HUD recognizes the MCS-handicapped person’s “critical” need to “minimize their exposure” to chemicals, and that this ‘critical need’ causes the MCS-handicapped to be “severely constrained in their daily living”, making “major adjustments to avoid exposure”. HUD then recognizes that MCS-handicapped persons “generally face a significantly limited choice of housing” due to their handicap — because that handicap requires them to avoid exposure to chemicals.
[Review of court cases omitted here.]

[NOTE cont’d: I would submit that there is only one specifically MCS-related Fair Housing Act Reasonable Accommodation ever needed by those with MCS: A practical acknowledgement that the MCS-handicapped person’s critical health-and safety need to avoid chemical exposure outweighs a landlord’s business need to introduce chemicals into that person’s living space. Housing that is ordinarily ‘safe enough’ to allow an MCS-handicapped person ‘equal opportunity to use and enjoy a dwelling’ can instantly become a toxic prison with the landlord’s introduction of chemicals into such a tenant’s environment. If HUD’s recognition of MCS as a handicap warranting Reasonable Accommodation is to have any meaning at all, it must mean that an MCS-handicapped person has a right to a living space that allows him/her to avoid exposure to chemicals.]

[Section] IV. Legislative History Supports the Conclusion that MCS and EI Can be Handicaps

The Act’s legislative history also demonstrates that Congress intended that the Act’s definition of handicap be broad enough to include MCS and EI. Congress intended that the term handicap, as used in the Act, be interpreted consistently with judicial interpretations of the term handicap, as used in the Rehabilitation Act. In the preamble to the regulations implementing the Act, HUD noted the clear legislative history indicating that Congress intended that the definition of handicap be fully as broad as that provided by the Rehabilitation Act. 24 C.F.R. Subtitle B, Ch. 1, Subch. A, App. 1 at 704 (1991). To support this conclusion, the preamble cited portions of the House Report and floor debate on the Act which reflected Congress’ desire that the two definitions be interpreted consistently. Before Congress passed the Fair Housing Amendments Act, lower federal courts had interpreted the Rehabilitation Act to cover MCS and EI as handicaps.

Statutory construction principles lead us to conclude that, because Congress used substantially the same definition of handicap in the Act as it did in the Rehabilitation Act, Congress intended chemical hypersensitivity to be a handicap under the Act, as courts at that time had determined it to be under the Rehabilitation Act. . . .

[…]

. . . Interpreting the Act’s definition to include persons with MCs and EI is consistent with that Congressional intent.

[…]

. . . HUD had continuted to reaffirm its position that MCS and EI are or can be handicaps. For example, the FHEO provided all regional FHEO Directors a draft technical guidance memorandum dated June 6, 1991, stating that persons disabled by MCS and EI are handicapped within the meaning of the Fair Housing Act and Section 504.

[Note: this technical guidance memo is supposed to be appended to Directive GME-0009 as Attachment C, but is not attached in the pdf file found at http://www.fairhousing.com .]

[…]

As explained above, persons with MCS and EI generally will meet the statutory and regulatory definitions of persons with a handicap. In addition, HUD’s interpretation to date is fully consistent with case precedent, the interpretations of other Federal agencies, and the Acts legislative history.

[Section] VI. Conclusion

MCS and EI can be handicaps under the Act. This position is consistent with the statutory language, the weight of judicial authority, the interpretations of other Federal agencies, and the Act’s legislative history. HUD also has been consistent in articulating this position on prior occasions. Thus, HUD’s current interpretation seems correct, and there appears to be no compelling reason to change it now.

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