Because 60% of all Housing Discrimination Complaints involve requests for a reasonable accommodation based on disability, and because many of them involve requests for an Assistance Animal, we’ve been waiting for a couple of years now for HUD to issue new guidance for housing providers on how to deal with those requests by disabled residents and applicants. On January 28, 2020, HUD granted our wish and issued some further clarifications, which you can read in their entirety here. Here are the highlights:
Types of Assistance Animals
HUD recognizes two types of Assistance Animals: (1) service animals and (2) other animals that do work, perform tasks, provide assistance or provide therapeutic emotional support for those with disabilities, called support animals. An animal that does not fall into one of these two categories is a pet.
Americans with Disabilities Act (ADA)
HUD reaffirmed that the ADA only allows Service Animals, defined as any dog that is individually trained to work or perform tasks for a person with a disability, as long as the work is directly related to the person’s disability.
It made clear that, if the animal is not a dog, it is not a Service Animal under the ADA. Remember that the ADA only applies to members of the general public in areas of your property that are open to the general public (parking lot, leasing office, etc.). The Fair Housing Act (FHA), however, may still apply if the person is a resident, occupant, or person associated with a resident.
Fair Housing Act (FHA)
HUD’s position is that a resident may request a reasonable accommodation either before or after acquiring the Assistance Animal, and the request may be made after a housing provider seeks to terminate the lease because of the animal’s presence. This has been a sticking point for landlords, who often only receive the request for an animal after they find it on the premises.
HUD made a distinction between animals commonly kept in households and those that are not. Reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered Common Household Animals (CHA). Instead, CHAs are dogs, cats, small birds, rabbits, hamsters, gerbils, other rodents, fish, turtles, or other small, domesticated animals traditionally kept in the home for pleasure, not commercial purposes.
HUD did make it clear that sometimes non-CHAs are needed because they can perform tasks that a CHA cannot, giving the example of a monkey that has been trained to retrieve water from the fridge, unscrew the cap, insert a straw, and put it where the person is able to get a drink, which are tasks that a dog cannot perform. If the requester wishes to have a non-CHA as an Assistance Animal, they would need to demonstrate a disability related therapeutic need for the specific animal or specific type of animal.
HUD further reaffirmed the following:
- that an animal may be denied if it creates a direct threat to health and safety or if it is likely to result in substantial physical damage to property, if neither situation can be reduced to an acceptable level by actions to maintain or control the animal;
- that no fees may be charged up front for Assistance Animals, but the tenant may be charged for damage caused by the animal if non-disabled tenants are charged for such things as well;
- that the animals may be required to be fed, maintained, controlled, and have veterinary care on the same basis as pets;
- that all parties should engage in the interactive process before a request is denied; and
- that housing providers may not insist on specific types of evidence beyond what is identified by HUD.
Best Practices for Documenting Need for an Assistance Animal
HUD made clear that housing providers may not require a healthcare professional (HCP) to (1) use a specific form, (2) provide notarized statements, (3) make statements under penalty of perjury, or (4) provide an individual’s diagnosis or other detailed info about the disability.
However, if the animal is not a Common Household Animal, housing providers may require the verifying healthcare professional to provide the following additional information:
- The date of the last consultation with the patient;
- Any unique circumstances justifying the patient’s need for the particular animal or type of animal; and
- Whether the HCP has reliable information about this specific animal or whether they specifically recommended this type of animal.
As hoped, HUD clarified that documents provided by websites based on participation in a short interview and paying a fee are not, by themselves, sufficient to establish a disability or disability related need for an Assistance Animal. However, HUD recognized that legitimate, licensed HCPs sometimes deliver services remotely, including over the internet. A note from a person’s HCP that confirms their disability or disability related need for the animal is reliable documentation when the HCP has personal knowledge of the individual. Unfortunately, what constitutes “personal knowledge” was not defined in the guidance.
Finally, HUD opined that a housing provider should make a decision on a request for an accommodation within 10 days after receiving documentation supporting the request.
As you’ll recall, Kentucky passed KRS 383.085 in 2018 and amended it in 2019 to require verification of Assistance Animals by certain HCPs who are licensed and have an active practice within the state of Kentucky. HUD’s guidance on the existence of remote healthcare services indicates that KRS 383.085 may go further than HUD on that issue. As a result, it is wise for landlords to follow HUD’s specific guidance where it is given, and perhaps fill in the gaps with the specific requirements of KRS 383.085 where HUD has been more general in their guidance.
For those of you in Louisville, I’ll be covering this specific topic on April 22 at the Fair Housing Update seminar put on by the Louisville Apartment Association. For you Lexington folks, I'll be covering this at my Landlord Education Conference on October 12. Hope to see you at one of those events.
In the meantime, for help with your individual circumstances, reach out to your friendly neighborhood attorney.