Revisions to Kentucky's Assistance Animal Law (KRS 383.085): What Landlords Need to Know

Posted by Stephen Marshall on

Anyone who has been paying attention in the rental industry over the past few years is aware of the explosion of requests for Assistance Animals by tenants and those seeking to live in rental housing. While such requests used to limited to those with physical disabilities seeking to have their service dog live with them to guide their path, pull their wheelchair, or alert them to an oncoming seizure, most requests today are for Emotional Support Animals. 

Such animals are typically untrained, with the theory being that their very presence alleviates the symptoms of a mental or emotional disability. Due to the nature of the case, landlords typically cannot tell by looking at the person that they are disabled or that they need the animal as a result of disability. 

Fortunately, as I've explained in numerous other places on this blog, the law allows landlords to require verification that the requesting party is disabled and needs the animal as a result of their disability prior to granting the request. However, as I explained in this post and this post, this need for verification has resulted in a cottage industry of websites (see here, for example) where people can complete a brief questionnaire, make a payment, and obtain a letter declaring them to be disabled and in need of an Assistance Animal.  

KRS 383.085 - Original Version

In 2018, the Kentucky General Assembly passed what is now known as KRS 383.085 in an attempt to curb the abuse connected to requests for Assistance Animals. The statute has a number of important provisions, most of which followed existing interpretations of the Fair Housing Act. For a detailed explanation of KRS 383.085, see this post. However, it gave more detail than the Fair Housing Act on certain points, as follows:

1. It provided that landlords may require reliable documentation of the disability related need for the animal from a person with whom the disabled person “has or had a therapeutic relationship”. “Therapeutic relationship” was defined as the provision of medical care, program care, or personal care services, in good faith, to the person with a disability by:

     a. A mental health service provider;
     b. An individual or entity with a valid, unrestricted state license, certification, or registration to serve persons with disabilities; or
     c. A caregiver, reliable third party, or a government entity with actual knowledge of the person's disability.
2. It allowed landlords to independently verify the authenticity of any documentation. This would allow landlords to contact the purported author of the letter to verify that the person did, in fact, issue the letter. Landlords will have decisions to make about whether to grant the accommodation request when/if the author fails to respond, which I can envision being a frequent occurrence. My initial thought would be that the request would be denied pending verification from the author, especially in cases where the letter has multiple indicators of fraud (poor spelling/grammar, cannot locate the author via web searches, not on letterhead, etc.).
3. It required persons with an Assistance Animal to follow the lease and any other rules that apply to other residents.
4. It made the disabled person be liable for any damage caused by the Assistance Animal, as long as other pet owners are likewise liable for such damages.
5. It eliminates liability for landlords for injuries caused by Assistance Animals that are only allowed on the property as a reasonable accommodation based on disability.
6. Finally, it makes the following acts criminal, if knowingly committed:
     a. Misrepresenting that the person has a disability or disability-related need for the use of an Assistance Animal;
     b. Making materially false statements for the purpose of obtaining documentation for the use of an assistance animal in housing;
     c. Creating or executing a document that misrepresents an animal as an Assistance Animal for use in housing;
     d. Providing a document to another falsely stating that an animal is an Assistance Animal for use in housing; or
     e. Fitting an animal, which is not an Assistance Animal, with a harness, collar, vest, or sign that the pet is an Assistance Animal for use in housing.   
7. It provided that anyone who commits one of those acts faces a fine of up to $1,000.00.

Revisions to KRS 383.085

While most would agree that the implementation of KRS 383.085 was a good thing for Kentucky landlords, the General Assembly passed revisions to the bill in the 2019 Legislative Session. Those revisions will become law on June 27, 2019. Here's what you need to know about the revisions:
1. They allow a landlord to require verification of a disability or disability related need for an Assistance Animal to come from one of the following healthcare professionals who (1) is licensed in Kentucky and (2) maintains an active practice in Kentucky:
     a. A licensed clinical social worker
     b. A professional counselor
     c. An advanced practice registered nurse
     d. A psychologist
     e. A physician, which would include a psychiatrist
The only exception is that a person who moves to Kentucky from another state may provide verification from a healthcare professional from that state as long as the parties have an ongoing therapeutic relationship. 
2. The criminal activity part of the law added two prohibited acts:
     a. To knowingly engage in fraud, deceit, or dishonesty in providing documentation as part of a request for an Assistance Animal in housing, and
     b. To knowingly provide documentation as part of a request for an Assistance Animal in housing for the primary purpose of obtaining a fee.

Conflict with Federal Law?

While, I think the revisions to KRS 383.085 are excellent and I was privileged to work on the law as it moved through the legislature, a word of caution is in order: Generally speaking, federal law preempts state law. You will find those who will argue that KRS 383.085 puts restrictions on those seeking an Assistance Animal that are not allowed by their interpretation of the Fair Housing Act. They will argue, in essence, that the Fair Housing Act does not allow landlords to restrict verification of a disability or the need for an Assistance Animal to those healthcare professionals listed in the revisions to KRS 383.085.

My opinion: HUD has made it clear that landlords are entitled to verification that is (1) reliable, (2) credible, and (3) from someone in a position to know about the issue. Beyond that there's not been a tremendous amount of guidance. But honestly, that's all we want as landlords: reliable verification. As a result, my advice is that if you get verification that is reliable, even if it does not come from one of the five healthcare professionals identified in KRS 383.085, you should accept it.

However, if you get a verification letter from someone who has no apparent connection to the person making the request (e.g., from an online or out-of-state source), feel free to request additional information that establishes the author as a reliable source, as someone in a position to know about the disability and/or need for the animal. Being out-of-state does not automatically disqualify a healthcare professional from being able to reliably verify a person's disability or need for the animal, but it does raise the need for additional information that establishes them as someone in a position to know about those things, and it is reasonable for you to request such additional information.

Ultimately, reliability will be determined from the facts and circumstances in each individual case. As a result, it's hard to make legislation that covers everything, which is why the Fair Housing Act is very broad and why KRS 383.085, while valuable, can't cover every potential scenario. Still, I'm an attorney who likes to provide answers, even if I can't give them all in a single blog post.

In conclusion, the single best piece of advise that I can give on dealing with requests for Assistance Animals (and other accommodations) is to participate in the Interactive Process. Never simply say "No" and walk away. If you need additional information to evaluate the request, send the tenant a letter (or an e-mail) identifying what you need. If you determine that you cannot grant the request, say so, but also attempt to schedule a meeting with the tenant to find out if there are alternative accommodations that might meet the tenant's needs.

If you’d like more information on Assistance Animals, I highly suggest you attend one of my Landlord Education Conferences (the next one on Fair Housing is on October 16) or one of the Fair Housing seminars that I conduct, which you can find on my Events page. If you have questions about how to act in accordance with the FHA or KRS 383.085, you should contact your friendly neighborhood attorney.

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