HUD GUIDANCE ON REASONABLE ACCOMMODATIONS UNDER THE FAIR HOUSING ACT RELATING TO ASSISTANCE ANIMALS
The U.S. Department of Housing and Urban Development (HUD) recently issued new guidance (FHEO-2020-01, dated January 28, 2020, sometimes referred to as the “Assistance Animal Notice”) clarifying how housing providers can comply with the Fair Housing Act (FHA) when assessing a person’s request to have an animal in housing to provide assistance because of a disability. The Assistance Animal Notice replaces HUD’s prior guidance on housing providers’ obligations regarding service animals and assistance animals.
A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common areas.
Housing providers have certain obligations under the FHA with respect to animals that individuals with disabilities may request as reasonable accommodations. There are two types of assistance animals: (1) service animals, and (2) other trained or untrained animals that do work, perform tasks, provide assistance and/or provide therapeutic emotional support for individuals with disabilities (referred to in the guidance as a support animal). Persons with disabilities may request a reasonable accommodation for service animals and other types of assistance animals, including support animals, under the FHA.
The guidance provides best practices for housing providers to providers for FHA compliance when assessing requests for reasonable accommodation to keep animals in housing. Included in the guidance is information that a housing provider may need to know from a health care professional about the individual’s need for an assistance animal in housing. In particular the guidances provides a set of best practices regarding the type and amount of documentation a housing provider may ask an individual with a disability to provide in support of an accommodation request for a support animal including documentation of a disability or a disability-related need for a support animal when the disability or disability-related need for the animal is not obvious and is unknown to the housing provider.
Housing providers may be subject to the requirements of several civil rights laws, including but not limited to the FHA, Section 504 of the Rehabilitation Act (Section 504), and the Americans with Disabilities Act (ADA). The guidance does not address how HUD will process complaints against housing providers under Section 504 or ADA.
The Fair Housing Act makes it unlawful for a housing provider to refuse to make a reasonable accommodation that a person with a disability may need in order to have equal opportunity to enjoy and use a dwelling. A common request for reasonable accommodation in housing is an accommodation to a provider’s pets or no pets policies so that individuals with disabilities are permitted to use assistance animals in housing including common use and public areas.
Assistance animals are not pets. An animal that does not qualify as a service animal or support animal is a pet for purposes of the FHA and may be treated as a pet for purposes of the lease and the housing provider’s rules and policies. A provider in its discretion may exclude or charge a fee or deposit for pets subject to local law but not for service animals or other assistance animals.
The HUD guidance helps housing providers distinguish between a person with a non-obvious disability who has a legitimate need for an assistance animal and a person without a disability who wants to have a pet or avoid the costs and limitations associated with a pet as imposed by the provider’s pet policies. The guidance may also help persons with a disability who request reasonable accommodations for the use of an assistance animal in housing.
Most reasonable accommodation requests involve a single animal. However accommodation requests can sometimes involve more than one animal. As examples, a person has a disability-related need for two animals or two persons living together each have a disability-related need for separate assistance animals. The decision making process in the guidance can be used for all requests for exceptions or modifications to a provider’s rules, policies, practices, or procedures so persons with disabilities can have assistance animals in the housing where they reside or seek to reside.
The FHA requires housing providers to make exceptions to policies governing animals when it may be necessary to permit persons with disabilities to utilize animals. Because HUD interprets the FHA to require access for individuals who use service animals, housing providers should initially follow the analysis that the Department of Justice has determined is used for assessing whether an animal is a service animal under the ADA. ADA regulations generally require state and local governments and public accommodations to permit the use of service animals by an individual with a disability. For support animals and other assistance animals that may be necessary in housing, housing providers must comply with the FHA which does provide for access, although the ADA does not.
A service animal under the ADA means 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 work or tasks performed by a service animal must be directly related to the individual’s disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.
As a best practice, housing providers are provided with criteria for assessing whether to grant the reasonable accommodation request. There are observable and non-observable disabilities. Under the FHA, a disability is a physical or mental impairment that substantially limits one or more major life activities. While some impairments may seem invisible, others can be readily observed. Certain impairments, however, especially including impairments that may form the basis for a request for an emotional support animal, may not be observable. In those instances, a housing provider may request information regarding both the disability and the disability-related need for the animal. Housing providers are not entitled to know an individual’s diagnosis.
Information about a disability may include:
- A determination of disability from a federal, state, or local government agency.
- Receipt of disability benefits or services (Social Security Disability Income (SSDI)), Medicare or Supplemental Security Income (SSI) for a person under age 65, veterans’ disability benefits, services from a vocational rehabilitation agency, or disability benefits or services from another federal, state, or local agency.
- Eligibility for housing assistance or a housing voucher received because of disability.
- Information confirming disability from a health care professional – e.g., physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse.
A determination that an individual does not qualify as having a disability for purposes of a benefit or other program does not necessarily mean the individual does not have a disability.
While housing providers will be unable to observe or identify some of these impairments, individuals with disabilities sometimes voluntarily provide more details about their disability than the housing provider actually needs to make decisions on accommodation requests. When this information is provided, housing providers should consider it.
Some websites sell certificates, registrations, and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee. Under the Fair Housing Act, a housing provider may request reliable documentation when an individual requesting a reasonable accommodation has a disability and disability-related need for an accommodation that are not obvious or otherwise known. The guidance provides that in HUD’s experience such documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.
One reliable form of documentation is a note from a person’s health care professional that confirms a person’s disability and/or need for an animal when the provider has personal knowledge of the individual.
For non-observable disabilities and animals that provide therapeutic emotional support, a housing provider may ask for information in order to conduct an individualized assessment of whether it must provide the accommodation under the Fair Housing Act. The lack of such documentation in many cases may be reasonable grounds for denying a requested accommodation.
If the animal is a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes, then the reasonable accommodation should be granted because the requestor has provided information confirming that there is a disability-related need for the animal. For purposes of this assessment, reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals.
If the individual is requesting to keep a unique type of animal that is not commonly kept in households as described above, then the requestor has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal. The individual is encouraged to submit documentation from a health care professional confirming the need for this animal.
While this guidance does not establish any type of new documentary threshold, the lack of such documentation in many cases may be reasonable grounds for denying a requested accommodation. If the housing provider enforces a no-pets policy or a policy prohibiting the type of animal the individual seeks to have, the housing provider may take reasonable steps to enforce the policy if the requester obtains the animal before submitting reliable documentation from a health care provider that reasonably supports the requestor’s disability-related need for the animal. A housing provider may refuse a reasonable accommodation for an assistance animal if the specific animal poses a direct threat that cannot be eliminated or reduced to an acceptable level through actions the individual takes to maintain or control the animal.
Housing providers’ pet rules do not apply to service animals and support animals. Thus, housing providers may not limit the breed or size of a dog used as a service animal or support animal just because of the size or breed but can limit based on specific issues with the animal’s conduct because it poses a direct threat or a fundamental alteration.
Before denying a reasonable accommodation request due to lack of information confirming an individual’s disability or disability-related need for an animal, the housing provider is encouraged to engage in a good-faith dialogue, called the interactive process, with the requestor. The housing provider may not insist on specific types of evidence if the information which is provided or actually known to the housing provider meets the requirements of the Notice. Disclosure of details about the diagnosis or severity of a disability or medical records or a medical examination cannot be required.
If a reasonable accommodation request, provided under the framework of this guidance, is denied because it would impose a fundamental alteration to the nature of the provider’s operations or impose an undue financial and administrative burden, the housing provider should engage in the interactive process to discuss whether an alternative accommodation may be effective in meeting the individual’s disability-related needs.
All housing providers covered by the FHA are advised to conduct their own due diligence regarding housing providers’ obligations and compliance under the Assistance Animals Notice.