On January 28, 2020, the U.S. Department of Housing and Urban Development (HUD) released new guidance regarding “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act.” The guidance, also referred to as the Assistance Animal Notice, gives a step-by-step flowchart-like primer of what HUD suggests are best practices regarding what information a housing provider, such as a landlord, property manager or condominium association, can request and consider when deciding whether to grant a reasonable accommodation.
The Fair Housing Act requires housing providers to permit a change or exception to a rule, policy, practice or service that may be necessary to provide people with disabilities affecting a major life activity with an equal opportunity to use and enjoy their home. The act defines a person with a disability to include (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an impairment. The term “major life activity” means activities of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning and speaking.
The guidance addresses the type and amount of documentation a housing provider may ask a person with disabilities to provide in support of an accommodation request for an assistance animal, including documentation of a disability — that is, physical or mental impairments that substantially limit at least one major life activity — or a disability-related need for an assistance animal when the disability or disability-related need for the animal is non-obvious and not known to the housing provider.
First rule to remember
A housing provider is not required to grant a reasonable accommodation that has not been requested. While it is not necessary to submit a written request, use a particular form, or to use the magic words “reasonable accommodation” or “assistance animal,” individuals making a request are encouraged to do so in order to avoid miscommunication and maintain good records.
The obvious case: service dogs
The Assistance Animal Notice starts out by first addressing the obvious cases: trained service dogs.
Step 1: HUD indicates if the animal is a dog and it is readily apparent the dog is trained to do work or perform tasks for the benefit of the person with disabilities, then the housing provider should grant the requested accommodation and allow the dog. It is readily apparent, for example, when the dog is observed guiding a person who is blind or has low vision, pulling a wheelchair or aiding with stability or balance for a person with an observable mobility disability.
Step 2: If this is not readily apparent, then the housing provider may ask the person (1) “Is the animal required because of a disability?” and (2) “What work or task has the animal been trained to perform?” If the answer to question (1) is “yes” and work or a task is identified in response to question (2), the Assistance Animal Notice says the housing provider should grant the requested accommodation, if otherwise reasonable, because the animal qualifies as a service animal.
All the others: support animals
Under the guidance, there are two types of assistance animals:
- Service dogs.
- Other trained or untrained animals that do work; perform tasks; provide assistance; and/or provide therapeutic emotional support for persons with disabilities, referred to in the guidance as “support animals.”
If there is no readily apparent service dog assisting the person with an apparent disability, the analysis takes another path.
Step 1: Does the person have an observable disability or does the housing provider already have information giving them reason to believe the person has a disability? The guidance says if the answer is “no,” the housing provider is not required to grant the accommodation unless information of the disability is provided but may not deny the accommodation on the grounds that the person requesting the accommodation has not provided this information until the requester has been provided a reasonable opportunity to do so. This seems to beg the question of whether the person was asked for information. Other HUD statements advise the housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the act’s definition of disability, (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation. Locally it would seem the housing provider would prompt the person to provide the information if not volunteered.
Step 2: If the disability is established, the next question is, “Has the person requesting the accommodation provided information which reasonably supports that the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support with respect to the individual’s disability?” If the person was asked but has not provided such information, the reasonable accommodation need not be provided.
Step 3: Type of animal. If the disability and need for the animal have been established, the next inquiry relates to the type of animal. If the animal is of a type commonly kept in households, then the housing provider should grant the request for the reasonable accommodation. The Assistance Animal Notice declares if the animal is a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle or other small, domesticated animal traditionally kept in the home for pleasure, then the reasonable accommodation should be granted; the requestor has provided information confirming a disability-related need for the animal.
Reptiles other than turtles, barnyard animals, monkeys, kangaroos and other non-domesticated animals are not considered common household animals. Nevertheless, there will be unique animals in these categories that will need to be allowed upon thorough documentation. One example described in the guidance is a specially trained capuchin monkey that performs tasks for a person with paralysis caused by a spinal cord injury. The monkey has been trained to retrieve a bottle of water from the refrigerator, unscrew the cap, insert a straw, and place the bottle in a holder so the individual can get a drink of water. The monkey is also trained to switch lights on and off and retrieve requested items from inside cabinets. The individual has a disability-related need for this specific type of animal because the monkey can use its hands to perform manual tasks that a service dog cannot perform.
Documentation from the internet
The Assistance Animal Notice does not lend much light to the widespread concerns with letters purchased online purporting to document a disability and a disability-related need for an animal. It states:
"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 (footnote omitted). 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.
By contrast, many legitimate, licensed health care professionals deliver services remotely, including over the internet. 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."
Regrettably this limited passage does not shed light on any new information or provide a reliable technique for challenging what may appear to the housing provider to be inadequate.
Miscellaneous tidbits
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 with the requestor called the “interactive process.” A constructive dialog may assist the housing provider and the person requesting the accommodation to find an alternate accommodation that serves as a compromise position.
The guidance indicates a licensed medical professional should have personal knowledge of the patient/client and their disability if they are providing documentation to confirm the person’s disability or the disability-related need for the animal. These professionals are relied upon to provide accurate information to the best of their personal knowledge, consistent with their professional obligations.
As a guidance document, the Assistance Animal Notice does not expand or alter housing providers’ obligations under the Fair Housing Act. The Assistance Animal Notice does not have the force and effect of law and is not meant to bind the public in any way.
The 19 pages of the HUD Assistance Animal Notice contain a wealth of information that should be read by anyone who encounters reasonable accommodation requests for assistance animals.
Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.
Resources