How the New HUD Guidelines Affect Assistance Animals
A breakdown of the major points within HUD's latest Notice, explained by attorney Brad Morris.
A lot of frustration and confusion surrounds the issue of assistance animals in housing. Animal owners often feel they are being asked too much about personal medical issues and forced to prove their right to have their assistance animal live with them.
Housing providers, who are likely to be confused about what information they can ask for, complain that animal owners are able to scam the system with online letters from medical providers who never met them. Hovering over all this is the subtle (or not) threat of HUD complaints or litigation if the housing providers push back too much against a determined animal owner.
Hopefully, some relief has arrived. HUD just issued new guidelines in January (FHEO-2020-01 Assistance Animal Notice (the “Notice”)). Replacing previous HUD guidelines from 2013, the Notice introduces a few new concepts and addresses other issues of some controversy. Following are some of the most significant features of the Notice which may reduce the tension and controversy in dealing with assistance animals.
Service Animal Treatment
The introduction of “service animals” into the assistance animal in housing equation is new and it addresses a source of much confusion in this area. That confusion is attributable to rules under two separate laws governing assistance animals where the disability and need for the animal are not observable (e.g., blind person with a guide dog).
A service animal (basically a dog individually trained to do work or tasks for the benefit of a disabled person, such as a medical alert dog trained to detect low blood sugar in its human) is a construct under the Americans with Disabilities Act, which deals with public accommodations but not private housing.
The Fair Housing Act (FHAct) does not address “service animals.” For example, an individual arriving at a restaurant with a service animal can be asked two questions: 1) is this animal needed because of a disability? and 2) what work or task has the animal been trained to do.
If the answers are yes, and some type of work (not emotional support, significantly), then no further inquiry is permitted, and no documentation is required. The animal is permitted to enter the restaurant or movie theater with its owner.
In private housing under the FHAct, however, the service animal designation was not applicable when a person presented a request for accommodation for their animal. Here the permitted inquiry was 1) are you or someone living with you disabled? and 2) is the animal needed because of the disability? If both questions are answered yes, then the housing provider was also permitted to ask for documentation from a reliable third party (usually a medical provider) who would verify these two answers.
Owners of service animals typically resist this inquiry and object to having to present documentation. Housing providers end up with the choice of having to explain the nuances in the law while insisting that the animal owner produce the documentation or avoiding the controversy and simply allowing the animal by accepting a meaningless certificate from an online provider.
The Notice attempts to solve this issue by bringing the service animal concept into the process for evaluating a request for accommodation in housing. Indeed, the Notice makes the service animal inquiry above the initial step in assessing whether the animal should be allowed. In many instances going forward, we should anticipate that service animals will be permitted under the Notice without their owners having to visit doctors to get letters in support of their rights.
Lest one think that this change will lead to many more assistance animals in housing units, there are limits under the Notice that should curb that result. First, service animals are only dogs. Second, they must be individually trained to assist with a disability. Third, the work or task the dog is trained for does not include emotional support.
All other assistance animals other than service animals, are “support animals” under the Notice. Support animals are “trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities.” The assessment process for support animals stated above remains basically the same, with the important new category of “Unique Animals.”
In essence, if the housing provider has already asked the permitted support animal questions and reviewed the permitted documentation, establishing the person’s disability, and disability related need for the animal, the housing provider is now permitted to inquire into the type of animal for which the accommodation is sought. This is new because there were no express restrictions under the prior guidelines.
If the animal is commonly kept in households (“dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal”) then the request should be granted assuming disability related need has been established. “Reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals.” Other type animals are considered “unique,” and the requester has a “substantial burden” to demonstrate the disability related need for these animals.
One other aspect of the “unique animal” category is the housing provider may enforce a “no pets” policy or a policy prohibiting the type animal the requester seeks to have, if the requester obtains the animal before submitting reliable documentation from a medical provider that reasonably supports the disability related need for the animal.
The Notice provides factors showing where unique animals might be appropriate and gives an example of a monkey trained to retrieve and open a bottle of water, switch lights on and off, and retrieve items from a cabinet. This new provision likely will reduce the occasional exotic animal needed to provide emotional support for the owner.
Truth and Accuracy
Concerned that animal owners were being put to heightened scrutiny by housing providers when assessing their requests, HUD introduced in the Notice a new standard. Basically, the housing provider can make truth and accuracy of information supplied by the animal owner a required part of the review process if the housing provider also requires truth and accuracy as part of its lease or agreement with the residents.
Some operators require verification from the animal owner that the information provided in the request for accommodation is true and accurate. We believe there are benefits to doing this, including credibility considerations in the review process. Also, if a dispute arises later, say from a dog bite incident, having verified statements at the outset by the animal owner that the dog has never bit another person or animal should be helpful in defense of the claim that the housing provider should have known that the animal was dangerous. We urge all housing providers to confirm that their leasing process, including the rental application, has the resident verifying that the information provided to the housing provider is true and accurate.
Documentation from the Internet
Housing providers commonly complain about the ease of obtaining documentation from the internet by animal owners seeking an accommodation. This “cottage industry” as it is often called includes those who issue certificates and registrations that purport to show that the animal is a designated service animal or emotional support animal.
Also included in the cottage industry according to housing providers are medical providers who issue letters supporting requests for accommodation for a fee. The Notice attempts to address these industry concerns. HUD states that certificates, registrations and licensing documents sold to “anyone who answers certain questions or participates in a short interview and pays a fee,” are not alone “sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.”
By contrast, HUD recognizes that legitimate medical care is available over the internet. The Notice states “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 health care professional has personal knowledge of the individual.”
The term “personal knowledge” is new to the analysis and introduced by HUD in the Notice. We anticipate that inquiries into the reliability of internet letters will focus on the personal knowledge of the medical professional concerning the animal owner.
Sufficiency of Evidence
The Notice introduces another important feature to facilitate the assessment of assistance animal requests in housing. Throughout the Notice, definitions and factors are presented that illustrate the types and nature of information that would support various issues in the review.
For example, factors leading to a determination of disability are spelled out, as are considerations whether a disability or need is obvious or observable. Significantly, a section of the Notice is directed to animal owners, and indirectly to their medical providers, describing what information and documentation housing providers need to properly assess a request for accommodation. This feature alone should reduce many controversies and heated exchanges between animal owners and housing providers about the scope and nature of information requested in the process.
The Notice is likely to guide the assistance animal review process for the foreseeable future (the prior guidelines were from 2013). The Notice provides a better framework in this field though the process still involves many distinct issues that will undoubtedly raise new areas of frustration and confusion.
Brad Morris is an experienced attorney in the property management industry, representing property managers and landlords primarily in the residential sector. Brad serves as Chief Legal Counsel for Pet Screening Inc., and oversees its Assistance Animal Review Team which has assessed thousands of tenant requests for accommodation of assistance animals for single and multi-family property managers.