On January 28, 2020, the U.S. Department of Housing and Urban Development (HUD) issued new guidelines clarifying how housing providers can comply with the Fair Housing Act (FHA) in reviewing an individual’s request for an assistance animal. These requests often prove to be tricky to navigate for both parties, as individuals may not understand what information is needed for review of their request and housing providers may struggle with what questions may or may not be asked of the individual. With this uncertainty, websites emerged to sell documentation to individuals which, oftentimes, is insufficient to establish the individual’s need for the assistance animal. Under this new guidance, HUD directly addresses these websites and other issues housing providers routinely encounter, while continuing its emphasis on the importance of the “interactive process” between housing providers and individuals requesting the accommodation. HUD’s release attempts to clarify the information the individual may need to provide to the housing provider as well as a step by step roadmap of best practices for a housing provider to utilize in reviewing the individual’s request.
How can a community association violate the FHA?
Discrimination under the FHA includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.” A housing provider may not ordinarily inquire as to the nature and severity of an individual’s disability. However, if the disability is not obvious, or otherwise known to the housing provider, it may only request information that is necessary to evaluable the disability-related need for the accommodation.
Disability Not Obvious
HUD’s new guidance is issued at a time that FHA complaints concerning reasonable accommodations for assistance animals are significantly increasing, and even more so for requests where the individual’s disability is not readily apparent. If the disability is not obvious, a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the FHA’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. A doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third-party who is in a position to know about the individual’s disability may also provide verification of the disability.
Website Certificates & Remote Healthcare Providers
Over the past few years, several websites have emerged to offer certificates, registrations and licensing documents for assistance animals to individuals who answer a few questions and pay a fee. In turn, individuals present these paid-for “licenses” or “badges” to a housing provider as documentation establishing the need for the assistance animal, and housing providers are left to wrestle with whether this documentation is sufficient under the FHA. Under this new guidance, HUD states that this documentation from the internet is not, in and of itself, sufficient to reliably establish an individual has a disability or a disability related need for the assistance animal.
HUD also takes this opportunity to address letters from health care providers that provide their services remotely. Oftentimes a housing provider is presented with a letter from a health care provider that is located in a different state than the individual, and who renders their services remotely. Once again, the housing provider is left to determine whether the letter is sufficient in establishing a disability-related need for the assistance animal. While the letter may be issued from a website, unlike the websites referenced above, HUD states that this documentation is sufficient so long as the provider has personal knowledge of the individual. The mere fact that the letter comes from a provider via a website does not render the letter invalid, and the housing provider must determine whether the health care professional issuing the letter has personal knowledge of the individual’s disability and the need for the assistance animal.
Types of Assistance Animals
Another important point of clarity in this new guidance are its provisions relating to the types of animals HUD recognizes as assistance animals. A quick search on the internet provides a flood of news stories concerning exotic assistance animals that range anywhere from peacocks to squirrels, which may leave a housing provider to wonder where a request is no longer “reasonable.” According to HUD, if the animal is commonly kept in the household, it is a reasonable accommodation that should be granted. The guidance provides the following list as animals that are commonly kept in the household: dogs, cats, small birds, rabbits, hamsters, gerbils, other rodents, fish and turtles. It should be noted that the guidance states that pet rules do not apply to assistance animals, and more specifically rules limiting the size or breed of a dog do not apply; however assistance animals are not otherwise excused from issues concerning the animal’s behavior, and should issues arise, the housing provider can address those issues as it would in its normal course.
The guidance goes on to state the following are “unique animals” not considered common household animals: reptiles (except for turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals. However, if an individual does request to maintain a “unique animal,” the individual has a substantial burden to meet in demonstrating that the disability related need for the animal. In these situations, this additional documentation can include, by way of example: evidence that the animal is uniquely trained to do work or perform a task that cannot be performed by a common household animal, information confirming that the individual has an allergy that prevents them from having a common household animal, or information that confirms that without the animal, the individual’s symptoms would be significantly increased. Just as any other request for an assistance animal, a request to maintain a “unique animal” should be reviewed on a case-by-case basis, the difference being the increased burden on the requestor to establish the disability related need for the animal.
Submission and Timing of Request, Fees and Damages
The newest guidance from HUD also reaffirmed several other provisions that were set forth in prior notices from HUD. Most notably, hosing providers may not charge a pet fee or deposit for assistance animals, even if it is its practice to charge such fees for pets; assistance animals are not pets. However, the individual can be held responsible for to reimburse the housing provider for damages caused by the assistance animal. Additionally, housing providers cannot require a specific form be filled out by the individual or their health care provider, or that the request be put in writing. However, HUD encourages individuals to put their requests in writing to avoid miscommunication and to document the request made to the housing provider, and in turn, housing providers are encouraged to respond in writing to requests in order to maintain a consistent list of reasonable accommodation requests. Further, to assist the discussions between the housing provider and the individual, HUD provides a document entitled “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing,” which can be given to the individual to assist them in understanding what information the housing provider is seeking. Any such documentation received by the housing provider from the individual must be kept confidential and not shared with others. Finally, an individual may request a reasonable accommodation at any time and the housing provider must consider the request, even if the assistance animal is already in the residence.
Application of Guidelines, Timeframe for Determination and Multiple Animals
There are a few additional takeaways for housing providers from this guidance. First, housing providers are not permitted to use this guidance to reassess requests that have already been granted. Its provisions are to be applied towards all current and future requests. Second, housing providers should make a determination on the individual’s request promptly, specifically within ten (10) days of receipt of the documentation needed to review the request. Prior to this guidance, the Joint Statement from HUD and the Department of Justice (DOJ) provided that an undue delay in responding to a request may be deemed a failure to provide a reasonable accommodation. Now housing providers have a specific timeframe for their reference. Third, there is not a specific limitation as to the number of assistance animals that may be kept in a dwelling as a reasonable accommodation and multiple assistance animals can be maintained in a single dwelling if there is sufficient documentation supporting the need for each animal.
Essentially, this new guidance lays out HUD’s expectations for how the FHA should be interpreted and applied as it relates to assistance animals. While providing more clarity to all parties, it does seek to stop certain abuses of the Act, and it seeks to assist the parties in their good-faith dialogue in addressing a request for a reasonable accommodation.
