A. J. Johnson Consulting Services, Inc.

On January 28, 2020, HUD issued FHEO Notice 2020-01. The subject of the Notice is: Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation (RA) under the Fair Housing Act (FHA)

Purpose of the Notice

The Notice explains certain obligations of housing providers under the FHA with respect to animals that individuals with disabilities may request as reasonable accommodations.

The guidance gives housing providers a set of best practices for complying with the FHA when assessing requests for RA to keep animals in housing, including the information that a housing provider may need to know from a health care professional about in individual’s need for an assistance animal. This Notice replaced prior guidance (FHEO - 2013-01).

Assessing a Person’s Request to Have an Animal as a RA under the FHA

Assistance animals are not pets. They are animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities (i.e., "support" animals). A housing provider may exclude or charge a fee or deposit for a pet but not for service animals or other assistance animals. (This section of the Notice clearly prohibits any type of fee or deposit for an assistance animal).

FH complaints concerning denial of RA requests comprise almost 60% of all FH complaints and assistance animal complaints are increasing (this is actually the most common complaint.

HUD is providing this guidance to help housing providers distinguish between a legitimate assistance animal and a person who simply wants to avoid pet rules or fees.

Important - housing providers should not reassess requests for RA requests that were granted prior to the issuance of this guidance.

Part I: Service Animals

Service animals are defined under the Americans with Disabilities Act (ADA), which does not recognize "support" animals. Service animals must be allowed in housing.

Generally, only dogs are considered service animals (although miniature horses are also recognized in certain circumstances). Any other type of animal is not a service animal.

If it is "readily apparent" that a dog is a service animal, no verification is permitted. It is "readily apparent" if the dog is observed:

Guiding an individual who is blind or has low vision;
Pulling a wheelchair; or
Providing assistance with stability or balance to an individual with an observable mobility impairment.

In the case of service animals, housing providers may ask the following two questions:

Is the animal required because of a disability; and
What work or task has the animal been trained to perform?

Do not ask for documentation of the animal’s training.

These questions may be asked in the form of a sworn affidavit. If the answer to either question is "no" or "none," it is not a service animal but may be a support animal (guidance on this is provided in Part II of the Notice).

Part II - Analysis of Reasonable Accommodation (RA) Requests Under the Fair Housing Act for Assistance Animals Other Than Service Animals

A resident may request a RA either before or after acquiring the assistance animal. (This addresses the complaint of many manager when they discover pets that are then claimed as assistance animals). However, this may lead to an inference of bad faith on the part of the person seeking the accommodation.

Question that may be asked regarding a "non-service" animal

Has the individual requested a RA - this is have they asked to get or keep an animal in connection with a physical or mental impairment or disability?
1. The request may be oral or written. It may be made by others on behalf of the individual, including a person legally residing in the unit with the requesting individual or a legal guardian or authorized representative.
1. If the answer to this question is "no," no RA is required. If the answer is "yes," owners must assess whether to grant the accommodation.

Part III - Criteria for Assessing Whether to Grant the Requested Accommodation

The following questions may be used to assess whether to grant the requested accommodation:

Does the person have an observable disability or does the housing provider already have information giving them reason to believe that the person has a disability? If "yes," information regarding what the animal does may be requested (covered later). If the answer is "no," has the person requesting the accommodation provided information that reasonably supports that the person has a disability?

Observable & Non-Observable Disabilities

Observable impairments include blindness or low vision, deafness or being hard of hearing, mobility limitations, and some intellectual impairments (e.g., autism), neurological impairments (e.g., stroke, Parkinson’s disease, cerebral palsy, epilepsy, or brain injury), and mental illness. Observable impairments are generally obvious and would not be reasonably attributed to non-medical causes by a lay-person. In other words, the impairment would be obvious to an ordinary person. However, many impairments requiring an emotional support animal are not observable. In these cases, verification of both need and disability may be required.

When verification of a disability is needed, housing providers should (but are not required to) provide the requester the Guidance on Documenting the Need for an Assistance Animal.

Information about a disability may include:

A determination of disability from a federal, state, or local government agency;
Receipt of disability benefits or services (SSI if under age 65, SSDI, VA disability, services from a vocational rehab agency, etc.);
Eligibility for housing assistance received because of a disability; or
Information confirming disability from a health care professional.

Documentation from the Internet

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. Housing providers are entitled to reliable documentation for needs or disabilities that are not obvious. HUD’s position is that Internet documentation - by itself - is not sufficient to reliably establish that an individual has a need for an assistance animal.

However, many legitimate, licensed health care providers provide services over the Internet. In such cases, verification is considered reliable if it (1) confirms a person’s disability; (2) confirms the need for the animal; and (3) indicates that the provider has personal knowledge of the individual.

Information Confirming Disability-Related Need for an Assistance Animal

Information from a licensed health care professional - e.g., physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse - the information may be general to the condition but must be specific to the disabled individual and the support provided by the animal.

Type of Animal

If the requested animal is one that is commonly kept in households, the reasonable accommodation should be provided if it is confirmed that the animal is needed due to a disability. However, if the animal is one that is not commonly kept in households, the reasonable accommodation need not be provided, except in very rare circumstances (described below).

Animals Commonly Kept in Households

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 requester has provided information confirming that there is 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.

Unique Animals

If the individual is requesting to keep a unique type of animal that is not commonly kept in households as described above (e.g.,. a boa constrictor), then the requester has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal. 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 requester’s disability-related need for the animal. This places a substantial burden on tenants who retain such animals before requesting permission to have the animal. The housing provider should make a determination promptly, generally within ten days of receiving documentation.

A reasonable accommodation may be necessary when the need for a unique animal involves unique circumstance.

E.g.,

the animal is individually trained to do work or perform tasks that cannot be performed by a dog.
Information from a health care professional confirms that:
- Allergies prevent the person from using a dog; or
- Without the animal, the symptoms or effects of the person’s disability will be significantly increased.
The individual seeks to keep the animal outdoors at a house with a fenced yard where the animal can be appropriately maintained.

Example of a unique type of support animal:

An individually trained capuchin monkey 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 turn lights on and off and retrieve requested items from inside cabinets. The monkey can use its hands to perform manual tasks that a service dog cannot perform.

General Considerations

The FHA does not require a dwelling to be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. A housing provider may, therefore, refuse to allow 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 (e.g., keeping the animal in a secure enclosure).
Pet rules do not apply to service animals and support animals. For this reason, housing providers may not limit the size or breed of a dog used as a service or support animal just because of the size or breed but can, as noted, limit based on specific issues with the animal’s conduct because it poses a direct threat or a fundamental alteration.
A housing provider may not charge a deposit, fee, or surcharge for an assistance animal. However, a landlord may charge a tenant for damage an assistance animal causes if it is the provider’s usual practice to charge for damage caused by tenants.
A person with a disability is responsible for feeding, maintaining, providing veterinary care, and controlling his or her assistance animal. They may do this on their own or with the assistance of family, friends, volunteers, or service providers. Since it would fundamentally alter how a project operates, asking a housing provider to care for the animal would not be a reasonable accommodation.
Before denying a RA 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."

Guidance on Documenting an Individual’s Need for Assistance Animals in Housing

As part of the Notice, HUD included specific guidance on how to document the need for assistance animals. Housing providers should familiarize themselves with this guidance and are also encouraged to provide it to applicants or residents who request an accommodation relating to an assistance animal.

This section of the Notice provides "best practices" for documenting an individual’s need for assistance animals in housing. It is intended to help individuals with disabilities explain to their health care professionals the type of information that housing providers may need to help them make sometimes difficult legal decisions under fair housing laws. Housing providers may not require a health care professional to use a specific form, to provide notarized statements, to make statements under penalty of perjury, or to provide an individual’s diagnosis or other detailed information about a person’s physical or mental impairments. This document only provides assistance on the type of information that may be needed under the FHA.

When providing this information, health care professionals should use personal knowledge of their patient/client - i.e., the knowledge used to diagnose, advise, counsel, treat, or provide health care or other disability-related services to their patient/client.

As a best practice, documentation contemplated in certain circumstances is recommended to include the following generally information:

The patient’s name;
Whether the health care professional has a professional relationship with that patient/client involving the provision of health care or disability-related services; and
The type of animal(s) for which the reasonable accommodation is sought (i.e., dog, cat, bird, rabbit, hamster, gerbil, other rodent, fish, turtle, other specified type of domesticated animal, or other specified unique animal.

Disability-related information: a disability for purposes of fair housing laws exists when a person has a physical or mental impairment that substantially limits one or more major life activities. It is recommended that individuals seeking reasonable accommodations for support animals ask health care professionals to provide information related to the following:

Whether the patient has a physical or mental impairment;
Whether the patient’s impairment(s) substantially limits at least one major life activity or major bodily function; and
Whether the patient needs the animal(s) [because it does work, provides assistance, or performs at least one task that benefits the patient because of his or her disability, or because it provides therapeutic emotional support to alleviate a symptom or effect of the disability of the patient/client, and not merely as a pet].

If the animal is not a domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes, it may be helpful for patients to ask health care professionals to provide the following additional information:

The date of the last consultation with the patient;
Any unique circumstances justifying the patient’s need for the particular animal (if already owned or identified by the individual) or particular type of animal(s); and
Whether the health care professional has reliable information about this specific animal or whether they specifically recommended this type of animal.

It is also recommended that the health care professional sign and date any documentation provided and provide contact information and any professional licensing information.

This is important new guidance relating to a very difficult and controversial area of fair housing law. Housing providers should review this Notice and provide it to their legal counsel. In the end, this guidance does not in any way remove the responsibility of housing providers to provide reasonable accommodations - including permission to have support animals - for applicants and residents who require such an accommodation. The notice does, however, provide the most specific guidance to date regarding the level of verification that housing providers may be entitled to before granting these accommodations.

Assistance Animal Requests Under the Fair Housing Act - HUD Issues Important New Guidance

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