Dealing with Reasonable Accommodation Requests for Assistance Animals
One of the most contentious areas of fair housing law is the verification of requests for assistance animals - especially "emotional support animals," or "ESAs." This article is intended to address issues regarding the "verification" of the need for assistance animals in a residential setting, particularly those animals that provide emotional support or other seemingly untrained assistance to disabled individuals.
Much of the guidance and many of the recommendations contained herein are based on guidance from the Virginia Real Estate Commission and Fair Housing Board. Having reviewed this guidance in the context of federal fair housing law and relevant court cases, I am confident that the recommendations made here comply with the spirit and intent of federal fair housing law. Having said that, state and local fair housing laws can apply their own standards and before implementing the recommendations made here, housing operators should consult counsel that is familiar with state and local fair housing requirements.
Finally, the statements provided herein are designed to provide accurate and authoritative information with regard to the subject matter covered. It is provided with the understanding that no legal opinion is being provided and is based solely on the information that was available for review.
Introduction
When federal fair housing law was amended in 1988 to include disability as a protected characteristic, legislators created targeted protections for disabled individuals. Disabled persons were given two specific rights under the law: (1) the right to seek reasonable accommodations (changes to rules, practices, policies, etc.), and (2) the right to modify (physically alter the premises) in order to ensure equal opportunity to use and enjoy the housing.
In recent years, one of the most common requested accommodations is the allowing of assistance animals in properties that do not allow pets. Service animals - such as dogs that guide visually impaired persons, alert hearing impaired persons to sounds and alarms, or perform tasks for mobility impaired persons - have been around for a long time and are familiar to most persons. Increasingly however, requests are being made for "emotional support animals," or "ESAs." These are animals that provide emotional support, comfort, or companionship to a person with a mental impairment. In many cases, these animals have no formal training, and when coupled with persons with "invisible" impairments, verification of the need for the animal can be challenging.
There is little doubt that some individuals "game the system," and abuse the legal protections in place for disabled persons, by fraudulently claiming an "invisible" impairment and declaring their pet to be an assistance animal. Over the past few years, there has been a rapid growth in the number of websites and other third-party sources offering assistance animal "certifications" without any first-hand knowledge of whether the animal provides a needed service or support, or even if the individual making the request is disabled.
Historically, housing providers have been hesitant to question such verifications - especially when an individual presents an assistance animal "certification" obtained from an online source - without the risk of inviting a discrimination charge. However, recent court cases and state interpretations for fair housing law lead me to the conclusion that this is not the case. The primary purpose of this article is to analyze both fair housing and health profession laws in an attempt to explain why a reasonable verification of the need for ESAs is both permitted and encouraged.
Background
In the late 1980s, Congress amended the Fair Housing Act (FHA) to prohibit discrimination against persons with disabilities in residential housing transactions. To ensure full and equal access to housing, the FHA was further amended to provide disabled persons with additional protection in the form of requiring reasonable accommodations "in rules, practices, policies, or services when such accommodations may be necessary to afford such person an equal opportunity to use and enjoy a dwelling." (See U.S.C. §3604(f)(3)(B)).
A person is disabled under the FHA when the person: (1) has a physical or mental impairment that substantially limits one or more of their major life activities (courts have ruled that a "major life activity" is an activity that is of central importance to most persons daily lives); (2) has a record of having such an impairment; or (3) is regarded as having such an impairment. "Mental impairments" include, but are not limited to, "emotional or mental illness … autism, epilepsy … and emotional illness." [See 24 CFR §100.201]. Thus, an accommodation aimed at ameliorating the effects of a mental impairment may be required where it is shown that the accommodation is reasonable and necessary to afford a person with a mental or emotional impairment an equal opportunity to use and enjoy a dwelling.
The "mental impairment" section of the law is critical because so-called "invisible" impairments are often at the center of reasonable accommodation requests for assistance animals. A key to understanding why housing providers must at times permit assistance animals for invisible impairments is an understanding of the difference between an "assistance" animal and a "service" animal.
Service Animals & Public Accommodations
The federal Americans with Disabilities Act, as amended ("ADA"), and counterpart state laws, prohibit discrimination against people with disabilities (physical or mental) in employment, the provision of public services, and in public accommodations. The laws focus, in part, that disabled persons have equal access to places of public accommodation (e.g., hotels, shopping centers, restaurants, movie theatres, sports venues, etc.) in all areas otherwise open to the public. In the housing context, the ADA generally applies to apartment community parking lots and leasing offices, since these areas are open to the public, but not to the apartments themselves.
Public entities covered by these laws must allow disabled persons to be accompanied by a service animal, narrowly defined as an animal trained to assist persons with visual, hearing, or mobility impairments [see 28 CFR §36.104]. Under the ADA, "the provision of emotional support, well-being, comfort, or companionship" is not, by itself, sufficient to be classified as a service animal [see 28 CFR §35.104].
When evaluating a reasonable accommodation request, a public accommodation may verify that an animal is required because of a disability (although no inquiry may be made about the nature of a disability) and ask what tasks the service animal has been trained to perform. In some states, including Virginia, it is illegal for a person to falsely represent an animal as a service animal in order to gain access for the animal to a public accommodation.
Assistance Animals, Private Homes, & Fair Housing
While the ADA deals with "public" accommodations, the FHA focuses exclusively on accommodations needed by disabled individuals in order to have full and equal access to their home. These laws are much broader and require that housing providers accommodate not only service animals as defined by the ADA, but assistance animals that offer necessary support to disabled persons without regard to training or tasks performed. Therefore, accommodation of untrained emotional support animals, or "ESAs," may be required under the FHA if such accommodation is reasonably necessary to allow a person with a disability an equal opportunity to enjoy and use residential housing. Two important cases in this area are:
When evaluating a reasonable accommodation request under fair housing, a housing provider may verify that the requester meets the definition of disabled (although it cannot inquire about the specific nature of a person’s impairment) and may ask how the animal will allow the person with a disability to use and enjoy the dwelling.
Assistance Animals & Accommodations Case Law
The law makes a clear distinction between public and private spaces with regard to protections for the disabled. During the rule-making process regarding assistance animals and fair housing, the Department of Housing & Urban Development (HUD) found "a valid distinction between the functions animals provide to persons with disabilities in the public arena, i.e., performing tasks enabling individuals to use public services and public accommodations, as compared to how an assistance animal might be used in the home."
In particular, HUD reasoned that assistance animals, including emotional support animals, "provide very private functions for persons with mental and emotional disabilities" that alleviate the effects of such disabilities without any specialized training. As a result, HUD determined that there is a notable difference in the type of accommodation one may need in order to access public venues such as restaurants, shopping centers, etc.) than in the type of accommodation a person with a disability may need in order to have full access and enjoyment of their home.
Federal courts have found HUD’s reasoning persuasive in evaluating reasonable accommodation issues under the FHA for private residential housing. In Overlook Mutual Homes, Inc. v. Spencer, an Ohio federal district court weighed whether the FHA imposes a training requirement on an animal in order to be approved as a reasonable accommodation. This case was especially important because it rejected prior cases that imposed an ADA-like training requirement for animals to qualify as a reasonable accommodation. In this case, the court stated, "Simply stated, there is a difference between not requiring the owner of a movie theater to allow a customer to bring her emotional support dog, which is not a service animal, into the theater to watch a two-hour movie, an ADA-type issue, on one hand, and permitting the provider of housing to refuse to allow a renter to keep such an animal in her apartment in order to provide emotional support to her and to assist her to cope with her depression, an FHA-type issue, on the other hand."
Other federal courts have since adopted this position. In the Fair Housing of the Dakotas case noted above, the court denied summary judgment for a housing provider who refused to provide an accommodation to its policy of charging additional fees for an untrained assistance animal. Before reaching its decision, the court reviewed the competing positions on this issue and reasoned that it must necessarily distinguish accommodations for places of public accommodation from those for housing given the type of access a person with a disability needs in order to have full and equal enjoyment of each. Federal courts in Florida and Nevada have reached the same conclusions and determined that ESAs qualify as assistance animals under the FHA.
The clear trend in fair housing case law is to permit reasonable accommodations for untrained assistance animals when a relationship exists between the requesting persons disability and the function or assistance that the animal provides. If the requester is able to show how the presence of the assistance animal ameliorates one or more effects of their disability, such a connection exists, and the accommodation should be granted as "necessary to afford such person an equal opportunity to use and enjoy a dwelling." In essence, there must be a relationship between the person’s disability and the function or assistance provided by the animal. However, there is no requirement under FH law that an animal must be trained or "verified" to provide the claimed assistance.
Analysis
HUD, the Department of Justice (DOJ), multiple federal courts, and many states have determined that providing an accommodation to allow a disabled person to have full access and enjoyment of their home is different from providing an accommodation to access a public place for a short period of time. Therefore, there is a difference between ADA "service animals" and "assistance animals" for housing purposes and there is no training requirement for assistance animals.
There is no longer any question that animals are proving useful in lessening the effects of mental and emotional disabilities such as anxiety, autism, post-traumatic stress disorder ("PTSD"), etc.
Reliable Verification of Disability
Housing providers seeking clarification about third-party verification should redirect their attention away from animal training or certification, which is not only unnecessary, but legally questionable. At the same time, housing operators should not be daunted by the prospect of potential litigation into accepting dubious verifications limited to vague statements of how an assistance animal would benefit the requester. On the contrary, owners and managers should insist on supplemental credible confirmation of the underlying disability. As with any reasonable accommodation request, housing providers are absolutely within their rights to focus first on establishing the legitimacy of the requesting party’s disability status as defined by fair housing law. Then, as stated above, the only issue remaining is evaluation of information to determine whether the animal provides assistance that ameliorates the effects of the verified disability.
For example, if a person suffering from PTSD - as confirmed by their treating physician - receives assistance from an untrained dog in the form of emotional support, lessened anxiety, or exiting a building quickly when experiencing a flashback, the housing provider must make exceptions to any pet limitation policies that may normally apply to the housing in question (with no further requirement that the animal be trained, certified, or verified. However, if a prospective tenant or resident fails to provide credible documentation of either a qualifying disability or cannot show a relationship to the claimed assistance from the animal, the housing provider may request additional information from a reliable third party "in a position to know about the individual’s disability."
Best Practice Recommendations
When seeking verification of a disability or the need for an accommodation, housing providers should only request "reliable disability-related information" that (1) establishes that the person is disabled as defined by the FHA; (2) describes the needed accommodation (e.g., assistance animal); and (3) demonstrates how the requested accommodation is related to and will help ameliorate the effects of the disability. However, there are few (if any) circumstances where a housing provider will require access to an individual’s medical records or details concerning the nature or severity of the person’s disability. Also, care should be taken to keep the documentation confidential given its personal and health-related nature. Finally, it goes without saying that rules or procedures that unduly restrict the process a person with a disability uses when seeking a reasonable accommodation should be strictly avoided. The imposition of overly strict procedures for requesting an accommodation could dissuade a disabled person from doing so, and the policy itself could be a fair housing violation.
Housing providers should not impose additional deposits or fees as a condition of granting a reasonable accommodation request for an assistance animal. Charging such fees in the absence of significant damage, or based only on unjustified assumptions about an animal, goes against the anti-discrimination nature of the statutes in place to protect persons with a disability. The animal is essentially functioning as an assistive device in such circumstances; so just as a housing provider may not impose a separate deposit for a wheelchair for potential carpet damage, it may not demand upfront money for animal damage that may never occur. Of course, persons with a disability are responsible for any damages actually caused by an assistance animal, and housing providers have the right to seek recovery for damages the exceed normal wear and tear (whether caused by an animal or a wheelchair).
When a housing provider seeks additional information from a person seeking a reasonable accommodation for an assistance animal, I recommend granting a temporary exception to any pet limitation policy pending its submission. This temporary exception may serve to avoid claims that the housing provider refused the reasonable accommodation request. Ultimately, if the person seeking the reasonable accommodation for an assistance animal cannot provide reliable evidence supporting the disability or fails to establish the required relationship between the disability and the assistance the animal provides, then the housing provider may deny the request.
Therapeutic Relationships
Determining the "therapeutic" relationship between the tenant requesting the reasonable accommodation and the verifying professional is one of the most contentious areas of fair housing law. The evaluation of a reasonable accommodation request is "a highly fact specific inquiry", as stated in Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 272 (4th Cir. 2013). It demands individual, case-by-case consideration by housing providers. As a result, compiling an exhaustive inventory of "acceptable" documentation (or, alternatively, a list of unacceptable authenticators) for verification purposes is highly inadvisable, if not practically impossible, because a requester must be allowed to submit credible information that may not otherwise appear on a list.
I recommend against limiting the pool of acceptable persons or entities qualified to verify disability status - as well as the imposition of higher or different standards based on the type of disability. For example, limiting verification documentation exclusively to physicians, psychiatrists, or similar healthcare professionals may make it impossible for people with a disability who lack the financial or logistical ability to access standard medical care to obtain the required verification.
However, this does not prevent housing providers from asking verifiers for reasonable documentation of their reliability. The HUD/DOJ Joint Statement on Reasonable Accommodations provides examples of sources considered to meet the "reliable third party" standard. Generally, housing providers may ask that the verifier have a therapeutic relationship with the requester in order to establish their reliability as a "third party who is in a position to know" about the individual’s disability.
For disability verification purposes, I recommend the guidance provided by the State of Virginia. A "therapeutic relationship" generally means the provision of medical care, program services, or personal care services done in good faith, in the interest of the person with the disability, by: (1) a mental health service provider as defined in the Code of Virginia; (2) an individual or facility under the rights, privileges, and responsibilities conferred by a valid, unrestricted state license, certification, or registration to serve persons with disabilities; (3) a member of a peer support group that does not charge service recipients a fee, or impose any actual or implied financial requirement, and who has actual knowledge about the requester’s disability; or (4) a caregiver with actual knowledge about the requester’s disability. Note - while this recommendation follows guidance from the State of Virginia, virtually all states have similar requirements with regard to recognizing a "therapeutic relationship."
It would be time well spent for housing providers to find out the specific requirements in their own state.
Housing providers may also request verifiers authenticate all or some of the following information to help evaluate their reliability and knowledge of the requester’s disability:
Examples of Presumed Reliable Third-Party Verifiers
While not an exclusive list, following are some of the most common verifiers that normally should be considered reliable:
Online Disability Verifications or Other Formulaic Documentation
In situations involving verification from an out-of-state practitioner not regulated by your states medical board, the practitioner should be licensed or certified by both the other state’s applicable regulatory body as well as the jurisdiction where the person with a disability was located at the time services were provided (presumably, in most cases, the state in which your housing complex is located).
Housing providers with reason to believe a disability verification was obtained via telemedicine in particular (e.g., online verification) may authenticate the information to ensure compliance with the appropriate state regulatory agency. Many states will require that practitioners who treat or prescribe through online service sites possess appropriate licensure in all jurisdictions where patients receive care.
In order to assess the reliability of the verifier when evaluating a reasonable accommodation request, a housing provider may question the basic nature of the interaction among the verifier and the requester. When perfecting a fair housing complaint for filing, HUD and many other fair housing agencies will ask medical or mental health professional verifiers to certify their willingness to testify under oath as to the disability-related need for the requested accommodation; housing providers may want to consider asking the same question. Again, it is important not to focus on the nature or severity of the condition or diagnosis, but rather the credibility of the information provided in establishing the verifier’s qualifications as being in a position to know about the person’s disability.
If a housing provider questions the validity of the patient-practitioner relationship, the verifier may be asked to affirm compliance with applicable state law governing the practice of health professions, as well as adherence to state bodies governing telemedicine. It is important that owners seek guidance from counsel in the states in which the relevant properties are located.
Conclusion
The United States Supreme Court has ruled that the FHA is remedial in nature and requires "generous construction" in order to combat pervasive discrimination against persons with a disability. For this reason, housing providers may not challenge disability verifications on an arbitrary basis or require overly burdensome documentation from individuals making reasonable accommodation requests.
However, in order to preserve the integrity of the process for all parties, housing providers must be able to request and obtain reliable, credible disability verification in support of accommodation requests for assistance animals. Most state laws governing professional licensure of health care practitioners sufficiently addresses the stated concerns of housing providers regarding requests for a therapeutic relationship between the requester and the verifier. In many cases, state laws permit a level of verification strong enough to prevent the fraudulent "verification mills" cited by some industry advocates.
In summary, asking disability verification sources to document a therapeutic relationship with the accommodation requester is a reasonable way for housing providers to evaluate third-party reliability. While awaiting additional supporting information, it may still be prudent for housing providers to grant a temporary exception to any pet limitation policy, as part of the interactive process required by HUD with regard to reasonable accommodation requests. In this way, discussions remain open and the housing provider may avoid claims of undue delay in providing a response to the accommodation request, which could be considered a denial.
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