Complying with HUD's New Guidance on Assistance Animals -Part III - The Type of Animals That Can Serve as Support Animals
On February 8, 2020, I posted an article on the new HUD guidance on how to assess requests to have an animal as a reasonable accommodation under fair housing law. This new guidance which is known as the "Assistance Animal Notice" includes two attachments: (1) "Assessing a Person s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act," and (2) "Guidance on Documenting an Individual s Need for Assistance Animals in Housing." I am currently posting a series of three articles that detail requirements for each of these areas. The first article discussed "service" animals and last week s second article covered "assistance animals other than service animals," generally known as "support animals." I will conclude the series this week with an article on the type of animals that can generally be acceptable as "support animals." As a prelude to this article, it is worthwhile to remind readers of HUD s basic position relating to assistance animals. HUD has made it clear that such animals are not pets and cannot be subject to a community s standard "pet policies." Assistance animals do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities. Assistance animals fall into two categories: (1) Service animals [the subject of the first article], and (2) support animals, which may be trained or untrained, and do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities. Any animal that does not qualify as a service or support animal is considered a "pet," and may be subjected to an owners pet policies. Fees or deposits may be charged for pets and breed restrictions may be imposed. There may be no fee or deposit for assistance animals, nor may there be automatic breed restrictions. One more general note before our discussion on acceptable support animals; a household may need more than one assistance animal. For example, a person may have a disability related need for both animals, or two disabled people in the same household each need their own assistance animal. When determining whether more than one assistance animal is needed, the basic procedures outlined in the HUD notice - and discussed in this series of articles - should be followed. Types of Animals That Can Be Used as Support Animals As outlined in last week s article, a support animal is an animal that eases or ameliorates a mental or emotional disability. Unlike a "service" animal, which generally can only be a dog, many types of animals may serve as "support" animals. However, based on the new HUD guidance, there are restrictions. Animals commonly kept in households. If a person needs a support animal due to a mental or emotional disability, an accommodation allowing the animal should be granted. 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 a home for pleasure rather than for commercial purposes, the animal should be permitted as a support animal (this assumes that the specific animal is not known to be dangerous). For purposes of this assessment, reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals. Unique Animals. If an individual is asking to keep a unique type of animal that s not commonly kept in household s as described above, the individual has a substantial burden of proving a disability-related therapeutic need for the specific animal or the specific type of animal. The person making the request should submit documentation from a healthcare professional confirming the need for this animal, which includes information of the type outlined in the "Guidance on Documenting an Individual s Need for Assistance Animals in Housing." If such documentation cannot be provided, this may well be grounds for denying the requested accommodation. Under what circumstances may a unique animal have to be approved as a support animal? Examples include: 1. The animal has been individually trained to do work or perform tasks that a dog cannot do. An example of this type of animal is a capuchin monkey, which is trained to perform tasks for a person with paralysis from a spinal cord injury. These monkeys are trained to retrieve bottles of water from the refrigerator, open the bottle, insert a straw, and place the bottle in a holder so that the person can drink the water. The monkeys are 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 dog cannot perform. 2. Information from a healthcare professional confirms that (1) allergies prevent the person from using a dog; or (2) without the animal, the symptoms or effects of the person s disability will be significantly increased. 3. The individual seeks to keep the animal outdoors at a house with a fenced yard where the animal can be appropriately maintained. If a resident obtains a unique animal before submitting reliable documentation from a healthcare professional that reasonably supports the need for the animal, a housing provider may take reasonable steps to enforce the pet policy (or "no pet" policy) that is in place at the property. This new guidance will be useful for owners in keeping animals such as snakes, chickens, or pigs off a property unless clearly needed because they provide a service that no domesticated animal could provide. How to Document a Resident s Need for an Assistance Animal HUD s Assistance Animal Notice includes an attachment that describes best practices for documenting an individual s need for an assistance animal. The attachment summarizes the information that a housing provider may need to know from a healthcare professional about an individual s need for an assistance animal. Housing providers may not require a healthcare professional to use a specific form, provide notarized statements, 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. When providing this information, healthcare professionals should rely on "personal" knowledge of their patient/client - that is, the knowledge used to diagnose, advise, counsel, treat, or provide healthcare or other disability-related services to their patient or client. As a best practice, documentation should include the following: *The patient s name; *Whether the healthcare provider has a professional relationship with that patient/client involving the provision of healthcare or disability-related services; and *The type of animal(s) for which the 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). Unless the disability is obvious or known, the following information may also be requested: *Whether the patient has a physical or mental impairment; *Whether the patient s impairment(s) substantially limit 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 as noted above, the healthcare professional may be asked for 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; and *Whether the healthcare professional has reliable information about this specific animal or whether the healthcare professional has specifically recommended this type of animal. The healthcare professional should sign and date the documentation, provide contact information, and any professional licensing information. Some Final Thoughts on Assistance Animals The Fair Housing Act does not require a housing provider to provide units to persons who pose a direct threat to the health or safety of other tenants or staff, or whose tenancy would result in substantial physical damage to the property of others. For this reason, specific animals that pose a direct threat that cannot be eliminated or reduced to an acceptable level through actions the individual takes to maintain control of the animal (e.g., keeping the animal in a secure enclosure), do not have to be accepted as assistance animals. No fee or deposit may be charged for an assistance animal. However, a resident may be charged for any damage an assistance animal causes if it is an owner s usual practice to charge residents for damages. Pet rules do not apply to assistance animals. So, there can be no limit on the size or breed of a dog used as an assistance animal, but specific animals known to be dangerous do not have to be accepted. Also, rules regarding conduct, hygiene, supervision, etc., can generally match those related rules in a pet policy. A person with a disability is responsible for feeding, maintaining, providing veterinary care, and controlling the assistance animal. The resident may do this on their own or with the assistance of family, friends, or service providers; the housing provider is not responsible for care of the animal. If a housing provider denies a reasonable accommodation request because it would impose a fundamental alteration in how the property is operated or create and undue financial and administrative burden, the housing provider should engage in an "interactive process" with the person requesting the accommodation to determine whether an alternative accommodation may be effective in meeting the disabled person s needs. Finally, while disabled individuals are entitled to a reasonable accommodation that they need in order to have full use and enjoyment of the property, they are not entitled to an accommodation that is unreasonable. This assistance animal guidance from HUD can be very helpful to housing providers in understanding their rights and responsibilities relative to disabled individuals and assistance animals.