Complying with HUD's New Guidance on Assistance Animals -Part II - Assistance Animals Other then Service 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. Last week s article covered "service animals." Today s article focuses on "assistance animals other than service animals," generally known as "support animals." I will conclude this series next 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 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. Assistance Animals Other Than Service Animals As outlined in last week s article, a service animal is a dog (with a narrow exception for miniature horses) that has been trained to perform specific tasks or services for a disabled person. This is not necessarily the case with regard to "support" animals. In most cases, applicants or residents will request permission to have an assistance animal prior to bringing the animal into the home. However, a resident may request a reasonable accommodation either before or after acquiring the assistance animal. An accommodation also may be requested after a housing provider seeks to terminate tenancy due to the presence of an animal, although such timing may create an inference of bad faith on the part of the resident that is seeking the accommodation. In other words, it is reasonable to infer that they may be making the request simply as a way to keep their "pet" in the unit. However, it is important to remember that a person with a disability may make a request for an accommodation at any time, and the housing provider must consider the request even if the request is made after the animal was brought into the unit. Criteria for Assessing Whether to Grant the Requested Accommodation The first issue to consider is the disability. Does the person have an observable disability or does the housing provider already have information indicating that the person is disabled? If so, no information regarding the disability itself may be requested. Observable impairments include blindness or low vision, deafness or being hard of hearing, mobility limitations, and other impairments with observable symptoms or effects, such as intellectual impairments (including some forms of autism), neurological impairments (such as stroke, Parkinson s disease, cerebral palsy, epilepsy, or brain injury), mental illness, or other diseases or conditions that affect major life activities or bodily functions. Observable impairments are obvious and would not normally be attributed to non-medical causes by a lay person. Certain impairments, especially those relating to the need for an emotional support animal, may not be observable. In such cases, housing providers may request information regarding both the disability and the need for the animal. When seeking verification of a disability or the need for an assistance animal, it is important to remember that you are not entitled to know a person s diagnosis, nor may you require an independent evaluation or engage in your own evaluation. HUD recommends that anyone requesting an assistance animal be directed to the attachment to the Assistance Animal Notice entitled, "Guidance on Documenting an Individual s Need for Assistance Animals in Housing." This will assist the person requesting the accommodation in understanding the type of information that may be requested when considering the request. Information about a disability may include: >A determination of disability from a federal, state, or local government agency; >Receipt of disability benefits or services such as Social Security Disability, Medicare or SSI for a person under age 65, veterans disability benefits, services from a vocational rehabilitation agency, or disability benefits or services from another federal, state, or local agency; >Eligibility for housing assistance or a housing voucher received because of a disability; or >Information confirming disability from a healthcare professional, such as a physician, optometrist, psychiatrist, psychologist, physician s assistant, nurse practioner, or nurse. Individuals with disabilities sometimes voluntarily provide more information about their disability than you need or have a right to ask for. When this happens, you should consider the information, but return the documents and do not include them in the resident file. You should also note that medical records were voluntarily provided that support the requested accommodation. Internet Verifications 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 have the right to request reliable documentation when an individual is requesting an accommodation for a disability-related need that is not obvious or otherwise known. It is HUD s position that this Internet-based information is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal. Keep in mind however, that many legitimate, licensed healthcare professionals deliver services remotely, including over the Internet. One reliable form of documentation is a note from a person s healthcare professional that confirms a person s disability and/or need for an animal when the provider has personal knowledge of the individual. Generally, a certification from the Internet should not be considered reliable unless it shows some sort of therapeutic relationship between the resident and the healthcare provider for purposes other than providing the verification. So, if the only contact the online provider and the resident have had is the request for the verification of the need for the animal, the "therapeutic relationship" test does not appear to have been met. A therapist s review of an online questionnaire or even a short phone call with the resident about the questionnaire is not sufficient to establish the element of reliability under the HUD guidelines. Summary Since many (if not most) mental health issues are not readily observable, the need for support animals may almost always be verified. These verifications should come from licensed healthcare professionals, with personal knowledge of the resident and a therapeutic relationship with that person that goes beyond a simple and short-term Internet connection. In next week s article, we will discuss the types of animals that may be approved as support animals, and the requirements when seeking approval of a "non-traditional" animal as a support animal.