HUD Issues Notice Clarifying Service Animal Issues
On April 25, 2013, HUD issues FHEO Notice 2013-01, Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs. This notice provides additional clarification of housing provider obligations under the Fair Housing Act (“FHA”), Section 504 of the Rehabilitation Act of 1973 (“504”) and the Americans with Disabilities Act (“ADA”) relative to assistance animals. While Title II and III of the ADA limit the definition of “service animal” to dogs (and in some cases miniature horses), housing providers may not impose such limits on assistance animals for housing purposes.
Reasonable Accommodations for Assistance Animals Under the FHA and Section 504
The reasonable accommodation provisions of both the FHA and Section 504 must be considered in situations where persons with disabilities use assistance animals in housing when the provider of the housing forbids pets or otherwise imposes restrictions relating to animals.
An assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. For purposes of reasonable accommodation requests, neither the FHA nor Section 504 requires an assistance animal to be individually trained or certified. [Additional detail on assistance animals and the issue of training is available in the preamble to HUD’s final rule, Pet Ownership for the Elderly and Persons with Disabilities, 73 Fed Reg, 63834, 63835, October 27, 2008].
When a request for an accommodation is made by a person with a disability that relates to an animal, the housing provider must consider the following:
- Does the person seeking to use and live with the animal have a disability; and
- Does the person making the request have a disability-related need for the assistance animal?
If the answer to either question is “no,” then the FHA and Section 504 do not require an accommodation to a provider’s “no pet” policy,
If the answers to both 1 and 2 are “yes,” the FHA and Section 504 require the housing provider to modify or provide an exception to a no pet rule or policy in all areas of the property where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or fundamentally alter the nature of the housing provider’s services.
Requests may also be denied if: (1) the specific assistance animal in question poses a direct threat; or (2) the specific assistance animal in question would cause substantial physical damage to the property of anyone. Breed, size and weight limitations may not be applied to an assistance animal. Any such determination must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct – not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.
Housing providers may ask individuals with disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability related need for an assistance animal. If the disability related need for the assistance animal is not apparent, documentation of the need may be required. For example, if an individual requests permission for an emotional support animal, they may be asked to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. The verification should also stipulate that the animal in question will provide the necessary assistance.
A housing provider may not ask a tenant or applicant to provide documentation showing the disability or disability related need for an assistance animal if the disability is obvious and the need for the accommodation is readily apparent or already known by the housing provider. The housing provider also may not ask for access to medical records or medical providers or for detailed or extensive information or documentation of a person’s physical or mental impairments. This is critical since it means that management cannot require that the verifier complete a management required document.
ADA Definition of Service Animal
Housing providers may have some obligations under the ADA. ADA regulations define “service animal” narrowly as any dog (and in some cases miniature horses) that is individually trained to do work or perform tasks. “The provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” [See 28 CFR, §35.104 and 36.104].
The ADA definition of “service animal” applies to state and local government programs, service activities, and facilities to public accommodations, such as leasing offices, social service centers, and schools. In ADA-covered facilities, an animal need only meet the definition of “service animal” to be allowed in. When determining whether to allow an animal into a covered facility, two questions may be asked: (1) Is this a service animal that is required due to a disability; and (2) What work or tasks has the animal be trained to perform? No documentation may be required in support of the answer to these questions.
The animal may not be denied access to the covered facility unless: (1) the animal is out of control and the handler does not take effective action to control it; (2) the animal is not housebroken; or (3) the animal is a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level by a reasonable modification to other policies, practices and procedures [see 28 CFR §35.136 and 36.302(c)]. The animal must be allowed to accompany the disabled individual to all areas of the facility where members of the public are normally permitted [see 75 Fed Reg., 56166 and 56240, 9/5/10].
Adhering to Multiple Laws
Certain entities will be subject to both the service animal requirements of the ADA and the reasonable accommodation requirements of the FHA and Section 504. These include public housing agencies, leasing offices, shelters, assisted living facilities, and places of education.
In cases where all three statutes apply, HUD recommends applying the ADA service animal test first. If the animal does not meet the ADA service animal test, then the housing provider must evaluate the request based on the requirements of the FHA and Section 504. If the animal does meet the ADA service animal test, no further action is permitted and the animal must be accepted.
Housing providers must understand that the rights of the disabled relative to the use of assistance animals goes well beyond the rights of the disabled under the ADA. The right to “full use and enjoyment” of the premises is a primary element with regard to whether or not assistance animals must be permitted in a housing environment, and this is the governing factor when determining whether a disabled person has the right to an assistance animal under the FHA or Section 504.