Complying with HUD’s New Guidance on Assistance 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.”

Over the next few weeks I will post a series of three articles that detail requirements for each of these areas. Today’s article focuses on “service animals,” and will be followed by articles on “support animals,” and the type of animals that can generally be acceptable as “support animals.”

As a prelude to this series, 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 this 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 service 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.

Service Animals

Service animals must be permitted in housing in virtually all cases. In order to determine whether an animal qualifies as a service animal, housing providers should follow the guidance issued by the Department of Justice (DOJ) under the Americans with Disabilities Act (ADA).

HUD defines a service animal as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including any physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for purposes of this definition.” So – a “service animal” is a dog which has been trained to perform tasks relating to a disability. HUD goes on to state “the work or tasks performed by a service animal must be directly related to the individual’s disability.” {Note that in some circumstances, a miniature horse may be considered a service animal.}

In order to determine whether an animal is a service animal, a housing provider may consider the following issues:

1. Is the animal a dog? If “no,” with the possible exception of a miniature horse, the animal is not a service animal. However, it may still be another type of assistance animal for which reasonable accommodation is needed. If the answer is “yes,” the following should be considered.
2. Is it readily apparent that the dog is trained to do work or perform tasks for the benefit of an individual with a disability? If “yes,” further inquiries are unnecessary and inappropriate because the animal is a service animal. If “no,” there are additional inquiries that may be made. Before discussing those additional inquiries, consideration should be given to when it is readily apparent that a dog is a trained service animal. Examples include:
   1. Guiding an individual who is blind or has low vision;
   2. Pulling a wheelchair; or
   3. Providing assistance with stability or balance to an individual with an observable mobility disability.
3. If the need for the dog is not apparent, what questions can a housing provider ask? Per HUD, the following questions may be asked:
   1. Is the animal required because of a disability? and
   2. What work or task has the animal been trained to perform?
      1. If the answer to the first question is “yes,” and the work or task is identified in response to the second question, the accommodation should be granted, unless it is unreasonable to so.
      2. If the answer to either question is “no” or “none,” the animal does not qualify as a service animal under federal law, but it still may be a support animal that needs to be accommodated.

In essence, these two questions are the only questions that may be asked in determining whether or not an animal qualifies as a service animal, and if the person adequately answers these two questions, no further documentation may be required and the request must – unless unreasonable – be granted. It is important to remember that in the case of a service animal, the disability does not have to be obvious; if the person says they are disabled and describes what the dog has been trained to do, you must grant the request. However, if the animal does not qualify as a “service” animal, additional steps may be taken. Part II in this series of articles will discuss assistance animals other than service animals.