On January 28, 2020, the U.S. Department of Housing and Urban Development (“HUD”) issued guidance aimed to assist housing providers, including community associations, in evaluating a person’s request for an assistance animal in order to reasonably accommodate a physical or mental disability under the federal Fair Housing Act. 1 The Guidance accomplishes a number of objectives.
Distinguishing Between a Service Animal and a Support Animal
In the Guidance, HUD clarifies that the term “assistance animal” can be used to describe either a “service animal” or a “support animal”. Pursuant to the same analysis used under the Americans with Disabilities Act, a “service animal” is a dog (or, in some cases, a miniature horse) that is individually trained to perform specific tasks to benefit an individual with a disability.
When the disability or the need for the service animal is not readily apparent, it’s permissible for the housing provider to ask 1) whether the animal is required because of a disability and 2) what work or task is the ani-
mal trained to perform? Common tasks that service animals provide are guiding an individual who is blind or has low vision, pulling a wheelchair, providing stability or balance to an individual, detecting seizures, reminding an individual to take medicine, etc.
On the other hand, a “support animal” (also referred to as a “comfort animal”, “companion animal”, etc.) provides support to alleviate a symptom of a disability, which can include emotional support.
Either way, the Guidance provides that a housing provider is permitted to treat an animal that is not either a service animal or a support animal as a pet for purposes of the housing providers rules and polices.
Verifying the Disability for Support Animals
When the request is for a support animal, the Guidance clarifies that where the disability or the need for an accommodation is not obvious, the housing provider has the right to obtain information to verify the disability or the need for the accommodation. Such information may include a determination of disability letter from a federal, state or local government agency, receipt of disability benefits (such as social security disability income, veterans disability benefits, etc.), eligibility for housing assistance (like a housing voucher), or information confirming the disability from a health care professional such as a physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse.
Associations should be aware that simply because a person does not qualify as having a disability for purposes of a benefit or program does not necessarily mean the individual does not have a disability under fair housing laws.
Documentation from the Internet
HUD recognizes that some websites sell certificates, registrations and licensing documents for assistance animals to anyone who answers questions, for a fee. HUD has determined that such documentation is not, by itself, sufficient to reliably establish that an individual has a disability or a disability-related need for an as-
sistance animal. However, HUD also recognizes that in some cases, legitimate health care providers may deliver services remotely, including over the internet.
The Guidance gives housing providers permission to conduct a further inquiry when the animal being requested is not an animal commonly kept in households. Dogs, cats, small birds, rabbits, hamsters, gerbils,
other rodents, fish, turtles, and other small, domesticated animals are traditionally kept in homes for pleasure, as opposed to commercial purposes. Associations should limit their inquiry when these types of
animals are involved in the request.
However, when the animal in question constitutes a “unique” animal, meaning, an animal that is not commonly kept in a household, then the requestor has the “substantial burden” of demonstrating a “disability-related therapeutic need” for the specific animal.
But HUD warns that even a “unique” animal may be acceptable if it is 1) individually trained to perform a certain task, 2) supported by documentation from the health care provider, and 3) able to be kept in an
appropriate area, such as a fenced-in, outdoor area. The example HUD gives in the Guidance is a monkey that can perform tasks for a person with paralysis caused by a spinal cord injury, such as retrieving a bottle
from the refrigerator, unscrewing the cap, inserting a straw and placing the bottle in the holder so the resident can get a drink of water, or tasks such as switching lights on and off and retrieving items from cabinets.
Requests for Multiple Assistance Animals
The Guidance briefly touches on requests for reasonable accommodations involving more than one animal, such as a person claiming a disability-related need for multiple assistance animals, each treating a different condition, or two people living in a dwelling, each needing a separate assistance animal. The decision-making process issued in the Guidance can be used in evaluating requests for multiple assistance
animals as well.
The Guidance reaffirms that an individual doesn’t need to use a specific form in making a request, or use specific terminology, such as the words “reasonable accommodation” or “assistance animal”. Furthermore, requests need not to be in writing, although HUD recommends that requests be submitted in writing in order to avoid miscommunications. Requests may be made at any time throughout the residency, and are not contingent upon someone’s move into a community. Associations should engage in a good-faith dialogue, referred to as the “interactive process”, with the requestor and provide the requestor with a reasonable opportunity to provide documentation in support of the request. The Guidance restates that a reasonable accommodation does not need to be made where it would constitute a direct threat to the health or safety of other individuals or if it results in substantial physical damage to the property of others. HUD advises housing providers to maintain the confidentiality of information provided in connection with a request and only share it when necessary to further evaluate whether to grant or deny a request. Lastly, HUD recommends that the housing provider respond to requests within 10 days.
The Guidance does not create new law. Rather, it is meant to be read in connection with existing HUD regulations. It serves as a set of “best practices” for housing providers, including community associations, to comply with the Fair Housing Act when assessing requests for assistance animals to reasonably accommodate a disability. Of course, whenever a disability-related matter is presented, the association should also ways consult with its legal counsel