How to Comply with HUD's New Guidance on Assistance Animals
We'll explain HUD's five-part guide for assessing accommodation requests for assistance animals.
In this lesson, Fair Housing Coach reviews HUD’s new guidance on how to assess requests to have an animal as a reasonable accommodation under fair housing law. The new guidance, issued on Jan. 28, 2020, replaces HUD’s previous 2013 guidelines on assistance animals. If your policy was based on the old guidelines—which are no longer in effect—then you should take the time to review your policies to ensure that they comply with the new guidelines.
The new guidance, sometimes referred to as the “Assistance Animal Notice,” includes two attachments. The first, “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act,” recommends a set of best practices for complying with federal fair housing law when assessing applicants’ or residents’ accommodation requests involving animals in housing.
The second attachment, “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing,” summarizes the information that a housing provider may need to know from a healthcare professional about an individual’s need for an assistance animal in housing.
By providing greater clarity through the new guidance, HUD hopes to provide communities with a tool they can use to reduce the confusion they may face when they’re uncertain about the type and amount of documentation they may need—and may be permitted to request—when someone wants to keep a support animal in his or her home.
In this lesson, we’ve enlisted the help of our experts, fair housing attorneys Terry Kitay and Kathi Williams, to highlight what has—and hasn’t—changed under the new guidelines and offer tips to help your community comply with fair housing law when evaluating reasonable accommodation requests for assistance animals.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) bans housing discrimination against individuals with disabilities, including the refusal to make reasonable accommodations that a person with a disability may need in order to have an equal opportunity to enjoy and use a home.
HUD explains that a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. One common request is for a reasonable accommodation to community policies banning or restricting pets so that individuals with disabilities are permitted to use assistance animals in their homes.
HUD emphasizes that assistance animals are not pets. They’re animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities. The guidelines explain that there are two types of assistance animals:
- Service animals; and
- Other trained or untrained animals that do work, perform tasks, provide assistance, and or provide therapeutic emotional support for individuals with disabilities (what the guidelines refer to as “support animals.”)
An animal that doesn’t qualify as a service animal or a support animal is a pet for purposes of the FHA and may be treated as a pet for purposes of the lease and the housing provider’s rules and policies, according to HUD. A housing provider may, in its discretion and subject to local law, exclude pets or charge a fee or deposit for pets, but may not exclude assistance animals or charge fees or deposits for them.
Kitay adds that housing providers may also enforce breed restrictions for pets, but not for service dogs or other assistance animals.
While requests for reasonable accommodations often involve one animal, the guidelines note that requests sometimes involve more than one (for example, when a person has a disability-related need for both animals, or two people living together each have a disability-related need for a separate assistance animal). HUD says that the decision-making process in this guidance can be used for all requests for exceptions or modifications to housing providers’ rules, policies, practices, and/or procedures so persons with disabilities can have assistance animals in their homes.
The new guidance offers only this general advice but nothing more specific to help housing providers when assessing requests for multiple assistance animals, which Williams says is disappointing since in her experience requests for multiple assistance animals continue to increase.
Here is a five-part guide, based on HUD’s Assistance Animal Notice, for assessing accommodation requests for assistance animals.
PART I: SERVICE ANIMALS
HUD interprets the FHA to require access for individuals who use service animals. So HUD says that housing providers should initially follow the analysis that the Justice Department has determined is used for assessing whether an animal is a service animal under the ADA.
Quoting ADA regulations, HUD says that “service animal means 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. The work or tasks performed by a service animal must be directly related to the individual’s disability.”
As a best practice, HUD says that housing providers may use the following questions to help them determine if an animal is a service animal under the ADA:
QUESTION #1: Is the animal a dog?
> If “yes,” proceed to Question #2.
> If “no,” the animal is not a service animal but may be another type of assistance animal for which reasonable accommodation is needed. (Note, that in some circumstances, miniature horses may be permitted as service animals in certain settings.)
QUESTION #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,” proceed to Question #3.
Examples: HUD says that it’s readily apparent that the dog is trained when the dog is observed:
- Guiding an individual who is blind or has low vision.
- Pulling a wheelchair.
- Providing assistance with stability or balance to an individual with an observable mobility disability.
The first two questions involve a threshold inquiry—questions that your staff should ask themselves when it’s readily apparent that the animal qualifies as a service animal. Kitay explains that if the disability-related need for the dog is readily observable or readily apparent, then no further questions should be asked—and the animal must be admitted as a service animal.
QUESTION #3: What can you ask about the person’s need for a service animal?
If it isn’t readily apparent that the dog is trained to do work or perform tasks for the benefit of an individual with a disability, then HUD advises limiting your next questions to:
- Is the animal required because of a disability? and
- What work or task has the animal been trained to perform?
> If the answer to the first question is “yes,” and the work or a task is identified in response to the second question, then you should grant the requested accommodation, if otherwise reasonable, because the animal qualifies as a service animal.
> If the answer to either question is “no” or “none,” then the animal does not qualify as a service animal under federal law, but it may be a support animal that needs to be accommodated. Proceed to Part II.
Performing “work or tasks” means that the dog is trained to take a specific action when needed to assist the person with a disability.
> If the individual identifies at least one action the dog is trained to make that’s helpful to the disability other than emotional support, then the dog should be considered a service animal and permitted in housing, including public and common use areas. You should not make further inquiries.
> If no specific work or task is identified, then the dog should not be considered a service animal but may be a support animal for which a reasonable accommodation may be required. Emotional support, comfort, well-being, and companionship are not a specific work or task for purposes of analysis under the ADA.
Under HUD’s new guidelines, these first few steps involve determining whether the animal qualifies as a service animal under the ADA. Kitay says that this new focus on whether the animal is a service animal may affect how you handle requests for assistance animals, but it doesn’t change your obligation to grant reasonable accommodation requests for assistance animals—whether they’re service animals or not—when needed by individuals with disabilities to have an equal opportunity to use and enjoy their homes.
Nevertheless, the focus on service animals may be confusing to your staff, particularly when processing requests for service animals by people who don’t have an obvious disability. With the new guidance, Kitay points out that HUD has adopted the ADA standard for “service animals” for use under the FHA, even though the service animal will be present at the housing 24/7, rather than the short time periods expected at ADA public facilities. The new guidance from HUD allows you to ask only the ADA questions below, and to seek further verification of the disability or disability-related need for the animal only if it is not a service animal.
- Is the service animal needed to perform tasks related to a disability? and
- If so, what tasks is the service animal trained to perform?
If the resident adequately answers these two questions, then the guidance says you can’t require further documentation and you must grant the request. In any event, you can’t deny the request even if the dog doesn’t qualify as a service animal because the guidance requires you to satisfy the additional steps to determine whether the animal is a support animal or other type of assistance animal under the FHA—something you’ve been required to do all along.
ASSISTANCE ANIMALS OTHER THAN SERVICE ANIMALS
As a best practice, HUD says housing providers may use the following questions to help them make a decision when the animal does not meet the definition of service animal.
QUESTION #4: Has the individual requested a reasonable accommodation—that is, asked to get or keep an animal in connection with a physical or mental impairment or disability?
> If “yes,” proceed to the Part III.
> If “no,” you are not required to grant a reasonable accommodation that hasn’t been requested.
A resident may request a reasonable accommodation either before or after acquiring the assistance animal, according to the guidelines. An accommodation also may be requested after a housing provider seeks to terminate the resident’s lease or tenancy because of the animal’s presence, although such timing may create an inference of bad faith on the part of the person seeking a reasonable accommodation. Under the FHA, however, a person with a disability may make a reasonable accommodation request at any time, and the housing provider must consider the reasonable accommodation request even if the resident made the request after bringing the animal into the housing.
CRITERIA FOR ASSESSING WHETHER TO GRANT THE REQUESTED ACCOMMODATION
As a best practice, HUD says that housing providers may use the following questions to help them assess whether to grant the requested accommodation.
QUESTION #5: Does the person have an observable disability or do you already have information giving you reason to believe the person has a disability?
> If “yes,” skip to Question #7 to determine whether there’s a connection between the person’s disability and the animal.
> If “no,” then continue to Question #6.
Under the FHA, a disability is a physical or mental impairment that substantially limits one or more major life activities. While some impairments may seem invisible, HUD says that others can be readily observed. Observable impairments include blindness or low vision, deafness or being hard of hearing, mobility limitations, and other types of 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 tend to be obvious and wouldn’t be reasonably attributed to non-medical causes by a lay person.
Nevertheless, certain impairments, especially impairments that form the basis for an emotional support animal, may not be observable, according to the guidelines. In those instances, you may request information regarding both the existence of a disability and the disability-related need for the animal. Housing providers are not entitled to know an individual’s diagnosis.
QUESTION #6: Has the person requesting the accommodation provided information that reasonably supports that the person seeking the accommodation has a disability?
> If “yes,” proceed to Question #7.
> If “no,” then you are not required to grant the accommodation, but you may not deny the accommodation if you haven’t given the person requesting the accommodation a reasonable opportunity to provide the information. HUD warns that a housing provider can’t require an independent evaluation or engage in its own direct evaluation.
To help the person requesting the accommodation understand what information you’re seeking, HUD encourages you to direct the requester to the attachment to the Assistance Animal Notice entitled, “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing.” HUD says that referring the requester to that guidance will help ensure that you get the disability-related information that’s actually needed to make a reasonable accommodation decision.
Information about disability may include:
- A determination of disability from a federal, state, or local government agency.
- Receipt of disability benefits or services (Social Security Disability Income or SSDI), Medicare or Supplemental Security Income (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 disability.
- Information confirming disability from a healthcare professional, such as a physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse.
HUD explains that some types of impairments will, in virtually all cases, be found to impose a substantial limitation on a major life activity resulting in a determination of a disability. Examples include deafness, blindness, intellectual disabilities, partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, muscular dystrophy, multiple sclerosis, HIV infection, major depressive disorder, bipolar disorder, post-traumatic stress disorder, traumatic brain injury, obsessive compulsive disorder, and schizophrenia.
This doesn’t mean that other conditions aren’t disabilities. It simply means that in virtually all cases these conditions will be covered as disabilities. While you’ll be unable to observe or identify some of these impairments, individuals with disabilities sometimes voluntarily provide more details about their disability than you’ll actually need to make decisions on accommodation requests. When this information is provided, you should consider it.
Coach’s Tip: If a resident or verifier provides “medical records” voluntarily, which they occasionally do, Williams advises her clients to return them and not include them in the resident’s file.
Don’t Automatically Accept or Reject Documentation from the Internet
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. Under the FHA, a housing provider may request reliable documentation when an individual requesting a reasonable accommodation has a disability and disability-related need for an accommodation that isn’t obvious or otherwise known. In HUD’s experience, such documentation from the Internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.
By contrast, 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.
By including guidance on the documentation obtained on the Internet, Kitay and Williams say that the new guidelines should help housing providers in reviewing animal certifications and the like obtained on the web. They say that the guidelines reflect what they’ve been telling clients—that a certification from the Internet isn’t reliable unless it shows some sort of therapeutic relationship between the resident and the healthcare provider for purposes other than providing the verification.
Nevertheless, Williams warns that many of these online services have anticipated this requirement and have contracted out referrals to social workers or other mental health therapists who receive the referral from the Internet certification sites after the customers pay the fee. The referred therapists review an online questionnaire completed by the resident or in other instances, the referred therapist conducts a brief phone call with the resident.
It’s unclear whether the boilerplate verification letters that result from these brief contacts pass muster under HUD’s new guidelines as reliable verifications documenting a resident’s disability status and disability-related need for an animal. While HUD’s notice states that a reliable verifier should have a professional relationship with the resident and be providing the resident with medical or mental health services, whether this brief contact meets that requirement is unknown, because HUD’s notice doesn’t acknowledge that the Internet certification companies are actively employing this referral process.
In Kitay’s opinion, backed up by at least two known disciplinary actions against licensed therapists, a therapist’s review of an online questionnaire or even a short phone call with the resident about the questionnaire would not be sufficient to establish the element of reliability under the HUD guidelines.
QUESTION #7: Has the person requesting the accommodation provided information that reasonably supports that the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support with respect to the individual’s disability?
> If “yes,” proceed to Part IV.
> If “no,” then you are not required to grant the accommodation. But you may not deny the accommodation if you haven’t given the requester a reasonable opportunity to provide the information.
Again, HUD encourages housing providers to direct the requester to the attachment to the Assistance Animal Notice entitled, “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing.” Kitay believes the best use of the attachment is for the housing provider to confirm that the verification form it uses is acceptable, rather than simply handing the attachment out to residents or verifiers.
HUD says that information confirming a disability-related need for an assistance animal:
- Often consists of information from a licensed healthcare professional—such as a physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse—that’s general to the condition but specific as to the individual with a disability and the assistance or therapeutic emotional support provided by the animal; and
- Shows a relationship or connection between the disability and the need for the assistance animal. This is particularly necessary where the disability is non-observable, and/or the animal provides therapeutic emotional support.
PART IV: TYPE OF ANIMAL
QUESTION #8: Is the animal commonly kept in households?
> If “yes,” the reasonable accommodation should be provided under the FHA.
> If “no,” a reasonable accommodation need not be provided, but note the very rare circumstances described below.
Animals commonly kept in households. If the animal is a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that’s traditionally kept in the home for pleasure rather than for commercial purposes, then the reasonable accommodation should be granted because the requester has provided information confirming that there’s a disability-related need for the animal. 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 the individual is asking to keep a unique type of animal that’s not commonly kept in households as described above, then she has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal. The individual is encouraged to submit documentation from a healthcare professional confirming the need for this animal, which includes information of the type set out in the “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing.” While this guidance doesn’t establish any type of new documentary threshold, the lack of such documentation in many cases may be reasonable grounds for denying a requested accommodation.
Here are examples of when you may have to permit a resident to have a unique animal as a reasonable accommodation:
- The animal is individually trained to do work or perform tasks that can’t be performed by a dog.
- 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.
- The individual seeks to keep the animal outdoors at a house with a fenced yard where the animal can be appropriately maintained.
Example: An individually trained capuchin monkey performs tasks for a person with paralysis caused by a spinal cord injury. The monkey has been trained to retrieve a bottle of water from the refrigerator, unscrew the cap, insert a straw, and place the bottle in a holder so the individual can get a drink of water. The monkey is also trained to switch lights on and off and retrieve requested items from inside cabinets. The individual has a disability-related need for this specific type of animal because the monkey can use its hands to perform manual tasks that a service dog cannot perform.
If you have a “no pets” policy or a policy prohibiting the type of animal the resident seeks to have, then HUD says you may take reasonable steps to enforce the policy if the resident obtains the animal before submitting reliable documentation from a healthcare provider that reasonably supports her disability-related need for the animal. As a best practice, you should make a determination promptly, generally within 10 days of receiving documentation.
Coach’s Tip: Williams expects that housing providers will find HUD’s Assistance Animal Notice helpful when dealing with requests for animals such as snakes, ferrets, chickens, or pigs. In particular, the experts agree that it’ll be helpful when dealing with requests for snakes, which can cause substantial problems if they escape their enclosures and find their way into pipes and other areas where they don’t belong. Though you can’t simply deny requests for these unique animals outright, the new guidelines place a substantial burden on the resident to present proper verification when asking for snakes and other unique animals.
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 assistance animals in housing. HUD says it’s intended to reduce the burden on individuals with disabilities, their healthcare providers, and housing providers by explaining the type of information that’s needed to assess a reasonable accommodation request under the FHA and to speed the process for making reasonable accommodation decisions.
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 in housing. HUD warns that housing providers may not require a healthcare professional to use a specific form, to provide notarized statements, to 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 use 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. Information relating to an individual’s disability and health conditions must be kept confidential and can’t be shared with other persons unless the information is needed for evaluating whether to grant or deny a reasonable accommodation request or unless disclosure is required by law.
As a best practice, documentation should include the following:
- The patient’s name;
- Whether the healthcare professional 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 reasonable accommodation is sought (that is, dog, cat, bird, rabbit, hamster, gerbil, other rodent, fish, turtle, other specified type of domesticated animal, or other specified unique animal).
Disability-related information: A disability for purposes of fair housing laws exists when a person has a physical or mental impairment that substantially limits one or more major life activities. Addiction caused by current, illegal use of a controlled substance doesn’t qualify as a disability.
As a best practice, HUD recommends that individuals seeking reasonable accommodations for support animals ask healthcare professionals to provide information related to the following:
- 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).
Additionally, if the animal is not a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that’s traditionally kept in the home for pleasure rather than for commercial purposes, then HUD says it may be helpful for patients to ask healthcare professionals to provide 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 (if already owned or identified by the individual) or particular type of animal(s); and
- Whether the healthcare professional has reliable information about this specific animal or whether the healthcare professional has specifically recommended this type of animal.
It’s also recommended that the healthcare professional sign and date any documentation provided and give contact information and any professional licensing information.
PART V: GENERAL CONSIDERATIONS
The Assistance Animal Notice emphasizes the following points:
- The FHA doesn’t require you to make a unit available to a person whose tenancy would constitute a direct threat to the health or safety of other residents or whose tenancy would result in substantial physical damage to the property of others. You may, therefore, refuse a reasonable accommodation for an assistance animal if the specific animal poses a direct threat that can’t be eliminated or reduced to an acceptable level through actions the individual takes to maintain or control the animal (for example, keeping the animal in a secure enclosure).
- You may not charge a fee for processing a reasonable accommodation request.
- Pet rules don’t apply to service animals and support animals. Thus, you may not limit the breed or size of a dog used as a service animal or support animal just because of the size or breed but can, as noted, deny the animal based on specific issues with the animal’s conduct because it poses a direct threat or a fundamental alteration of your operations.
That said, Kitay points out that only some pet rules don’t apply—all rules regarding conduct, hygiene, supervision, etc. for pets will also apply to assistance animals:
- While you may not charge a deposit, fee, or surcharge for an assistance animal, you may charge a resident for damage an assistance animal causes if it’s your usual practice to charge for damage caused by residents (or deduct it from the standard security deposits imposed on all tenants).
- A person with a disability is responsible for feeding, maintaining, providing veterinary care, and controlling his assistance animal. The resident may do this on his own or with the assistance of family, friends, volunteers, or service providers.
- Before denying a reasonable accommodation request due to lack of information confirming an individual’s disability or disability-related need for an animal, you should engage in a good-faith dialogue with the requester called the “interactive process.” You may not insist on specific types of evidence if the information that’s provided or actually known to you meets the requirements of the guidance (except as provided above). You can’t require the resident or healthcare provider to disclose details about the diagnosis or severity of the resident’s disability, provide medical records, or undergo a medical examination.
- If you deny a reasonable accommodation request because it would impose a fundamental alteration to the nature of your operations or impose an undue financial and administrative burden, then HUD says you should engage in the interactive process to discuss whether an alternative accommodation may be effective in meeting the individual’s disability-related needs.
Coach’s Tip: Williams says that the guidance may be helpful to reinforce the obligation on housing providers to engage in the interactive process to seek a compromise if the request is considered unreasonable.
- Fair Housing Act: 42 USC §3601 et seq.
- Notice FHEO-2020-01: Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act, (Jan. 28, 2020), at https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf.
- Fact Sheet on HUD’S Assistance Animals Notice, (Jan. 28, 2020), at https://www.hud.gov/sites/dfiles/PA/documents/AsstAnimalsGuidFS1-24-20.pdf.
- Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (“Joint Statement”), (May 17, 2004), at https://www.hud.gov/sites/documents/huddojstatement.pdf.
Theresa L. Kitay: Attorney at Law, Oak Island, NC; Tkitay@kitaylaw.net.
Kathelene Williams, Esq.: Williams Edelstein Tucker, P.C., and The Fair Housing Institute, Inc., firstname.lastname@example.org.