New HUD Notice on Assistance Animals
HUD Provides Clarification on Assistance Animals
Sixty-Percent of all Fair Housing complaints relate to the denial of reasonable accommodations and those complaints regarding the denial of an assistance animal are one of the most common types of Fair Housing complaints received.
HUD’s Fair Housing and Equal Opportunity Office published notice FHEO 2020-01 reminding housing providers of their obligation under the Fair Housing Act to allow assistance animals as reasonable accommodations for persons with disabilities and provide housing providers with a set of best practices that can be utilized to in order to ensure compliance with the Fair Housing Act.
HUD has provided this guidance to be used as a discretional tool for and best practice guidance for housing providers and persons with a disability to use when addressing requests for reasonable accommodations for an assistive animal and does not expand or change housing providers’ obligations under the Fair Housing Act or HUD’s implementing regulations.
This guidance replaces HUD’s prior guidance (FHEO-2013-01) on housing providers’ obligations regarding service animals and assistance animals under the Fair Housing Act issued in April of 2013.
NOTE: This notice does not address the requirements that apply to federally funded projects under Section 504 of the Rehabilitation Act of 1973.
Highlights of the FHEO Notice 2020-01
- Includes many reminders to housing providers relating to processing requests for reasonable accommodation for assistance animals under the Fair Housing Act.
- Clarifies the difference between a service animal under ADA and an assistance animal under the Fair Housing Act, and provides information on when it is appropriate to obtain documentation regarding a service animal.
- States that housing providers may not require a health care 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
- Addresses unreliable documentation (certificates, registrations, licensing, etc.) from the internet
- Includes best practices, presented in a series of questions, that housing providers may use to help ensure compliance with the Fair Housing Act
HUD offers housing providers the numerous reminders throughout the notice, we have summarized a majority of these reminders below, by topic.
Request for Reasonable Accommodations
- Persons with disabilities may request reasonable accommodation for service animals and other types of assistance animals, including support animals, under the FHA
- It is not necessary to for applicant or tenants to submit a written request or to use the words “reasonable accommodation,” “assistance animal,” or any other special words to request a reasonable accommodation under the FHA; however, those making a request are encouraged to do so in order to avoid confusion on what is being requested.
- The request for a reasonable accommodation with respect to an assistance animal may be oral or written. It may be made by others on behalf of the individual, including a person legally residing in the unit with the requesting individual or a legal guardian or authorized representative.
- 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 unit
- 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 the resident’s lease or tenancy because of the animal’s presence
- A reasonable accommodation may include a reasonable accommodation to a land use and zoning law, Homeowners Association (HOA) rule, or co-op rule.
- A housing provider may not charge a fee for processing a reasonable accommodation request.
Definition of Disability
- 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, 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 types of autism), neurological impairments (e.g., 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.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 does not qualify as a disability
Verification of Disability
- Certain impairments, especially impairments that may be the basis for a request for an emotional support animal, may not be observable. In those instances, a housing provider may request information regarding both the disability and the disability-related need for the animal. Housing providers are not entitled to know an individual’s diagnosis.
- Before denying a reasonable accommodation request due to a lack of information confirming an individual’s disability or disability-related need for an animal, the housing provider is encouraged to engage in a good-faith dialogue with the requestor called the “interactive process.”
- The housing provider may not insist on specific types of evidence if the information which is provided or actually known to the housing provider
Rules About Assistance Animals
- Assistance Animals are not pets
- Housing providers must not charge a fee or deposit for assistance animals; however, housing providers may charge a tenant for damage an assistance animal causes if it is the provider’s usual practice to charge for damage caused by tenants (or deduct it from the standard security deposits imposed on all tenants).
- An animal does not need to be specially trained or certified to be an assistance animals
- A housing provider may refuse a reasonable accommodation for an assistance animal if the specific animal poses a direct threat that cannot be eliminated or reduced to an acceptable level through actions the individual takes to maintain or control the animal
- Housing providers 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 limit based on specific issues with the animal’s conduct because it poses a direct threat or a fundamental alteration.
- A person with a disability is responsible for feeding, maintaining, providing veterinary care, and controlling his or her assistance animal. The individual may do this on his or her own or with the assistance of family, friends, volunteers, or service providers.
Best Practices For Processing Reasonable Accommodation for Assistance Animals
In this notice, HUD also provides best practices for determining whether the requested animal is a service animal under ADA and if the animal is not a service animal, whether to grant a reasonable accommodation request for an assistance animal.
HUD provides a series of questions to determine if an animal is a service animal. If it is readily apparent that the requested animal is a service animal, further inquiries are unnecessary and inappropriate because the animal is a service animal. If it is not readily apparent that the animal is a service animal, the housing provider may make the following inquiries:
- “Is the animal required because of a disability?”; and
- What work or task has the animal been trained to perform?”
In the notice, HUD Provides examples of “work or tasks”
- Applicant/tenant has an observable disability and an obvious disability-related need for the animal, in which case neither the disability nor the need for the requested animal must not be verified.
- The applicant has an observable disability, but the disability-related need for the animal is not obvious, in which case the housing provider must not verify the disability, but may verify the disability-related need for the animal.
- The applicant/tenant does not have an observable disability nor a disability-related need for the animal, in which case the housing provider may request documentation that the applicant/tenant meets the definition of a person with disabilities under the Fair Housing Act and documentation that the applicant/tenant has a disability-related need for the animal.
In this notice, HUD also addresses what type of documentation may be requested and accepted by the housing provider in instances when disability or the disability-related need for the animal is not apparent. HUD makes it expressly clear that Housing providers may not require a health care 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. For the first time, HUD formally addresses documentation from the internet.
Lastly, HUD also guidance on the handling of “unique” assistive animals. A unique animal is a type of animal that is not commonly kept in households.