On January 28, 2020, the US Department of Housing and Urban Development (“HUD”) issued an “Assistance Animal Notice” (“Notice”) to provide guidance to housing providers who are presented with a request for an assistance animal as a reasonable accommodation under the Fair Housing Act (“FHA”).  For those of us who have spent years relying upon and quoting HUD’s 2004 “Joint Statement with Regard to Reasonable Accommodations under the Fair Housing Act” as the official guide on this topic, the issuance of a new publication providing clarification was much anticipated.

So, did the Assistance Animal Notice answer all of our questions?  Not quite.  It did, however, provide some guidance to community associations on how to respond to an individual’s request for a reasonable accommodation in the form of an assistance animal under the FHA.

A quick refresher before we get into the highlights of the Assistance Animal Notice:

• Assistance animals are not pets. They are animals that provide support to individuals with disabilities.
• If you can see the disability, you’re likely going to have to grant the reasonable accommodation request.
• Just because you can’t see the disability doesn’t mean the person isn’t disabled.
• If you can’t see the disability, you can’t ask the individual how he/she is disabled. You can only ask for information that establishes that the individual is disabled per the FHA and explains how the animal helps alleviate the symptoms of the disability.
• There are two types of assistance animals: (1) service animals and (2) support animals.
  • Service Animals. Service animals are individually trained to provide support to the disabled individual.  Service animals can ONLY be dogs.
  • Support Animals. These are animals that typically provide emotional and/or therapeutic support to a disabled individual, i.e., emotional support animals.

The Assistance Animal Notice.

The Assistance Animal Notice is broken down into two components: “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act” and “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing.”  The first component provides clarification regarding what types of documentation a housing provider can rely upon as verification of a disability and need for an assistance animal. The second component provides guidance to housing providers and individuals on what information should be contained in the documentation submitted by the individual in support of the reasonable accommodation request.

Here are the highlights:

• Disability Verification Documentation. The following disability verification information can be relied upon to assess a reasonable accommodation request:
  • A determination of disability from a federal, state or local government agency
  • Receipt of disability benefits or services from a federal, state or local agency
  • Medicare or Supplemental Security Income for a person under the age of 65
  • Veterans’ disability benefits
  • Services from a vocational rehabilitation agency
  • Eligibility for housing assistance or a housing voucher received because of disability
  • Information confirming disability from a health care professional – physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner or nurse.

• Prior Approval for Animal Not Required Before Animal Moves into the Home. The individual is not required to ask the housing provider for the reasonable accommodation before bringing the assistance animal into the home. The individual can ask for the accommodation after the fact.
• Internet Websites. Verification of disability from an Internet website that sells certificates, registration or licensing documents for assistance animals to anyone who answers questions or participates in a short interview and pays a fee, is NOT GOOD ENOUGH. What’s good enough? A note from a healthcare professional that sees the individual remotely but still has personal knowledge of the individual.
• Types of Animals that Qualify as Support Animals.
  • Household Animals.
    • What is a Household Animal? A dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle or other small domesticated animal traditionally kept in a house for non-commercial purposes.
    • What is NOT a household animal? Reptiles other than turtles, barnyard animals, monkeys, kangaroos and other non-domesticated animals.

• What about “Unique Animals?” According to the Notice, if an individual requests a unique type of animal that is not commonly kept in a house, the individual has a substantial burden of demonstrating a disability-related need for the animal.
  • Example: A request for a goat or chicken(s). The individual would have to demonstrate unique circumstances that would justify the need for such an animal.  What would be considered a unique circumstance?
    • The goat or chicken is individually trained to do work or perform tasks that can’t be performed by a dog.
    • The individual has allergies that prevent the use of a dog.
    • Without the goat or chicken, the symptoms of the disability would be significantly increased.
    • The individual wants to keep the animal outdoors in a fenced yard where the goat or chicken can be properly maintained.

Other considerations that are not new but are still worth a mention:

• The housing provider can refuse the accommodation if the animal poses a direct threat that cannot be eliminated or reduced through actions the individual takes to control the animal (like a fenced yard).
• The housing provider cannot charge a fee for processing a reasonable accommodation request.
• The housing provider cannot require a deposit for an assistance animal.
• The housing provider cannot limit the breed or size of the animal unless specific issues with the animal’s conduct create a direct threat to the safety of those in the community, require a fundamental alteration to the nature of the community’s operations, or impose an undue financial and administrative burden on the housing provider.
• The individual is responsible for maintaining and controlling the animal.
• Information relating to an individual’s disability is confidential and cannot be shared with anyone unless the information if needed to evaluate the reasonable accommodation request or unless disclosure is required by law.

While the Assistance Animal Notice offers further clarification on this issue, the continuing rise in the number of assistance animals still leaves unanswered questions.  Please consult with an attorney for further guidance.

For more information on HUD’s Assistance Animal Notice, please refer to the following links:

https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf

https://www.hud.gov/sites/dfiles/PA/documents/AsstAnimalsGuidFS1-24-20.pdf