HUD’s New Guidance on Assistance Animals

On January 28, 2020, the U.S. Department of Housing and Urban Development (HUD) published new guidance on Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act (FHA). The goal: explaining what is required to maintain an assistance. HUD felt considerable pressure to issue guidance, especially from the housing industry, which believed that tenants would abuse the act by claiming a disability as a work-around to no-pets policies.

Service Animals

The new FHA guidance incorporates guidance from the Americans with Disabilities Act (ADA), but it clarifies the extent of the training a service dog is required to have:

If the individual identifies at least one action the dog is trained to take which is helpful to the disability other than emotional support, the dog should be considered a service animal and permitted in housing, including public and common use areas. Housing providers should not make further inquiries.

Housing providers are skeptical when the animal does not perform many trained tasks or fails to exhibit appropriate behavior of a service dog. The FHA does not require any training requirement, only the fact that it facilitates a disabled individual’s ability to function. There are no federally mandated animal training standards. Furthermore, there is no requirement that an animal needs to be professionally trained or certified, or any requirement to show documentation, information, or evidence regarding training. The rationale is that all disabilities are not identical, and that a dog must be individually trained to assist that person with that person’s disability-related need.

Emotional Support Animals: How to Request an Accommodation

Requests for an emotional support animal (ESA) accommodation can be made at any time and do not need “magic words.” Requestors needs only to make it known via an “ESA letter” to the housing provider that they have a disability and a disability-related need.

HUD suggests using the words “reasonable accommodation” and making the request in writing so it can be retained by the requestor and the housing provider—to avoid miscommunication.

A big issue is the requirement of when to make an accommodation request. This guidance makes the legal standard very clear:

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, although such timing may create an inference against good faith on the part of the person seeking a reasonable accommodation. However, under the FHA, 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. (emphasis added)

HUD cites regulations, and current caselaw supports this interpretation as well. However, for some reason, HUD includes a provision that “such timing may create an inference against good faith on the part of a person seeking a reasonable accommodation.”

There is no legal effect to a “good faith” inference on behalf of anyone in the statute or the regulations. Whether or not a requestor acts in good faith is irrelevant as to whether the person is entitled to an accommodation. In my 20 years of experience in litigating assistance animal claims, the inference is whether the person has a disability and needs the accommodation and whether the documents submitted are bona fide.

Emotional Support Animals: Criteria for Assessing a Disability and the Need for an Accommodation

An ESA must be “necessary to afford [the claimant] equal opportunity to use and enjoy” a dwelling; a “necessary” accommodation is one that alleviates (or lessens) the effects of a disability. If the disability and need for an animal are not obvious, the housing provider can request verification of both the disability and the nexus between the disability and the animal.

The information HUD suggests that the medical provider should document to verify the need of an animal is as follows:

• the patient’s name;
• whether the health care professional has a professional relationship with the patient/client involving the provision of health care or disability-related services;
• whether the patient has a physical or mental impairment;
• whether the patient’s impairment substantially limits at least one major life activity or major bodily function;
• the type of animal(s) for which the reasonable accommodation is sought; 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.

Consideration should be given to the items that HUD specifically states do not need to be disclosed, as well as the confidentiality surrounding the disclosures. Housing providers cannot require:

1. a health care professional to use a specific form, to provide notarized statements, or to make statements under penalty of perjury;
2. an individual’s diagnosis or other detailed information about a person’s physical or mental impairments; or
3. disclosure of details about the diagnosis or severity of a disability or medical records or a medical examination.

Information relating to an individual’s disability and health conditions must be kept confidential and cannot be shared unless it is needed to grant or deny an accommodation request. I suggest that my clients include in the ESA letter both the diagnosis and the substantial limitation that the animal addresses, even though this exceeds what is required by HUD to constitute sufficient verification for a reasonable accommodation request.

Internet Documentation and Telemedicine

HUD and housing providers are skeptical of Internet-based ESA letter providers. The guidance states, “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.” When a person sees any doctor on a single occasion or has a single session with an Internet-based mental health counselor and thereby obtains an ESA letter, housing providers and their attorneys see a big red flag.

Unique Animals vs. Ordinary Animals

In its Guidance, HUD creates a new standard for “unique” animals. This issue is a more complex issue without rational basis from HUD.

Expect More Emotional Support Animals

By 2023, antidepressants will be a $16 billion industry. Furthermore, the recognition of human-animal interaction as a method to alleviate symptoms of depression is becoming more and more accepted as a therapeutic option for persons who live with anxiety or depression. All lawyers, as well as housing providers, must learn to understand that the denial of accommodations or invasive questioning will lead to considerable exposure for a case under the Fair Housing Act.