Update: HUD rules for reasonable accommodations for assistance animals

BY Harry J. Kelly

Back before hand-washing became our favorite indoor sport, government agencies worried about things other than the COVID-19 virus. For HUD, that included releasing guidance, FHEO Notice 2020-01 (the “Notice”) earlier this year, discussing how owners and managers should process requests for reasonable accommodations (“RAs”) involving assistance animals. Although not a model of clarity, the Notice makes important changes that revise prior rules and impose new limits on such requests. Housing providers and persons with disabilities should become familiar with the revised obligations this updated guidance imposes on them.

Where the disability is obvious, HUD’s long-standing guidance urged housing providers to grant the RA without further verification. In the most obvious case, this would involve an RA to waive a property’s “no-pet” policy to allow a service animal trained to perform a particular task, such as a guide dog for persons with visual or hearing impairments.  

The situation became more complicated when someone claimed a disability that was not obvious, or sought to keep an animal that was not trained to perform a particular task but instead to provide emotional support. For many years, housing providers complained that HUD’s guidance made it virtually impossible for them to turn down a request to keep an animal in their unit as an RA. HUD provided little guidance on what sort of animals could be emotional support animals and what sort of information could be used to verify the disability-related need for the animal. For example, the HUD-DOJ Joint Statement on Reasonable Accommodations (May 17, 2004) (the “Joint Statement” at pages 12–13) advised that “depending on the individual’s circumstances, information verifying that the person meets the Fair Housing Act’s definition of disability can usually be provided by the individual himself or herself,” and added that “a doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability may also provide verification of a disability.” Because it was unclear what constitutes a “reliable third party” or what sort of information was necessary to support an RA to keep an emotional support animal, many housing providers simply granted requests for emotional support animals, rather than risk liability under the Fair Housing Act (“FHAct”) for improperly denying an RA.

The Notice retains the basic framework for responding to reasonable accommodation requests but provides important clarifications to the process for granting RAs involving assistance animals and, in many respects, imposes new burdens on persons seeking to keep emotional support animals. Using a series of questions and answers to evaluate RA requests, the Notice is composed of two principal sections.

The first section deals with assessing the RA request to keep an animal and provides separate guidance for RAs involving “service animals” and for other types of assistance animals. Significantly, HUD adopts the definition of a “service animal” used by the Americans with Disabilities Act, which generally limits service animals to trained dogs.

Next, with respect to RAs for non-service animals, the Notice lists a series of questions that housing providers may ask to determine whether such a RA should be granted, including whether the claimed disability is obvious or known to the housing provider and whether the person seeking the RA has provided information that supports the disability claim.

While that analysis follows standard RA procedures, the Notice departs from the tone of prior guidance, significantly restricting the type of information sources that can be used to support a disability. Thus, while the Joint Statement, as noted above, allowed for verification from a broad variety of sources, such as “a peer support group, a non-medical service agency, or a reliable third party,” the Notice restricts such information to “a licensed health care professional,” such as a “physician, optometrist, psychiatrist, psychologist, physicians’ assistant, nurse practitioner, or nurse.” The Notice also targets supporting certificates and other documents sold on the internet for a fee, warning that “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.” Ominously, the Notice warns that “the truth and accuracy of information” provided in connection with an RA request may be treated as a material representation under a lease, suggesting that a misrepresentation in connection with an RA request may result in eviction, depending on the terms of the lease. These changes unmistakably shift the RA verification burden back toward to the person making the RA request.

In some respects, the Notice is significant for what it does not do—it does not outright disallow emotional support animals or set limits on the types of animals that may be the subject of an RA request. Nevertheless, it does make RA requests for such animals more difficult to establish. For example, it permits “animals commonly kept in households”—dogs, cats, small birds, hamsters, etc.—to serve as assistance animals, but says that there is a “substantial burden” on requestors seeking to keep a “unique animal” that is not commonly kept in households (for example, the Notice identifies a capuchin monkey trained to perform specific tasks as a unique type of support animal). Again, by requiring additional information to support RA requests for “unique animals,” the Notice increases the burden on persons with disabilities to support their claims.

The Notice consists of several sections and an appendix, and runs to 19 pages. The length does not necessarily result in more clarity, and it remains to be seen whether the Notice will make handling RA requests for assistance animals easier or more complicated for all involved.

Tags: HUD

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Harry J. Kelly


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