It’s the Law

from GNAA News & Events March 2020

by Greater Nashville Apartment Association

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HUD Releases Assistance Animal Guidance

By Angelita E. Fisher Law Office of Angelita E. Fisher

On January 28, 2020, the U.S. Department of Housing and Urban Development published its long-awaited Guidance on Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act. The purpose of the Guidance is to provide landlords with a set of best practices for complying with the Fair Housing Act when evaluating requests for accommodations to keep an animal. Perhaps more importantly for multifamily housing providers, it is meant to guide landlords in distinguishing between a resident with a non-obvious disability who has a legitimate need for an animal and a resident without a disability who simply wants to have a pet or avoid the costs and limitations imposed by landlords such as pet fees or no-pet policies.

The Guidance outlines eight specific questions to assist landlords in determining if the animal is a service animal or a support animal, whether the resident is disabled and whether or not the resident needs the animal because of a disability. These questions serve as a type of flow chart where the yes or no answer sends you to another question or resolves the accommodation request.

An additional part of the Guidance defines words and terms landlords commonly use when making an accommodation decision. For example, there are definitions and examples of, “readily apparent,” “performing work or tasks,” “observable and nonobservable disabilities,” and “unique type of support animal.” According to the Guidance, if an animal is not a dog, cat, small bird, rabbit, hamster, gerbil, another rodent, fish, turtle, or a small domesticated animal, it is considered to be a unique animal. If the requested animal is unique, landlords may require residents to demonstrate a disability-related need for the specific animal or the specific type of animal as opposed to documentation that simply states they need an animal. This is good news for those landlords who have residents with snakes as companion animals.

Another specific topic in the Guidance is the use of documentation from the internet. The Guidance discusses websites that sell certificates, registrations, and licensing documentation for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee. In HUD’s experience, such documentation from the internet is not, by itself, sufficient to reliably establish that a resident has a

non-observable disability or disability-related need for an assistance animal. However, the Guidance acknowledges that legitimate licensed health care professionals deliver services remotely including over the internet. One reliable form of documentation is a note from a resident’s health care professional that confirms a resident’s disability and/or need for an animal when the provider has personal knowledge of the resident. Under the Guidance, a licensed healthcare professional is a physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse.

A separate part of the Guidance deals with Documenting an Individual’s Need for Assistance Animals in Housing. According to the Guidance, a bestpractice for landlords is to require general information from the health care professional that includes:

• The patient’s name; • Whether the health care professional has a professional relationship with that patient/client involving the provision of health care or disabilityrelated services; and • The type of animal(s) for which the reasonable accommodation is sought.

The documentation should also contain the following disability-related information:

• Whether the patient has a physical or mental impairment; • Whether the patient’s impairment(s) substantially limits 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/ her disability, or because it provides therapeutic emotional support to alleviate a symptom or effect of the disability of the resident and not merely as a pet.

The Guidance also reminds landlords 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 diagnosis or other detailed information about a person’s physical or mental impairments. In addition, information relating to the resident’s disability and health conditions must be kept confidential and cannot 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.

While the Guidance is not law, it will be used as a tool by HUD and similar state agencies when evaluating complaints under the Fair Housing Act. In addition, it will likely be considered persuasive in a court of law.

Bottom line: now is the time to re-evaluate your accommodation policies and contact your attorney if you have a question. The Guidance may be found on HUD’s website.

ANGELITA FISHER Law Office of Angelita E. Fisher

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