Animals in Housing: The New HUD Circular

Too big, So, no.

Yes

Not common household animal; must show, “substantial burden.” So, who knows.

Yes as this is a gerbil.

Yes

Last week, I had the privilege of attending and speaking at the Accessibility Professionals Association conference in Round Rock, Texas. I learned a lot at the convention and met a lot of wonderful people. From all reports, my presentations (defending against the serial plaintiff in architectural barrier cases and the wild west of Internet accessibility litigation), went well. While there, I had the opportunity to meet Cindy Smiley, an attorney in Austin and a fellow member of the Texas animal law section. I appreciate her journeying out to Round Rock to meet me. We discussed the proposed regulation from DOT dealing with service animals on planes, which I blogged on last week. I do want to thank Cindy for sending me the circular that is the subject of this blog entry, which I received the same day I arrived in Texas. While in Texas, I was able to get my Texas barbecue fix. If you like barbecue, there is nothing like eating barbecue in Texas. Since I was away and unable to blog, my colleague, Richard Hunt, got a blog up on HUD circular on animals in housing right away. In his first paragraph, he says:

“Over the course of 19 poorly written and poorly organized pages HUD provides one crumb of help for housing providers faced with bogus requests for emotional support animals. The bulk of the “Guidance” is a confused repetition of various earlier HUD positions that defy common sense and the law.”

I will say that I completely agree with him that the circular is 19 poorly written and poorly organized pages. I also agree with him that the guidance is a confused repetition of various earlier HUD positions. Finally, I wonder, but perhaps for different reasons than Richard, if the new circular is really an improvement or just make things worse. That is, there is a saying if it aint broke don’t fix it. I am afraid that the new circular fixed something that didn’t really need fixing or alternatively, broke even further something already broken.

Today’s blog entry is divided into the categories of: what does the circular say; what does the guidance on documenting an individual’s need for assistance animals and housing say; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

What Does the Circular Say

The circular replaces prior circulars.
The circular does not address §504 or the ADA.
The three types of animals are: 1) service animals; 2) assistance animals; and 3) support animals. If an animal is not one of these three, then it is a pet.
The circular applies to any housing provider, i.e. any person or entity engaging in conduct covered by the Fair Housing Act. Housing refers to all housing covered by the Fair Housing Act including: apartments; condominiums; cooperatives; single-family homes; nursing homes; assisted living facilities; group homes; domestic violence shelters; emergency shelters; homeless shelters; dormitories; and other types of housing covered by the Fair Housing Act.
Almost 60% of all Fair Housing Act complaints involve those seeking reasonable accommodations for assistance animals and those complaints are increasing.
As an initial matter, housing providers should follow the DOJ approach for assessing whether an animal is a service animal under the ADA.
A service animal is defined the same way as found in the Department of Justice title II and title III regulations, which we discussed here.
In figuring out whether an animal is a service animal, the first question you ask yourself is whether the animal is a dog. If it is, then you have to ask yourself whether it is readily apparent that the dog is trained to do work or perform tasks for the benefit of an individual with a disability. If the answer to the second question is yes, then you have a service animal.
The circular says that it is readily apparent that the dog is a service animal in the following situations: guiding an individual who is blind or has low vision; pulling a wheelchair; providing assistance with the ability or balance to an individual with an observable mobility disability.
If it is not readily apparent that the animal is a service animal, then “it is advisable for the housing provider to limit its inquiries to the following two questions: 1) is the animal required because of a disability?; and 2) what work or tasks has the animal been trained to perform? You cannot ask about the nature or extent of the person’s disability. Also, you cannot ask for documentation. If the answer to question 1 is yes and the tenant identifies a work or task, then the animal qualifies as a service animal if the requested accommodation is otherwise reasonable. If the answer to either question is no or none, then the animal is not a service animal but might be a support animal or other type of assistance animal needing accommodations under the Fair Housing Act and this circular.
The housing provider can, if it wants to, can require the tenant to attest to the truth and accuracy of information provided during the reasonable accommodation process under a lease or similar housing agreement.
Performing work or task means the dog is trained to take a specific action when needed to assist the person with the disability. So, if the individual identifies at least one action the dog does that is helpful to the disability other than emotional support, then the dog is a service animal and must be permitted in housing including the public and common areas. In that eventuality, housing providers do not get to make further inquiries.
Magic words are not required but persons with disabilities are encouraged to use them in order to avoid miscommunication. Also, the request for reasonable accommodation with respect to an assistance animal may be oral or written. It also can be made by others on behalf of the individual, including a person legally residing in the unit with the requesting individual or legal guardian or authorized representative.
An accommodation may be requested after 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 asking for the reasonable accommodation. Even so, under the Fair Housing Act, an accommodation request can be made at any time.
If the disability is not observable, the housing provider may request information regarding both the disability and the disability -related need for the animal. The housing provider is not entitled to know the individual’s diagnosis. That information provided by the tenant must reasonably support the tenant’s assertion that he or she has a disability. The tenant must be given a reasonable opportunity to provide information that reasonably supports his or her request.
A separate document called “guidance on documenting an individual’s need for assistance animals in housing,” is attached to the circular. HUD believes that document helps ensure that the housing provider receives the disability related information necessary to make the reasonable accommodation decision.
Information about a disability may come from a variety of sources, including: 1) a disability determination from a federal, state, or local governmental agency; 2) receipt of SSDI, SSI, or disability benefits or services from another federal, state, or local agency; 3) eligibility for housing assistance or housing voucher received because of disability; or 4) information confirming disability from a healthcare professional, such as a physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse. HUD notes that a person could have a disability and not qualify for purposes of a benefit or other program.
As to what just about always is a disability, the circular adopts the approach in the DOJ’s title II and title III regulations. That is, certain disabilities will virtually in all cases meet the definition of a disability. Those disabilities include: deafness; blindness; intellectual disability; partially or completely missing limbs or mobility impairments requiring the use of a wheelchair; autism; cancer; cerebral palsy; diabetes; epilepsy; muscular dystrophy; multiple sclerosis; HIV; major depressive disorder; bipolar disorder; posttraumatic stress disorder; traumatic brain injury; obsessive-compulsive disorder; and schizophrenia.
Where an individual voluntarily provides more details about the disability than the housing provider actually needs in order to make a decision, the housing provider should consider it.
Documentation from the Internet is not by itself sufficiently reliable to establish an individual has a non-observable disability or a disability related need for an assistance animal.
That said, documentation provided over the Internet from a licensed healthcare professional is kosher if the healthcare professional can confirm the person’s disability and need for an animal and also has personal knowledge of the individual.
Reasonably supporting information is defined as often coming from a licensed healthcare professional (examples include, physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse), that is general to the person with a disability’s condition but specific to the individual and the assistance or therapeutic emotional support provided by the animal.
The documentation must provide a relationship or connection between the disability and the need for the assistance animal, especially where the disability is non-observable or where the animal provides therapeutic emotional support.
For non-observable disabilities and animals providing therapeutic emotional support, the housing provider can get information consistent with the, “guidance on documenting an individual’s need for assistance animals and housing.”
As for what animals can be allowed if they are not a service animal, it must be an animal commonly found in households. If it is not an animal commonly kept in households, then the animal does not have to be allowed except in very rare circumstances.
Animals commonly kept in households include the following: dogs; cats; small birds; rabbits; hamsters; gerbils; other rodents; fishes; turtles; or other small domesticated animals traditionally kept in the home for pleasure rather than for commercial purposes. Barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals.
If the animal is not a common household animal, “then the requester has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.” (The quoted language is taken verbatim from the circular).
A best practice is for the housing provider to make a determination within 10 days of receiving any documentation.
With respect to unique animals, allowing for the unique animal may be necessary where: 1) the animal is individually trained to do work or perform tasks that cannot be performed by a dog; 2) information from a healthcare professional confirmed that allergies prevent the person from using a dog, or without the animal, the symptoms or effects of the person’s disability will be significantly increased; or 3) the individual seeks to keep the animal outdoors at a house with a fenced yard where the animal can be appropriately maintained.
Trained capuchin monkeys are one type of a unique type of support animal.
If the assistance animal poses a direct threat that cannot be eliminated or reduced to an acceptable level, that animal can be refused by the housing provider.
Reasonable accommodations can include modifying land use and zoning laws, homeowners association rules, or co-op rules.
A housing provider cannot charge a fee for processing a reasonable accommodation request.
Pet rules are not applicable to service animals and support animals.
Service animals and support animals are subject to conduct rules.
Housing providers cannot charge a deposit, fee, or surcharge for an assistance animal but can charge the tenant for damages and assistance animal causes if that is the provider’s usual practice to charge for damage caused by tenants.
Veterinary care and controlling of the assistance animal are the person’s with the disability responsibility.
The interactive process is always a good idea.
A housing provider cannot insist on specific types of evidence if the information provided or known to the housing provider meet the requirements of the circular. Also, disclosure of details about the diagnosis or severity of the disability or medical records or medical examination cannot be required.

What Does the Guidance on Documenting an Individual’s Need for Assistance Animals and Housing Say

Housing providers may not require a healthcare 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 and mental impairments.
The guidance on documenting an individual’s need for assistance animals and housing does not have the force and effect of law and is not meant to bind the public in any way.
Healthcare professionals need personal knowledge of their patient or client when issuing supporting documentation.
Information relating to an individual’s disability and health condition must be kept confidential and cannot be shared with other persons unless the information it needed for evaluating whether to grant or deny a reasonable accommodation request or where disclosure is required by law.
General information that should be included in supporting documentation includes: 1) the patient’s name; 2) whether the healthcare professional has a professional relationship with the patient or client involving the provision of healthcare or disability -related services; and 3) the type of animal for which the reasonable accommodation is sought.
Addiction caused by current illegal use of a controlled substance does not qualify as a disability. We discussed what is a current user here.
Specific information that should be included in supporting documentation includes: 1) whether the patient has a physical or mental impairment; 2) whether the patient’s impairment substantially limits a major life activity or major bodily function; and 3) whether the patient needs the animal either because it performs works or tasks for the person with the disability or because it provides therapeutic emotional support to alleviate a symptom or effect of the disability and is not merely a pet.
If it is a unique animal being requested as a reasonable accommodation, then the following information would be helpful for persons with disabilities to ask for and for housing providers to receive: 1) the date of the last consultation with the patient; 2) any unique circumstances justifying the patient’s need for the particular animal; and 3) whether the healthcare professional has reliable information about the specific animal or whether they specifically recommend that type of animal.
The healthcare professional should sign and date any documentation.

III

Thoughts/Takeaways

The circular and the accompanying guidance are a big mess. You basically have to be a lawyer to figure it out. Even for me with years and years of experience as an attorney dealing with the rights of persons with disabilities, understanding the circular and the accompanying guidance is difficult to put it mildly.
There is a saying if it aint broke, don’t fix it. Another saying is, don’t make a bad situation worse. I am afraid that both of those sayings can be argued here. The prior system may or may not have been broken but gave you general guidance and then you could use common sense. This circular and the accompanying guidance are so specific and at times incomprehensible as to make things considerably worse.
The circular and the guidance as a matter of law may be completely meaningless per Kisor v. Wilkie, which we discussed here. Keep in mind, HUD has no regulations on animals and the Fair Housing Act doesn’t have any statutory provisions talking about it either.
As we have seen with the Department of Transportation, here, there is a trend for agencies adopting the DOJ definition of what is a service animal as contained in the DOJ title II and title III regulations. Many States are also taking the DOJ regulations and codifying them into their statute. The problem here is that HUD still wants to allow animals in housing that are not service animals. A very strong policy argument can be made for that position. However, that makes the reasonable accommodation process much more complicated than in other contexts, such as on airplanes or when it comes to accessing non-federal governmental entities or places of public accommodation.
Unlike the Department of Justice and the Department of Transportation, HUD makes it clear that if it is not readily apparent the animal is a service animal only two questions can be asked. The Department of Transportation and DOJ both focus on two inquiries where the two questions represent the two lines of inquiries. As such, if a housing provider asks more than the two questions when it is not readily apparent that the animal is a service animal, they have violated the circular.
How much fraud will be prevented by the truth and accuracy attestation is very much an open question.
People in the disability rights community are going to have a problem with the section of the circular that allows for anyone to request the animal as a reasonable accommodation for the person with the disability. To maintain maximum independence of the person with a disability, such a request should be made by the person with the disability him or herself. If that individual is not able to make such a request, then it makes sense for the legal guardian or authorized representative to do so. Of course, if the individual is a minor, then the parents have a perfect right to ask.
HUD specifically gives permission for tenant to ask for an animal as a reasonable accommodation after being served with an eviction notice.
On the one hand, HUD said that the Internet documentation system is replete with fraud. On the other hand, nothing wrong with using the Internet documentation system if it is coming from healthcare professionals familiar with the patient. I don’t see how this distinction helps prevent fraud or really makes the old problem any better.
HUD gives all kinds of guidance on what reasonably supporting information is but by doing so, they put everything in a box and makes the whole thing unnecessarily rigid.
With respect to animals not commonly allowed in households, HUD says in the circular that the person with the disability has the “substantial burden,” of convincing the housing provider to allow the animal. Trained capuchin monkeys are per se allowable. What is a “substantial burden,” is anybody’s guess.
A housing provider should turn around the reasonable accommodation request within 10 days as a matter of best practice.
Circular doesn’t say what a, “direct threat” is. As a matter of preventive law, following the ADA regulations on direct threat makes a lot of sense.
The housing provider has to keep information related to the individual’s disability confidential.
HUD gives examples of what readily apparent means, but I would limit myself to just those situations. Use common sense when appropriate.
The whole document reads as if only one animal is always involved, which is unfortunate because that will not always be the case.
Interactive process is a title I of the ADA construct, but it has wide applicability across the disability rights universe.
Miniature horses are not dogs and not common household animals either. So, miniature horses would be subject to the unique animal requirements of the circular.