Assistance Animals Revisited – Recent Guidance & Recent Regulations
By David Levy, Programs Specialist, Fair Housing Council of Orange County
April is Fair Housing Month, during which we will mark the 53rd anniversary of the passage of the federal Fair Housing Act (FHA). The law being over a half-century old does not mean that its interpretation and application does not continue to evolve.
The FHA has been amended twice; once in 1974 and again in 1988. Later this year will come the 33rd anniversary of those 1988 amendments to the FHA that added provisions to ensure equal, or at least improved, access to housing for people with disabilities. Just as with other aspects of law, when it comes to the FHA’s disability-specific provisions, their interpretation and application are not static. Evidence of that fact is shown by the U.S. Department of Housing and Urban Development’s Office of Fair Housing and Equal Opportunity’s (FHEO) issuance of updated guidance on assistance animals on January 28, 2020. That update came just 4 weeks after the introduction of California’s first fair housing regulations, which can be found in Title 2 of the California Code of Regulations (CCR), starting at section 12005. That January 2020 introduction of regulations was the first phase of developing comprehensive regulations that will eventually address most aspects of fair housing law. Among the topics addressed in the first phase is that of assistance animals.
Because it has been five years since the April 2016 article on assistance animals appeared in this publication (available at https://tinyurl.com/Apt-Age-April-2016), it is a good time to both cover these more recent developments and to review some of the general aspects of the topic. By way of a reminder, it’s important to point out that while the Americans with Disabilities Act (ADA) is perhaps a more widely-known law addressing rights for people with disabilities, when it comes to housing it is the disability-specific provisions of the FHA and not the ADA that are the applicable law. Also, as part of revisiting the topic of assistance animals and in order to have an appropriate understanding of terminology, it is good to present some definitions that appear either as part of California’s Fair Employment and Housing Act (FEHA) or the new regulations.
First, disability is defined in FEHA as a physical or mental impairment that limits one or more of a person’s major life activities. Major life activities are broadly construed and include numerous physical, mental, and social activities and working. Disability also includes a record of having such an impairment or being regarded as having such an impairment. Overall, this is a somewhat broader definition than the federal one, which uses the words ‘substantially limits.’
Second, the new regulations define an assistance animal as including both service animals and support animals and makes clear that an assistance animal is not a pet. Rather, “[i]t is an animal that works, provides assistance, or performs tasks for the benefit of an individual with a disability, or provides emotional, cognitive, or similar support that alleviates one or more identified symptoms or effects of an individual’s disability” [See 2 CCR §12005(d)]. The regulations go on define service animals as those that “are trained to perform specific tasks to assist individuals with disabilities, including individuals with mental health disabilities. Service animals do not need to be professionally trained or certified but may be trained by the individual with a disability or another individual.” They describe some specific examples of service animals, and make clear that they include animals in training, whether being trained by individuals with disabilities, persons assisting individuals with disabilities, or authorized trainers.
They also define support animals as those “that provide emotional, cognitive, or other similar support to an individual with a disability. A support animal does not need to be trained or certified. Support animals are also known as comfort animals or emotional support animals.”
Recall that a request by a housing occupant for permission to have an assistance animal is part of the broader concept of various requests for a reasonable accommodation of a person’s disability. Fair housing law makes it unlawful for a housing provider to refuse to make an accommodation that a person with a disability may need in order to have equal opportunity to enjoy and use a dwelling. Also recall that the granting of a reasonable accommodation cannot be conditioned on the payment of a fee or any other exaction [see 2 CCR §12280].
With that background in hand, we can move to a look at FHEO’s 2020 guidance, which is entitled Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act (available online at https://tinyurl.com/HUD-Assistance-Animals-2020). Although this guidance is given respecting the Federal law, California housing providers should read it with FEHA and state the regulations in mind. The guidance is intended to offer housing providers a set of best practices for complying with the FHA when assessing requests for reasonable accommodations to keep animals in housing. It replaces previous guidance issued in 2013, but still needs to be read together with other U.S. Department of Housing and Urban Development (HUD) fair housing regulations and guidance. It is divided into two parts; one that addresses assessing a request to have an assistance animal, and another addressing the documentation that might reasonably be requested by a provider. To be clear, unlike the California regulations, this guidance does not have the force and effect of law and is not meant to bind the public in any way.
To help guide the assessment of a request by an individual for an assistance animal, it first lays out a question tree specific to whether or not an animal is a service animal under provisions of the ADA. If it is, and its presence does not pose a direct threat to the health or safety of other individuals, it must be allowed in the housing, including in common areas. If the question tree does not determine it to be an ADA-defined service animal, then the guidance describes further analysis, again utilizing a question tree. The questions deal with whether a person has an apparent or observable disability, whether a housing provider has otherwise been made aware that the person has a disability, and whether the provider has been provided information on how the animal benefits the person with respect to their disability.
Clearly an accommodation does not have to be made to individuals who do not have a disability or for who the animal is not needed to allow them an equal opportunity to use and enjoy their dwelling. However, if in following this analytical process housing providers initially conclude that they do not have to grant the accommodation, they would be wise to engage in a good-faith dialogue with the requestor, which is called the “interactive process”, before definitively denying a request. That interactive process is presented at page 7 of the Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (available online at https://tinyurl.com/HUD-DOJ-Joint-Statement). The 2020 guidance also includes other general considerations related to a housing provider’s actions in processing a reasonable accommodation request, either for assistance animals specifically or other reasonable accommodations more generally.
The part of the 2020 guidance on documenting an individual’s need for an assistance animal seeks to provide best practices for that process. It offers a summary of information that a housing provider may need to know from a third-party verifier or information source about an individual’s need for the animal. It focuses on health care professionals, but providers should view this guidance in the context that the HUD / U.S. Department of Justice (DOJ) Joint Statement, at pages 13-14, identifies a variety of sources that may provide credible and adequate information. The Statement reminds housing providers they may not require a health care professional or other third party 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 details about the nature or severity of a person’s physical or mental impairments.
The 2020 guidance cautions that information relating to a person’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. It recommends that information from third parties be based on their personal knowledge of the requestor – e.g., knowledge used to diagnose, advise, counsel, treat, or provide health care or other disability-related services. Ideally that third party will include detail such as whether there is a professional relationship involving the provision of health care or disability-related services, the date of the last interaction with the person, whether the person has a physical or mental impairment that limits a major life activity, what type of animal the person is requesting to be approved, and how that animal benefits the person. While this and other information might be the ideal, housing providers should not insist on a specific check list of items before considering or granting a request for an animal. If basic, credible information has been provided to allow a determination that the animal is needed, the request should be approved. If such information is arguably lacking then the provider should use the interactive process to see if that information can be made available.
One important statement in the 2020 guidance, which is also found in the California regulations, addresses documentation from the Internet. It states that 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.” This information typically comes from web sites that sell so-called certificates, registrations, and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee. However, the guidance goes on to provide a reminder that by contrast to those web sites, many legitimate, licensed health care professionals deliver services remotely, including over the Internet. Therefore, information from an online provider should not be automatically rejected, but an interactive process to either determine the information’s credibility or to augment such information should first be pursued. The California regulations go further by including the statement that a “certification from an online service that does not include an individualized assessment [as defined] from a medical professional is presumptively considered not to be information from a reliable third party.” However, the regulations also caution that a person presenting such a certification should be given an opportunity to provide additional information that would meet the verification requirements the regulations set out before a request for reasonable accommodation is denied.
Space here does not allow for complete detail on the California regulations on assistance animals, which runs to three pages. However, among others, a few important standards they set include that: (i) no breed, size, or weight limitations may be applied to an assistance animal; (ii) animal vests, identification cards, or certificates are not in and of themselves documentation of either disability or (iii) the need for a reasonable accommodation; and an individual may have more than one assistance animal. For the last, each animal must be individually determined to meet the requirements. Also, when an individual already has a support animal and requests an additional support animal, the person considering that request may consider whether the cumulative impact of multiple animals in the same dwelling unit constitutes an undue burden.
David Levy is the Programs Specialist with the Fair Housing Council of Orange County (FHCOC) and has over 27 years’ experience in the areas of fair housing, landlord-tenant law and housing affordability. In addition to his work with FHCOC, he serves on the boards of the Kennedy Commission, the Affordable Housing Clearinghouse, and the Clearinghouse Community Development Financial Institution (CDFI), all located in Orange County, California.
This article is based on work supported by the U.S. Department of Housing and Urban Development (HUD) under FHIP Grant No. FEOI1900445. Any opinion, findings, and conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of HUD. The complete first-phase California fair housing regulations can be viewed at the following link: https://tinyurl.com/2020FHregs.