HUD release new guidelines for service animals

Landlord

This is the press release for HUDs guidelines.  Farther down the page is how to assess an individuals request to have an animal.

https://www.hud.gov/press/press_releases_media_advisories/HUD_No_20_013

HUD No. 20-013, HUD Public Affairs (202) 708-0685

January 28, 2020

HUD ISSUES GUIDANCE ON REASONABLE ACCOMMODATIONS UNDER THE FAIR HOUSING ACT RELATING TO ASSISTANCE ANIMALS
WASHINGTON – The U.S. Department of Housing and Urban Development (HUD) today announced the publication of guidance clarifying how housing providers can comply with the Fair Housing Act when assessing a person’s request to have an animal in housing to provide assistance because of a disability.

The Fair Housing Act prohibits discrimination in housing against individuals who have disabilities that affect a major life activity. The Act requires housing providers to permit a change or exception to a rule, policy, practice, or service that may be necessary to provide people with disabilities that affect a major life activity an equal opportunity to use and enjoy their home. In most circumstances, a refusal to make such a change or exception, known as a reasonable accommodation, is unlawful. A common reasonable accommodation is an exception to a no pet policy. A person with a disability that affects a major life activity may require the assistance of an animal that does work, performs tasks, or provides therapeutic emotional support because of the disability. Housing providers may confirm, if it is not apparent, whether the requested accommodation is needed because of a disability that affects a major life activity and is a reasonable request.

This new Assistance Animal Notice will help housing providers in this process by offering a step-by-step set of best practices for complying with the Act when assessing accommodation requests involving animals and information that a person may need to provide about his or her disability-related need for the requested accommodation, including supporting information from a health care professional. Read the Notice.

“Countless Americans rely on assistance animals to fill a void, providing individuals with disabilities with the means to have a home that supports their quality of life,” stated Secretary Ben Carson. “In my many discussions with housing providers and residents impacted by the need for assistance, I recognized the necessity for further clarity regarding support animals to provide peace of mind to individuals with disabilities while also taking in account the concerns of housing providers. Today’s announcement responds to the ambiguity surrounding proper documentation for assistance animals with clarity and compassion to provide an equal opportunity for a person living with a disability to use and enjoy their home.”

“For decades, HUD has recognized the rights of individuals with disabilities to keep an assistance animal in the home where it is a reasonable accommodation,” said Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity. “Housing is unique, and a person with a disability that affects a major life activity might need an animal that provides support in ways that is not readily apparent to housing providers. For example, veterans or senior citizens may need the assistance or therapeutic support of an animal to help them cope with the symptoms of a disability that affects a major life activity. This guidance will help housing providers to recognize the important way assistance animals can improve the lives of persons with disabilities and to meet their obligation to grant such accommodations.”

HUD General Counsel Paul Compton added, “With the Assistance Animals Notice, both housing providers and individuals with disabilities will better understand their rights and obligations under the Fair Housing Act regarding assistance animals, particularly emotional support animals. For housing providers, this is a tool that can be used to help them lawfully navigate various sets of sometimes complex circumstances to ensure that reasonable accommodations are provided where required so that persons with a disability-related need for an assistance animal have an equal opportunity to use and enjoy their housing. The guidance will help ensure that these important legal rights are asserted only in appropriate circumstances.”

Additionally, this new Assistance Animal Notice provides information on the types of animals that typically may be appropriate and best practices for when the requested animal is one that is not traditionally kept in the home. It also provides information for both housing providers and persons with disabilities regarding the reliability of documentation of a disability or disability-related need for an animal that is obtained from third parties, including internet-based services offering animal certifications or registrations for purchase.

Because they apply to more types of facilities than housing, the laws applicable to public accommodations and government funded facilities, including Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, while sometimes overlapping with the Fair Housing Act, have different, and sometimes narrower, requirements. Similarly, public transportation and common carriers, such as airlines, are also subject to different rules. The Assistance Animal Notice does not address those circumstances.

Persons who believe they have experienced housing discrimination may file a complaint of discrimination by contacting HUD’s Office of Fair Housing and Equal Opportunity at (800) 669-9777 or visiting How to File a Complaint on HUD’s website.

https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WASHINGTON, DC 20410-2000 OFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY

www.hud.gov espanol.hud.gov

SPECIAL ATTENTION OF:

HUD Regional and Field Office Directors of Public and Indian Housing (PIH); Housing; Community Planning and Development (CPD); Fair Housing and Equal Opportunity; and Regional Counsel; CPD, PIH, and Housing Program Providers

FHEO Notice: FHEO-2020-01

Issued: January 28, 2020

Expires: Effective until Amended, Superseded, or Rescinded.

Subject: Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act

  1. Purpose: This notice explains certain obligations of housing providers under the Fair Housing Act (FHA) with respect to animals that individuals with disabilities may request as reasonable accommodations. There are two types of assistance animals: (1) service animals, and (2) other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities (referred to in this guidance as a “support animal”). Persons with disabilities may request a reasonable accommodation for service animals and other types of assistance animals, including support animals, under the FHA. This guidance provides housing providers with a set of best practices for complying with the FHA when assessing requests for reasonable accommodations to keep animals in housing, including the information that a housing provider may need to know from a health care professional about an individual’s need for an assistance animal in housing. This guidance replaces HUD’s prior guidance, FHEO-2013-01, on housing providers’ obligations regarding service animals and assistance animals. In particular, this guidance provides a set of best practices regarding the type and amount of documentation a housing provider may ask an individual with a disability to provide in support of an accommodation request for a support animal, including documentation of a disability (that is, physical or mental impairments that substantially limit at least one major life activity) or a disability-related need for a support animal when the disability or disability-related need for the animal is non-obvious and not known to the housing provider. By providing greater clarity through this guidance, HUD seeks to provide housing providers with a tool they may use to reduce burdens that they may face when they are uncertain about the type and amount of documentation they may need and may be permitted to request when an individual seeks to keep a support animal in housing. Housing providers may be subject to the requirements of several civil rights laws, including but not limited to the FHA, Section 504 of the Rehabilitation Act (Section 504), and the Americans with Disabilities Act (ADA). This guidance does not address how HUD will process complaints against housing providers under Section 504 or the ADA.

 

  1. Applicability: This notice applies to all housing providers covered by the FHA.1

 

1 The Fair Housing Act covers virtually all types of housing, including privately owned housing and federally assisted housing, with a few limited exceptions.

  1. Organization: There are two sections to this notice. The first, “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act,” recommends a set of best practices for complying with the FHA when assessing accommodation requests involving animals to assist housing providers and help them avoid violations of the FHA. The second section to this notice, “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing,” provides guidance on information that an individual seeking a reasonable accommodation for an assistance animal may need to provide to a housing provider about his or her disability-related need for the requested accommodation, including supporting information from a health care professional.

 

Questions regarding this notice may be directed to the HUD Office of Fair Housing and Equal Opportunity, Office of the Deputy Assistant Secretary for Enforcement and Programs, or your local HUD Office of Fair Housing and Equal Opportunity.

___________________________________

Anna María Farías, Assistant Secretary for

Fair Housing and Equal Opportunity 3

 

Assessing a Person’s Request to Have an Animal

as a Reasonable Accommodation Under the Fair Housing Act2

2 This document is an integral part of U.S. Department of Housing and Urban Development Office of Fair Housing and Equal Opportunity Notice FHEO-2020-01, dated January 28, 2020 (sometimes referred to as the “Assistance Animal Notice”).

3 The term “housing provider” refers to any person or entity engaging in conduct covered by the FHA. Courts have applied the FHA to individuals, corporations, partnerships, associations, property owners, housing managers, homeowners and condominium associations, cooperatives, lenders, insurers, real estate agents, brokerage services, state and local governments, colleges and universities, as well as others involved in the provision of housing, residential lending, and other real estate-related services.

4 42 U.S.C. § 3604(f)(3)(B); 24 C.F.R. § 100.204. Unless otherwise specified, all citations refer to those authorities effective as of the date of the publication of this guidance.

5 For purposes of this guidance, the term “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 FHA.

6 See 24 C.F.R. § 5.303(a).

7 Under the FHA, a disability is a physical or mental impairment that substantially limits one or more major life activities. See 24 C.F.R. § 100.201.

8 See Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (“Joint Statement”), Q and A 11 (May 17, 2004), at https://www.hud.gov/sites/documents/huddojstatement.pdf; Fair Hous. of the Dakotas, Inc. v. Goldmark Prop. Mgmt., 778 F. Supp. 2d 1028 (D.N.D. 2011). HUD views the Joint Statement as well-reasoned guidance on some of the topics addressed in this guidance. The Joint Statement, available to the public since 2004, has been cited from time to time by courts. See, e.g., Bhogaita v. Altamonte Heights Condo. Ass’n, 765 F.3d 1277, 1286 (11th Cir. 2014); Sinisgallo

The Fair Housing Act (FHA) makes it unlawful for a housing provider3 to refuse to make a reasonable accommodation that a person with a disability may need in order to have equal opportunity to enjoy and use a dwelling.4 One common request housing providers receive is for a reasonable accommodation to providers’ pet or no animal policies so that individuals with disabilities are permitted to use assistance animals in housing,5 including public and common use areas.

Assistance animals are not pets. They are animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities.6 There are two types of assistance animals: (1) service animals, and (2) other animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities (referred to in this guidance as a “support animal”).7 An animal that does not qualify as a service animal or other type of assistance animal is a pet for purposes of the FHA and may be treated as a pet for purposes of the lease and the housing provider’s rules and policies. A housing provider may exclude or charge a fee or deposit for pets in its discretion and subject to local law but not for service animals or other assistance animals.8 4

 

  1. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 336-42 (E.D.N.Y. 2012). However, HUD does not intend to imply that the Joint Statement is independently binding statutory or regulatory authority. HUD understands it to be subject to applicable limitations on the use of guidance. See “Treatment as a Guidance Document” on p.5 for a citation of authorities on permissible use of guidance.

9 See, e.g., HUD v. Castillo Condominium Ass’n, No. 12-M-034-FH-9, 2014 HUD ALJ LEXIS 2 (HUD Sec’y, October 02, 2014) aff’d, 821 F.3d 92 (1st Cir. 2016); HUD v. Riverbay, No. 11-F-052-FH-18, 2012 HUD ALJ LEXIS 15 (HUD ALJ, May 07, 2012), aff’d, 2012 ALJ LEXIS 19 (HUD Sec’y June 06, 2012).

10 24 C.F.R. Part 100.

11 FHEO-2013-01.

As of the date of the issuance of this guidance, FHA complaints concerning denial of reasonable accommodations and disability access comprise almost 60% of all FHA complaints and those involving requests for reasonable accommodations for assistance animals are significantly increasing. In fact, such complaints are one of the most common types of fair housing complaints that HUD receives. In addition, most HUD charges of discrimination against a housing provider following a full investigation involve the denial of a reasonable accommodation to a person who has a physical or mental disability that the housing provider cannot readily observe.9

HUD is providing this guidance to help housing providers distinguish between a person with a non-obvious disability who has a legitimate need for an assistance animal and a person without a disability who simply wants to have a pet or avoid the costs and limitations imposed by housing providers’ pet policies, such as pet fees or deposits. The guidance may also help persons with a disability who request a reasonable accommodation to use an assistance animal in housing.

While most requests for reasonable accommodations involve one animal, requests sometimes involve more than one animal (for example, a person has a disability-related need for both animals, or two people living together each have a disability-related need for a separate assistance animal). The decision-making process in this guidance can be used for all requests for exceptions or modifications to housing providers’ rules, policies, practices, and/or procedures so persons with disabilities can have assistance animals in the housing where they reside.

This guidance is provided as a tool for housing providers and persons with a disability to use at their discretion and provides a set of best practices for addressing requests for reasonable accommodations to keep animals in housing where individuals with disabilities reside or seek to reside. It should be read together with HUD’s regulations prohibiting discrimination under the FHA10 —with which housing providers must comply— and the HUD/Department of Justice (DOJ) Joint Statement on Reasonable Accommodation under the Fair Housing Act, available at https://www.hud.gov/sites/documents/huddojstatement.pdf. A housing provider may also be subject to the Americans with Disabilities Act (ADA) and therefore should also refer to DOJ’s regulations implementing Title II and Title III of the ADA at 28 C.F.R. parts 35 and 36 , and DOJ’s guidance on service animals, Frequently Asked Questions about Service Animals and the ADA at https://www.ada.gov/regs2010/service_animal_qa.html and ADA Requirements: Service Animals at https://www.ada.gov/service_animals_2010.htm. This guidance replaces HUD’s prior guidance on housing providers’ obligations regarding service animals and assistance animals.11 Housing 5

 

providers should not reassess requests for reasonable accommodations that were granted prior to the issuance of this guidance in compliance with the FHA.

Treatment as a Guidance Document

As a guidance document, this document does not expand or alter housing providers’ obligations under the Fair Housing Act or HUD’s implementing regulations. It should be construed consistently with Executive Order 13891 of October 9, 2019 entitled “Promoting the Rule of Law Through Improved Agency Guidance Documents,” Executive Order 13892 of October 9, 2019 entitled “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication,” the Office of Management and Budget Memorandum M-20-02 entitled “Guidance Implementing Executive Order 13891, Titled ‘Promoting

the Rule of Law Through Improved Agency Guidance Documents,’” the Department of Justice Memorandum of January 25, 2018 entitled “Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases,” and the Department of Justice Memorandum of November 16, 2017 entitled “Prohibition on Improper Guidance Documents.”

Part I: Service Animals

The FHA requires housing providers to modify or make exceptions to policies governing animals when it may be necessary to permit persons with disabilities to utilize animals.12 Because HUD interprets the FHA to require access for individuals who use service animals, housing providers should initially follow the analysis that DOJ has determined is used for assessing whether an animal is a service animal under the ADA.13 The Department of Justice’s ADA regulations generally require state and local governments and public accommodations to permit the use of service animals by an individual with a disability.14 For support animals and other assistance animals that may be necessary in housing, although the ADA does not provide for access, housing providers must comply with the FHA, which does provide for access.15

12 42 U.S.C. § 3604(f)(3)(B); 24 C.F.R. § 100.204. See also Pet Ownership for the Elderly and Persons with Disabilities – Final Rule, 73 Fed. Reg. 63833 (Oct. 27, 2008).

13 24 C.F.R. § 100.204(b).

14 28 C.F.R. §§ 35.136(g); 36.302(c)(7).

15 Specifically, under the Fair Housing Act, housing providers are obligated to permit, as a reasonable accommodation, the use of animals that work, provide assistance, or perform tasks that benefit persons with disabilities, or provide emotional support to alleviate a symptom of effect of a disability. Separate regulations govern airlines and other common carriers, which are outside the scope of this guidance. 6

What is a service animal?

Under the ADA, “service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability.”16

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