HUD Takes it Back to Basics in New Guidance on Assistance Animals in Hopes of Reducing the Number of Related Complaints
By Megan Brooks
March 11, 2020
On January 28, 2020, the U.S. Department of Housing and Urban Development (HUD) issued a notice on “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act,” (the Guidance). The Guidance provides “best practices for complying with the FHA when assessing requests for reasonable accommodations to keep animals in housing.” (page 1). This includes the information the housing provider may need to know such as the disability-related need for the support animal. (page 1).
The Guidance’s enumerated steps are helpful in guiding a housing provider through the reasonable accommodations process. Indeed, the steps are written from the perspective of a housing provider. HUD begins by distinguishing assistance animals from pets, then defining the different types of assistance animals: service animals and support animals. Service animals are dogs or miniature horses that are individually trained to do work or perform a task related to a person’s disability. (page 6; 28 C.F.R. §§ 35.104; 36.104). Support animals are “other animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities.” (page 3).
The Guidance also provides information on reasonable accommodations and how assistance animals may be part of that process. A reasonable accommodation is “a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common use spaces.” (page 7). HUD notes that it is important for housing providers to be aware that, while it may be helpful to do so, a person does not need to submit a written request using the words “reasonable accommodation” or “assistance animal.” (page 7-8)
HUD provides guidance on how housing providers should frame some questions. For instance, when determining the work tasks of a service animal, HUD provides the following language for the housing provider to use:
“The housing provider may ask in substance: (1) ‘Is the animal required because of a disability?’ and (2) ‘What work or task has the animal been trained to perform?’ Do not ask about the nature or extent of the person’s disability, and do not ask for documentation. A housing provider, at its discretion, may make the truth and accuracy of information provided during the process part of the representations made by the tenant under a lease or similar housing agreement to the extent that the lease or agreement requires the truth and accuracy of other material information.” (pages 6-7)
The steps and language used in the Guidance will likely be helpful for housing providers to navigate the reasonable accommodations process. While there is more nuance to the reasonable accommodations process than what is listed in the Guidance, a housing provider who follows the steps may engage more appropriately with the individual requesting an accommodation and lead to fewer complaints related to assistance animals.
The ERC has created a one page flowchart to help housing providers understand this new guidance. The ERC also has a one page chart to highlight differences between service animals and assistance animals under the Americans with Disabilities Act and the Fair Housing Act. These documents are not legal advice, but may be used to help follow the steps housing providers must take in assessing a person’s request for having an animal as a reasonable accommodation under the Fair Housing Act.