The top 3 things you must know about HUD’s new guidance on assistance and emotional support animals

On January 28, 2020, the Department of Housing and Urban Development (HUD) issued new guidance on how housing providers, such as condominium associations, homeowners associations and landlords, can comply with the Federal Fair Housing Act (FHA), 42 USC 3601 et seq. in evaluating requests for assistance and emotional support animals.  HUD estimates that 60% of all Fair Housing Act complaints relate to the denial of a request to accommodate a disability.  The goal of HUD’s FHEO-2020-01 notice is to make it easier for housing providers and individuals that suffer from disabilities to know when assistance and emotional support animals should be permitted and how to evaluate fraudulent requests in the wake of the growing online cottage industry to distribute letters for people to obtain accommodations.  While HUD’s FHEO-2020-01 notice  is not binding on a Court, the guidance is helpful in demonstrating how HUD will evaluate administrative complaints and how a court may view requests for assistance animals in the future.

  1. Clarification on the process for requesting an assistance or emotional support animal.

FHEO-2020-01 notice clarifies that 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.”  HUD indicates that it is not necessary for a person to submit a written report for an assistance or emotional support animal, even though this is the preferred practice to avoid miscommunication.  Accordingly, oral requests that do not contain any specific language can suffice for making a request for an emotional support or assistance animals. FHEO-2020-01 notice states that a request can be made before or after the person has required an animal.   HUD also states that the housing provider is not allowed to inquire about a disability that is readily observable.  Blindness, deafness, mobility limitations, certain intellectual impairments and neurological impairments are identified as being readily observable.  FHEO-2020-01 notice indicates that if a disability is not readily observable, only then can a housing provider request information related to the existence of the disability and the disability related need for the animal.  HUD also clarifies that a housing provider may not charge a fee for processing a request or charge a deposit, fee or surcharge to a person that has an assistance animal.

  1. Letters from a health care provider that were issued online and not by someone with personal knowledge of the requestor’s disability are insufficient to establish the need for a reasonable accommodation without further documentation.

In cases where a disability is not readily observable, HUD clarifies what type of documentation may be used as evidence of a disability and the need for an assistance or emotional support animal.  Examples of acceptable documentation are a determination of disability from a government agency, receipt of disability benefits from Social Security or Medicare, eligibility for housing assistance or  a housing voucher or information from a health care professional, such as a physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner or a nurse.  FHEO-2020-01 notice states that a housing provider may request reliable documentation to demonstrate a disability related need and that “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.”  HUD clarifies that a letter from a medical provider should indicate that the person has “personal knowledge” of the disability. HUD also clarifies that a housing provider may make the person requesting an assistance or emotional support animal certify that the information that they provide in support of the request is truthful and accurate.  While current caselaw establishes that a housing provider must respond to a request for a reasonable accommodation within a “reasonable time”, HUD now recommends that a housing provider makes a decision within 10 days of receiving a request.
HUD also provides recommendations as to the information that should be contained in a letter from a health care provider that supports a request for a reasonable accommodation.  FHEO-2020-01 notice recommends that any such letter identify the patient’s name, whether the health care professional has a professional relationship with the requestor, the type of animal request, whether the patient has a physical or mental impairment, whether the impairment substantially limits a major life activity or major bodily function and whether the patient needs the animals for physical or emotional reasons.  If the request is for a non-traditional household animal, HUD also recommends that the health care provider document the date of the last consultation with the patient, any unique circumstances justifying the need for the non-traditional animal and whether the health care provider has reliable information about the animal and whether this specific animal is particularly recommended.

  1. HUD now permits a housing provider to more closely scrutinize assistance or emotional support animals that are not traditionally kept in a household.

HUD states that a housing provider may ask whether the type of assistance or emotional support animal being requested is commonly kept in a household.  FHEO-2020-01 notice states that “a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes” are animals that would typically qualify for a reasonable accommodation that would not substantially interfere with the operations of a condominium or homeowners association.  HUD sates that “reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals.”  FHEO-2020-01 notice indicates that a requestor has a substantial burden to meet in demonstrating that a non-household animal is necessary to accommodate a disability.  HUD also affirms that a reasonable accommodation is not required if the animal would pose a direct threat to the health or safety of the other individuals or would result in substantial damage to property.

Conclusion

FHEO-2020-01 notice is beneficial for condominium and homeowners associations as it contains a step-by-step guide of questions that a housing provider should consider in determining whether to grant or deny a request for an assistance or emotional support animal.  It is certainly helpful that HUD has recognized that requests for emotional support animals are subject to abuse as fraudulent letters can easily be obtained from the internet.  However, it is unlikely that FHEO-2020-01 notice will completely alleviate all of the issues that condominium and homeowners associations encounter in evaluating requests for assistance and emotional support animals.  Specifically, HUD does little to clarify how a condominium or homeowners association can determine whether a letter obtained from the internet is from a legitimate health care provider with “personal knowledge.”  As a result of the guidance, it is likely that the online cottage industry will simply adapt their letters to comply with FHEO-2020-01 notice.  In the future, HUD should consider requiring health care providers that provide such letters to be licensed and to have an established relationship with a patient for a minimum period of time to further curb fraudulent requests for emotional support animals.  Similarly, numerous states have either adopted legislation or are in the process of adopting legislation to criminalize fraudulent requests for emotional support animals.  By way of example, Michigan is currently considering HB 4910, which criminalize fraudulent requests.  Unfortunately, the guidance is silent as to whether HUD would respect civil or criminal penalties that are imposed under state law for fraudulently diagnosing or fraudulently asserting that an assistance or emotional support animal is needed.  Accordingly, while HUD has taken a step in the right direction, grey areas still exist in evaluating requests for emotional support animals.  Accordingly, while it would be ideal if Congress would adopt civil or criminal penalties for fraudulent requests that uniformly apply across the United States, at the very least, HUD should recognize that penalties created under state law are necessary to curb fraudulent requests.
Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2019, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel has been named a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine in 2018 and 2019, an award given to less than 5% of the attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 478-1800 or [email protected]