FHEO Notice 2013 regarding assistance animals under FHA Section 504 and ADA

Housing Providers have obligations under several laws when disabled persons ask for exceptions to “No Pets” policies

 

“Disability-related complaints, including those that involve assistance animals, are the

most common discrimination complaint we receive,” says John Trasvenia, Assistant Secretary for Fair Housing and Equal Opportunity, U.S. Department of Housing and Urban Development (HUD).[1]

 

On April 25, 2013, the U.S. Department of Housing and Development (HUD) published a notice about the obligations of housing providers regarding animals that provide assistance to people with disabilities.[2]  HUD noted that the revised Americans with Disabilities Act (ADA) limits the definition of "service animal," whereas the Fair Housing Act (FHA) and Section 504 of the Rehabilitation Act of 1983 (Section 504) definition of “assistance animal” remains broad.  HUD reminded housing providers that persons with disabilities may request reasonable accommodation for any assistance animal, including those providing emotional support under both the FHA and Section 504.  In situations where the ADA and the FHA/Section 504 apply simultaneously (e.g., a public housing agency, sales or leasing offices, or housing associated with a university or other place of education), HUD advised housing providers to meet their obligations under all three laws.[3]

 

HUD published the notice because of confusion about the term “service animal,” which is defined by the ADA.  The ADA is administered and enforced by the Department of Justice (DOJ).  In 2011, the DOJ published a revised definition for “service animals” under Title II and Title III of the ADA .[4]  Since 1991, when the ADA was first promulgated, the number of species serving as service animals had increased to include pigs, horses, monkeys, snakes, lizards, birds, rodents and the service animal function had expanded to include emotional support.[5]  The revised regulations limited the definition of service animal to “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.”[6]

 

Service animal work is defined as work that is directly related to the individual’s disability,[7] i.e. guiding blind people, alerting deaf people, pulling wheelchairs, protecting people having seizures, reminding people to take prescribed medicines, and calming people with PTSD during anxiety attacks.[8]  Dogs that provide comfort but don’t do work directly related to an individual’s disability are not considered service animals. 

 

Under the ADA, the service animal should be allowed to go with the disabled individual to any area of a facility that the public is normally allowed to go.[9]  Where it is not readily apparent that a dog is a service animal, housing providers may ask two questions only: 1) is this dog required because of a disability and; 2) What work has the dog been trained to perform?  The housing provider may not require documentation that the dog has been trained as a service animal.  The dog may not be denied access to the facility unless 1) the dog is out of control; 2) the dog is not housebroken; or 3) the dog poses a direct threat to health or safety of others.[10]  A determination that the dog poses a threat must be based on an individualized assessment of the particular dog, not on a stereotype of breed characteristics.

 

The FHA and Section 504 define “assistance animal” as an animal that performs tasks for a disabled person or provides emotional support that alleviates a person’s disability symptoms.[11] An assistance animal is not a pet.  While dogs are most common, other animals can also be assistance animals.[12]  The FHA covers most housing, including privately owned and federally assisted housing.  Section 504 covers housing providers that receive HUD federal financial assistance. The two laws mandate that housing providers must allow disabled persons reasonable accommodations to have assistance animals in housing that otherwise prohibit pets.  A reasonable accommodation is “a change, exception or adjustment to a rule, policy or practice that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use areas.”[13]

 

A request for a reasonable accommodation may not be unreasonably denied or delayed.[14]  Housing providers may ask two questions: 1) does the individual have a disability and 2) does the individual have a disability-related need for an assistance animal?  If the answer is “Yes” to both questions, the FHA and Section 504 require housing providers to make an exception to a “No Pets” rule.[15]  The assistance animal should be allowed to accompany the person wherever people are normally allowed to go, unless it is assessed that allowing it would “impose an undue burden or would fundamentally alter the nature of the housing provider’s services.”[16] This assessment must be made on a case by case basis.[17]  Housing providers may not require pet deposits for assistance animals; however, if the animal damages the apartment or common areas, the housing provider may charge the tenant for the costs to repair the damage.[18]  Neither act requires assistance animals to be individually trained or certified. 

 

If a disability is recognizable or already known, a housing provider may not ask for documentation of the disability[19] or the need for an assistance animal.[20]  If the disability is known, but the need for the assistance animal is not, the housing provider may ask for reliable documentation that the animal in question will provide some type of disability-related assistance or emotional support.  If the disability is not recognizable or already known, housing providers may ask for reliable documentation of the disability and related need for the assistance animal. Reliable documentation may be provided by a physician, psychiatrist, social worker or other mental health professional.

 

If the answer is “No” to either question, the reasonable accommodation request may be denied. The request may also be denied if the specific assistance animal “poses a direct threat to the health and safety of others, that cannot be reduced or eliminated by another reasonable accommodation, or if it would cause physical damage to the property of others, that cannot be reduced or eliminated by another reasonable accommodation.”[21]  The assessment that a particular assistance animal is a threat or causes damage must be based on objective evidence about the specific animal’s actual conduct.  Breed, size and weight limitations do not apply.[22]   

 

The amendments to the ADA regulations do not affect reasonable accommodation requests under the FHA/Section 504.  In situations where all three laws apply, housing providers must meet the broader FHA/Section 504 standard in deciding whether to grant reasonable accommodation requests.[23]

 

 


[1] https://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2013/HUDNo.13-060A, June 24, 2013.

[2] https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf,  June 25, 2013.

[3]Ibid.

[4]Title II of the ADA applies to public housing agencies, state and local government housing, and housing at state universities.  Title III of the ADA applies to public accommodations, such as rental offices, shelters, some multi-family housing, assisted living facilities, and housing at places of public education. See http://www.ada.gov/regs2010/titleII_2010/titleII_2010_fr.pdf, June 25, 2013.

[5] https://www.fortislawpartners.com/blog/item/6-dogs-and-miniature-horses-are-fine-but-leave-your-monkeys-and-snakes-at-home-new-guidelines-on-service-animals-take-effect-march-15th, June 25, 2013.

[6] The only other species considered is miniature horses, which have been individually trained to do work for people with disabilities. http://www.ada.gov/service_animals_2010.htm, June 25, 2013.

[7] The ADA protects persons with disabilities or persons who have an association with an individual with a disability. A disabled person is defined as one who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of impairment, or a person who is perceived by others as having impairment.  See http://www.ada.gov/cguide.htm.  June 25, 2012.

[8] Ibid, June 25, 2013.

[9] www.ada.gov, June 24, 2013.

[10] 28 C.F.R. § 35.136; 28 C.F.R. § 36.302(c).

[11]https://www.hud.gov/offices/fheo/FINALRULE/Pet_Ownership_Final_Rule.pdf, June 24, 2013.

[12] https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf, June 25, 2013.

[13] “Joint Statement of the Department of Housing and Urban Development and the Department of Justice,” Washington D.C., May 17, 2004” at https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_statement_ra.pdf, June 24, 2013.

[14] https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf, June 25, 2013.

[15] Ibid.   

[16] Ibid.

[17] Joint Statement of the Department of Housing and Urban Development and the Department of Justice,” Washington D.C., May 17, 2004” at https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_statement_ra.pdf, June 24, 2013.

[18] www.hud.gov/offices/fheo/library/huddojstatement.pdf‎, June 25, 2013.

[19] The FHA defines a person with a disability to include (1) individuals with a physical or

mental impairment that substantially limits one or more major life activities; (2) individuals who

are regarded as having such an impairment; and (3) individuals with a record of such an

impairment. See https://www.hud.gov/offices/fheo/library/huddojstatement.pdf, June 25, 2012.

[20] http://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2...

[21] Ibid.

[22] Ibid.

[23] http://www.nacua.org/documents/FHA_Memo_ServiceAnimals.PDF, June 25, 2013.