HUD Updates and Clarifies Assistance Animal Guidance

The United States Department of Housing and Urban Development (HUD), on Jan. 28, issued new guidance on requests for reasonable accommodation under the Fair Housing Act (FHA) relative to “assistance animals” in various housing settings, including nursing homes and assisted living facilities.  The new guidance updates, clarifies, and supersedes HUD’s 2013 guidance, which many criticized as being confusing and difficult to follow.

The guidance, which doesn’t carry the force of law, is nevertheless instructive because it establishes a set of best practices aimed at helping housing providers achieve compliance with the FHA, especially in circumstances where the individual seeking the reasonable accommodation does not have an obvious disability.

The guidance is divided into two parts.  The first part focuses on assessing an individual’s reasonable accommodation request for an assistance animal.  The term “assistance animal” encompasses both “service animals” and “support animals.”  A “service animal” is defined by the Americans with Disabilities Act (ADA), as a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.   A “support animal” under the FHA is a trained or untrained animal that does work, perform tasks, provides assistance, and/or provides therapeutic emotional support for an individual with a disability.  To facilitate the housing provider’s assessment of the reasonable accommodation request, the guidance establishes a decision tree for analyzing the request for a reasonable accommodation both for individuals with observable and non-observable disabilities.

In its discussion of reasonable accommodation requests by an individual with non-observable disabilities, HUD acknowledges the practice of some websites to “sell certification, registrations, and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee,” and states that such documentation is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.  However, HUD also acknowledges that there are legitimate, licensed health care professionals that deliver services over the internet and states that one reliable form of documentation in such cases would be a note confirming the disability from the person’s health care professional that has personal knowledge of the individual.

HUD also addresses the type of animal that may serve as a support animal.  Specifically, the animal must be of a type commonly kept in households, such as a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal.  Nevertheless, HUD does not foreclose the possibility that “unique animals” may be kept as a support animal, but places a substantial burden on the individual requesting the accommodation of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.

The second portion of the guidance focuses on provided best practices with respect to documenting an individual’s need for assistance animals in housing.  It is intended to help both housing providers and individuals requesting a reasonable accommodation for an assistance animal with the type of information that health care professionals will be asked to provide about an individual’s need for an assistance animal.  Specifically, the guidance states that the health care professional should use personal knowledge of the individual and provide such information as whether the individual has a physical or mental impairment that limits at least one major life activity or major bodily function, whether the individual needs the animal to provide the support that qualifies as a service animal or a support animal, and other relevant information that focuses on the need for the animal and establishes the health care professional’s legitimate relationship to the individual.

For nursing home and assisted living providers, the challenge will be not so much in determining whether residents requesting support animals have a disability because that information will have been documented through clinical assessments, but rather assessing whether residents, alone or with the assistance of family, friends, volunteers, or service providers, are able to properly care for and control the animals so that they do not pose a direct threat to the health or safety of others or whose presence would result in substantial physical damage to the property of others.  Accordingly, these providers will need to carefully scrutinize the HUD guidance and craft policies that ensure reasonable accommodation requests are assessed within the parameters of applicable law.