HUD’s Latest Guidance Regarding Service/Support Animals
In late January 2020, the Department of Housing and Urban Development (“HUD”) issued updated guidance regarding service / support animals as “reasonable accommodations” pursuant to the Fair Housing Amendments Act of 1988, specifically 42 U.S.C. 3604f(3)(B). Of note is that this “guidance” does not have the force of law or even federal regulation. Failure by a housing provider to abide by the guidance “does not necessarily constitute a violation by housing providers of the Fair Housing Act (“FHA”) or regulations promulgated thereunder.” FHEO Notice 2020-01.
If it isn’t law or enforceable regulation, why should community associations pay any attention?
On that point, it is more instructive and revealing to consider why HUD has just issued this guidance than to dissect the minutiae thereof, although we’ll spend a bit of time below parsing the high points.
We doubt that the HUD bureaucrats wanted to issue this guidance. Rather, it would appear that they were forced to do so by the undeniable and burgeoning trend of fraudulent abuse of fair housing and equal access law by poseurs who want the same legal protections and privileges for their pets as the genuinely disabled receive for their trained service animals.
Peacocks on commercial airliners posing as “emotional support animals.” Owners of alpacas, small ponies, huge boa constrictors and fraudulent support dogs (one of which bit an airline attendant who required five stitches to repair the wound) who claim their creatures are also “emotional support animals.” These and a host of other examples have all raised the public’s consciousness of the increasing and fraudulent abuse of both the Fair Housing Act and the Americans With Disabilities Act (“ADA”) with respect to service/support animals. See, inter alia, “ The Number of Fake Emotional Support Dogs is Exploding – Why?, The Guardian, Aug 13, 2019; People are Taking Emotional Support Animals Everywhere – States are Cracking Down, NYTimes, June 18, 2019; New Federal Rules for Emotional Support Animals on Planes are Coming, etc., Chicago Tribune, Nov 29, 2019; Americans Want a Shorter Leash on Emotional Support Animals on Planes, Forbes, July 30, 2019; States Lead Efforts to Curtail Rampant Abuse of Emotional Support Animal Requests, National Apartment Association (“NAA”) publication, Mar 21, 2018.
Yes, some of the foregoing articles pertain to plane travel, which is admittedly more intimate in terms of space than are condominium units or townhomes. Sitting next to a miniature pony while flying from New York City to Los Angeles is admittedly different than merely observing the pony’s owner leading the animal as it clops through your condominium’s formal lobby. But the underlying point is the common denominator between “support animals” in travel scenarios and in housing scenarios. In both situations, there is widespread fraud and thus abuse of the relevant federal civil rights statutes. Simply, a growing number of people exploit federal disability law to acquire special legal protection for their pets. In response, twenty-one (21) state legislatures are considering or have enacted legislation “making it unlawful to misrepresent an animal as a service animal or fraudulently represent oneself as having a right to be accompanied by a service animal.” Id., NAA, Mar 21, 2018.
By issuing this guidance, HUD is characteristically playing catch-up to a reality that has been patently obvious for years to even the marginally sentient. Just as typical and regrettable, the guidance contained in FHEO-2020-01 is half-hearted in nature and will prove woefully inadequate in curing the type of fraud which is — presumably — the predicate for its issuance.
For those unfamiliar with fair housing law, we need to provide the briefest of tutorials. FHEO-2020-01 pertains only to housing scenarios, not to public access, public accommodation and employment scenarios, the latter of which are covered by different federal statutory law (typically, the ADA). Pursuant to 42 U.S.C. 3604f(3)(B), a housing provider is required by law to make a “reasonable accommodation” in rules, policies, practices or services when requested to do so by a handicapped person, if such an accommodation is necessary to allow the handicapped person the full use and enjoyment of his dwelling. Courts have ruled that if a handicapped person requires an “assistance animal” to enjoy the full use of his housing, and if granting such a request does not fundamentally alter “the nature of the housing provider’s operations or impose an undue financial or administrative burden” upon the housing provider, then the housing provider must grant the request. To deny the request would violate fair housing law as interpreted by the federal judiciary and thus constitute a civil rights violation by the housing provider.
To illustrate by an obvious example, if a blind person moves into an urban condominium which by its recorded bylaws is a no-pet (read no-animal) condominium, and if the blind person has a specially trained large German shepherd “seeing eye dog” (to use the traditional but apparently now politically incorrect description for such an animal), the condominium association must allow the dog to reside with his owner despite the recorded bylaw prohibition against animals in that condominium. HUD would consider that dog to be a service animal. (FHEO 2020-01 yet again tweaks HUD-speak regarding its definitions. The general category of “assistance animal” is now divided into two (2) sub-categories – service animals and support animals, about which more below).
Of course, and as the reader probably realizes, over time fair housing law pertaining to service animals and support animals has become ever so much more complicated in practice than our simple and obvious example above. And as also indicated above, fraudulent exploitation of such law and federal regulations pertaining thereto has become pervasive. Hence the issuance of FHEO-2020-01.
What does the new “guidance” do? To paraphrase HUD’s prolix prose, it is intended to help housing providers distinguish between the genuinely disabled (including those with “non-obvious” disabilities) and the fakers who want to manipulate fair housing law to their advantage regarding their pets. It does so by setting forth a decision matrix (of sorts) for housing providers (and their attorneys) to follow. The matrix defines a word or concept (e.g., “service animal”) and then suggests questions that the housing provider can ask the person requesting the accommodation for his or her animal. The requestor’s answers to the questions will (supposedly) determine whether the request for an animal accommodation is legitimate or merely a ruse perpetrated on behalf of a pet.
The guidance affirms that assistance animal requests entail the same processing considerations as pertain to any other reasonable accommodation request; e.g., the request may be in writing or verbal (although HUD now recommends written requests to avoid “miscommunication’); requiring certification of the disability by a healthcare provider is not permissible if the disability is obvious and apparent; inquiries to healthcare providers for non-obvious disabilities are permitted but are very limited in scope; and, HUD is now “recommending” a decision deadline of ten (10) days (significantly shorter than the unwritten but seemingly accepted previous processing time of 30 days).
Processing considerations specific to requests for assistance animals include: (i) the request may be submitted to the housing provider either before or after the animal is acquired; (ii) service animals (such as the seeing eye dog) are specially trained to perform their functions for their handicapped owner, but support animals require no special training and may be purely emotionally therapeutic for the owner (isn’t every pet?); and, (iii) both service and support animals are eligible to be considered as reasonable accommodation requests. And in an obvious acknowledgment of the ongoing widespread fraud, HUD now concedes that the certificates, registrations and licensing documents for assistance animals that are readily available on the Internet can be considered by housing providers as unreliable (and hence insufficient) documentation of either a non-observable disability, a disability-related need for an assistance animal, or as proof of some special training or certification the animal received.
FHEO 2020-01 also attempts to tighten the documentation requirement by increasing the rigor of healthcare diagnoses of non-observable disabilities. For example, healthcare providers who verify the disability must be licensed healthcare professionals. In some scenarios involving requests for assistance animals, the healthcare provider must attest to the fact that the handicapped requestor is the patient of the healthcare provider.
Finally, HUD is attempting to inject some reality into the assistance animal craze by creating categories of non-unique and unique assistance animals. “Non-unique animals” are those typically maintained in households as…well, pets, even though HUD insists that they’re not pets. Such animals include dogs, cats, birds, rabbits, hamsters, fish, turtles or other “small domesticated animals.” Conversely, HUD doesn’t provide examples of “unique animals,” but generally categorizes them as animals not commonly kept in households (e.g., a peacock?).
Note that by the guidance set forth in FHEO 2020-01, HUD is imposing a significantly higher burden of proof upon requestors seeking reasonable accommodations for unique animals than for common household animals. That’s common sense and thus a positive. Nevertheless, HUD also asserts that a capuchin monkey (for example), could be either a service or support animal depending upon what acts or services it performs for its owner. Thus, HUD isn’t willing to create a “bright line” rule. It just can’t bring itself to close the door to exotics posing as assistance animals. And because of that bureaucratic hemming, hawing and indecision, the abuse of fair housing law relative to assistance animals will predictably continue.
In summary, FHEO 2020-01 is 19 pages of involved and detailed HUD guidance. Although it is far from light reading, if you are a member of a board of directors or if you have management responsibilities for community associations, you should at least be aware of its existence. This may admittedly sound like self-serving advice coming from a law firm, but if your condominium association receives an unusual reasonable accommodation request pertaining to an assistance animal, please contact us. We’ll work through it together. “Yes” may not always be the answer.
You don’t simply have to roll over and play dead anymore.