In another helpful development for the professional apartment management industry, last week the U.S. Department of Housing & Urban Development (HUD) issued a long-awaited guidance document concerning use of an animal as a reasonable accommodation under the Fair Housing Act (FHA). As your humble blog editor has written many times over the years – I try to call balls and strikes. Having more information from our regulators helps keep everyone on the same page. While the November 2019 letter from HUD Secretary Carson to the Federal Trade Commission (FTC) seeking a federal investigation into entities that sell what I refer to as “click and pay” medical verifications for emotional support animals (ESA’s) was helpful, this new guidance document provides more of HUD’s thoughts concerning the appropriate assistance animal rules of the road.
While the HUD guidance by its own terms does not have the force of law, here are some highlights:
* A “service animal” means a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.
* An “assistance animal” can be 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.
*If the individual is seeking to keep a “unique” type of animal that is not typically kept in a house, the requester has what HUD describes as a “substantial burden” of demonstrating a disability-related therapeutic need for the specific type of unique animal.
* HUD makes clear that some websites (what I call “click and pay” entities) sell certificates, registrations, and licensing documents to anyone who answers a quick questionnaire or participates in a short interview and who pays a fee. Under the FHA, housing providers may request “reliable documentation” confirming the need for the animal. HUD wrote 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 also notes that there are “legitimate, licensed health care professionals” who “deliver services remotely, including over the internet.”
*To that end, housing providers must seek information from a health care provider that confirms a person’s disability and need for the animal – in addition to the fact that the health care provider has personal knowledge of the individual seeking the assistance animal. HUD suggests a best practice is documentation which includes: (a) the patient’s name; (b) the nature of the professional relationship with the person seeking the accommodation; and (c) the type of animal for which the reasonable accommodation is sought. I think it would be extremely helpful to include the number of sessions (or perhaps the length of the provider/patient relationship) in an effort to help confirm the verification is legitimate.
One short takeaway: HUD suggests our industry should not reject – out of hand – each and every medical verification that comes from online care. Yes, we can reject the form letters from the “click and pay” internet sites, but we have an obligation to engage in the interactive process to determine if indeed legitimate health/medical care has been provided over the internet (not one short questionnaire or call) by a licensed provider.
I will include additional comments on the new HUD guidance next week. Just a Thought.