As apartment management company employees review and evaluate reasonable accommodation and reasonable modification requests, there are many times in which the leasing office believes it needs supplemental information in order to confirm that a resident’s request is indeed reasonable and comports with the law. In seeking additional information (such as in a circumstance in which a resident has provided a medical verification for an emotional support animal which appears to have been purchased over the internet), however, there are a number of questions management cannot ask. Remember, we are not seeking detailed medical records or confidential health care information.  Indeed, I was involved in one situation in which a treating physician’s office sent over patient medical records.  I had the records sent back with a short note.

Examples of questions that should not be asked (and this list is not exhaustive) include:

*You don’t look like you need an assistance animal. Why do you have one?

*Why do you receive social security disability benefits?

*What medication do you take to treat your disability?

*Can you walk up and down the stairs on your own?  What health care records do you have to back that up?

When we receive a request, the leasing office simply seeks legitimate information which confirms a disability (if the disability is not apparent) and provides a nexus (legalese for a link) between the disability and the requested accommodation or modification. Also, remember that while we will work to approve service and emotional support animal requests, an assistance animal can be excluded from an apartment community when that animal’s behavior constitutes a “direct threat” to other residents, the property, or to leasing office employees and the resident takes no effective action to control the animal’s behavior such that the direct threat is eliminated or at least mitigated.

Just A Thought.

 

Although it comes up most frequently when I review emotional support animal reasonable accommodation requests under the Fair Housing Act (FHA), the issue of just who is “disabled” is one for all of us in the professional apartment management field to understand. Under the law, a person is considered as “disabled” when there is a physical or mental impairment which substantially limits one of more major life activities, there exists a record of such an impairment, or if the person is regarded as having such an impairment. A major life activity is typically thought of as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and/or working. This is, of course, not an exclusive list and management must be prepared to evaluate each request based on the needs of any resident who reaches out.

Not all conditions rise to the level of a disability. For example, just because someone is diagnosed with anxiety – it does not necessarily follow that the person is disabled. It is absolutely true that some forms of anxiety are disabling such that the person is considered disabled under the law. Just not that every case of anxiety (or another condition) rises to the level where a reasonable accommodation or reasonable modification request is appropriate. Now, before anyone fires off an angry email, read this paragraph again. In short, there are many conditions (such as chronic mental illness, hearing loss, mobility impairments, visual needs, cancer, HIV, past drug use) which can be a covered disability and that my clients and I will engage in the interactive process with you to resolve. My point is simply that not every condition (particularly a condition that is not obvious or known to the leasing office) rises to the level of a legitimate disability. That is why, of course, management seeks medical verifications for certain accommodation or modification requests.

Also, there are two groups of people who are excluded from coverage under the FHA: (1) current illegal drug users and (2) anyone who poses a direct threat to the health and safety of others or to the property itself. If someone is perceived as a direct threat, management will need evidence as to the nature of the threat and instances of specific conduct. Raw speculation will not suffice. Also, it is a good practice to undertake a review to determine if there is an accommodation that would mitigate the direct threat before moving forward against a resident.

Just A Thought.

 

First, let me go off topic for a minute to wish everyone a happy and healthy Thanksgiving holiday. As I do once a year, I want to give a special shout out to my wife (Hi Sweetie!) to see if she actually reads these posts.

Assistance animal questions continue to dominate reader comments here at the Fair Housing Defense blog. As such, let me highlight a handful of points that regularly come up:

  1. Breed, size, and weight limitations may not be applied to an assistance animal (as they can be for pets).
  2. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.
  3. Housing providers may ask individuals with disabilities that are not readily apparent to submit reliable documentation of the disability and the disability-related need for an assistance animal.
  4. Additionally, if a disability is not readily apparent, the leasing office may confirm that the need for the assistance animal continues. I do not suggest management check every three months, but around the time of an annual lease renewal could make sense.
  5. While the typical request is for one assistance animal, the law recognizes there may be circumstances in which an individual requires more than one animal. In such a circumstance, the nexus for each animal can be verified.
  6. Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals. For example, while housing providers may require applicants or residents to pay a pet deposit and pet rent, they may not require applicants or residents to pay a deposit for an assistance animal.
  7. Animal owners must, however, ensure their animals stay under control at all times and clean up after the animals.

Hope that helps.  Enjoy time with family and friends this long weekend.

Just A Thought.

 

A Fair Housing Defense blog reader sent me a question about live-in aides which I thought I would answer with some general guidance in a post.

First, in order to have a live-in aide, a resident would need to meet the definition of “disabled” (or handicapped) in the Fair Housing Act (FHA). Unless the need for the aide is obvious, management may obtain a medical verification confirming the need for the aide. The live in aide is considered a reasonable accommodation under the FHA.

A live in aide qualifies for residency for as long as the disabled resident requires the services of the aide and remains a resident.   In other words, if the resident leaves the community, the live in aide does not automatically convert to a resident with rights to the apartment home. I typically recommend that a lease addendum be used to confirm that the aide acknowledges he or she has no rights to the unit without the resident he or she is assisting. The addendum should also give management the right to evict the live in aide if he or she violates any house rule (as is the case with every resident).

Next, I always recommend that a live in aide be required to meet your property’s screening criteria – other than credit (as the aide is not responsible for rent).  In my view, the aide should be screened based on the same criminal screening procedures that management has for reviewing applicants. Also, while a live in aide is counted for the purpose of determining the appropriate unit size (such that the aide can be entitled to their own bedroom), if a unit with a separate bedroom for the aide is not available, as a general rule, the resident should not be denied his or her aide, even in a smaller apartment. If a larger unit becomes available and the resident requests a transfer to the larger apartment, management should consider such a request as a reasonable accommodation. As a part of evaluating the request, however, management is entitled to charge what is likely to be higher rent for a bigger apartment home.

Hope that helps.

Just A Thought.

 

I have written in this space (and elsewhere) about the difficulties encountered by professional apartment management companies in the face of emotional support animal medical verifications from residents that are purchased over the internet for the low, low price of $69.99 (or $125 if you need the letter overnight). In an effort to meet the test in the Fair Housing Act (FHA), these form letters note a “disability” or “impairment” which “substantially limits a major life activity” and recommend an emotional support animal. Management is given no other confirmation the resident ever met with the health care professional or is actually a patient with legitimate mental health needs.

In an important decision concerning medical verifications and emotional support animals, a U.S. District Court judge last week issued an opinion confirming that letters which only provide that a resident has a “mental illness” or has “certain limitations” are insufficient.  The judge was unmoved by such rote language and noted that the resident presented “no medical facts to support her claim she was disabled.” The court also noted the resident identified “no activity, no less a ‘major life activity’ that she claims was impaired by her ‘mental illness’”. The judge then concluded “the diagnosis may be accurate, but it fails to set forth any facts regarding if or how any of [the resident’s] conditions ‘substantially limits’ a major life activity.”

I have a number of clients who are now appropriately raising questions when these internet assistance animal letters are provided as a purported medical verification.  Now, let me make clear – all of my clients will approve legitimate service and emotional support animals for our residents. We absolutely want to comply with the law. But we are seeing an ever-increasing number of residents and applicants turning on their computers and with just a few quick clicks (and a credit card) are buying letters from someone they have never met or otherwise never had any type of real health care professional relationship.

What did the court do? It dismissed with prejudice a complaint alleging management violated the FHA by seeking supplemental information to confirm that an emotional support animal reasonable accommodation request was legitimate.

How did I learn about the case? My Fair Housing Defense group wrote the briefs.

Just A Thought.

 

Last month, the U.S. Department of Justice (DOJ) resolved a Fair Housing Act (FHA) case against a New York based property management company in which the government asserted the defendants discriminated against a prospective home purchaser on the basis of his disability and by refusing to provide reasonable accommodations as required by law.

As contained in a January 2017 complaint, the management company for the housing cooperative rejected the application of an individual seeking to purchase a one bedroom unit because of his various disabilities. Specifically, it was alleged that the individual had suffered numerous heart attacks, had developmental language and learning disorders, as well as suffered from depression. The applicant (and his family) sought to have formal ownership of the unit be placed in a legal trust, which would help the applicant manage the requirements of cooperative housing. According to the DOJ, the management agent rejected efforts to purchase the unit in such a trust and in so doing, engaged in a pattern and practice of discrimination as the company also manages other properties. Because of the asserted unlawful conduct, the applicant was forced to stay in a boarding house with abysmal living conditions, grew increasingly depressed, and suffered another heart attack.

Pursuant to the terms of a settlement agreement, the defendants will: (a) pay a total of $125,000 (which includes damages and attorney’s fees) to the applicant and civil money penalties to the United States; (b) adopt reasonable accommodation policies and forms to be approved by the DOJ; and (c) take annual FHA training which will include reviewing reasonable accommodation requests.

The takeaway here for professional apartment management? Reasonable accommodation requests can come in all shapes and sizes. It is our responsibility to review and evaluate each of them.  Simply rejecting them outright might mean you will really need to speak with a lawyer like me.

Just a Thought.

 

 

The issue of online medical verifications for emotional support animals (ESA’s) is an ongoing problem for professional apartment management. As written in this space before, we want to approve all legitimate reasonable accommodation requests for our residents who need assistance animals. The key, of course, is “legitimate” – and that is the issue. I now have a number of different clients all working to review and evaluate ESA requests to determine, as best they can, if the medical verifications are legitimate. A quick internet search will reveal this is a lucrative industry and just about anyone can get an ESA letter by answering a few quick questions and using your credit card. Indeed, when investigative reporters look into online ESA’s, they routinely get verifications for goats and ducks as soon as they use a credit card. And when management pushes back in an effort to determine if the ESA verification is legitimate, we get back a form letter in return asserting retaliation under the Fair Housing Act.  We are not retaliating.  We just want the verification to be legitimate.

While I am unaware of the federal government acting to stop this abuse, the state legislatures in Colorado and Florida have now criminalized fraudulent claims of disability. These new state laws are certainly an important first step, but they are going to be hard to enforce. Now, I am aware of a Department of Housing & Urban Development settlement agreement in which it is made clear that for mental health and/or mental disabilities, the medical verification standard should be set higher and that verification is to be signed by a “medical provider, health or social service professional.”

These are but initial efforts at controlling a problem which is continuing to trouble apartment management. Again, fraudulent reasonable accommodation requests (and fraudulent medical verifications) do a disservice to those Americans (including our veterans) who are truly disabled and who rely on animals. Look, if you have a pet – just pay the pet fee. Most apartment communities are animal friendly these days and will welcome Rover or Fluffy.

Just A Thought.

 

As written in this space (and elsewhere) all too frequently, professional apartment owners and managers have seen a significant surge in the number of reasonable accommodation requests by residents with animals. Some of these requests are legitimate and we are happy to approve them. An increasing percentage of these requests, however, appear to be questionable at best and reflect an effort to avoid otherwise legitimate pet rent/fees. As a part of the review and evaluation process, here are some definitions that, I hope, will help leasing offices as we engage in the interactive process with our residents/applicants:

A ”service animal” is defined under the Americans with Disabilities Act (ADA) as a dog that is specifically trained to performs tasks for its owner with a disability. Think of a dog that assists someone with a vision disability cross the street. For the most part, the ADA does not apply to residential apartment communities. The exception is that the ADA does apply to the leasing office for the property.

An “assistance animal” is defined under the Fair Housing Act (FHA) and Section 504 of the Rehabilitation Act of 1973 as an animal that works, provides assistance or emotional support that alleviates one of more symptoms of a person’s disability. An “assistance animal” does not require any training. Think of a dog that soothes or comforts an individual with Post Traumatic Stress Disorder. Also, while dogs are the most common assistance animal, the law recognizes that many other types of animals can qualify – such as cats, ponies, ferrets, and/or even snakes. This list is not exhaustive and I am not making this up.

An ”emotional support animal” is a subset of assistance animals. These animals also provide emotional support to individuals with disabilities. Emotional support animals provide companionship, relieve loneliness, as well as can help with depression and anxiety. Unlike a “service animal,” an “emotional support animal” does not require any special training.

A “companion animal” is another way to describe an “emotional support animal.” The terms “companion animals” and “emotional support animals” are used interchangeably.

Accordingly, if you see what purports to be a medical verification for a “service animal” to help with anxiety or depression (or a letter that references the ADA for a companion animal), you might want to take a closer look to determine if indeed the verification is legitimate.

Also, remember that if an animal is approved as either a service animal or as an emotional support animal, that animal is permitted to accompany the resident anywhere within the community (except, for example, in the swimming pool or in the hot tub).

Just A Thought.

 

A couple of interesting emotional support animal medical verification questions have hit my desk over the past month. First, recall that case law on the issue of permissible credentials of a medical or health care professional is a bit unclear. Individuals who are licensed by a public regulatory authority (such as a state) to provide medical care, therapy or counseling to persons with disabilities certainly qualify. This includes, of course, medical doctors, physician assistants, psychiatrists, psychologists, and many social workers. Guidance from the Department of Justice (DOJ) and the Department of Housing & Urban Development (HUD) notes that a peer support group or even a non-medical service agency may also provide verifications in appropriate circumstances. As has been written in this space, however, many professional apartment management companies are pushing back against medical verifications that appear to have been simply purchased over the internet without any legitimate medical evaluation or analysis. Those are easier.

But what happens when, for example, a licensed chiropractor from California purports to verify an emotional support animal with a diagnosis of depression for an applicant who lives in Florida? Or when one counselor writes the exact same letter for 12 residents at the same property? Sorry to say there is no cookie cutter response. We do an individualized evaluation of the letters to make a determine (as best we can) if the medical verifications are legitimate within the bounds of what the law permits management to ask. Many times the letters have other defects which permits us to seek further clarification to determine if the verifications are legitimate.

The bottom line is that unless and until DOJ/HUD or the courts give us more guidance, management will continue to review, evaluate, and respond as best we can. That being written, it seems to me to make sense to require that someone have a credential for an area related to that for which he/she purports to give the certification.  And that an individual professionally trained in a health care field actually evaluate the resident to confirm a legitimate disability and need for an emotional support animal.

Just A Thought.

A legitimate question from leasing office professionals I get from time to time is: “We approved an emotional support animal for a resident two years ago. Does that approval continue indefinitely or can we seek a supplemental medical verification from time to time?” My answer is that there are any number of disabilities for which we grant a reasonable accommodation but for which medicine, treatment, surgery, or even the passage of time can have cured or helped cure such that the condition no longer qualifies as a disability. To that end, it appears reasonable for management to seek a supplemental medical verification for a disability that is not obvious. Do I think you should do this every three months? Certainly not. But there is a legitimate argument to seek a supplement every couple of years or perhaps even at lease renewal time. The point is not to improperly pry into any resident’s medical history, but as we are in an era of, shall we say, questionable medical verifications for certain emotional support animals (yes, I am talking about those simply purchased over the internet with a few computer clicks and a credit card without any legitimate medical evaluation or diagnosis), doing our best to comply with applicable law only makes sense. In addressing this specific issue, one federal judge wrote “[n]o provision in the [Fair Housing Act] purports to make a granted accommodation eternal.”

Might you get some pushback? Yes, but hopefully not from your residents with legitimate disabilities. Indeed, I suspect individuals with real disabilities are disheartened by those attempting to game the system as it does a disservice to those who actually need emotional support animals.

That being said, of course, there are certain obvious disabilities for which management most likely would never need a supplemental verification. Such as if a resident is blind or if a resident uses a wheelchair.

This is a challenging area and one for which management should continually attempt to get it right.

Just A Thought.