A Fair Housing Defense reader sent in a question about emotional support animal medical verifications that I want to address. Because our industry has seen such an increase in the number of service and/or emotional support animal reasonable accommodation requests, my reader wanted to know if one way to curb potential abuse of the medical verification process might be to require health care providers to have the verification notarized.

As a lawyer for the management company/apartment owner, I am all for coming up with any solution which could help ensure that service and emotional support animals are appropriately permitted for our residents with a legitimate disability while finding a way to reject reasonable accommodation requests that come from residents who are not disabled and who simply wish to avoid pet rent or pet fees. As I have written in this space before, many of my clients are now pushing back against medical verifications that are purchased over the internet with a credit card following no legitimate medical evaluation.

That being said, I have not seen any case or guidance which would permit management to mandate that medical verifications be notarized. The Fair Housing Act and health care privacy laws limit what management can collect from our residents. Now, you could certainly request the verification be notarized (and/or have space for a notary on your reasonable accommodation form). It is possible that some medical professionals would indeed have the form (or their letter) notarized. But if a resident objected to the requirement for a notarized signature (and management denied the request solely because the medical verification lacked a notary) and filed a complaint, while I would absolutely do my best to defend the complaint, I am not sure we could mandate the notary requirement under current law. An interesting idea. But I think a best practice is to continue to review and evaluate all medical verifications to do our best to ensure it was not obtained from a less than legitimate source.

Hope that helps. Just A Thought.

Earlier this week, the U.S. Department of Housing and Urban Development (HUD) issued a press release concerning a new case HUD charged in Oklahoma. Specifically, HUD alleged that the landlords of a rental property violated the Fair Housing Act (FHA) by rejecting the emotional support animal request submitted with a veteran with disabilities. As I have written many times, responding to reasonable accommodation requests from disabled residents is a critical part of apartment (or in this case, rental home) management. As far as I can tell, this is the first complaint brought by HUD since the new administration took over last month.

Here, it is claimed that a combat veteran with a mental disability, and who has an emotional support animal, submitted a request for a reasonable accommodation. As a part of the accommodation request, the resident also submitted a medical verification for the animal. The complaint asserts that the landlord refused to waive the otherwise due and payable $250 pet fee. Under applicable law, of course, service and/or emotional support animals are not pets and those fees are to be waived as a reasonable accommodation in order to permit the disabled resident to fully enjoy his or her home.

Now, always remember there are two sides to every story and I am making no judgment on the merits here. Also, I have not seen if the medical verification was likely legitimate (as contrasted to something simply purchased over the internet with a credit card). Nevertheless, recall that disability remains the most common basis of fair housing complaint filed with HUD (and its fair housing partner groups). Indeed, in 2016, HUD and its partners reviewed just under 5,000 disability-related complaints, or more than 58 percent of all fair housing complaints. Let’s work to ensure your community is not next.

So, does that mean you have a approve every reasonable accommodation or reasonable modification request? No. But it does mean that every request needs to be evaluated and responded to.

Just A Thought.

I had three clients in three states (one near the Pacific Ocean, one in the Midwest, and one in the middle Atlantic) all reach out to me with a variation of the same question concerning service and/or companion animals: what happens if the resident is not disabled but still seeks an emotional support animal? Does management have to approve that request?

The fact pattern typically comes up when a resident or an applicant submits a reasonable accommodation request. And that accommodation request is verified by someone who writes that John Resident or Ann Applicant “would benefit from” an emotional support animal. The verification does not state that John or Ann is “disabled” and there is nothing that would otherwise make management aware that John or Ann has a disability.

In such a circumstance, management does not have to approve the emotional support animal. The whole point of service or emotional support animals is to assist our disabled residents so they can obtain the full benefits of their housing. If you do not have a disability, you do not qualify for an emotional support animal.

To be sure, I am not writing that you cannot necessarily have an animal. Indeed, our industry is turning more pet friendly these days and many properties welcome pets. And yes, we welcome your pet rent and pet fees.

Now, when I see a verification such as I have described above, my response will typically note that while we cannot approve your request at this time based on the information provided, we will, of course, review any supplemental information a resident may wish to provide.

Although I continue to see an explosion of purported medical verifications come via the internet (in which someone pays $69.99 or even more if you want a rush), please know that there is absolutely no requirement in the law that Rover or Fluffy be on some national animal registry or receive a fancy certificate. Those websites are just money makers for the people who collect the credit card payments.

Bottom line: if you are legitimately disabled and need a service or emotional support animal, have your treating medical professional write a note confirming you are disabled and there is a need (or nexus) for your animal. That’s all. Many management companies have a form you can use. But if you are just trying to game the system and get a verification over the internet in an effort to avoid pet rent or pet fees, don’t be surprised if management pushes back. Make sense?

Just A Thought.

A couple of weeks ago, the U.S. Department of Justice (DOJ) filed a new Fair Housing Act (FHA) lawsuit against the owner, builder, and designer of a housing complex near Central Washington University in Ellensburg, Washington. In the complaint, the DOJ asserts that the apartment-style homes were constructed without complying with the FHA’s accessibility requirements. The lawsuit states that each of three buildings on the property have nine individually keyed units with their own bathroom and desk as well as a shared living space, a communal kitchen, and two communal laundry rooms.

The specific barriers claimed by the DOJ include: inaccessible building entrances on an inaccessible exterior route, inaccessible knob hardware throughout (including on the building entrances and unit entrances), inaccessible electrical outlets, inaccessible laundry facilities, inaccessible bathrooms, and inaccessible walk-in closet entrances.

As always, I am mindful there are two sides to every case. DOJ made the claims following a complaint filed by a local fair housing group in Washington state after an administrative complaint was brought before the U.S. Department of Housing & Urban Development. Two takeaways here: (a) DOJ will attempt to hold everyone involved in a project accountable if perceived FHA violation exists; and (b) the law contains a number of safe harbors and guidance to help owners, designers, and builders ensure new constructions meets the accessibility criteria.  Make sure your builder/designer/owner is familiar with ensuring a building is considered accessible or find someone who is before your project gets started.  Or you might really need to speak with a lawyer like me.

Just A Thought.

In addition to renting units, many apartment owners/managers rent space for commercial enterprises (such as restaurants and stores) in their properties. Which can make good sense for both – providing a needed service or store with a ready-made group of people living extremely close by. All good, right?

But, remember that when you lease space to a commercial vendor and that tenant modifies the space for a restaurant and/or shop – make sure that the renovated site conforms with the accessibility guidelines in the Americans With Disabilities Act (ADA). While a landlord and a commercial tenant are certainly free to apportion costs as they see fit (including an indemnification clause) – if a disabled individual sues, both the landlord and commercial tenant will be named as defendants and the plaintiff will seek what is known as joint and several liability against them.  An otherwise responsible party will most likely not be able to avoid liability to a plaintiff by simply pointing out that the other party (landlord or tenant) agreed to ensure the space met the accessibility guidelines.  Yes, there will be a cross claim, but that will not get you out of the lawsuit.  The reason for this policy is that it is presumed to be unfair to the disabled individual not to be able to sue a party who should otherwise be responsible for the failure to comply with the ADA.

What this means for property owners/managers is that if we rent space (and even if the cost of the renovation is agreed to be picked up by the tenant), we are still potentially responsible to ensure that the accessibility requirements are complied with. Another reason you might want to speak with a lawyer like me if you start down the path of renting commercial space in your property.

Just A Thought.

Continuing its efforts to enforce the Fair Housing Act (“FHA”), last week the U.S. Department of Justice (“DOJ”) announced that the owners and managers of four apartment communities in Utah agreed to pay $45,000 to settle a lawsuit asserting that they discriminated against residents and applicants with disabilities.

The complaint alleged that the defendants failed to provide reasonable accommodations to certain residents with disabilities with respect to their service and/or emotional support animals. The specific claim was that the owners/managers mandated that residents with disabilities who wanted to keep service or companion animals were required to obtain medical verifications which suggested that the health care provider might be held responsible for any property damage or physical injury that the assistance animal might cause pursuant to what the DOJ described as a “prescription form.” The DOJ further asserted that residents without disabilities who kept animals as pets were not required to have a third party assume liability for their animals.

Pursuant to the terms of a consent order, which still must be approved by a federal judge, the defendants are required to pay $20,000 to a former resident and her seven year old son with autism as well as establish a $25,000 settlement fund to compensate any additional individuals who were harmed by the alleged conduct.

While I was not involved in the case and I am mindful there are two sides to every story, this case reminds property management not to charge any additional fees (such as pet rent or pet deposits) or place additional conditions (such as requiring damage reimbursements not required of pet owners) on service/companion animals who live with your disabled residents as a reasonable accommodation. Should you have questions about what your leasing office team members can (and cannot) ask about service/companion animals, you might want to speak with a lawyer like me.

Just A Thought.

Three clients have recently sent me multiple emotional support animal medical verifications for review. After a few minutes of research, it seemed pretty clear that the medical verifications came from individuals who “sell” emotional support animal verifications or service animal registrations with just a few clicks of a computer mouse (and a credit card).  Coincidently, two of the verifications (from different properties) came from the same on-line vendor.

As I have previously written in this space, leasing office staff members will review (and likely approve) any emotional support animal request which we believe to be legitimate.

The problem is, unfortunately, that the internet is full of these animal medical verifications for sale. I tread very lightly when seeking supplemental emotional support animal verification information.  Let me make clear that my clients and I are not attempting to cast doubt on any disability.  I simply want legitimate confirmation that the resident has a disability, a need for the accommodation, and that there is a nexus (link) between the disability and the accommodation.  Again, I am absolutely not seeking prohibited medical information or medical records.

Here is the question:  is reaching out to someone over the internet and obtaining a verification (for the low, low price of $69.99 or $125 if you need your letter in a rush) legitimate?  In many cases, I think not.  Were medical records reviewed?  Was the patient even interviewed?  Or did the applicant simply fill out an on-line form (and give his or her credit card).

Proceeding down this path has certainly led to some angry letters from residents, accusing us of violating the law. As a lawyer for various management companies, we receive service and companion animal requests each and every week.  We remain concerned when anyone can just turn on a computer, make a self-diagnosis, pay a fee, and then get an animal verified when there does not appear to have been any type of real medical or health care evaluation.  Let’s be honest:  some people just want to avoid paying a pet fee or pet rent.  And they get Rover verified and/or Fluffy certified over the internet.  Simple as that.

We are going to do our best to curtail abuse of the medical verification process as questionable verifications do a disservice to those disabled Americans who use service and/or companion animals every day. There will be more to come here.  I will report back.

Just A Thought.

As discussed regularly in this space (and elsewhere), the number of reasonable accommodation and/or reasonable modification requests continues to significantly increase each and every year. As a part of this increase, however, is an increase in the number of requests which, shall we say, appear a bit dubious.  Make no mistake, professional apartment management and leasing offices have no interest in the personal medical history of our residents and applicants.  We welcome disabled residents (and applicants) to our communities and we will engage in the interactive process with you to meet legitimate needs.  We do, however, need to ensure the Fair Housing Act (and similar state, city, and county laws) are followed and applied as evenly as possible across the board.

Two reasonable accommodation requests came across my desk this week. One from California and one from Minnesota.  One was for an emotional support animal (the request was to waive pet rent and pet fees).  The second was a request for an early lease termination (the request was to waive the early termination fees otherwise in the apartment lease).  Both were verified by a physician.  All good, right?  Why did these requests end up on my desk?

Well, upon review of the medical verifications – neither stated that the resident was disabled. The letters provided that the resident would “benefit” from an animal or a different home.  That verification, standing alone, is not sufficient as the whole point of the reasonable accommodation and reasonable modification process is to ensure our residents who are “disabled” (as the word is defined under federal law) enjoy the full benefits of their housing.  Neither resident has a disability that is otherwise obvious.  In such a circumstance, while management could just accept the verification, we are absolutely within our rights to seek supplemental confirmation that the resident is actually disabled.

If a request is legitimate, I suspect each leasing office will get a second verification confirming a disability. Which would be great and we can then approve it.  However, it is also possible that we do not hear from either resident on  these points again.  Who loses here?  Those Americans with legitimate disabilities as now more people are going to question if their housing-related needs are real.

Just A Thought.

Here is a fact pattern that is just all too common in our fair housing management world. A resident, for example, stops paying his rent.  As we do with all residents who fail to pay the agreed upon rent, the leasing office sends the appropriate notice and then starts an eviction action pursuant to local law if the rent remains unpaid.  Shortly before the case is set to go to court, the leasing office receives a reasonable accommodation/reasonable modification request from the resident or even a formal fair housing complaint filed with HUD, a state, city, or a county agency.  In the reasonable accommodation or reasonable modification request, the resident (for the first time) claims he has a disability and needs management to do something for him.

Is it possible the request is legitimate? Well, sure.  Is it more likely the resident is attempting to use the law to delay and prevent an eviction?  Yes.  And the fair housing laws are clear that management must not retaliate against a resident because he filed a discrimination complaint.  Many times I will get a call from an investigator asking if I will delay the eviction action because of the pending fair housing complaint.  That is always a difficult discussion, but one I have had any number of times.  And if your resident submitted a reasonable accommodation or reasonable modification request even after failing to pay his rent?  We must review, evaluate, and respond to it in the ordinary course.

The takeaway for management? We must continue to engage in the interactive process with our residents – even if there is a pending eviction action and/or a pending housing discrimination complaint.  A resident is a resident and our obligations remain.

Just A Thought.

 

I took a call from a lawyer for a resident yesterday. The lawyer was upset because the resident had made a reasonable accommodation request for an emotional support animal that the leasing office team had denied.  While the lawyer did not do work in the fair housing area, she had gone on-line and had done general research concerning the Fair Housing Act and specifically the portion of the law which provides for assistance to those who need service or emotional support animals.  The call did not start well.

It was clear early on that she had just missed a critical component for all service and/or companion animals: the animal’s owner must have a disability.  Indeed, the whole point behind service and companion animals is to assist those Americans with a recognized disability.  To phrase it simply:  if a resident is not disabled, he or she is not entitled to a service or companion animal.

Now, remember, many apartment communities are pet friendly and welcome animals. Yes, you may need to pay a pet fee and/or pet rent.  And yes, some communities have pet size or breed restrictions.  But if you want Rover or Fluffy to live with you, it can most likely happen.

Again, the point of a service or emotional support animal is to assist someone with a disability. As a management company, I don’t want (and am not entitled to) confidential health care information of our residents.  If the disability is not obvious (such as an applicant in a wheelchair or a resident who is blind), all I want is a medical verification confirming: (1) the disability; and (2) a nexus (need) for the requested accommodation.

How did my call end with the lawyer for the resident yesterday? Once I explained the rationale and the applicable portion of the law, she understood completely.  I do expect an amended medical verification form which my leasing office will appropriately review and respond to.  If indeed the resident is disabled and there is a need for an emotional support animal, I suspect it will be approved.

But if you are not disabled, please don’t ask for a service or emotional support animal.

Just A Thought.