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.

In this era of an ever-increasing number of service and/or emotional support animal requests received by professional apartment leasing offices, three of my clients have faced the same issue recently. Here is a common fact pattern: our resident submits a request for an emotional support animal. That request has a medical verification letter or certificate attesting that Rover or Fluffy is “certified” as an assistance animal. Upon review, however, it seems pretty clear that the medical verification was simply purchased over the internet and did not involve any analysis concerning the disability of the resident nor any nexus (link) between the disability and the animal. Management sends a letter noting carefully that while we will absolutely continue to engage with the resident concerning the accommodation request, based on the materials submitted, we cannot approve the animal. What happens next is typically one of three paths: (a) the resident recognizes he/she does not actually need a service animal and drops the request; (b) the resident goes to a health care professional and gets the appropriate diagnosis and letter; or (c) the resident gets angry (sometimes getting a lawyer involved) and declares the leasing office is violating HIPPA (the health care information privacy law) by seeking detailed medical records. And then I get called.

So there is no misunderstanding on this point, management does not seek medical records for our disabled residents. We are not attempting to obtain confidential health care information. We are, however, attempting to just confirm that the resident is actually disabled, that the request is necessary, and related to the disability. Buying a purported verification letter off a web site from a company or individual who promises to “certify” the animal does not meet the test.  Coincidently, as I was writing this post, another client sent me records that a therapist sent to the leasing office about a resident along with the verification form. We had not, of course, requested the records. They will be returned.

Again, we do not want medical records. I don’t want my clients to violate HIPPA.  But I do want residents to appropriately certify their service or emotional support animal requests when their disability is not obvious.

Just A Thought.

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.