Federal Best Practices and Illinois Legislation on Reasonable Accommodations of Service and Support Animals
Political divisions pale in comparison to the positions people hold on whether animals or pets should be permitted in multiunit housing or leased properties. Notwithstanding your position on this subject, there are some circumstances where the law intervenes and determines the question for us, namely, where the animal must be permitted as a reasonable accommodation under the Fair Housing Act (FHA), Pub.L. No. 90-284, Title VIII, 82 Stat. 81 (1968), Americans with Disabilities Act of 1990 (ADA), Pub.L. No. 101-336, 104 Stat. 327, Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101, et seq., or similar laws.
On January 28, 2020, the U.S. Department of Housing and Urban Development issued a 19-page “notice” describing best practices for “housing providers” who are asked to allow persons with disabilities to keep as reasonable accommodations. HUD, FHEO-2020-01, Assistance Animal Notice (Jan. 28, 2020). This notice replaces HUD’s prior guidance under FHEO-2013-01.
In particular, this guidance provides a set of best practices regarding the type and amount of documentation a housing provider may ask an individual with a disability to provide in support of an accommodation request for a support animal, including documentation of a disability (that is, physical or mental impairments that substantially limit at least one major life activity) or a disability-related need for a support animal when the disability or disability-related need for the animal is non-obvious and not known to the housing provider. FHEO-2020-01 at 1.
As reflected in this quote, the guidance is filled with defined terms used in fair housing and civil rights litigation. This article will summarize the substance of the notice and should not be used as a substitute for reading the entire notice. We note that HUD repeatedly recognizes that it is describing best practices not minimal requirements. Nevertheless, given the number of human rights and similar complaints and charges made against associations, condominiums, and HOAs, practitioners should follow these practices rather than treating them as aspirational.
As a general principle, the FHA prohibits a person from refusing “to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford . . . person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.” 42 U.S.C. §3604(f)(3)(B). A “dwelling” is “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.” 42 U.S.C. §3602(b). HUD regulations pertaining to reasonable accommodations can be found at 24 C.F.R. §100.204.
Assessing Requests for Animals as Reasonable Accommodations
The notice is composed of two parts. The first part is entitled “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act.” FHEO-2020-01, 3. The term “housing provider” is used by HUD to refers to persons or entities engaged in conduct covered by the FHA.
Courts have applied the FHA to individuals, corporations, partnerships, associations, property owners, housing managers, homeowners and condominium associations, cooperatives, lenders, insurers, real estate agents, brokerage services, state and local governments, colleges and universities, as well as others involved in the provision of housing, residential lending, and other real estate-related services. FHEO-2020-01 at 3 n.3.
Although the notice is expressly for considering requests under the FHA, in reading the notice you will quickly realize that HUD is also describing practices articulated by the DOJ regarding the ADA.
A housing provider may exclude or charge a fee or deposit for pets, but not for service or other assistance animals. FHEO-2020-01 at 3. Assistance animals are not pets. There are two classes of assistance animals: (1) “service animals” and (2) other animals, referred to as “support animals” in the guidance, that do work, perform tasks, provide assistance, or provide therapeutic emotional support for individuals with disabilities. Id.
Service Animals Under the ADA
The term “services animals” is derived from the ADA, which is codified at 42 U.S.C. §§12101 – 12213 and 47 U.S.C. §§225 and 611. Federal regulations pertaining to the ADA are generally found at 28 C.F.R. pts. 35 (state and local government) and 36 (public accommodations and commercial facilities).
Under the ADA, a service animal is a dog individually trained to do work or perform tasks for the benefit of an individual with a disability, which includes physical, sensory, psychiatric, intellectual, or other mental disabilities. If the animal is not a dog, it is not a service animal. FHEO-2020-01 at 6.
Housing providers can ask the following questions to determine if they are being asked to reasonably accommodate a service animal.
(1) “Is the animal a dog?” If yes, see next question. If no, then move on to questions (4) through (8) below for assistance animals.
(2) “Is it readily apparent that the dog is trained to do work or perform tasks for the benefit of an individual with a disability?” If yes, no further questions are necessary or appropriate because the dog is a service animal. If no, see next question.
(3) The housing provider should limit his or her inquiries to the following two questions:
(a) “Is the dog required because of a disability?”
(b) “What work or task has the dog been trained to perform?”
(i) Do not ask about the nature or extent of the person’s disability.
(ii) Do not ask for documentation.
(iii) With regard to leases and similar housing agreements, the housing provider may make truth and accuracy of information provided, including responses to these questions, a part of the tenant’s representations.
(iv) If the answer to (3)(a) is yes and work or tasks are identified in the response to (3)(b), grant the accommodation, if otherwise reasonable, because the dog is a service animal.
(v) If the answer to (3)(a) is no and (3)(b) none, the dog is not a service animal. Move on to the questions below for assistance animals. FHEO-2020-01 at 6 – 7.
Regarding question (2), it is “readily apparent” when the dog is observed guiding a person who is blind or has low vision, pulling a wheelchair, or providing stability or balance to a person with an observable mobility disability. FHEO-2020-01 at 6.
Regarding question (3)(b), performing work or tasks means that the dog is trained to take a specific action when needed. If the dog is trained to take at least one action helpful to the person with a disability other than emotional support, then the dog is a service animal, and the housing provider should not make further inquiries. If no specific work or task is identified, the dog should not be considered a service animal but may be an assistance animal. Emotional support, comfort, well-being, and companionship are not a specific work or task for purposes of the ADA. FHEO-2020-01 at 7.
Support Animals Under the FHA
Initially, we should review some general considerations about requests for reasonable accommodations regarding assistance animals under the FHA. No magic words are required. A request need not be in writing. The request may be made by someone other than the disabled person, such as a person legally residing with the disabled person or a guardian or authorized representative. A resident may make a reasonable accommodation request either before or after acquiring the animal. An accommodation request can even be made after a landlord seeks to terminate a lease because of the animal’s presence. (The guidance notes that such timing may create an inference against good faith.) FHEO-2020-01 at 7 – 8.
As a best practice, housing providers may use the following questions when the animal involved does not qualify as a service animal described above.
(4) “Has the individual requested a reasonable accommodation, i.e., asked to get or keep an animal in connection with a physical or mental impairment or disability?” If yes, proceed to next question. If no, the housing provider is not required to grant a reasonable accommodation. FHEO-2020-01 at 8.
(5) “Does the person have an observable disability or does the housing provider (or the provider’s agent) already have information giving them reason to believe that the person has a disability?” If yes, proceed to question (7) if there is a connection between the animal and the disability. If no, continue to question (6). FHEO-2020-01 at 9.
(6) “Has the person requesting the accommodation provided information that reasonably supports that the person seeking the accommodation has a disability?” If yes, proceed to question (7). If no, the housing provider is not required to grant the accommodation but should ensure that the requester has been given a reasonable opportunity to do so. This notice also suggests referring the requester to the second portion of the notice (discussed below) on documenting an individual’s need for assistance animals in housing (beginning on page 16 of the notice). FHEO-2020-01 at 9 – 10.
(7) “Has the person requesting the accommodation provided information which reasonably supports that the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support with respect to the individual’s disability?” If yes, proceed to question (8). If no, the housing provider is not required to grant the accommodation subject to the same cautions in question (6) above. FHEO-2020-01 at 11.
(8) “Is the animal commonly kept in households?” If yes, the accommodation should be provided under the FHA unless a general exception in the Act applies. If no, an accommodation need not be provided. Common household animals include a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small domesticated animal traditionally kept for pleasure rather than commercial purposes. Animals which are specifically identified in the notice as not common household animals are reptiles (other than turtles), barnyard animals, monkeys, and kangaroos. If the animal is unique, the requester has a substantial burden of demonstrating a disability-related therapeutic need for the animal. FHEO-2020-01 at 12.
Regarding question (5), observable impairments tend to be obvious and would not be reasonably attributable to nonmedical causes by a lay person. These include, blindness or low vision, deafness or being hard of hearing, mobility limitations, intellectual impairments such as autism, neurological impairments such as stroke, Parkinson’s disease, cerebral palsy, epilepsy or brain injury, and mental illness. Those impairments that are not observable usually arise regarding requests for emotional support animals. In such cases, the housing provider is not entitled to know the requester’s diagnosis but may request information regarding the disability and the disability-related need for the animal. FHEO-2020-01 at 9.
Regarding question (6), if a requester provides information that he or she has been determined disabled by a federal, state, or local agency or receives housing assistance because of a disability, that information can be considered. However, the denial of disability benefits does not mean that the requester is not disabled. A requester may provide information from a healthcare professional including, physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse. FHEO-2020-01 at 10.
Additionally, regarding question (6), the following impairments have been recognized by DOJ regulations for the ADA as imposing a substantial limitation on a major life activity resulting in a determination of disability: deafness; blindness; intellectual disabilities; missing limbs or portions of limbs or mobility impairments; autism; cancer; cerebral palsy; diabetes; epilepsy; muscular dystrophy; multiple sclerosis; HIV infection; major depressive disorder; bipolar disorder; PTSD; traumatic brain injury; OCD; and schizophrenia. Id. Addiction caused by current illegal use of a controlled substance is not a disability. FHEO-2020-01 at 17.
Regarding documentation from the internet, the notice is ambivalent compared to the Illinois Act that we will discuss below. The notice observes that there are various sites selling certificates, registrations, and licensing documents of assistance animals. In HUD’s experience internet documentation is in itself not sufficient to establish that an individual has a nonobservable disability or disability related need for an assistance animal. But the notice also cautions that some legitimate licensed healthcare providers deliver services remotely. FHEO-2020-01 at 11.
Documenting an Individual’s Need
The second portion of the notice is entitled “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing.” FHEO-2020-01 at 16 – 19. This section summarizes information a housing provider may need to know from a healthcare professional about a requester’s need for an assistance animal. The notice reminds us that it does not have the full force and effect of law and is not binding. It is a statement of HUD’s view of best practices.
First, there are certain “don’ts.” “Housing providers may not require a health care professional to use a specific form (including this document), to provide notarized statements, to make statements under penalty of perjury, or to provide an individual’s diagnosis or other detailed information about a person’s physical or mental impairments.” FHEO-2020-01 at 16.
Second, the “dos”. Healthcare professionals should use personal knowledge of the patient, i.e., knowledge used to diagnose, advise, counsel, treat, or provide healthcare to the disability-related services to the patient. However, the healthcare professional owes duties of confidentiality to the patient. Thus, it is suggested that the professional include the following general information: (1) the patient’s name; (2) whether there is a professional relationship with the patient to provide healthcare or disability-related services; and (3) the type of animal for which a reasonable accommodation is sought. FHEO-2020-01 at 16 – 17.
Third, to establish the existence of a disability, requesters seeking an accommodation are advised to ask their healthcare professionals to provide the following information: (1) whether the patient has a physical or mental impairment; (2) whether the impairment substantially limits as least one major life activity or major bodily function; and (3) whether the patient needs the animal because it does work, provides assistance, or performs a task that benefits the patient or because it provide therapeutic emotional support to alleviate a symptom or effect of the disability — and not as a pet. There are also additional suggestions of information to request if the animal involved is not a traditional domestic animal.
The Illinois Assistance Animal Integrity Act
Effective January 1, 2020, Illinois adopted its Assistance Animal Integrity Act (AAIA), 310 ILCS 120/1, et seq. The AAIA attempts to carefully craft further guidance on what documentation a housing provider may request and more importantly what documentation is not to be considered in reviewing a reasonable accommodation in Illinois. The Act does not support the multitude of internet services purporting to register your animal as a service animal or support animal or to deliver a disability letter. These services are akin to online services for registering users as ministers of some faith. The AAIA expressly refers to the FHA and to the IHRA. It does not mention the ADA or §504 of the federal Rehabilitation Act of 1973, Pub.L. No. 93-112, 87 Stat. 355.
The substance of AAIA is in §10, “Documentation of disability and disability-related need.” 310 ILCS 120/10. Subsection (a) states that when a person requests a reasonable accommodation for an assistance animal, the housing provider may require reliable documentation of the disability and disability-related need only if the disability or need is not readily apparent or known to the housing provider. The housing provider may ask the requester to make a request on a standardized form (which seems to run contrary to the federal guidelines), but cannot deny the request because the requester did not use the standardized form so long as he or she provides the information in subsection 10(b).
Subsection 10(b) says that the documentation provided by a person requesting a reasonable accommodation shall (1) be in writing, (2) be made by a person with a “therapeutic relationship” with the requester, and (3) describe the requester’s disability-related need for the assistance animal. Section 5 of the AIAA defines a “therapeutic relationship” as “the provision of medical care, program care, or personal care services, in good faith, for and with actual knowledge of, an individual’s disability and that individual’s disability-related need for an assistance animal by: (1) a physician or other medical professional; (2) a mental health service provider; or (3) a non-medical service agency or reliable third party who is in a position to know about the individual’s disability.” 310 ILCS 120/5. The definition specifically excludes an entity that “issues a certificate, license, or similar document that purports to confirm, without conducting a meaningful assessment of a person’s disability or a person’s disability-related need for an assistance animal, that a person: (a) has a disability; or (b) needs an assistance animal.” Id.
Subsection 10(c) provides that a housing provider may deny or rescind a request if the accommodation imposes (1) an undue financial hardship or administrative burden, or (2) a fundamental alteration in the nature of the provider’s operations. Alternatively, the request may be denied or rescinded if after conducting an assessment there is reliable objective evidence that the animal (1) poses a threat to the health or safety of others that cannot be reduced by an alternative accommodation, (2) causes substantial physical damage to others’ property that cannot be reduced by an alternative accommodation, or (3) has engaged in a pattern of uncontrolled behavior that its handler has not taken effective action to correct.
Subsection 10(d) prohibits the housing provider from asking for more information than is contained in subsection 10(b) unless the responses do not satisfy 10(b). If the responses fail to show a therapeutic relationship between the accommodation requester and information provider, the housing provider can request further information to show this relationship.
Subsection 10(e) says that the housing provider can consider the disability-related needs of others living on the property but cannot deny a request because of the needs of another. The housing provider must attempt to balance the disability-related needs of all residents.
Subsection 10(f) prohibits a housing provider from charging any fees or requiring any special liability insurance for an assistance animal. The housing provider may charge for repairs for any damage caused by an assistance animal, ordinary wear and tear excepted, just as the housing provider would charge a resident for other damage to the property.
Subsection 10(g) prohibits construing the Act as requiring documentation of a specific diagnosis regarding a disability or disability-related need.
Subsection 10(h) allows a housing provider to verify the authenticity of the documentation produced in response to subsection 10(b).
Section 15 of the Act immunizes the housing provider for injuries that an assistance animal causes to another person where the animal was allowed on the property as a reasonable accommodation to assist a person with a disability.
Takeaway. The HUD Guidance and Illinois legislation demonstrate that federal and state officials are familiar with how some people abuse the disability protection and accommodation laws for pets. Probably every association attorney has encountered these situations in some cases knowing that the requester is taking advantage of laws written to help people with bona fide disabilities. The HUD guidance and the Illinois legislation at least provide some help to the practitioner who otherwise must fully capitulate to the request. This guidance and legislation also assists practitioners in documenting the bona fide requests.
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