HUD recently came out with a new notice on assistance animals. The topic of emotional support animals and assist animals have many questions surrounding it. Be sure to check out the clip from our YouTube channel episode and review some of the key points of the transcript below in our post.
What is the difference between service animals and emotional support animals?
When we look at the Fair Housing Act and Section 504, we don’t care whether an animal is a service animal or an emotional support animal. It doesn’t matter, we don’t need to ask different questions. We certainly can’t ask for proof of training or some kind of certification.
All of that, when it comes to housing, is irrelevant, even though it’s important under the ADA. But the ADA doesn’t apply to housing. So HUD is causing some confusion in its new notice, by beginning the entire notice with questions pertaining to service animals.
Service Animal Definition
The legal or technical definition of a service animal or assist animal is an animal that has been trained to work, perform task, provide assistance for a person with a disability. The ADA limits those types of animals to dogs. And as you know, as housing providers, you cannot limit the type of assistance animal to a dog. The ADA references are somewhat confusing in the new HUD notice.
Interestingly enough, this new notice comes up with a completely different type of animal that the notice refers to as a support animal. In the definition, HUD defines support animals that do work, perform tasks, provides assistance, or provide therapeutic emotional support for individuals with disabilities.
How many emotional support or assistance animals can you have?
The new HUD notice addresses multiple animal requests at the outset but does not dive much deeper than that. So we come back to how we handle all requests for a reasonable accommodation. Ask questions about each animal, especially the need for each animal, and make sure that both the resident and the verifier has explained why one animal isn’t enough.
There is a presumption that one animal is enough. That doesn’t mean that someone couldn’t justify more than one, but I think the burden is on the resident or the applicant and their verifier to explain why they need more than one.
How do we differentiate whether it is a service animal or emotional support animal (ESA), based on the new guidance?
That takes us back to this concept of the ADA. Under the ADA, operators of public accommodations are permitted to ask if someone brings in an animal into, let’s say, a Target store. They are walking around the aisles with their dog in their arms or in the basket or wherever. And the manager of the store or an employee can walk up to that person and say,
“Is that a trained service animal?”
And if the person says, “Yes,” they are permitted to say, “And what work or task has this animal been trained to perform for you?”
And the customer is supposed to answer that question.
However, there’s no written verification, there’s no confirmation, there’s no verification of any of that information. If the animal is not a dog, then it’s clear, it’s not a service animal, because only dogs and in rare cases, miniature horses, are recognized as service animals. So, in housing, if someone says, “I don’t have to provide you verification of my service animal.” The answer is, that applies under the American Disabilities Act, but the ADA does not pertain to housing. The Fair Housing Act permits verification when the disability and the need for the animal are not observable.
If you can see that the animal is a guide dog, then you shouldn’t be asking for verification. But if it’s a dog that is a service animal for disabilities such as hearing problems or alert someone that they’re about to have a seizure, you can’t see that when you talk to the resident. In that case you can ask for verification. And if they say to you that’s not permitted, then you have to clarify, “I’m asking you this not under the Americans with Disabilities Act, but under the Fair Housing Act.”
What is proper certification for assist animals? Would certifying your pet online be acceptable?
HUD has made it very clear in this notice that going online and getting your pet registered or certified on some website, by paying money is irrelevant to the question of whether this is an assistance animal that should be approved to live in housing as a reasonable accommodation. If someone hands you one of those registrations or online certifications, you can hand it back to the resident and let them know that it is not adequate to verify their need for an assistance animal.
We only want to know if you’re disabled, if you meet the definition of disability, and if that animal is necessary to assist you because of your disability. That’s all you care about, when you’re verifying a request for a reasonable accommodation. The HUD notice has made it very clear, it considers those websites as taking advantage of people, wasting their money, because those registrations are irrelevant to the question of whether you approve their reasonable accommodation or not.
Should property management companies have a procedure for accommodation requests?
When your property is looking at a request for an assistance animal, I hope you have a pretty detailed procedure that you follow, that all staff at your property follow, when considering a request for an accommodation. And that involves verification when the disability status of the resident is not observable. If you’re going to turn down someone because you don’t think their verification is reliable you need to conduct an interactive meeting, which is a good-faith dialogue with that applicant or resident, explaining why you are not going to accept or grant their request and attempting to resolve their request.
What does the Fair Housing Act say about verification of the need for emotional support animals?
First of all, the process should be done in writing. The law is clear that you shouldn’t turn down a reasonable accommodation request for an assistance animal, without explaining the reasons to the resident. To be a reliable verifier, the verifier has to have personal knowledge about the resident, and should be providing the resident with medical or mental health services, and not merely providing a verification letter or filling out a form.
There are questions that you can ask, to determine if the resident just went online and purchased a verification letter, or if they have an ongoing medical or therapeutic relationship with the verifier. And you don’t have to give much credence to a verification when it was provided by someone that clearly has little or no professional knowledge of the resident.
HUD Assistance Animal Notice Key Takeaways
The notice also makes it clear the difference between domesticated animals kept in the home (traditional) and non-traditional unique animals such, goats, pigs, chickens, snakes, etc. The notice says the resident has a substantial burden to be able to show that they need a unique animal, as an assistance animal. Now, it is not impossible to justify a unique animal, but they’re going to have to explain in more detail than with a usual animal, why they need their snake as an emotional support animal.
We haven’t had this distinction in the past. This may mean that you need to revise your forms, to include questions about unique animals.. The other thing that the notice says is if you require the resident or verifier to notarize their information, you need to stop doing that.