Answering Your Questions About Assistance Animals

August 7, 2011

This month, we're going to discuss federal laws about when—and under what circumstances—communities must allow people to bring animals onto the property.

This month, we're going to discuss federal laws about when—and under what circumstances—communities must allow people to bring animals onto the property.

This subject has generated a lot of confusion—and formal fair housing complaints, according to HUD. In part, some confusion may stem from the natural tendency to view all animals as pets. Indeed, Americans own millions of dogs, cats, birds, fish, reptiles, horses, and other species. The latest statistics show that 62 percent of U.S. households own a pet, which equates to 72.9 million homes, according to the 2011-2012 National Pet Owners Survey conducted by the American Pet Products Association.

Despite the common assumption that all household animals are pets, the law doesn't see it that way. At its most basic, the various federal laws protecting individuals with disabilities don't consider certain animals to be pets, but more akin to a human aide who provides necessary services, assistance, or support for an individual with a disability. Just as it would be unlawful to refuse access to an aide who provides needed assistance to a resident with a disability, it's unlawful to ban animals that provide the resident with similar assistance.

Adding to the confusion are the federal laws protecting the rights of individuals with disabilities in various settings—each with its own terminology and requirements. Perhaps you heard about recently released federal regulations that only dogs that have received special training to provide specific tasks are considered “service animals” under the Americans with Disabilities Act (ADA). The same rules specifically exclude “emotional support” animals as service animals under the ADA.

You may be wondering whether the new ADA rules change what you've been told about fair housing requirements—that assistance animals include a wide variety of animals that provide various forms of assistance, including emotional support—with or without special training—to individuals with disabilities.

So what's the difference between an assistance animal and a service animal? And, more to the point, when are communities required to make exceptions to policies excluding or restricting pets as a reasonable accommodation for an individual with disability?

This month's lesson aims to provide clear answers to those questions. We'll provide an overview of the federal laws, and then answer 12 common questions about federal fair housing requirements with respect to assistance animals for individuals with disabilities. Finally, you can take the Coach's Quiz to see how much you have learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing based on disability by conventional and federally assisted housing providers. In addition, Section 504 of the Rehabilitation Act of 1974 generally imposes similar restrictions to all recipients of HUD funds.

Together, the FHA and Section 504 are the two federal laws that protect individuals with disabilities from housing discrimination, including refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodation may be necessary to afford an individual with a disability equal opportunity to use and enjoy a dwelling.

Under these laws, individuals with disabilities may be entitled to keep an assistance animal in housing communities that otherwise impose restrictions or prohibitions on animals, according to a recent memo by a top HUD official. To qualify for the accommodation, the assistance animal must be necessary to afford the individual an equal opportunity to use and enjoy a dwelling. In addition, there must be a relationship between the individual's disability and the assistance that the animal provides. If these requirements are met, the housing provider must permit the assistance animal as an accommodation, unless it can show that allowing the assistance animal would impose an undue financial or administrative burden or would fundamentally alter the nature of the housing community, according to the memo.

The ADA is the federal law that applies to state and local governments as well as public accommodations and commercial facilities. Generally, that means public places, including government buildings, business offices, grocery stores, medical offices, and theatres. In general, the operators of those facilities must permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go, according to the Justice Department.

Only dogs are recognized as service animals, according to new ADA regulations issued by the Justice Department. The regulations, which became effective in March 2011, include separate provisions allowing for individually trained miniature horses under some circumstances, but otherwise exclude all other species from being considered a service animal under the ADA.

To qualify as a service animal, the dog must be individually trained to do work or perform tasks for a person with a disability. The work a dog has been trained to do must be directly related to the person's disability, according to recent guidance issued by the Justice Department on the new ADA regulations. Examples include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person having a seizure, reminding a person with a mental illness to take prescribed medications, calming a person with Post-Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties, the department explains. Furthermore, the new rules specify that “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks” for purposes of the definition of “service animals” under the ADA.

Both HUD and the Justice Department emphasize that the new ADA rules on service animals do not trump federal fair housing requirements. The Justice Department specifically stated that the law with respect to the definition of “service animal” does not affect the broader definition of “assistance animal” under the FHA. In a recent memo, a HUD official said as much, explaining that the new ADA regulations do not affect reasonable accommodation requests for assistance animals under the FHA or Section 504. Under fair housing laws, disabled individuals may request assistance animals other than dogs, including emotional support animals, according to HUD. And in situations where both sets of laws apply—for example, in leasing offices that are open to the public—housing providers must meet the broader FHA/Section 504 standard for deciding whether to grant reasonable accommodation requests, the official warned.

TAKE-AWAY LESSON: ASSISTANCE ANIMAL VS. SERVICE ANIMAL

As you can see, there's a big difference between the broad rules applicable to assistance animals under federal fair housing laws and the restrictive rules defining service animals under the ADA. The new ADA restrictions came about after much debate, particularly from various groups that opposed limiting service animals to dogs—as opposed to the wide variety of animals that provide assistance to individuals with disabilities.

Whatever your stance on this controversial topic, it's important to keep in mind the purpose of the new ADA rules—to clarify what animals should be allowed in a public setting as opposed to the private confines of someone's home. That is, a cat, bird, reptile, or other creatures may be okay in someone's living room, but not sitting in a carriage at the grocery store, or in the adjacent seat in a movie theatre.

Remembering that key difference should help avoid confusion about which laws apply to your community. Since you are dealing with housing—most of which is not open to the public—it should be easy to remember that your community must comply with the broader FHA rules, not the restrictive ADA rules, related to assistance animals.

It would also help to use precise language when referring to such animals. Many people (and even some laws) use the words “service animals” and “assistance animals” interchangeably, but you now know the key legal differences between the terms under federal law. Training your staff to use the term “assistance animals” as opposed to “service animals,” will help reinforce that fair housing law requires you to consider accommodation requests by individuals with a disability for assistance animals, which may include various species and provide various forms of assistance, with or without special training.

Assistance Animal vs. Service Animal at a Glance

 

Assistance Animals Under FHA/Section 504

Service Animals Under the ADA

Where Applicable

Conventional and federally assisted housing communities

Public accommodations and commercial facilities (and state and local government services)

When Permitted

Required to allow an assistance animal as a reasonable accommodation when its use may be necessary to afford an individual with a disability an equal opportunity to use and enjoy the community, unless the animal would pose a direct threat, impose an undue financial or administrative burden on the community, or fundamentally alter its operations.

May not restrict service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go, unless animal is out of control and its handler does not take effective action to control it or the animal is not housebroken.

Species of Animal

Various species

Dogs (with some rules regarding miniature horses)

Tasks

Various tasks, services, and assistance, including emotional support

Work or tasks; emotional support excluded

Training Requirements

Special training not required

Individually trained to do tasks or perform work for a person with a disability

ANSWERS TO THE 12 MOST COMMON QUESTIONS ABOUT ASSISTANCE ANIMALS UNDER FAIR HOUSING LAW

QUESTION #1: Does Fair Housing Law Prohibit Communities from Having a Pet Policy?

Answer: No. Federal fair housing laws do not prohibit communities from adopting and enforcing policies on pet ownership as long as the rules are applied consistently to all residents, without regard to race, color, or other protected characteristic.

Alternatives range from banning all pets to allowing residents to have any pets, subject to state or local laws regulating health and safety, zoning, and other matters. Between those two extremes, communities have the discretion to place limitations on the species, size, number, or breeds of pets allowed within units, in common areas, and around amenities, such as pools and playgrounds—again, subject to state and local health and safety codes. Furthermore, you may require applicants with pets to pay extra fees or higher security deposits to cover potential damage caused by a pet to the unit or other community areas.

In essence, you can set whatever pet policy you want—as long as you remember that it can't be applied to assistance animals—because assistance animals are not considered pets under fair housing law.

QUESTION #2: What's the Difference Between a Pet and an Assistance Animal?

Answer: The key difference between a pet and an assistance animal is whether the animal is necessary to give an individual with a disability an equal opportunity to use and enjoy the community.

Breaking it down, the first requirement is that the animal is for an applicant or resident—or someone associated with him—who has a qualifying disability under fair housing law. The FHA defines “disability” to include physical or mental impairments that substantially limit one or more major life activities, such as seeing, hearing, breathing, performing manual tasks, caring for oneself, learning, or speaking. If the individual does not have a qualifying disability, then the animal is simply a pet—not an assistance animal under fair housing law.

The second requirement is that there must be a disability-related need for the animal. Guidelines issued by HUD and the Justice Department on reasonable accommodations (HUD/DOJ guidelines) offer an example: a resident with a hearing impairment who requests an assistance animal as an exception to a community's no-pet policy. The resident explains that the dog alerts him to sounds, including knocks on the door, telephone rings, and smoke detector alarms. Since there's an obvious connection between the resident's disability and his need for the assistance animal, the dog qualifies as an assistance animal—not a pet—so the community must allow the resident to keep the animal as a reasonable accommodation.

QUESTION #3: Can We Limit Exception to Service Dogs or Require Certification of Specialized Training?

Answer: No, the new ADA regulations on service animals do not affect reasonable accommodation requests under federal fair housing laws. The ADA limits service animals to individually trained dogs and specifically excludes emotional support animals.

In contrast, federal fair housing laws recognize that assistance animals may include a wide variety of species, which provide various forms of assistance—including emotional support—with or without specialized training.

Example: Last year, HUD charged the owners of a New York apartment building with violating the FHA for allegedly refusing to allow a Vietnam-era veteran suffering from PTSD to have a therapeutic service dog in his unit. In his complaint, the resident alleged that the owners failed to grant his request for a reasonable accommodation when they denied his use of a service animal that his doctors had prescribed to reduce his post-traumatic stress, depression, and seizures. Allegedly, the owners denied his requests for a therapeutic service dog because his apartment building had a “no-pets” policy [HUD v. Paribelli, March 2010].

QUESTION #4: Do We Have to Make Exceptions for Any Animal if the Individual Has an Obvious Disability?

Answer: No, an individual with a qualifying disability is not automatically entitled to an exception to your pet policies as a reasonable accommodation if there's no disability-related need for the animal.

As an example, the HUD/DOJ guidelines point to a request by an applicant who uses a wheelchair to keep a dog as an assistance animal. The applicant's disability is readily apparent, but the need for the assistance animal is not obvious to the housing provider. The community may ask the applicant to provide information about the disability-related need for the dog. Although the guidelines state that housing providers may deny a request for a reasonable accommodation if there is no disability-related need for the accommodation, fair housing experts warn against acting too hastily. Before denying the request, it's a good idea to consult your attorney to help you resolve the matter to avoid triggering a formal fair housing complaint.

QUESTION #5: Do We Have to Allow Request for Assistance Animal if Resident Doesn't Appear to Be Disabled?

Answer: Yes, depending on the circumstances. If the resident has a qualifying disability and has a disability-related need for the animal, then you must grant the resident's reasonable request to make an exception to your pet policies so he can have an assistance animal. Fair housing law defines “disability” to include a variety of physical and emotional impairments that may not be obvious or apparent to the housing provider.

If the resident's disability isn't obvious, you may ask for information about his disability. Although the law generally bans inquiring about the nature and severity of an individual's disability, the HUD/DOJ guidelines state that, in response to the request for a reasonable accommodation, the community may ask for reliable disability-related information that's necessary to verify that the individual meets the law's definition of disability, describes the needed accommodation, and shows the relationship between the person's disability and the need for the requested accommodation.

Example: The New Jersey Division on Civil Rights last year issued a Finding of Probable Cause against the owner of a nine-unit community and a real estate agency for allegedly refusing to rent to a couple who owned a medically prescribed service dog. According to the complaint, the wife was a breast cancer patient who developed PTSD as a result of her illness and treatment. Allegedly, the couple was denied housing after they disclosed that they had an emotional support dog prescribed for the wife by her treating physician to help deal with her illness and related mental disability.

Allegedly, the husband faxed the real estate agent a note from his wife's cancer specialist confirming that her condition met the definition of a disability under several different laws, and that a service dog has been prescribed to help her cope with her disability. The owner allegedly admitted that he told the real estate agent that he would rent to the couple as long as they did not have a dog, but he denied ever receiving documentation that the dog was a medically prescribed service animal.

After a preliminary investigation, the division found enough evidence to show a possible violation of the state antidiscrimination law, paving the way for further administrative proceedings [Smart v. Peterson Real Estate, June 2010].

QUESTION #6: Can We Exclude Certain Dog Breeds or Exotic Animals Even if They Qualify as Assistance Animals?

Answer: No, except in certain circumstances. Although many communities have adopted policies to ban particular breeds of dogs or species of animals, they may be required to make an exception to the rules as a reasonable accommodation for an individual with a disability.

Fair housing law generally allows a wide range of animals that provide various tasks for individuals with disabilities to qualify as assistance animals. Examples include capuchin monkeys, which have been trained to assist individuals who are paralyzed or have severe mobility impairments, and miniature horses, which act as guides for individuals with visual impairments. Furthermore, various species of animals, including cats, birds, and reptiles, that provide emotional support to individuals with disabilities may qualify as assistance animals under fair housing laws.

Nevertheless, some state and local laws ban certain breeds of dogs, such as pit bull terriers, or certain types of animals, such as ferrets, from residential buildings. If subject to such laws, you may enforce the law and keep those animals out of your community, even if they would otherwise qualify as assistance animals. If neither your state nor local law bans, or allows you to ban, a particular species or breed, then fair housing experts warn against adopting such blanket restrictions on your own.

QUESTION #7: Can We Exclude Certain Dog Breeds Because of Insurance Policy Restrictions?

Answer: Yes, depending on the circumstances. Communities may refuse to grant a request for an accommodation if it's unreasonable. Under fair housing law, an accommodation is unreasonable if it imposes an undue financial and administrative burden on the community's operations.

In a 2006 internal memo, HUD provided guidance to its investigators to handle reasonable accommodation cases where housing providers have denied requests for assistance animals that are a breed of dog that their insurance carriers consider dangerous. If the community's insurance carrier would cancel, substantially increase the cost of coverage, or adversely change the policy terms if the animals were allowed to occupy the premises, the memo indicated that HUD would find that the request to keep the animal would impose an undue financial and administrative burden on the community. Nevertheless, HUD instructed its investigators to verify with the insurer directly the community's claim about potential loss or adverse change to the insurance coverage and to consider whether comparable coverage, without the restriction, was available in the market.

QUESTION #8: Can We Exclude Dangerous Animals?

Answer: Yes, depending on the circumstances. A community may exclude an assistance animal when the animal's behavior poses a direct threat to the health and safety of others and its owner takes no effective action to control the animal's behavior so that the threat is diminished or eliminated, according to HUD.

Nevertheless, HUD says that determining whether an assistance animal poses a direct threat must be based on objective evidence about the specific animal in question, such as the animal's current conduct or recent history of overt actions. The assessment must consider the nature, duration, and severity of a risk of injury; the probability that the potential injury will actually occur; and whether reasonable modifications of rules, policies, practices, procedures, or services would reduce the risk. In evaluating a recent history of overt acts, the provider has to consider whether the assistance animal's owner has taken any action to reduce or eliminate the risk. Examples include obtaining specific training, medication, or equipment for the animal.

QUESTION #9: Can We Charge Extra Fees to Cover Potential Damages Caused by Assistance Animals?

Answer: No. A community may not require an applicant with a disability to pay a fee or a security deposit as a condition of allowing him to keep the assistance animal, according to the HUD/DOJ guidelines.

Example: Earlier this year, a federal court refused to dismiss a fair housing case filed against a North Dakota community for allegedly imposing a mandatory application fee, non-refundable deposit, and monthly charge on residents with disabilities who resided with non-specially trained assistance animals—so called “companion animals—but waiving the fees for residents with disabilities who had specially trained assistance animals, such as a seeing-eye dog.

Rejecting the owner's claim that the FHA applied only to specially trained animals, the court ruled that the law encompassed all types of assistance animals, regardless of training, including those that ameliorate a physical disability and those that ameliorate a mental disability. The court also ruled that the owner could be liable for failure to make a reasonable accommodation to residents with mental disabilities by refusing to waive the fees for non-specially trained animals [Fair Housing of the Dakotas v. Goldmark, March 2011].

Although you may not charge extra fees up front for potential property damage by an assistance animal, you have recourse against its owner if the animal actually causes damage to the unit or common areas. The HUD/DOJ guidelines state that you may charge the resident for the cost of repairing the damage (or deduct it from the standard security deposit imposed on all residents), if your community has a policy to assess residents for any damage they cause to the premises.

QUESTION #10: Can We Ask Residents to Follow Health and Safety Rules for Assistance Animals?

Answer: Yes. In general, communities may enforce state and local health and safety laws related to animals, including assistance animals, which may require animals to be inoculated, or spayed or neutered. Communities may also enforce local leash laws, scooping laws, and noise codes, if applicable.

HUD acknowledges that a person with a disability who has an assistance animal is responsible for the animal's care and maintenance. For example, HUD says, a community may establish reasonable rules in lease provisions requiring a person with a disability to pick up after and dispose of the animal's waste.

In some cases, a resident with a disability—such as an impairment affecting his vision or mobility—may need help to clean up after an assistance animal. In such a situation, fair housing experts recommend working out a solution with the resident to eliminate the need for him to clean up after the animal, while addressing your need to maintain the community's sanitary conditions.

QUESTION #11: Can We Take Action if an Assistance Animal Triggers Complaints from Neighbors?

Answer: Yes, depending on the circumstances. Fair housing law does not require a community to provide a requested accommodation if providing the accommodation is not reasonable—that is, it imposes an undue financial or administrative burden on the community or fundamentally alters the nature of the community's operations.

For example, you have the obligation to address problems, such as excessive noise, caused by a resident's assistance animal. If neighbors insist on being moved to another unit or threaten to move out because the resident's dog is barking all night, then allowing the assistance animal to remain on the premises may be unreasonable. That's because relocating the resident's neighbors or having them move out would cause an undue financial and administrative burden on your community.

Before taking drastic action, fair housing experts advise discussing the problem with the resident to explore potential solutions to resolve the noise complaints while effectively addressing his need for the assistance animal.

QUESTION #12: Do We Have to Provide Special Care for Assistance Animals?

Answer: No. Although you must allow residents with disabilities to have assistance animals if they need them, fair housing law does not require you to provide care for the animals, unless you provide such services to all residents with pets.

Residents are responsible for the care and maintenance of their assistance animals, so a request for you to feed or walk the animal would be considered unreasonable because it would alter the fundamental nature of your business, which is to provide housing services, not pet care. Although you are not required to grant the request, HUD says that communities should discuss with the resident whether there is any alternative accommodation that would effectively meet the resident's disability-related needs without fundamentally altering the nature of your operations.

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