Avoid the 7 Biggest Mistakes When Verifying Disability

This month, the Coach focuses on the rules limiting when and how you can ask for disability-related information. It can come up anytime an applicant or resident requests a reasonable accommodation. It’s a particularly big issue when dealing with requests for emotional support animals, given the increasing popularity of online certifications, which are often available with little more than a credit card.

In general, fair housing law forbids housing providers from asking applicants or residents for disability-related information, but exceptions can apply under certain circumstances when they request a reasonable accommodation, such as an assistance animal. Even if you have a no-pet policy, you must consider reasonable accommodation requests from individuals with disabilities to keep assistance animals if necessary to allow them to use and enjoy the community. If the applicant has an obvious disability-related need for the animal—for example, a guide dog for someone who’s blind—then you must grant the request—no questions asked.

But it’s a different story when it’s a request for an emotional support animal. You don’t have to bend the rules unless it’s for an individual with a disability. But it’s usually impossible to tell, just by looking at someone, whether he has a qualifying disability. In circumstances like these, you have the right to verify that the person: (1) has a disability; and (2) has a disability-related need for the animal. But you could trigger a discrimination complaint unless you follow the rules limiting when and how you may ask for such disability-related information.

In this lesson, we’ll explain the fair housing disability rules, including who qualifies as an individual with a disability and what’s required of housing providers when handling reasonable accommodation requests. Then we’ll review the seven most common mistakes made when asking for disability-related information, to help you avoid the missteps that often lead to fair housing trouble. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans housing discrimination based on disability, so it’s unlawful to discriminate against applicants and residents because of their disability—or the disability of anyone associated with them. But the law goes further by requiring you to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to give such person an equal opportunity to use and enjoy a dwelling. It is unlawful to wrongly withhold such an accommodation.

This means that communities have an obligation under fair housing law to promptly consider and act on requests for accommodations from applicants and residents who have a disability, explains fair housing attorney Robin Hein. An accommodation is a variance in the owner’s or management’s usual leasing and rental policies in order to help the disabled person live there.

Although an applicant or resident isn’t entitled to receive a reasonable accommodation unless he requests one, the law doesn’t require that a request be made in a particular manner, with particular words, or at a particular time, according to federal guidelines. An applicant or resident makes a reasonable accommodation request whenever he makes clear to the housing provider that he is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of his disability.

More than half of all fair housing complaints are for disability discrimination, many involving disputes over reasonable accommodation requests. To hold communities accountable for failure to grant a reasonable accommodation request, an applicant or resident must prove that:

The request for a reasonable accommodation was made by or on behalf of an individual with a disability. Under the FHA, a disability generally means a physical or mental impairment that substantially limits one or more major life activities. The law covers a wide range of impairments, such as orthopedic, visual, speech and hearing impairments; heart and lung conditions; and mental illness. An impairment substantially limits one or more major life activities when it has a significant impact on activities that are central to daily life, such as seeing, hearing, walking, or caring for oneself.

The community knew—or was aware of—the disability. Some disabilities, like visual or hearing impairments, are obvious or apparent, while other disabilities show little outward sign of impairment. But it doesn’t matter as far as the law is concerned: Communities must consider a reasonable accommodation request by an individual with a disability, whether it’s physical or mental, obvious or not. If the request is for someone who doesn’t have an obvious or apparent disability, then the law permits communities to request disability-related documentation to verify that he qualifies under the FHA’s definition of “disability.”

The request was necessary. The requested accommodation must be necessary—one that allows an individual with a disability an equal opportunity to enjoy the housing. In general, that means that there must be an identifiable connection between the requested accommodation and the individual’s disability. Sometimes, it’s easy to see the connection—for example, when a resident with a severe mobility impairment asks for an assigned accessible parking space as an exception to a community’s general parking policy. When the connection isn’t obvious, you can request documentation that verifies the connection between a resident’s disability and the need for the requested accommodation.

The request was reasonable. The law doesn’t require you to grant a request for a disability-related accommodation when providing the accommodation would be unreasonable—that is, it would impose an undue financial and administrative burden on the community or fundamentally change its operations. Even when a request is unreasonable, federal guidelines say that communities should engage in an “interactive process” by talking to the resident about alternative accommodations that would effectively meet his disability-related needs without imposing an undue burden on the community.

The community denied the request. That’s easy to prove in some cases—if, for example, the community refuses to make any exceptions to its policies or formally denies a particular resident’s request. In some cases, however, there are disputes over whether a community refused the request—often in cases where the community requests documentation about the resident’s disability or need for the requested accommodation. Even when you’re allowed to request documentation to assess a reasonable accommodation request, you can’t use the process to stonewall or discourage the resident from pursuing the request. An unreasonable delay in responding to a reasonable accommodation request is the same as a denial under fair housing law.

7 MISTAKES THAT LEAD TO FAIR HOUSING TROUBLE

WHEN VERIFYING DISABILITY

Mistake #1: Asking for Disability-Related Information When You’re Not Supposed to

Don’t ask applicants and residents any questions related to a disability unless you’re sure it’s allowed under fair housing law.

Under the FHA, it’s generally unlawful to ask an applicant or resident whether he (or someone in his household) has a disability or to ask about the nature or severity of a disability. Unless he’s requested a reasonable accommodation, you could get into hot water if you ask any questions about an applicant or resident’s disability.

There are a few questions you can ask—just be sure you know what they are. For example, federal guidelines allow you to ask about an applicant’s ability to meet the requirements of tenancy—as long as you ask all applicants, regardless of disability, the same thing. You also may ask whether applicants are qualified either for a dwelling available only to individuals with disabilities or for a priority available only to such individuals.

Federal law also allows you to ask questions concerning current illegal drug use or convictions for the illegal manufacture or distribution of a controlled substance. Although the law protects applicants recovering from past drug addiction, it specifically excludes individuals who are currently using illegal drugs.

COACH’s Tip: Provide at least basic fair housing training to any staff member who may have contact with the public, including temporary office help. For example, a temporary receptionist should be taught the basics so that he doesn’t ask questions about a prospect’s disability. The temp might believe it’s merely an innocuous comment, but it could be considered inappropriate disability discrimination.

Mistake #2: Asking for Verification When There’s an Obvious Disability-Related Need for Accommodation

Get to know when you can—and can’t—ask for disability-related information from applicants or residents who request reasonable accommodations. In general, communities are entitled to obtain information necessary to evaluate whether the requested accommodation may be necessary because of a disability, according to federal guidelines. Whether it’s necessary to ask for disability-related information boils down to two questions:

1. Is the request by or for someone with a disability?
2. Does the person have a disability-related need for the requested accommodation?

If a person’s disability is obvious, or otherwise known to the community, and if the need for the requested accommodation is also readily apparent or known, then you can’t ask for any additional information about the individual’s disability or disability-related need for the accommodation, according to federal guidelines. That’s because it’s obvious that the person: (1) has a disability; and (2) has a disability-related need for the requested accommodation.

Take an example from the guidelines: If an applicant with an obvious mobility impairment asks for a parking space near the entrance to the building, then you can’t ask him for further information, because both the disability and the disability-related need for the accommodation are readily apparent.

But, as fair housing expert Nadeen Green points out, reasonable accommodation doesn’t mean that anyone with any disability must have every request approved. If there’s no connection between the disability and the request, the landlord isn’t required to grant the accommodation.

That’s why the guidelines allow you to ask for additional information from an applicant with an obvious disability if the need for an accommodation isn’t readily apparent. Green shared a recent real-world example: A community reasonably accommodated a resident by allowing him to have domestic rats as assistance animals, but he was taking them into the common areas (uncaged and in his pockets) and said he needed to have them with him to manage his disability. Not surprisingly, other people were extremely upset about this. When the landlord reached out to the treating doctor, the doctor said no, this resident did not need to have his rats with him other than in his unit.

Mistake #3: Treating Requests from People Who Don’t Have Obvious Disabilities with Suspicion

Everyone needs to understand that all disabilities are equal under the law, says Green, who believes that many mistakes are made because people don’t get this. As far as fair housing law is concerned, she says that a soldier who lost two limbs while serving our country is no “more disabled” than a person diagnosed with depression. It doesn’t matter whether it’s a physical disability that can be seen (like the soldier's), a physical disability that can’t be seen (like lupus or epilepsy), or an emotional or mental illness (like depression). All people with these disabilities have equal standing under the law and each is just as entitled to his particular reasonable accommodations as the others.

When handling a reasonable accommodation request from someone who doesn’t have an obvious or apparent disability, federal guidelines allow you to request reliable disability-related information that is:

• Necessary to verify that he meets the FHA’s definition of “disability” (that is, has a physical or mental impairment that substantially limits a major life activity);
• Describes the needed accommodation; and
• Verifies the connection between his disability and the need for the requested accommodation.

The type and source of documentation that may be required to verify disability depends on the circumstances, according to the guidelines. Verification may come from an applicant himself, for example, with proof that an individual under age 65 receives Supplemental Security Income or Social Security Disability benefits or “a credible statement by the individual.” A doctor or a medical professional, peer support group, or reliable third party in a position to know about the individual’s disability may also provide verification of a disability. In most cases, the guidelines state that an individual’s medical records or detailed information about the nature of his disability are not necessary to verify a disability.

Once it’s established that the applicant has a qualifying disability, the community may seek information necessary to evaluate whether the requested accommodation is needed because of that disability. The information must be kept confidential and may not be shared with others (absent disclosure required by law) unless they need it to evaluate the accommodation request.

Mistake #4: Adopting a ‘One Size Fits All’ Policy for Disability Verification

Consistency is often the key to fair housing compliance—but not when it comes to reasonable accommodation requests. As Hein points out, each of these disability accommodation requests is unique and must be considered based on its specific facts.

The same holds true when asking for disability-related information related to reasonable accommodation requests. Verification of disability should not be seen as “if we do it for one, we must do it for all,” says Green. In some instances, you can ask applicants and residents who request reasonable accommodations to provide certain disability-related information—just don’t make the mistake of assuming you can do the same with everyone who makes a reasonable accommodation request.

When it comes to asking for disability-related information, fair housing attorney Terry Kitay says that you should tailor your requests to what you need to evaluate the reasonable accommodation request. Let’s say a person in a wheelchair wants a reserved parking space. You shouldn’t ask her for documentation because both the disability and the need for the requested accommodation are obvious. If the same resident wants a flashing light fire alarm, the mobility disability is obvious, but the need for the accommodation, which is usually associated with a hearing impairment, is not. That means you can’t ask her to verify the disability, but you can ask for information to verify that there is a disability-related need for the requested accommodation.

But take a third example: A resident walks into your office and says he needs a parking space right near the entrance, but he needs a quick answer because he has to get to his aerobics class. In circumstances like these, Kitay says that you can ask for verification of the disability and the disability-related need for the requested accommodation because neither is obvious or apparent.

Mistake #5: Requiring Everyone to Use Your Forms

It’s a good idea to have standard forms for verifying disability, but it’s a bad idea to refuse to consider reasonable accommodation requests when people don’t use them. For example, Kitay says it’s a mistake to insist on using your forms when people come in with their own documentation to verify disability for a reasonable accommodation request. You can’t refuse to consider their paperwork just because it’s in a different format than your standard disability verification forms.

Instead, you should take a look at what the person has provided to determine whether it satisfies all the criteria necessary to evaluate the accommodation request, that is:

     1. Does it verify that he has a disability?

     2. Does it verify the disability-related need for the requested accommodation?

     3. Is it reliable?

Kitay says that if the answer to all three questions is yes, then you must accept the person’s paperwork—you can’t ask for more.

When people don’t come in with documentation, then you can use a standard disability verification form for reasonable accommodation requests when there’s no obvious disability-related need for the requested accommodation. The purpose of the form is to verify the existence of a disability—not what the disability is—and the disability-related need for the requested accommodation.

Don’t tell people to bring in a note from their doctor, says Kitay. For one thing, the verification doesn’t have to be from a doctor—it may come from another healthcare provider, social worker, or other reliable third party in a position to know about the individual’s disability.

Furthermore, Kitay says it’s better to get verification on your own by sending the verification form directly to the third-party verifier and getting it back directly from him. The specifics may vary, but in general, the form may ask:

• Is this person disabled? (It’s okay to include the FHA definition of “disability”—that is whether he has a mental or physical impairment that substantially limits a major life activity.)
• Does this person need this accommodation because of a disability? (Identify the accommodation requested.)

Kitay says you may also consider including a statement on the form that lets the verifier know this is a legal request that’s taken seriously, so the verifier should take the response seriously.

Mistake #6: Putting Too Much—or Too Little—Stock in Online Certifications

Knowing the rules on disability verification is essential to avoid the common mistakes that lead to complaints involving requests for assistance animals. It’s particularly important now that so many applicants or residents can go online and find a quick “certification” process to say their dog is a certified assistance animal, which really creates problems for management, says Hein.

Green and Kitay agree that online verifications (almost always involving dogs) are a big issue. Green points out that verification, when appropriate, should come from a credible source. Kitay believes that online registries for assistance animals are generally not credible verification sources and that a landlord can require supplemental verification.

When an applicant provides you with an online certification that he needs an assistance animal, Kitay says that you should determine whether it meets the requirements that it’s reliable and from someone familiar with the applicant’s disability. It’s a mistake, Hein says, to automatically assume that an online certification wasn’t issued by any recognized group, or a medical or mental health provider, and deny the request.

Furthermore, Hein warns that just because someone obtains one of these easy online certifications doesn’t mean he’s not allowed to have the animal. If the person has a diagnosed medical or mental condition that requires an assistance animal, then the fact that the online certification may have no legal standing doesn’t end the conversation.

You still have the obligation to consider, respond, and act on the request, even though you suspect that the online verification submitted by the applicant is not sufficient to provide you with all the information you need to act on the disability accommodation request. Hein advises sending a written response to the request that it’s the rental owner’s and management’s policy to grant disability accommodation requests for assistance animals (which includes both trained service animals and untrained emotional support animals) but that you’ll need additional information from the applicant’s treating medical or mental health professional.

Hein says that it’s important that you be able to receive confirmation from the applicant’s treating mental health or medical health professional to verify that the applicant is under the doctor’s or mental health provider’s care and treatment and that he has diagnosed a medical or mental condition that renders the patient disabled. Also, you may request confirmation from the treating doctor or mental health provider that the animals are prescribed to assist with the disability. Kitay also believes it’s important to determine that the online verifier has a therapeutic relationship with the person that was formed for more than just the request for verification.

If the applicant or resident is unwilling to cooperate or obtain the proper medical or mental health provider’s assistance in verifying the information, then you may have a basis for denying the request. But this is a difficult area, Hein says, so it’s important to get legal advice before taking any adverse action.

Mistake #7: Just Saying ‘No’

Don’t be too hasty to deny requests for reasonable accommodations if you’re dissatisfied with the response to your requests for documentation to verify disability. Even if the documentation isn’t sufficient, Kitay warns that it’s a mistake to simply say “no” to an accommodation request. Whatever the circumstances, it’s a good idea to get legal advice before taking any adverse action, such as denying an accommodation request or imposing fines or starting eviction proceedings against a resident for violating your rules.

That’s because of the risk of a fair housing complaint unless you followed the rules to a tee. For one thing, you’ll need to double-check that your request for disability verification didn’t ask for anything you’re not entitled to, such as information about the nature of a resident’s disability. Communities sometimes get into fair housing trouble because they ask for TMI—too much information—about the details of a resident’s physical or mental health impairments, specifics about medication or treatment, or copies of medical records.

Then, you should determine whether the documentation you received in response provides enough information for you to assess whether the resident is entitled to the requested accommodation. Check whether it’s from a reliable source, such as the applicant’s medical or mental healthcare provider, and verifies that the applicant has a disability and needs the requested accommodation because of that disability. If the documentation satisfies all those requirements, then it’s a mistake to ask for more disability-related information.

If it doesn’t, then you should engage in an interactive process to get the information you need to assess the resident’s accommodation request, says Kitay. As an example, she says, it’s common to see requests for multiple animals, where the documentation verifies that the resident has a disability-related need for an assistance animal, but doesn’t explain why he needs multiple animals, instead of just one. Let’s say a resident says he needs two dogs, and his verification indicates that he has a disability and needs a dog as an assistance animal, but doesn’t explain what two dogs will do that one can’t.

If he can’t come up with documentation to answer that question, you may be within your rights to allow him to keep only one, but it’s likely to provoke strong objections—and trigger a possible fair housing complaint. Instead of simply denying his request, Kitay says it may be better to engage in an interactive process to come up with an alternative that would satisfy both parties. In situations like these, Kitay says that some communities would allow the resident to keep both dogs with the understanding that there will be no replacement when one of them passes on. She says most people can live with that—a win-win if it resolves the matter without the risk of fair housing trouble.

• Fair Housing Act: 42 USC §3601 et seq.
• HUD/DOJ Joint Statement on Reasonable Accommodations Under the Fair Housing Act.

COACH Sources

Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; nadeen.green@forrent.com.

Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood & Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com.

Theresa L. Kitay, Esq.: Attorney at Law, 578 Washington Blvd., Ste. 836, Marina del Rey, CA 90292; (910) 250-1982; tkitay@kitaylaw.net.