Client Alert: HUD Issues FHEO Notice Providing Guidance on Evaluating Reasonable Accommodation Requests for Animals under the Fair Housing Act

Date: March 9, 2020
On January 28, 2020, the U.S. Department of Housing and Urban Development issued an FHEO Notice, which provides additional guidance to housing providers in assessing a person’s request to have an animal as a reasonable accommodation under the federal Fair Housing Act (“FHA”).  The full text of the notice can be found here.

This document replaces HUD’s prior guidance on assistance animals from 2013 and includes particularly detailed direction to housing providers, such as community associations, regarding protocols they should use in assessing a reasonable accommodation request for an animal and specific questions they can ask of disabled persons and their health care providers.  Further, HUD addresses the information from a disabled owner that does and does not reasonably support a request for an accommodation, and dismisses as insufficiently reliable documentation from websites that sell certificates, registrations, and licensing documents to anyone who answers certain questions or participates in a short interview and pays a fee.

The new HUD FHEO Notice is worthwhile reading for all board members, managers, and professionals working with community associations and includes the following highlights:

Service Animals

HUD distinguishes between dogs that have been trained to do work or perform tasks for the benefit of an individual with a disability and other support or assistance animals that may be necessary for disabled people to equally enjoy the benefit of their housing.  For the former, HUD directs housing providers to follow the same analysis used in assessing whether an animal is a service animal under the ADA.  Under this analysis, a housing provider is permitted only to ask whether (1) the animal is a dog and (2) it is readily apparent that the dog is trained to do work or perform tasks for the benefit of an individual with a disability, such as guiding an individual who is blind or pulling a wheelchair.  If both questions are answered affirmatively, the dog should be considered a service animal and permitted in housing, including public and common use areas without further inquiry.

Other Support Animals and Assistance Animals

For all other animals for which a person seeks a reasonable accommodation, HUD identifies the questions the housing provider should consider in determining whether an accommodation is reasonable and necessary, including:
  • Has the individual requested a reasonable accommodation – that is, asked to get or keep an animal in connection with a physical or mental impairment or disability?
  • Does the person have an observable disability or does the housing provider already have information giving it reason to believe that the person has a disability?
  • If the disability is not observable or known, has the person requesting the accommodation provided information that reasonably supports that the person seeking the accommodation has a disability?
  • 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?
  • Is the animal commonly kept in households, such as a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal traditionally kept in the home?
  • If not, has the requestor met the burden of demonstrating a disability related therapeutic need for the specific animal or the specific type of animal?

The Notice discusses information the housing provider can rely upon in answering each of these questions.

Website Certifications of Assistance/Support Animals

HUD calls into question the reliability of certifications, registrations, and licensing of assistance animals from websites that sell such documentation to anyone who answers certain questions or participates in a short interview.  According to HUD, such documentation, by itself, is typically insufficient to be relied upon in determining the need for an assistance animal. 

HUD does make clear that this conclusion does not apply to legitimate, licensed health care professionals delivering their services remotely or as telemedicine over the internet.  HUD suggests that supporting information from a licensed health care professional, which is general to the condition but specific as to the individual with a disability and the assistance or therapeutic emotional support provided by the animal and establishes the relationship between the disability and the need for the assistance animal should be sufficient to confirm a disability related need.

HUD further provides a “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing,” which can be given to a requesting individual’s licensed health care provider to make clear what information should be provided to the community association in support of the request for an accommodation.  As a practice point, community associations are recommended to have this document available for residents considering a reasonable accommodation request to the association.

General Considerations

Finally, HUD provides in the Notice general requirements for all service and assistance animals, including:
  • A housing provider may refuse a reasonable accommodation to an assistance animal that poses a direct threat to the health or safety of other individuals or causes substantial physical damage to the property of others if such threat cannot be eliminated or reduced through actions taken to control the animal;
  • Service and assistance animals are not pets and covenants or rules about pets do not apply to these animals;
  • A housing provider cannot charge a deposit, fee, or surcharge for a service or assistance animal, but can collect for damages actually caused by such animal;
  • The person with a disability is responsible for feeding, maintaining, providing veterinary care, and controlling the service or assistance animal.
If you would like to schedule fair housing training for your association or to discuss developing a reasonable accommodation or modification policy resolution for your association that incorporates the new HUD guidance, please feel free to contact Marla J. Diaz, Esq., at 703-280-9131 or, or, any of our other community association attorneys.