Reasonable Accommodation HUD Guidance

Posted By: Brett Waller Advocacy News , Industry Trends ,
HUD recently released guidance clarifying the terms under which a tenant may request a reasonable accommodation to keep an animal as a service animal or assistance animal. 

The guidance is available here. It is also available on the HUD website. 

Below is a summary of the law and should not be construed as legal advice when considering a request for a reasonable accommodation. I highly encourage all members to review the summary.

An applicant or tenant can make a request for a reasonable accommodation to keep an animal when they have a disability and a disability-related need for the animal to have an equal opportunity to enjoy and use a dwelling. A request for a reasonable accommodation can be made at any time before or during the tenancy and can be oral or written. The request can be made by others on behalf of the individual, including a person legally residing in the unit with the requesting individual, a legal guardian, or an authorized representative.

A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common use spaces. 

The housing provider should engage in a good-faith dialogue (the interactive process) with the person and may not insist on specific types of evidence if the information which is provided or is actually known to the housing provider meets the requirements to determine the need for a reasonable accommodation. 

Where a person has not sought a reasonable accommodation and is keeping an animal in a “no pets” community or in violation of community rules and policies for animals, the housing provider may take reasonable steps to enforce the community policy, until the below steps before the person provides reliable information to show the disability-related need for keeping such an animal. 

There are two types of assistance animals (1) service animals; and (2) other animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities

The restrictions and analysis are different for the above types of assistance animals.

Service animals:

Under the American with Disabilities Act (ADA), a “service animal is a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including physical, sensory, psychiatric, intellectual, or other mental disability. The work or tasks performed by a service animal must be directly related to the individual’s disability.” 

There are eight questions to determine whether an animal is a service animal or one that provides assistance or support to an individual. The below questions should guide your analysis and the interactive process of a request for reasonable accommodation. 

  1. Is the animal a dog?
    • No – The animal is not a service animal but may be another type of assistance animal.
    • Yes – proceed to the next question.
  1. Is it readily apparent that the dog is trained to do work or perform tasks for the benefit of an individual with a disability?
    • Yes – Any further inquiry is inappropriate and is likely to result in a finding of discrimination if a complaint is made.
    • No – Proceed to the next question.
  2. Is the animal required because of a disability? (Yes/No)
  3. What work or task has the animal been trained to perform?

A housing provider cannot ask about the diagnosis of an individual’s disability but can request information about the disability-related need for the animal.

If the answer to either question (3) or (4) is no, the dog is not a service animal. 

If you’ve asked all these questions and you’ve determined the animal is either not a dog or is not qualified as a service animal, then the animal may be considered an assistance animal rather than a service animal. To continue the interactive process, the housing provider must engage in additional analysis below to decide whether the request qualifies as a reasonable accommodation.

  1. Does the person have an observable disability or does the housing provider already have information giving them reason to believe that the person has a disability?
    • No – Proceed to the next question.
    • Yes – Proceed to question #7 to determine whether a connection exists between the individual’s disability and the animal.
  1. Has the person requesting the accommodation provided information that reasonably supports that the person seeking an accommodation has a disability?
    • Yes – Proceed to next question.
    • No – The housing provider is not required to grant the accommodation unless the information is provided, but may not deny the accommodation on the grounds that the person requesting the accommodation has not provided this information until the person has been provided a reasonable opportunity to do so.
  1. 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?
    • Yes – Proceed to the next question.
    • No - The housing provider is not required to grant the accommodation unless the information is provided, but may not deny the accommodation on the grounds that the person requesting the accommodation has not provided this information until the person has been provided a reasonable opportunity to do so.
  1. Is the animal commonly kept in households?
    • Yes – The reasonable accommodation should be provided under the Fair Housing Act, subject to additional exceptions.
    • – A reasonable accommodation need not be provided.

Animals that are commonly kept in the household include dogs, cats, birds, rabbits, hamsters, gerbils, other rodents, fish, turtles, or other small domesticated animals that are kept in the home for pleasure rather than commercial purposes. Reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals. 

When a person requests to keep a unique type of animal or an animal that is not commonly kept in the household, the person must demonstrate a disability-related therapeutic need for the specific animal or the specific type of animal. Consider whether the person provides information from a health care professional that they have an allergy to a dog, or without the animal, the symptoms or effects of the person’s disability will be significantly increased. 

Additional considerations related to reasonable accommodations:

  • A housing provider cannot charge a fee or other cost for processing a request for reasonable accommodation.
  • A housing provider cannot charge a fee, deposit or rent, for an individual to keep an animal as a service dog or support animal.
  • Housing providers may not limit the breed or size of a dog used as a service animal or support animal but may impose limitations based on the conduct because it poses a direct threat or fundamental alteration to the property operations.
  • Where a tenancy would constitute a direct threat to the health and safety of other individuals or whose tenancy would result in substantial physical damage to the property of others, then the housing need not be made available. This is true too if the specific animal poses a direct threat that cannot be eliminated or reduced to an acceptable level through actions the individual takes to maintain or control the animal.

In evaluating whether the information provided is enough to document an individual’s need for an assistance animal, you should consider whether the information provided includes:

  • The patient’s name
  • Whether the health care professional has a professional relationship with the patient
  • The type of animal(s) for which a reasonable accommodation is sought
  • Whether the patient has a physical or mental impairment
  • Whether the patient’s impairment(s) substantially limits at least one major life activity or major bodily function
  • Whether the patient needs the animal(s)

If the animal is not an animal commonly kept in a household, these additional questions should be answered:

  • The date of the last consultation with the patient
  • Any unique circumstances justifying the patient’s need for a particular animal or particular type of animal
  • Whether the health care professional has reliable information about this specific animal or recommends this specific type of animal
This summary should not be construed as legal advice and should be used as a summary only.