BY VICTORIA COWART ON APRIL 6, 2023
Victoria Cowart says in operations, we all feel pressured to have a certain depth of knowledge on critical topics. This pressure rises to another level when the subject touches the work of our on-site, centralized, supervisory, and corporate team members. That pressure increases to a whole new level when it touches the lives of our applicants, residents, and possibly even our guests with disabilities. Click here to read more.
And if that wasn’t enough, this particular topic makes up approximately 60% of HUD complaints. With that, the pressure for operational knowledge and excellence rises fourfold.
I’m speaking of the rights of our disabled applicants and residents, and yes, those disabled guests “associated” with our residents, to request reasonable accommodations. These rights are afforded to the disabled by the Fair Housing Act (FHA) and the Fair Housing Amendments Act (FHAA). But let’s stop there for just a moment. What is a reasonable accommodation? An accommodation is defined as a change, exception, or adjustment to a rule, policy, or practice in your rental housing–but “reasonable,” now that’s a more subjective point of consideration.
So, what is our obligation when managing rental housing while considering the FHA and the FHAA? Let’s start at the beginning. We are legally required to consider all requests for reasonable accommodation, and the requests don’t have to come in a particular format or contain specific language.
So far, this sounds pretty straightforward. But how do we begin to understand what to do with these requests? In 2020, HUD released its first Notice regarding this topic in seven years. It is the HUD 2020–01 Assistance Animals Notice. It offers the industry excellent guidance, language, and opportunities to improve our work in this subject area.
The new Notice did offer us clarity on the common language. The overarching language to use in this topic is “assistance animals.” There are two types of assistance animals. There are service animals, and there are support animals. Each of these two types of assistance animals requires a different approach when we process the requests. You can think of them as different paths we will travel based upon the type of assistance animal requested.
Let’s travel along the first path, that of the service animal. The definition of a service animal is an animal trained to do work or perform tasks for the benefit of the disabled. Throughout the country, except in California, a service animal is simply three things: a dog, trained for a task, for the disabled. In California, other animals can be service animals.
Let’s dig further into the specifics of the processes. For a service animal, we are permitted to ask two questions. Those two questions are: is the animal necessary for a person with a disability, and what work or task has the animal been trained to perform? We can then evaluate those answers to see if they indicate an actual service animal. Occasionally, the answer will lead you to engage further in the interactive process. HUD defines an interactive process as a good-faith dialogue between you and the requester. This dialogue may reveal a possible support animal. This could be the case when a requester says yes to the disability question. Still, their answer to the task question makes it evident that the animal has not had any training to ameliorate one or more of the symptoms associated with the disability.
Remember, though, it is impermissible to require any documentation supporting a service animal request. You are not to obtain, or to even ask for, training certificate(s) or documentation from healthcare providers. That said, if the first answer is “yes”; and the second answer is, “Yes my service animal has been trained to wake me during night terrors,” you have a service animal. Conversely, if the first answer is “yes”; and the second answer is, “Yes my service animal sits in my lap and comforts me during intermittent explosive outbursts,” you likely have a support animal.
That leads us to our second type of assistance animal, the support animal. Support animals may be animals that perform a task. But because they are not a dog (in states other than California), by definition, they become a support animal. Support animals can also be animals that provide therapeutic emotional support, hence the ESA that we hear about most frequently. On this path, we are permitted to seek documentation from the requester – unlike in the service animal process.
We are permitted to look for five things in that documentation. HUD says we have a right to reliable documentation, from a healthcare provider, with an indication of personal knowledge and confirmation of disability and disability-related need for the requested support animal. Let’s stop for a moment and visit the confirmation of disability. You have a right to require this documentation to include confirmation of the disability only when the disability cannot be visually confirmed or when the individual is not on record or regarded as disabled. So, what does that mean in practice? It means your frontline team members should let you know if they were able to visually confirm that the requester is disabled. If that is the case, you are not looking to confirm the disability in the documentation. Likewise, if the individual is receiving disability benefits or income, as noted in their application, they are considered to be on record or regarded as disabled. Again, if that is the case, you are not looking to confirm the disability in the documentation.
So, with a request for a support animal, you can request documentation. You can look for the items noted above, as stated above, including the specificity of whether or not to confirm the disability and the documentation in accordance with HUD’s Assistance Animals Notice. If you find the documentation is missing one or more of the items you are allowed to have, you should consider continuing the interactive process and requesting the information in accordance with HUD’s Notice. Please be prompt in your receipt, analysis, and response to these requests. The HUD Notice makes it clear that requesters have a right to a response within ten days. The Notice clarifies the requester’s right to a timely response by stating that they may treat a lack of a response within the ten-day timeframe as a denial of their request – and for them to proceed accordingly.
In the end, as in most things in life, our response options are nothing, something, or everything. Nothing, in this matter, is a denial of the request. The most apparent reason for a denial is that you’ve been unable to confirm disability in any of the three ways described above. We are talking about civil rights for the disabled at the root of this conversation. If the requester is not disabled, you should pivot the discussion or exchange to one regarding pet policies. The something option is to share with the requester that you have analyzed the answers (service animal) or the documentation (support animal); and that you need to continue the interactive process. You would do this when you believe you have a disabled individual making a request. Still, the request is unclear or incomplete-or possibly one that you consider unreasonable. An advisable approach would be to seek additional clarity by explaining that you are not denying the request but are seeking clarifications–and possibly even want to explore if other options would meet their needs in the case of an unreasonable request. The everything option is to approve the request for reasonable accommodation for the service or support animal.
When you do that and you move the assistance animal in, please exercise great caution not to have the requester sign any documentation with the word pet in it. Please do not charge a pet fee, a pet deposit, or pet rent. In fact, do not think of these animals as pets at all. You and your teams would do well to think of them as if they are a walker for a person with a mobility disability. Would you charge Ms. Jones to bring her walker into her apartment? Of course not. Would you tell Ms. Jones she cannot bring her walker into the fitness center? Of course not. This line of questioning of our own standard operating procedures should provide clarity and empathy for our disabled applicants, residents, and guests associated with our residents.
In the end, this is a complex web of legislation and regulation. Our site teams, and even our centralized team members, face a true challenge in navigating these requests and often much friction with applicants and residents. The complexity of this responsibility makes asking the question, “Are we the best people to perform this task” a reasonable one. At PetScreening, we process the assistance animal accommodation requests for your teams. If you answered, “No,” it’s time to find a pawtner.
Victoria Cowart, CPM, NAAEI Faculty, and the Director Education & Outreach for PetScreening. For more information, please visit PetScreening.com.