Assessing the Need for Assistance Animals: The Latest Federal Guidance

Making the call on an owner’s request for a reasonable accommodation for an assistance dog under the Fair Housing Act (FHA) has grown increasingly difficult for many community association boards of directors, especially in the absence of up-to-date rules or guidelines from the U.S. Department of Housing and Urban Development (HUD).

But now HUD has filled that gap with new guidance that can help your clients understand the kind of inquiries they can lawfully make when someone’s disability and related need for an animal are “non-observable” — for example, when an owner requests an accommodation for an emotional support animal.

The guidance, which replaces HUD’s 2013 guidance, addresses some of the thorniest issues that have cropped up in the past few years, including the proliferation of online disability certification mills.

“The biggest thing the guidance does is indicate that you can request reliable documentation to document a need when the disability isn’t readily apparent,” says Kevin Hirzel, managing member of Hirzel Law, PLC, a Michigan-based firm that works with community associations.

Information that reasonably supports the existence of disability may include:

• A determination of disability from a federal, state, or local government agency,
• Receipt of governmental disability benefits or services,
• Eligibility for housing assistance or a housing voucher received because of disability, or
• Information confirming disability from a health care professional (for example, a physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse.)

Note, though, that a determination that someone doesn’t qualify as having a disability for purposes of a certain benefit or program doesn’t necessarily mean he or she doesn’t have a disability for purposes of the FHA.

According to the guidance, one reliable form of evidence is a note from a health care professional with personal knowledge of the individual, confirming the disability and need for an assistance animal.

To see what HUD has to say about the weight of online certifications and “unique animals,” read our new article, For the Dogs (and More!): HUD Issues New Guidance on Assistance Animals.

Best regards,
Matt Humphrey
President