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Assistance and Service Animals: What Tenants Need to Know

Thursday, September 19, 2019

For many District Residents, aid from an Assistance Animal (“AA”) is essential to tackling daily life activities. An AA is not a pet. Rather, an AA provides real time assistance to a person living with a physical or mental impairment that interferes with activities of daily living. The impairment could be anxiety, attention-deficit disorder, cancer, depression, diabetes, epilepsy, post-traumatic stress disorder, or any one of countless others. While the terms AA and “Service Animal” (“SA”) are similar, they serve different purposes and different legal requirements apply.[1]

[1] Additionally, the term “Emotional Support Animal” (“ESA”) is commonly used, however, it is not a legal term, and indeed some advocates believe it is problematic for a variety of reasons. They include the term “ESA” (a) is only one kind of AA; (b) may perpetuate the stigma associated with mental health; and (c) could mislead tenants into divulging more private information about their impairment than the law requires.

The Americans with Disabilities Act (“ADA”) governs the use of a SA, while the Fair Housing Act (“FHA”) and Section 504 of the Rehabilitation Act of 1973 govern the use of an AA. A SA must be “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.” (https://www.ada.gov/regs2010/service_animal_qa.html)

By contrast, there is no requirement that an AA be trained or certified to perform tasks. Rather, an AA is only required to “provide assistance or emotional support that alleviates one or more identified effects of a person’s disability.” While a SA must be a dog or miniature horse, any animal can be an AA. (https://archives.hud.gov/news/2013/servanimals_ntcfheo2013-01.pdf).

The FHA covers most types of housing for rent and sale, with a few exceptions (for exceptions https://www.hud.gov/sites/documents/FHEO_BOOKLET_ENG.PDF), including: public housing agencies and federally funding housing; sales or leasing offices; homeowners and condominium associations; homes associated with a university or other place of education; and homeless and domestic violence shelters. (https://www.hud.gov/program_offices/fair_housing_equal_opp/reasonable_accommodations_and_modifications).

Persons with disabilities may contact their housing provider and submit a reasonable accommodation request to live with their AA at no-pets properties, for a pet deposit fee waiver, or request waiver of other rules, such as breed and weight restrictions, that exclude or limit the AA’s function. The reasonable accommodation request may be made orally, in writing, or through a third party.

Upon receipt, the housing provider is required to consider whether the individual is (1) living with a disability, and (2) has a related need for the AA. If both prongs are met, the housing provider must grant the request unless the animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced, or would unavoidably cause substantial damage to the property of others. The housing provider must respond promptly, and must provide a denial of a reasonable accommodation request in writing.

https://www.hud.gov/program_offices/fair_housing_equal_opp/assistance_animals

In making the determination, the housing provider may request reliable documentation that supports the claim of disability and related need for the AA, like a doctor’s letter, but may not require a tenant or applicant to reveal the diagnosis, provide access to medical records, or medical providers. Nor may the housing provider require detailed or extensive information or documentation of a person’s physical or mental impairments. Also, the housing provider may not ask for documentation of a disability that is readily apparent or already known to the provider.

The process for getting the landlord’s approval to live with a SA is similar to the process for an AA.

Tenants are responsible for the care of the animal and adherence to local public health regulations, including licensing and vaccinations.

Through the DC Human Right Act of 1977 (“DC HRA”), the District of Columbia provides tenants living with disabilities protections similar to those in the FHA. (https://ohr.dc.gov/publication/dc-human-rights-act-1977-english)

A tenant who believes they have been unlawfully denied a reasonable accommodation request for an AA or SA or have otherwise experienced discrimination in housing have several options:

  • They can file a lawsuit directly against their housing provider, or …
  • They can file a complaint with:
    • For FHA violations: The Department of Housing and Urban Development Office of Fair Housing and Equal Opportunity at 1-800-927-9275 or online at https://www.hud.gov/program_offices/fair_housing_equal_opp/online-complaint;
    • For DC HRA violations: The D.C. Office of Human Rights at 202-727-4559 or online at https://ohr.dc.gov/service/file-complaint

The D.C. Office of Disability Rights (ODR) can assist tenants with understanding their rights under the applicable laws. ODR can be contacted at (202) 724-5055 or online at https://odr.dc.gov/service/information-assistance-and-complaints.

OTA wishes to thank ODR and attorney Abby Volin, an animal accommodations law specialist, for their contributions to this article.

 

[1] Additionally, the term “Emotional Support Animal” (“ESA”) is commonly used, however, it is not a legal term, and indeed some advocates believe it is problematic for a variety of reasons. They include the term “ESA” (a) is only one kind of AA; (b) may perpetuate the stigma associated with mental health; and (c) could mislead tenants into divulging more private information about their impairment than the law requires.