A client of mine was recently advised that the client’s FHA forms for reasonable accommodation requests were illegal because “The law specifically prohibits inquiry into the nature or extent of a disability.” This is a common misconception, and one that can easily result in an apartment complex full of supposed therapy animals owned by individuals who are not disabled. It is worth understanding where this misconception came from and what the law really allows.
If by “the law” you mean the Fair Housing Act itself the statement is just wrong. Section 3104(f)(3)(B) defines accommodation discrimination in these words: “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” “Such person” is a person with a handicap. There is nothing here or elsewhere in the FHA that says what a person who is asked to make an accommodation may or may not require as evidence of handicap.
HUD’s regulations do not add anything to the statute. 24 CFR §100.204 simply quotes the statutory language and then gives two examples, neither of which says what can or cannot be asked by a housing provider.
Where does the notion that inquiry into the nature or extent of a disability is forbidden come from? It actually comes from a non-binding “Joint Statement of the Department of Housing and Urban Development and the Department of Justice – Reasonable Accommodations Under the Fair Housing Act” that was published in May of 2004. It is worthwhile taking a careful look at this Statement because it is so often misunderstood. Question 18 asks:
“If a disability is not obvious, what kind of information may a housing provider request from a person with a disability in support of a requested accommodation?”
The answer from HUD and DOJ is:
“A housing provider may not ordinarily inquire as to the nature and severity of an individual’s disability (see Answer 16, above). However, in response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act’s definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities), (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation.
“Ordinarily” and “Answer 16” refer back to a question about a landlord’s questions of a tenant who has not asked for an accommodation. Question 18 concerns a tenant who does ask for an accommodation, and as the introductory sentence makes clear, the ordinary answer does not apply. Instead, housing providers are explicitly permitted to ask for information necessary to verify the existence of a disability in statutory terms, and why the requested accommodation is related to the disability. A tenant unwilling to state what his or her impairment is and describe how it substantially limits a major life activity has not provided what the housing provider is entitled to; that is, verification that the person is disabled.
This question comes up most often when landlords are presented with letters from therapists or doctors that simply assert their patient is disabled and needs an emotional support animal of some kind. Does such a letter provide the “reliable” information to which a housing provider is entitled? To answer that question it is helpful to look at an internal HUD Notice that was circulated to its Regional and Field Office Directors on April 25, 2013. The Notice (FHEO-2013-01) concerns service and assistance animals. It confirms that housing providers can ask for “reliable documentation” of a disability and disability related need. There is a limit: Housing providers should not ask for “access to medical records” or “detailed or extensive information or documentation,” but that is a far cry from no information about the nature of the disability at all. More important, the Notice recognizes that for the kinds of mental impairments that are usually associated with the need for a therapy or emotional support animal documentation should come from “a physician, psychiatrist, social worker or other mental health professional.”
Even more important than this Notice, however, is what the Courts say the FHA requires, for the Courts, not HUD, ultimately decide what the Fair Housing Act means. For emotional support animals the decisions are clear – a simple assertion that the tenant is disabled and needs an emotional support animal is not sufficient even when it comes from a mental health professional. The most recent case comes from the Eastern District of Texas. In Houston v. DTN Operating Co., LLC, 2017 WL 4653246 (E.D. Tex. Oct. 17, 2017) the plaintiff claimed she needed a therapy dog. Her original documentation was a letter from a counselor stating that she needed a “Therapy Dog to help her cope with her Mental Health Condition.” Asked for additional documentation from a medical professional familiar with Plaintiff’s condition the same counselor sent a subsequent letter stating only that Plaintiff has a “mental illness” and, as such, has “certain limitations,” and that the plaintiff met “the definition of a disability under the Americans with Disabilities Act, the Fair Housing Act, and the Rehabilitation Act of 1973.” The Court dismissed the FHA complaint, observing that:
Plaintiff presents no medical facts to support her claim that she is disabled. Plaintiff identifies no activity, no less a “major life activity,” that she claims to be impaired by her “mental illness.”
This is consistent with other decisions rejecting the kind of flimsy evidence of disability sold on the internet or thoughtlessly dispensed by family doctors with no mental health expertise.
HUD’s own statements and decisions from the Courts seem to indicate very clearly that a housing provider does not have to grant an accommodation until it is given reliable information that includes the nature of the impairment (if it is not obvious), how it substantially limits a major life activity, and why there is a disability related need for the requested accommodation; that is, how the accommodation is related to the tenant’s ability to use and enjoy the apartment or other dwelling. For mental impairments like anxiety and depression “reliable” almost certainly means evidence from a mental health professional qualified to diagnose the condition.
Housing providers should be careful, of course, not to push past the boundary of “detailed or extensive” information, but basic information about the “nature and severity” of a non-obvious disability is certainly allowed. Housing providers should also be careful of advice about accommodation requests that comes from housing advocacy groups whose agenda is expanding FHA coverage or from any source that does not recognize that different disabilities and different requested accommodations will require different kinds of evidence and different levels of detail. Every accommodation request deserves careful thought about whether the evidence is reliable and sufficiently demonstrates that the requesting person is both disabled and has a disability related need for the accommodation. When the evidence is not reliable or sufficient, respectful requests for more information will almost never be a problem.