On January 28, 2020 HUD issued its “Guidance on Reasonable Accommodations under the Fair Housing Act Relating to Assistance Animals.”† Over the course of 19 poorly written and poorly organized pages HUD provides one crumb of help for housing providers faced with bogus requests for emotional support animals. The bulk of the “Guidance” is a confused repetition of various earlier HUD positions that defy common sense and the law.
For landlords the most important part of this Guidance is HUD’s acknowledgement that letters purchased on the internet are not reliable evidence of a disability or a disability related need for an emotional support animal. We’ve known this for years, but it’s nice that the bureaucrats have finally recognized it as well. However, this means almost nothing as I’ll discuss below.
The Guidance also solidifies the definitions lawyers like – “Assistant animal” means any animal entitled to FHA protection, “service animal” means exactly what it means for the ADA; a dog that is specially trained, and “support animal” means all the other animals that may be protected, including specially trained animals that aren’t dogs and emotional support animals. In an appendix it provides examples that can be helpful to lay persons in understanding some of these differences and the range of things animals may (or may not) do.
The Guidance sets out in fairly understandable form the rights and responsibilities of landlords and tenants after an accommodation is granted.
Finally, the Guidance provides a good step by step process for reviewing accommodation requests, provided, as I’ll discuss, you don’t take much of what HUD says about the details of these steps too seriously.
Where HUD went wrong.
The essence of where HUD went wrong can be found in this sentence:
Housing providers and the U.S. Department of Housing and Urban Development rely on professionals to provide accurate information to the best of their personal knowledge, consistent with their professional obligations.
HUD appears to believe that with the obvious exception of internet letter sellers, doctors and other medical professionals will provide accurate information based on personal knowledge and consistent with their professional obligations. While this may be true for many medical conditions, it is not true with respect to mental impairments and emotional support animals.
The first problem for mental health professionals treating mental impairments is that the medical professional’s obligation to the patient is directly opposed to the obligation to provide accurate information to a third party like a landlord. The FHA definition of handicap provides real limits on which mental impairments are so serious they rise to the level of being disabling, and the reasonable accommodation process is intended to balance the needs of the disabled against the needs of landlords and other housing providers. However, for a doctor or therapist none of that matters. If their patient will benefit from an emotional support animal and a letter certifying a disability will make that possible, the doctor or therapist will feel a strong professional obligation to provide that letter, whether or not the strict requirements of the law are met.‡ They serve their patient, not the legal requirements for accommodation under the FHA.
An equally important problem for medical professionals is that while diagnosis of a mental impairment is a medical determination, deciding whether it is a handicap; that is, whether it substantially limits one or more major life activities, is not. This is a point worth emphasizing. What constitutes a substantial limitation on a major life activity is a legal question, not a medical question. There is nothing in a medical provider’s training or experience that will qualify them to decide whether a mentally impaired patient is also handicapped. A doctor or therapist who says they have determined their patient is disabled or handicapped as defined in the ADA or FHA has stepped outside their professional competence and their opinion is not, prima facie, reliable evidence of a disability.
I’m not suggesting that most medical professionals are acting in bad faith when they make these diagnoses. HUD has encouraged medical professionals and their patients to treat handicap or disability as a medical condition rather than a legal conclusion about the legal effect of a medical condition.Most medical professionals have no understanding of the legal definition of “handicap” in the FHA; to obtain that understanding they would have to read and synthesize the hundreds of court decisions on this subject. Medical professionals I have talked to usually assume that “mental impairment” and “handicap” are synonymous although courts unanimously agree that the two are not the same and that a diagnosis of a mental impairment is not, by itself, proof of a handicap.
HUD’s mistaken view of the professional competence of medical professionals permeates its approach to reasonable accommodation requests. HUD says, in essence, that any legitimate professional opinion about an emotional support animal must be accepted at face value without question. If a doctor says the tenant is disabled and needs the animal HUD seems to believe the landlord should not ask for more, no matter how implausible the claim might be. In fact, HUD says specifically that: “Housing providers are not entitled to know an individual’s diagnosis” even though evaluating the veracity of a request is impossible without it.
In this HUD has set itself squarely against the entire body of case law and the best academic opinions concerning reasonable accommodations for emotional support animals. Courts agree that anxiety and depression disorders, the mental impairments usually used to justify emotional support animals, are not necessarily disabling – proof that the impairment substantially limits a major life activity is required. Academics agree that medical professionals are both subject to an inherent conflict between their role as an healer and role making a forensic determination of disability and lack the professional training to determine whether their patient suffers from a “substantial limitation in a major life activity.”
This is not the only way HUD disagrees with the courts and Congress. HUD says it finds DOJ materials on “disability” useful in interpreting the Fair Housing Act although the two laws diverged on the definition of disability with the passage of the 2008 ADA Amendments Act and therefore post-2008 interpretations of the ADA are not necessarily helpful in an FHA context.
Finally, and perhaps most distressing in an age of internet fraud, HUD provides no useful way for landlords to distinguish between letters sold on the internet and “legitimate healthcare professionals who deliver services remotely.” Peddlers of fake ESA letters do not usually announce their business in what is an otherwise professional looking letter from someone that has some kind of professional license. HUD does suggest that for emotional support animals the health care professional should state whether they have a professional relationship with the patient, but since the folks in the internet sales business are already engaged in fraud the new HUD guidance just tells them and their customers what lies they need to tell. HUD is either hopelessly naive, which seems very likely, or has simply decided that everyone who feels bad about life is entitled to a puppy and the law be damned.
Where things stand now.
HUD admits that:
“the contents of this document do not have the force and effect of law and are not meant to bind the public in any way.” and
“Failure to adhere to this guidance does not necessarily constitute a violation by housing providers of the FHA or regulations promulgated thereunder.”
It’s a good thing, because this guidance continues HUD’s longstanding assault on both science and common sense when it comes to emotional support animals. This Guidance will certainly help expand the business of selling fraudulent letters on the internet, increase the number of fraudulent ESA requests, increase the volume of HUD complaints arising out of requests that are either intentionally misleading or the result of consumer confusion, and increase the burden on landlords who are forbidden to charge pet fees for destructive and or annoying animals for which there is no legitimate need. Like any good lawyer I’ll be carefully parsing this Guidance to help my landlord clients, but with respect to emotional support animals HUD’s Guidance is just another invitation to fraud.**
† Available at Read the Notice
‡ See, Jeffrey N. Younggren, Cassandra L. Boness, Leisl M. Bryant, and Gerald P. Koocher, “Emotional Support Animal Assessments: Toward a Standard and Comprehensive Model for Mental Health Professionals,” Professional Psychology: Research and Practice. Advance online publication. http://dx.doi.org/10.1037/pro0000260 and the articles cited therein.
** I’ve only hit the high points of HUD’s absurdity. HUD insists that it is alway improper to charge a pet deposit for an assistance animal because it is not a “pet.” Does that mean calling it an “animal deposit” would make it acceptable? The question is whether the deposit makes it harder for any particular tenant to use and enjoy the dwelling, not what the deposit is called. HUD also says that “mental illness” is generally an observable disability when most kinds of mental illness are invisible. Finally, of course, it continues DOJ’s two question approach to service dogs although this approach assumes that people will be honest about the dog they are trying to pass off as a service animal in order to avoid a pet deposit. I’m quite certain there is no empirical evidence that people are generally honest when their goal is to cheat.