Emotional Support Dogs and Service Animals in Housing: HUD’s Guidance Muddies the Water with Bureaucratic Doublespeak
Rights and responsibilities of landlords and tenants with regard to pets, emotional support animals and service animals have been a source of great confusion on the part of both landlords and tenants. January 28, 2020 marked a sea change in housing policy and assistance animals. The U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT released a document which laid out the Department’s interpretation of the law. Unfortunately, that guidance starts out with some self-contradictory language which guarantees that the confusion will continue, albeit perhaps with some incremental improvement.
“Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act” was published under the auspice of the OFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY. It replaces HUD’s prior guidance, something called FHEO-2013–01. Insofar as search engines may return the prior guidance, it should be disregarded by landlords and tenant/animal handlers alike. The new guidance, which this article discusses, is called FHEO-2020–01.
The newer document purported to outline the obligations of housing providers under the Fair Housing Act (FHA) with respect to animals that individuals with disabilities may request as reasonable accommodation. While representing an improvement over the previous state of confusion, that new guidance itself is somewhat confused from the starting gate.
The document does mitigate the state of bewilderment by clarification of something which confused many, including Public Housing Authority (PHA) policy makers.
Service dog public access is usually discussed in terms of Title I and Title II with respect to public and private venues and transportation operators. One set of laws applied to government buildings of all types and another set of rules applied to private businesses. Both Titles, however, pertained to service dogs and not to emotional support animals.
Service animals are specifically trained to perform work or tasks to ameliorate a disability. Emotional support animals do not receive such training. They help mitigate syndromes such as anxiety, depression, panic attack, PTSD or insomnia by simply being animal companions. Support animals are simply there to provide emotional support by virtue of the fact that they are animal companions. They qualify just behaving like ordinary pets, without any particular training under their belt. They are, however, not mere “pets”, because they function in the life of their owner to mitigate the effect of a disability condition.
Modern housing rules were always supposed to be blind to whether or not an animal was trained. However, landlords were not subject to prior censorship and were operationally free to write up policies which erroneously indicated that they would accept service animals only and this did in fact occur. This is unsurprising given that many people are confused over the distinctions between service animals, support animals, therapy animals, companion animals and others.
Tenants were in a disadvantaged negotiating position and were thus pressured to go along with such policies and were incentivized to go to great lengths to demonstrate that their animals were trained in disability ameliorating tasks. However, it was never necessary to prove that an animal was task-trained in order to qualify for a waiver of landlord “no-pets” policies. This is simply because housing providers were obligated to accommodate assistance animals whether or not they were trained and whether or not they qualified as “service animals”.
There is another twist to all this.
Landlords and tenants alike were confused when the animal in question was known to be a fully trained service animal — what if the disability condition for which the animal was trained had nothing to do with emotional health? The literature in general use on the topic of assistance animals in housing made no reference to task-trained service animals but rather framed the issue in terms of “emotional support”.
What was left somewhat hazy was whether a trained service animal automatically qualified as an emotional support animal. In theory, someone could have a service animal entitled to go anywhere in town — except home.
It seems to be intuitively obvious that if an animal is task trained to ameliorate a disability, that animal would also provide some level of emotional support. Nevertheless, it was not impossible to argue that someone whose animal provided work or tasks in the form of physical assistance provided that function alone and did not operate to provide emotional support.
It could be argued for instance that service dog work such as medication cues, stabilization of gait or recovery after falls were not pertinent to emotional support, or that someone who needed such physical assistance was so strong emotionally that despite their disability they had no need of an animal to provide an emotional support function.
Hence, the 2020 guidance is a necessary clarification in that it indicates an accommodation mandate to housing providers when presented with a service animal.
Many times things that seem obvious still need to be demonstrated or proven. This is true in law and science, and there are occasions when our assumptions turn out to be trickier to sustain than originally anticipated.
There was a certain leap of faith required in which a service animal, who may be trained in any number of functions, would also be presumptively qualified as a “support” animal. Indeed, HUD’s guidance now creates a category of “support animal”, dropping the word “emotional”. Earlier legal boilerplate about “emotional support animals” being permitted in housing, as of right, is now replaced by the category “support animal”.
The new (as of 2020) HUD guidance is arguably a noble attempt to clear up that area confusion and to some degree may succeed. However, it introduces a whole new area of confusion by intermingling the definition of service animal and support animal. The new category of “support animal” is not a sister set of “service animal”, which was once the case and still is in most popular usage. They seem to now have created the category of “support animal” which includes BOTH service animals and also “emotional support animals”. More accurately, the nature of an untrained support animal need not even necessarily be in the realm of emotion, per se- an untrained animal could hypothetically ameliorate the effect of a disability in some dimension other than mere emotion. The immediately apparent dimension would be what many dog owners with disabilities refer to as “grounding” — arguably more a cognitive rather than emotive support.
The point is that the animal is beneficial to the tenant whether or not it is trained and whether or not the benefit is specifically “emotional”. Nevertheless, the array of vests and collars available on the market still refer to either “service animal” or “emotional support animal”. Few people have parsed the new FHA guidance line by line, and until this article, there does not appear to be an exegesis of this shift in Federal policy thinking.
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HUD could not have made their new definitions more confusing if they tried; they are ambiguous because they are internally inconsistent and fail to clearly demarcate the distinction between the two classes of animal.
The 2020 guidance distinguishes two types of assistance animals: (1) service animals, and (2) other “trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities…”
This is already a formula for confusion right off the bat. Service animals by definition are “trained…[to] work, perform task…for individuals…” HUD here creates the second category which according to their own terms lumps untrained emotional support animals in with “trained…work” animals, but the latter clearly qualify as service animals. The obvious approach would have been to simply work with the categories of service animal and the category of emotional support animal.
Instead, their definition of the second category overlaps with the first category, lumping untrained support animals and trained animals, which are thus by definitions service animals. The second category then is not a second, separate category at all, it is a supererogatory category encompassing the first one and then some more.
HUD creates a simplified term “support animals” by which they appear to mean “emotional support animals”. The language used to make the definitions is profoundly muddled.
The bottom line is this: if you are seeking to have your dog (or other animal) accommodated by your housing provider, there is no need to demonstrate that your animal is a “service dog” or that it is specially trained. And most people know that various badges and vests have no legal significance and do not make a dog into either a service animal nor an emotional support animal. What does qualify an animal as a qualified assistance animal has more to do with the circumstances of the owner-handler than any characteristic of the animal.
Contrary to what some may believe, the animal does not need to be specially trained. The animal does not need to meet the specifications of a service animal, and may, for instance, be a cat even though cats are no longer allowed as service animals. The language in FHEO-2020–01 purporting to define a “support animal” would make more sense if it simply deleted the following phrase “trained or untrained animals that do work, perform tasks, provide assistance and/or” and left a clear unambiguous definition. That definition, which would be consistent and make perfect sense, should read simply “animals that… provide therapeutic emotional support for individuals with disabilities”.
Author is a service dog owner who has succeeded in multiple litigations upholding ADA rights. No legal advice just free speech generalized explainers. Free to followers!