Ahead of the ADA Access Curve: Part 8

This article originally published in The Alert, December 2011, electronic newsletter of the Association on Higher Education and Disabilities (AHEAD) Copyright © 2004-2011 AHEAD. Reprinted with permission.

A Case of a Different Animal:
DOJ’s lawsuit against the University of Nebraska about emotional assistance animals

On November 23, 2011, the U.S. Department of Justice (DOJ) filed suit against the University of Nebraska at Kearney (UNK) challenging its alleged refusal to allow students with emotional disabilities to live in campus housing with an emotional assistance animal. The Fair Housing Amendments Act of 1988 (FHAct or the Act) protects the right of people with disabilities to keep assistance animals as a “reasonable accommodation” in housing, even when a landlord’s policy explicitly prohibits pets. For the first time, the federal government has sued a university to enforce these provisions as to emotional support animals for people with emotional or psychiatric disabilities.

DOJ’s complaint in this case (PDF) tells us a great deal about the ways in which HUD and DOJ apply the Fair Housing Act. Its resolution is likely to answer some of the questions campus administrators face regularly as they try to untangle the confusing maze of federal laws that may apply to decisions to allow animals on campus – in housing and elsewhere. But it is likely to leave many questions unanswered, including how to apply section 504 of the Rehabilitation Act to similar issues both in housing and elsewhere on campus.

THE KEY FACTS

In October 2011 HUD filed an administrative charge against UNK, several of its administrators, and the Nebraska Board of Regents under the Fair Housing Act. The University elected to have the charges resolved in court. As the federal agency authorized to litigate FHAct cases, DOJ filed suit accordingly.

The facts are in dispute, as is the application of the Fair Housing Act.

The government alleges that Brittany Hamilton had enrolled at UNK for the Fall 2010 semester and made three requests to have an emotional assistance animal (a four-pound miniature pinscher) live with her in university-owned apartment-style housing. She signed a release for her medical records and presented two letters from a nurse who had treated her for depression and anxiety and had prescribed a therapy dog. The dog had then been trained to respond to the student’s anxiety attacks by placing his front paws on her shoulders, which helps her concentrate and distracts her from her anxiety. Several weeks after making her request, the student had not received permission to have her support animal with her, and she withdrew from classes and left campus.

The complaint alleges that the University makes reasonable accommodations to allow animals in university housing only in the case of dogs that are “trained and certified as service animals” under the Americans with Disabilities Act (ADA), and that not allowing other types of animals for people with emotional and psychiatric disabilities violates the Fair Housing Act. DOJ also challenges what it calls the “numerous onerous documentation requirements” imposed on students with “psychological impairments” (and not on those with physical disabilities) who request accommodations and services. The information that UNK required included a formal diagnosis, treatment plan with medications, clinical summary of limitations, and the rationale for each requested accommodation.

The University has made few public statements about the case, but it appears to challenge the facts as well as Fair Housing Act coverage of student housing. It apparently claims that it is subject only to the service animal requirements of the ADA and defends the nature of its inquiries about the individual’s disability. The University says it would have allowed the animal if it had had ADA “certification.” One of the university’s purported concerns, as reflected in an email quoted by DOJ in its complaint, is that allowing animals other than dogs as required by the ADA would mean that anyone whose doctor says they are anxious could have a dog, cat, snake, or monkey on campus.

WHAT WE KNOW FROM THIS CASE ALREADY

The government’s case advances three principles:

1. The Fair Housing Act applies to dormitories and residence halls.

   Apparently one of the defenses of the University will be that its student housing is not covered by the FHAct because of its transient nature. While case law is not definitive, it is clear from HUD’s regulations under the Fair Housing Act and other enforcement actions that the government considers the Act to apply to dormitories and residence halls as “dwellings” under the Act.

2. The Fair Housing Act requires reasonable accommodations such as modifications of policy to allow assistance animals, including emotional support animals, in covered housing.

   HUD has explicitly determined that the FHAct (as well as section 504 of the Rehabilitation Act) covers the use of support and therapy animals. The Department has filed several charges to enforce this point and issued a regulation on the issue in the context of a pet ownership rule for certain federally-assisted housing. Neither the text of the Act nor HUD regulations define the types of animals (e.g., species such as dogs or cats) that qualify as a “reasonable accommodation” or that are “assistance animals.” However, the pet ownership rule refers to those animals that “provid[e] emotional support that alleviates one or more identified symptoms or effects” of a person’s emotional or mental disability.

   After DOJ issued its 2010 regulation limiting the definition of “service animal” under the Americans with Disabilities Act to dogs that perform specific tasks (see text box above) , HUD issued a February 2011 memorandum explaining that DOJ’s regulations do not affect the provisions and applicability of the FHAct or Section 504. (DOJ had made a similar statement when it issued its regulation.) HUD stated that disabled individuals may request a reasonable accommodation for assistance animals in addition to dogs, including emotional support animals, under the FHAct or Section 504. HUD explained that assistance animals encompass a broader group of animals than does the definition of “service animal” under the ADA, and that “where both laws apply, housing providers must meet the broader FHAct/Section 504 standard in deciding whether to grant reasonable accommodation requests.”

   Generally, a housing provider is required to waive a rule banning pets on a case-by-case basis when (1) an individual with a disability makes a request, (2) the requested animal is necessary for the requestor to have an equal opportunity to use and enjoy the dwelling or participate in a housing program, and (3) there is a nexus between the disability and the service that the animal provides.

3. The Fair Housing Act allows only limited inquiries about a disability and the nexus between a disability and the need for an animal.

   HUD has consistently maintained that in assessing reasonable accommodation requests, only limited inquiries about a person’s disability can be made, and it has charged others, including universities, with asking for more information than is necessary to make this determination. A 2004 Joint Statement of HUD and DOJ, Reasonable Accommodations under the Fair Housing Act, says that, in response to a request from a person whose disability is not obvious, a housing provider may request “reliable disability-related information that (1) is necessary to verify that the person meets the [FHAct’s] definition of disability…, (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation.”

WHAT WE STILL NEED TO KNOW

What inquiries are allowed?

HUD determined in the UNK case that the university illegally inquired into the nature and severity of the student’s disability when it required detailed disability information that exceeded what is needed to review a request for reasonable accommodation in housing. But what is not yet clear – partly because all the prior cases raising this issue have settled before a definitive decision was issued by any court – is what is allowed. It is obvious from the charge and complaint that in this case HUD and DOJ consider the requested “detailed information about the student’s treatment, limitations and medications” and “a specific DSM-IV diagnosis” to go beyond what is necessary.

The complaint also specifies the following requests as too onerous: information about the evaluator’s licensure and/or specialization, list of other providers providing treatment, a clinical summary of which substantial life activities are impaired and the extent to which they impact the academic or living environment, and clear evidence that the symptoms are present in two or more settings.

Other questions

Other questions that arise under the Fair Housing Act and on which there is no definitive guidance include:

What type of professional (or other person) qualifies to provide the information for determining that an accommodation is needed? That question isn’t raised in this case, but it is unclear whether the information needs to come from a medical provider or can come from someone else.

Is there a limit on the species of animal that is to be considered an assistance animal? This year, all of HUD’s charges have related to dogs, but other charges and court cases have considered cats (and possibly other domesticated animals) as assistance animals.

How should a housing provider accommodate individuals with disabilities who may have allergies to a particular type of service or assistance animal? This is an issue more likely to arise in a residence hall setting than in a typical apartment building.

Are landlords required to authorize more than one animal as a reasonable accommodation for one person?
Can a deposit be required? HUD’s position appears to be that a “pet deposit” is inappropriate if an animal is a reasonable accommodation (because it’s not a pet).

Can universities impose conditions as to vaccination and cleanliness requirements, registration with Disability Student Services offices, and leaving an animal alone in a unit while the owner/handler is elsewhere?

How do colleges and universities reconcile the individual’s right to have an emotional support animal in a housing unit with the institution’s right under the ADA to exclude those animals from non-housing facilities such as classrooms, labs, and dining facilities?  For example, is a support animal to be left alone in a dorm for several hours when the animal’s owner is out all day?

WHAT YOU SHOULD DO IN THE MEANTIME

With so many outstanding issues, and coverage by more than one law, what should colleges and universities, do pending further guidance?

First, be aware of all the laws that govern service animals and assistance animals: the ADA, the Fair Housing Act, and section 504. Be sure that you apply the broadest requirements for each situation.

Questions similar to those posed here arise under section 504, which will also apply to both housing and non-housing facilities; and HUD (without respect to housing) and/or the Department of Education (D. Ed.) may have jurisdiction under that statute. HUD generally applies section 504 in a way consistent with the FHAct. Prior to DOJ’s 2010 revisions to the ADA regulations, D.Ed. had issued numerous letters of resolution addressing the types of conditions that can be imposed on assistance animals under section 504 and inquiries as to documentation. Indications are that D.Ed. may now be reluctant to allow those inquiries and conditions, in light of DOJ’s restrictions on them in the 2010 ADA regulations.

Educate faculty and staff about the various requirements under the three statutes.

Evaluate and revise your policies about service animals and assistance animals. Specifically,

• Don’t exclude emotional support animals and other assistance animals from housing. That is, be ready to waive a “no pets” policy as a reasonable accommodation. Prepare guidance for those who make decisions about what animals are allowed.
• Don’t charge a deposit for assistance animals in housing. It is permissible to charge for damage to a unit that results from the presence of an animal, if the damage is beyond reasonable wear and tear.

Respond promptly to requests for reasonable accommodations in housing, including the use of assistance animals. Delay puts you at risk of having HUD or the courts consider failing to act as equivalent to a denial of a request for reasonable accommodations.

And finally, watch this case and watch this space. Court action is likely to present further guidance on your responsibilities. And we’ll update you with developments.