Accommodations & Assistance Animals Ben Watson, NEOC ben Accommodations & Assistance Animals Ben Watson, NEOC ben.watson@nebraska.gov

Review… Please bear with me, as the next several slides repeat/rehash what we discussed earlier.

What is a Reasonable Accommodation? Request for changes in the rules, policies, practices, or services necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling.

Examples of ways an accommodation might be requested… 1. A tenant/buyer states an accommodation is needed. 2. A tenant/buyer submits a prescriptive note from a reliable third party which demonstrates there is a connection between the disability and the request for the accommodation. Someone acting on behalf of the person with a disability makes the request. A tenant vaguely mentions something about needing something because of a medical issue. A tenant states he or she will need a 2-bedroom unit for the person who will live with them to provide medical assistance A tenant submits a medical prescription for a service/companion animal and demonstrates there is a connection between the disability and the request for the accommodation Someone acting on behalf of the person with a disability makes the request. The Act does not require that the request for accommodation be made in any particular manner or at any particular time. The person making the request does not have to use the magic words: “Disability”, or “Reasonable” or Accommodation”, and does not need to mention “ADA” or the Fair housing Act. However, the request has to be made unambiguous, so that it is clear

What is Reasonable? Does not pose a *financial and administrative hardship (undue burden) Does not create a *safety/health threat or threat to property. Must be a direct threat. Is *not disruptive to the peaceful enjoyment of other tenants Does not impose a fundamental alteration in the nature of the housing provider’s program.

UNDUE BURDEN Excessively costly, extensive, substantial, or disruptive, financially and administratively. Takes into account the cost of the accommodation in relation to the total resources of the landlord.

“Direct Threat” What is it? The accommodation poses a health or safety issue to the housing provider, tenants, or others , and/or poses a threat of physical damage to the property of those people, and such threat cannot be removed by reasonable accommodation Use these factors to decide: Duration of the risk Nature and severity of the potential harm Likelihood that the potential harm will occur Imminence of the potential harm

Disrupting Peaceful Enjoyment If an accommodation would significantly disrupt the peaceful enjoyment of other tenants, it might not be reasonable. “I am required to play extremely loud music at night to relieve stress related to my anxiety.”

Fundamental Alteration Does the accommodation being requested fit within the scope of the services you provide as a housing provider?

An accommodation request has been made… now what? Your main obligation is to enter into the interactive process. No matter what else happens, remember this. “A failure to reach an agreement [through the interactive process] is in effect a decision by the provider to not grant the requested accommodation.” –HUD Guidance on Ras If you stop the interactive process, you are considered to be making a final decision. “A provider has an obligation to provide prompt responses . . . delay in responding . . . may be deemed to be a failure to provide a reasonable accommodation.” –HUD Guidance on RAs

An accommodation request has been made… now what? What can a tenant be asked to verify? 1. Does the person have a disability? 2. Is the accommodation necessary to alleviate a symptoms of that disability? Can’t ask each individual question if that individual question is apparent or obvious.

Assistance Animals This presentation will help to clarify the rights of persons with disabilities to have a service/ companion animals, and will help to clarify the responsibilities of housing providers. The Fair Housing Act prohibits housing providers from treating applicants for housing, or residents unfairly, because they are in the protected class of disability. Refusal or unwarranted delay in allowing a person with a disability a reasonable accommodation, is a violation of federal and state housing laws, unless the housing provider falls into one of the exceptions.

What is a service animal? Any animal individually trained to perform tasks for the benefit of a person with a disability No national standard regarding the training or performance of a service animal, including guide dogs This is an ADA term.

What is a companion animal? Also referred to as assistive, emotional support or therapeutic animals Typically for persons with mental or emotional disabilities Assist with depression or anxiety Provide emotional support There is no national standard regarding the training or performance of a companion animal. Companion animals are not included in the ADA, and the words companion animal do not appear in the FHA.

What is an assistance animal? Assistance animal is a “blanket term” that covers both Service and Companion animals in housing and under the Fair Housing Act. In a person’s housing there is no distinction between a service dog and a companion animal.

What about a pet deposit or fee? Fines and Charges? NO deposits or fees for accommodations, but… Tenant is responsible for the actions of the animal Tenant can be held accountable for any damage to property Tenant must comply with established policies regarding maintenance and cleaning, or leash policies and noise guidelines

Where must one allow the animal on the property? The service/companion animal must be allowed to accompany the tenant at all times, and everywhere on the property except where animals are specifically prohibited to maintain safe operation

Some Suggestions for Accommodations The landlord cannot charge a tenant for additional paperwork associated with making an accommodation If a person needs help in completing application material, it should be provided If a person fails to fill out your paperwork, you cannot deny the accommodation request solely on that factor.

Breed, size, and weight limitations do not apply to assistance animals. Determinations that an animal poses a direct threat of harm to others must be made on an individual assessment based on objective evidence about the specific animal in question. Not mere speculation or worry. Not based on actual damage other similar animals have caused.

Recap: What a Landlord Can Do As soon as a reasonable person would have recognized an accommodation request is being made, enter into an interactive process. You can ask for a prescriptive note to determine if the person is disabled, and the person has a disability related need for the accommodation. Only can ask each of these things if not obvious. You can reject a requested accommodation if it is Not Reasonable. Have to be able to justify and show evidence it isn’t reasonable under one of the four standards.

Recap: What a Landlord Can Do (2) If you reject an accommodation, you must work with the tenant to come up with alternatives that are reasonable. After granting, can continue to monitor the tenant to make sure that the accommodation doesn’t become unreasonable as time goes on. You can charge the tenant for any damage done, even if connected to their disability accommodation.

Scenarios

Your apartment complex has a policy of providing a parking lot with unassigned parking spaces for residents. A resident with a mobility impairment, who uses a cane and who you know is limited in her ability to walk, requests an assigned accessible parking space close to the entrance to her unit as a reasonable accommodation. There are available parking spaces near the entrance to her unit that are handicap accessible, but those spaces are available to all residents on a first come, first served basis. Scenario One Scenarios adapted from The Community Partnership For The Prevention of Homelessness

Can we ask for a prescriptive note? If so, what for? Is this a reasonable accommodation? If not, what makes it unreasonable? Any other thoughts? Scenario One Questions Scenarios adapted from The Community Partnership For The Prevention of Homelessness

Your apartment complex has a "no pets" policy Your apartment complex has a "no pets" policy. A tenant who is deaf requests that the provider allow him to keep a dog in his unit as a reasonable accommodation. The tenant explains that the dog is an assistance animal that will alert him to several sounds, including knocks at the door, sounding of the smoke detector, and the telephone ringing. Scenario Two Scenarios adapted from The Community Partnership For The Prevention of Homelessness

Can we ask for a prescriptive note? If so, what for? Is this a reasonable accommodation? If not, what makes it unreasonable? The tenant offers to pay a $20/mo fee for the dog. Should you accept? Scenario Two Questions Scenarios adapted from The Community Partnership For The Prevention of Homelessness

The tenant from the previous example (deaf tenant with dog) is about to move-out. Upon inspection of his unit, you find that there are bare areas on the carpet, which is only a year old at this point, where it appears the dog has caused some damage. In addition, one of the bedroom doors has been chewed and will need replaced. Scenario Three

Can the tenant be charged for the damaged carpet and door Can the tenant be charged for the damaged carpet and door? Why or why not? Can you take money out of the tenant’s security deposit to pay for the damages? Change of scenario: The carpet is five years old as the tenant was a long-term tenant. Can or should you charge for the damaged carpet? Change of scenario: Your apartments are dated, so as soon as any tenant moves out you are renovating the units, which includes new carpet and new interior doors. Can you charge for the damaged carpet and door? Scenario Three Questions

A tenant tells you he is physically unable to open the dumpster placed in the parking lot for trash collection because of a disability. The tenant requests that the you send a maintenance staff person to his apartment on a daily basis to collect his trash and take it to the dumpster. You have a small operation, so you don’t even have maintenance staff on-site every day. Currently your maintenance person works three days a week. Scenario Four Scenarios adapted from The Community Partnership For The Prevention of Homelessness

Can we ask for a prescriptive note? If so, what for? Is this a reasonable accommodation? If not, what makes it unreasonable? What is your obligation if you deny this accommodation request? What are some alternatives if this is unreasonable? Scenario Four Questions Scenarios adapted from The Community Partnership For The Prevention of Homelessness

You have an apartment complex where pets are allowed with a fee and deposit. A month ago you granted an accommodation to a disabled tenant to have an assistance dog while waiving the usual fees and deposit. Since then, you have received complaints from several neighbor tenants that the disabled tenant’s assistance dog is causing problems. A few neighbors complain that the disabled tenant is not cleaning up after the dog, and is leaving animal waste all over the yard. One neighbor tenant complained that the disabled tenant’s dog growled and lunged at her five-year-old child as they were walking past. The neighbor immediately next to the disabled tenant complains that the assistance dog barks loudly at night. Scenario Five Scenarios adapted from The Community Partnership For The Prevention of Homelessness

What actions would you take in this situation? Scenario Five Questions Scenarios adapted from The Community Partnership For The Prevention of Homelessness

Questions? Ben Watson ben.watson@nebraska.gov (402)-595-2099