Verification of Disability for Reasonable Accommodation
By Kimberly Rau, MassLandlords writer
Under federal and Massachusetts law, landlords are required to make reasonable accommodations for people living with disabilities. For instance, a hearing-impaired person may need a visual doorbell. Or, someone afflicted with post-traumatic stress disorder may require an emotional support animal.
But just because a tenant asks for disability accommodation doesn’t mean you must allow it. Before granting a reasonable accommodation, you may, in some circumstances, ask for a verification of disability.
Very important: In the case of a bona fide, verified disability, you are required to accommodate the renter. It doesn’t matter whether you want to install the visual doorbell, or whether you allow pets in your rental. There would have to be an unusually serious reason why you cannot make the accommodation, otherwise you may be found to be unlawfully discriminating. If you need a refresher, we have an article on federal protected classes.
We have put together a form for MassLandlords members, linked at the bottom of this article. But before you start using it, we encourage you to read the rest of the article. Regardless of whether you can access the form, it’s important for you understand when you can ask for disability verification and when you cannot. You also need to understand the difference between service animals and assistance animals (including emotional support animals).
Service Animals vs. Assistance Animals
Service animals are protected by the Americans with Disabilities Act (ADA) and are typically only dogs. Prior to 2011, the ADA also allowed miniature horses as service animals, but these are no longer permitted under Titles II and III of the ADA. All other animals that provide some kind of service to aid someone with a disability are called “assistance animals,” and are not protected by the ADA. Assistance animals, (including emotional support animals) are, however, protected by the Fair Housing Act (FHA). These animals do not fall under the category of service animal. It may be an animal that provides support but is not explicitly trained to do any sort of task. Or it could be an animal that is just as trained as a service dog to perform a specific task, but since the animal is not a dog, it cannot technically be considered a “service animal.”
Service animals can be trained to perform hundreds of tasks, including:
- Opening doors
- Preventing falls
- Answering the doorbell
- Providing deep pressure therapy for PTSD
- Helping to manage autism
- Fetching medications
- Alerting to dangerously low or high blood sugar
- And much more!
When to Ask for Verification of a Disability
We usually tell landlords, the more documentation you have, the better off you are, but there are times when more paperwork isn’t a good thing. This is especially important to remember when asking someone to verify their disability before granting a reasonable accommodation.
The Department of Housing and Urban Development has issued a lengthy document about when to request verification of a disability. This PDF specifically addresses service and assistance animals.
It’s important to note that you can only ask someone to fill out a verification of disability form (or provide their own documentation) in the event of a non-obvious disability. In other words, asking a man who is clearly visually impaired for verification of his disability in order to accommodate the service dog he has with him would open you to potential discrimination claims. The same goes for a woman in a wheelchair being pulled by a dog, or someone with an obvious intellectual impairment.
But what if someone without an obvious disability requests a reasonable accommodation? Then you can ask for verification...typically.
Service dogs should never be subject to a verification of disability, per the HUD document. How do you tell the difference?
Service animal, or assistance animal?
HUD has a two-path approach to determine whether you should request verification before granting the accommodation:
Question 1: Is the animal a dog?
If yes, the dog may be a service animal, and you should proceed to Question 2.
If no, then the animal is not a service animal, but may still be an assistance animal. We’ll tell you what to do about this in a moment.
Question 2: Is it readily apparent that the dog is trained to do work or perform tasks for the benefit of an individual with a disability?
If yes, then further questions are too intrusive. The dog is a service animal.
If no, proceed to Questions 3a and 3b
HUD advises that you keep further inquiries about service animals to these questions.
Question 3a: Is the animal required because of a disability?
Question 3b: What work or task has the animal been trained to perform?
You may not ask for a demonstration of the work or task, or documentation of the service animal. You may not ask about the nature or extent of the disability.
If the person answers yes to 3a and provides an answer to 3b, then it is a service animal and you should not ask for further documentation.
“If the individual identifies at least one action the dog is trained to take which is helpful to the disability other than emotional support, the dog should be considered a service animal and permitted in housing, including public and common use areas. Housing providers should not make further inquiries,” the document states. If the person answers no to either question, then it is not a service animal, but may be an assistance animal. Which brings us to...
If the animal is not a service animal, but an assistance animal
If the animal is not a dog, or has been identified as a service animal through subsequent questions (for instance, a tenant with an emotional support dog has a disability, but the dog is not trained to do something specific), then requesting verification of disability is appropriate before granting the accommodation. Remember that an accommodation may be requested at any time, even if the animal is already living in the residence.
A man with an obvious visual impairment has a dog in a special harness.
You have identified this animal as a dog (so it could be a service animal, per Question 1), and the person has an identifiable disability and the dog is clearly there to assist (Question 2), so further questions are intrusive and not necessary. This is a service dog.
A woman without an obvious disability has a dog, but the dog is not immediately obvious as a service animal.
Having identified the animal as a dog (Question 1), but it is not obviously a service dog (that’s a “no” on Question 2), so you may proceed to Question 3.
If she says the dog is required due to disability, you may ask her what the dog is trained to do.
Option A: she says the dog can tell when her blood sugar is low and alert her before she has a severe issue. You must accept this. You cannot wait around to see if the dog will do this or not.
Option B: she says the dog provides emotional support, or cannot identify a specific task. This is not a service animal. This may be an assistance animal. You may ask for verification of disability.
A man says a cat he has is a service animal.
You know it’s not a dog, so it’s not a service animal. You can ask him if it is an assistance animal, and ask for verification of his need for the animal.
A person who has obvious, severe disabilities has a capuchin monkey as an assistance animal.
In this case, as it is not a dog, it is not a service animal, but may still be a valid assistance animal. While assistance animals are typically limited to more “normal” domestic animals, someone with severe disabilities may need the assistance of an animal that has the ability to open doorknobs or bottles.
You want to be careful here. Technically, yes, you can ask for verification of disability to get a doctor to note that such an exotic animal is necessary, but weigh out the benefits of putting someone through undue burden if you can reasonably accommodate the unusual assistance animal without difficulty.
Verification of Disability from an LCSW is Valid
You may receive a verification signed by a “licensed certified social worker” or “LCSW”. This is not a medical degree, but under Massachusetts law, a disability does not have to be verified by a medical doctor. According to MGL, Chapter 151b Section 4, landlords are required to accept verification of disability from “an appropriate health care or rehabilitation professional.” This includes:
- medical doctors;
- psychiatrists and psychologists;
- nurse practitioners;
- physicians’ assistants;
- psychiatric clinical nurse specialists;
- physical, occupational and speech therapists;
- vocational rehabilitation specialists;
- midwives and lactation consultants; and
- “another licensed mental health professional authorized to perform specified mental health services.”
That last item on the list can certainly be interpreted to include licensed certified social workers. However, remember that not all social workers are clinical. If you have doubts, you can ask for some proof of a health care job, such as a clinical title.
Avoiding Fraudulent Paperwork
Of course, emotional support animals play a key role in the lives of many who legitimately need them. But unfortunately, some renters use the assistance animal law as a loophole to avoid prohibitions on pets.
There is a best practice beyond the form. After receiving the form, review the provider information. In HUD’s experience, such documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal. By contrast, many legitimate, licensed health care professionals deliver services remotely, including over the internet. One reliable form of documentation is a note from a person’s healthcare professional that confirms a person’s disability and/or need for an animal when the provider has personal knowledge of the individual.
Q: Do landlord allergies make a request unreasonable?
Probably not. The renter requesting accommodation will have documentation from a healthcare professional (e.g., our form) indicating that their disability impairs a major life function. Unless you are able to produce equivalently powerful documentation showing that your allergies impair a major life function (e.g., cause anaphylaxis), and that there is no way you can afford to have someone else enter the unit for repairs and inspections in your stead, then it will be assumed that your allergies are of the nuisance variety (common) or that you can work around it.
Q: What if I ignore the rules and just say no?
The first offense fine is $10,000 plus attorneys' fees. Third offense for any discrimination claim is $50,000 plus attorneys' fees. Plus, you may be denying housing to someone who legitimately needs your accommodation.
Verification of Disability Conclusion
Remember that you should not know what the disability is. Many situations can contribute to a difficulty or impairment, including drug addiction and resultant recovery processes (though the ADA and FHA do not consider people currently using illegal drugs to be protected in the same way). If a provider discloses information that violates health information privacy, call or write to the provider and tell them that they provided you too much information.
In general, public health and safety will trump all disability claims. You do not have to grant a request that is very unreasonable. When in doubt, grant the request and/or contact an attorney.
The Verification of Disability Form
This form is provided to members as a way to streamline the process of verifying a disability. Your tenant (or the person making the request on their behalf) fills out the front of the form; the person verifying the disability fills out the back of it, and it gets returned to you.
However, you may not require your tenant use this form. You cannot require a specific form, or a notarized form, and you may not ask the healthcare professional to sign something under penalty of perjury. You can never ask for information about someone’s diagnosis or details about someone’s physical or mental impairments. This form we provide is designed to streamline the process for you, but you cannot mandate its use.
- To comply with HUD guidelines issued January 20, 2020 in FHEO-2020-01:
- Removed language requiring pains and penalties of perjury,
- Clarified that any other collection of documentation may be used besides this form if it meets the requirements, and
- Clarified page 2 question 3 by converting it to a Yes/No.
- To comply with HUD guidelines issued January 20, 2020 in FHEO-2020-01:
- Internal revision
- Added “Please return this form to the landlord” in the footer. This will help us encourage honest answers by bypassing renters, who may exert influence or corrections to the form. We added a FAX number line, since many medical offices still rely on fax.
- Added “Signed under the pains and penalties of perjury” below the signature. This will discourage unqualified professionals from signing for a renter with whom they are not familiar.
- Clarified wording to the healthcare professional on what this form is all about. This will encourage responses for legitimate requests.
- Adjusted formatting for readability.
- Originally published version.
- Internal review only.