Beginning on June 27, 2019, changes to Kentucky’s statute governing assistance animals (also known as emotional support animals or ESAs) will go into effect. House Bill 411 amends KRS 383.085 (which first became effective on July 14, 2018) to mirror federal law and agency guidance, outlining landlord’s responsibilities to a disabled person that requests a reasonable accommodation for an assistance animal.
If a tenant makes a request for an assistance animal, a landlord is allowed ask the tenant to provide “reliable documentation” that indicates the tenant has a disability and the assistance animal somehow relieves a symptom of that disability. “Reliable documentation” is defined to include documentation from any person with whom the person making the request has or has had a “therapeutic relationship.”
One of the changes to KRS 383.085 changes the definition of “therapeutic relationship.” Now, a tenant must have “reliable documentation” from either: (1) a licensed clinical social worker who holds a license under KRS 335.100; (2) a professional counselor who holds a license under KRS 335.525; (3) an APRN who holds a license under KRS 314.042; (4) a psychologist who holds a license under KRS 319.050 or KRS 319.053; and (5) a physician who has a license under KRS 311.571. The provider must also have an active practice within the Commonwealth of Kentucky.
The reason behind the requirement to have an active practice within the Commonwealth is due to the fact that many tenants would go online and pay a fee for a medical provider to provide them with documentation showing the need for the assistance animal. These providers would be located in states in which the tenant making the reasonable accommodation request had no connection to. KRS 383.085(b) specifically excludes these types of providers from the definition of “therapeutic relationship.” However, landlords must still honor the request if the tenant moves from another state and has “reliable documentation” from a health care provider that is licensed in that particular state and the tenant has an ongoing “therapeutic relationship” with that provider.
When receiving a reasonable accommodation request from a tenant, a landlord cannot ask what the disability is and cannot ask the tenant to show them how the assistance animal relieves the disability. However, the landlord can independently verify the authenticity of the “reliable documentation.” Although, health care providers may be reluctant to provide that information due to fears of violating HIPPA. Despite all of the above, if the tenant’s disability is readily apparent (i.e., deaf or blind), the landlord cannot ask for “reliable documentation,” but should instead grant the reasonable accommodation request. If the request is granted for an assistance animal, tenants are still financially responsible for any damage the animal may cause and must still follow the rules in the lease agreement regarding pets (i.e. keeping pet on lease, cleaning up after pet, etc.).
There is no question that tenants, whom have no disability, are making reasonable accommodation requests for assistance animals to avoid paying pet fees or getting around pet restrictions (neither of which apply to assistance animals). If a tenant makes a reasonable accommodation request and is not actually disabled, KRS 383.085 states that the person is subject to criminal charges. The statute states it is a violation and the tenant is subject to a $1,000 fine. It will be interesting to see how this is enforced by law enforcement moving forward, but it does give landlord’s some power in fighting the abuse of these request.
KRS 383.085 is a step in the right direction to provide guidance to landlords on how to handle reasonable accommodation requests for assistance animals. Landlords should still seek advice from an attorney who regularly practices in landlord/tenant law to make sure they are following KRS 383.085 properly and are knowledgeable on the new changes. Landlords do not want a housing discrimination complaint filed against them as the costs of litigation are continuing to rise. Landlords and property management companies should also adopt a policy on how to handle reasonable accommodation requests and should attend annual training on Fair Housing.