Emotional Support Animals - How "Necessary" Are They?
Every apartment manager is familiar with "Emotional Support Animals," or "ESAs." I would venture to say there are very few multi-family communities in existence today that don t have at least one resident with an ESA. And my experience has shown that when one household is approved for an ESA, more residents in the community tend to follow suit. ESAs fall into the broad category of "assistance" animals, which is the housing equivalent of the Americans with Disability Act s (ADA) "service" animals. While the ADA defines what a service animal is, it is the Fair Housing Act (FHA), and associated guidance, that is the controlling law with regard to assistance animals. FHA protections are much broader than ADA with regard to animals. The FHA (and Section 504 of the Rehabilitation Act of 1973) provide the right to "emotional support animals" for disabled individuals in their homes, provided they can produce a letter from a trained professional that says an animal could help the person cope with mental or emotional issues, including anxiety, depression, and post-traumatic stress syndrome (PTSD). Unlike service animals, ESAs do not have to be trained to perform specific tasks, and they do not have to be dogs, which with one exception, is the case for service animals. The only public place that permits ESAs is an airplane, and the airlines are beginning to draw the line on certain types of animals - a trend that has not yet reached into housing. ESAs are not permitted in restaurants, schools, and movie theatres - at least not yet. Service Animals The ADA states that service dogs (and in some cases miniature horses) which have been "trained to do work or perform tasks" related to a specific disability, must be given broad access to public places where pets are typically not permitted. The ADA sharply limits inquiries relating to a service animal. All that can be asked of an owner seeking to bring a service animal into a public establishment is (1) whether the dog is needed because of a disability, and (2) what tasks it has been trained to perform. It is illegal for the owner or employees of a public establishment to request documentation for the service dog or to inquire about the owner s disability. Assistance Animal vs. Service Animal While legally very different, from a fair housing standpoint, service animals and ESAs are interchangeable. Fair housing law requires a much broader interpretation of the law relating to animals for the disabled than does the ADA. Under federal law, individuals with physical or mental disabilities can bring assistance animals into their apartments but only trained service animals may be taken into public places. The Effectiveness of ESAs I have spent the better part of two years researching studies on ESAs and have found that there are few valid studies on the effectiveness of ESAs and the results of those that have been done are mixed. A study published by the American Psychological Association in 2016 stated "Little empirical data exists to support the conclusion that [emotional support animals] are effective in mitigating psychological disorders and related problems, and empirical research that does exist is inconsistent, sparse, and emerging." (Professional Psychology: Research and Practice 2017, Vol. 48, No. 3, 216-223, "The Certification of Emotional Support Animals: Differences Between Clinical and Forensic Mental Health Practitioners"). A recent issue of Good Practice, a magazine published by the American Psychological Association contains an article written by Connie Galietti, Director of Legal & Professional Affairs for the group. In the article, Ms. Galietti urged psychologists to think of the ethical and practical matters that may result from writing ESA diagnosis letters. The article states "Remember, your letter is stating that the patient s diagnosis substantially impacts a life activity. Can you honestly and objectively make that determination? Does an [emotional support animal] truly minimize the impact of the patient s problem, or is this just a way of allowing a beloved pet to be able to live with your patient, or allow the patient to avoid airline pet transport fees? If you have reservations about any of these issues, you probably shouldn t write the letter." This advice is as applicable in the housing context as it is in the airline context. To ethically prescribe an ESA, a psychologist has to be reasonably certain that the animal is necessary, evaluate the patient with the animal, and be familiar with the animal s behavior and training. The lack of clarity in the law places mental health professionals in an ethical bind: do they write a letter that lets their patient have the animal even without diagnosis guidelines or do they deny the letter and create conflict with a patient that they must continue treating? As noted in the Galietti article, therapists should give great consideration to all the related issues before writing such a letter. Since more psychologists are not willing to "prescribe" emotional support animals, many residents are now obtaining certifications through an online cottage industry that has sprung up due to the popularity of ESAs. These ESA mills are now churning out emotional support animal "certifications" in record numbers. The ESA Certification Industry There is a growing chorus of criticism in the multi-family industry relating to the growth of new websites that sell inexpensive documentation that falsely identify pets as service dogs or ESAs - and this criticism is warranted. Residents of apartment communities are willing to pay the fees for these "certifications" because having such a designation eliminates pet fees and requires the acceptance of animals at "no-pet" properties. The National Service Animal Registry, a commercial business that sells certificates, vests, and badges for assistance animals, signed up 11,000 ESAs in 2013 - up from 2,400 in 2011. The National Apartment Association (NAA) has stated that there are more than 20 websites for online providers that offer documentation for a fee. Agencies responsible for fair housing enforcement at the federal, state, and local level are all trying to deal with how best to respond to these online medical verifications. Many of these sites will provide a written diagnosis within 24 hours, via email, after only a five to ten-minute phone conversation with a "mental health professional" plus a fee of as little as $80. Five to ten minutes - seriously? I talk to a lot of clients on the phone and it takes me longer than that just to begin to understand what their problem may be - much less begin to develop solutions. And I know the issues of tenant income eligibility are a lot less complex than a person s mental stability and well-being. Some sites also sell dog collars and leashes with the words "support dog" for $15 to $22 each. Nothing like the good old "up sell." A lot of these sites have been created due to the growing reluctance of professional therapists to provide verifying letters. These ESA mills are a rip-off on two levels: First, the certifications are often bogus, with no real knowledge by the company providing the certification relative to the person s disability, and second, ESAs don t need a certification. Tenants just need a professional third party to verify that they have a disability and the disability could be ameliorated by living with the animal. One site called United Support Animals states: "Fly with your pet in the cabin of an airplane at no cost. Keep your pet in any housing even if there is a no pet policy. Say goodbye to pet security deposits forever." This company does not even try to hide the fact that they are just assisting individuals in getting around pet restrictions and deposits. HUD has historically been lax in terms of who can verify the need for ESAs - even going so far as to require acceptance of verification from social workers - many of whom have no clinical training. But, this may be changing. HUD s Possible New Direction HUD is now making it a priority to crack down on bogus assistance animals. This effort is being led by the HUD Assistant Secretary for Fair Housing & Equal Opportunity, Anna Maria Farias. While I disagree with many of the current HUD efforts to diminish the nation s fair housing laws, this is one effort that should be applauded. There are indications that new guidance from HUD regarding ESAs may be issued soon. HUD representatives have been meeting with housing industry representatives, including the NAA, but have not yet met with any fair housing and disability rights groups on the issue of assistance animals. This indicates that HUD is predisposed to make it more difficult for a person to obtain the documentation necessary to require a landlord to accept an ESA. The upcoming guidance may place limits on acceptable breeds of ESAs (barring pit bulls for example), create new verification requirements, and prohibit certain exotic or non-traditional animals (such as snakes). State Activity is Increasing 21 States have moved to criminalize the misrepresentation of ESAs and 13 others are drafting such legislation. Recent legislation was signed in South Dakota requiring that tenants seeking an ESA obtain verification from a "licensed health care provider." HUD has actually permitted such a policy for a number of years. Florida passed a law in 2015 that makes it a crime for people to falsely claim that they need service dogs, but the law does not currently apply to ESAs in housing. The Virginia Real Estate Commission and Fair Housing Board have issued a Guidance Document evaluating reasonable accommodation requests for assistance animals. The guidance provides that professional apartment management "should not be daunted by the prospect of potential litigation in accepting dubious verifications limited to vague statements on how an assistance animal would benefit the requester, but rather should insist on supplemental credible confirmation of an underlying disability. As with any other reasonable accommodation request, housing providers are absolutely within their rights to focus first on establishing the legitimacy of the requesting party s disability status as defined by fair housing law." The guidance further confirms that housing providers "may request that verifiers authenticate all or some of the following information to help evaluate their reliability and knowledge of the requester s disability." Information that housing providers should request includes: The general location of where the care was provided as well as the duration of the care (such as the number of in-person sessions within the preceding year); Whether the verifier is accountable to or subject to any regulatory body or professional entity for acts of misconduct; Whether the verifier is trained in any field or specialty related to persons with disabilities or the particular impairment cited; and/or Whether the verifier is recognized by consumers, peers, or the public as a credible provider of therapeutic care. In summary, as an industry, we must recognize that the ability to have assistance animals in a communal environment is often necessary to enable to disabled person to engage in major life activities. In such cases, housing operators are generally going to have to permit such animals. However, we must also recognize that some people are abusing the law in a way that circumvents legitimate owner pet policies and charges. Current trends indicate that enforcement agencies are beginning to recognize this reality and a more reasonable approach to the approval of assistance animals in housing may be around the corner.