FHA Emotional Support Animals

Happy New Years – 2020 ADA and FHA retrospective

December 31, 2020 By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA regulations, ADA Website Accessibility, Animals, Animals, FHA Emotional Support Animals, FHA Guidance, FHA Regulation, Internet Accessibility Tags: ADA 2020, ADA defense, COVID-19, Emotional Support Animals, FHA 2020, FHA Defense, Usablenet

champagne glasses in a toast Here’s a toast to the end of a bad year. I don’t know anyone who won’t be happy to see 2020 behind us, but it’s worth looking back at how the law of accessibility developed in the last year.

Fair Housing Act developments were bracketed by two events, one of which was scarcely noticed but could be important. In February, to considerable fanfare, HUD rolled out its new Guidance on requests for accommodation concerning animals.¹ Its many disclaimers about not being a regulation and not having any binding effect were not enough for the U.S. Government Accountability Office, which opined on December 17, 2020² that the Guidance violated the Congressional Review Act because it was not submitted to Congress for approval before it took effect. It is not surprising that HUD ignored the law, but HUD often ignores both science and the law, so to the extent the Guidance reflects what HUD’s investigators will do it provides some useful information on staying out of trouble in a HUD investigation even if it isn’t helpful as a guide to complying with the FHA.

A couple of months before the GAO Opinion HUD’s Assistant Secretary for Fair Housing and Equal Opportunity told us exactly what HUD thinks the FHA is supposed to provide for those with disabilities. In a press release announcing an enforcement action she said “Assistance animals aren’t pets; they make it easier for persons with disabilities to perform life’s daily functions.”³ “Easier to perform life’s daily functions” is a far cry from the FHA’s requirement that accommodations be “necessary” for a person with a disability to use and enjoy a dwelling. The necessity requirement was chosen by Congress as a compromise between the special treatment required so that those with disabilities can equally use and enjoy a dwelling and the rights of landlords to control the use of their property. Making life easier was not the standard Congress chose. 2021 will bring a new administration and a new HUD secretary, but it seems unlikely HUD’s FHEO office will change its stance to comply with the law.

Covid 19 had its effect on those subject to the FHA, but primarily as a reason to think carefully about what it means to have a disability (or “handicap” in the language of the statute) under the statute. Diseases, even serious ones, are ordinarily not considered disabilities for FHA purposes. However, Covid 19’s long term effects on physical and mental health for some survivors means it can certainly lead to a patient having a disability. The significantly higher risk of severe symptoms and death for those with disabilities could also implicate the FHA as individuals who are already disabled seek accommodations to reduce their risk of infection. The pandemic has not lead to any new law, but it should be a reminder that “handicap” and “disability” are terms with careful statutory and regulatory definitions that don’t evaporate in the face of an emergency.

The most important animal development in 2020 was the issuance of DOT’s new regulations on animals in flight.(4) The regulatory review that lead to these changes was mandated by Section 437 of the FAA Reauthorization Act of 2018, part of a larger Congressional demand that the DOT address the needs of those with disabilities. It was almost certainly a congressional response to many reports of damage and injuries caused by pets being passed of as emotional support animals as well as pressure from the various interest groups. By requiring airlines to accept only service animals as defined in the ADA and limiting even those to dogs the Department of Transportation implicitly recognized that individuals with mental health disabilities do not need the constant presence of emotional support animals in order to equally participate in air travel. Of course the larger issue is whether such animals are ever “necessary,” a notion that has no scientific support and has been rejected by organizations like the Veteran’s Administration.

In 2020 interest in the ADA remained focused on the ever increasing number of website accessibility claims.(5) Despite reports that the rate of filings had slowed in 2020 Usablenet’s analysis showed a 23% increase in claims when claims filed in California state court were included. California’s Pacific Trial Attorneys leads the pack in most ADA website lawsuits filed in 2020, and their cases alone account for almost half the increase in the number of cases filed. Claims under California’s Unruh Act have always been attractive to plaintiff’s lawyers because the act includes a mandatory penalty of $4000, which substantially increases the settlement value of these cases. Filing under the Unruh Act in state court became more attractive when some federal courts began dismissing pendant Unruh Act claims and the Fourth California Court of Appeals applied a liberal standard to personal jurisdiction over claims against out of state website operators.(6) In addition, the issue of whether the Unruh Act applies to businesses without a nexus to a physical place of business is unresolved under California state law, making claims against pure internet businesses possible under the Unruh Act.(7) State court lawsuits usually limit the claimed damages and fees to less than $75,000, eliminating the chance of removal to federal court by non-California defendants and thus forcing out-of-state businesses to either litigate in an expensive and unfavorable venue or settle. In a tepid response to abuse of the Unruh Act with respect of claims based on a lack of physical access the California legislature has imposed limits on such suits that do help smaller businesses. Whether such relief will be available for small business websites is an unknown.

The big news for claims under the ADA was the introduction of the bi-partisan Online Accessibility Act of 2020.(8) The Act isn’t perfect, but its requirement that DOJ finally issue regulations and its protections for small businesses would be a huge help in limiting lawsuits filed by the ADA serial litigation industry. The Biden administration seems likely to revive the regulatory effort torpedoed in 2017 by the Trump administration in any case, but the Act still includes provisions that are helpful. It lacks the one thing necessary to help businesses avoid abusive litigation in states like California; a preemption of state law based on the inherently national and international nature of internet businesses.

I’m sure I’ve omitted a few important developments in 2020, but if you are interested in more you can look back to my earlier blogs and those of my fellow bloggers in this space. 2021 is likely to bring important new developments as the Biden administration rethinks the regulatory and enforcement priorities of HUD and DOJ and as more appellate courts consider the basic issues that rarely get litigated because settlement is a better option. Stay tuned.

¹ See my blog, “HUD’s new Guidance on assistance animals will encourage emotional support animal fraud.”

² See, https://www.gao.gov/assets/720/711347.pdf

³ See, https://www.hud.gov/press/press_releases_media_advisories/HUD_No_20_169

(4) See my blog, “DOT issues new in-flight animal restrictions”

(5) I am indebted to Jason Taylor of Usablenet for this information. Usablenet’s full report on website accessibility litigation is well worth reading and can be found at https://info.usablenet.com/2020-report-on-digital-accessibility-lawsuits

(6) See my discussion in Quick Hits and other blogs, and the decision in Thurston v. Fairfield Collectibles of Georgia, LLC, 268 Cal. Rptr. 3d 365, 372 (Cal. App. 4th Dist. 2020), review denied (Dec. 9, 2020).

(7) Federal ADA cases in California are limited by the Ninth Circuit’s holding that the ADA applies only to websites with a nexus to a physical place of business. In a lengthy review of the law applying the ADA to websites the California 2nd Court of Appeals declined to decide the issue under state law, finding that because the website in question did have a nexus to a physical place of business “we need not consider here the wholly hypothetical question whether Title III of the ADA governs a website unconnected to a physical place of public accommodation offering only purely Internet-based services or products.” Thurston v. Midvale Corp., 252 Cal. Rptr. 3d 292, 302 (Cal. App. 2d Dist. 2019). It does not appear any higher California court has considered the issue since the Midvale opinion was published.

(8) See my blog at Online Accessibility Act of 2020 for a complete analysis.

DOT issues new in-flight animal restrictions, and a breath of reason in regulation.

December 4, 2020 By Richard Hunt in ACAA, ADA, Animals, Animals, FHA Emotional Support Animals Tags: ADA defense, department of transportation, Emotional Support Animals, FHA Defense, service animal

sad looking dog with caption "I need some emotional support." Texas Bar Top 10 Logo The Department of Transportation has issued it final rule concerning in-flight rules for animals helping those with disabilities.¹ The bottom line is straightforward. Airlines are only required to permit dogs trained to perform a specific disability related tasks in the cabin of their aircraft. This adopts the same restriction that the Department of Justice has long had in place for Title III public accommodations under the ADA (except that DOT, unlike DOJ, does not recognize miniature horses as service animals). In addition to limiting the kind of animal airlines are required to transport the DOT regulations permit airlines to do some things that DOJ would ordinarily not permit in a Title III context, including:

Require paperwork in advance that provides details about the animal, and its’ vaccinations and training and warns the person filling out the paperwork that misrepresentations can be punished.
Limit the size of the dog unless empty seats are available for a larger dog in the same class of service.²
Require the dog to be leashed or tethered even if its work is not consistent with a leash or tether.
Require a handler, who may not be the person with a disability, to have the dog under control.

In addition the rules provide specific guidance about excluding dogs that are not under control in the gate or waiting areas. This guidance, which allows the exclusion of animals that misbehave, is similar to the advice I and other lawyers give our Title III clients and is worth looking at because it should be useful in the Title III context. Here is what DOT says:

You may observe the behavior of an animal. A trained service animal will remain under the control of its handler. It does not run freely around an aircraft or an airport gate area, bark or growl repeatedly at other persons or other animals on the aircraft or in the airport gate area, bite, jump on, or cause injury to people, or urinate or defecate in the cabin or gate area. An animal that engages in such disruptive behavior demonstrates that it has not been successfully trained to behave properly in a public setting and carriers are not required to treat it as a service animal without a carrier in the cabin, even if the animal performs an assistive function for a passenger with a disability.

14 CFR §382.73(a)(2).

As you might imagine, the strongest opposition to the new rule came from the emotional support animal community, which is supported largely by organizations that make money promoting the notion that everyone who feels bad should be permitted to take a puppy with them everywhere they go.³ The regulation was favored by industry groups and by groups representing the blind (because the work of guide dogs is often disrupted by untrained animals in close proximity) and those with allergies. Notably absent from the discussion was any consideration of whether emotional support animals are ever required for individuals who are disabled as a result of a psychiatric or mental impairment. Based on information I have received from various practicing and academic mental health professionals it appears there is no scientific evidence that an untrained animal can provide necessary support for an individual whose mental condition rises to the level of a disability.(4) The evidence in favor of emotional support animals for psychiatric conditions seems to be almost entirely anecdotal. It is puzzling that federal regulatory agencies like DOT and HUD have so little interest in the science that is important to their regulatory decisions, preferring instead to simply accept comments from anyone with an axe to grind and make a decision that never addresses the underlying reality of the assertions from the various parties.

Despite the lack of interest in science, the new rules do inject a fresh breath of reason into the discussion of animals for those with disabilities in public places. Disability rights laws and regulations must ultimately balance the tools necessary for those with disabilities to have equal opportunities against the disruption those tools may cause. That requires looking not only at benefits to those with disabilities, but also the opportunities for fraud and the likely cost to businesses and others, including others with disabilities. In the case of emotional support animals the benefits are dubious, the fraud apparent and the harm to others is very real. DOT’s new rules reach an appropriate balance for animals in a public but confined space by rejecting any requirement that emotional support animals be transported by the airlines as anything other than what they are – pets.

¹ The new rules can be found at https://www.transportation.gov/briefing-room/us-department-transportation-announces-final-rule-traveling-air-service-animals.

² This may not be a problem during the current pandemic since flights are often not at capacity.

³ This included U.S. Support Animals, a for profit that claims to offer “official” support animal registration despite the fact that no state or federal agency recognizes such registrations, and whose registration is on the “honor system;” that is, they will issue a registration to anyone who is willing to lie about their pet.

(4) See my earlier blogs – Science v. HUD – science and business are the losers., HUD’s new Guidance on assistance animals will encourage emotional support animal fraud., and HUD gets it wrong again on emotional support animals – two is one too many.

HUD gets it wrong again on emotional support animals – two is one too many.

October 20, 2020 By Richard Hunt in ADA, FHA, FHA Emotional Support Animals Tags: charge of discrimination, Emotional Support Animal, Fairfield Properties, FHA Defense, Pinewood Estates, reasonable accommodation

a pair of terriers looking sad with the caption "we need some emotional support" On October 7, 2020 HUD filed a charge of discrimination against Fairfield Properties and Pinewood Estates at Commack Condominium because they denied an accommodation for two emotional support dogs. FHEO No. 02-17-5246-8. The Charge includes the facts, which don’t seem to be disputed. It does not include an explanation of how HUD thinks these facts constitute discrimination, but HUD’s thinking on the subject can be inferred from the Charge and shows why landlords and condominium or owners associations must be careful even when dealing with truly meritless requests. HUD is perfectly capable of making a charge of discrimination that cannot be reconciled with the text of the Fair Housing Act or the case law interpreting it. That’s hardly news, but it is worth remembering. More

Disability, criminality, and disparate impact under the FHA – brewing a tempest in a teapot.

October 9, 2020 By Richard Hunt in Accessibility Litigation Trends, ADA, FHA, FHA Emotional Support Animals, FHA Reasonable Accommodation, FHA Regulation Tags: CoreLogic, criminal conviction screening, FHA Defense, HUD discriminatory effect, HUD disparate impact, Inclusive Communities, National Fair Housing Alliance v. Carson, Vanessa Bryant

The recent decision from Judge Vanessa Bryant in Connecticut Fair Housing Center v. CoreLogic Rental Property Solutions, LLC, 2020 WL 4570110 (D.Conn. August 7, 2020) was followed only weeks later by HUD’s final regulation on disparate impact claims, 85 FR at 60288, September 24, 2020.¹ The CoreLogic decision’s most important holding was that a third party tenant screening service could be liable for providing information that had a disparate impact on a protected class, but Judge Bryant’s denial of a slew of defense motions for summary judgment was a reminder of the potential power of disparate impact claims. HUD’s new regulation, titled “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard” creates a set of landlord friendly rules for disparate impact claims that may make CoreLogic irrelevent.

NOTE: on October 22, 2020 the National Fair Housing Alliance and others filed National Fair Housing Alliance v. Ben Carson, Secretary of the Department of Housing and Urban Development, Case No.3:20-cv-07388 in the United States District Court for the Northern District of California. The lawsuit attacks the legality of the new HUD regulations on numerous grounds. (the Complaint is 66 pages long). It was presumably filed in a plaintiff friendly court, and the Ninth Circuit is a civil rights friendly circuit, but the legality of the rule will ultimately go to a Supreme Court that is far less friendly to civil rights legislation. If there is a change of administration in November this regulation is likely to be short lived, so housing providers should probably not make too much of it until we know where the political winds will decide to blow.

Has the Florida legislature found a solution for fake ESA’s?

July 26, 2020 By Richard Hunt in Animals, FHA, FHA Emotional Support Animals Tags: Emotional Support Animal, ESA, ESA fraud, ESA Letters, Fake ESA Letters, FHA Defense, SB 1084, Senate Bill 1084

In late June Florida became, with the passage of Senate Bill 1084, the latest state to take on the problem of emotional support animals. From the descriptions in various articles it would have appeared two opposite bills were passed, for the statute was praised as both helping eliminate fraudulent ESA claims and helping disabled individuals obtain accommodations for their ESAs. It may have no real effect at all since nothing in it can affect the Fair Housing Act, which is the statute that is most relied on in making ESA requests. What it does do, though, it point out some of the problems with the way HUD and others call for accommodation requests to be evaluated. If it means what it says Florida can justly claim to be the first state to recognize that few if any ESA* requests meet the reasonable accommodation requirements of the FHA and its Florida equivalent.

The best place to start is with a basic definition of handicap or disability found in all the statutes: A disability is a mental or physical impairment that substantially limits a major life activity. There is plenty of room for argument about what constitutes a physical as opposed to a mental impairment given the fact that mental impairments are associated with the brain, which is a physical organ; nonetheless the distinction reflects a reality about scientific knowledge of mental as opposed to physical impairments. Physical impairments can almost always be objectively determined by a physical examination. Many mental impairments, especially those like anxiety, depression and PTSD, are diagnosed based on what the patient reports to the doctor about how they feel. If a patient lies or exaggerates those lies and exaggerations may be difficult or impossible to detect, especially if the patient only sees a doctor or therapist a few times, or the diagnosis is based on a standardized test. Equally important, these mental impairments range from being so mild as to constitute a mere annoyance to so severe that the person is unable to function, and the doctor or therapist has to rely on the patient to tell them how severe the impairment is.

I mention anxiety, depression and PTSD because almost every request for an emotional support animal is based on one of these three mental impairments. This is where the language of the Florida statute becomes important. Section 760.27(2)(b) says a property owner can request information that “reasonably supports that a person has a disability,” including information from a health care provider, provided that the provider “has personal knowledge of the person’s disability and is acting within the scope of his or her practice to provide the supporting information.” “Personal knowledge” is in italics because it is a phrase with a very specific legal meaning. “Personal knowledge” is knowledge obtained by direct observation. In contrast, “hearsay,” is knowledge based on something that is reported. To use a classic example, if I see a traffic light turn from green to red then I have personal knowledge that it changed. If I had my back turned but my companion tells me that she saw it turn from red to green then I do not have personal knowledge; I only have hearsay knowledge. If a patient tells their therapist they cannot sleep at night without their cat the patient has personal knowledge but the therapist has only hearsay knowledge.

If the Florida legislature means what they said, there will be very few, if any, letters from doctors and therapists that “reasonably support” a demand for an emotional support animal based on a diagnosis of anxiety, depression, PTSD and similar disorders. Why? Because the mental health professional writing the letter has no personal knowledge of the patient’s mental impairment. They only know what the patient tells them about feelings that cannot be seen and actions that take place elsewhere. In most cases, of course, not only is their only knowledge hearsay, but it is unreliable because it was obtained when the patient came in specifically to ask for an emotional support animal prescription.¹

There is another phrase in the statute that could make a difference. The statute says an ESA letter reasonably supports a request only if the doctor or therapist is “acting within the scope of his or her practice to provide the supporting information.” “Scope of practice” is not defined in the statute, but is defined elsewhere in Florida law. For example, the definition of “marriage and family therapy” is therapy in the context of marital and family systems² and would presumably not include a “diagnosis” for the individual problems of a single person. Given the number of ESA requests supported by someone with a marriage and family counseling license this alone would be a significant limit on fake ESA requests.

In addition, under Florida law every kind of mental health service is specifically limited to those who are “appropriately trained in the use of such methods, techniques, or modalities. . .” Because there is no scientific evidence that emotional support animals provide benefits to individuals suffering from disabling anxiety, PTSD and depression³ it is unlikely any mental health professional will be able to show they have training in techniques or modalities of treatment that include ESAs, making the prescription of an ESA beyond the scope of practice for any mental health professional.

If the Florida legislature were the U.S. Congress this statute would be great news for landlords everywhere. As it is, it probably won’t be that helpful even to Floridians. No state legislature can change the application of federal laws like the Fair Housing Act or change how a federal agency like HUD interprets those acts. HUD has always taken its advice on ESA’s from pet advocates and groups who believe as an article of faith rather than a matter of scientific inquiry that emotional support animals are beneficial for those with disabilities. That doesn’t mean the Florida legislature could not act in a very effective way if it chose to do so. The federal government decides what the FHA means and how it is applied, but state governments establish professional standards for doctors and therapists. It is well within the State of Florida’s power to simply declare that the prescription of an ESA constitutes unprofessional conduct subjecting a doctor or therapist to discipline or the loss of their license. That is something the legislature might want to consider when it realizes that the current law will not solve the problem.

¹ This is not by any means the only problem, of course. It is unlikely that any mental health professional other than a psychiatrist or psychologist is professionally qualified to diagnose a disabling mental impairment. There is also a clear conflict between a mental health professional’s duty to the patient (get them what it seems they need) and the duty to tell the truth to others (that is, tell the landlord the patient is not entitled to an ESA.). Finally, of course, whether any mental or physical impairment is a disability depends on a legal test (“substantially limits a major life activity”) that mental health professionals are not trained to apply.

² FS 491.003(8)

³ See my blog “Science v. HUD” It is important to recognize the difference between specially trained animals (service animals) whose work may include some component of emotional support, therapy animals that provide support during therapy but don’t go home with the patient, and emotional support animals, that have no training and live with the patient. There has been quite a bit of scientific study of therapy animals; but little or none concerning emotional support animals.

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