Pictures of bombed out buildings and civilian casualty counts are a reminder that aggravating and expensive as ADA and FHA lawsuits can be, taking these disputes to court is a luxury most people in the world do not enjoy. For those of us who can engage in a civilized discussion of legal issues, here are the latest cases and other news. You’ll see where I think the courts and administration have gone wrong, but I’d rather be here than most of places in the news these days.
Emotional Support Animal
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
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.
This blog and the next were prompted by two recent efforts by state officials to deal with the problem of emotional support animals. One was a decision from the Iowa Supreme Court that puts a state law overlay on how to deal with conflicts between disabled and non-disabled tenants. You can find the details in William Goren’s blog.¹ The other was a recent legislative effort in Florida, the passage of Senate Bill 1084, which adds specific anti-discrimination provisions for emotional support animals.² These are far from the first efforts at the state level to do something about animals and disabilities,³ but they illustrate the problems these laws create for landlords trying to deal with fake emotional support animal requests.(4) More
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, Animals, FHA definition of handicap, FHA Emotional Support Animals, FHA Guidance, Landlord-tenant Tags: Emotional Support Animal, Fair Housing Act, FHA Guidance, FHA medical verification
This week’s news is a year old, but very important for apartment owners and managers confronted by the increasing flood of fake emotional support animal requests.* In March of 2017 the Virginia Fair Housing Board, which carries out Virginia’s mandate for disability rights in housing, issued a formal guidance on what constitutes reliable evidence of a disability and a disability related need for an emotional support animal. You can download the guidance here, but here are the highlights. They are based on the Board’s position that reliable evidence of a disability can only come from someone who has a therapeutic relationship with the tenant. More