Fake ESA Letters

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.

Apartment owners and managers are familiar with the internet industry providing junk disability letters for pet owners. You only have to go to the web to find a dozen or more places that will sell a letter from some kind of alleged therapist certifying that you are disabled and your pet cat, koala or kangaroo is a necessary emotional support animal. Many owners and managers feel helpless when confronted by these letters. After all, organizations like the National Apartment Association warn owners and managers:

“do not ask for details about the resident’s disability” and
“documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.”

These organizations agree that you can verify the authenticity of the letter and signature on a third party letter, but say that you “may not ask for additional information about the disability.”*

We think this advice is wrong. You can fight back against bogus requests for Emotional Support Animals. We will be presenting a free webinar with all the details at noon Central Standard Time on April 15, 2016 and at noon Central Standard Time on April 20, 2016.

In the meantime, here are the basics of why the conventional wisdom is wrong.

First, HUD specifically recognizes that apartment owners and managers are entitled to “reliable documentation” when the disability and need are not apparent. A typical letter from an internet vendor is not reliable on its face because the diagnostic tools used by these vendors do not appear to conform to acceptable medical practice. Nothing in the Fair Housing Act requires that apartment owners and managers grant reasonable accommodations based on letters that have no scientific or medical support.

Second, part of making sure a letter is reliable is confirming not only that it is authentic, but that the author is qualified to make the diagnosis of disability. A string of letters after someone’s name does not mean they are qualified to determine if someone is mentally ill. We don’t let podiatrists diagnose heart disease, and there is no reason to think a marriage and family counselor is qualified to diagnose acute anxiety disorder. Given the already dubious nature of these internet businesses demanding credentials is only reasonable.

Third, you are entitled to ask about the nature of a non-obvious disability because you cannot evaluate a request for reasonable accommodation unless you know what the disability is and how it relates to the particular accommodation requested. As one court says, a request for reasonable accommodation cannot be analyzed except by “by examining the facts and circumstances surrounding [the tenant’s] particular impairment.” (emphasis added). A letter that merely says the tenant has a “mental impairment” is not sufficient because for some mental impairments there is no reason to think an ESA is needed for their use and enjoyment of the apartment they rent.

Finally, you are entitled to know whether the tenant or resident meets the statutory definition of disability. Courts have recognized that not all mental impairments are disabling, and there is no single statutory or medical definition of “handicap” or “disability.” The fact that a letter says the tenant is “disabled” or “handicapped” is not enough to evaluate a reasonable accommodation request because you can’t tell what definition the doctor or therapist used. It it is reasonable to ask that the doctor or therapist certify that the patient meets the statutory definition of handicap under the Fair Housing Act.

Exploitation of the disabilities laws shows a lack of character, but being morally handicapped is not protected by the Fair Housing Act. We don’t believe Congress or HUD intended to create an industry based on shoddy medical practices, and while there are important limits on what you can do, we think in most cases apartment owners and managers can fight junk ESA letters.** Sign up for our webinar on April 15 and April 20 to find out how.

* These quotes are taken from the NAA Emotional Support Animal Toolkit, but I should make it clear that these represent the conventional wisdom found in materials from many Fair Housing Act trainers and lawyers who practice in the field. They represent a cautious approach that makes sense for good faith requests for accommodation, but not for obviously purchased letters.

** Naturally, every individual situation is different, and you should always consult an attorney or well designed policy and procedure before responding to or refusing a reasonable accommodation request, no matter how dubious it appears. Always remember that suspicion justifies asking questions; it does not justify an outright refusal to accommodate.

Special thanks to Professor Jeffrey N. Younggren of the University of Missouri, who advised me on medical issues in this blog, and to Cassie Bonness, co-author with Professor Younggren of a soon to be published paper on the standards of practice for psychologists and therapists asked to provide ESA letters.

Fake ESA Letters

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