ADA and FHA Defense

On July 1, 2026 the American Psychological Association published an article about using animals in therapy. You can find it here.  I’m a lawyer, not a doctor, so I don’t have anything to say about most of the article, which deals with how animals can be used by psychologists when interacting with patients. I can say, however, that the article is wrong when it comes to its discussion of emotional support animals and the law. For example, the author writes:

Under the Fair Housing Act, ESAs are defined as animals that provide emotional support or alleviate a symptom or effect of a disability.

There is no Fair Housing Act definition of ESAs, either in the statute or the related regulations. This information comes from a HUD guidance document that never had any binding effect and has now been withdrawn by HUD. The claim that an animal is an ESA is meaningless in legal terms because the words “emotional support animal” do not have a fixed legal definition.  Next:

Clinicians don’t need specific knowledge about the individual animal to write an ESA letter that is ethically and legally acceptable according to federal guidance, said Ekholm Fry.

It is true that Ekholm Fry said something like this in a 2021 paper, but it was wrong at the time and became even more wrong after HUD withdrew the guidance documents on which Fry apparently relied. First, federal agencies like HUD do not establish ethical standards for medical providers. Whether an “ESA letter” is ethically acceptable depends on the law of states that license psychologists and on the standards of the profession itself. Second, even the now withdrawn HUD guidance does not say that clinicians can write an ESA letter without knowledge about the individual animal. HUD’s old guidance always insisted that evidence of disability and need for an ESA be “reliable.” The APA’s own publications about ESA’s suggest that clinicians should be careful in prescribing ESA’s to evaluate all the effects it may have on their patient, and it is hard to imagine how that can be done without knowing something about the specific animal.

But to continue, the author next writes:

Their (the therapist’s) role is simply to document that the person indeed has a disability, as defined under the Americans with Disabilities Act (ADA).

The sentence is hyperlinked to the ADA. The problem is that the definition that matters for ESA’s in housing is the definition of “handicap” in the Fair Housing Act. The definition of “handicap” in the Fair Housing Act is not the same as the definition of “disability” in the ADA. A therapist who relies on the ADA definition of disability when writing an ESA letter to help their patient avoid a “no pets” policy at an apartment complex isn’t matching their letter to the law that matters.

Even more important, “disability” and “handicap” are legal terms with legal definitions, not medical terms with medical definitions. Unless a therapist has enough legal training to relate these legal terms to equivalent medical terms the therapist is not competent to say whether their patient has a “disability” or “handicap” as defined in the ADA and FHA. I will add to be fair that lawyers should not go around making medical diagnoses. I might say in casual conversation that say an opposing lawyer has OCD, but I certainly wouldn’t write a letter asserting that they had OCD based on my legal training and the fact I have a copy of the DSM V on my shelf. Lawyers shouldn’t make medical diagnoses and therapists shouldn’t opine about the law.

I could go on picking apart this article, but these illustrations make the point. Whether a patient has a “handicap” that triggers application of the Fair Housing Act is a legal question that requires applying the legal definition of handicap to whatever medical diagnosis a therapist is competent to make. Whether keeping an animal in an apartment or home “may be necessary to afford such person equal opportunity to use and enjoy a dwelling” is a legal question that depends on the legal definitions of “necessary,” “equal opportunity,” “use and enjoy” and “dwelling” applied to what the animal does for its owner. This may not require a law degree, but it certainly requires legal training about the meaning of these terms as they have been interpreted by the courts. It also requires some knowledge of HUD’s published memos on this subject, because HUD or the President can, with the stroke of a pen, simply eliminate all of HUD’s previous guidance materials. That is what happened on May 22, 2026, a week before the APA article I’m writing about. Only specialists in disability law are likely to be up to date on these issues. Someone with legal training would know how to become up to date using available legal research tools, but I doubt that most therapists have the training required to use those tools or access to them.

If a psychologist is asked to write an ESA letter they should, if they have not already done so, research the professional literature for their profession concerning the possible benefits and harms of ESA prescriptions and the likely ethical complications. Then they should do what they are qualified to do. First, determine using appropriate diagnostic criteria diagnose the patient’s medical condition. Second, describe what is known about what the ESA does for their patient. “Know” means know with whatever degree of certainty is needed to treat the patient according to applicable professional standards. And then they should stop. Whether they have diagnosed a handicap or disability is a legal question, not a medical question. Whether the animal is “necessary to afford such person equal opportunity to use and enjoy a dwelling” is a legal question, not a medical question. In short, psychologists and other medical providers should stick to doing what they are trained and competent to do, and leave the legal consequences of their medical conclusions to be decided by those whose training and competence is in the law.

As a final note, both therapists and lawyers need to understand that AI cannot make up for a lack of training. At least a couple of lawyers are sanctioned every week because they relied on AI to do their legal research. In my disability law practice I have seen lawyers who decided to learn about the Fair Housing Act via Google get their clients in serious trouble.  A psychologist who relies on AI or a Google Search to learn about writing emotional support animal letters is certainly doing their patient a disservice and may be doing the patient a lot of harm. Those who have two legs that work don’t need an artificial leg. Those who have a brain that works don’t need artificial intelligence.