Emotional support animals

By Scott M. Badami originally posted on January 22, 2018.

Many times the cases with what look like the most egregious set of facts are the ones that get the most publicity. To that end, a fair housing case in California just settled with the owner of several apartment complexes and rental homes agreeing to pay $100,000 to conclude a disability discrimination action involving emotional support animals.

The complaint (which started as an administrative action with HUD filed by a local fair housing advocacy group) asserted that the apartment owner sent a letter to his residents stating he did “not like to deal with pets of any kind.” The letter contained no exceptions for assistance animals. Next, the defendant sent letters to the residents asserting that a flea problem existed and his solution was to ensure all pets were gone.  Or that the residents had to send letters from a veterinarian certifying that their animals did not have fleas. He then sent eviction notices to a handful of residents with pets and ultimately evicted two residents with emotional support animals.

In addition to the $100,000, the defendant agreed to participate in fair housing training, adopt policies for reviewing reasonable accommodation requests, and provide three years of semi-annual reports to the California Department of Fair Employment and Housing detailing reasonable accommodation requests and the resolution of the requests. The money includes damages to the former residents as well as investigatory costs and attorney’s fees.

The takeaway: Yes, you can prohibit pets at your apartment community. No, you cannot prohibit appropriately medically verified service and/or emotional support animals. If you are uncertain over this provision in the law, I suggest you reach out to a lawyer like me for some fair housing training.

Just A Thought.

By Scott M. Badami originally posted on February 27, 2018.

It is clear that just about all (if not all) of the federal, state, and local fair housing agencies are dealing with the exponential growth of online medical verifications for emotional support animals (ESA’s). I have addressed any number of ESA issues in this space. Professional apartment management companies continue to look for the appropriate sweet spot of ensuring that everyone with a legitimate disability is granted the accommodation they need, while at the same time raising appropriate questions about medical verifications that appear to have been purchased online after a few clicks of a computer mouse (or now just on a smart phone) and a $69.99 charge on a credit card (or perhaps $125 if you need the letter overnight).

Many of my clients now seek supplemental information whey they receive what appear to be the online ESA form letters. I have a drawer full of the same letter, signed by some of the same online providers. In return, I get nasty grams from the online providers concluding my clients are violating the fair housing laws because they did not simply accept their verification as presented. I don’t mind taking the heat, but it is always good when a governmental entity blesses our efforts to confirm that medical verifications are legitimate.

To that end, the Virginia Real Estate Board and Fair Housing Board issued a Guidance Document evaluating Reasonable Accommodation Requests for Assistance Animals. Addressing the reliable medical verification concern, the guidance provides that professional apartment management “should not be daunted by the prospect of potential litigation into accepting dubious verifications limited to vague statements of 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.” That is all we want.

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.” As such, I continue to believe we are well within our rights to continue to seek information concerning 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.

Will guidance like this stop the highly questionable ESA medical verifications? No. But let’s hope our efforts to seek supplemental information when something looks like it has been purchased online continue to be validated.

Just A Thought.

We have previously published blogs about the increasing impacts to businesses and people from misrepresentations about service and emotion support dogs.  See, e.g., New York Makes it Unlawful to Misrepresent Dogs as Service Animals.  We are pleased to post several blogs from partner Scott M. Badami who advises companies, private institutions and individuals on compliance with various federal and state laws, including the Fair Housing Act, Americans with Disabilities Act.  Scott is the founder and editor of the firm’s Fair Housing Defense Blog, which offers discussion and insight on fair housing compliance and other areas of interests to apartment owners and management companies as well as professional management employees.

By Scott M. Badami,  originally posted on March 16, 2018

When evaluating assistance animal requests from our residents, one of the issues faced by apartment leasing offices across the country is what to do if the animal is believed to be a “direct threat.” The law is absolutely clear that an animal (usually a dog) cannot be categorized as a “direct threat” unless there is evidence that the specific animal in question presents a legitimate danger to other residents, to property management employees, or to the property itself. To illustrate, we cannot simply deny an assistance animal because he or she is a particular breed, a particular size, or because of the animal’s weight.

Applying applicable standards concerning the “direct threat” analysis, last year the Vermont state Supreme Court issued an opinion, affirming the trial court below, concluding a landlord was correct in denying a reasonable accommodation request for a specific dog as the evidence demonstrated that the animal posed a direct threat. Even though the dog never attacked another resident, the evidence relied on by the court included:

  • that the dog regularly reared up on her back legs, lunged, or bared her teeth at people and other dogs when outside;
  • that the dog often went “crazy” [the court’s word, not mine] when other resident or dog passed the resident’s apartment home;
  • that the resident informed others that the dog had been trained as a “guard dog” and was “people and dog aggressive”;
  • that the resident asked another resident to walk their dogs at different times to avoid conflict with the purported assistance animal;
  • that there was evidence in the record that the resident may not have been able to control the dog; and
  • efforts by the resident to reduce or control the potential threat (such as limiting the time the dog was outdoors) would not sufficiently reduce the potential for aggression and/or were not appropriately raised or were thought not to be potentially successful.

While every reasonable accommodation request must be evaluated on a case by case basis, the court here provided some concrete examples of the types of behavior that it found disqualifying in an assistance animal. In my experience, even when we see an animal which may be a direct threat, management must always engage in the interactive process with the resident to determine if there are ways to control the animal. If you don’t, there is a decent chance that you might need to speak with a lawyer like me.

Just A Thought.

You have likely heard about the recent attempt by an individual to board a flight with a peacock who purportedly served as an emotional support animal.  See, e.g., “Woman denied emotional support peacock on United Flight.

United has published current rules regarding Psychiatric/Therapeutic/Emotional Support Animal Authorization on its website, which indicates that changes to the current requirements will be forthcoming:

Pursuant to the Department of Transportation (DOT) guidance for the carriage of service animals, United requires a passenger with a qualified disability traveling with a psychiatric/therapeutic/emotional support type animal to obtain documentation from their medical/mental health professional.

This form is only valid for travel between now and February 28, 2018; additional documentation will be required for travel on or after March 1, 2018.

Other documentation may be required for travel entering or exiting an international location.

United requires service animals to be “properly harnessed for the duration of the flight. Small animals may remain in the passenger’s lap during the flight. If a carrier will be used, it must meet the USDA guidelines and fit under the aircraft seat.”

Notably, the airline also states that animals “must be trained to behave appropriately in a public setting. Animals found not to have been trained to behave will only be accepted in accordance with United’s current pet policies or may be denied boarding.” (Emphasis in original).

 

There is additional information on United Airlines’ Service animals webpage:

Beginning March 1, 2018, United will require additional documentation for customers traveling with an emotional support animal. Currently, customers must provide 48 hours’ notice to the Accessibility Desk and a letter from a licensed medical/mental health professional. For travel on or after March 1, customers will need to also provide a veterinary health form documenting the health and vaccination records for the animal as well as confirming that the animal has appropriate behavioral training.

Additional information and forms will be available soon, so please continue to check united.com if you have upcoming travel with an emotional support animal. The process for trained service animals is currently not changing.

We have published several blogs about legal requirements and provisions governing the use of service and emotional support animals.  Individuals with legitimate disabilities may be disadvantaged by those who want to travel with their pets but have no legitimate disability or emotional disorder.  Since specific certification is not required for service or emotional support animals, but a plethora of websites offer registration, vests and identification cards provided for a fee and based on the honor system, it is easy for people to fake it.

The U.S. Department of Transportation has published a comprehensive “Service Animal Definition Matrix—Air Carrier Access Act vs. Americans with Disabilities Act,” dated July 1, 2016, that includes helpful definitions, questions and answers summarizing information about:

  1. The Air Carrier Access Act (ACAA) and 14 CFR Part 382;
  2. DOJ’s interpretation of Americans With Disabilities Act (ADA);
  3. FRA’s interpretation of Americans With Disabilities Act (ADA) 49 CFR 37.3;
  4. FTA’s interpretation of Americans with Disabilities Act (ADA) 49 CFR 37.3, 37.167(d); and
  5. HUD’s FHAct and/or Section 504.

In addition to definitions based on the above-mentioned categories, helpful questions and answers are included in the matrix, including, for example:

  1. Should disability mitigation training for the animal be required as a condition of access?
  2. Should public access training for the animal be required as a condition of access?
  3. Should the rule designate eligible species and, if so, what species should be allowed? Should the rule allow certain species to travel as service animals subject to certain restrictions (such as remaining contained during flight)?
  4. What requirements should the rule impose to prevent fraud in the documentation process.

This matrix, while not legal advice, should be helpful to airline and other carriers considering whether to amend their policies regarding travel with emotional support animals.

It may be worth considering policies to permit pet owners to purchase seats for certain pets, with reasonable requirements for health and behavior, since it is likely that many people would pay for these tickets, if available.