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This article explores the regulations and considerations surrounding emotional support animals, including the necessary accommodations, applicable statutes, and reasons for denial. Presented by Christina Gindratt, Attorney at Law.
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Ins and Outs … Ups and Downs … Of Emotional Support Animals Presented by: Christina Gindratt, Attorney at Law Fort Hood Consolidated Client Services Office Email: christina.j.gindratt.civ@mail.mil Phone: (254) 287-9698 (no voice mail) September 26, 2019
The Author’s Bias • Cats are better than dogs. • Emotional support animals are a viable treatment option. • Texas Chili has beans. • Whether you represent the housing provider or the potential/current tenant it is important to get the analysis right. • My cats are the cutest. • When in doubt – approve the accommodation.
Applicable Statutes • Fair Housing Act (42 USC 3601 et. seq.) • Rehabilitation Act of 1973,Sec. 504 (29 USC 794) • Americans with Disabilities Act • Texas Fair Housing Act • See also: https://www.hud.gov/sites/documents/SERVANIMALS_NTCFHEO2013-01.PDF
Necessary Accommodations FHA requires: “accommodations that are NECESSARY (or indispensable or essential) to achieving the objective of equal housing opportunities between those with disabilities and those without”. NECESSARY = essential or indispensable. Thus, the accommodation must be more than a desire to be with the animal, merely helpful, conducive, or comforting, or enhancing the enjoyment of their residence. The applicant must establish that the animals presence is indispensible, essential, or something that he/she cannot do without.
Assistance Animals Assistance Animals = umbrella term for all types of service animals, therapy animals and emotional support animals. Service animals = guide, hearing, mobility impairment, medical alert/seizure, autism service and psychiatric DOGS or miniature horses. Emotional Support Animals = cats, dogs, birds, lizards, hamsters, gerbils, and more ….
Discriminatory Acts Disparate Treatment – did the housing provider treat the applicant less favorably than other. Eg. Charging a pet deposit for an untrained ESA but not a trained SA. Disparate Impact – does a facially neutral policy or practice result in a significant adverse impact on members of a protected minority group. Eg. Charging a pet deposit. Failure to make a reasonable accommodation either by explicit or inferred denial.
Disability FHA defines disability as: (1) A physical or mental impairment… (2) That substantially limits … (3) One or more major life activities.
Request for Reasonable Accommodation • Can be oral or written; • Not required to be in a particular format or on a form used by the housing provider; • Can be given to the housing provider by a third party. • No formal process is required. • Housing providers are required to engage in an interactive dialogue with the applicant. While the housing provide may suggest an alternative accommodation the applicant is not required to accept the alternative. • If suggesting an alternative accommodation, housing providers should take great care to make certain it is clear that the applicant need not accept the alternative.
Obvious vs. Non-Obvious Non-Obvious Disability Where the disability is NOT obvious or the nexus between the disability and the requested SA/ESA is unclear the housing provider may request reliable disability-related information. Obvious Disability Where the disability is readily ascertainable, obvious, or otherwise known to the housing provider and the requested accommodation is apparent – the housing provider MAY NOT request additional information.
Reliable Disability Related Information The Fair Housing Act allows housing providers to request reliable disability-related information that: (1) is necessary to verify the person meets the Act’s definition of disability; (2) describes the needed accommodation; and (3) shows the relationship between the person’s disability and the need for the requested accommodation.
Reasons Housing Provider May Be Able To Deny Request Under the Fair Housing Act, there are limited basis upon which a request for a reasonable accommodation may be denied. A request may be denied if: The applicant is not disabled as defined by the FHA. There is no identifiable nexus between the disability and the requested accommodation or the verification is insufficient. The request would impose an undue financial or administrative burden on the community. Granting the request would fundamentally alter the nature of the community’s operations. Granting the request would pose a direct threat to persons or property. The accommodation is not reasonable. Granting the request does not afford a person with a disability the equal opportunity to use and enjoy a dwelling.
Charting the Elements and Areas of Investigation Does the verification letter identify the impairment, the major life activity that is impacted and how the assistance animal will ameliorate the affects of the disability (nexus)? Is the verification from a reliable source? Is the requested accommodation necessary?
Verification Letter The language must be unequivocal. Statements found not to support an ESA request: “due to mental illness [Plaintiff] has certain limitations” “[Plaintiff] was receiving psychological counseling services [and required] a service dog” “a service animal may help the individual”
Reliability Housing providers can engage in a “meaningful review” to determine whether the FHA mandates the requested accommodation. • Who is the prescribing person/entity? • Where is their office located? • Are they the applicant’s treating professional? And if so, for how long? • Where are they licensed? Is the license valid? • Does the person/entity have any disciplinary history? • What is the business structure for the treating professional (LLC, PLLC, Sole) and are they registered in the states in which they are conducting business?
Reliability • What are their credentials? • What training in emotional support animal evaluation has the person received? • What evaluative process did the person/entity utilize to diagnose develop a treatment plan? • When was the letter issued? Does it have an expiration date? • What services does the person/entity advertise online? Do they offer a “money back guarantee”? • At what point is payment made for services rendered? • Is the person/entity in compliance with their licensing agency’s ethical requirements? • If the requesting individual is an active duty servicemember, was the verification provided by his/her primary care physician?
Is the Accommodation Necessary CAUTION! CAUTION! CAUTION! Analysis of this element is fact-specific. Wilkison v. City of Araphoe, 302 Neb. 968 Plaintiff requested an exemption from the City’s breed restrictions allowing him to keep his pitbull as an emotional support animal. Evidence submitted at trial showed Plaintiff suffered from his disability for nearly 35 years, but he had only owned his dog for 2 years. Additionally, Plaintiff had owned another dog for almost 5 years. The physician assistant did not conduct any testing of Plaintiff’s mental functioning/well-being to determine what his therapeutic needs may have been or how the dog was uniquely able to meet them. The court found that Plaintiff failed to prove that other dogs, not covered by the breed restriction, could not provide comparable benefit.
