By Laura M. Manning-Hudson / Published October 2020
The growing popularity of emotional support animals has led to numerous issues involving ESAs in such settings as transportation, hospitality, dining, retail, and housing. These incidents, some of which involve what are traditionally considered livestock animals, such as pigs and turkeys, have created changes in public perceptions due to fraudulent claims and bogus certifications for ESAs.
In response, both the federal government and the state of Florida have initiated new guidance and laws addressing ESAs. Earlier this year, the U.S. Department of Housing and Urban Development released new official guidance for assistance animal requests and the responses to such requests by housing providers under the Fair Housing Act.
The federal housing agency reported that complaints concerning denials of reasonable accommodations for assistance animals have been growing significantly, and they now represent one of the most common types of FHA complaints that HUD receives.
The agency’s new guidance is intended to serve as a tool for both housing providers and those persons with disabilities. It covers many of the best practices for providers faced with requests for reasonable accommodations involving assistance animals.
The guidance should help to make it easier for housing providers and individuals requesting an accommodation to gain a good understanding of the applicable laws. For requests for emotional support animals in which the underlying disability may not be readily observable, HUD states that housing providers may request information regarding both the disability and the disability-related need for the animal, but they are not entitled to know an individual’s diagnosis.
The agency’s guidance also addresses websites that sell certificates, registrations, and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee. The FHA enables housing providers to request reliable documentation when an individual requesting a reasonable accommodation has a disability-related need for an assistance animal, and the HUD guidance clarifies that documentation from such websites is insufficient to reliably establish that an individual has a non-observable disability or disability-related need.
HUD also notes that reliable documentation would, for example, come from healthcare providers who have personal knowledge of a patient and who confirm their disability and need for an animal.
The new guidance also clarifies the types of animals that may provide emotional support or other assistance. It makes specific distinctions between animals that are typically found in households, such as dogs and cats, and unique animals that are not typically found in homes, such as as livestock. Accordingly, those who are seeking a reasonable accommodation for a unique animal will face a substantial burden in demonstrating how such animal directly meets a disability-related need.
On the state level, Florida now has a new law in effect to prohibit discrimination by housing providers against those who require ESAs and also ban healthcare practitioners from providing information regarding a person’s need for an emotional support animal without having personal knowledge of the person’s need for the animal.
The law requires a patient to establish the need for an ESA by delivering to the housing provider supporting information from a licensed healthcare practitioner, a telehealth provider, or other similarly licensed practitioner, including an out-of-state practitioner who has provided in-person care or services to the patient on at least one occasion. Housing providers may establish a routine method for receiving and processing ESA requests. However, they cannot require the use of any specific forms, deny a request solely because the resident did not follow their methods, or request information that discloses the diagnosis or severity of the resident’s disability.
The law also makes the individual requiring the ESA liable for any dam-ages done to the premises by the ESA. Finally, a person who falsifies information or written documentation as having a disability requiring the need for an ESA commits a misdemeanor of the second degree, punishable by law.
Legitimate requests for ESAs by disabled residents are being accommodated and protected by state and federal laws, but the new HUD guidance and Florida law represent important measures to address how requests are verified and fraud may be prevented. Community associations have applauded these new measures aimed at curtailing fraudulent requests for accommodations for ESAs while also providing clear guidance for their vetting and approval process.
Considering these recent changes, associations would be well advised to consult with highly qualified and experienced community association legal counsel for a careful review of their procedures for ESA requests and approvals. They should also consult with their attorneys about any future requests for such an accommodation that appears to be questionable and may require close examination. By relying on the new guidance from the federal government and the new Florida law for their vetting procedures, associations will be able to properly analyze these requests and weed out any that do not meet these federal and state standards.
Laura M. Manning-Hudson
Lawyer, Siegfried Rivera
Partner Laura M. Manning-Hudson with the South Florida law firm of Siegfried Rivera has focused on representing condominium and homeowners associations in matters involving all aspects of community association law since 1998. She is based at the firm’s office in West Palm Beach and is a regular contributor to its community association law blog, www.FloridaHOALawyerBlog.com. The firm represents more than 800 community associations, and it also maintains offices in Miami-Dade and Broward counties. For more information, visit www.SiegfriedRivera.com or call (561) 296-5444.