Published on: July 26, 2017
By Matthew Gaines
We face many challenges in life. Obtaining a doctor’s note certifying the need for an emotional support animal isn’t one of them. And for condo association board members and managers, this is a source of considerable and increasing frustration.
The federal Fair Housing Act and its Massachusetts counterpart (MGL c. 151B) require housing providers, including condominium and homeowner associations, to offer “reasonable accommodations” to residents who suffer from physical or emotional disabilities. If the disability isn’t obvious, as it would be for someone who is blind or in a wheelchair, the laws also require individuals seeking an accommodation to document their need for it. And for people asserting their need for an emotional support animal, that documentation is amazingly easy to obtain.
I discovered this first-hand a few years ago, when a Massachusetts condo owner submitted a letter from a therapist in Oregon, asserting that the therapist had evaluated the owner and determined that she needed a dog to help her deal with chronic depression. This struck me as a bit fishy, so I checked out the therapist’s web site and found instructions suggesting that if I filled out an on-line questionnaire and paid the required fee, I would receive a letter like the one the accommodation-seeking owner had presented to my condo association client.
To test the process, I filled out the form, which took me perhaps 20 minutes. The questions weren’t exactly probing, to say the least. A couple of examples: “When you come home from work, do you feel: a) Very happy; B) Somewhat happy; c) Somewhat sad; or d) Very sad? Does a dog make you feel: a) Much happier; b) Somewhat happier; c) Frightened; or d) No different.
I submitted the form with my credit card information, and about two weeks later, I received a letter from the therapist with whom I had never spoken directly, saying I suffered from anxiety and prescribing a dog living with me to deal with the condition.
When I went through this exercise about five years ago, letters from on-line therapists were fairly rare – I would see perhaps one or two a year, at most. I’ve reviewed seven so far this year, and other attorneys say they are seeing the same trend.
I want to make one point before going any further with this rant: Many people suffer from serious emotional problems that impair their ability to function. They have a legitimate need for help that emotional support animals may provide. The problem for condo associations results from folks who are claiming disabilities they don’t have in order to keep pets in communities with restrictions prohibiting them. While emotional problems are no less real and no less debilitating than physical ones, they are invisible, which makes them harder to identify and easier to feign.
Long Distance Therapy
My experience with that very accommodating on-line therapist who certified my need for a therapy dog was hardly unique; and that therapist is by no means the only one offering on-line diagnoses for patients with whom they have had no personal contact.
Several of the letters I’ve reviewed have come from the same, Los Angeles, CA therapist — Carla Black. Except for the names of the patients and the dates, the letters are identical, asserting that the named patient “has a disorder for which an emotional support animal will help provide the relief that traditional medications cannot….To help [this individual] alleviate these difficulties, enhance his ability to function and live independently and to fully use and enjoy [his residence], I have prescribed… [this pet] for emotional support.”
Ms. Black has been quoted often in articles exploring (and sometimes questioning) the growing demand for therapy animals. In one, a reporter who had filled out her on-line questionnaire (and received a prescription for “one goat for emotional support)”asked how she could diagnose and treat patients she has never met. She responded that while direct communication with patients is often desirable, it wasn’t necessary here because the answers the reporter had provided in the questionnaire “were complete and informative.” Besides, Ms. Black pointed out, “it is just as easy to lie in person – and [lies are] just as hard to detect.”
That’s a fairly accurate summary of the challenge condo boards confront when they review an owner’s request for an emotional support animal.
Registered, Certified and Bogus
Some owners attempt to strengthen their case by submitting, in addition to the therapist’s note, a certificate from the US Animal Registry, or other similar company, proclaiming that their pet is a “registered emotional support animal.” This is a completely bogus representation. The US Animal Registry isn’t an official organization, a registered emotional support animal isn’t an official designation, and the designation doesn’t certify that an animal has completed a formal training program, because there is no such thing.
Unlike service animals, which are specially trained to assist people with physical disabilities, emotional support animals aren’t required to have any training at all. You can order an official-looking ‘registered emotional support animal’ certificate and a nifty ESA (emotional support animal) vest on-line. Put the certificate in your wallet, strap the vest on your dog or cat (who probably won’t like it), and presto – your family pet is now an emotional support animal.
Therapy pets aren’t limited to dogs and cats; pigs, goats, ducks, turkeys, snakes and kangaroos are on a long and growing list of animals deemed essential to the emotional health of their owners and entitled (at least theoretically) to live in buildings where pets are prohibited and to go where animals (other than trained service animals) aren’t otherwise allowed, including on planes, where support animals are entitled to travel free, sitting on their owners’ laps or in the aisle, and not confined, as other animals must be, in carriers under the seat.
Condo associations aren’t alone in thinking the demand for therapy animals is getting out of hand. The airlines in particular are pushing back. As one recent article notes: “Air carriers are frustrated that many healthy passengers are abusing the rules, claiming their pets are therapy animals to fly them for free in the cabin.” Sounds awfully familiar, doesn’t it?
The Massachusetts legislature has begun to address the issue, after a fashion. A pending measure would make it illegal to misrepresent a pet as a qualified “service dog,” when it doesn’t meet those requirements. The legislation references the Americans with Disabilities Act, which applies to restaurants and other public accommodations, but not to condominiums, which are covered by the Fair Housing Act. CAI-New England’s Massachusetts Legislative Action Committee is lobbying for amendments that would expand the legislation’s scope to include condominium owners and apartment renters who misrepresent their need for therapy animals. Enforcement would be difficult, but knowledge of the penalties, which include a fine of up to $500 and a community service requirement, might make at least some people think twice before claiming an emotional disability they don’t have.
Not a Solution
This legislation represents welcome acknowledgment of a serious problem, but even with amendments broadening its scope, it won’t be a solution for condo associations grappling with owners’ requests for emotional l support animals. And those requests will almost certainly continue to grow, as more owners recognize how easy it is to obtain documentation for fair housing accommodations requiring boards to waive restrictions on pets.
Boards must balance their awareness that some (and perhaps many) owners will abuse this process, with the knowledge that some accommodation requests – and some on-line certifications documenting them – will be legitimate. How do you distinguish between them?
You can’t – at least, not easily. One option is to reject all boilerplate on-line certifications and insist that owners provide documentation from a Massachusetts therapist. The advantage of this approach is, you avoid establishing a precedent requiring you to accept all of them. Setting a higher bar may also deter some owners from pursuing bogus documentation claims.
However, as speed bumps go, I have to admit, this one isn’t much of an obstacle. Finding a Massachusetts therapist willing to certify the need for a therapy animal isn’t particularly difficult. And associations that reject an on-line certification run the risk that the owner may file a discrimination suit, arguing that while these long-distance evaluations may seem suspicious to the board, no courts have rejected them and the board has no legal basis for doing so either.
At this point, you can either back down or you can go to court and fight the discrimination complaint. If you decide to fight, you may win a precedent-setting decision. The problem is, you can’t predict what that decision will be. Win or lose, the association will have to pay the legal costs, and if the court rules against you, the association may face a hefty discrimination penalty as well. Few associations are willing to incur these liability risks. The path of least resistance ― reject on-line certifications but don’t go to the mat if owners push back ─ seems to be the best option. It’s not a great choice, but it is the one with the fewest down side risks.
You might conclude from reading this discussion that the battle against bogus therapy pets is one that associations can’t easily win, and I wouldn’t disagree. Given the likelihood that more owners will be demanding accommodations for therapy animals, legitimate or not, associations with pet restrictions may want to rethink them. If half the owners in your community have pets, a policy banning them becomes pretty meaningless. Reasonable restrictions on the number, size, and type of pets owners can have probably make more sense and will certainly be easier to enforce.
Of course, there will be owners who insist that the pet goat or kangaroo or wild turkey your rules prohibit is essential to their emotional well-being, and they will no doubt be able to find therapists who agree. But I think the courts will be more likely than not to side with the associations in these disputes. At least, I hope so.
Marcus Errico Emmer & Brooks specializes in condo law, representing clients in Massachusetts, Rhode Island and New Hampshire.