It is commonly understood that people can win the right to have companion animals in no-pet housing if they have a “doctor`s letter” attesting to the need for a support animal. In the past, association boards have gotten away with denying doctors` letters several ways. New HUD (U.S. Department of Housing and Urban Development) rules (1) that were adopted in October of 2008 strike down some of the obstacles to ESAs in “no pet” housing.
According to Gary A. Poliakoff, head of the Becker and Poliakoff law firm that represents many condo associations in Florida, “…The Courts and the U.S. Department of Housing and Urban Development (HUD) have interpreted the [Federal Fair Housing Act] to allow not only trained service animals, but also emotional support animals. [The new] HUD Rules on the subject will vastly expand the definition of those pets allowed to such an extent, that if approved, will pretty much eviscerate no pet restrictions…” (2)
1) ESAs do NOT have to be “task-trained.”
In a recent case in Boca Raton, Florida, a woman returned from the hospital after nearly dying from a rare type of pneumonia. She became very depressed, not wanting to get out of bed or eat. Her family worried about her. Her physician, also concerned, advised her to get a dog, which made a big difference and she snapped out of her depression. But she lived in a no-pets allowed condo and the association board came after her. She retained a lawyer. The lawyer had her agree to go through arbitration through the Florida DBPR (Department of Business and Professional Regulation), the unit that oversees condo associations. The arbitrator decided that the dog was not a service dog because it did not perform a specific task for her and she lost. She appealed through the courts, but the judge used the opinion from the DBPR arbitrator. The problem with these decisions is that neither the arbitrator, nor the judge, was knowledgeable about emotional support animals.
Many sources say ESAs are not “service animals (3), unless they have been task-trained, for instance like seeing eye dogs” but these sources are incorrect. Psychiatric service animals perform specific tasks for the benefit of individuals with psychiatric, cognitive, or mental disabilities. The federal Department of Justice (4) lists some examples of tasks done by psychiatric service animals: reminding their handlers to take medication, providing safety checks or room searches, turning on lights for persons with Post Traumatic Stress Disorder, interrupting self-mutilation by persons with dissociative identity disorders, keeping disoriented individuals from danger, detecting the onset of psychiatric episodes, and ameliorating their effects.
It is this last task (ameliorating the effect of psychiatric episodes) that intersects with the abilities of emotional support animals. The term “ameliorate” is defined by Merriam Webster dictionary as a transitive verb: to make better or more tolerable. Without any specialized task-specific training, a companion animal that has a close bond with its human instinctively and by its very nature ameliorates episodes of conditions such as anxiety and depression. A cat`s purr or a dog wagging its tail can be enough to stem a panic attack or keep someone from sinking into a deep depression.
Animal law expert, attorney Marcy LaHart of Palm Beach County, Florida says whether ESAs are “service animals” or not is a semantic distinction of very little relevance. According to LaHart, federal law does not require that a disabled person seeking a waiver of a no pet provision for an emotional support animal provides proof that the animal was certified or specially trained. However, the right to accommodation of emotional support animals is typically confined to the waiver of no pet rules in housing. Traditional service animals such as seeing eye dogs or seizure alert dogs may accompany their guardians in restaurants, on airplanes, and in other places where companion animals are not allowed, ESAs may not.
The wording in the new HUD rules (5) says, “emotional support animals do not need training to ameliorate the effects of a person`s mental and emotional disabilities. Emotional support animals by their very nature, and without training, may relieve depression and anxiety, and/or help reduce stress-induced pain in persons with certain medical conditions affected by stress.”
2) The letter documenting the need for an ESA can come from any qualified medical or mental health professional
In another recent case, a woman in Fort Lauderdale, Florida was told she could not keep her companion cat because, while she had letters from her doctor and a neurologist, she did not have a letter from a psychiatrist.
The new HUD rules (6) clarify who is authorized to documentation of the need for an ESA. HUD specifies that the letter may come from a “physician, psychiatrist, social worker, or other mental health professional.” In Florida, “other mental health professionals” refers to the following health care professionals duly licensed by the Florida Department of Health:
* licensed mental health counselors
* licensed clinical psychologists
* licensed clinical social workers
* licensed marriage and family therapists. (7)
Citizens for Pets in Condos (8) supports the idea of legislation (9) to clarify the right to have emotional support animals in no-pet housing. First of all, a support animal does not need task-specific training to be able to ameliorate a psychiatric, cognitive, or mental disability. Secondly, psychiatrists are not the only professionals qualified to write a letter attesting to the need for an emotional support animal.10 Any medical professional who can write prescriptions for medications for emotional conditions or any mental health professional who is licensed to do mental health counseling therapy is qualified to write the “doctors letter.” The letter must say that the animal is necessary to ameliorate and help with life functions for a condition covered under DSM4 or ICD9 (which are diagnostic codes used by these medical and mental health professionals). The letter does not have to give details of the nature of the disorder, in order not to invade the patient`s privacy per the Health Insurance Portability and Accountability Act. (11)
Local laws to clarify the right to have ESAs do several things. They put language scattered in different areas of federal law and rulings, under disability law, fair housing law and rehabilitation law together in one place where even someone without expensive legal counsel can point to a clear statement of law. ESA legislation at the local level helps to keep local law in sync with federal standards. “We`ve come a long way in understanding and promoting a comprehensive approach to mental health. We shouldn`t be going backwards by excluding and denigrating entire fields of science-based professions and methods,” says Barbara Feeney, MPA, public health administration advisor.
The latest updates to HUD rules should go a long way to ensure the right of people to have emotional support animals in “no-pet” housing and also ease the way for a more reasonable attitude about having pets. California law, established in 2001 states that: “No governing documents shall prohibit an owner of a separate interest within a common interest development from keeping at least one pet within the common interest development subject to reasonable rules and regulations of the association.” (12) The law also applies to mobile home parks. Under California law, “governing documents,” by the way, includes “operating rules.” This landmark Californian legislation was preceded by a law to clarify the right to have ESAs in California.
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