Should You Certify an Emotional Support Animal? [Ethics & Risk Management]by William W. Deardorff, Ph.D, ABPP.
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OVERVIEW OF COURSE
This course will review the laws that relate to individuals with disabilities (ADA, ACAA and FHA), the rights of these individuals related to the use of service animals, the categories of service and emotional support animals, and ethical issues related to certifying such an animal for one’s own patient/client.
Since this area changes rapidly, please review the following resources for up to date information:
Mashable (2020). A complete guide to airline policy on emotional support animals.
COURSE OUTLINE
Learning Objectives Relevant Ethical Guidelines
INTRODUCTION
Individuals with disabilities (physical and/or mental) may use service animals and emotional support animals for a number of different reasons related to their disability. These animals often allow the individual with a disability to more fully participate in all aspects of everyday life. The right of an individual with a disability to have and use a service or emotional support animal depends on the type of animal, the function that the animal performs, and the setting in which the right is asserted. This area can be quite confusing since different federal and state laws govern the use of the animal depending on how it is categorized (e.g. service animal, emotional support animal, or both) and where it will function (housing, air transportation, train travel, other public transportation, public places including restaurants).
Mental health professionals are increasingly being asked to recommend either a psychiatric service animal or emotional support animal for their clients/patients (Ensminger and Thomas, 2013, Von Bergen, 2015; Younggren, Boisvert, & Boness, 2016). Although some professionals may approach these requests with a somewhat cavalier attitude (“Sure, why not, what could it hurt” – “Of course I would do that for my patient”), it is important to have a reasonable and defensible understanding of all the issues including but not limited to the following:
What exactly is being requested by the patient (e.g. psychiatric service animal versus emotional support animal), Why is it being requested (to what end?), Does the patient actually qualify based on his/her psychological symptoms? Do the symptoms cause substantial disability? Will the animal provide some actual benefit in terms of amelioration of symptoms and improvement in function? Is this animal truly something other than a pet? Can the recommendation be objectively supported?
Different state and/or federal laws will apply to different situations. Under federal law, service animals are covered by the Rehabilitation Act, the Americans with Disabilities Act (ADA), the Fair Housing Amendments Act (FHA), and the Air Carriers Access Act (ACAA). Emotional support animals are covered by the FHA and the ACAA. To add to the confusion, it should be noted that there is no national certification or registration system for service animals or emotional support animals. However, there are organizations that set standards for qualifications and training for certain types of service animals (e.g. International Guide Dog Foundation, Assistance Dog International). Even though there is no national certification or registration of these animals, that does not stop for-profit organizations and businesses from providing a variety of items that make it appear an animal is somehow specially licensed by a governmental body. This might include ID cards, animal vests, tags, etc. Although these items might help the person with a disability navigate public places more easily, it is not required by law and often abused. For instance, the card to the left is available for purchase on Amazon by anyone. Notice that it says that “Full Access Required by Law” for the Emotional Support Animal. As we will see, this is not true for an Emotional Support Animal (only service animals, and then there are exceptions). Basically, anyone can purchase these various items and place them on his or her pet. There are fines if caught, but many places of business are very hesitant to question the validity of these items for fear of being sued (if, in fact, they validly represent a service animal). As will be discussed, there are two questions that can be asked of the individual with a service animal if the disability is not “readily apparent”.
Federal Laws Guaranteeing the Rights of Individuals with Disabilities
Americans with Disabilities Act. The Americans with Disabilities Act (ADA) noted that discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services. The Act includes specific subchapters regarding employment, public services primarily provided by state and local governments, and public accommodations and services operated by private entities. The definition of “specified public transportation” in the ADA specifically excludes aircraft, as to which disability-related provisions are included in the Air Carrier Access Act. The definition of “commercial facilities” specifically does not include facilities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968. These ADA statutory provisions do not mention service animals. Rather, the requirements relevant to service animals are elaborated in the Code of Federal Regulations. The DOJ (2011) defines a service animal as “any dog [some exceptions for a miniature horse] that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability” (p. 56269). Other species of animals are not service animals for the purposes of this definition. The DOJ is explicit that the following animals are not considered service animals under the ADA and ADAA: 1) any animals besides dogs; 2) animals that serve solely to provide a crime deterrent effect; and 3) emotional support, comfort, or companionship animals (DOJ, 2011).
Air Carrier Access Act. Relative to air transportation, the Air Carrier Access Act (ACAA) provides that an air carrier may not discriminate against an individual who “has a physical or mental impairment that substantially limits one or more major life activities,” an individual who “has a record of such impairment,” or an individual who is “regarded as having such an impairment” (49 U.S.C. 41705). As with the ADA, the ACAA rules on service animals are provided in regulations issued by an implementing agency, in this case the Department of Transportation (DOT). The DOT has produced official guidance documents, published in the Federal Register, which are designed to allow practical application of the rules by airline personnel, particularly personnel at the gates whom the airlines delegate as responsible for determining whether a passenger has an animal qualified to fly in the cabin with the passenger.
Fair Housing Act. Relative to housing, the Fair Housing Act (FHA) precludes discrimination against individuals with handicaps in housing accommodations. Regulations issued by the Department of Housing and Urban Development (HUD) elaborate on this requirement by requiring that certain types of housing providers not impose no-pets rules on “animals that are used to assist, support, or provide service to persons with disabilities” The HUD regulations are less specific as to general housing requirements (as opposed to HUD-assisted public housing) and, in such situations, there has been considerably more involvement of the courts, which has resulted in some variation among the states given that state and federal courts have not been entirely consistent in their interpretations of the requirements for landlords and condominium associations with regard to residents using specialized animals for medical or psychological reasons.
Definitions: Service animal, psychiatric service animal and emotional support animal
What is a service or psychiatric service animal under the ADA?
There are specific definitions of “service animals” in the law, and there are different definitions depending on where the animal is being taken. The ADA contains a definition of service animals that applies only in the context of taking an animal into certain types of public spaces. The right to access housing and air transportation is covered under different laws as reviewed previously, and will be discussed in further detail subsequently. According to the U.S. Department of Justice fact sheet (click DOJ for a copy), under the ADA, a “service animal” is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person’s disability. The dog must be trained to take a specific action when needed to assist the person with a disability. For example, a person with diabetes may have a dog that is trained to alert him when his blood sugar reaches high or low levels. Or, a person who has epilepsy may have a dog that is trained to detect the onset of a seizure and then help the person remain safe during the seizure. Other examples of work or tasks related to an individual’s physical disability include “assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities.” Under the 2010 ADA regulations, a “service animal” is defined as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” Although this definition is limited to dogs, federal regulations provide that under the ADA, miniature horses must be allowed as service animals as a reasonable modification in policies, practices, or procedures if they are individually trained to benefit an individual with a disability and can be reasonably accommodated.
Under federal law, a dog that is trained to perform tasks that benefit a person with psychiatric disabilities is a “psychiatric service animal.” Similar to assistance with physical disabilities, a psychiatric service animal must be trained to work or perform a task such as reminding the individual to take medication or alerting the individual to the onset of psychological symptoms in an effort to stop the occurrence (e.g. panic attack, PTSD) What type of work must a psychiatric service animal be trained to do?
The work or tasks performed by a service animal must be directly related to the individual's disability. Some examples of tasks that psychiatric service animals perform include: preventing or interrupting impulsive or destructive behaviors; reminding the individuals to take medicine, providing safety checks or room searches for persons with Post-Traumatic Stress Disorder (PTSD), interrupting self-mutilation, and removing disoriented individuals from dangerous situations. There is no specific legal requirement as to the “amount or type of work a service animal must provide for the benefit of the disabled person” (Green v. Housing Auth. Of Clackamas County, 1998). However, “[t]he crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks.”
An animal is not a service animal if its mere presence benefits the individual with a disability. A service animal must be “trained to respond to the individual’s needs. . . The process must have two steps: Recognition and response”. For example, if a service animal senses that a person is about to have a psychiatric episode and it is trained to respond (e.g. by nudging, barking, or removing the individual to a safe location until the episode subsides), then the animal has performed a task or done work on behalf of the individual with the disability. How does a dog qualify as a service animal under the ADA?
The only requirement to be a service animal is that the dog be individually trained to benefit the person with a disability (Bronk v. Ineichin, 1995). A service animal may be trained by a non-certified professional, a friend, a family member, or the person with a disability. Under the ADA, a service dog is not required to be registered as a service dog, or wear a special tag or vest identifying it as a service animal.
An individual with a disability may choose to use a tag (or a vest) as a convenient way to identify a dog as a service animal, but it is not required. However, because local governments do not make an independent assessment as to whether an animal is trained to perform work or tasks for the benefit of the individual with a disability, the tags do not have any legal significance. Even if an individual is issued an identification tag for the service animal, the animal must meet the requirements of a service animal in order to be protected under federal and state law.
How does the service animal have to behave?
The handler is responsible for the care and supervision of his or her service animal. If a service animal behaves in an unacceptable way and the person with a disability does not control the animal, a business or other entity does not have to allow the animal onto its premises. Uncontrolled barking, jumping on other people, or running away from the handler are examples of unacceptable behavior for a service animal. A business has the right to deny access to a dog that disrupts their business. For example, a service dog that barks repeatedly and disrupts another patron’s enjoyment of a movie could be asked to leave the theater. Businesses, public programs, and transportation providers may exclude a service animal when the animal’s behavior poses a direct threat to the health or safety of others. If a service animal is growling at other shoppers at a grocery store, the handler may be asked to remove the animal.
The ADA requires the animal to be under the control of the handler. This can occur using a harness, leash, or other tether. However, in cases where either the handler is unable to hold a tether because of a disability or its use would interfere with the service animal’s safe, effective performance of work or tasks, the service animal must be under the handler’s control by some other means, such as voice control. In addition, the animal must be housebroken, be cared for and supervised by the handler,
Under the Title II and III of the ADA, service animals are limited to dogs. However, entities must make reasonable modifications in policies to allow individuals with disabilities to use miniature horses if they have been individually trained to do work or perform tasks for individuals with disabilities.
What is an emotional support animal?
Emotional support animals (also known as therapy animals, comfort animals and companion animals) provide comfort and symptom amelioration to a person with a psychiatric disability, but are not trained to perform specific tasks to assist them (e.g. according to HUD, “the presence of which ameliorates the effects of a mental or emotional disability”). Emotional support animals may also be used as part of a specific medical or psychological treatment plan, or simply for “support”. These support animals may be used to address psychological, social, and behavioral issues such as depression, anxiety, loneliness, social anxiety, phobias, etc. The support animal might provide help with all of these issues, but does so without specific training to perform a task that benefits amelioration of the symptoms or disability (the animal does so by its mere presence). As such, an emotional support animal is not covered by the ADA but is addressed in other federal laws (HUD; DOT; ACAA) and state laws.
What is the difference between an emotional support animal and a service animal?
Emotional support animals are not trained to perform specific tasks to assist them. Emotional support animals are not covered under the ADA and other similar laws that apply specifically to service animals. However, as will be discussed, under the FHA (HUD) and state laws, emotional support animals may be allowed to accompany individuals in housing as “reasonable accommodations” or “reasonable modifications” for the individual’s disability. Emotional support animals may also be allowed on airplanes under the ACAA (as will be discussed).
Emotional support animals, unlike service animals, are not limited to dogs (or miniature horses). The provision of emotional support, well-being, comfort, or companionship is not the type of “work or tasks” considered in the ADA’s definition of service animal. However, if a dog was individually trained to perform work or tasks for the benefit of an individual with a disability in addition to providing comfort or support, it may still be considered a “service animal”.
Access to Public Entities for Service and Support Animals Under the ADA, where can the individual go with a psychiatric service animal?
Regulations from the DOJ under the ADA require that all public entities and places of public accommodation provide modifications in their policies to accommodate the use of service animals. A place of public accommodations, which is a “facility operated by a private entity whose operations affect commerce,” must provide reasonable modifications of no-pets policies for a service animal. This includes places of lodging, establishments serving food or drink, places of entertainment, places for public gathering, sales or rental establishments, professional offices, hospitals, offices of health care providers, stations used for public transportation, museums and libraries, zoos, parks, places of recreation, places of exercise, places of education, and social service establishments. “Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a place of public accommodation where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.”
The reasonable modification mandate also applies to public entities such as state and local governmental entities, as well as private entities that receive federal funds. Therefore, service animals are also allowed into government buildings, public transportation services, and private entities that receive federal financial assistance. A public entity or a public accommodation cannot require a person with a disability to pay a deposit or surcharge in order to be accompanied by his or her service animal, even if that is their policy for pets.
The general law allows public accommodations and public entities to refuse to make “reasonable modifications in policies” (including “no pets” policies), if they can show that making such modifications would fundamentally alter the nature of such goods, services, privileges, advantages, programs, activities, or accommodations. Each determination must be addressed according to its individual facts, based on this standard.
Neither government entities nor public accommodations are required to permit access to their services, programs, and/or activities when an individual poses a direct threat to the health or safety of others. A "direct threat" is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. In determining whether a “direct threat” exists, an entity must make “an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids will mitigate the risk.”
While a showing that health and safety will be jeopardized if an animal is present could serve as a basis for excluding a service animal, allegations of safety risk must be based on actual risks rather than on mere speculation, stereotypes, or generalizations about individuals with disabilities or about a dog’s breed. A perceived threat without evidentiary basis will not likely support exclusion. Moreover, if other alternatives exist that can alleviate health and safety concerns while allowing service animals to accompany their owners, then these alternatives should be considered before a blanket exclusionary policy is implemented.
Is an emotional support animal allowed access to the same places as a psychiatric service animal?
Under ADA regulations, there are no protections for emotional support animals in terms of access to public accommodations and public entities. The DOJ has stated that emotional support animals are not protected as service animals under these regulations, and has implied that emotional support animals can no longer be protected as reasonable modifications in these contexts.
When out in public, what can the individual be asked about his/her disability and/or the service animal?
A public entity or a public accommodation “shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. [They] may ask (1) if the animal is required because of a disability and (2) what work or task the animal has been trained to perform.” A public entity or a public accommodation “shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal.” This clause is important to note since it means that the individual does not have to carry any documentation related to the service animal. However, most individuals do carry documentation, as well as having the animal where some type of identification (e.g. vest). This helps avoid problems when in public areas (even though it is not required).
Who is responsible for the care and supervision of a service animal and how must the animal behave in a public location?
A public entity or a public accommodation is not responsible for the care or supervision of a service animal. Rather the service dog’s supervision is the responsibility of the handler and or owner. Since emotional support animals are provided with fewer legal protections than psychiatric service animals, it is reasonable to conclude that owners are responsible for their care and supervision as well.
A service animal must have a harness, leash, or other tether, unless either the handler is unable because of disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g. voice control, signals, or other effective means). Service dogs are not required to be on a leash if being on a leash would affect the ability of the dog to perform its service. Nor are dogs required to be in carriers. They are only required to be “under the control of its handler.”
Service dogs cannot be prohibited from being on furniture if it is necessary to do their work. For example, a service dog may need to be on furniture to perform pressure therapy for a person having a seizure and may need to climb on a couch to perform the task. Dogs who alert to psychiatric episodes by watching a person’s face may need to be on an adjacent chair if they would be unable to see the person’s face from under a table and there is no safe floor space for the dog. Also, service dogs might need to be intentionally disruptive if that is part of their function. A service dog that barks in a concert hall to alert its owner to medical issues will not be deemed sufficiently “disruptive” to exclude the dog as a fundamental alteration, if comparable noise from a person would be tolerated. Service animals may be excluded from limited access areas of a hospital that employ general infection-control measures, such as operating rooms and burn units. A service animal may accompany its handler to such areas of a hospital as admissions and discharge offices, the emergency room, inpatient and outpatient rooms, examining and diagnostic rooms, clinics, rehabilitation therapy areas, the cafeteria and vending areas, the pharmacy, restrooms, and all other areas of the facility where healthcare personnel, patients, and visitors are permitted without taking added precautions. When can a service dog be excluded from a business or other place of public accommodations?
There are limited reasons that a service dog can be excluded from a place of public accommodation under the ADA: (1) When its presence would fundamentally alter the program, benefit, service, etc.; or (2) when the dog poses a direct threat to the health and safety of others. Accordingly, a person with a disability can be asked to remove his or her service animal from the premises if: “(1) the animal is out of control and the animal’s owner does not take effective action to control it; or (2) the animal is not housebroken.” However, a service dog is not automatically excluded if the dog has an “accident.” The guidance that accompanies the regulation says that the dog must be trained to retain waste. An occasional accident is allowed. Businesses generally may not deny access or refuse service because of allergies or fear of animals. If a public accommodation or public entity “normally charges its guests for damage caused to the premises, it may charge the owner of a service animal if the animal causes damage.”
Housing Rights Under The FHAA
This section will discuss federal law (FHAA) specifically related to housing and a service animal or emotional support animal. As discussed previously, the ADA does not address housing and does not address emotional support animals (only service animals). The FHAA addresses both service and emotional support animals (using the term “assistance animal”). Click here for a detailed fact sheet on Fair Housing information (in the public domain at Bazelon.org). If a housing complex has a “No-Pets” policy, must the landlord/HOA allow a psychiatric service animal or emotional support animal?
Housing discrimination against persons with disabilities is prohibited both under federal law in the FHAA and under comparable state laws (click here for the HUD Pet Section and here for the HUD Service Animal Notice). Under these laws, landlords and homeowners’ associations must make reasonable accommodations for people with disabilities. Reasonable accommodations are exceptions to rules or policies necessary in order to allow persons with disabilities to have an equal opportunity to use and enjoy a dwelling as compared to persons without disabilities. The obligation to make reasonable accommodations includes a requirement that housing providers make exceptions to a “no-pets” policy to permit persons with disabilities to use and live with either a service or emotional support animal.
In the context of housing, the federal government uses a more inclusive definition of what types of animals must be allowed in housing as a reasonable accommodation under the Fair Housing Act. The broader term used in housing is “assistance animal.” An assistance animal is “an animal that works, provides assistance, or performs tasks for the benefit of the person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a persons’ disability”. This means that, in addition to service animals, emotional support animals and animals that provide some type of disability-related assistance are permitted as a reasonable accommodation in housing. Also, assistance animals can be any type of animal, not just a dog or miniature horse.
For example, a cat that provides emotional support to a person with a disability could be permitted as a reasonable accommodation in housing because it is an assistance animal. However, the same cat would not be covered by the ADA’s narrower definition of “service animal” and could not come into public spaces. There is no requirement that the animal be specially trained or certified; however, the animal must provide a disability-related benefit to the individual with a disability.
If the animal poses a direct threat to others, would cause substantial physical harm to the property of others, imposes undue financial or administrative burden to the landlord, or fundamentally alters the nature of the services provided by the landlord, then the landlord may refuse to allow a service or support animal. The direct threat must be determined by individual assessment of the animal, not stereotypes about the breed. Owners must ensure that their service or emotional support animal complies with state and local animal control laws and is not a danger or nuisance to the community. Providing proof of disability and/or qualifications of the animal (service animal or emotional support animal)
If an individual is seeking a reasonable accommodation for a service or emotional support animal for housing, a landlord or homeowner’s association may ask for documentation that there is a disability and that there is a disability-related need for the animal.
However, according to the law, the landlord should not request documentation if the disability and disability-related need for the service or support animal is obvious or the landlord otherwise should have known about the disability and need. In addition, there are limits on how much information a housing provider can ask for from the individual. According to the law, a housing provider “may not ask an applicant or tenant to provide access to medical records or medical providers or provide detailed or extensive information or documentation of a person’s physical or mental impairments.”
Can a landlord make the individual pay a fee to keep a service animal or emotional support animal?
A housing provider may not require an applicant or tenant to pay a fee or a security deposit as a condition of allowing the applicant or tenant to keep the assistance (emotional support or service) animal. However, if the individual’s assistance animal causes damage to the applicant’s unit or the common areas of the dwelling, at that time, the housing provider may charge the individual for the cost of repairing the damage if the provider regularly charges tenants for any damage they cause to the premises. However, the landlord should only charge for excessive damage beyond what might be considered ordinary wear-and-tear. Airplane travel rights under the ACAA
Can a service animal or emotional support animal be taken on an airplane?
In determining whether an animal is a service animal, carriers may accept “identification cards, other written documentation, presence of harnesses, tags, or the credible verbal assurances of a qualified individual with a disability…” The ACAA distinguishes among service animals by the purpose of such animals. The DOT's final rule acknowledged the concern by some service animal advocacy groups that allowing for emotional support animals in the cabin may provide an opportunity for abuse by passengers that want to travel with pets. The DOT added safeguards to reduce the likelihood of abuse, but “believes that there can be some circumstances in which a passenger may legitimately travel with an emotional support animal.” The rules require that persons with disabilities using emotional support or psychiatric service animals may be required to provide current documentation on the letterhead of a licensed mental health professional, stating the following information:
It is acceptable to require that advance notice be provided to the air carrier if there will be transportation of an emotional support or psychiatric service animal in the cabin (Click here for an example form used by American Airlines). The DOT recognized that there could be differences in how emotional support animals could be treated under the DOJ rules implementing the ADA with regard to places of public accommodation in airports.
Examples of unusual service animals that may be excluded include snakes and other reptiles, ferrets, rodents, and spiders. For some other species of animals such as miniature horses, pigs, and monkeys, U.S. carriers must determine whether factors such as the weight or size of the animal would preclude the animal traveling in the cabin as a service animal. If there are no such factors that would preclude the animal from traveling in the cabin, a U.S. carrier must permit the animal to do so.
The DOT's guidance document distinguishes between “service animals” and “service animals in training.” It reiterates that carriers are not required to carry animals, except for service animals and may set their own policy regarding the transportation of any other animals. Although the DOT recognized that “service animals in training” are not the same as pets, because those animals are still in training, such animals would not meet the definition of service animal and may be refused carriage. Summary of differences
The following Table shows the basic differences between a service animal (including psychiatric service animals) and emotional support animals.
As can be seen, service animals are covered by the ADA, FHAA, ACAA and DOT (as well as other federal laws). The animal performs a task or function and they have very broad access (almost everywhere the public can go). Emotional support animals are not covered by the ADA. As such, their access to public areas that do not normally allow animals, will be limited (e.g. restaurants, various businesses, shops, etc.). However, emotional support animals or “assistance” animals are specifically addressed related to housing and airline travel.
Selected Legal Cases related to psychiatric service animals and emotional support animals.
The following are a few selected legal cases related to psychiatric service animals and emotional support animals. This overview of cases underscores some of the complexities of the rights of the individual (especially when it impacts others such as landlords, passengers, etc.), what is allowed under the law, and what might be expected from the mental health professional relative to an expert opinion on necessity.
Green v. Housing Authority of Clackamas County, 994 F.Supp. 1253 (D. Oregon, 1998). Plaintiffs were tenants of a county housing authority and alleged that the housing authority violated the Americans with Disabilities Act, the Federal Fair Housing Amendments Act, and Section 504 of the Rehabilitation Act, by failing to reasonably accommodate their request for a waiver of a "no pets" policy to allow for a hearing assistance animal in the rental unit to reasonably accommodate a hearing disability. The housing authority argued that the dog was not a reasonable accommodation for the tenant's specific disability because the dog was not certified as a hearing assistance animal. The court granted plaintiff's motion for summary judgment, holding that the housing authority violated the federal statutes when it required proof from the tenants that the dog had received hearing assistance training.
Housing Authority of the City of New London v. Toni Tarrant, 1997 WL 30320 (Conn. 1997) (unpublished). A mother renting housing alleged that her son was "mentally challenged" and required the companionship of a dog pursuant to Section 504 of the Rehabilitation Act. The court rejected the tenant's allegations that her son had a qualifying mental disability, reasoning that the son received high marks in school prior to the commencing of the eviction proceedings. The court held that without evidence of a mental or physical disability, no reasonable accommodation is required.
Castillo Condominium v. US Dept. of HUD. In 2010, the Castillo Condominium Association learned that Carlo Giménez Bianco (Giménez), a condominium resident, was keeping a dog on the premises and warned him that he would be fined unless he removed the dog. Giménez, who suffered from anxiety and depression, advised the board of directors that he planned to keep his emotional support dog and that he was entitled to do so under federal law. As a result of the conflict, Giménez was forced to vacate and sell his unit and he filed a complaint of disability discrimination with the Department of Housing and Urban Development (HUD). HUD filed a charge of discrimination against the Association under the Fair Housing Act. An administrative law judge (ALJ) concluded that the Association had not violated the Act because Giménez failed to prove by a preponderance of the evidence that he suffered from a mental impairment. The ALJ’s decision was appealed to the Secretary, who found that Gimenez suffered from a cognizable disability. The Court of Appeals, First Circuit, held that substantial evidence supported the Secretary's finding that the Association's refusal to allow Gimenez to keep an emotional support dog in his condominium unit as a reasonable accommodation for his disability violated the Fair Housing Act. The Association’s petition for review was denied and the Secretary’s cross petition was granted.
Cordoves v. Miami-Dade Cnty (2015). This case arises out of an incident at the Dadeland Mall, during which plaintiff had a confrontation with security personnel that ended with her arrest. The incident was precipitated by the presence of a small dog plaintiff was toting in a stroller while shopping with her mother and daughter. Plaintiff alleged discrimination in public accommodations under the ADA, and excessive force in violation of the Fourth Amendment under § 1983. Defendants moved for summary judgment. The District Court denied the motion in part and granted the motion in part, finding that an issue of material fact existed as to whether the dog was a service animal; that the patron was precluded from bringing negligence claim premised on intentional torts; that officer's use of force in arresting patron was de minimis; and that the right to be free from officer's application of force was not clearly established.
Crossroads Apartments v. LeBoo (1991). Landlord brought an eviction proceeding against tenant with a history of mental illness for possession of a cat in his rental unit in violation of a no pets policy. Tenant alleged that he needed the cat to alleviate his "intense feelings of loneliness, anxiety, and depression, which are daily manifestations of his mental illness." The court held that in order to prove that the pet is necessary for the tenant to use and enjoy the dwelling, he must prove "that he has an emotional and psychological dependence on the cat which requires him to keep the cat in the apartment." The court denied the housing authority's motion for summary judgment, stating that there was a triable issue of fact as to whether the cat was necessary for the tenant to use and enjoy the dwelling.
Dilorenzo v. Costco (2007). Plaintiff is a disabled individual who suffers from a variety of ailments arising after her service in the armed forces. DiLorenzo obtained a letter from her psychologist outlining her disabilities and stating that she was a suitable candidate for a service animal. Plaintiff's claims arise from interactions with Costco store employees on two separate shopping trips with her “service dog”. Store employees inquired as to what task the dog performed and objected to the dog being carried in plaintiff's arms around the store. Plaintiff brings her claims under the Washington Law Against Discrimination (WLAD) and the federal Americans with Disabilities Act (ADA). The court found that Defendant's employees did not exceed the boundaries of a permissible inquiry under the ADA with regard to her service dog, where they never asked Plaintiff to state her disability or demanded proof of special training.
It should be noted that the “service” animal was a puppy and did not perform a specific task related to the individual’s disability. Thus, the animal would not be covered by the ADA. As discussed, emotional support animals are not covered by the ADA and this limits public access for this category of animal. Whereas an actual service animal would have to be admitted to Costco, an emotional service animal does not.
Overlook Mut. Homes v. Spencer (2009). The barking of Scooby the dog, caught the attention of nearby neighbors, and the Plaintiff, Overlook Mutual Housing Corporation. Overlook established a no-pet rule for its residents with an exception for service animals. Scooby's owners (the Spencers) received a letter warning them to remove the dog from their home. In response, the Spencers obtained a letter from Dr. Miriam Hoefflin, the treating psychologist, which requested that Overlook make a reasonable accommodation for their daughter Lynsey, who needed a support dog to facilitate in her psychological treatment. Overlook did not grant the Spencer's request for accommodation and filed a Complaint against them. The Spencers then filed a counter claim and Overlook then moved for summary judgment. The court stated that pet policies have to comply with the Federal Fair Housing Act (FHA). Based on the intent of the FHA to provide reasonable accommodation rather than public access like the ADA, HUD and the DOJ's recently revised regulations on the need for emotional support animals in HUD-assisted housing, and previous actions brought against housing providers that denied emotional support animals, this court concluded that emotional support animals can qualify as reasonable accommodations under the FHA. Further, the court held that they do not need to be individually trained like service animals. Overlook's motion for summary judgment was denied.
Storms v. Fred Meyer Stores (2005). This Washington discrimination case was brought by a dog owner (Storms) with psychiatric conditions against a store and its managers who refused to allow her to stay in store with her alleged service dog. The dog was trained to put herself between Storms and other people so as to keep an open area around Storms and alleviate her anxiety (a symptom of her post-traumatic stress syndrome). The appellate court found that there was sufficient evidence to establish a prima facie case of discrimination against Fred Meyer for refusing to allow her to shop accompanied by her dog. Testimony showed that Brandy had been specifically trained to help Storms with her particular disability by placing herself in between Storms and others in a way that alleviated her anxiety, which was further corroborated by testimony that Brandy engaged in such behavior. Thus, evidence showed that the defendants' violated RCW 49.60.215 by not allowing Storms to do her own shopping within the store because she was accompanied by a service animal.
Falin v. Condominium Ass'n of La Mer Estates (2012). In Falin, the plaintiff attempted to buy two rental units for himself and his 95-year-old mother, who suffered from dementia and related handicaps. However, his mother was barred because she had a three-pound Chihuahua, which allegedly provided emotional support. The Falins submitted a letter from Dr. Maxine Hamilton, Mrs. Falin’s physician, stating that the dog helped alleviate her disabilities and recommended that she be allowed to keep it as an emotional support animal. The defense (condominium management) attempted to discredit the medical evidence.
Dr. Hamilton “conceded that she had signed the letter (which Mr. Falin provided) without making sure that it was accurate.” Even so, the court found that Dr. Hamilton’s subsequent testimony was sufficient for a jury to find that “Ms. Falin’s dog was necessary to alleviate her disabilities,” which could include “at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability [quoting Bronk v. Ineichen]”:
Specifically, Dr. Hamilton opined that the dog helped remedy Ms. Falin’s anxiety, difficulty in sleeping, and related symptoms...That opinion was based on reports from Ms. Falin’s family members and the doctor’s own observations of Ms. Falin... . When asked by Plaintiff’s counsel how Ms. Falin would react if she did not have her dog, Dr. Hamilton stated, “I think she would get very agitated, distraught, become difficult to ... take care of.” ... This testimony is substantial evidence that would support a finding in Plaintiff’s favor on the necessity element of his reasonable-accommodation claim... And to the extent this evidence conflicts with Dr. Hamilton’s other testimony, it is the role of the jury—not this Court—to resolve that conflict.
Thus, the doctor’s testimony overcame the boiler-plate nature of the letter she had signed. The court denied the condominium development’s motion for summary judgment. The court held that an emotional support animal may be a reasonable accommodation under the FHA when the animal is necessary for a disabled person to enjoy equal housing rights.
Hawn v. Shoreline Towers (2009). In June 2004, Hawn purchased a condominium unit in Shoreline Towers. Hawn was aware of the “no pets policy.” In a letter to Shoreline dated January 5, 2005, Hawn wrote that he had recently gone on vacation and acquired a puppy named Booster. Hawn repeatedly referred to Booster as a “pet,” “pup,” and even a “companion,” but never as a service animal. Hawn said that “one impediment” that kept him from “enjoying [his] home” was Shoreline’s no pets policy.
Hawn recommended a change to Shoreline’s policy so as to permit homeowners to “own a pet” or for Shoreline to “agree to a 6-month trial period to give folks a chance to prove that they love their pets as one would love any other family member.” Shoreline did not respond to Hawn’s letter. Hawn sent another letter to Shoreline, dated June 25, 2006, in which he claimed that he suffered from a “physical disability and psychiatric disability.” Hawn alleged that he had suffered a “debilitating injury to [his] leg,” resulting in pain and restricted mobility. He also contended that “a long time [ago]” he was robbed, kidnaped, and assaulted by his friend’s stepson and that, when Hawn was out of town, this person lived in Hawn’s condominium unit without permission. Hawn claimed that the individual subsequently was arrested, but as a result of those experiences he “can never feel safe alone.” Hawn’s letter also discussed Booster and, for the first time, referred to him as a “service animal . . . dually trained to help me both physically and psychologically.”
Hawn requested that Booster be exempted from Shoreline’s no pets policy. Exhibits were attached in support of this request, including: (a) a document from the Service Animal Registry of America certifying Booster as a “Registered Service Animal”; (b) letters from Hawn’s chiropractor, Dr. Hoda, and psychologist, Dr. Evans, contending that a service animal was medically necessary for Hawn; and (c) a description of tasks that Booster could accomplish. The letter the psychologist is described by the court as follows:
In one letter, a psychologist, Patrick Evans, Ph.D., opined that the plaintiff suffered from severe panic attacks; was unable to properly cope with anxiety and stress; and was particularly vulnerable “while residing at his home/condo due to past occurrences on that property.” Dr. Evans thus wrote that he was “prescribing a service animal” to provide support and help plaintiff cope with his “emotionally crippling disability.”
The court apparently discounted the opinions of Dr. Evans, stating: Although the defendants could not have known this at the time, the record shows that at the time Dr. Evans signed this one-page letter, his entire treatment of plaintiff consisted of two recent one-hour counseling sessions. During the second session, the plaintiff gave Dr. Evans the “text” or “template” for the letter that he wanted to be sent to Shoreline. Dr. Evans testified during deposition that he used “much” of what the plaintiff wrote, although he “probably made some changes” to the letter before sending it to the board.
Sun Harbor Homeowners’ Assoc. v. Bonura (2012). The HOA filed a lawsuit to enforce its "no dogs allowed" rule against lot owner Bonura. Bonura filed a counterclaim against Sun Harbor in the lawsuit alleging that his fiancée was entitled to use of an "emotional therapy dog", and that Sun Harbor's actions in trying to have the dog removed were in violation of Florida's Fair Housing Act and the Federal Fair Housing Act. Bonura's claim was that his fiancée suffered from a disability which entitled her to a reasonable accommodation for the use of an emotional therapy dog. The trial court ruled in favor of Bonura and against Sun Harbor, finding that Bonura's fiancée was a handicapped person as defined under the Federal Fair Housing Act, and that she was entitled to an accommodation permitting her to possess her therapy dog. However, Florida's Fourth District Court of Appeal reversed the trial court's ruling, finding that the evidence presented to the trial court failed to establish that Bonura's fiancée was "handicapped under the Federal Act", that Sun Harbor had knowledge of a handicap, or that Sun Harbor refused to accommodate the fiancée after being given an opportunity to conduct a meaningful review following a request for accommodation. Part of the reason that the Bonura failed to prevail is that evidence from two different healthcare professionals (physician, psychiatrist) did not agree. According to court documents:
Dr. Ross testified via video deposition that he treated Ms. Vidoni between 2004 and 2005 for injuries she suffered as a result of a motor vehicle accident which occurred in 2004. He found that Ms. Vidoni had improved throughout the treatment period, and although she continued to have lingering deficits in coordination and dexterity, he concluded that she did not have any substantial limitation on any major life activity. Dr. Ross did not prescribe a therapy dog for Ms. Vidoni.
Dr. DeFilippo, a psychiatrist, saw Ms. Vidoni four times beginning in October 2009, some 4 months after the lawsuit was filed in this case. He reviewed Ms. Vidoni’s records, including a 2008 letter from Dr. Luciano Dias. Dr. DeFilippo opined that he believed a therapy dog was required for Ms. Vidoni’s condition because of her ongoing depression and anxiety, and his personal observation on two occasions of her interaction with the dog, which he noticed helped her with those troubles.
In determining the verdict, quoting from other case law, the appellate court said:
"The duty to make a reasonable accommodation does not simply spring from the fact that the handicapped person wants such an accommodation made. Defendants must instead have been given an opportunity to make a final decision with respect to a Plaintiff's request, which necessarily includes the ability to conduct a meaningful review of the requested accommodation to determine if such an accommodation is required by law."
Giving an admonition of caution, however, the appellate court pointed out that one of the facts supporting its ruling for Sun Harbor was that a prompt response was made to Bonura's reasonable accommodation request, and that failure to provide prompt responses to such requests may ". . . function as a denial." In arriving at its ruling for Sun Harbor, the appellate court summarized the elements required for a claimant to prevail in a lawsuit under the Federal Fair Housing Act as follows: (1) the claimant's handicap; (2) that the defendant had knowledge of the handicap; (3) that an accommodation may be necessary to afford the claimant to equal opportunity to use and enjoy the dwelling; (4) that the accommodation is reasonable; and (5) the defendant's refusal to make the requested accommodation.
The Court also pointed out that it has long been recognized by federal courts that a defendant has the right to perform a meaningful review of a request for an accommodation, to determine if the accommodation is required under the statute, and that the right to perform a meaningful review includes the right to request information from the allegedly disabled person in order to establish whether the disability exists and whether the accommodation is necessary.
Should You Recommend an Emotional Support Animal?
Mental health professionals are increasingly being asked to write letters certifying that an individual’s animal (usually a pet) qualified as an emotional support animal (ESA; See Younggren et al., 2016 for a review). Generally, the need for a service animal (SA) or psychiatric service animal (PSA) is more clear since the animal must be trained to complete a specific task or work that benefits or helps ameliorate aspects of the disability. SA and PSA are not considered pets. In these cases, establishing the need for such an animal is much more straightforward. As discussed, SAs and PSAs are specifically covered under the ADA, ACAA, and FHA. Service animals and psychiatric service animals have access to virtually anywhere the public can go. Given that issues related to SAs and PSAs are more straightforward, the following discussion will focus primarily on ESAs. However, all of the following principles apply to SAs and PSAs as well.
Online Certifications
The certification of ESAs has become a large commercial enterprise. A cursory search on the Internet shows how many companies offer “certifications” of all types (not only ESAs but also SA and PSA). These “assessments” usually involve filling a “psychological” questionnaire which is then reviewed by a clinical psychologist or mental health professional. Once it is determined that there is indeed a “substantial need” for the ESA, the recommendation letter is issue on the professional’s letterhead. On most of these sites, the questionnaire is actually scored immediately and the user is told that recommendation is likely. A fee is collected with the caveat that it will refunded if the mental health professional disagrees with the results of the questionnaire. As an unscientific test of one of these “assessments”, I decided to give it a try. The following is the home screen for one of hundreds of these certification web sites:
I was excited to “Get Started Now” so I pushed on with the evaluation. After this screen, I was presented with the following psychological questionnaire to complete. Each answer was to be rated (Never, Rarely, Sometimes, Usually, Always). I answered “Sometimes” to all of the questions. This seemed reasonable for anyone managing the usual, and fluctuating, daily stressors in life. I do not believe answering “sometimes” to all of these questions would amount to a definitive DSM diagnosis and the “substantial” need for an ESA.
The questionnaire concludes with a statement attesting to the fact that all the information was answered accurately (under penalty of perjury) and that the web site cannot be held liable for anything. After submitting my questionnaire responses, I was relieved to be presented with the following screen:
As can be seen, the results of my questionnaire suggested I would likely be approved by the “doctor” for an ESA. I am then asked to pay for which letters I would like (housing, travel, combo) and then reassured that I would be refunded if not approved by the “doctor”.
In all fairness, there are some web sites that do more than just a questionnaire. This one (below) does an initial questionnaire and then a diagnostic telephone interview with a mental health professional. The site specifically states that “At the end of the interview, our therapist will make a diagnosis and if they estimate that you suffer from an ailment which would benefit from the presence of an Emotional Support Animal, they will produce an ESA letter”. Of course, making a psychiatric diagnosis based on a cursory questionnaire and a telephone interview seems unethical on its face.
The ethical issues (violations) of these online certifications are numerous and obvious under all mental health professional ethics codes.
Collateral Consequences of Certifications
In appropriate cases, SA, PSA, and ESA are the right of the individual with a disability to help either ameliorate symptoms, improve function, or both. However, their use is always a balance between the rights and needs of the individual under the law, and the impact on society/public as a whole. A mental health professional might feel that it would be nice to help classify his or her patient’s pet as an ESA to help with mild psychological symptoms or stress. However, it must be kept in mind that the ESA also impacts others and often not in a positive way.
ESA letters mostly focus on housing and travel (air) since ESAs are specifically mentioned in those laws. As such, if an individual gets his or her pet certified as an ESA, it can live in a house or apartment with a no-pets policy. In addition, the landlord is not allowed to charge an extra fee or deposit for the ESA (even if the landlord might normally charge this for a tenant having a pet). Also, the ESA is allowed to travel on airplanes without any extra fee (assuming the ESA is in the passenger’s lap or under a seat).
In my own experience, I have had friends, family and patients ask for an ESA letter simply to be allowed to have a pet in “no-pets” housing, to avoid paying the pet deposit/fee in housing that allows pets, and/or be able to travel on an airplane with the pet (of course, I refused these requests since these were clearly not ESA animals). It is very important that the need for the ESA be legitimate. As can be seen in the review of legal cases, it is also important that the mental health professional be able to defend the certification of the patient’s need for the ESA if it is challenged by a landlord or other impacted individual or entity. As discussed by Tran-Lien (2013, p. 1), “Although unlikely, if the request for reasonable accommodation for the client's emotional support animal is denied, the client may take legal action against the landlord, homeowner's association, or airlines. If this should occur, it is possible that the client's psychotherapy records may be sought by one or both parties involved in the legal matter. You may also be called to testify in this case. This means that you must be ready to answer questions about your reasoning and professional opinion on this matter.”
The legal definition of disability
Federal statutes protect the rights of people with disabilities to keep emotional support animals (ESA) in their homes when the landlord has a no-pets policy and to travel on airlines with their emotional support animals (Fair Housing Act, FHA; Section 504 of the Rehabilitation Act of 1973; Air Carriers Access Act, ACAA). These laws require landlords and HOA’s to make reasonable accommodations for people with disabilities. The Department of Housing and Urban Development has stated that an exception to a no-pets policy would qualify as a reasonable accommodation. (See Tran-Lein, 2013 for a review. The following is a summary of the article). In order to qualify for a “reasonable accommodation” under these laws, the individual must meet the statutory definition of "disability." There are three broad categories of disabilities, which include (emphasis added):
1) a physical or mental impairment that substantially limits one or more major life activities, such as walking, working, learning, dressing, etc.;
2) a record of having such an impairment; or
3) being regarded as having such an impairment.
In addition, the ESA must perform a disability-related function, including but not limited to, providing emotional support to an individual with a disability that has a disability-related need for such support. The important issue here is the definition of “disability”. Under the law, the presence of the ESA is required because it helps to ameliorate the symptoms of the disability in some meaningful way. This goes significantly beyond a pet that happens to emotionally comfort an individual (who does not have a “substantial” psychological disability). Most pets provide some type of psychological and emotional comfort for their owners. From a legal standpoint, disability refers to a physical or mental impairment that substantially limits one or more major life activities (HUD, 2004; emphasis added). As discussed by Youngren et al. (2016), “Consequently, for the psychologist working with a patient, disability is not just a matter of discomfort, but a psychological disorder or problem and interferes with the patient’s ability to perform major life activities” (p. 5). The word “substantially” clearly goes beyond discomfort, daily stress, or normal fluctuations in mood. In addition, the ESA must be shown to provide disability-related benefit, which would imply going far beyond the individual simply enjoying company of his/her pet, or the normal positive feelings that any pet-owner might experience.
What must be included in the ESA letter?
The content of the ESA letter will vary depending on the need. Generally, there are two categories: Housing and/or Air Travel.
Housing Letter
The housing letter specifically prescribes an Emotional Support Animal for housing situations. The letter should be on the physician’s or mental health provider’s letterhead. The letter should include such things as the date, patient name, professional information, dates of evaluation or treatment of the patient, attestation that the patient meets the definition of disability, the patient’s limitations, a statement that an ESA is being prescribed, a statement about familiarity with the literature on ESAs, etc. The link provides a sample letter provided on the HUD website (click here for a copy).
As can be seen, the HUD sample letter has the professional attest to having cared for the individual, that the patient meets the definition of disability due to psychological symptoms, that the patient has limitations as a result, and that the ESA will assist the patient. The professional must also attest to being familiar with the research literature in this area.
Airline Letter
The Department of Transportation (DOT) has set specific guidelines for flying on commercial airlines with an Emotional Support Animal (ESA). Persons wishing to fly under provisions provided by the DOT must obtain a letter from a licensed mental health professional. The letter must meet the following criteria:
Must be from a verifiable mental health professional Must be printed on the professional’s office letterhead Must not be more than a year old The letter must state the following items:
The passenger has a mental health-related disability listed in the DSM. The diagnosis is not just a mental illness, but a mental illness that substantially limits at least one major life activity. Airlines are not allowed to require the disclosure of the specific mental disability or diagnosis – for example, panic attacks.
The presence of an animal is required (necessary) to maintain the passenger’s treatment or health.
The mental health professional must state that the indicated passenger is a patient under their personal care. The person must state what type of mental health professional they are (psychologist, psychiatrist, clinical social worker, etc.)
Airlines may also request documentation including the following:
The type of mental health license the professional has The license date The State issuing the license
The individual must review the guidelines of the airline s/he plans on flying in advance to assure that proper arrangements have been made prior to departure of the flight. Failure to follow all guidelines instituted by the airline could revoke the individual’s right to fly with an ESA. The individual could be charged normal pet travel fees or be excluded from flying with your ESA.
Following is a sample airline travel letter for an ESA. This should be on the practitioner’s letterhead.
[Date – not more than a year old] To Whom It May Concern: Due to this emotional/mental disability, [first name] has certain limitations related to [social interaction/coping with stress/anxiety, etc.]. In order to help alleviate these difficulties, and to enhance his/her ability to function independently, I have prescribed [first name] to obtain a pet or emotional support animal. The presence of this animal is necessary for the emotional/mental health of [patient name] because its presence will mitigate the symptoms he/she is currently experiencing. Please allow (patient’s full name) to be accompanied by his/her emotional support animal in the cabin of the aircraft, in accordance with the Air Carrier Access Act (49 U.S.C. 41705 and 14 C.F.R. 382). I am licensed by the state of (state) to practice [discipline] My license number is (license number). Sincerely, (Professional’s name and title)
It should be noted that the airline has the right to be notified in advance of the ESA accommodation request. There are also various rules about the ESA (e.g. behavior in the cabin, type of animal, etc.). Click here for an ESA sample form from American Airlines.
What should the mental health professional be prepared to defend?
As can be seen, not a lot of information is actually required in the ESA letters (housing and airline). However, the mental health professional should be prepared to answer the following questions if the ESA recommendation is challenged or some type of legal action were to occur (e.g. the dog bite scenario). These issues have been outlined in detail by Ensminger and Thomas (2013).
Ethical Issues and the ESA Recommendation
Online certification companies
Any mental health professional who participates in these online SA, PSA and ESA certifications (previous example) is likely acting in an unethical manner. The vast majority of these sites have the user (“client” or “patient”) complete a brief “medical” or “psychological: questionnaire. The questionnaire is then “reviewed” by the professional, the client is certified, and the purchased letters are issued. The following Table outlines some of the general ethical issues related to this process.
Routine practice
Your patient comes to you one day and requests an ESA letter so s/he can keep his dog (“Hank”) in his apartment and travel with Hank on airplanes. You believe he is likely a reasonable candidate for an ESA. Should you write the letter?
In the literature, there seems to be conflicting opinions as to whether it might be an ethics violation for a treating mental health professional to write a letter for his/her own patient (See Ensminder and Thomas, 2013; Tran-Lien, 2013; Younggren et al., 2016). There is also the issue of whether the treating practitioner can actually provide an objective assessment of whether or not the ESA is required as defined by law. What if you are completely objective and determine that an ESA would not provide benefit as defined by the law - How do you manage denying the request for an ESA letter within the context of the treatment relationship?
On the one hand, there are articles that discuss the mechanics of doing an ESA recommendation without the admonition that these should not be done by the treating professional. In fact, the articles imply that these ESA letters would likely be provided by the treating professional (See Ensminger and Thomas, 2013: “Writing Letters to Help Patients with Service and Support Animals”; Tran-Lien, 2013: “Reasonable Accommodations and Emotional Support Animals”). One also has the sample HUD letter that specifically includes that statement, “[NAME OF TENANT] is my patient, and has been under my care since [DATE]. I am intimately familiar with his/her history and with the functional limitations imposed by his/her disability.”
On the other hand, is the article by Younggren et al. (2016: “Examining Emotional Support Animals and Role Conflicts in Professional Psychology”) that concludes fairly strongly that it is an ethical violation for the treating psychologist (which could be any mental health professional) to do an ESA recommendation. Youngren et al. suggest that the ESA should be done by an independent “neutral third party”. The following is a brief review of the ethical issues.
Treating clinician and forensic (administrative) evaluation
If the treating mental health professional also provides an opinion on the need for an ESA, this may constitute a dual relationship issue. As discussed by Younggren et al. (2016), psychologists need to be clear about their roles/activities in a practice setting. The authors discuss that psychologists are often called upon to perform services that go beyond treatment issues such as providing disability statements for workers’ compensation, disability letters for Social Security Disability, work restrictions, etc. The extra-treatment activities are termed “administrative” and designed to assist the patient in some way. The authors state that an ESA evaluation falls into this administrative category. They conclude that doing this type of evaluation for a patient (including an ESA letter) would likely be a dual relationship or role conflict ethical problem. Aside from Younggren’s article, the literature is fairly silent on this possible dual role conflict related to ESA determinations. However, one might obtain guidance elsewhere in the literature related to the treating mental health professional offering expert (legal) opinion about a patient in treatment. As discussed by Reid (1998), civil and criminal attorneys will often refer clients for treatment and, subsequently, seek expert testimony from the provider to help with the case. Reid (1998) points out that this dual relationship can create conflict.
An article by Greenburg and Shuman (1997) addresses these issues and the authors provide an extensive list of problems that can occur when a treating therapist mixes these roles including, but not limited to, relying on historical versus narrative truth, the evaluation interfering with the therapeutic relationship, etc. Greenburg and Shuman (1997, p. 56) conclude that,
As discussed previously, not all authors are in agreement that a treating practitioner who offers expert testimony is acting unethically. It was previously mentioned that the Ensminger and Thomas (2013) and Tran-Lien (2013) imply that the ESA determination will most commonly be done by the treating mental health professional. In addition, Heltzel (2007) argues that, “Although it should be clear that all psychologists must be aware of the ethical challenges associated with expert testimony, it has been demonstrated that the roles of therapist and expert witness are indeed compatible” (p. 128). The Heltzel (2007) article was in response to the State Board of Psychology of Ohio (2003) issuing a warning to psychologists who provide expert testimony about their own patients. The Board (2003) cited the article by Greenburg and Shuman (1997) and stated that providing expert testimony about one’s own patients involved “inherent dual roles and bias” (p.2) and concluded, “Prevailing standards essentially demand that you define and remain within one role with a given client” (p.2).
Subsequently, the conclusions of Heltzel (2007) were addressed by Greenberg and Shuman (2007). In the article, Greenburg and Shuman (2007) reiterated their original 1997 position and offered further foundation for their assertion that providing expert opinions relative to one’s own patients is an ethical dual role violation. The authors cited the work of others and also provided evidence that the irreconcilability of therapeutic and forensic roles had gained wide acceptance in ethical guideline interpretations and in the courts.
Relevant Ethical Guidelines
Some of the relevant ethical guidelines from various professional organizations will be discussed as follows. I have not focused on those guidelines related to such things as competency to perform the ESA evaluation, etc. In this discussion, it is assumed that the practitioner has the competence to do the ESA evaluation, but the question is whether it should be done on one’s own patient.
American Psychological Association
The article of Younggen et al. (2016) primarily relies on the ethical guidance provided in the Specialty Guidelines for Forensic Psychology (APA, 2013 – Click here for a copy). The first issue in this analysis is to determine whether these Guides apply to the treating psychologist completing an ESA letter for his or her patient. In terms of applicability, the Guides state:
“For the purposes of these Guidelines, forensic psychology refers to professional practice by any psychologist working within any subdiscipline of psychology (e.g., clinical, developmental, social, cognitive) when applying the scientific, technical, or specialized knowledge of psychology to the law to assist in addressing legal, contractual, and administrative matters. Application of the Guidelines does not depend on the practitioner’s typical areas of practice or expertise, but rather, on the service provided in the case at hand. These Guidelines apply in all matters in which psychologists provide expertise to judicial, administrative, and educational systems including, but not limited to, examining or treating persons in anticipation of or subsequent to legal, contractual, or administrative proceedings; offering expert opinion about psychological issues in the form of amicus briefs or testimony to judicial, legislative, or administrative bodies; acting in an adjudicative capacity; serving as a trial consultant or otherwise offering expertise to attorneys, the courts, or others; conducting research in connection with, or in the anticipation of, litigation; or involvement in educational activities of a forensic nature” (APA, 2012, p. 7) As can be seen, for psychologists, these Guides apply not to the specialization (expertise area such as forensic psychology) but rather to the service being provided (e.g. “Administrative”, etc.). Under this definition, it appears that evaluation for an ESA would be included since the ESA is addressing the administrative issue of allowing the individual to access to certain rights under the law. As cited by Younggen et al. (2016), applicable codes from this publication include:
Avoiding Conflicts of Interest. Forensic practitioners refrain from taking on a professional role when personal, scientific, professional, legal, financial, or other interests or relationships could reasonably be expected to impair their impartiality, competence, or effectiveness, or expose others with whom a professional relationship exists to harm (1.03).
Therapeutic–Forensic Role Conflicts. Providing forensic and therapeutic psychological services to the same individual or closely related individuals involves multiple relationships that may impair objectivity and/or cause exploitation or other harm……(4.02.01).
There are also the following ethical guidelines from the Ethical Principles of Psychologists and Code of Conduct (APA, 2002) and these may be applicable:
Multiple Relationships (3.05) (a) A multiple relationship occurs when a psychologist is in a professional role with a person and (1) at the same time is in another role with the same person, (2) at the same time is in a relationship with a person closely associated with or related to the person with whom the psychologist has the professional relationship, or (3) promises to enter into another relationship in the future with the person or a person closely associated with or related to the person.
A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists.
Multiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical.
Conflict of Interest (3.06) Psychologists refrain from taking on a professional role when personal, scientific, professional, legal, financial, or other interests or relationships could reasonably be expected to (1) impair their objectivity, competence, or effectiveness in performing their functions as psychologists or (2) expose the person or organization with whom the professional relationship exists to harm or exploitation.
Similar issues are addressed in the Ethical Guides of other groups as follows (just as examples):
American Counseling Association
A.5.e. Role Changes in the Professional Relationship When a counselor changes a role from the original or most recent contracted relationship, he or she obtains informed consent from the client and explains the right of the client to refuse services related to the change. Examples of role changes include 1. changing from individual to relationship or family counseling, or vice versa;2. changing from a nonforensic evaluative role to a therapeutic role, or vice versa; 3. changing from a counselor to a researcher role (i.e., enlisting clients as research participants), or vice versa; and 4. changing from a counselor to a mediator role, or vice versa. Clients must be fully informed of any anticipated consequences (e.g., financial, legal, personal, or therapeutic) of counselor role changes.
E.13.c. Client Evaluation Prohibited Counselors do not evaluate individuals for forensic purposes they currently counsel or individuals they have counseled in the past. Counselors do not accept as counseling clients individuals they are evaluating or individuals they have evaluated in the past for forensic purposes.
If one considers the ESA evaluation inherently forensic in nature (as does Younggren et al.) then this guideline would prohibit counselors from performing these evaluations on one’s own client. However, if the ESA is not defined as “forensic”, then there does not appear to be a clear prohibition in the ACA Ethical Guides.
National Association of Social Workers
1.04 Competence -(a) Social workers should provide services and represent themselves as competent only within the boundaries of their education, training, license, certification, consultation received, supervised experience, or other relevant professional experience.
1.06 Conflicts of Interest - (a) Social workers should be alert to and avoid conflicts of interest that interfere with the exercise of professional discretion and impartial judgment. Social workers should inform clients when a real or potential conflict of interest arises and take reasonable steps to resolve the issue in a manner that makes the clients’ interests primary and protects clients’ interests to the greatest extent possible. In some cases, protecting clients’ interests may require termination of the professional relationship with proper referral of the client.
American Association for Marriage and Family Therapy
The AAMFT Code of Ethics provides that one should take care not to assess, treat, or advise individuals on problems that are beyond one’s level of competence as determined by education, training and experience. If the therapist incorporates an emotional support animal into a client's treatment plan and/or chooses to express a professional opinion about the need for an emotional support animal, the therapist should ensure that s/he is practicing within the scope of competence. Familiarizing oneself with literature and studies concerning the therapeutic benefits of emotional support animals for people with disabilities is recommended.
3.4 Marriage and family therapists do not provide services that create a conflict of interest that may impair work performance or clinical judgment.
3.7 While developing new skills in specialty areas, marriage and family therapists take steps to ensure the competence of their work and to protect clients from possible harm. Marriage and family therapists practice in specialty areas new to them only after appropriate education, training, or supervised experience.
Summary and Recommendations
The previous discussion outlines the arguments for and against providing an ESA letter for one’s own patient from an ethical standpoint. Any practitioner who is asked to provide an ESA letter for his or her own patient should be familiar with all of this information. As a general guideline, it appears that functioning in a therapeutic role and a “forensic” (administrative) role for the same patient is in most cases an ethical violation (At least for psychologists and counselors due to dual role issues – The other ethical guides are not as clear on this issue). However, this depends on (1) whether you define an ESA evaluation as forensic in nature (“administrative”) and (2) the professional guidelines under which you are operating (psychology, counseling, social work, marriage and family, etc.). At the very least, the practitioner must be ready to defend him or herself and answer the question of why it is not an ethical violation, should the issue arise. The following are recommendations to consider: One might choose not to do ESAs on your own patients as an office policy. One option (recommended by Younggren et al., 2016) is to simply not do ESA evaluations or recommendation letters on one’s own patients. As recommended by those authors (p. 8), the following statement might be used as part of the informed consent process:
Dr. X limits the services provided to you to those that are clinical in nature. Any requests for additional administrative services like disability certification and special accommodations related to a psychological condition will have to be provided by another psychologist. Short-term disability certification by Dr. X will be limited to a period of time not to exceed 4 weeks, at which time those determinations will also have to be made by another psychologist. The reason for this policy is to avoid having the performance of administrative functions interfere with your therapy.
In this scenario, the evaluation for an ESA would be done by an independent and neutral third party.
If an ESA evaluation is completed (on one’s own patient or as a consult), one must keep in mind that it should be comprehensive (including a DSM diagnosis) as well as documentation of the psychiatric disability along with how the ESA impacts the symptoms (amelioration of “disability-related” symptoms). The evaluation would likely require an interview, records review, testing and, possibly, getting information from collateral sources. This is considered complex. Even though the letter required (for housing or air travel) is brief, the evaluation upon which they are based should be exhaustive. Although the results of the ESA recommendation are summarized in a single and brief letter, the practitioner should be able to clearly defend the findings if the case were to be challenged. The mental health professional should be aware that there is actually very little research literature that supports the assumption that an ESA has any significant impact on the psychological symptoms (beyond that of having a pet). The practitioner should be aware of research findings that are applicable to the patient’s situation (See Youngren et al., 2016; Ensminger and Thomas, 2013; Von Bergen, 2015, for a review).
The practitioner should clearly inform the patient about the rights associated with an ESA versus an actual service animal. For instance, the patient might believe that his/her ESA can be taken on the local bus line because it has been approved for airline travel (under the DOT). However, this is not the case since the laws for ESAs are only for housing and air travel and not under the ADA. If the bus line has a more restrictive policy (e.g. service animals only), the ESA letter will not be enough. In addition, most businesses, such as restaurants, theaters, hotels, hardware stores, etc., do not have to admit pets or even ESAs. Their obligations are generally only to users of service dogs as defined in the ADA. If the patient’s expectations about the ESA letter are inaccurate (e.g. the same access as a service animal), s/he might be involved in some potentially embarrassing encounters. In this case, any anger stemming from those encounters might be directed at the mental health professional either for not informing the patient or the mistaken belief that the ESA letter was not done correctly to allow for complete public access.
The patient should be informed that a business or other entity has the right to ask two questions related to SAs and PSAs (covered under the ADA). Even though ESAs are not covered under the ADA, the patient might be confronted with similar questions. If the function of the service animal (and ESA) is not “readily apparent”, the business can ask (1) if the animal is required for because of a disability (yes/no) and (2) what work or task has the animal been trained to perform. Of course, ESAs are not automatically allowed access to all public places under the FHAA and ACAA/DOT laws.
If one chooses to do an ESA evaluation on his/her own patient, then full informed consent is necessary. The patient should be informed that the practitioner may decide, based on all the data, that an ESA is not necessary or required. The practitioner may then suggest that if the ESA is found not to be necessary, the reasoning behind the decision, and the patient’s response to the conclusions, would be material to be addressed within the treatment relationship. Another method might be to allow the ESA, if appropriate, for a time-limited basis (e.g. one year) with the written understanding that any renewal will have to be done by a neutral third party in the future.
In some cases, an ESA might be recommended by the therapist as a therapeutic tool (versus the patient presenting a request for his or her pet to become an ESA). In this case (the pet as an ESA treatment tool), the letter might be written but with a time-limited focus (with the treatment goal of not needing the ESA). Under the law, an ESA letter must be up-dated each year anyway. The ESA as a treatment tool might be revisited and, if progress has been made, the ESA might not be renewed (e.g. it once again becomes a pet). However, this approach can be very thorny especially if the patient has received various benefits from the ESA classification that would no longer be available if the recommendation is not renewed (e.g. living in a no-pets apartment or not having to pay the pet deposit, etc., would no longer be allowed for “the pet”.)
REFERENCES
Any of the following articles that are available in the public domain were accessed on 01-11-2017.
The ADA Amendments Act of 2008, PL 110-325 (S 3406).
Air Carrier Access Act of 1986. Public Law 99-435.
The Americans with Disabilities Act of 1990, 42 U.S.C. 12112(b)(5).
Brooks, H. L., Rushton, K., Lovell, K., Bee, P., Walker, L., Grant, L., & Rogers, A. (2018). The power of support from companion animals for people living with mental health problems: a systematic review and narrative synthesis of the evidence. BMC psychiatry, 18(1), 31. https://doi.org/10.1186/s12888-018-1613-2
Clay, R.A. (2016). Is that a pet or therapeutic aid? APA Monitor, 47, 38.
Dept. of Housing and Urban Development, Pet Ownership for the Elderly and Persons with Disabilities, 73 Fed. Reg. 63834 (October 27, 2008).
Dept. of Justice. (2011). Frequently asked questions about service animals and the ADA.
Dept. of Transportation, Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed. Reg. 27614 (May 13, 2008).
Dept. of Transportation, Nondiscrimination on the Basis of Disability in Air Travel: Draft Technical Assistance Manual, 77 Fed. Reg. 29800 (July 5, 2012).
Ensminger, J.J. and Thomas, J.L. (2013). Writing letters to help patient with service and support animals. Journal of Forensic Psychology Practice, 13, 92-115.
Fair Housing Act of 1968, 42 U.S.C.A. 3601-3631.
Greenberg, S.A. and Shuman, D.W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28, 50-57.
Greenburg, S.A., & Shuman, D.W. (2007). When worlds collide: therapeutic and forensic roles. Professional Psychology: Research and Practice, 38, 129-132.
Heltzel, T. (2007). Compatibility of therapeutic and forensic roles. Professional Psychology: Research and Practice, 38, 122-128.
Lundqvist, M., Carlsson, P., Sjödahl, R., Theodorsson, E., & Levin, L. Å. (2017). Patient benefit of dog-assisted interventions in health care: a systematic review. BMC complementary and alternative medicine, 17(1), 358. https://doi.org/10.1186/s12906-017-1844-7
Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 394 (Sept. 26, 1973).
Reid, W.H. (1998). Treating clinicians and expert testimony. Journal of Practical Psychiatry and Behavioral Health, March, 1-3.
Saunders et al. (2017). Design and challenges for a randomized, multi-site clinical trial comparing the use of service dogs and emotional support dogs in Veterans with post-traumatic stress disorder (PTSD). Contemporary Clinical Trials, 62, 105-113.
Von Bergen, C.W. (2015). Emotional support animals, service animals, and pets on campus. Administrative Issues Journal: Connecting Education, Practice and Research, 5, 15-34.
Wisch, R. (2015). FAQs on emotional support animals.
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Other ethical questions arise such as: Is it appropriate to do such a recommendation for one’s own patient within the context of a treatment relationship? Could the provider really be objective if the evaluation is on one’s own patient? What if the provider does not feel it is appropriate? Should the request/evaluation be referred to an independent third party evaluator to avoid a dual role ethical problem? 
Unlike the state and federal laws discussed previously, regulations implementing the Air Carrier Access Act (ACAA) treat psychiatric service animals differently than service animals for people with physical disabilities. Airlines must permit service animals to accompany people with physical disabilities on flights, and may not charge a fee for this accommodation. As evidence that the animal is a service animal, airlines “must accept identification cards, other written documentation, presence of harnesses, tags, or the credible verbal assurances of a qualified individual with a disability using the animal.” As can be seen, the credible verbal assurances of the individual can be enough without any other proof. In contrast, passengers who wish to bring a psychiatric service animal or emotional support animal onto a flight may be required to produce a note, less than one year old, signed by a licensed mental health professional, stating that he or she has a recognized psychiatric disability that requires the use of an emotional support or psychiatric service animal. The U.S. Department of Transportation (DOT) has provided a form for filing disability-related complaints with air carriers. DOT regulations for airlines specify that for air travel, a service or emotional support animal is “solely the responsibility of the passenger with a disability whom the animal is accompanying.” Exotic animals, such as snakes or spiders, do not have to be accommodated at all.
Similar to the proposed ADA regulations that specify which species are allowable as service animals, the ACAA regulations specifically allow a carrier to exclude certain species of animals. The ACAA final rule states that the new rule was put into place to allay concerns by carriers that they will have the obligation to accommodate unusual service animals, although the ACAA final rule also states that “accounts of unusual service animals have received publicity wholly disproportionate to their frequency or importance” and some “have become the stuff of urban legends.” 
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