by Adam Drapcho, Associate Member, University of Cincinnati Law Review Vol. 91
Emotional support animals have been notoriously prominent in the news over the past few years.1See Farah Stockman, People Are Taking Emotional Support Animals Everywhere. States Are Cracking Down., The New York Times (June 18, 2019), https://www.nytimes.com/2019/06/18/us/emotional-support-animal.html. Goofy incidents involving emotional support animals of various exotic species grabbed the media’s attention and shed light on the explosion in emotional support animal use.2Id. Though many of the incidents highlighted by news stories may make them seem like a punchline, many people suffering from psychiatric disabilities believe that emotional support animals play an important role in managing their conditions.3Joshua D. Carroll, Brian S. Mohlenhoff, Charlie M. Kersten, Dale E. McNiel & Renee L. Binder, Laws and Ethics Related to Emotional Support Animals, 48 J. Am. Acad. Psychiatry and Law 3 (2020). The emotional support animal boom has been accompanied by a deluge of patient requests to healthcare providers to provide certification for their animal.4Jeffrey Younggren, Jennifer Boisvert & Cassandra Boness, Examining Emotional Support Animals and Role Conflicts in Professional Psychology, 47 Pro. Psych.: Rsch. and Prac. 257 (2016). This has placed healthcare providers in a difficult position. Under current laws and regulations, emotional support animals are not required to go through any specialized training to become certified.5Carroll et al., supra note 3. Without any required training, healthcare providers are left to decide for themselves whether an animal has a suitable temperament to be an emotional support animal and receive the legal protections that come with the designation, even though most are not qualified to assess animal behavior.6Jeffrey Younggren, Cassandra Boness, Leisl Bryant & Gerald Koocher, Emotional Support Animal Assessments: Toward a Standard and Comprehensive Model for Mental Health Professionals, 51 Prof. Psych.: Rsch. and Prac. 160 (2020).
This article argues for new regulations that take the animal assessment portion of the certification process out of the hands of healthcare providers. In Part II, the article gives a brief summation of emotional support animals and the legal protections they enjoy under current law. Part III proposes requiring that animals pass a standard behavioral test to qualify for emotional support animal certification. Part IV concludes with a short summary and a few final thoughts.
A. What Are Emotional Support Animals?
While there is no exact definition of an emotional support animal (“ESA”), they can generally be defined as an animal certified by a healthcare provider that can alleviate the effects of a person’s psychiatric disability through its presence.7Carroll et al., supra note 3. ESAs are commonly confused with service animals, which are a more specialized classification of disability-related assistance animals. Service animals differ from ESAs in that they are trained to perform specific tasks that mitigate a person’s disability.8Id. Most people associate service animals with trained seeing-eye dogs that help guide the visually impaired, though there are many different tasks a service animal can be trained to do. Unlike service animals, ESAs are not required to go through any training or be able to perform specific tasks.9Id. An ESA’s utility comes from merely providing its owner with a sense of comfort or stability that mitigates a psychological disability.10Younggren et al., supra note 4, at 158.
Proponents of ESAs believe that these animals provide an important service to patients suffering from psychiatric conditions such as depression and anxiety.11Rebecca Clay, Is That a Pet or Therapeutic Aid?, Am. Psych. Ass’n (Sept. 2016), https://www.apa.org/monitor/2016/09/pet-aid. They argue that the therapeutic effect of an animal’s presence helps alleviate a patient’s psychiatric disability through companionship.12Jacquie Brennan & Vinh Nguyen, Service Animals and Emotional Support Animals, ADA Nat’l Network, https://adata.org/guide/service-animals-and-emotional-support-animals. While this is an intuitive theory, there has been little reliable research undertaken to provide empirical data to support this notion. Studies that have been completed are inconsistent, only muddying the waters further on how providers should approach ESAs.13Younggren et al., supra note 4.
Nonetheless, ESAs have steadily gained popularity.14Younggren et al., supra note 6, at 158. The deluge of ESA certification requests has put providers in a difficult position. Providers understand that ESAs may provide important functions to certain patients but are unsure of how strong this benefit may be due to unreliable empirical data.15Younggren et al., supra note 4. However, many patients are eager to obtain letters from their providers certifying their ESAs to gain the legal protections that come with the designation. In the next section, this article will review the legal protections afforded to ESAs.
B. Legal Protections for ESAs
While state and local governments may afford expanded protections, this article focuses on federal antidiscrimination laws that require reasonable accommodations for those with disabilities. Three federal statutes cover the majority of antidiscrimination laws related to service animals: the Americans with Disabilities Act (“ADA”), the Air Carrier Access Act (“ACAA”), and the Fair Housing Act (“FHA”).16Brennan & Nguyen, supra note 12. All three of these acts were passed to prevent discrimination, at least in part, against those suffering from disabilities. Each has handled accommodations for ESAs differently.
The ADA was enacted in 1990 to prohibit discrimination in public places based on disability.1742 U.S.C. § 12182. ESAs are explicitly excluded from the law’s protections.1828 C.F.R. § 36.104 (“[T]he provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purpose of this definition.”). Even though the ADA is the most far-reaching antidiscrimination law for those with disabilities, it does not require public places to provide reasonable accommodations for ESAs. This means that owners of public establishments are free to deny ESAs entry to their businesses without legal recourse for ESA owners.
The ACAA began with a different approach. For years, the Department of Transportation’s regulations enforcing the ACAA required airlines to allow travelers to fly with their ESAs, provided the traveler had a note from a healthcare provider.19Martin Orlick, Emotional Support Animals Now Banned on Commercial Flights, Mondaq (Dec. 17, 2020), https://www.mondaq.com/unitedstates/aviation/1017320/emotional-support-animals-now-banned-on-commercial-flights. However, travelers began to abuse this rule and the media began highlighting bizarre incidents caused by passengers’ ESAs.20Younggren et al., supra note 4, at 156. Amusing reports about the unusual animals that passengers attempted to claim as ESAs became a regular occurrence. Travelers tried to take to the skies with emotional support squirrels, peacocks, snakes, and more.21Amy Held, Emotional Support Squirrel a No-Go on Frontier Flight, NPR (Oct. 10, 2018), https://www.npr.org/2018/10/10/656266410/emotional-support-squirrel-a-no-go-on-frontier-flight. In 2020, the Department of Transportation was forced to put an end to ESA airline travel and adopt nearly identical assistance animal regulations as the ADA.2214 C.F.R. § 382.3. After this recent change, ESA owners no longer have a right to bring their animals on flights. With the ADA and ESA no longer requiring reasonable accommodations for ESAs, the only federal legislation providing legal protection is the FHA.
The FHA protects those with disabilities from housing discrimination by requiring housing providers to make reasonable accommodations to any rules, policies, practices, or services when they are necessary for someone with a disability to have an equal opportunity to use and enjoy the housing.2342 U.S.C. § 3604(f)(3)(B). Importantly, the FHA is the only remaining federal legislation where ESAs qualify as a reasonable accommodation.24See 73 Fed. Reg. 63834 (stating that acceptable functions of a service animal include “providing emotional support to persons with disabilities who have a disability-related need for such support”). Under the FHA, an animal qualifies as a reasonable accommodation if an individual has a disability, the animal is necessary to assist with the disability, and the individual can demonstrate a relationship between the disability and the assistance provided by the animal.2573 Fed. Reg. 63834.
The process to receive an accommodation is fact-specific, but a typical request begins with an individual informing the housing provider that they have a disability and that an ESA is necessary to assist with the disability.26Id. However, simply stating this does not guarantee an accommodation. A housing provider is permitted to require documentation from a healthcare provider that supports the individual’s claim.27Id. Further, a housing provider can deny any requests to animals that have a history of dangerous behavior.28Id. If an individual establishes with the housing provider that they have a disability that requires the assistance of an ESA, they are then entitled to an exemption to any no-pets policy and a waiver of any related fees.29Younggren et al., supra note 6, at 159.
This process appears simple enough. However, healthcare providers have little guidance on how to respond to patient requests for ESA accommodation letters. Beyond the Department of Housing and Urban Development’s (“HUD”) regulation that an individual “may be required to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides support that alleviates at least one of the identified symptoms or effects of the existing disability”, there is no structure for certifying ESAs.3073 Fed. Reg. 63834. The lack of structure creates issues for those seeking accommodations, healthcare providers tasked with providing documentation, and housing providers trying to weed out tenants who are attempting to abuse ESA rules to avoid a no-pet policy. The next section will discuss these issues and propose solutions to standardize the ESA certification process and reduce pressure on healthcare providers.
ESA certification allows individuals to bring animals to places that otherwise prohibit them, yet there is no required training or behavioral standard for ESAs. Without any required training or behavioral standard for prospective ESAs, healthcare providers are put in the uncomfortable position of judging whether an animal’s temperament is sufficient to provide emotional support for the patient.31Younggren et al., supra note 6, at 160. Healthcare providers are “more than likely not trained or competent to directly assess animal temperaments,” but the law currently forces them to make a judgement call that they are unqualified to make.32Id. This is outrageously unfair to healthcare providers. The current state of affairs forces them to be both a healthcare professional and an animal behavioralist. Not only does this coerce healthcare providers into making decisions they are uncomfortable with, but it also prevents some providers from certifying ESAs altogether out of fear of liability if the animal becomes dangerous.33See Clay, supra note 11. Healthcare providers categorically refusing to issue ESA certifications means that there are patients who are not receiving possible treatment for a disability. The ESA certification process needs to ease the burden on healthcare providers and allow animal experts to have a say.
The best solution is creating animal evaluation standards that are certified independently of the healthcare provider through regulations issued by HUD. Under this proposed system, HUD would work with animal behavior experts to create a test that can be administered across the country by animal experts. These experts can include professional animal trainers, animal advocacy groups, trained animal daycare workers, and more. The experts would simply go through a training course with HUD to become licensed to administer the test. The test would ensure an animal has a baseline level of composure and social skills that improve the likelihood that the animal could handle the stressful situations that ESAs may find themselves in.
Adding a test that is administered by animal experts would shift the animal assessment from an unqualified healthcare provider to a licensed animal expert. These experts would be able to give an informed opinion about the temperament of the animal, allowing healthcare providers to focus only on the patient’s disability and the animal’s effect on that disability.34See generally Younggren et al., supra note 6, at 160 for a discussion on the importance of assessing an animal’s temperament when certifying an ESA. The article acknowledges that medical providers are not competent in assessing animals, but knowing whether an animal can provide a steady presence is critical. Healthcare providers would no longer need to worry about liability for animals who injure others because the test takes any animal assessment out of their hands. This proposed solution would also help protect the housing owners’ interest in keeping a dwelling safe from untrained animals. The proposed solution helps healthcare providers focus on their area of expertise, ensures patients’ ESAs are well-suited to treat their disabilities, and protects interests of housing owners.
Amid the continuing popularity of ESAs, healthcare providers are struggling to deal with the constant influx of ESA certification requests.35See Younggren et al., supra note 6, at 157. Healthcare providers are being asked to step out of their area of expertise and make judgement calls about potential ESAs’ behavioral competencies.36Id. at 160. Our lack of guidance leaves healthcare providers twisting in the wind. Requiring a standardized animal behavior test would allow animal experts to make an informed decision about a potential ESA’s temperament, allowing healthcare providers to focus on the patient’s disabilities. It is well past time to add structure to the ESA certification process and let our healthcare providers leave the animal assessment process to animal experts.
- 1See Farah Stockman, People Are Taking Emotional Support Animals Everywhere. States Are Cracking Down., The New York Times (June 18, 2019), https://www.nytimes.com/2019/06/18/us/emotional-support-animal.html.
- 3Joshua D. Carroll, Brian S. Mohlenhoff, Charlie M. Kersten, Dale E. McNiel & Renee L. Binder, Laws and Ethics Related to Emotional Support Animals, 48 J. Am. Acad. Psychiatry and Law 3 (2020).
- 4Jeffrey Younggren, Jennifer Boisvert & Cassandra Boness, Examining Emotional Support Animals and Role Conflicts in Professional Psychology, 47 Pro. Psych.: Rsch. and Prac. 257 (2016).
- 5Carroll et al., supra note 3.
- 6Jeffrey Younggren, Cassandra Boness, Leisl Bryant & Gerald Koocher, Emotional Support Animal Assessments: Toward a Standard and Comprehensive Model for Mental Health Professionals, 51 Prof. Psych.: Rsch. and Prac. 160 (2020).
- 7Carroll et al., supra note 3.
- 10Younggren et al., supra note 4, at 158.
- 11Rebecca Clay, Is That a Pet or Therapeutic Aid?, Am. Psych. Ass’n (Sept. 2016), https://www.apa.org/monitor/2016/09/pet-aid.
- 12Jacquie Brennan & Vinh Nguyen, Service Animals and Emotional Support Animals, ADA Nat’l Network, https://adata.org/guide/service-animals-and-emotional-support-animals.
- 13Younggren et al., supra note 4.
- 14Younggren et al., supra note 6, at 158.
- 15Younggren et al., supra note 4.
- 16Brennan & Nguyen, supra note 12.
- 1742 U.S.C. § 12182.
- 1828 C.F.R. § 36.104 (“[T]he provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purpose of this definition.”).
- 19Martin Orlick, Emotional Support Animals Now Banned on Commercial Flights, Mondaq (Dec. 17, 2020), https://www.mondaq.com/unitedstates/aviation/1017320/emotional-support-animals-now-banned-on-commercial-flights.
- 20Younggren et al., supra note 4, at 156.
- 21Amy Held, Emotional Support Squirrel a No-Go on Frontier Flight, NPR (Oct. 10, 2018), https://www.npr.org/2018/10/10/656266410/emotional-support-squirrel-a-no-go-on-frontier-flight.
- 2214 C.F.R. § 382.3.
- 2342 U.S.C. § 3604(f)(3)(B).
- 24See 73 Fed. Reg. 63834 (stating that acceptable functions of a service animal include “providing emotional support to persons with disabilities who have a disability-related need for such support”).
- 2573 Fed. Reg. 63834.
- 29Younggren et al., supra note 6, at 159.
- 3073 Fed. Reg. 63834.
- 31Younggren et al., supra note 6, at 160.
- 33See Clay, supra note 11.
- 34See generally Younggren et al., supra note 6, at 160 for a discussion on the importance of assessing an animal’s temperament when certifying an ESA. The article acknowledges that medical providers are not competent in assessing animals, but knowing whether an animal can provide a steady presence is critical.
- 35See Younggren et al., supra note 6, at 157.
- 36Id. at 160.