Y THERAPY DOGS When Is the Need Real?

When Is the Need Real?
THERAPY DOGS
by Frank Lovece
Y
ou no longer have the right to live in a no-dog
building. People with allergies, people afraid of
dogs, people who don’t like dog waste and urine
on the sidewalk or loud barking, or even people who’d
simply rather live without dogs – sorry, but your rights and
preferences are meaningless. Anyone who wants a dog in
your building can have one whether you like it or not.
That, at least, is the message co-op and condo boards,
attorneys, and others are taking from the plethora of people
falsely claiming a disability to avoid pet prohibitions. Not
physical disability or psychiatric disability, for which there
are specially trained service dogs, but emotional disability –
which no one can see, anyone can claim, and for which your
friendly family doctor will write a note, no questions asked.
There are even websites that offer fake “certifications” for
dogs – no doctor’s note required.
“It’s ridiculous,” says attorney Adam Leitman Bailey,
principal in his eponymous firm. “People get a notice to
remove a dog, all of a sudden they get a doctor’s note. If
you need a dog for support reasons, why would you go to a
psychiatrist only after you get an eviction notice?”
False claims of emotional disability are probably
“happening more and more often,” agrees Jennifer L.
Stewart, an attorney with Smith, Buss & Jacobs who has
defended disabled clients. Indeed, she adds, “I’ve seen signs
posted in pet stores: ‘Do you want a dog? Do you live in ‘nopet’ buildings? Here’s what you do.’ I was a little shocked at
how flagrant that was.”
The Commission Speaks
Complaints against boards forbidding pets are usually
filed with the city’s Commission on Human Rights (CHR),
which tries hard to do the right thing. There certainly have
been boards that unreasonably forbade disabled people with
well-documented needs and therapeutic recommendations
from keeping cats or dogs. That’s discrimination based on
disability, and as illegal as discrimination based on race.
“The law requires a housing provider to reasonably
accommodate disabled tenants, so they can enjoy the rights
and privileges of the housing,” explains CHR Deputy
Commissioner and General Counsel Clifford Mulqueen. That
includes mental and emotional disabilities. “You can’t look
at somebody and say, ‘That person suffers from depression,’
but that doesn’t mean that the individual isn’t disabled and
entitled to receive a reasonable accommodation.”
Forcing people with genuine mental or emotional
conditions to jump through hoops is inhumane. Yet leaning
so far in the other direction that scammers can thumb their
noses at co-op/condo owners and boards is no better.
The approval/denial process involves a step-by-step
back-and-forth “we call the interactive process,” says
Mulqueen. “If a board is engaging in good faith in the
interactive process, it’s never going to be held liable for its
decisions” – which are protected by the Business Judgment
Rule unless the board is found to be discriminating against
the disabled. Going back nearly six years to January 2007,
the commission has levied only $10,000 in fines for all
REPRINTED WITH THE PERMISSION OF HABITAT MAGAZINE • DECEMBER 2012 • 1
When Is the Need Real?
THERAPY DOGS
CERTIFIED COMPANION v
I’ll Be Doggone
T
he president of a roughly 160-unit Long Island coop complex is incredulous. “There’s a website where
you can buy a kit that ‘certifies’ your dog as a companion
dog. It comes with an ID, looks very official, it has a little
vest for the dog so it mirrors a service dog” like trained
seeing-eye dogs. “So you call up, say I’d like to get my pet
certified, fill out the form, send in the check. Do I need
documentation? ‘No.’ So anyone can
do it? ‘Yeah.’”
She’s not exaggerating: several
websites offer such official-looking
but non-authoritative kits at prices
ranging from $24.95 to $249. And
even among these groups, there’s
infighting over who’s legitimate or not.
One organization – calling itself the
National Association of Service Dogs (naservicedogs.
org) – charged on its website that another site’s owner
“left the U.S. and moved to Ecuador… Beware if you
choose to send your money to ECUADOR and to a ‘for
profit’ company who’s [sic] sole owner left the country to
avoid taxes.” (By mid-November, the accusation had been
removed from its website.)
Yet, confusingly, the association also uses a second
website (registeredservicedogs.org), which, unlike
the first, states, “We are one of the very few legitimate
organizations for registering and certifying service dogs”
for the same $69.95 to $88.95 for annual membership or
$500 lifetime as the other website. Neither is forthcoming
about what makes it any more “legitimate” than others.
Phone and e-mail requests were not returned.
In any event, it’s an unnecessary service. Neither service
dogs nor emotional-support dogs have to be registered
or certified, affirms a spokesman for the Department of
Justice (DOJ), who says, “There is no requirement that an
assistance animal that ameliorates a mental or emotional
disability possess a certificate of its efficacy,” and a
laminated card from some group that decides to start a
“certification registry” has no official bearing whatsoever.
(The DOJ spokesman adds, “For animals that perform
work or tasks for a person with a physical disability, you
can require either documentation that the animal has
been trained to perform the tasks or
documentation that, despite a lack of
training, the animal is able to do the
work or tasks for the disabled person.”)
Of the several such sites we
contacted, only one was forthright
about itself: Service Dogs America
(servicedogsamerica.org) responded
to a potential customer’s inquiry by
saying, “There is no such thing as a certification for a
service dog.… We supply an identification package. There
is no government database or regulations for a service
[animal], other than the ADA [and other applicable] laws.
You can create your own identification if you wish.”
And why not? As another site, Service Dog Certification
of America (certifymydog.com), says in a blatant comeon, “[E]very person in The United States of America may
have some form of disability.”
The New York City MTA does issue legitimate ID cards
to make it easier for disabled individuals to bring service
animals onto public transportation. But for co-op and
condo boards, the takeaway from all this is that if someone
shows you “certification” from some online company or
elsewhere, it’s meaningless.
– FL
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So What Laws Apply, Exactly?
FHA forbids discrimination based on “a physical or mental
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H. Schneider, a managing partner at
course, a board needs the facts about
It’s a common misconception that the Americans with
impairment which substantially limits one or more of such
Schneider Mitola.
the federal Fair Housing Act (FHA) and
the law.
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person’s major life activities.” The pertinent part of the
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As for Housing and Urban Development
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2012
• REPRINTED
HABITAT MAGAZINE
trained, like seeing-eye dogs for the
(HUD)
rules on
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When Is the Need Real?
THERAPY DOGS
short, genuine disability is serious business that should
not be trivialized because someone wants a pet. “If there’s
no disability, there’s no discrimination,” says Marc H.
Schneider, a managing partner at Schneider Mitola.
The second important fact is that there is a distinction
between two categories of animals (which are almost always
dogs). Mulqueen describes these as “a service animal (a
dog that provides a service) and a comfort animal (one that
provides emotional support).”
Service animals are easy to wrap your head around:
they’re individually trained, like seeing-eye dogs for the
blind or mobility-assistance dogs that pull wheelchairs. They
include psychiatric service dogs, which, for example, might
be trained to provide signaling that interrupts repetitive or
dangerous behaviors.
But comfort animals are something different. The
FHA mentions neither comfort animals nor emotional
support animals – but the fact-sheet “ADA 2010 Revised
Requirements: Service Animals” from the Department
of Justice (DOJ), which enforces both acts, says in no
uncertain terms: “Dogs whose sole function is to provide
comfort or emotional support do not qualify as service
animals [emphasis added] under the ADA.”
Ironically, that came two years after a judge expanded
the FHA to include emotional-support animals. In a consent
decree in the landlord-tenant case United States of America
v. Mahmoud M. Hussein, a Connecticut federal district court
conflated service animals and emotional-support animals
to create a brand-new category: “assistance animals.” Judge
Stefan R. Underhill wrote: “An ‘assistance animal’ means
an animal that does work or performs tasks for the benefit
of a person with a physical disability.”
The DOJ continues to use that definition today, even
though the apparent expansion of the law never appears in
any legislation. Underhill went on to specify in his ruling:
“[T]he policy may be conditioned upon the need for
documentation with a statement from a licensed health
professional indicating that the applicant has a mental or
emotional disability, and that the designated animal would
ameliorate the effects of that disability.”
Meanwhile, in New York
While it’s highly unlikely your co-op or condo will ever
be hauled into federal court over this, local courts and
the city’s human rights commission do use this federal
framework as background. It begins with a resident
requesting a reasonable accommodation. While Mulqueen
notes that this request need not be in writing – and that a
board can’t mandate that it be in writing – boards “do have a
right to request some sort of medical justification,” he says.
So, in order to save a step and begin a paper trail, “I advise
people to make [the request] in writing and provide medical
documentation,” usually in the form of a doctor’s letter.
How specific must the letter be? “The note should relate
to the disability [and be written] by a professional in that
area, saying a dog will alleviate the issue that arises because
of that disability,” Mulqueen says. “We get a lot of notes
from social workers. They’re not really relevant.”
“A letter from a psychologist who simply says this person
needs an animal for emotional support is insufficient,” says
attorney Richard Siegler, a partner at Stroock & Stroock &
Lavan. The letter, he says, “has to describe the nature of the
handicap. You have to be handicapped – you can’t just want
a dog.”
“Boards have a right to more information besides the
doctor’s letter to supplement a claim of disability,” adds
attorney Bailey. If the applicant will not provide more
information, “then you have a reasonable basis to reject
their request.” (One exception, notes Schneider: “When a
disability is clearly visible, you can’t even ask for a doctor’s
letter.”)
May a board have its own doctor to examine the applicant?
“I’d be very cautious about that,” says Mulqueen, who
doesn’t rule it out. “It shouldn’t be the first step. You’d have
to have some medical documentation and have engaged in
the interactive process. You’d better have done everything
you’ve needed to do beforehand and have acted in good
faith.”
Bailey notes that under the Health Insurance Portability
and Accountability Act, “We have no right until a case
is started to see medical records” from the applicant’s
doctor. “But,” he adds, “we don’t have to grant reasonable
accommodation until we’ve seen enough evidence to prove
they need it under the Fair Housing Act.”
“If a board gets a doctor’s note that looks questionable,”
says Stewart, “I recommend that the board have its own
doctor review the application from a medical standpoint.
For example, a doctor’s note might say a patient was feeling
sad following a breakup, and therefore had a mood disorder
that was a disability. A [board’s] doctor may be able to
take a look [at that note] and point out deficiencies in the
diagnosis, which a board member can’t and shouldn’t be
doing. You need to refer questions about the legitimacy of a
disability to a medical expert. “
“I caution my clients to avoid a situation where the board
members try to determine whether the tenant-shareholder is
‘disabled enough’ to warrant the requested accommodation,”
says attorney Steven R. Wagner, a partner at Wagner Davis.
“Putting the disability into the hands of experts is definitely
the preferred way to handle these issues.”
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When Is the Need Real?
THERAPY DOGS
The board pays its own expert’s fee. You can’t
charge someone for a reasonable accommodation.
The Nexus Step
Regarding doctors’ notes, the word attorneys
and government documents keep coming back
to is “nexus,” or an identifiable relationship,
between the requested accommodation and the
individual’s disability. Indeed, says forensic
psychologist Dr. Jennifer Duffy, determining a
nexus “is primarily what I do in evaluations to
determine if someone does suffer from some
psychiatric disorder and what function that
[requested] animal serves, and what the loss of
that animal would do to that individual and that
particular disorder.”
Such determinations typically take place
in the court system through what’s called an
independent medical examination. That’s in
addition to having the applicant’s own doctor
testify. “[The applicant is] going to come in with
their psychiatrist or other doctor’s letter, and so,
because they’ve opened the door to it, you can do
discovery for their medical history,” says Bailey.
“Because they’ve made that the basis of their
case, you have the right to bring in their doctor
for a deposition: ‘When’s the first time you saw
the person about this issue? Was it after he made
the request?’ Sometimes a doctor is seeing the
patient for the first time [in court], which is great
for the co-op or condo’s case.”
In one noted emotional-support dog case
involving an independent medical professional,
Contello Towers Corporation v. New York
City Department of Housing Preservation and
Development (2005), the court ruled against
allowing the dog for a purported “disability” –
not the least because of testimony by forensic
psychiatrist and author Dr. Stephen P. Herman,
who told the court there is “no specific
recommendation in any literature, any clinical
practice I’m aware of [or] psychiatric disorder
of any kind in which getting someone a pet is a
specific part of the treatment.”
Duffy, who finds pet therapy useful in certain
specific circumstances, agrees. “You can’t open
up a diagnostic manual that says as treatment,
‘Get a pet.’ Obviously, there are other forms
of treatment for anxiety and depression,” she
says. “It’s not the only treatment or an essential
treatment.”
Under the right circumstances, a board may
even suggest an animal other than a dog. “Let’s
say someone [has been recommended] a dog
because of depression,” Mulqueen says. “Why not
a cat?” – an indoor animal that avoids virtually
all the objections levied against dogs. “Each case
is going to be fact-specific, but I don’t see any
problem with the board engaging in that kind of
inquiry as part of that interactive process as long
as they’re acting in good faith.”
Set a Policy
“What I consistently tell my clients,” says
Stewart, “is that the most important thing is
for the board to have a policy in place and
take any requests seriously. Don’t ignore an
accommodation request just because you think
someone might be misrepresenting the facts.”
A Long Island board president says her coop recently implemented just such a policy. “If
somebody submits a request, our first step is to have
them sign a release for medical documentation.
We get the medical documentation, then submit it
to independent evaluation. We take that [medical
expert’s] determination and then review all that
material so that we’re not being arbitrary but
basing our decision on something we got enough
information about.”
A board’s policy should also address the issue
of barking and nuisance behavior. Even Pet
Partners, a major advocacy group for service and
therapy animals, notes that incessant barking or
animals that bite or otherwise pose substantiated
threats can be reported to animal-control
authorities.
How’s it been working at the Long Island coop? “We’ve only had one request after we put
the new procedures in place,” the president says.
“We sent the letter saying what we needed and
we haven’t heard back. If somebody has a real
issue, they’re going to continue the steps to get
what they need to have.”
As she puts it, in plain, simple terms that
would shame the fraudsters, if they could feel any
shame: “If it’s justified, they’ll get the dog.” n
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