Knowing Your Rights to Prevent Emotional Support Animal Fraud

It seems like service and emotional support animals (ESA) are everywhere these days and the ease in which someone can get “certified” raises eyebrows. Is there really an epidemic of people fraudulently using disability protections to bring Fido to the grocery store or avoid a pet fee? Let’s dig into the basics of animal accommodation laws and clarify common misconceptions.

(Note: We’ve addressed the access laws for airplanes in another blog.)

Why do people make requests for service and assistance animals?

An individual living with a disability is entitled to a reasonable accommodation, meaning that the property manager has to make an exception to a policy that otherwise prohibits pets.

Animals can serve an important medical function for individuals living with a disability, but there are often barriers preventing access. It’s rare to be able to bring a pet to a public space (other than a dog park) such as a grocery store or mall, and most housing providers have restrictions on the type and size of pets allowed or prohibit pets altogether.

Reasonable accommodations to policies that restrict pets makes having a service or assistanceanimal accessible for individuals living with a disability.

Who is eligible to use a service or assistance animal?

To qualify for a reasonable accommodation, an individual needs to be living with a disability and have a related need for the animal.

Let’s break that down. The definition of “disability” under fair housing and anti-discrimination laws is very broad. It simply means that the impairment makes it more difficult for the individual to perform daily life tasks than the average person. In fact, a diagnosis or medical records aren’t necessary to determining whether someone is living with a disability.

Having a related need for a service or assistance animal means that the animal alleviates a symptom or effect of the person’s disability.

Another important point: emotional support animals are one type of assistance animal. The universe of disabilities in which animals help us manage health problems is limitless.

What animals are eligible to be a service or assistance animals?

There are important differences between the types of animals that are allowed to serve as a medical aid.

  • Service animals can only be dogs (or miniature horses, which are far rarer) and are allowed in both public spaces and dwellings. They must be trained to perform a task that alleviates a symptom of the person’s disability. Despite common belief, anyone can train a service animal — rigorous professional training is not a legal requirement.
  • Assistance animals can be any animal commonly kept as a pet, and are permitted access in housing, not public spaces. In other words, if a store manager doesn’t allow pets, assistance animals (which includes ESAs) don’t get a special pass while service animals do. While assistance animals have the same requirement of alleviating a symptom of the disability (the “related need”), they aren’t required to be trained to perform their task.

What are the verification requirements?

Evaluating whether an individual is entitled to a reasonable accommodation for a service or assistance animal has different requirements.

  • To verify qualification for a service animal, a property manager may ask two questions:

a. Is the dog needed because of a disability?

b. What task is the dog trained to perform?

  • To verify qualifications for an assistance animal, a property manager may request reliable documentation of the disability and related need for the assistance animal.

Where are service and assistance animals allowed?

The reason people need a reasonable accommodation for a service or assistance animal is because these animals are allowed access to places that pets are not.

  • Service animals are allowed special access to public spaces and housing.
  • Assistance animals are permitted in housing, but not public spaces (so if pets are banned from grocery stores, so are “ESAs”).

Are there restrictions on service and assistance animals?

While they’re permitted in locations where pets are not, it doesn’t give the animal (or the owner) free rein to wreak havoc.

This is a crucial point: If a service or assistance animal misbehaves, threatens the health and safety of others, exhibits nuisance behaviors, or isn’t housebroken, the commercial or residential property manager can evict the animal from the premises.

There are other rules involved and there are state laws that can come into play if they provide more protections for people living with a disability, but those are the basic principles.

Knowledge is power, ignorance is trouble

There is a narrative that fraud is rampant with these requests, but it’s not true. Understanding the legal requirements helps dispel the myth.

Those identification badges and unreliable verification letters? Those are legally meaningless and purposefully confusing

Articles expressing outrage about how people have registered a toy stuffed animal as an emotional support animal, miss the point that it’s the person who has to qualify, not the specific animal. Sure you can use a toy stuffed animal as a service or assistance animal — you just don’t need an accommodation to a policy to use one.

And while these are examples of confusion surrounding the law, they’re not evidence of fraud.

This doesn’t mean we don’t have a problem. It means we need to shift how we look at it, because the level of actual, intentional fraud is virtually non-existent. Instead, what is thought of as fraud is really gut feeling and anecdotes. Moreover, the federal regulations in place already provide mechanisms for handling fraud as well as animals that are dangerous to the community.

The real issues at play are the lack of knowledge of the regulations, purposeful misinformation put forward by folks with economic interest in generating confusion, and cursory evaluation of service and assistance animal requests.

Knowing your rights as a resident or housing provider is critical to creating a safe community for all two- and four-footed residents.

Opening Doors PLLC is a legal and consulting firm that helps property managers and residents build pet-friendly communities and solve pet-related housing issues. Contact us at info@pawsopeningdoors.com for more information.

The information is provided by Opening Doors PLLC for informational and advertising purposes only. The information and materials herein should not be construed as legal advice and do not create an attorney-client relationship.

Welcome to LandlordsNY

Get answers when you need them.

This service gives members instant access to LNY in house DHCR, HPD, and Property Management Counselors for immediate help when you need it.

Our concierge service offers unlimited access & guaranteed response time.

Just like a concierge at a hotel who knows how to guide guests and to remove some of the uncertainty of trying something new, our staff counselors goal is to provide information and guidance to landlords and to take much of the uncertainty out of owning and operating a property in New York.

Sign Up