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 the elderly people or with disabilities, The Newfederal York City Human Rights to January of 2007, the commission hasMulqueen, categories housing providers, says withand “none condos that have accepted financial assistance, Law is similar. In short, genuine levied only $10,000 in fines for all or co-ops or condos that have accepted having to do with animal cases.” such as Section 8 payments, or a HUD-backed mortgage. financial such as is a disability categories housing providers, In order of to act in good faith, of says course, afederal board needs the assistance, Otherwise HUD non-issue.is serious business that should not trivialized someone Mulqueen, with “none having to do Section 8 payments, or a HUD-backed facts about the law. The applicable law inbethese cases isbecause the federal Fair wants a pet. “If there’s no disability, with animal cases.” mortgage. Otherwise Housing HUD is Act a non(FHA) and its state and local analogues. The issue. there’s no discrimination,” says Marc In order to act in good faith, of So What Laws Apply, Exactly? FHA forbids discrimination based on “a physical or mental The applicable law in these cases is 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. Disabilities Act (ADA) applies in co-op and condo settings. person’s major life activities.” The pertinent part of the The second important fact is that there its state and local analogues. The FHA TheWhat ADA only covers “public accommodations” such as FHA’s is “a refusal to make forbids discrimination baseddefinition on “a of isdiscrimination a distinction between two categories So Laws Apply, Exactly? businesses, schools, recreation areas, the like.orAs for impairment reasonablewhich accommodations in (which rules, policies, of animals are almostpractices, always It’s a common misconception that andphysical mental Housing and Urban Development (HUD) rules on service or services, when such accommodations may bethese necessary dogs). Mulqueen describes as “a substantially limits one or more of the Americans with Disabilities Act animalsapplies and other assistance animals, these apply only afford such personservice equal opportunity to that use and enjoyaa such person’s major lifetoactivities.” The animal (a dog provides (ADA) in co-op and condo to HUD-assisted housing and multifamily dwelling.” pertinent housing part of the FHA’s definition service) and a comfort animal (one that settings. The ADApublic only covers “public projects for the elderly with disabilities, or co-ops is “a Therefusal New York Human Rights support).” Law is similar. In provides emotional of discrimination to City accommodations” suchand as people businesses, make reasonable accommodations in Service animals are easy to wrap schools, recreation areas, and the like. your head around: they’re individually As for Housing and Urban Development rules, policies, practices, or services, 2 • DECEMBER 2012 • REPRINTED HABITAT MAGAZINE trained, like seeing-eye dogs for the (HUD) rules on service animalsWITH andTHE PERMISSION when suchOF accommodations may be necessary to afford such person blind or mobility-assistance dogs other assistance animals, these apply 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.” REPRINTED WITH THE PERMISSION OF HABITAT MAGAZINE • DECEMBER 2012 • 3 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 4 • DECEMBER 2012 • REPRINTED WITH THE PERMISSION OF HABITAT MAGAZINE