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How to Curb Fake Emotional Support Animals?

Under federal guidance, emotional support animals are allowed in homes and apartments. But identifying legit cases and enforcing rules isn’t always easy to do.

WASHINGTON – Numerous websites promise to qualify any pet as an emotional support animal that the sites claim can go nearly anywhere – inside restaurants and stores, into “no pets” apartments and throughout college dorms. The easily obtained certificates are making it tough for states to crack down on fake support animals without running afoul of federal fair housing or anti-discrimination laws.

Emotional support animals, which are supposed to help people overcome anxiety or other psychological ills, are different from “service animals,” which are trained to help people with disabilities navigate their surroundings or to warn owners of physical ailments such as low blood sugar.

There are specific criteria for service animals in state or federal law, mostly having to do with training or the performance of specific tasks, and the animals are protected by the Americans with Disabilities Act (ADA). Emotional support animals don’t have the same ADA protection.

Under federal Department of Housing and Urban Development (HUD) guidance, emotional support animals are allowed in homes and apartments. Landlords are allowed to ask for documentation that the person needs the animal. In practice, a certification from a therapist or counselor that says the animal helps with anxiety, depression or other ills usually suffices.

The criteria do not permit support animals in restaurants or other indoor environments where pets are prohibited. But in practice, gatekeepers are usually reluctant to challenge people with support animals.

The vague definition has led to an explosion of websites such as Pettable, CertaPet and US Service Animals advertising how easy it is to qualify, even by remote appointment, in a couple of days. (Also see “Emotional Support Animal Law: What’s It All Mean?” by Florida Realtors® Attorney Meredith Caruso.)

These animals primarily fall under the federal Fair Housing Act, which allows the animals in apartments, homes and college dormitories, with some restrictions.

Apartment managers, store greeters and restaurant hosts are put in the uncomfortable position of dealing with pet owners who may be insistent that their furry friends are allowed in – both when they are, and even if they are not. Some doorkeepers acquiesce rather than fight, though that could put them at odds with patrons who are allergic to animals or who simply don’t want them around where they live, eat or shop.

About a dozen states have penalties for falsely claiming a need for an assistance animal in housing, according to Rebecca Wisch, an editor at the Animal Legal and Historical Center at Michigan State University, which keeps track of the laws. But most of those laws have to do with trying to pass off an animal as a service dog, when there is no disability-related need, rather than just emotional support animals, adding to the confusion.

Critics of permitting support animals in housing say the easier it is to obtain a support animal certificate, the more likely it is that ordinary pets can carry the fake designation, even if their owners have been only cursorily evaluated for need. Support animals used to be allowed on commercial flights, but the U.S. Department of Transportation stopped that in 2020 with a new rule that limits the allowed animals to service dogs. All others are classified as pets and must meet airline rules, such as being in a carrier or fitting under a seat.

“The problem is there are online ‘therapists’ that sell the letters to support an emotional support animal and sell entry into a ‘registry’ that doesn’t exist; there’s no such thing,” said Mike Rutledge, coordinator of Veteran Services at Northern Michigan University, who also handles student requests for emotional support animals at the school. “They are stealing people’s money.”

Rutledge said in an interview he has seen a sharp rise in students requesting support animals in university housing, an increase he blames on the pandemic, which studies show has exacerbated student anxieties and depression.

About 3% of students living in university housing at Northern Michigan have the animals, he estimated. He said he has to weigh students’ needs – both those who want the support animals and those who may not want to live with them – along with concerns over keeping an animal in a small space, such as a dorm room, and the legitimacy of the requests.

Rutledge, a retired 22-year Army veteran who has mobility issues and is assisted by Welles, an English Labrador retriever, meets with every student to ascertain whether they simply bought a certificate or really have a relationship with a therapist, which he requires.

Michigan law allows emotional support animals in housing, and landlords can’t require extra fees or deposits. They must provide reasonable accommodations for the animals.

A new law in California, which took effect in January, is the most stringent of those designed to crack down on the fakes. The law requires a mental health practitioner to have at least a 30-day relationship with a client before being allowed to prescribe an emotional support animal and spells out that such animals are not guide dogs or service dogs, and therefore aren’t allowed in stores, restaurants and other indoor public places.

The support animals are allowed in residences. Violations of the law can cause a practitioner to be disciplined by their licensing board and be fined.

“This [law] is really about creating awareness and action around fraudulent actions that are meant to mislead the public,” Assembly member Laura Friedman, a Democrat and author of the bill, said in a phone interview. “It’s not going to stop anyone from having an emotional support animal, but ordering a harness off the internet doesn’t change the law or give you more rights.

“People were misled into believing something that wasn’t true. It doesn’t stop people from purchasing these animals. It doesn’t mean this animal has any special privileges under the law or has any special training.”

The enforcement issue

But there’s little evidence that the law is being enforced. Friedman says the next step is to spread the word, particularly among landlords and apartment managers.

The California attorney general’s press office, in an email, said officials were not aware of any cases since the law went into effect brought against mental health professionals for prescribing emotional support animals for people who were not qualified to get them. Further, the email said: “There are more than 500 local officials who can bring actions to enforce [the law]. We are not aware of any such actions brought to date …”

And Renee Santos, public information officer for the California Department of Consumer Affairs, said the state’s Board of Behavioral Sciences, which regulates therapists, would investigate any complaints regarding documentation for emotional support animals. The agency hasn’t received any since the law took effect.

Heidi Palutke, a lawyer with the California Apartment Association, which represents landlords, said the effect of the California law is limited.

“It regulates the purveyors of the swag [such as vests, certificates and collars] to present their animal as a support animal,” she said in an interview. But it doesn’t give the landlord or apartment manager the right to question the certificate. “This carve-out in the state law doesn’t give the landlord the ability to say ‘no,’” she said.

“What’s frustrating for me is that there are people who really do need these animals to lead some kind of decent life,” she added. “This is really being exploited by people who want pets in housing that doesn’t allow pets.”

She said the issue usually arises when a tenant is evicted for having an unauthorized pet. After that notice, she said, the animal is “magically transformed into a support animal,” and there’s little the landlord can do.

But some websites apparently are paying attention. When a Stateline reporter applied on Pettable for an emotional support dog and gave her home state as Maryland, the site responded that the reporter had been “pre-approved,” and a follow-up email said she was a “great candidate.” All that remained was to pay the fee and consult with a therapist online in the next 24 hours. Fees range from about $100 to several hundred dollars, depending on what a customer buys, according to news reports.

But when the address was changed to California, the transaction didn’t go through. An email to Pettable produced a response citing the California law with the 30-day relationship requirement and added: “We cannot expedite consultations for CA residents or provide you with a letter. You’ll have to wait 30 days and finish two consultations with your assigned therapist before you can get your ESA letter.”

CertaPet and US Service Animals could not be reached for comment.

Michigan state Rep. Sara Cambensy, a Democrat, hopes to get her state to follow California’s lead. She has sponsored a bill that would penalize people who sell fake emotional support animal certificates and gear.

A similar bill was approved by the legislature in 2020, but Democratic Gov. Gretchen Whitmer vetoed it, largely due to a clause specifying punishment for the owners of fake support animals, saying it might violate privacy rights. The new bill does not include sanctions on the animal owners.

Cambensy said in an interview the problem was highlighted for her by the universities, such as Northern Michigan, but that it would apply to other housing as well. A pet owner herself (she has two golden retrievers, Ziggy and Archie), she said in an interview she also is concerned that people will sign up for the pets not knowing how to take care of them, particularly in small spaces. The bill passed the Michigan House unanimously in September and is scheduled for a hearing in the Senate.

Deni Elliott, an ethics professor at the University of South Florida and an expert in disability and service dogs, has extensively researched service animals and emotional support animals. With support animals, she said, “the problem is there is no consistency among states. California has done a better job of trying to control this.”

Elliott said many states have penalties for misrepresentation of a service animal but not necessarily for that of an emotional support animal, “but the problem is the gatekeepers don’t know what they are doing.”

She said a solution could be a single federal law governing emotional support animals that the states could then enforce. She likened such a law to the federal requirement that facilities provide handicapped parking, but that leaves it up to states to enforce the designation of parking and fines for violations.

Elliott, who is legally blind and uses a black Labrador service guide dog named Koala, said fake emotional support dogs can interfere with her legitimate canine assistant.

She recalled standing in a line at an airport (before the U.S. Department of Transportation banned emotional support animals flying for free) with her guide dog when a small dog behind her began barking incessantly. The owner apologized, saying the little dog would soon be quiet because she had given it anti-anxiety medication, Elliott recalled.

Elliott asked how the anxious dog helped ease the woman’s own fears. “She replied, ‘She really hates flying. I’m so worried about her, I’m not worried about myself.’”

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