Fraudulent Emotional Support Animal Requests: How to Protect your HOA

How can our community protect itself from fraudulent emotional support animal requests?

One of the most difficult issues facing community association board members is how to evaluate and address requests for accommodations for emotional support animals. Often, mental disabilities are not as visible and obvious as many physical disabilities, if at all. Combine this with the number of websites and individual medical professionals who write letters after a one-time evaluation or, worse yet, an online “test,” and you have a situation in which a community association cannot win. If the board approves the animal, the residents are forced to live with it—even if there are severe allergies or phobias. If the board denies the animal, the association could be subject to lawsuits and Department of Housing and Urban Development complaints.

For years, medical professionals and the requesting parties have been able to provide letters purchased online for a fee by answering simple questions. Many of the websites explain exactly how a person should answer to ensure the request for an animal is approved. The fraud and abuse related to requests has skyrocketed.

In 2020, HUD provided some clarity on the issue. Under the federal Fair Housing Act, community associations may request reliable documentation when an individual who requests a reasonable accommodation has a disability and disability- related need for an accommodation that are not obvious or otherwise known. Documentation from the internet is not, by itself, sufficient. However, a note from a person’s healthcare professional that confirms the disability or need for an animal when the provider has personal knowledge of the individual’s conditions is acceptable.

Additionally, if one person requests more than one animal, he or she must provide supporting information regarding the specific need for each animal. The association also may require proof that each animal is properly licensed and vaccinated. Animal owners are liable for any damage done to the premises or to another person or animal by their support animal.

In Florida, for example, several statutory amendments went into effect in 2020 that were designed to give associations some teeth.

Florida Statute Section 817.265 criminalizes fraudulent requests. Section 456.072 was amended to provide that a health professional who provides information indicating that a person has a disability without personal knowledge of that disability or disability-related need for the animal is subject to disciplinary action.

Section 760.27(2)(a) provides cover for associations to deny a reasonable accommodation request if the animal poses a “direct threat to the safety or health of others or poses a direct threat of physical damage to the property of others which threat cannot be reduced or eliminated by another reasonable accommodation.” This is often seen in the context of an animal that is approved and thereafter is aggressive or bites another person or animal. A reasonable accommodation might be for the animal to be muzzled when outside of the home. If the handler refuses, or if the threat is not removed by the use of a muzzle, the animal may be removed through the proper legal channels.

Sections 760.27(2)(b)(1)–(4) explain that if a person’s disability is readily apparent, the association may request “reliable information that reasonably supports that the person has a disability.” This includes a determination of disability, or receipt of disability benefits or services, from any federal, state, or local government agency, or proof of eligibility for housing assistance due to a disability.

Subsection (4) explains that if the above is not provided, an association may require information from a health care practitioner, including a telehealth provider. If an out-of-state practitioner provides the information, he or she must have provided “in-person care or services” to the requesting party on at least one occasion. The information must be provided by a health care practitioner who has personal knowledge of the person’s disability and is acting within the scope of his or her practice. This prohibits the out-of-state telehealth individuals who advertise to write these letters.

While it is acknowledged that there are people with mental disabilities who require emotional support animals, this article addresses only fraudulent requests. With these legislative changes in place, associations will be better able to evaluate these requests, weeding out the fraudulent ones while approving those that are necessary and legitimate.

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