Are We Sure Some Dogs Are Still Allowed?
At the end of 2018, Pennsylvania passed the “Assistance and Service Animal Integrity Act” or ASAIA for short. ASAIA is designed to eliminate fraudulent claims by pet owners asserting a need for an “emotional support animal” in order to bypass the Association’s rules on pets. I have written a number of articles on support and assistance animals. These are very difficult and confusing issues for Associations (and landlords) to decide. Let’s look at the ASAIA to see if it actually simplifies these questions.
To review, there are two federal laws to consider: The Americans With Disabilities Act (“ADA”) and The Fair Housing Act (“FHA”). The ADA says that a service dog is permitted in all public places. A service dog is a dog that is specially trained to perform a task that is directly related to a person’s disability. Section 504 of the FHA applies to providers of housing – like a landlord or condominium association. The FHA says that a housing provider needs to make reasonable accommodations for people with disabilities. A reasonable accommodation could be an “assistance animal.” Unlike a service dog, an assistance animal does not need to be specially trained to perform a task. An assistance animal can be an animal that relieves the symptoms of a disability. Today, we see people with disabilities such as anxiety or depression using an animal to provide emotional support.
Does the Assistance and Service Animal Integrity Act change existing requirements?
I think the Act is a good effort by the General Assembly. At the end of the day, unfortunately, I do not think it makes a big change in the way that associations (and landlords) need to deal with disabled individuals. Here are the reasons why:
- The ADA and FHA are both federal laws. I am not sure that a state law can be more restrictive toward disabled persons than the federal law. I think that most, if not all, of the federal requirements remain in place despite the Pennsylvania General Assembly.
- Under the ADA (which deals with service animals), a housing provider is only permitted to ask two questions. They are: (i) “Is this a service animal that is required because of a disability?” and (ii) “What work or tasks has the animal been trained to perform?” These are the only questions that are permitted, even if a person’s disability is not readily apparent. Section 3 of the ASAIA says that an association can request documentation for either service or support animals. I do not believe that the ADA allows an association to ask for documentation for a service animal.
- The FHA (which, for our purposes, deals with support animals) permits an association to request documentation when someone asks for a reasonable accommodation for an emotional support animal. The Department of Housing and Urban Development (HUD), however, limits this request only to situations where a disability is not readily apparent. HUD says that the housing provider is permitted to request documentation from a physician, psychiatrist, social worker or other mental health professional to confirm that the animal alleviates the effect or symptoms of a disability. A HUD notice states: “Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.”
Compare this to Section 3(b) of ASAIA. The HUD guidance and ASAIA are generally the same. However, ASAIA seems to require more specific information. For example, ASAIA requires the documentation to be based on “direct knowledge” of the person’s disability and need for the support animal. Arguably, the FHA requires the same kind of reliable documentation. But the standard that needs to be met under the FHA has been pretty easy to establish. To the extent that ASAIA allows an association to ask for more documentation, the association needs to be careful.
Associations should not think that ASAIA allows them to make an independent judgment about whether the emotional support animal is needed. Simply put, if an association gets (i) a letter from a mental health professional that says (ii) a unit owner has a disability like anxiety or depression, and that (iii) the animal provides some sort of assistance or emotional support, the association needs to provide the reasonable accommodation. The association should not be using its judgment to determine whether the medical professional is correct or not. In this way, the ASAIA does not make that much of a change to the existing situation.
The final two portions of ASAIA are great news. Section 4 provides that an association (and landlord) is not liable for injuries caused by a service dog or support animal. Sections 5 and 6 create criminal penalties to misrepresent the need for a service dog or support animal. The penalties are more severe for people that fake documentation or fit an animal with a harness or vest that falsely indicates the animal is a service animal. I do not believe these are pre-empted by federal law. Hopefully they will make people think twice about misrepresenting the need for a support animal.
All of the associations that I work with want to provide accommodations for people who really, truly need emotional support animals. This is difficult to do when people can go online and get the required paperwork for $69.95 to “document” their need. [Note: A quick Google search of “emotional support animal certification” brings up about 10 million results. I am not going to link to any of these providers.] Although the Assistance and Service Animal Integrity Act might not be perfect, I hope it can help associations (and landlords) to make better decisions in this area.