Monday, January 12, 2009

Dealing with "Prescription Pets"

One of the hottest topics in Community Association Law is the owner who requests to keep a pet as a "Reasonable Accommodation" under the Fair Housing Act. Just because a member requests permission to keep an emotional support animal doesn't mean you have to grant it. Here are some questions you should ask when you get such a request. If the answer to any of these questions is no, you may be entitled to deny the request.

1) Is the member disabled? According to the act, someone is disabled when they have a physical or mental impairment that substantially limits one or more major life activities This determination is not for managers or directors to try and determine on its own. Community association managers and directors are mot experts and therefore aren't qualified to make medical diagnoses. They must instead seek the professional opinion of a health care provider. There are verification forms to do this.

2) Is the animal necessary to enable the member to enjoy his home and the common areas/elementsto the same extent that nondisabled members enjoy their homes? The act says that disabled people are entitled to reasonable accommodations when necessary for them to be able to enjoy their homes to the same extent that nondisabled people enjoy their homes. That doesn't mean the animal must be a medical necessity, or that it have any special training. The reasonable accommodation doesn't have to be therapy, medicine, or something the person couldn't possibly live without, only something that makes it easier for him to deal with the limitations of the disabling conditions. This includes companionship for people with anxiety or depression.

What's more, although many people think the only time the association has to let a member keep an emotional support animal is when the animal is the member's only available option, that's not true. The animal doesn't even have to be the easiest option for the association to be required to allow it. Just because an option that's easier on the association may exist, like taking drugs as opposed to a dog, or a goldfish as opposed to a cat—doesn't mean that the member has to accept that other option.

Courts usually use a balancing test, asking whether the disabled member derives some benefit from keeping the animal and, if so, at what cost to the association and other members.

3) Would letting the disabled member keep the animal impose an undue hardship on the association? Even if the animal would provide some benefit to the disabled member, if it's too expensive, disruptive, or destructive to keep around, the association may be allowed to refuse to make the accommodation. According to the act, the accommodation sought by the disabled member must be reasonable. A dangerous or untrained dog, or one that barks all night and keeps everyone awake, for example, might not be reasonable, and the association could refuse to allow the member to keep it. Also when outside of the home , the association may require that the animal be leashed and/or muzzled may be reasonable under the circumstances of an accommodation.

What to Do When You Get A Request

Here are four steps to take when a member requests permission to keep an emotional support animal.

1) Send a letter to member acknowledging request. When a member requests permission to keep an emotional support animal, send a letter acknowledging the request. Your letter, based on consultation with counsel, should explain the association's policy on reasonable accommodations, including emotional support animals. Specifically, the letter should say that the association complies with all Fair Housing laws and that if a disabled member requests permission to keep an animal, the association will grant the request if it determines that the animal is necessary to allow the member to enjoy his home to the same extent that nondisabled members enjoy their homes. Also, the letter should tell the member that the association will respond to her request within a uniform number, say 15 business days from the date it receives the information it needs to make this determination.

2) Verify the member's disability and need for the animal. Include an Emotional Support Animal Request Verification form for the member to give to his or her health care provider. In the letter, tell the member to sign the Member Release portion of the form and then to have her health care provider complete the rest of it and return it directly to the association.

The verification form tells the health care provider that the member has made a request for an emotional support animal and explain the association's policies regarding such requests. It should tell the provider how the act defines disability and ask whether, in the health care provider's professional opinion, the member is disabled. And it should ask the provider whether the member needs the animal to have an equal opportunity to use and enjoy the community.

The form should also ask the health care provider whether he would be willing to testify in any proceeding related to the member's need for the animal. This lets the provider know that you mean business, and may discourage members' friends in the health care field from writing false letters in support of the request. Show the verification form to your attorney before using it at your community.

3) If health care provider confirms member's disability and need for the animal, grant the request—unless compelling reasons exist to challenge it. Generally, you should accept the diagnosis of any qualified health care professional and allow the member to keep the animal if the professional believes that the member needs it. The health care professional doesn't have to be a doctor. HUD accepts complaints based on the opinions of Ph.D.s, certified social workers, or therapists, among others.

Only in extreme situations should you challenge the health care professional's diagnosis. It's generally recommended that associations not go behind the health care provider's determination or qualifications. If an association decides to reject such a request, it should do so only with an abundance of caution and with the active involvement of its attorney. Every Board should check with your insurance agent to confirm that you have coverage or at least a defense provided by your insurance policy if challenged.

4) Consider community circumstances to decide whether requested accommodation is reasonable. As explained above, an association doesn't have to make any accommodation that's unreasonable—even if the member is disabled and a health care professional verifies that the member needs the animal. Reasonableness always depends on your community's circumstances. The association might have to restrict the type of animal the disabled member can keep. It's important to be in regular communication with the member so that she understands your willingness to work toward any resolution that's reasonable.

If an animal is a nuisance, that is grounds to have the animal removed, regardless of whether it is an otherwise qualified support animal. Make sure that witnesses are willign to testify, and that the behavior is specifically prohibited by the documents or a rule.

No comments: