What is a Support Animal?
Support comes in many forms.
If you are an assisted living owner and have not yet been asked if a prospective resident can bring their dog, cat, parakeet, etc., with them when they move in, you haven’t been in business long enough! Pinkowski Law and Policy Group previously posted a Blog article on this topic, but the topic is worth revisiting periodically. There are basically 3 types of animals worth discussing in this article, and they are not dogs, cats, or “other.” Rather, they are:
1. Pets;
2. Support Animals, and
3. Service Animals.
Each is handled differently under the law in a regulated residential setting:
1.Pets. As a general rule, any place of business or housing provider may prohibit pets from being on the premises. This includes assisted living, behavioral housing, etc. If pets are allowed, your state likely has regulations pertaining to ensuring that their vaccinations are up-to-date; or that they are registered with the county (in the case of dogs); and that they do not pose a threat to the health or safety of the other residents. Additionally, it is also recommended to have individual business policies and procedures that specifically address pets if your home will accept them. Polices to consider include: who is responsible for cleaning up after the pet; responsibility for providing the pet’s food and health maintenance; any limitations on where the pet is allowed in the facility; noise or disturbances created by the pet; etc.
Individuals with Support Animals and individuals with Service Animals have different legal rights.
2. Support Animals. Although Service Animals and Support Animals both provide assistance to individuals with disabilities, Support Animals are NOT recognized as Service Animals under the Americans with Disabilities Act (ADA), which provides specific legal protections for individuals with disabilities and their Service Animals. This means that individuals with Support Animals may not have the same access rights as individuals with Service Animals in public places and businesses. However, Support Animals are protected under certain other statutes.
The Fair Housing Act (FHA) protects individuals with Support Animals, as well as individuals with Service Animals. Support Animals have a right to be with their owners in housing, including rental properties, under the Fair Housing Act. This law requires landlords to make reasonable accommodations for individuals with disabilities and their Support or Service Animals. Although residential assisted living generally falls outside the parameters of landlord/tenant law, residential assisted living homes have been able to assert protection under the FHA, and are thus likely required to accept Support Animals consistent with FHA requirements.
Some states also have laws that protect the rights of individuals with Support Animals and individuals with Service Animals in various settings, including housing. For example, the California Fair Employment and Housing Act (FEHA) requires landlords to make reasonable accommodations for individuals with disabilities and their Support Animals. This means that landlords cannot discriminate against individuals with Support Animals, or charge additional fees for having a Support Animal. By extension, this Act applies to residential assisted living, and someone who has been denied admission to an assisted living facility in California simply because they have a Support Animal, may be entitled to bring a complaint under FEHA.
3. Service Animals. Service Animals generally need to undergo specific training to perform specific tasks for their owners. Service Animals are allowed to accompany their owners in public places, including restaurants, hotels, and transportation, while Support Animals may not have the same access rights. The primary purpose of service Animals is to perform specific tasks to assist individuals with disabilities, while support Animals provide emotional or psychological support to their owners. Service Animal owners are protected under the ADA, and thus there is no doubt that a Service Animal is entitled to accompany its owner, without additional cost or other discriminatory requirements, in an assisted living setting.
How can an assisted living provider determine if an animal is truly a Support Animal versus a pet?
While owners of Service Animals will generally be able to easily provide certification of the animal’s training and the individual’s need for the animal’s services, people may try to present ‘fraudulent’ certifications, and the owner is justified in reasonably verifying the legitimacy of the Service Animal. Since the advent of the “Support Animal” category several years ago, however, it is more common for individuals to claim that their pet is a Support Animal.
In order to determine if an animal is a support animal or a pet, a housing provider or business may request evidence that the animal is necessary for the individual's disability-related needs. Here are some types of evidence that may be requested:
a) Letter from a mental health professional: A letter from a licensed mental health professional, such as a psychologist, therapist, or psychiatrist, can confirm that the individual has a disability and that the support animal provides therapeutic benefits for the individual's condition.
b) Documentation of the individual's disability: The individual may provide documentation of their disability, such as a medical history, a diagnosis from a physician, or a summary of the individual's treatment plan.
c) Explanation of how the support animal helps with the individual's disability: The individual may provide a written statement explaining how the support animal helps with their disability, such as by providing comfort, reducing anxiety, or assisting with daily tasks.
While there is no single piece of evidence that can definitively prove that an animal is a Support Animal, a combination of documentation and written statements can help to demonstrate that the animal is necessary for the individual's disability-related needs, and if a person is being admitted to assisted living, the first half of the equation (i.e. proving that the person has a disability), has already been met.
We recognize that, taken to the extreme, this could create a zoo-like environment in a 10- or 16-bed assisted living setting, if all residents were to claim entitlement to Support Animals. That is why it is important to remember that consistently-applied written policies and procedures can help mitigate any chaos that might occur from a half dozen dogs and cats living amongst individuals with cognitive impairments. Although the FHA and state laws may not prevent Support Animals from moving in with their owners, documented non-compliance with reasonable rules, or injury to another person on the premises, can be a valid reason for requesting removal of the Support Animal and/or its owner from the facility.
If you need an interpretation of the HUD Assistance Animal Guidance (2020), feel free to contact Pinkowski Law and Policy Group, your state’s Fair Housing agency, or other legal counsel to ensure that you do not accidentally step in legal doo-doo when dealing with Emotional Support and other animals.
The information herein is intended to be educational and an introduction to the subject matter presented. Despite any statutory or regulatory references cited in the article above, it is NOT specific legal advice to be relied upon for specific individual circumstances. Contact your own legal professional or reach out to our firm if you would like specific advice on this topic.
Look for additional blog posts on topics of interest to Assisted Living and Behavioral Health operators. We welcome topic suggestions! Write to brian@pinkowskilaw.com if you are curious to learn more about a certain topic impacting assisted living or other group housing concerns.