Prescription Pets, Revisited: A Discussion of Service Animal Exemptions in Condos, Co-Ops and HOAs

[Original Date August 1, 2009]

Welcome, friends, to our first New Neighborhoods blog entry!  To give you some background, I’m Ryan Poliakoff, one of the authors of New Neighborhoods–The Consumer’s Guide to Condominium, Co-Op and HOA Living (ask for it at your favorite bookstore!)  Formerly a lawyer, I am now an active author as well as the vice president of a $100 million oceanfront condominium.  Our book is about Shared Ownership Communities (SOCs)–condominiums, cooperatives and planned developments governed by a homeowner’s association (HOAs).  My plan for these blogs is to discuss some of the issues that my board encounters on a regular basis, and to share my thoughts on the best ways to handle these problems (or to ask your advice about how they were handled in your community).  I encourage you to comment on my blog in our forums, which can be found at www.newneighborhoodspublishing.com.  So enough with the intro–let’s get to the good stuff!

In our book, we dedicate several pages to the issue of Prescription Pets, which describes the current trend of doctors writing prescriptions that purport to allow their patients to keep pets in otherwise pet-restricted buildings.  How does this happen?  Here’s a brief rundown (the book is far more detailed):

The Fair Housing Amendments Act (FHAA) is a federal law that prohibits housing discrimination against people in a number of protected categories, including those who are “handicapped.”  It further states that community associations must make reasonable accommodations to handicapped persons to prevent them from being discriminated against.  So how does this work? One obvious accommodation would be to allow a paraplegic to install a ramp up to their front door, even if the documents prohibit such architectural modifications.  But this exact same principle also covers “service animals.”  That is, an association must reasonably accommodate a handicapped person by allowing them to keep a service animal, such as a seeing-eye dog, even if the building does not allow pets.  Unfortunately, creative doctors have stretched this policy to its limits, and that’s where the world of prescription pets was born.

Under the current statute, the language of which is extraordinarily broad, almost any person can allege that they are “handicapped,” as it covers any condition that affects a major life function (eating, sleeping, moving about, conducting daily activities).  That definition encompasses diseases like depression, insomnia, anxiety, obesity–the list is extensive.  And for the past decade or so doctors have been “prescribing” pets to sufferers of these diseases, claiming that they are service animals and that the association must therefore allow the pet as an accommodation (or else risk violating the FHAA).

Let’s be honest for a moment–it would take an unusually virulent animal hater to attempt to deny a visually-impaired person the help of their guide dog, or even reject pets used for seizure detection or as helpers to physically-challenged people.  But some of the borderline cases, especially those relying on emotional diseases, push the boundaries of what was intended by the act, and they require a bit of finesse on the part of a board of directors to manage.

My condominium is a pet friendly building, but our documents do not allow renters to have pets–only owners.  Our board recently received the following request for a pet exemption for a prospective renter.  I have changed the names and specifics to protect the individual’s privacy, but you’ll get the basic idea:

“Dear Sir/Madame,

Due to the fact that he is suffering from situational depression, it is imperative that John Doe be able to continue to live with his dog, Fido, who has been his constant companion over the past ten years.

Should you have any questions, please feel free to contact me by email or telephone.  Best regards, Dr. So-and-So.”

Now, readers who are practiced board members are probably rolling their eyes, because this is exactly the type of cursory, simplistic pet prescription that any family doctor can write for any person, making vague allegations of handicap.  What exactly is “situational depression?”  Does it affect a major life function?  Why does this man need a service animal?  Can we really compare a person like this to a visually-impaired person who uses a guide dog?  Is it fair to lump them into the same category?  How can a board respond to this type of request?

All good questions.  The first step our board took was to request more information.  When a disease is not visibly obvious, the board is allowed to request medical records sufficient to demonstrate that the disease exists, and that it does, in fact, impair a basic life function.  Additionally, the board may request detailed information on the doctor’s qualifications to make the diagnosis, and proof that the doctor is in fact the treating physician.  So this was our second step–ask our lawyer to contact Dr. So-and-So and ask him to provide additional information.  We then received the following response.

“Dear Mr. Lawyer,

In response to your letter, Mr. Doe is suffering from a depressive disorder.  Part of the symptom complex of the depressive disorder is insomnia: Mr. Doe has difficulty falling and staying asleep without his dog.  When he is unable to get a good night’s rest, his cognitive functioning (directing attention, concentrating, and decision-making) also becomes impaired.

His diagnosis is based on criteria from the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, published by the American Psychiatric Association.  As a duly-licensed psychotherapist in Florida, my scope of practice includes diagnosis and treatment of mental, emotional, and cognitive disorders.

Should you have any questions, please feel free to contact me by email or telephone.

Best Regards, Dr. So-and-So”

Now that’s a practiced, very clever doctor!  He has alleged a condition that clearly impairs life functions–sleeping and cognitive functioning both qualify.  So the person is legally handicapped (I know, I know–aren’t we all?).  The doctor is a licensed physician who is treating the patient and entitled to make this diagnosis.  So what’s left?

The only remaining issue is whether a pet requires some special training before being qualified as a “service animal.”  It’s true that, in this case, special training would appear to be lying there like a pillow, and most dogs know how to do that intuitively.  But the case law around the country is extremely varied on whether special training is required.  One court in California stated that the innate qualities of dogs made them uniquely suited to be service animals, and that the only training needed is their natural instinct.  Other courts have required proof of simple obedience classes, and then there are the courts that require service animals to have special training, like guide dogs.  The problem, of course, is that the law is so varied a board would have little idea what would happen in court if they reject the request.  If this request were made in California, for example, there’s almost no question that the association would lose its challenge.  But in other states? Not quite as clear.

So what’s a board to do?  Do you allow the request, understanding that it really treads the edge of what was intended by the law?  Or do you deny the request, knowing that a lawsuit is almost guaranteed, and that, depending on the state, the association could easily lose the case?  It’s a tough call–please sound off in our forums, and we’ll discuss your comments in a future blog–and I’ll let you know what we decided.

Until next time, thanks for reading, and for those interested in the book, I hope you enjoy it!

Ryan Poliakoff

6 Responses to “Prescription Pets, Revisited: A Discussion of Service Animal Exemptions in Condos, Co-Ops and HOAs”

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