Prevent ESA Fraud
Formerly SPODA, the Society for Prevention of Online Diagnostic Abuse, Prevent ESA Fraud is a nonprofit organization formed to educate the general public, housing providers and airlines of the rights, law, and responsibilities of legitimate Emotional Support Animal ownership.Current Scams:
Emotional Support AnimalsAre you a patient and a victim of receiving a fraudulent ESA letter? CLICK HERE Are you a landlord and a victim of receiving a fraudulent ESA letter? CLICK HERE
There are many online companies that advertise that they can provide you with a mental health diagnosis that will allow you to live with your animal. However, you must be careful.
More info on Emotional Support Animals
An Emotional Support Animal (ESA) also called “assistance animal” is defined as “an animal that works, provides assistance, or perform tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.” (FHEO Notice: FHEO-2013-01 at page 2).
“Reasonable accommodation” is a change in rules, policies, practices, or services so that a person with a disability will have an equal opportunity to use and enjoy a dwelling unit or common space. (42 U.S.C. § 3604(f)(3)(B)).
Both the housing providers and the mental or emotional disabled person with an ESA have responsibilities to each other to ensure “reasonable accommodation”.
Person with a diagnosed a mental or emotional disability may be asked to provide and be responsible for the following:
1. Make a request in writing stating “reasonable accommodation” is being requested for the disabled person and that the ESA is needed. The housing providers must respond in a reasonable amount of time or may be charged with “constructive denial”, Bhogaita v, Altamonte Heights Condominium Assn., 765 F.3d 1277 (11th Cir., 2014).
2. If the disability is NOT readily apparent or known to the housing provider, attach a “physician, psychiatrist, social worker, or other mental health professional” letter stating
a. That the tenant is a patient,
b. Patient has been diagnosed with a mental/emotional disability under Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)
c. The patient must have an ongoing relationship and therefore, the mental health professional must be familiar with that patient’s history and diagnosis, and
d. The ESA animal alleviates symptoms of the disability in order to fully enjoy the premises. This provides the nexus between the ESA and the disability. (Crossroads Apartments Associates v. LeBoo, 152 Misc,2d 830 (N.Y. 1991) and Janush v. Charities Development Corporation, 169 F. Supp 2d 1133 (N.D. Ca. 2000) and (FHEO Notice: FHEO-2013-01 at page 4)).
3. Be responsible for clean-up, maintenance, and any damage cause by ESA excluding reasonable wear and tear that would NOT be charged to any other tenant. (FHEO Notice: FHEO-2013-01 at page 3).
4. Although there is no case or specific law regarding multiple ESAs, an ESA must have documentation that the support animal alleviates a symptom of the disability. (FHEO Notice: FHEO-2013-01 at page 4). Therefore, it may be implied that each ESA must have documentation that each ESA alleviates the same or different symptom of the disability.
5. ESAs are NOT service animals. ESA are NOT required to be allowed in the same public places like service animals are allowed. (American with Disabilities Act, Title III). For example, restaurants, hotels, retail stores, grocery stores, etc. are required to allow service dogs but NOT ESAs. ESAs are limited to housing and airline travel. (FHEO Notice: FHEO-2013-01 and Air Carrier Access Act (49 U.S.C. 41705 and 14 C.F.R. 382).
6. ESAs are NOT limited to dogs or cats. For example, a guinea pig, hamster or exotic bird may be acceptable but a poisonous snake might NOT. However, each animal requires a fact-specific individualized inquiry. (FHEO Notice: FHEO-2013-01 at page 3).
7. If there are discriminatory actions from a housing provider, the statute of limitations to timely bring an administrative case with U.S. Department of Housing and Urban Development (HUD) (and many state agencies), is within one year. (42 U.S.C. 3610(1)(A)(i)). The maximum civil penalty of $19,787, per violation, for a first offense, in addition to actual damages for the complainant, injunctive or other equitable relief, and attorneys' fees may be awarded. The statute of limitations for bringing fair housing complaints in federal (and most state) courts is NOT later than two years after the occurrence or the termination of an alleged discriminatory housing practice. (42 U.S.C. 3613(a)(1)(B)).
A housing provides must make “reasonable accommodation” for a disabled person with an ESA animal.
The housing provider responsibilities include:
1. “A housing provider may NOT deny a “reasonable accommodation” request because he or she is uncertain whether or NOT the person seeking the accommodation has a disability or a disability related need for an assistance animal”. However, if the disability is NOT readily apparent or known to the provider, the may ask for documentation of the disability and the need for an assistance animal. (FHEO Notice: FHEO-2013-01 at page 3).
2. The housing provider may NOT ask the applicant or tenant to provide access to medical records or medical providers or provide detailed or extensive information or documentation of a person’s physical or mental impairments” (45 C.F.R. § 160.103 and FHEO Notice: FHEO-2013-01 at page 4).
3. Pet fees, pet deposits and “No Pet” restrictions are waived. An ESA is NOT a pet. An ESA is considered “reasonable accommodation”. Fair Housing Amendment Act of 1988 (H.R. 1158 — 100th Congress: Fair Housing Amendments Act of 1988).
4. The breed is NOT a reason for denial. Denial must NOT be based on fear of breed. Each animal must be evaluated objectively. (FHEO Notice: FHEO-2013-01 at page 3). The Fair Housing Act preempts local ordinances as well. (Warren v. Delvista Towers Condo. Ass’n Inc., F. Supp. 3d 1082, 1089 (S.D. Fla. 2014)).
5. Limitations because of insurance is NOT enough to deny “reasonable accommodation” with the following exception: no other insurance company will cover the property without undue financial hardship. An increase in premium was found to NOT be enough for undue financial hardship. Furthermore, the housing provider bears the burden of proof that he or she inquired of available alternative insurance. (FHEO Memorandum June 12, 2006, Insurance Policy Restrictions as a Defense for Refusals to Make a Reasonable Accommodation).
6. Reasonable access for the tenant and ESA to all common areas that any other tenant would have access to without placing anyone in harm or causing an undue financial or administrative or fundamentally alter the nature of the housing provider’s service. (FHEO Notice: FHEO-2013-01 at page 3).
7. Make all other “reasonable accommodation in rules, policies, practices, or services, when such accommodation maybe necessary to afford (a person with a disability) an equal opportunity to use and enjoy a dwelling.” (42 U.S.C. § 3604(f)(3)(B)).
8. If there are discriminatory actions from a housing provider, the statute of limitations to timely bring an administrative case with U.S. Department of Housing and Urban Development (HUD) (and many state agencies), is within one year. (42 U.S.C. 3610(1)(A)(i)). The statute of limitations for bringing fair housing complaints in federal (and most state) courts is NOT later than two years after the occurrence or the termination of an alleged discriminatory housing practice. (42 U.S.C. 3613(a)(1)(B)).
9. There are limited Federal housing provider exemptions from the Fair Housing Act “reasonable accommodation”:
a. Single-family homes rented without the use of a real estate agent or advertising are exempt from the federal Fair Housing Act as long as the private landlord/owner doesn’t own more than three homes at the time.
b. Apartments of four units or less are also exempt if the owner lives in one of the units and does not use real estate brokers, agents, or property management companies. However, even if this multifamily exemption applies, the rental advertising must still comply with the Act.
c. Other exemptions include the rental of a single room in a home, qualified senior housing, and housing operated by religious or private organizations, if certain requirements are met. (42 U.S.C. 3603, 3604, 3607).
d. There may be state laws that may eliminate or limit these exemptions.
Here are best practices that we recommend for online Emotional Support Animal facilitators:
THE PURPOSE OF THESE CRITERIA IS TO PREVENT ONLINE DIAGNOSTIC ABUSE
1. Any diagnosis obtained through a consult arranged through the website shall come from a currently licensed mental health professional.
2. Any letter from any mental health professional (hereinafter “MHP”) shall come from an MHP licensed by the state in which the patient is physically located. It Is a violation of state law for an MHP to diagnose and/or treat a client if the MHP is not licensed in the state in which the client is physically located, subjects the MHP to adverse disciplinary and/or criminal action, and makes any letter issued by the MHP to the client illegal.
3. The consult between the MHP and the patient shall be personal, meaningful, and sufficient to meet all applicable state standards for establishing a client/patient relationship, which include complying with all state teletherapy laws and/or requirements.
4. No diagnosis shall be based solely upon the MHP’s reading and/or interpretation of an online form submitted by the purported client. Such online forms are NOT personal, meaningful or sufficient to meet applicable state standards for establishing a client/patient relationship.
5. No diagnosis shall be made without significant personal audio and/or video communication (as required by state teletherapy laws and/or requirements) between the MHP and the client.
6. MHP shall establish that the patient is under the MHP’s professional care and requires an ongoing relationship. An ongoing relationship requires a minimum of two scheduled appointments.
7. The MHP shall be available to complete additional forms for the client should a landlord, condo association, or other similar person or entity require them.
8. The website shall not discriminate against clients who are seeking a reasonable accommodation from a college or university.
9. The website shall NOT mislead the client with regard to his/her rights and responsibilities under Federal or state law. The website shall not falsely state that any registration is required to establish or assert any right under the law. The website shall not misrepresent to clients that an ESA’s rights exceed rights established under the Fair Housing Act and the Air Carrier Access Act.
10. The website shall provide a phone number that clients may use to speak to a representative of the company during normal business hours.