by Bradley J. Muldrow, JD, Staff Attorney
The Therapist
January/February 2022

Emotional support animals and service animals can offer critical therapeutic support and assistance to people with mental or psychiatric disabilities. Accordingly, it is quite common for patients to ask their therapists to provide documentation supporting their need for such animals. However, individuals’ rights to live and travel with emotional support animals and service animals are offered different levels of legal protection in certain contexts. It is important for practitioners to understand the differences between these types of animals and what kinds of letters, forms, and other types of documentation they can complete in support of patients’ need for these animals.

This article will provide a summary of the laws governing individuals’ rights to live and travel with emotional support animals and service animals. The article will also cover: 1) Key legal, ethical, and clinical issues therapists should consider prior to providing documentation supporting patients’ need for emotional support animals and service animals; and 2) Additional legal requirements for providing documentation supporting patients’ need for emotional support dogs.

Understanding the Differences Between Service Animals and Emotional Support Animals
Multiple bodies of law have established important distinctions between service animals and emotional support animals. In its regulations implementing the Air Carrier Access Act of 1986, the Department of Transportation defines the term service animal as “a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”¹

In contrast, emotional support animals do not have special training to perform disability-related jobs and tasks (although being in the presence of an emotional support animal may alleviate symptoms of depression, anxiety, or other mental health challenges).² In its online resource entitled Frequently Asked Questions about Service Animals and the ADA (i.e. the “Americans with Disabilities Act”), the federal Department of Justice uses the following example to distinguish between service animals and emotional support animals:

Q4. If someone's dog calms them when having an anxiety attack, does this qualify it as a service animal?
A. It depends. The ADA makes a distinction between psychiatric service animals and emotional support animals. If the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal. However, if the dog's mere presence provides comfort, that would not be considered a service animal under the ADA.

Accordingly, practitioners may draw the following general conclusions regarding key distinctions between service animals and emotional support animals:

1) Service Animals: To qualify as a service animal, the animal must be specially trained to do work or perform tasks for individuals with disabilities. In many contexts, such as air travel, only dogs qualify as service animals.³
2) Emotional Support Animals: Emotional support animals do not have specialized training to perform work or tasks for people with disabilities (although the presence of these animals may bring comfort to individuals). Moreover, any animal can potentially qualify as an emotional support animal.

Differing Levels of Legal Protection
The rights of people with disabilities to live and travel with service animals are generally afforded stronger legal protection than their rights to live and travel with emotional support animals. For example, with respect to air travel, the Department of Transportation recognizes the rights of passengers with disabilities to travel with service animals in appropriate circumstances.⁴ However, per the Department’s regulations, emotional support animals and other animals not meeting the criteria for service animals are classified as pets and airlines can choose whether or not to transport them.⁵

Similarly, the ADA requires that all places of public accommodation modify their policies to accommodate certain individuals with disabilities’ use of service animals. These regulations do not provide such protections for individuals’ use of emotional support animals.⁶

ADA regulations generally require owners and operators of places of public accommodation to “make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.”⁷ However, in some instances, it may not be necessary to accommodate an individual’s disability by allowing them to utilize an emotional support animal.

For example, suppose a student has a psychiatric disability that causes severe anxiety when taking exams. The student’s school may not be required to modify its no-pets policy by allowing the student to bring an emotional support animal to the exam site if the school is able to offer a comparable accommodation, such as extra time to complete the exam or a private room to take the exam (depending on the student’s needs). In other words, if the school can provide an equally suitable accommodation, allowing the student to bring an emotional support animal to the exam site would not be necessary.

Other Laws Regarding Emotional Support Animals
Federal statutes, including the Fair Housing Act (“FHA”)⁸ and Section 504 of the Rehabilitation Act of 1973 (the “Rehabilitation Act”)⁹, protect the rights of people with disabilities to live with their emotional support animals, where appropriate, even if their landlords or homeowners’ associations (“HOAs”) have no-pets policies. The Department of Housing and Urban Development has stated that an exception to a no-pets policy allowing a person with a disability to use and live with an assistance animal, such as an emotional support animal ¹⁰, would qualify as a reasonable accommodation.¹¹

Additionally, California law affords similar protection to people with disabilities. According to the California Fair Employment and Housing Act (“FEHA”), it is an unlawful practice to refuse “to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.”¹²

Disability Defined
In order to qualify for a reasonable accommodation under the previously discussed laws, an individual must meet the relevant statutory definition of “disability.” These laws generally recognize three broad categories of disabilities, which include:

1) Physical and mental impairments that substantially limit one or more major life activities, such as walking, working, learning, dressing, etc.;
2) A record of having such an impairment, such as medical treatment records; and
3) Being regarded as having such an impairment.¹³

• For example, in certain contexts a landlord may not deny an individual’s rental application based on the landlord’s belief that the individual has an intellectual or developmental disability (even if the individual does not actually have such a disability).

California law defines a mental disability to include “any mental or psychological disorder or condition…that limits a major life activity.”¹⁴ Under this definition, the term “major life activities” is to be broadly construed.¹⁵ Such activities include, but are not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.”¹⁶

Exceptions
A landlord or HOA may refuse to allow an individual to live with an emotional support animal if offering such an accommodation would:

• Pose a direct threat to others;
• Cause substantial physical harm to the property of others;
• Impose an undue financial or administrative burden on the landlord or HOA; or
• Fundamentally alter the nature of the services being provided by the landlord or HOA.¹⁷

Documentation Requirements
Housing
If an individual is seeking an emotional support animal-related reasonable accommodation for housing purposes, a landlord or HOA may require the individual to provide documentation of the individual’s disability and the disability-related need for the animal.

The letter may be written by the individual’s primary care physician, marriage and family therapist, social worker, psychiatrist, or other mental health professional and should state that the animal provides support that alleviates one or more of the identified symptoms or effects of an existing disability.¹⁸

Note: Pre-licensed clinicians should not provide their patients with documentation related to the patients’ need for emotional support animals or service animals unless the documentation has been reviewed and approved by their supervisors.

Air Travel
Recall that, per Department of Transportation regulations, airlines must respect passengers with disabilities’ rights to travel with service animals in appropriate circumstances^.19 However, airlines have discretion to prohibit their passengers from travelling with emotional support animals.²⁰

An airline may require a passenger seeking to travel with a service animal to provide a completed U.S. Department of Transportation Service Animal Air Transportation Form. Such forms must be: 1) filled out by service animal handlers (see definition below); and 2) current (i.e. completed on or after the date the passenger purchased their airline ticket).²¹

Service animal handlers are: 1) passengers with disabilities who receive assistance from service animal(s); or 2) third parties who accompany individuals with disabilities travelling with service animals (e.g. parents of minors, caretakers, etc.). Per Department of Transportation regulations, service animal handlers are responsible for keeping the animals under control at all times, caring for, and supervising the animals (which includes toileting and feeding the animals).²²

If a passenger seeks to travel with a service animal on a flight lasting more than eight hours, the airline may require the passenger to provide a completed U.S. Department of Transportation Service Animal Relief Attestation Form. The form requires the service animal handler to attest that: 1) the service animal will not need to relieve itself during the flight; or 2) the service animal is able to relieve itself in a manner that does not create a health or sanitation issue during the flight.

Airlines are generally not permitted to require passengers to provide service animal documentation beyond the documentation discussed in this section.²³ Accordingly, airlines are not permitted to require passengers to provide documentation from health care providers supporting passengers’ need for service animals. However, airlines that choose to allow passengers to travel with emotional support animals may require supporting documentation from the passengers’ health care providers.

General Considerations for Providing Documentation Supporting Patients’ Need for Emotional Support Animals²⁴
Mental health providers, including, but not limited to, licensed marriage and family therapists, licensed clinical social workers, licensed psychologists, and licensed professional clinical counselors, may write letters or fill out paperwork on behalf of patients with disabilities seeking reasonable accommodations involving emotional support animals. Therapists should consider the following issues when presented with requests from patients seeking documentation in support of their need for such accommodations:

• In many instances, the documentation must state that the animal provides a disability-related benefit to an individual with a disability. Is it your professional opinion that your patient has a mental or psychiatric disability and that the animal can provide a benefit or assistance related to that disability? Do you have the necessary training, education, and/or experience to make such determinations?
• Did you prescribe the animal to help support or assist the patient’s disability or incorporate the animal in the patient’s treatment to assist in alleviating the symptoms of their disability?
• Does your treatment plan for the patient include an animal to support the patient’s disability?
• Have you witnessed interactions between the patient and the animal or has the patient discussed at length what the animal has done to support or assist the patient’s disability?
• Occasionally, you may be presented with an emotional support animal documentation request from a patient and have no knowledge of, or familiarity with the patient’s relationship with their animal and/or the patient’s clinical need for the animal. In these situations, you may not be in the best position to provide an opinion on the matter and you may decide to deny the request. If there are other health care providers involved in the patient’s care, those providers may be in a better position to offer professional opinions and/or documentation regarding the patient’s need for an emotional support animal. However, if you would like to assist the patient in this process, you may decide to clinically work with the patient to adequately develop and express a professional opinion concerning this issue. The CAMFT Code of Ethics provides that MFTs should take care not to assess, test, diagnose, treat, or advise individuals regarding issues that are beyond the MFTs’ levels of competence as determined by their education, training, and experience. Hence, if you incorporate an emotional support animal in your patient’s treatment plan and/or choose to express a professional opinion about the patient’s need for an emotional support animal, you should ensure that you are practicing within your scope of competence. Familiarizing yourself with literature and studies concerning the therapeutic benefits of emotional support animals for people with disabilities is recommended.
  • Note: CAMFT members have free access to EBSCO Host, an online research database of academic articles focused on mental health, psychotherapy, and other important subjects.
• In many circumstances, the documentation must also identify that the patient has a mental-health disability listed in the DSM-5. While the letter may not have to provide details about the patient’s diagnosis and treatment, information about the patient’s disability generally needs to be disclosed to ensure that the patient meets the relevant definition of disability under the law. Make sure you obtain appropriate written authorization from your patient before providing the letter. It is recommended that you discuss with your patient the implications of sharing this information with third parties.
  • Note: There is not a singular standard governing what information must be included in every form of emotional support animal documentation in every circumstance. Accordingly, one entity may require less detailed emotional support animal documentation than others. Prior to preparing such documentation for their patients, it is recommended that practitioners discuss with their patients what information is being requested.
• Although unlikely, if the patient’s school, landlord, or another third party denies the patient’s request for an accommodation involving an emotional support animal, the patient may challenge the denial by initiating a lawsuit or other legal proceeding. Should this occur, one or both parties involved in the litigation may seek to obtain copies of the patient’s psychotherapy records. Moreover, you may be called to offer testimony in the matter. Accordingly, whenever you provide emotional support animal documentation you must be prepared to answer questions about your reasoning and professional opinion regarding the patient’s need for the animal.

Keep in mind that if you determine you are not competent to, or comfortable with providing such documentation, you are not legally or ethically required to do so. It is recommended that you consider the positive and negative ramifications that providing the documentation or declining to provide the documentation may have on the therapeutic relationship and the patient’s circumstances.

Providing Documentation Supporting Patients’ Need for Service Animals
In some instances, patients with mental health-related disabilities may ask their therapists to provide documentation supporting the patients’ need for service animals (e.g. psychiatric service animals, etc.). The considerations for therapists seeking to provide emotional support animal documentation discussed in the previous section are generally applicable to therapists seeking to provide service animal documentation. However, prior to offering service animal documentation, therapists should work with their patients to identify which providers are permitted to provide the documentation being requested (as some entities may require service animal documentation from psychiatrists, primary care physicians, nurse practitioners, etc.)

Additional Legal Requirements for Providing Documentation in Support of Patients’ Need for Emotional Support Dogs
Effective January 1, 2022, California law prohibits practitioners from providing documentation in support of their patients’ need for emotional support dogs (“ESDs”) without satisfying additional criteria:

Note: This section applies to documentation in support of patients’ need for emotional support dogs. However, it may be best practice to consider these requirements generally when providing documentation supporting patients’ need for any emotional support animals.

1) The practitioner must possess a valid, active license.²⁶
Practitioners who possess licenses that are inactive, retired, delinquent, or cancelled are not able to provide ESD documentation.

Note: The BBS interprets this provision to allow registered associates with valid, active registrations to provide ESD documentation so long as their supervisors review and approve the documentation.

2) The practitioner must be licensed to provide therapy services in the jurisdiction in which the documentation is provided (i.e. where the patient is located).²⁷

3) The practitioner must establish a therapeutic relationship with the patient at least 30 days prior to providing the ESD documentation and complete a clinical evaluation regarding the patient’s need for an ESD.²⁸

Note: Effective January 1, 2023, SB 774 provides that the 30-day therapeutic relationship requirement does not apply to patients who are verified to be homeless.²⁹

At times, therapists may receive requests for ESD documentation from former patients or patients who have taken extended breaks from therapy. In such circumstances, therapists may need to ask the patient to come back in for treatment, depending on what is clinically necessary, to assess the patient’s current need for an ESD.

Moreover, therapists should be mindful that the law requires them to perform clinical evaluations regarding their patients need for ESDs prior to providing ESD documentation.

4) The practitioner must notify the patient seeking ESD documentation, verbally or in writing, that “knowingly and fraudulently representing oneself to be the owner or trainer of any canine licensed as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor violation of Section 365.7 of the Penal Code.”³⁰

5) The practitioner must include their license number, effective date of licensure, jurisdiction of licensure (e.g. California), and license type in the ESD documentation^.31

Note: Practitioners should be aware that failing to fulfill any of these requirements may result in BBS discipline. To assist providers in complying with these new regulations, CAMFT has created an Emotional Support Dog Documentation Checklist. This resource is available to CAMFT members in the Sample Practice Forms section of CAMFT’s website.

Conclusion
Understanding how to navigate the clinical, legal, and ethical issues involved in providing documentation related to patients’ need for emotional support animals and service animals can allow providers to respond to requests for such documentation with confidence and ease.

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¹14 C.F.R. § 382.3.

²See the Department of Justice’s online resource “Frequently Asked Questions about Service Animals and the ADA” at question 3, stating that the terms “emotional support animal,” “therapy animal,” “comfort animal,” and “companion animal” are “used to describe animals that provide comfort just by being with a person.” However, because “they have not been trained to perform a specific job or task, they do not qualify as service animals under the ADA.” (emphasis in original)

³It should be noted that ADA regulations also define miniature horses as service animals in certain contexts. (See 28 C.F.R. § 35.136).

⁴14 C.F.R. § 382.72.

⁵ See the Department of Transportation’s resource entitled “Service Animal Final Rule FAQs” at p. 2, stating “[a]lthough emotional support animals and other pets are not service animals, the rule does not prohibit their transport. An airline may choose to transport them as pets pursuant to its established policy.”

⁶ 28 C.F.R. § 36.302(c)(1).

⁷ See 28 CFR 36.302. This provision further states that places of public accommodation are not required to modify their policies, practices, or procedures to accommodate individuals’ disabilities if the proposed modifications would fundamentally alter the nature of the entities’ goods, services, facilities, privileges, advantages, or accommodations.

⁸42 U.S.C. §§ 3601-3631.

⁹ 29 U.S.C. § 794.

¹⁰ The Department of Housing and Urban Development’s definition of the term “assistance animal” includes emotional support animals. (See Occupancy Requirements of Subsidized Multifamily Housing Programs, HUD, No. 4350.3, 2-44(A) (2013)).

¹¹ See Occupancy Requirements of Subsidized Multifamily Housing Programs, HUD, No. 4350.3, 2-44(C) (2013).

¹² Cal. Gov. Code § 12927(c)(1); § 12955.

¹³ 24 C.F. R. § 8.3.

¹⁴ Cal. Gov. Code § 12926(j)(1).

¹⁵ Cal. Gov. Code § 12926(j)(1)(C).

¹⁶ Cal. Code Regs., tit. 2, § 11065(l)(1) and (2).

¹⁷ Occupancy Requirements of Subsidized Multifamily Housing Programs, HUD, No. 4350.3, 2-44(C) (2013).

¹⁸ Occupancy Requirements of Subsidized Multifamily Housing Programs, HUD, No. 4350.3, 3-29(B) (2013).

¹⁹14 C.F.R. § 382.72.

²⁰ See the Department of Transportation’s resource entitled “Service Animal Final Rule FAQs” at p. 2.

²¹Id.

²²14 C.F.R. § 382.3.

²³ 14 C.F.R. § 382.75(c)

²⁴Some of the concepts and suggestions discussed in this section were adapted from a previous CAMFT article entitled Reasonable Accommodations and Emotional Support Animals by Ann Tran-Lien (published in the January/February 2013 edition of The Therapist).

²⁵CAMFT Code of Ethics Rule 5.11.

²⁶Health and Safety Code Section 122318(a)(1).

²⁷ Health and Safety Code Section 122318(a)(2).

²⁸ Health and Safety Code Section 122318(a)(3)-(4).

²⁹ SB 774 provides that a patient’s homeless status can be verified in three ways: 1) “Identification through the local Homeless Management Information System, as defined in Section 578.3 of Title 24 of the Code of Federal Regulations”; 2) “Via a continuum of care, as defined in Section 578.3 of Title 24 of the Code of Federal Regulations, or a homeless services provider that is contracting with a continuum of care”; and 3) “Visual confirmation by a homeless services provider of individuals dwelling in a homeless shelter, homeless encampment, outdoor makeshift shelter, or vehicle.”

³⁰Health and Safety Code Section 122318(a)(1).

³¹Health and Safety Code Section 122318(c).

 

 

An airline may require a passenger seeking to travel with a service animal to provide a completed U.S. Department of Transportation Service Animal Air Transportation Form. Such forms must be: 1) filled out by service animal handlers (see definition below); and 2) current (i.e. completed on or after the date the passenger purchased their airline ticket).^[1]

Service animal handlers are: 1) passengers with disabilities who receive assistance from service animal(s); or 2) third parties who accompany individuals with disabilities travelling with service animals (e.g. parents of minors, caretakers, etc.). Per Department of Transportation regulations, service animal handlers are responsible for keeping the animals under control at all times, caring for, and supervising the animals (which includes toileting and feeding the animals).^[2]

If a passenger seeks to travel with a service animal on a flight lasting more than eight hours, the airline may require the passenger to provide a completed U.S. Department of Transportation Service Animal Relief Attestation Form. The form requires the service animal handler to attest that: 1) the service animal will not need to relieve itself during the flight; or 2) the service animal is able to relieve itself in a manner that does not create a health or sanitation issue during the flight.