New Florida Law On ESA’s

August 26, 2020

Florida recently enacted a law intended to combat a problem familiar to many New York co-op boards: fraudulent requests for emotional support animals. The Florida law provides that animal registries, certifications and similar online documents are insufficient to support these requests. Significantly, the law also provides a basis for professional discipline for healthcare practitioners who issue supporting documentation without personal knowledge of the animal owner’s health. Further, the law imposes criminal penalties for those who make or support fraudulent requests for these animals in housing.

What is an emotional support animal? The Florida law defines it as “an animal that does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support by virtue of its presence, which alleviates one or more identified symptoms or effects of a person’s disability.” Contrast that with a service animal that must be trained to perform work or tasks for a person with a disability, such as a guide dog for people who are blind.

The federal Fair Housing Act has always required housing providers to accommodate emotional support animals. The Florida law adopts that requirement and provides guidance about the documentation that a housing provider can ask for when considering a request to accommodate an emotional support animal. For example, a housing provider can request medical verification only when the resident’s disability is not readily apparent, and the provider cannot require disclosure of the resident’s diagnosis or severity of a disability.

Additionally, consistent with federal rules, the Florida law provides that a housing provider is under no obligation to accommodate an animal that poses a direct threat to the health or safety of others. The Florida law goes further than federal law, however, to address what type of supporting evidence is and is not legally sufficient for emotional support animal requests. Also, unlike federal law, the state law imposes penalties on those who make or support fraudulent requests. Here are the key aspects:

Online Registries and Certifications Insufficient. An emotional support animal registration of any kind, including an identification card, patch, certificate, or similar registration document obtained from the internet is not, by itself, sufficient proof of a resident’s disability or need for the animal. For healthcare and other practitioners to provide reliable information about a resident’s disabilities and need for an emotional support animal, the provider must have personal knowledge of the resident’s disability and be acting within the scope of his or her practice to provide the supporting information.

Out-of-State Support Limited. The Florida law places limitations on out-of-state healthcare and other practitioners – excluding licensed telehealth providers – who certify these requests. To document that a resident has a disability, an out-of-state practitioner must have provided in-person care or services to the resident on at least one occasion.

Potential for Professional Discipline. Offering information about either a person’s disability or disability-related need for an emotional support animal without personal knowledge is grounds for disciplinary action.

Criminal Penalties.The new Florida law has teeth (pun intended). It is now a misdemeanor in the second degree if a person falsifies information or documents, or knowingly provides fraudulent information or documents to support an emotional support animal request – or if that person otherwise knowingly and willfully misrepresents the resident’s disability status or needs. A convicted offender must perform 30 hours of community service for an organization that serves people with disabilities, or another organization designated by the court.

The Florida law is a welcome development for housing providers, including co-op boards, who seek to abide by their no-pet rules and make exceptions only for legitimate requests by residents with disabilities. In jurisdictions like New York, where co-op boards are faced with abusive practices, regulators may take note of this development and consider enacting similar measures to combat emotional support animal fraud.

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