Should You Write an “Assistance Animal Letter” for Your Patient?

MICA’s Risk Team recently provided risk management recommendations to a physician experiencing an increase in patient requests for “assistance animal” letters, also known as an emotional support animal letter. The federal Fair Housing Act (FHA) provides anti-discrimination protections for people with disabilities who use “assistance animals,” defined by statute as animals that “do work, perform tasks, provide assistance, or provide emotional support for a person with a physical or mental impairment that substantially limits at least one major life activity or bodily function.”¹

Some rental housing policies prohibit pets entirely or require tenants to pay pet fees or deposits. Under the FHA, patients with disabilities who use an assistance animal may request relief from these policies. When the disability is not observable, they may be required to submit documentation confirming the disability and establishing a relationship between the disability and the need for an assistance animal.

Increasingly, patients are asking their primary care physician or psychiatrist to provide such documentation by writing a letter. While physicians are not required to grant these requests, for those who are willing there are ethical, clinical, and legal issues to consider. This article highlights some of those considerations and provides recommendations to mitigate risk when writing letters to support patient requests for assistance animal accommodations in housing.

Why Patients are Asking for These Letters

To comply with the FHA’s anti-discrimination protections, housing providers (landlords) are required to make “reasonable accommodations” upon request to allow a person with a disability an equal opportunity to “enjoy and use a dwelling.” This includes waiving pet fees or deposits or making exceptions to a “no pets” policy for individuals with disabilities who live with an assistance animal.²

The FHA defines disability as a mental or physical impairment that substantially limits one or more major life activities.³ If a person’s disability is obvious, the landlord cannot require the individual to submit documentation to establish a disability and need for assistance animal. For example, a blind person who uses a guide dog or a person who uses a service dog to pull a wheelchair should not have to submit additional documentation when making a reasonable accommodation request.⁴

However, for disabilities that are not observable, such as mental or emotional disabilities, a landlord may ask the person to submit reliable documentation to determine the validity of the request.⁵ In these situations, patients are increasingly looking to their doctor or advanced practice professional (APP) for a letter confirming a disability diagnosis and describing a disability-related need for an assistance animal. This is not surprising, since 2020 Guidance from the U.S. Department of Housing and Urban Development (HUD) specifically says that documentation from a provider is one way to confirm disability. HUD’s suggested documentation types include:

• • A disability determination from a government agency;
    
    
  • Proof of receipt of disability benefits or services from a government agency;
    
    
  • Proof of disability-related eligibility for housing assistance; or
    
    
  • Information confirming disability from a health care professional.⁶

Emotional Support Animal Concerns

The FHA’s broad definition of assistance animals includes both service animals and emotional support animals (ESAs),⁷ but there are legal distinctions between the two. The Americans with Disabilities Act (ADA) provides anti-discrimination protections for people who use “service animals.” Under the ADA, service animals are dogs that are individually trained to do work or perform tasks for an individual with a physical, sensory, psychiatric, intellectual, or other mental disability.⁸ With few exceptions, the ADA gives people with disabilities the right to bring service animals to public accommodations including grocery stores and hospitals.⁹ For more information on the ADA and service animals, read MICA’s Essential Basics of the ADA’s Service Animal Requirements.

However, the ADA does not protect the use of dogs or other animals that simply provide comfort but have not received specific training to perform a task.¹⁰ Further, neither the ADA nor other federal laws create a legal right to bring an ESA to public places where animals are prohibited (e.g., grocery stores, hospitals, etc.).¹¹

In a recent study of ESA owners, Utah State University psychologists observed that ESA use is increasing, leading to increased demand for documentation “certifying” an individual’s medical need for an ESA. The researchers noted that “an online ‘market’ for ESA documentation has developed where, for a small fee, anyone can get a signed letter by a ‘mental health professional’ supporting an ESA.”¹² As a result, California and Florida both passed laws prohibiting health care professionals from writing these letters without first examining the patient.¹³

In the Utah study:

• • 44% of ESA owners sought a letter from a licensed mental health professional, and 29% turned to a PCP;
    
    
  • 22% obtained an ESA letter from a health care professional over the internet; and
    
    
  • Nearly half reported that they did not have an existing treatment relationship with the provider who wrote the letter.¹⁴

After interviewing ESA owners, the researchers identified fundamental confusion related to the dogs’ purpose and applicable laws. Based on the owners’ responses, the researchers concluded that many owners and health care professionals do not understand the important legal distinction between ADA-protected service animals and ESAs. For example:

• • Some respondents said they purchased a “registered” ESA (but there is no recognized registration for ESA nor is their any legal purpose for one).
    
    
  • Some respondents claimed they obtained an ESA letter from a health care professional so they could take the dog to public places that prohibit animals (but the letter is worthless in this situation – its sole purpose is for renters seeking reasonable accommodations from a landlord under the FHA).
    
    
  • Nearly 60% mistakenly believed their untrained ESA is a service animal and said they regularly took it to public places. The researchers found this troublesome “given that one in six ESA dogs was reported to have a history of aggression and approximately one in four dogs were reported as not being house-trained.”¹⁵

Clinical, Ethical, and Legal Considerations

In 2022 the American Psychiatric Association published a Resource Document on Emotional Support Animals highlighting clinical, ethical, and legal considerations for psychiatrists performing ESA evaluations and writing ESA letters. The Resource Document is valuable for all physicians who receive requests for such letters, not just psychiatrists.

Following is a summary of important points raised by the psychiatrists who wrote the Resource Document:¹⁶

• • Physicians should avoid the appearance of fraud and decline to write letters solely to enable patients to avoid pet prohibitions, fees, or deposits when there is no data to support a clinical disability diagnosis or evidence that an ESA alleviates symptoms.
    
    
  • Given the paucity of current scientific research supporting the utility of ESA use to improve psychiatric conditions, it is ethically permissible for physicians to decline to write such letters.
    
    
  • Physicians should evaluate whether there is a conflict of interest which could harm the physician-patient relationship or expose the physician to professional discipline. Clinicians traditionally act as patient advocates, but when assuming the role of disability evaluator they must objectively measure and assess clinical data and consider factors such as malingering. The end result may not align with the patient’s wishes.
    
    
  • The authors reviewed court and licensing board decisions nationwide and were unable to find any in which physicians were held liable or disciplined for writing an ESA letter provided they completed an adequate professional evaluation, adhered to professional practice standards, and were licensed where the patient was located.
    
    
  • Similarly, the authors did not find any cases where a physician was held liable for an animal bite or attack.
    
    
  • The authors noted that this area of law is evolving. Physicians should remain alert to the possibility of being sued, even if the case ultimately lacks merit.

MICA’s Risk Management Recommendations

Physicians and APPs who receive a request for an assistance animal/ESA letter should carefully consider the issues discussed above. For those that decide to write a letter, MICA’s Risk Team recommends:

• • Familiarize yourself with state laws where you practice. Some states, like California, New York, and Florida, have laws governing who can write these types of letters.
    
    
  • To avoid allegations of practicing without a license, ensure the patient is located in a state where you are licensed. The authors of the APA Resource Document discussed above described a case where a California licensing board disciplined a therapist, finding she was not licensed where patients were located and that she failed to perform a “proper assessment” before writing an ESA letter. Her website advertised that she specialized in ESA certification, but investigators allegedly learned that she was providing telehealth evaluations lasting from 10 minutes to an hour to patients across the country located in states where she was not licensed.¹⁷
    
    
  • Write letters only for established patients you have examined in person. If you haven’t seen the patient recently, consider requiring the patient to schedule an appointment so you have current clinical information.
    
    
  • Stay up to date on any guidelines published on this topic by your specialty professional organizations, such as the APA.
    
    
  • Decline to sign templates, forms, or letters that are already written and simply presented to you for signature.
    
    
  • Keep your letter simple and fact-based, like a note you might write to an employer excusing a patient from certain duties. It should confirm that the patient has a medically recognized disability which impairs a major life activity and describe how an ESA alleviates symptoms.
    
    
  • All statements should be based on personal knowledge and clinical findings.
    
    
  • Do not share details about the nature or severity of the disability. HUD recommends simply confirming that the patient has a physical or mental impairment that substantially limits at least one major life activity or bodily function.¹⁸
    
    
  • To minimize liability risk stemming from harm caused by the animal, avoid vouching for or recommending the animal itself. Consider including a statement to make clear that you are not offering any opinions about the animal itself. The APA Resource Document offers this suggestion if clinically indicated: “I recommend this patient have an ESA to reduce distress and impairment associated with his/her mental health disability.”¹⁹
    
    
  • Psychiatrists and other clinicians are encouraged to read the American Psychiatric Association’s Resource Document on Emotional Support Animals approved by the Joint Reference Committee in 2022.

<sup>[1] 24 CFR §§5.303; 960.705; see also U.S. Department of Housing and Urban Development (2020). Assessing a person’s request to have an animal as a reasonable accommodation under the fair housing act.

[2] 24 CFR §100.204; U.S. Department of Housing and Urban Development (2020). Assessing a person’s request to have an animal as a reasonable accommodation under the fair housing act at pp. 3 & 5.

[3] 24 CFR §100.201

[4] U.S. Department of Housing and Urban Development (2020). Assessing a person’s request to have an animal as a reasonable accommodation under the fair housing act at pp. 9 & 19.

[5] Id. at pp. 9, 16-18 & 19.

[6] Id. at pp. 10 & 16-18.

[7] 24 CFR §§5.303; 960.705

[8] 28 CFR 36.104.

[9] 28 CFR 36.302(c)(1).

[10] 28 CFR 36.104; U.S. Department of Justice (2020). Frequently asked questions about service animals and the ADA.

[11] There may be state and local laws that permit emotional support or companion animals in public places.

[12] Ferrell, J., & Crowley, S. (2023). Emotional support animal partnerships: Behavior, welfare, and Clinical Involvement. Anthrozoos, 36(3), 471-87. https://doi.org/10.1080/08927936.2023.2166711 (citations omitted)

[13] American Psychiatric Association (2022). Resource document on emotional support animals. 

[14] Id. at Table 2.

[15] Ferrell & Crowley at p. 481

[16] American Psychiatric Association (2022). Resource document on emotional support animals at pp. 6-12.

[17] American Psychiatric Association (2022). Resource document on emotional support animals at p. 9.

[18] HUD says housing providers cannot require health care professionals to use a specific form, make statements under penalty of perjury, or state the patient’s diagnosis or other detailed information about physical or mental impairments. U.S. Department of Housing and Urban Development (2020). Assessing a person’s request to have an animal as a reasonable accommodation under the fair housing act at p. 16.

[19] American Psychiatric Association (2022). Resource document on emotional support animals at p. 12.</sup>