The Perils of State ESA Fraud Laws: Understanding Preemption

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Despite the fact that fraud is rare, many states have enacted laws that penalize “fraudulent” requests for service and assistance animals (which include emotional support animals). While the intent behind them is understandable, such laws are misguided and only serve to discriminate against individuals living with a disability, increase the risk of a fair housing violation, and jeopardize federal funding.

The federal disability rights laws, namely the Fair Housing Act (FHA), Americans With Disabilities Act (ADA), Rehabilitation Act (RHA), and Air Carrier Access Act (ACAA), preempt state and local laws that conflict with their purpose. That is, if compliance with a state or municipal law violates one of these laws, the federal law controls. Think of the federal law serving as the floor, or the minimum standards to which everyone is entitled. This is important because an individual’s federal civil rights shouldn’t be dictated by geography. For example, municipalities that have laws banning certain dog breeds must make an exception for a service or assistance animal.

Two recent examples illustrate this problem.

Michigan

In December 2020, Gov. Gretchen Whitmer vetoed Michigan House Bills 4910 and 4911, which would penalize individuals who lie about having a disability or need for an emotional support animal. There are many problems with this legislation, among them:

  • The individual would have to be in treatment with the healthcare provider for at least six (6) months,
  • Telemedicine would not be permitted,
  • The emotional support animal would need to be “prescribed,”
  • The housing provider could require a diagnosis as well as other medical information.

Gov. Whitmer correctly determined that such provisions require more medical information than permitted under the FHA and raise the standard for defining disability. If such legislation was enacted, housing providers who adhered to the MI state law only would violate federal fair housing laws and incur severe monetary penalties. Moreover, Michigan would be at risk of losing funding from the U.S. Department of Housing and Urban Development.

North Dakota

The North Dakota State House recently introduced legislation that would prohibit the use of miniature horses as a service animal. Their stated rationale is to align the definition with “new Americans with Disabilities Act standards,” particularly because it “is incredibly rare, and none exist in North Dakota.”

This raises several problems:

  1. There have been no changes to the definition of “service animal” under the ADA and individuals living with a disability are still permitted to use a miniature horse as one (subject to a few caveats).
  2. My hunch is that the legislature is confusing the ADA with the new regulations enacted under the ACAA, which no longer allow miniature horses on flights as service animals. As a separate law, the updated regulations set forth by the U.S. Department of Transportation have no impact on disability rights granted under the ADA, FHA, or RHA.
  3. As there is no legally recognized registration list or certification process for accommodated animals, it’s impossible to know how many individuals use miniature horses as a service animal.
  4. Regardless of whether someone in North Dakota utilizes one, the ADA is a federal standard and those living in other states are entitled to use their service miniature horse across the country. Prohibiting miniature horses in one jurisdiction discriminates against those visiting that state.

Hopefully the legislature will take the correct course and omit this provision. Otherwise, North Dakota could be putting federal funding at risk.

It’s important to note that federal disability rights laws don’t serve as a ceiling, so states and municipalities can enact disability rights laws that provide additional protections.

And remember, the federal laws provide tools for combatting the misuse of service and assistance animals, so burdensome state laws aren’t necessary. The solution already exists: Follow HUD’s guidelines for evaluating requests and assert your rights as a housing provider.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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