By Amanda I. Forbes, J.D.; and George F. Indest III, J.D., M.P.A., LL.M., Board Certified in Health Law
This is part 2 of 3 in a blog series regarding Emotional Support Animals (ESA) support letters being prepared by counselors and therapists. There are serious pitfalls that exist for the unwary mental health professional and, in part 1, we provided a number of tips on how to avoid these. Click here to read part 1. Don’t forget to read part 3 as well!
The ACA has identified specific potential risks to animals, clients, the public, and counselors which everyone involved in this area of practice should be familiar with.
Potential Risks to Animals:
1. Neglect or other abuse; poor mental health on the part of the client may prevent adequate animal care or may promote neglect or abuse.
2. Undue stress may occur to the animal from constant work during accompaniment, including being placed in stressful environments.
3. The animal may suffer undue stress from being handled by a person who does not have specialized training.
4. The animal may suffer an illness, undue stress, or injury from public interactions.
Possible Risks to Clients:
1. Inadequate treatment of a mental health disorder.
2. Injury or property damage from an inadequately trained or socialized animal.
3. Zoonotic infection or disease.
4. Animal allergies in the client, the client’s family, and the client’s associates.
5. Potential fraud or legal concerns if an ESA is misrepresented as a service animal.
6. Financial and emotional burdens due to potential behavior problems associated with inadequately trained and socialized companion animals.
7. Misconception that a relationship with an ESA replaces or substitutes for professional mental health care or human relationships (especially the latter).
Potential Risk to the Public:
1. Injury or emotional damage from inadequately trained animals.
2. Untrained or improperly socialized animals may be more likely to be stressed out or aggressive in public.
3. Unsocialized animals may be disruptive and interfere with normal activities such as group functions, public travel, public dining.
4. Maladaptive interactions with other animals (especially toward service animals)
5. Zoonotic infection or disease from animals.
6. Animal allergies and phobias (yes, some regular people have phobias against dogs, cats, snakes, weasels, alligators, and monkeys).
7. They may contribute to public skepticism, which hurts those with valid helper animals (e.g., someone who has a full-size alligator that she claims is her emotional support animal and takes it everywhere she goes).
8. The more unsuitable the animal, the greater the risk (i.e., exotic pet, undomesticated or wild animal).
9. When more fraudulent animals have greater public access, the more public risk is incurred.
Risks to the Counselor Who Certifies or Approves an Emotional Support Animal:
1. Liability for adverse client outcomes due to inadequate or substandard treatment.
2. Potential provider role conflicts: Forensic v. Counseling.
3. Potential liability for injury/illness caused by the animal to the client or others.
4. Potential charges of fraud if an inadequate evaluation is done to demonstrate the need for the animal, or if performed in the absence of actual supporting facts, or if performed for a fake client who is just making up everything.
5. Disciplinary action taken against your professional license by your licensing board for any of the above.
6. Ethical considerations for inadequate education about ESAs and their role in comprehensive treatment. Potential to be called to testify if the ESA is challenged or if an incident occurs.
For more information, read the American Counseling Association’s “Human Animal Interventions in Counseling Interest Network Position Statement.”
An additional potential risk that the ACA did not address was the possibility of disciplinary action against your license by your professional board. The reasons for such an action could possibly be from a failure to establish a proper client relationship prior to writing an ESA recommendation letter. It is important to keep these potential risks in mind when determining whether to write an ESA recommendation letter.
Don’t forget to read part 1 and part 3 of this blog series for more information.
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In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.
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About the Authors: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. George F. Indest III, J.D., M.P.A., LL.M., is Board Certified in Health Law by The Florida Bar and is licensed in Louisiana, Florida, and the District of Columbia. He is President and Managing Partner of The Health Law Firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll Free: (888) 331-6620.
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