Show 01 __ Service Animals
In this episode, Diego Demaya moderates a presentation by Aaron McCullough on the topic of "Service Animals". The full-length webcast originally aired on June 28, 2006 and can be found at:
Service Animals and the ADA Webcast
The Southwest ADA Center Podcast, show number 1.
(music)
Beth Case: Hello, I’m Beth Case and welcome to the first full-length podcast of the Southwest ADA Center podcast. Now, this podcast will bring you highlights from the full-length webcasts offered by the Southwest ADA Center. These webcasts are greatly informative and cover a wide variety of disability-related topics. But they do run about an hour and a half to two hours. And not everyone has that much time to listen to a webcast. So in this podcast, I try to bring you highlights, kinda summarize it for you. And then if you want to hear more detail and you want to hear more detail, you can go do that. In the show notes for each podcast, I will provide a direct link to the full webcast that I took those excerpts from. And you can find our website at ada-podcast.com. Or, you can go directly to the Southwest ADA Center website at www.dlrp.org and just follow the links for the webcast archives. It’s kinda fun to go over there and browse anyway. You never know what topics you might find that you’d like to listen to.
So in this inaugural episode of the Southwest ADA Center podcast, we are featuring a webcast on service animals that was originally aired on June 28, 2006. This webcast was moderated by Diego Demaya and featured Aaron McCullough as the presenter, both of them with the Southwest ADA Center.
(music)
Aaron McCullough: Until recently we felt this was a simple legal reality. In practice, the people who use service animals to positively impact their lives are confronted often with a great deal of ignorance and denial of access. There is also great deal of misunderstanding about what service animals are, what they are not. We will try to clear some of that up as well.
Now, I will let you know in advance that this is a fairly murky bit of the law as of late.
Another reason that we think this comes up quite a bit, too, is that the protections granted people with disabilities under a variety of laws, which we will go into detail later. Those protections are often abused. Face it, Americans love their pets. We are a country that adores our animals. Unfortunately that adoration leads many people to abuse the very laws set up to protect people with disabilities.
I think most of us would admit to being familiar with seeing-eye dogs or dog guides. Seeing-eye is a training institute, a very old one. But a generic term for dogs that are carefully trained to assist someone with vision impairment is a dog guide, or a guide dog.
This is a highly bred, selected, and socialized and trained animal to replace the clear vision of someone with vision impairment. I think most people are familiar with that. this is a very highly trained animal.
People are becoming increasingly familiar with hearing assistance or signal dogs. These are dogs who are trained to alert its partner or user with -- who has significant hearing loss when the animal hears a sound. So if somebody walks up behind them or talks to somebody or fire alarm goes off where there is not a visual signal or phone rings or someone knocks on the door. I think people are becoming more familiar with service animals who assist people with mobility or health impairment who have difficulty reaching or maybe use a wheelchair for mobility. Again, these service animals may carry objects, stabilize them when they transfer from a wheelchair to their car or from their car to their chair. May help them pull up too steep of a slope. May help by ringing doorbells or activating elevator buttons or assisting them get up after they have fallen.
An increasingly controversial animal used to assist people with the disabilities is the social signal dog that you have increasingly seen trained to assist people with autism. These dogs alert their partner to distracting repetitive movements that are often common with people with autism. They allow that person to stop that movement. For example, hand flapping. A person with autism may have sensory input problems and maybe the same support signals a deaf or blind person will use.
In addition, there was a Dateline episode not too long ago in the last year and a half on seizure response dogs, dogs that are trained to assist a person who has a seizure disorder. These dogs may serve that person differently depending on the need. They may be trained to stand guard over a person who has a seizure or go and get help or may help to stabilize a person. Some very few of those dogs have somehow gotten the ability to -- some people say predict a seizure, but certainly sense the precursors to a full-blown seizure and can provide some warning to people in advance. What they call the aura of an oncoming seizure. These dogs, this rare subset of seizure response dogs are often called seizure alert dogs. Keep in mind the vast majority of service animals in the service of people with seizures are not seizure alert dogs.
Now, a whole different subset of animals that may be assisting people with disabilities are therapy animals. Under the federal law, therapy animals are not legally defined. However some states have clearly defined what therapy animals are. These animals provide people with therapeutic contact and while they may work a great deal with people of a wide variety of disabilities, they aren't limited to working with people with disability. They may work with injured folks or the elderly. These animals are typically the personal pets of handlers. And these handlers are often therapists, physicians, rehabilitation professionals or people who are working under the charge of, for example, a recreational therapist or occupational therapist.
These animals work with their handlers to provide services to people who need that kind of interaction, encouragement, to stretch, move, to socialize. Again, under the federal law, these animals are not defined. There are no provisions under the wide array of protective laws for people with disabilities to cover therapeutic animals. Therapy animals are generally not service animals although they may be used in the service of people with disabilities. We will talk about those definitions later.
The most controversial of the types of animals that may be used by people with disabilities are the companion or emotional support animals. These assist people who typically have mental or emotional disabilities and who use the assistance of this type of animal to allow them to function as independently as they can. The animal may help to assuage feelings of anxiety, may offer a great deal of companionship. Until recently, it was -- it seemed clear that these animals had no protection under any of the federal laws, specifically. And of late, there have been some inroads into that. We will talk about that. The status of companion and emotional support animals has definitely changed under certain aspects of the federal law. I’m going to do a brief, very, very brief overview of the laws.
The biggie, the big law is the Americans with Disabilities Act. The Americans with Disabilities Act does specifically define a service animal as any guide dog, signal dog or other animal that is individually trained to provide assistance to an individual with a disability.
If they meet this definition, the dog and the person, then these animals are considered to be service animals under the ADA, regardless of whether or not they have been licensed or certified by any state or local governmental entity.
Diego Demaya: Aaron, someone asked if entities, say within states, can actually require the certification of an animal?
Aaron: Yes and no. The ADA is -- the ADA is a federal law, a broad civil rights protection and usually trumps local law, if that law would interfere with or violate those rights. However, some states have chosen to provide broader protections, more protections than the ADA has. And to the extent that the state is allowed to offer those, they can require that somebody have their animal so-called certified, registered or something.
But again, the minimum floor is the ADA. You need no certification, badge, harness, diploma from a service academy, et cetera, to have those protections.
A question we often get is about housing. There are a variety of laws that cover the rights of people with disabilities in housing. The big one is the Fair Housing Act.
The federal Fair Housing Act makes no specific mention of service animals in that law. However, in any number of behaviors, the HUD has indicated that service animals are covered under fair housing and would be covered under the requirements that reasonable accommodations in rules, policies, and practices be made in order to allow a person with a disability the full use and enjoyment of both a dwelling and common areas.
And where such a service animal would be needed, then any policy that would prohibit service animals would come afoul of the Fair Housing Act. There is some great debate on whether or not emotional support and companion animals are similarly covered under the Fair Housing Act.
Undoubtedly, you can make the same argument if a person with a disability, this may be a reasonable accommodation. It remains to see how that will survive.
Moving on to other housing protections, the National Affordable Housing Act, I believe it is called, which predates the ADA by almost a decade, provided guaranties that in federally funded housing, that people with disabilities and the elderly could have access to and the companionship of domestic pets.
So in a broad class of assisted housing, those protections are available without any look to the Fair Housing Act.
Similarly, in housing that receives some federal funding, the rehabilitation act offers similar general guarantees of protection against discrimination and the requirement that management provide reasonable accommodations.
So the argument is in federally funded housing, both service animals and potentially companion or emotional support animals could be considered a reasonable accommodation.
Other significant laws. The Air Carrier Access Act is a law that predates the Americans with Disabilities Act slightly and applies to the behavior of large commercial passenger flight services.
So your large airlines that have larger commercial flights have certain obligations under the Air Carrier Access Act to accommodate the needs of people with disabilities. The airline industry is regulated and safety conscious industry, so they're allowed to afford people their rights in a much narrower sense of the term.
However, very recently the DOT did something interesting while clarifying their guidelines on essentially how security professionals checking passengers should treat a service animal. They chose to bring in, specifically, the definition of companion animals and emotional support animals for people with disabilities, into that protection in that set of circumstances.
However, it is not all good news.
No one in any of the stakeholder communities that I have had contact with are particularly happy about what these guidelines mean in the real world.
It, one, muddies the water with regards to the difference between an emotional support animal and a service animal, which is a hotly debated battleground in some stakeholder groups.
It also provides a conflict between the definitions accepted under the Americans with Disabilities Act, the Fair Housing Act, and again this Air Carrier Access Act.
But the guidance also encourages -- I guess, a more forthright approach to questioning about the nature and status of the animal as either a service animal or an emotional support animal.
Keep in mind, if you're maintaining this is an emotional support animal, then there are certain inquiries into the nature of your disability and your need for it that are encouraged under these new guidelines.
There are a number of local laws that impact people with disabilities and people who use service animals. For example, state and local civil rights acts that mirror the Americans with Disabilities Act and the Fair Housing Act. But you also have some very stand-alone service animal laws -- and ordinances that have been passed in response to particular events.
A significant amount of these local laws add an ADA-like protection for animals that are undergoing training and are accompanied by a trainer, whether or not that trainer is a person with a disability.
I think people miss that key element under all these other federal laws, is an animal in training is not a service animal. An animal that has been trained and paired with a person with a disability has protections. Otherwise, it is an animal and can be treated like any other animal.
Diego: Of course the issue of the animal trainer has come up in several questions. Most of them have to do with whether or not, you know, can the trainer go with the animal to whatever location the trainer wishes to train the animal like a restaurant or building.
Aaron: Let's clarify that point. Under the federal law there is no protection for a trainer of a service animal. That does not mean that there is not protection. Because, again, any number of states or localities have responded to that need and recognize that is a hole in the protection.
Remember, the ADA only confers rights on people with disabilities. And defines a service animal as an animal that has already been trained to assist that person with a disability.
The federal law does not require that, as we mentioned before, an animal be registered or certified or licensed. Local law may require that an animal be licensed as an animal and have certain shots. And that's neutral on its face and may very well be required of a service animal without violating the ADA.
There is nothing under the federal law that similarly requires that an animal be obvious in its service capacity. You may again be very familiar with guide dogs for example, wearing a very distinguished harness set up. It is very typical of blind users and their dogs. You may also have seen service animals with badges or patches that indicate they are a service animal.
And often the badges and patches even do so as more a defense against somebody treating this as a pet and breaking its -- the discipline of its service. You may see a patch along the lines of “Working dog. Please do not try to pet.”
But none of these are required. These are user options. People with disabilities choose to do so because, one, they maybe don't want to get hassled as much. And clearly, the more official-looking your animals the less hassles you may receive from authorities, et cetera.
Others understand that is not a requirement and don't wish to stand out like that. Or just have no desire to or don't have the resources to purchase, you know, these capes and badges, et cetera. And they're certainly not required.
The kind of inquiry that someone is allowed to make when they have chosen to limit access to pets is fairly limited.
The Department of Justice, the Department of Transportation, the responsible agencies have given kind of -- I think as good a guidance as they can on this but it is still sort of thin gruel.
When you are making the inquiry, you are allowed to ask if this is a service animal that they need to assist them with their disability, implying again, you are asking whether this is a service animal and whether this is a service animal they're using.
They need to offer some credible indicia of this. So, “Yes, it is” is generally about as much --
You can't require they show proof of their disability or diploma from the service academy to show this is a highly skilled and trained service animal.
One, it would be a violation of someone's privacy to require all that documentation in those sets of circumstances in public access. It would be unwieldy to expect someone to carry that information around.
In the case of a diploma from a service academy, the vast majority of animals are not trained in the large service academies. They're trained with the assistance of service groups, behaviorists, veterinarians, increasingly self-trained. So no such documentation may exist.
Getting to denials of service. It does occur. The point is someone needs to assert this is a service animal.
In the case of public transportation, they need to assert this is a service animal and has the right to accompany them. If this denial is persistent they need to pursue just as they would any other complaint, denial of access, or service, either through a complaint process with that local authority, a grievance procedure and/or complaining to the appropriate federal agencies.
Kind of framing it like this: where can I go with my service animal accompanying me? And I think the easier answer is where can't you go or where are some places where access might be restricted?
And some common sense places sort of suggest themselves. Many clinical medical locations may be places where it would be inappropriate to bring a service animal.
In a dental surgery, surgical theater, sterile laboratory may be very inappropriate. But it’s unlikely that the waiting room of a doctor's office would be considered an inappropriate place for a well-behaved, and well-trained, and, certainly, clean service animal to accompany the patient with a disability.
Certain workplaces are very likely places where a service animal could potentially be denied. A workplace where there is dangerous machinery, critical systems like technology clean rooms. In all likelihood, a service animal accompanying somebody with a disability could be denied.
Again, there may be any other number of locations that seem obvious. But I think the analysis needs to be this: You need to default in favor of allowing somebody with a disability to bring their legitimate service animal in accompanying them pretty much anywhere they go. If you have a doubt, then you need to analyze that doubt along the direct threat argument.
Failing to do that kind of real analysis and operating from a gut feeling is a sure-fire way to end up discriminating against someone with a disability and owning that liability.
Diego: Sure. On the issue of where you go with the animal, which is I guess the biggest issue of all, probably. For example, I'll start with public schools, and children who have the use of a service animal.
Aaron: Public schools, as I have mentioned, have been a fairly common point of contention with regards to access to service animals.
Public schools -- it is a good thing. Public schools are a different environment. They are rarified air, heavily regulated, increasingly safety conscious, and public schools are increasingly aware of overall liability.
And there has been a great deal of resistance in allowing people to use service animals in public schools. Some of it seems rather senseless and some of it seems rather vindictive.
It kind of goes like this: A child has whatever disability. Whether or not they have an intellectual disability that necessitates they have an IEP they are in a public school setting and their parents save money, pair this child with a service animal and they prepare the school with training videos offered by service academies, they come in and offer to ease these service animals presence into the school to minimize disruption and gets ready for the school term to start and somebody at an administrative level above the teacher or local principal makes the decision they can't bring the dog in. And then the procedural wrangling starts.
What I need to assure the school is, if the child is a child with a disability, if the animal has been individually trained to assist them to mitigate the impact of that disability, then that child comes into that school with that right.
And I want to say, there are plenty of schools that are allowing a diverse range of service animals into their school who are cooperating with the parents even after their initial trepidation who have found a great deal of comfort dealing with it.
Diego: Now we go to a different direct direction. And now there are multiple questions concerning fees. That will be fees concerning pet deposit and housing.
Aaron: Okay. Service animals are not pets. That is the mantra that you hear with regards to access.
The difficulty is this: under the general nondiscrimination provisions of the Fair Housing Act, which governs almost all housing transactions, there is nothing in the regulations that prohibits a landlord charging a pet deposit. There is nothing in the law, there is nothing in the legislation or in the regulations.
Again, we are talking about privately provided housing. Privately and some publicly provided housing. We will specify that in just a second.
The difficulty is this. There was a recent joint statement published by Housing and Urban Development, or HUD, and the U.S. Department of Justice on the rights of people to reasonable accommodation in housing. And nowhere does it make a firm statement, except in one hypothetical question and answer that is illustrating a point. And they indicate that charging a pet deposit for a service animal is inappropriate.
Now, keep in mind what this is. It is not law. It is interpretive guidance.
And it is mentioned in a hypothetical question illustrating another general statement in a prior paragraph. It is hardly the firm guidance, again, that we would like to get on this.
There have been instances of administrative hearings, and settlements where this very issue has been subject to -- has been named as one of the list of discriminatory practices. Again, these are hardly precedental decisions. It would be very helpful to have a firm statement.
But again, it is arguable that that is the position of the U.S. Department of Justice and Housing and Urban Development because of that statement. Now, in federally funded or assisted housing, the waiver of a pet deposit is -- is obviously -- with regards to a service animal, mind you, is obviously a reasonable accommodation under that law. Under those laws.
Now, it gets a little more complex of course because even if you have a service animal and even if the deposit is waived, any damage that animal does to the dwelling unit or a common area can be charged back toward to that tenant toward their security deposit and beyond.
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Beth: Well, I hope you enjoyed the first episode of the Southwest ADA Center podcast. Like I said, that’s just a few excerpts from the full-length webcast. Visit our website at www.ada-podcast.com and there you will find a link to the webcast if you want to listen to the whole version. You can find out more about the Southwest ADA Center at their website, www.dlrp.org. If you have questions you’d like to consult them about, you can call them at 1-800-949-4232. So until next time, this has been Beth Case with the Southwest ADA Center Podcast.
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The Southwest ADA Center is a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. The Southwest ADA Center Podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.
(music)
Beth Case: Hello, I’m Beth Case and welcome to the first full-length podcast of the Southwest ADA Center podcast. Now, this podcast will bring you highlights from the full-length webcasts offered by the Southwest ADA Center. These webcasts are greatly informative and cover a wide variety of disability-related topics. But they do run about an hour and a half to two hours. And not everyone has that much time to listen to a webcast. So in this podcast, I try to bring you highlights, kinda summarize it for you. And then if you want to hear more detail and you want to hear more detail, you can go do that. In the show notes for each podcast, I will provide a direct link to the full webcast that I took those excerpts from. And you can find our website at ada-podcast.com. Or, you can go directly to the Southwest ADA Center website at www.dlrp.org and just follow the links for the webcast archives. It’s kinda fun to go over there and browse anyway. You never know what topics you might find that you’d like to listen to.
So in this inaugural episode of the Southwest ADA Center podcast, we are featuring a webcast on service animals that was originally aired on June 28, 2006. This webcast was moderated by Diego Demaya and featured Aaron McCullough as the presenter, both of them with the Southwest ADA Center.
(music)
Aaron McCullough: Until recently we felt this was a simple legal reality. In practice, the people who use service animals to positively impact their lives are confronted often with a great deal of ignorance and denial of access. There is also great deal of misunderstanding about what service animals are, what they are not. We will try to clear some of that up as well.
Now, I will let you know in advance that this is a fairly murky bit of the law as of late.
Another reason that we think this comes up quite a bit, too, is that the protections granted people with disabilities under a variety of laws, which we will go into detail later. Those protections are often abused. Face it, Americans love their pets. We are a country that adores our animals. Unfortunately that adoration leads many people to abuse the very laws set up to protect people with disabilities.
I think most of us would admit to being familiar with seeing-eye dogs or dog guides. Seeing-eye is a training institute, a very old one. But a generic term for dogs that are carefully trained to assist someone with vision impairment is a dog guide, or a guide dog.
This is a highly bred, selected, and socialized and trained animal to replace the clear vision of someone with vision impairment. I think most people are familiar with that. this is a very highly trained animal.
People are becoming increasingly familiar with hearing assistance or signal dogs. These are dogs who are trained to alert its partner or user with -- who has significant hearing loss when the animal hears a sound. So if somebody walks up behind them or talks to somebody or fire alarm goes off where there is not a visual signal or phone rings or someone knocks on the door. I think people are becoming more familiar with service animals who assist people with mobility or health impairment who have difficulty reaching or maybe use a wheelchair for mobility. Again, these service animals may carry objects, stabilize them when they transfer from a wheelchair to their car or from their car to their chair. May help them pull up too steep of a slope. May help by ringing doorbells or activating elevator buttons or assisting them get up after they have fallen.
An increasingly controversial animal used to assist people with the disabilities is the social signal dog that you have increasingly seen trained to assist people with autism. These dogs alert their partner to distracting repetitive movements that are often common with people with autism. They allow that person to stop that movement. For example, hand flapping. A person with autism may have sensory input problems and maybe the same support signals a deaf or blind person will use.
In addition, there was a Dateline episode not too long ago in the last year and a half on seizure response dogs, dogs that are trained to assist a person who has a seizure disorder. These dogs may serve that person differently depending on the need. They may be trained to stand guard over a person who has a seizure or go and get help or may help to stabilize a person. Some very few of those dogs have somehow gotten the ability to -- some people say predict a seizure, but certainly sense the precursors to a full-blown seizure and can provide some warning to people in advance. What they call the aura of an oncoming seizure. These dogs, this rare subset of seizure response dogs are often called seizure alert dogs. Keep in mind the vast majority of service animals in the service of people with seizures are not seizure alert dogs.
Now, a whole different subset of animals that may be assisting people with disabilities are therapy animals. Under the federal law, therapy animals are not legally defined. However some states have clearly defined what therapy animals are. These animals provide people with therapeutic contact and while they may work a great deal with people of a wide variety of disabilities, they aren't limited to working with people with disability. They may work with injured folks or the elderly. These animals are typically the personal pets of handlers. And these handlers are often therapists, physicians, rehabilitation professionals or people who are working under the charge of, for example, a recreational therapist or occupational therapist.
These animals work with their handlers to provide services to people who need that kind of interaction, encouragement, to stretch, move, to socialize. Again, under the federal law, these animals are not defined. There are no provisions under the wide array of protective laws for people with disabilities to cover therapeutic animals. Therapy animals are generally not service animals although they may be used in the service of people with disabilities. We will talk about those definitions later.
The most controversial of the types of animals that may be used by people with disabilities are the companion or emotional support animals. These assist people who typically have mental or emotional disabilities and who use the assistance of this type of animal to allow them to function as independently as they can. The animal may help to assuage feelings of anxiety, may offer a great deal of companionship. Until recently, it was -- it seemed clear that these animals had no protection under any of the federal laws, specifically. And of late, there have been some inroads into that. We will talk about that. The status of companion and emotional support animals has definitely changed under certain aspects of the federal law. I’m going to do a brief, very, very brief overview of the laws.
The biggie, the big law is the Americans with Disabilities Act. The Americans with Disabilities Act does specifically define a service animal as any guide dog, signal dog or other animal that is individually trained to provide assistance to an individual with a disability.
If they meet this definition, the dog and the person, then these animals are considered to be service animals under the ADA, regardless of whether or not they have been licensed or certified by any state or local governmental entity.
Diego Demaya: Aaron, someone asked if entities, say within states, can actually require the certification of an animal?
Aaron: Yes and no. The ADA is -- the ADA is a federal law, a broad civil rights protection and usually trumps local law, if that law would interfere with or violate those rights. However, some states have chosen to provide broader protections, more protections than the ADA has. And to the extent that the state is allowed to offer those, they can require that somebody have their animal so-called certified, registered or something.
But again, the minimum floor is the ADA. You need no certification, badge, harness, diploma from a service academy, et cetera, to have those protections.
A question we often get is about housing. There are a variety of laws that cover the rights of people with disabilities in housing. The big one is the Fair Housing Act.
The federal Fair Housing Act makes no specific mention of service animals in that law. However, in any number of behaviors, the HUD has indicated that service animals are covered under fair housing and would be covered under the requirements that reasonable accommodations in rules, policies, and practices be made in order to allow a person with a disability the full use and enjoyment of both a dwelling and common areas.
And where such a service animal would be needed, then any policy that would prohibit service animals would come afoul of the Fair Housing Act. There is some great debate on whether or not emotional support and companion animals are similarly covered under the Fair Housing Act.
Undoubtedly, you can make the same argument if a person with a disability, this may be a reasonable accommodation. It remains to see how that will survive.
Moving on to other housing protections, the National Affordable Housing Act, I believe it is called, which predates the ADA by almost a decade, provided guaranties that in federally funded housing, that people with disabilities and the elderly could have access to and the companionship of domestic pets.
So in a broad class of assisted housing, those protections are available without any look to the Fair Housing Act.
Similarly, in housing that receives some federal funding, the rehabilitation act offers similar general guarantees of protection against discrimination and the requirement that management provide reasonable accommodations.
So the argument is in federally funded housing, both service animals and potentially companion or emotional support animals could be considered a reasonable accommodation.
Other significant laws. The Air Carrier Access Act is a law that predates the Americans with Disabilities Act slightly and applies to the behavior of large commercial passenger flight services.
So your large airlines that have larger commercial flights have certain obligations under the Air Carrier Access Act to accommodate the needs of people with disabilities. The airline industry is regulated and safety conscious industry, so they're allowed to afford people their rights in a much narrower sense of the term.
However, very recently the DOT did something interesting while clarifying their guidelines on essentially how security professionals checking passengers should treat a service animal. They chose to bring in, specifically, the definition of companion animals and emotional support animals for people with disabilities, into that protection in that set of circumstances.
However, it is not all good news.
No one in any of the stakeholder communities that I have had contact with are particularly happy about what these guidelines mean in the real world.
It, one, muddies the water with regards to the difference between an emotional support animal and a service animal, which is a hotly debated battleground in some stakeholder groups.
It also provides a conflict between the definitions accepted under the Americans with Disabilities Act, the Fair Housing Act, and again this Air Carrier Access Act.
But the guidance also encourages -- I guess, a more forthright approach to questioning about the nature and status of the animal as either a service animal or an emotional support animal.
Keep in mind, if you're maintaining this is an emotional support animal, then there are certain inquiries into the nature of your disability and your need for it that are encouraged under these new guidelines.
There are a number of local laws that impact people with disabilities and people who use service animals. For example, state and local civil rights acts that mirror the Americans with Disabilities Act and the Fair Housing Act. But you also have some very stand-alone service animal laws -- and ordinances that have been passed in response to particular events.
A significant amount of these local laws add an ADA-like protection for animals that are undergoing training and are accompanied by a trainer, whether or not that trainer is a person with a disability.
I think people miss that key element under all these other federal laws, is an animal in training is not a service animal. An animal that has been trained and paired with a person with a disability has protections. Otherwise, it is an animal and can be treated like any other animal.
Diego: Of course the issue of the animal trainer has come up in several questions. Most of them have to do with whether or not, you know, can the trainer go with the animal to whatever location the trainer wishes to train the animal like a restaurant or building.
Aaron: Let's clarify that point. Under the federal law there is no protection for a trainer of a service animal. That does not mean that there is not protection. Because, again, any number of states or localities have responded to that need and recognize that is a hole in the protection.
Remember, the ADA only confers rights on people with disabilities. And defines a service animal as an animal that has already been trained to assist that person with a disability.
The federal law does not require that, as we mentioned before, an animal be registered or certified or licensed. Local law may require that an animal be licensed as an animal and have certain shots. And that's neutral on its face and may very well be required of a service animal without violating the ADA.
There is nothing under the federal law that similarly requires that an animal be obvious in its service capacity. You may again be very familiar with guide dogs for example, wearing a very distinguished harness set up. It is very typical of blind users and their dogs. You may also have seen service animals with badges or patches that indicate they are a service animal.
And often the badges and patches even do so as more a defense against somebody treating this as a pet and breaking its -- the discipline of its service. You may see a patch along the lines of “Working dog. Please do not try to pet.”
But none of these are required. These are user options. People with disabilities choose to do so because, one, they maybe don't want to get hassled as much. And clearly, the more official-looking your animals the less hassles you may receive from authorities, et cetera.
Others understand that is not a requirement and don't wish to stand out like that. Or just have no desire to or don't have the resources to purchase, you know, these capes and badges, et cetera. And they're certainly not required.
The kind of inquiry that someone is allowed to make when they have chosen to limit access to pets is fairly limited.
The Department of Justice, the Department of Transportation, the responsible agencies have given kind of -- I think as good a guidance as they can on this but it is still sort of thin gruel.
When you are making the inquiry, you are allowed to ask if this is a service animal that they need to assist them with their disability, implying again, you are asking whether this is a service animal and whether this is a service animal they're using.
They need to offer some credible indicia of this. So, “Yes, it is” is generally about as much --
You can't require they show proof of their disability or diploma from the service academy to show this is a highly skilled and trained service animal.
One, it would be a violation of someone's privacy to require all that documentation in those sets of circumstances in public access. It would be unwieldy to expect someone to carry that information around.
In the case of a diploma from a service academy, the vast majority of animals are not trained in the large service academies. They're trained with the assistance of service groups, behaviorists, veterinarians, increasingly self-trained. So no such documentation may exist.
Getting to denials of service. It does occur. The point is someone needs to assert this is a service animal.
In the case of public transportation, they need to assert this is a service animal and has the right to accompany them. If this denial is persistent they need to pursue just as they would any other complaint, denial of access, or service, either through a complaint process with that local authority, a grievance procedure and/or complaining to the appropriate federal agencies.
Kind of framing it like this: where can I go with my service animal accompanying me? And I think the easier answer is where can't you go or where are some places where access might be restricted?
And some common sense places sort of suggest themselves. Many clinical medical locations may be places where it would be inappropriate to bring a service animal.
In a dental surgery, surgical theater, sterile laboratory may be very inappropriate. But it’s unlikely that the waiting room of a doctor's office would be considered an inappropriate place for a well-behaved, and well-trained, and, certainly, clean service animal to accompany the patient with a disability.
Certain workplaces are very likely places where a service animal could potentially be denied. A workplace where there is dangerous machinery, critical systems like technology clean rooms. In all likelihood, a service animal accompanying somebody with a disability could be denied.
Again, there may be any other number of locations that seem obvious. But I think the analysis needs to be this: You need to default in favor of allowing somebody with a disability to bring their legitimate service animal in accompanying them pretty much anywhere they go. If you have a doubt, then you need to analyze that doubt along the direct threat argument.
Failing to do that kind of real analysis and operating from a gut feeling is a sure-fire way to end up discriminating against someone with a disability and owning that liability.
Diego: Sure. On the issue of where you go with the animal, which is I guess the biggest issue of all, probably. For example, I'll start with public schools, and children who have the use of a service animal.
Aaron: Public schools, as I have mentioned, have been a fairly common point of contention with regards to access to service animals.
Public schools -- it is a good thing. Public schools are a different environment. They are rarified air, heavily regulated, increasingly safety conscious, and public schools are increasingly aware of overall liability.
And there has been a great deal of resistance in allowing people to use service animals in public schools. Some of it seems rather senseless and some of it seems rather vindictive.
It kind of goes like this: A child has whatever disability. Whether or not they have an intellectual disability that necessitates they have an IEP they are in a public school setting and their parents save money, pair this child with a service animal and they prepare the school with training videos offered by service academies, they come in and offer to ease these service animals presence into the school to minimize disruption and gets ready for the school term to start and somebody at an administrative level above the teacher or local principal makes the decision they can't bring the dog in. And then the procedural wrangling starts.
What I need to assure the school is, if the child is a child with a disability, if the animal has been individually trained to assist them to mitigate the impact of that disability, then that child comes into that school with that right.
And I want to say, there are plenty of schools that are allowing a diverse range of service animals into their school who are cooperating with the parents even after their initial trepidation who have found a great deal of comfort dealing with it.
Diego: Now we go to a different direct direction. And now there are multiple questions concerning fees. That will be fees concerning pet deposit and housing.
Aaron: Okay. Service animals are not pets. That is the mantra that you hear with regards to access.
The difficulty is this: under the general nondiscrimination provisions of the Fair Housing Act, which governs almost all housing transactions, there is nothing in the regulations that prohibits a landlord charging a pet deposit. There is nothing in the law, there is nothing in the legislation or in the regulations.
Again, we are talking about privately provided housing. Privately and some publicly provided housing. We will specify that in just a second.
The difficulty is this. There was a recent joint statement published by Housing and Urban Development, or HUD, and the U.S. Department of Justice on the rights of people to reasonable accommodation in housing. And nowhere does it make a firm statement, except in one hypothetical question and answer that is illustrating a point. And they indicate that charging a pet deposit for a service animal is inappropriate.
Now, keep in mind what this is. It is not law. It is interpretive guidance.
And it is mentioned in a hypothetical question illustrating another general statement in a prior paragraph. It is hardly the firm guidance, again, that we would like to get on this.
There have been instances of administrative hearings, and settlements where this very issue has been subject to -- has been named as one of the list of discriminatory practices. Again, these are hardly precedental decisions. It would be very helpful to have a firm statement.
But again, it is arguable that that is the position of the U.S. Department of Justice and Housing and Urban Development because of that statement. Now, in federally funded or assisted housing, the waiver of a pet deposit is -- is obviously -- with regards to a service animal, mind you, is obviously a reasonable accommodation under that law. Under those laws.
Now, it gets a little more complex of course because even if you have a service animal and even if the deposit is waived, any damage that animal does to the dwelling unit or a common area can be charged back toward to that tenant toward their security deposit and beyond.
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Beth: Well, I hope you enjoyed the first episode of the Southwest ADA Center podcast. Like I said, that’s just a few excerpts from the full-length webcast. Visit our website at www.ada-podcast.com and there you will find a link to the webcast if you want to listen to the whole version. You can find out more about the Southwest ADA Center at their website, www.dlrp.org. If you have questions you’d like to consult them about, you can call them at 1-800-949-4232. So until next time, this has been Beth Case with the Southwest ADA Center Podcast.
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The Southwest ADA Center is a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. The Southwest ADA Center Podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.