[Archived Information | Great Lakes ADA Center]
Phillip Breen, U.S. Department of Justice
Herb Ziegeldorf, U.S. Department of Housing and Urban Development April 16, 2002
Supplemental Materials: ADA Business Brief: Service Animals by DOJ (PDF) ADA Business Brief: Service Animals by DOJ (Web Page) Commonly Asked Questions About Service Animals in Places of Business by DOJ (Web Page)
Jennifer Skulski: Welcome to the ADA Distance Learning Series hosted by your regional Disability and Business Technical Assistance Center. This month’s session is about service animals, policy and procedures. Joining us today we have Philip Breen from the U.S. Department of Justice and Herb Ziegeldorf, from theU.S. Department of Housing and Urban Development. Hi, Phil and Herb, how are you?
Philip Breen: Okay,
Herb Ziegeldorf: Okay. Hi Jennifer.
Jennifer Skulski: We also have several organizations joining us for the first time today, including the International Association of Assistance Dog Partners and the Coalition of Assistance Dog Organizations. We thank you for joining us today and hope you will find the session to be informative. This session is also being real-time captioned on the Great Lakes web site at www.adagreatlakes.org Policy and procedure issues resolving around service animals can sometimes be complicated under the ADA. At the DBTACs we often get questions about what constitutes a service animal? Is an animal prescribed as therapy by a physician a service animal? And what types of requests can business owners make when service animals become disruptive in their place of business. I’m sure all of you have lots of questions like these as well. Hopefully Philip can clear some of those up when he talks about the application of ADA, and then we will go over to Herb when he talks about the application of fair housing laws. With that said I will turn it over to Philip.
Philip Breen: Thanks for giving me the opportunity to speak to you today about service animals, which is really a topic that hit the core of the ADA and what is one of the basic issues that Congress thought it was addressing when it passed the ADA. What we are dealing with here is the general barrier in the environment of “no pets allowed.”
Certainly if you go to a hardware store there are always lots of no pets allowed signs that people can buy. Throughout our society, at least historically, no pets allowed has been a very common policy, practice or procedure of both businesses and government. So the ADA, of course, is about eliminating barriers to the mainstream of American life for people with disabilities and takes a very comprehensive approach and the issue of service animals is one particular aspect of that. It falls under the general idea that the ADA requires that reasonable modifications be made in policies, practices and procedures to avoid discriminating people with disabilities, to avoid excluding them from goods and services or the ability to participate in their government. Let me start first with what is a service animal.
The important thing here is that a service animal is not a pet. A service animal is a service animal. It’s a working animal. Under theADA, the definition is that it’s an animal that’s individually trained to do work or perform tasks for the benefit of a individual with disabilities. The keyword there is trained. That’s what distinguishes it at least in the ADA context from being a pet. Some of the things that service animals do, I mean the most common service animal that comes to mind for most people is the seeing eye dog or the guide dog. So one major function of service animals is to provide guiding for people who are blind or who have low vision. Service animals also can be used by people with mobility impairments, they can perform tasks such as picking things up for people, they might be a source of locomotion, mean they can pull a wheelchair. They are animals that provide assistance to people who are having seizures.
There are service animals that provide assistance to people who might have balance problems such as people with CP. The animal can help a person maintaining their balance. Another example is the signal dog or the dog that’s trained to help alert people who are deaf or hard of hearing to sounds in the environment that they need to be made aware of. So there is a whole wide range of service animals and many people in American society really aren’t that familiar with that range. Some of the problems that we have come from the fact that people aren’t aware that service animals includes a range of animals much more than just seeing eye dogs.
The ADA specifically is general. That seems like a contradiction, but if you look at state laws about service animals, they may be much more particular and some of them limit service animals to seeing eye dogs. They might require specific training or certification. The ADA does not limit first of all, service animals to dogs. It doesn’t require any specific form of certification, although it does require the animal to be trained to do work or perform tasks. TheADA does not require that the service animal have a collar or tags.
There is confusion sometimes when people question whether an animal is an service animal because they don’t see that sort of common indicator of collar or tags. Because the ADA is a federal law, it takes precedence over state laws, and so there are going to be animals that do enjoy status of service animals under the ADA that may not be under state law. The one area I know people will probably have questions about that’s a difficult one under the ADA is the issue of animals that provide emotional support and how to distinguish between the pet that you have that does provide you with emotional support, people love their pets, how to distinguish that from an animal that’s been trained to perform some task. An emotional support animal is not going to be a service animal under the ADA unless it does meet the training requirement.
The story is different under the Fair Housing Act and I’m sure Herb will be talking about that. Another issue that people have problematic is what happens when a person shows up at a business or restaurant, whatever, with a service animal and the owner is less than eager to welcome then. Maybe the owner suspects the animal is not really a service animal, there is some kind of fraud going on. What exactly is the owner permitted to do in order to figure out whether this is a service animal? The policy that we have had from the beginning from the Department of Justice is that you can, a business owner can ask an individual with a disability if the animal is a service animal and can ask what the animal is trained to do.
Those two questions are permitted. The business owner is not permitted to ask that certification, the papers, documentation, be produced. That’s with the general policy of under the ADA of not allowing businesses or governments to ask generally this is the case, not allowing them to ask a person to prove that they are disabled. That decision was made early on that people with disabilities in terms of the kinds of routine things that make up daily life and interacting with public accommodations really should not have to go around with documentation of their medical condition or documentation of their service animals.
Now, again, that is the general rule and the story under the Fair Housing Act is a little bit different because there is a longer term relationship with the landlord than there is, for example, with just randomly visiting a restaurant or occasionally visiting the restaurant or the kinds of contacts you have on a day-to-day basis, the dry cleaner, wherever you are going. What is it the ADA requires once you figured out you have a service animal? Exactly what is required? As I said in the opening, the ADA requires reasonable modifications in policies, practices, and procedures to avoid denial of goods and services.
The ADA is very clear that generally public accommodations are required to modify any no pets policy to allow people with disabilities to be accompanied by their service animals. The interpretive guidance in the DOJ regulation talks about the broadest feasible access being required. It’s generally the requirement that service animals should be able to go wherever customers are allowed to go and that they can only be excluded in rare circumstances. This is all language either from the legislative history of ADA or from the regulations or the regulatory interpretation. The basic assumption is that service animals are to be welcomed in public accommodations with the rare exceptions and I will get to some of those in a minute.
They come up in situations where the service animal may result in a fundamental alteration of the program or service or where there is a direct threat posed to the health or safety of others. Another important basic principle of the ADA is that there is an importance of the ongoing relationship between an individual with a disability and their service animal. What this means is that there are going to be situations where you are at a public accommodation and there might be staff people who are more than happy to guide you around or provide whatever services or perform the tasks that your service animal is trained to perform.
They say okay, you don’t need your animal, you can leave your animal over there, we will take care of everything. The ADA frowns on that in fact and prohibits that, there is a value placed on the ongoing relationship. It’s important in terms of maintaining the training of the animal, if people are separated from their service animals in certain context then it might damage the relationship in other aspects of their lives.
If the school was able to say well, the teacher will take care of everything, the child doesn’t need the service animal at school, that will damage the relationship the child has with the animal after school and after school activities and in the evening and all other aspects of their life. So it’s one of our basic principles that the animal and the person really go together. A business can’t say well, we are not discriminating against you, we just don’t want your animal here. It’s really the person and the service animal are a package deal in terms of the ADA and the importance of that relationship is to be respected. There are situations that may raise fundamental alteration or direct threat problems. I can just briefly go through a couple of these that have come up. There are situations involving hospitals, amusement parks, zoos, for example.
The basic principle is that we have to assume that a service animal really should have access to all the areas of any of these, whether it’s a zoo or hospital or amusement park unless a case can be made that there is a direct threat or a fundamental alteration. In terms of hospitals, there are no published studies that indicate that service animals pose any threat in terms of contagious disease. Our general policy is that service animals really should be able to go anywhere in a hospital where people go without having to wear masks or take special precautions in terms of contagious diseases. Certainly that means that they should have access to the patient rooms. When you are talking about more specialized areas of the hospital, burn treatment centers or intensive care, it’s really a case-by-case analysis, because not all of these centers are set up the same way.
There may be patients segregated in ways that the concern about contagious is not as great in some areas as others. The general principle the hospital if it’s going to exclude animals, the medical staff really has to make a medical decision based on a knowledge of the ADA and define the specific areas that are excluded.
The general assumption is the animal should be able to go wherever the patient goes. In terms of zoos there is an issue of the animal triggering a response in other zoo animals. There is an example we had a long time ago from the Chicago Zoo a certain type of animal that just went bezerk when there was a dog outside the cage and the animal, killed itself or injured itself severely. There are issues where certain animals and zoo people need to document that if they are going to set up areas that are excluded.
But the general assumption that people in zoos should be able to go anywhere with their service animals and many zoos allow that without incident. There is more problem with petting zoos because of the proximity of the animals in the zoo. Amusement parks, we encourage to them to do a ride by ride assessment in terms of safety issues. You cannot have a blanket policy excluding service animals, an analysis needs to be made from context to context. A couple quick points to sum up here, it’s getting to be Herb’s time.
Any fees that apply to like if a hotel charges extra for pets, that kind of fee cannot be charged to a service animal. A service animal is the modification allowing the service animal to be there is required by the ADA. And you cannot be charged for that. If your service animal does do damage, though, the customer can be charged for that, if they charge other people for similar type damage. Let me just say our most common complaint areas, the most common one still is restaurants, people with service animals being excluded from restaurants.
I guess the second most is probably taxis and transportation vehicles followed by health care institutions. I think that’s it for the introduction. I will turn it over to Herb for the Fair Housing Act.
Herb Ziegeldorf: Okay, thank you very much. Let me just pick up from there, if I may. First of all I want to thank Jennifer for the opportunity to at least present some comments on behalf of the Fair Housing Act and Section 504 of the Rehab Act in this whole area of service animals and also in the area of companion or emotional support animals.
The first thing I would like to say, the typical question I get from housing providers and from consumers as well, as what does theADA say about residential housing or about my rights under or my responsibilities under the Americans with Disabilities Act. And I always start out by saying well in terms of residential housing, as important as far-reaching it is in other areas of life, it doesn’t speak that much in the area of residential housing, just a very, very little bit, because of two other laws, the federal Fair Housing Act, which in 1998 added disability in addition to the other protected classes. So it was in the area of residential housing, it’s even two years ahead of the Americans with Disabilities Act and where HUD subsidized housing or subsidy from other federal agencies as well, Section 504 of the Rehabilitation Act comes into play.
Both of them are basis for requiring recipients on the one hand with federal financial assistance or housing providers in general on the other hand of having to allow reasonable accommodations on the denial being called a act of discrimination under the federal Fair Housing Act or under the Rehab Act. Under the federal Fair Housing Act, back in 1988 the regulation that followed it that HUD had passed a few months after the law was passed in 1988 basically defined reasonable accommodations saying it shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices or services when such accommodations may be necessary to afford a person with disabilities equal opportunity to use and enjoy a residential housing and that includes both the apartment itself and the public and common use areas and immediately defined as an example.
Just as an example of that in the case of someone with low vision or blind, in a building that had a no pets policy it cannot deny that resident the use of the assist animal, a seeing eye dog, because that would be denying that person equal opportunity to use and enjoy the dwelling. So that’s given an example straightforward of what is a reasonable accommodation and the fact that it’s denial would be an act of discrimination under the federal Fair Housing Act.
Under both laws of HUD it’s useful to look at both assist or service animals and emotional support or companion animals. First both of them, they are not animals, or pets, they are assistive devices very much like a wheelchair, walker, what have you. So from that analysis as a starter it would be unlawful to impose for example a pet security deposit on either a service animal or just to preserve the distinction for a moment, a emotional support animal. You can’t add to the rent sometimes, there can be no supplemental rent charged, either.
That’s another situation we are seeing, that too would be a violation of both the Fair Housing Act and Section 504 of the Rehab Act. The one distinction might be is that in the area of the emotional support animal, the landlord might be able to impose a few more restrictions and this is an open question yet, it’s a matter of case law, there are some cases out there but they haven’t been resolved yet, and that’s the question may a landlord impose weight restrictions. Clearly in the area of a service animal, no. In the area of an emotional support animal, if that animal is with the resident when he or she moved into the housing, actually had the animal at that point, I would think that would be a tough case to impose weight restrictions.
But we have had cases and they are still in either the court systems or in the HUD administrative law systems working their way toward resolution, if indeed the need for that emotional support animal first arises while one is already a residents the question is can the housing provider impose weight restrictions on him?
That’s an open question yet, so that’s one we haven’t dealt squarely with. But again I think the facts are going to be compelling if someone moves in with animal, that’s a different story than if again, the necessity arises while one has already been living at that particular apartment complex for a couple of years. Another area of difference of course between the service animal and emotional support animal is training. Now, in terms of the federal Fair Housing Act and Section 504 of the Rehab Act, neither require any kind of formal training or certification process.
But nevertheless the animal must be trained to do what ever kinds of assistance it provides the resident and it must be effective in doing that. So cases come up that’s certainly an area of the criteria for training as a practical one, in fact can the animal do what is needed to allow the resident to have equal access to enjoying the property. Of course in the area of emotional support animals or companion animals, it’s going to be a little bit different. Of course it’s the companionship that provides the accommodation.
And in that particular area, that goes back in the area of fair housing law, 15 years is an old case, that is one of the very earliest cases and it arose in the context of HUDsubsidized housing outside Atlanta. So long as there is some sort of medical verification asserting that indeed the companion animal, the emotional support animal, will meet the needs of the residents and almost using the literal words, in mitigating some sort of aspect of the disabling condition, and is effective in doing so just by providing companionship, that animal has virtually the same status of being a service animal and a housing provider that has a no pets policy cannot deny the resident having that animal.
Again, it’s not a pet, it is an accommodation, it is in the nature of an assistive device. So that’s a case where it’s pretty firm, however I kind of qualify it. Because I just noted there was what seems like a very bad case decided relatively recently coming out of the state of West Virginia. This is where someone clearly had a companion or emotional support animal and the judge denied and found for the landlord, denied the accommodation as being reasonable because the animal wasn’t trained. Again, what does training mean in the context of a companion animal?
It’s not a matter of training, it’s a question of does its very presence somehow tend to ameliorate the effects of some sort of disabling conditions. There are these little counter trends that seem to be creeping in. I think in general we can fairly say companion animals with the exception perhaps of weight restrictions get the same treatment as service animals and indeed, it’s a pretty typical complaint we get and that’s a fairly easy case to resolve. Now what kinds of questions can a landlord ask? This is analogous to the situation of the dry cleaner, the restaurant. Housing is for long term basis, a year, couple years, the average tenancy may be five years as at a time.
If it’s a non-visible disability, if a landlord has no questions and feels quite satisfied that indeed this is a working animal, that’s fine. But if let’s say in the case of a non-visible disability, whether it’s a service animal, whether it’s an emotional support animal, the landlord can request medical verification of the need for a support animal. And that verification should address a couple of points that indeed the resident or prospective resident has a disabling condition that’s protected under either law, it can be essentially the same standard and in addition that the animal will be necessary and effective in meeting the needs of that particular person who has this disability and is requesting this accommodation.
So that’s the kind of information that a housing provider can request, particularly in the case of non-visible disabilities. And that would be lawful, just to establish the need of the animal as an accommodation. Finally a question I get all the time from housing providers if I make an exception just for this one resident, everyone will be asking to have an animal. Let’s say this is a no pets community. The answer is quite simple.
It turns not on the basis of convenience or desire to have a pet, but it’s because this particular housing applicant needs this reasonable accommodation to enjoy, to have full access and enjoyment of the premises. We also suggest is that they make known to all the residents what are the standards for reasonable accommodation in the area of assist animals as well as other areas of reasonable accommodation to all the residents and let the residents draw their own inferences why a particular residents has an animal, they have requested an accommodation. I’m just looking at my watch and saying prehaps is this a good stop point, Jennifer, do you want to open it to questions? Shall I go on?
Jennifer Skulski: Thanks, Herb. As you were talking I think one of the major differences between the ADA and fair housing was just pointed out. There is an on-line question does a person with a hidden disability have to prove that they have a disability for the privilege of allowing the service animal in the building? I heard different answers from each of you. From you, Herb, according to fair housing, the landlord does have the right to ask for documentation to show the person has a disability. Is that correct?
Herb Ziegeldorf: What I always say, it doesn’t have to be a medical dossier, it’s what do you really need to know, it’s simply a verification of those particular points. You have a disabling condition. It meets Fair Housing Act, Section 504, ADA standards for disability, it can be as simple as that and the nature of your disability, you need this as an accommodation and that this particular animal will meet these particular needs.
Jennifer Skulski: Okay.
Herb Ziegeldorf: That would be fair game to ask but nothing more than that. Under fair housing.
Jennifer Skulski: On the flip side of that, Philip, under the ADA if it’s a restaurant owner they would not be able to ask about the person’s disability; is that right?
Philip Breen: They could ask “is this a service animal” and they could ask what it’s trained to do, those would be the two things.
Jennifer Skulski: They cannot say something like what’s your diagnosis, what kind of disability exactly do you have?
Philip Breen: Right.
Jennifer Skulski: I have another on line question here, Herb, before we open it up, that goes to halls of residence or dorms, are we talking about fair housing orADA there?
Herb Ziegeldorf: Let me respond first and I will let Philip respond. There are some areas where there might be dual coverage. In terms of dorms, it is residential housing, there are sleeping facilities, eating facilities, even if it’s in the nature of dorm rooms and the eating is in a communal setting. The only questionable area is short term shelters but if it’s not an overnight basis, it’s likely going to be covered under the federal Fair Housing Act. If there is money coming from usually in the case of dorms, from the U.S. Department of Education, the dorm is probably covered by Section 504 as well.
Jennifer Skulski: Okay, good. I have one other question that is on line too before we open it up, I think this goes back, it’s really an attitude thing when it comes to policy and procedure. I think one of the pitfalls that we fall into is what do you do or how do you react when a service animal is disruptive? What can the business owner say or the waiter in the restaurant, at what point is the animal disruptive and there is still business that needs to take place, Philip can you talk a little bit about that?
Philip Breen: Sure. One of the basic principles that I did not mention if an animal is disruptive, barking, disturbing people, then it’s beyond its role as a service animal. Service animals are trained not to act up like that. There can be situations where there is an occasional bark because something has happened that is rather extraordinary. And that’s really not what I’m talking about. If there is an animal creating a disturbance, disturbing other people’s enjoyment of the business, the business owner is permitted to exclude the animal under the circumstances. But the business owner can’t assume, though, before they have seen the particular animal that this animal is going to act up. You really can’t just exclude an animal based on some idea that you have that you have seen an animal like that before and bad things are going to happen. It really has to be based on the behavior at the moment.
Jennifer Skulski: Thanks Philip. We have another on line question for you while waiting for our first phone question. Who is responsible for cleaning up after the service animal has an accident?
Philip Breen: Another basic principle that I did not mention is that the responsibility for taking care of the service animal is exclusively that of the person with the disability. The business owner is not responsible for taking care of the animal and that would include cleaning up after the animal.
Herb Ziegeldorf: I would say that extends to residential housing as well. But if there is a problem we would say at least that the resident has the opportunity to get training or retraining of the animal for accommodation.
Jennifer Skulski: Let me ask you this when talking about residential housing. A lot of times when you go into apartment settings they will have some sort of pet deposit fee. Would that be permissible?
Herb Ziegeldorf: Whether it’s a service animal or an emotional support animal, pet deposits are not allowed for either service animals or emotional support animals. Again because the concept or the rationale behind it is the animal is there not as a pet, but as an accommodation, assistive device you would no more impose a fee for using a wheelchair that you would a service animal. That would be a denial of equal treatment.
Caller: This is Carol from Great Lakes ADA Center. I think this question would be for everyone to understand when as either an an advocate or somebody from a governmental setting that is asked by a consumer what to do in the event that they are being denied the access to a facility, say a business owner, how do they best proceed in order to gain the access? Do they have to call the police? They obviously don’t have to provide any kind of certification, because there isn’t any. But what would they have to do?
Philip Breen: You know, it’s a tough situation, obviously. A lot of times you are dealing with someone with a really bad attitude who is probably not all that disposed to be listening to you. One thing you can do is carry around a copy of the Department of Justice’s guidance on service animals, there is a technical assistance document that is on our web site.
You can present that to a business owner that that may help. I’m not saying that everyone has a bad attitude, many times there just is not an awareness of the ADA‘s requirements. So that could help. I guess if you are really in a bind, you can try to get the support of the police and hopefully you will get a police officer who has been trained in the ADA and understands your rights as a person with a disability and just doesn’t view it as a trespass situation.
Caller: Hi. I would like to know how does the ADA and the fair housing address the issue of service animals in training? Where they are allowed to go? Are there any restrictions because they are in training?
Philip Breen: We have been consistent in interpreting the ADA not to apply its protections to the animals that are in training. The protections go to people with disabilities and their animals. So this question has been asked quite frequently and it is clearly an issue because animals have to be trained and do have to go to a lot of different situations. But they really don’t have the same rights when they are just a trainee as they do when they are finally a service animal with a person with a disability.
Herb Ziegeldorf: If I could respond in terms of residential housing under the Fair Housing Act and Section 504 of the Rehab Act, we haven’t reached that degree of clarity. We would treat it as an issue of fact. Remember when dealing with housing we are talking longer term relationships, not the intransient relationship of going to a store, having access to a public accommodation.
So it’s going to be a question of fact, if during the training period the animal can perform some functions and it’s reasonably predictable that at a certain level the animal will become functional, we would probably expect a landlord to at least look to that and offer a little bit of slack now. If the animal is going to become a nuisance in the process, that’s going to be another question. I hate to put it in this context, but reasonable accommodation is often an issue of fact and if during the training period factually the animal is making progress and becoming more effective in doing the services it’s eventually going to perform, that landlord might be required to keep that animal.
But if indeed the training is much more extended requires removal, the animal goes through disruptive phases, under those circumstances, that animal may may not have the protections of a service animal. It’s going to be an issue of fact and the first thing if we hear a complaint we would ask the landlord for some tolerance or some slack, but if there is clearly a problem, then indeed it may not be entitled to the protections of a service animal.
Philip Breen: There is training that goes on before the animal is assigned to a person with a disability. There is training that goes on after the assignment. So the period when the ADA knows afford its protection is during that period before the animal is assigned when it’s just being trained by someone in general. Once the person with a disability is using the animal, then they are protected.
Herb Ziegeldorf: Could I just add to that, it makes I think an important point between federal law and the accessibility/disability rights laws of various states. The federal Federal Fair Housing Act and Section 504 of the Rehab Act do not require formal certification or training.
So if someone is able to self train or through associate is able to train the animal to be functional and it has to meet that standard of functionality and be effective in meeting the needs and providing services to the resident, if that’s an effective way and that’s an achievable way of doing that, that situation would put us in that gray area of maybe the animal is covered, maybe it’s not, depending on the facts. Again the federal Fair Housing Act does not require that a formal certification or that preliminary formal training.
It’s a question of functional training and fact. And there is no question I think if it has the formal training perhaps it gives you a greater degree of confidence and reliability that the animal can do what it will be capable of doing, but we do have to leave open the room for self training or more informal training.
Philip Breen: Let me say the ADA also recognizes that, formal training is not required. The question frequently comes up from organizations in the business of training service animals, the answer is clear for that particular context
Jennifer Skulski: We have an on line question from Sandy, she has a lot of them, so I will try to get at least one of them. What do you do in a situation where you might have an environment with a service animal that might actually be causing an allergic reaction for another participant, maybe like being at a conference where you might have people sitting close to each other and so forth? What do you recommend in that type of situation?
Philip Breen: I recommend a lot of common sense and understanding in those situations. I mean, you can analyze this legally and then you can analyze this from the perspective from common sense. Legally the person with the service animal is clearly a person with a disability. The person who has the allergy may or may not be a person with a disability and that’s become a very complicated question after what the Supreme Court has been interpreting the law.
So in some cases if the person has a very severe allergy they may be protected by the statute in which case they are also entitled to have modifications made to allow them to participate, which may mean the person with the service animal should move legally speaking, but it may be the person with the allergy doesn’t have a severe enough allergy to be a disability under the ADA in which case they wouldn’t have that reasonable modification right.
So it would be the person with the service animal who wouldn’t have to move and the other person with the allergy would have to move. Clearly, how that works out if you litigated it and went to court, who knows. The reality is dealing with the real situation in front of you clearly some adjustments should be made in the environment to accommodate people. Common sense.
Caller: A point of clarification here. My name is Mark, I’m a person who is blind I travel with a dog guide. My point of clarification will probably sounds like a commercial, I’m hearing a lot of the terminology “seeing eye dog” thrown out there in general. I just like to point out that that is one of many dog guide schools, ten plus, throughout the United States, and that’s their copy written name and logo and I think it’s typical in society when you see a person who is blind and a dog guide people just jump to the conclusion and call it a seeing eye dog, but I would like to point that out, there are a variety of different schools and that’s just one of them.
Jennifer Skulski: Good, thank you.
Caller: This is Judy at the center for independent living. I have been gathering and posting information on a web page about emergency shelters and disasters and people with disabilities. The area of service animals isn’t clear to me. Two part question, what are the legal requirements on emergency shelters accepting service animals and what’s the actuality? What’s the actual practice both for Red Cross emergency centers and other kinds of municipal disaster relief centers?
What are they actually doing for people? Herb Ziegeldorf: Let me touch on that. I think I alluded to it a little bit previously. First of all, there is the whole question are emergency shelters covered under the federal Fair Housing Act, clearly if it’s six month, two-year transitional living, they are covered. Even though emergency shelters probably aren’t covered under the federal Fair Housing Act they invariably get some money somewhere from the federal government and typically HUD for the various McKinney Act anti-homelessness programs.
Through that, we actually get some pretty tough questions and cases occasionally come up along those lines, too. The legal constraints are they would have to accept that animal as a reasonable accommodation unless they can show, that’s why it’s a reasonable accommodation not an absolute accommodation, typically reasonable means is it going to be an undue financial administrative program or is it going to be a fundamental program alteration.
Clearly their job is to provide emergency shelter to people however they come, whatever their characteristics of the consumer. So I think it’s pretty remote they could avail themselves of that particular kind of defense. But could they make a showing it would be an undue financial administrative burden? Maybe yes, maybe no. It’s a tough question. Occasionally we do get complaints and we do look at it typically under Section 504 of the Rehab Act and ultimately we will be asking it could be some sort of communal setting, I think of men’s emergency shelters that would look to whatever physical characteristics of the shelter arrangements and why can’t it accommodate a service animal. That at the absolute minimum, I will preface by saying they could make a case as to why physically things are too tight and too constrained, are there alternatives near by?
In urban areas it would be difficult to say there is not an alternative shelter that could accommodate a service animal. The tougher case is in more rural areas where that particular shelter would be the only available facility for maybe 15-20 miles. And in that particular case the shelter provider would have the opportunity to make their case as to why it’s an undue financial administrative burden. But we would really push them to the task of saying, to make the case, it would be incumbent on the shelter provider to make that defense.
Practically speaking we are always urging our recipients of funding to take that into account, they are obliged to do self-evaluation and some sort of assessment as to how they provide their facilities to the public in a manner that doesn’t discriminate on the basis of disability, which includes providing opportunities for accommodation. Does it add squarely on there is a shelter and it is clearly denying by virtue of presenting him or herself with a service animal, that person should definitely file a complaint with us.
Philip Breen: Shelters would also be covered under the ADA as a social service center establishment, one of the 12 categories of public accommodations. In most situations the operator of a shelter would be hard pressed to win on the defense of undue burden. One of the things service animals are trained to do is to curl up and not take up very much room. So space it seems is not generally going to be a winning defense unless it’s under the most extraordinary kinds of circumstances. I think the general presumption would apply that the service animal should be accepted along with the person with disability unless there is really something extraordinary going on there.
Herb Ziegeldorf: To add to that under Section 504 that shelter would also have the responsibility of providing program accessibility and having thought of this in advance and having worked out something and being able to provide for the situation of someone who again has a service animal and seeks the use of the emergency shelter.
Caller: Yes, my question is in listening to you this past 55 minutes it seems that if an individual trains their own dog as an emotional support, that that would be a certified trained dog? We have a local mobile home place, the renting, they want to charge $500 fine, any evidence that the pet or animal were used in the unit. In approaching that would a service animal or emotional support animal, what documentation would the individual need? Would the medical certification from the doctor stating that it was necessary and effective? Or just the individual saying they had trained their dog to help them get out of bed or whatever the necessity would be?
Herb Ziegeldorf: I’m hearing two parts, it sounds like you have both a service animal and certainly the federal Fair Housing Act or the Rehab Act you can self train your animal. That’s acceptable. Certainly. Because if it’s helping a person get out of bed, and is actually providing that service, and that is a manifestation of a disabling condition, that sounds like it is getting close to being a service animal. A pure emotional support animal, in terms of actual services, outside of being there, there is nothing really to train for, that’s why the issue comes up that there might be reasonable restrictions in terms of the dog not disturbing neighbors, for example, because most likely this particular animal hasn’t had any formal training along those lines. It has to meet those other characteristics of not being a nuisance to other neighbors, but as long as it fills that kind of threshold, a true emotional support animal, there isn’t anything to train for. That is why I touched on that one case that was confused, unfortunately it was a state Supreme Court case.
Caller: Hi. This is Stephanie from U.S. Department of Health and Human Services, Philip. As I told you before, we have a couple of service animals cases in our office. And since I last spoke with you I have a specific policy for one of the hospitals. My concern about that hospital is that while its policies and procedures meet the standards they still don’t specify under what circumstances or what places the service animal will not be allowed to go within the hospital. Without that, because hospitals are such large institutions, I believe there is still an opportunity to discriminate.
And just to remind you one of the cases a man presented at the emergency room with a service animal, he was not allowed to come in, he was told that he needed to make arrangements for somebody to pick up the the animal. He was not examined. My question to you is this: Do you recommend that hospitals have specific policies setting out where people with service animals may go with the animal or particular settings like you talked about if a person is in intensive care and can not attend to the service animal’s needs? Do you think it’s better for the hospital to specify or just have this nebulous policy, kind of leave it up to staff to interpret? My point is in my case I don’t think the problem is really with them.
Philip Breen: I think nebulous is a bad policy. The hospital should get its act together and should, just like every other entity and do what used to be called self-evaluation under Section 504, just taking prudent action to figure out all the different context in the hospital where people go, people from the public go, where patients go and really delineate a policy for each one of those settings. As I said, in most settings the service animal is going to be able to go.
There is not going to be a medical reason to exclude the animal. But for those few areas where they are going to likely be excluded, areas where they need to look at, probably the surgical suite, intensive care, depending on how it’s organized, burn units, there are certain functions of the hospital where special precautions are taken by anyone going into that area and those are ones that are really going to have to be looked at. The hospital, in order just to be wise and protect itself under theADA, but also to afford people their rights really should do a careful analysis of each setting. And there should be medical people making the decisions and making those decisions in light of the knowledge of the ADA. To just say it’s the medical people have to make the decisions, that’s not enough. Because a lot of times they really aren’t that aware of what their ADA obligations are. It needs to be an educated medical judgment.
Jennifer Skulski: Well, we are coming up on the close of our hour, and there are more questions coming in and I can tell we could talk about this for hours and the different nuances of service animals in different types of environments, and so forth. Unfortunately we do have to come to a close. I will throw it back to each of you if you have a brief closing comment for us.
Philip Breen: Thanks again for the opportunity to participate in this discussion. It always raises interesting questions and I know there are many, many more interesting and difficult questions out there. As we have seen, there are basic principles to be applied to these situations they don’t necessarily answer every question, but if we can at least know what the basic principles are, we can move forward and I think this is such an important area of ADA compliance and it is an area where with the right amount of understanding and good will on the part of people we can really see tremendous progress. I think we have seen it already and I think we can go a lot further. The medical context is one where I think a lot of work still needs to be done in terms of educating people and getting people to take the appropriate steps.
Herb Ziegeldorf: On behalf of HUD I would very much like to express my appreciation just for having this opportunity to join in in this Distance Learning Program. It’s our obligation to communicate the requirements and the rights under the federal Fair Housing Act and Section 504 of the Rehabilitation Act and under the Title II of the ADA, we do have very, very limited responsibilities, but responsibilities nevertheless.
Just by way of sort of summing up, I would say under the federal law although it doesn’t require that a service animal receive formal training or certification, if the opportunity present itself, it’s clearly the best evidence that the animal can do what it purports to do and meet that particular consumer’s needs. Finally, we see this all the time, in just in communicating that request for accommodation, that tends to be the weak point when we actually get a complaint and I always suggest to consumers put it in writing to the housing provider, explain what it is you need, and give that housing provider a reasonable chance to respond to it.
And if it’s a matter of changes in policies and practices, that’s what we are talking about, because what’s at issue in residential housing is a no pets policy. Ten days maximum of two weeks is reasonable time and if there still is no response or no positive response from the landlord, that’s the time to consider filing a complaint with us.
Jennifer Skulski: Well, thank you both so much for taking time out of your day to join us. We very much appreciate it. We have a little joke when it comes to presentations by the federal enforcement agencies. As I am sure you are aware of, usually when you ask them a question you get one of three answers either: yes, no, or it depends. So I would like to honor both of you, I will probably send you a little plaque for keeping your “it depends” answers to a minimum. We certainly appreciate that.
Philip Breen: It means we will get in trouble tomorrow.
Herb Ziegeldorf: Exactly. I came out with only one it depends.
Jennifer Skulski: We will go back and add a couple to the transcript for you. Thank you both for taking your time and trying to tackle some of those tough questions with us. We would like to thank all of you at the sites for joining us today, you are the reason that this program happens and we look forward to providing you with next month’s session May 21st, when we will have Adele Rapport from the EEOC, she will talk to us about the application of ADA to temporary workers.
So we hope you will join us for that session. As a reminder the 2002 ADA Distance Learning schedule is posted to the Great Lakes web site at www.adagreatlakes.org In the event that you have more questions about the ADA or upcoming sessions, please call your regional Disability and Business Technical Assistance Center at (800) 949-4232. Thanks for joining us today.