STAYING OUT OF THE DOG HOUSE:
Service Animals and Assistance Animals
Under the ADA, Section 504, and
the Fair Housing Act
Irene Bowen
L. Scott Lissner
Jeanine Worden
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The content provided in this presentation is
for informational purposes only. Neither the
content nor delivery of the content is or shall
be deemed to be legal advice or a legal
opinion. The audience cannot rely on the
content delivered as applicable to any
circumstance or fact pattern. The information
provided is not a substitute for professional
legal advice.
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The American with Disabilities Act
and service animals
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DOJ’s new ADA regulations
• Issued July 26, 2010
• Updates to 1991/1994 regulations under titles
II (28 C.F.R. part 35) and III (28 C.F.R. part 36)
• Two parts
– Policy changes
– New accessibility standards
• Regulations and guidance are at www.ada.gov
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ADA principle:
Reasonable modifications
Entity must make reasonable modifications in
policies where necessary to avoid discrimination.
28 CFR 35.130 (b) (7).
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Service animal: definition
A dog that does work
or performs tasks
for the benefit of an
individual with a disability
(including psychiatric,
cognitive, mental)
28 CFR 35.104, 38 CFR 36.104.
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Examples of tasks
• Assist during seizure
• Retrieve medicine
or other items
• Help individual with
dissociative
identity disorder to
remain grounded
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…Examples of tasks
• Prevent/interrupt
impulsive or
destructive behavior
• Assist with balance,
stability
• Provide non-violent
protection or rescue
work
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Emotional support/comfort?
If this is the only function,
not considered a
service animal
Dilip Vishwanat/Getty Images, for The New York Times
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Can ask only two questions
• Is this service animal required because of a
disability?
• What work or tasks is the animal trained to
perform?
Can’t ask about disability.
28 CFR 35.136, 38 CFR 36.302(c).
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Service animals under control(s)?
pawluxury.blogspot.com
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Other issues
• An entity can exclude a service animal if -• it is not controlled or
• it is not housebroken.
• Entity is not responsible for care or
supervision.
• No “service animal” license or
documentation required.
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And listen up!
• No deposits can be required (beyond the
usual)
– But individual is responsible for damage beyond
usual wear and tear
• No intrusive inquiries about disability or
diagnosis
• State and local requirements may
encompass other types of animals
• Can consider allergies of other people with
disabilities
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Other laws
• Other laws or codes may call for
admission of animals -• Other than dogs
• That provide emotional support
or comfort
• Higher education and housing:
FHAA and section 504
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Miniature Horses
• Exception to “a dog” is allowed, limits may be set
• Determine policy in advance based on:
– Individually trained
– Handler’s control
– Housebroken
– Size/Weight in context
– Legitimate safety
requirements of
specific facility
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Policy & Practice
• General Policy
– Work or tasks for individual with disabilities
– Includes people with various types of disabilities
– Not emotional support animals (point to reasonable
accommodation process)
– Control and care by handler
– Locations of rest areas
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Staff Directives and Training
Permissible inquiries
Types of task
No documentation
Allow handler even if animal is excluded
Particular considerations, e.g., health care
Examples of situations
“Control” issues
Who makes decision
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Other Laws & Requirements
• FHAA , ACAA & Section 504 regulations
not limited to “Service Dogs”
– Therapy, Emotional Support, Psychological
support,… Animals as a reasonable
accommodation.
– Follows accommodation process
– Allows verification
• State/Local requirements
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ADA One Resources
Two articles from AHEAD’s newsletter
• The Ides of March are upon us: Are you complying
with DOJ’s new regulations about service animals?
http://ada-one.com/articles-tips/ahead-of-theada-access-curve-part-5/
• A Case of a Different Animal: DOJ’s lawsuit against
the University of Nebraska about emotional
assistance animals
http://ada-one.com/articles-tips/ahead-of-theada-access-curve-part-8/
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DOJ Resources
• DOJ ADA Requirements: Service Animals
– http://www.ada.gov/service_animals_2010.htm
– http://www.ada.gov/service_animals_2010.pdf
DOJ web site: www.ada.gov
DOJ information line: 800 - 514 - 0301 (voice)
800 - 514 - 0383 (TTY)
ADA TA Centers: 800-949-4232 (Voice/TTY)
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Fair Housing Act
Access for Individuals Who Use
Assistance Animals
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Assistance Animals
• Provide support, assistance or service
(dog, cat, bird, or other animal)
• Include emotional support or therapy
animals
• May be trained or untrained
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Animal Qualifies If …
• Individual has disability, as defined in Fair
Housing Act or Section 504 of Rehabilitation
Act,
• Animal needed to assist with disability, and
• Relationship between disability and assistance
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Applying the principles …
• Written application may not be required
• Process should be easy and quick
• Credible evidence from individual or note
from doctor or other medical or social service
professional
• No fee, deposit, insurance, hold harmless
agreement, extra inspections, “pet rules,”
veterinary certificates, or special conditions
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What Are the Limits?
• Individual responsible for maintaining
and controlling animal
• Access to housing and indoor and
outdoor public and common use areas
associated with housing
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Bases for Denial or Exclusion
• Direct Threat (individualized assessment
based on recent credible, objective
evidence relating to specific animal)
• Undue Financial and Administrative
Burden
• Fundamental Alteration
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More Information
• U.S. Department of Housing and Urban
Development and U.S. Department of Justice:
Joint Statement on Reasonable
Accommodations under the Fair Housing Act,
www.hud.gov/offices/fheo/library/huddojstate
ment.pdf
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CCONTACTACT:
Irene Bowen, J.D.
President, ADA One
9 Montvale Court
Silver Spring, MD 20904
http://ADA-One.com
IreneBowen@ADA-One.com
301 879 4542 (O)
301 236 0754 (F)
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CONTACT
L. Scott Lissner,
ADA Coordinator, The Ohio State University
Office of Diversity And Inclusion
281 West Lane Ave.
Columbus, OH 43210
Lissner.2@OSU.EDU Http://ada.osu.edu
(614) 292-6207(v); (614) 688-8605(tty)
(614) 688-3665(fax)
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CONTACT
Jeanine Worden
Associate General Counsel for Fair Housing
U.S. Dept. of Housing and Urban Development
Office of the General Counsel
Washington, D.C.
202-402-5188
jeanine.worden@hud.gov
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And now, to the panel
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