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Animals in the Service of People: Sense and Nonsense on Lawful Uses of Assistance Animals

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Animals in the Service of People: Sense and Nonsense on Lawful Uses of Assistance Animals

Whether it is the Yorkshire terrier in the carrier on the airplane or the emotional support rat on the shopper’s shoulder in the grocery store, one encounters people insisting on and resisting about the use of animals to assist them with a variety of activities in the world. What are the allowable options in that regard? What does the law permit, what does the law prohibit, and what does the law simply not pay attention to at all when it comes to the service animal, the assistance animal, or the emotional support animal in a public setting. This seminar examines both the sense and the nonsense of not just the players involved but the rules that are imposed on those players – which can include not simply the animal owner but the merchant, bystander, government agent, and affected consumer as well. We do so by ferreting out the scope of regulations across jurisdictions, by specifying the questions that can and cannot be asked of certain participants, and by trying to glean what rationalizations lay behind protections and penalties in the use and abuse of dogs, cats, rabbits, horses and other animals in the service of people.

Presenters

Geordie Duckler
Attorney
The Animal Law Practice

Transcript

Geordie Duckler: Good afternoon, my name is Geordie Duckler, I will be doing a presentation for you today on a topic called the animals in the service of people, sense and nonsense unlawful uses of assistance animals. And this is a seminar which I am fairly familiar with this topic. I've been an attorney for 34 years doing exclusively animal related cases. I've had innumerable cases that involve persons with a disability, persons using and abusing assistance animals and the state and federal statutes in the cases that come up in that type of litigation. So I thought that this afternoon we would look over the general and the specific about those types of rules and see how they're employed and how they might be manipulated. And in doing that, I'm going to assume the audience has a pretty good general understanding certainly of animals and maybe even of this basic area and of the idea of the use of assistance animals.

Certainly, it's apparent to everybody that we've been using animals as assisting devices for centuries from before historic time, back into prehistoric time and on just as examples. You can certainly look through history to see examples of the uses of animals as tools, as weapons, as devices. Horseback riding alone is mentioned throughout history, including simply as a cure for sicknesses like gout and depression. Guide dog use began quite a bit back in historic time in the early 1920s in Germany for World War I veterans who had lost their sight. In the late 20s, Seeing Eye organizations developed in the United States for guide dogs. And the formal training of guide dogs does only date back 75 years or so, but it has in the last several decades become widespread. There are numerous groups raising and training dogs primarily for assistance for people. Canine Companions for Independence was the group that pioneered the concept of the service dog. Highly trained canine used to assist people, that was back in 1975.

There was a focus primarily on certain types of disabilities, muscular dystrophy, multiple sclerosis, cerebral palsy, some abnormalities. And in the late 70s, about 79, the first trained monkey assistance animal was developed by Dr. Willard a behavioral psychologist and Judi Zazula an occupational therapist, again, for patients with specific muscular problems, including quadriplegics. Now, that's obviously abbreviated history. But the social and regulatory environment for using animals as assistance tools has become very complex even in the last 10 years. And there is considerable confusion, there is some social conflict in the area. And a lot of it both begins and ends with taxonomy, with the idea of what terms and definitions are we using to call either the animals or the people involved with animals. And do those terms, what basis do those have in either the law or in social interactions or in history?

If you think of the impressive number of adjectives that are currently bandied about in this area, many of them are familiar and familiarly used as colloquialisms. Some of them seem like synonyms of the others and some of them seem like they just have no definition at all. Let me recite for you a short list. There is of course the word service, assistance, support, guide, seeing eye, hearing, mobility assistance, seizure alert, working, therapy, visitation, emotional support. These are obviously adjectives primarily, they modify only a couple nouns. And there are various labels given to those nouns which are almost always dogs but not exclusively. The inconsistency in that taxonomy has definitely created confusion. Confusion among consumers, professionals, researchers, politicians, regulatory agencies, policy makers. There really isn't as of this year 2021 any standard or universally accepted taxonomy that has actually emerged from all that usage.

Confusion arises often with the use of multiple labels for animals performing the same function. A dog that visits an individual in a nursing home or a hospital is sometimes called a therapy dog, sometimes a visitation dog, sometimes something entirely different. And yet it often can be the same dog doing the same task. Likewise, several different terms have become popular to describe the variety of assistances that an animal, again, primarily a dog can provide for individuals, including individuals with psychiatric impairments. You often hear, again, of therapy dogs and emotional support dogs. But more unfamiliarly, pet adjuncts and pet helpers. In a reviews of animal assisted therapy, there may be as many as 20 different definitions, 12 different terms, including terms that involve psychotherapy, pet-oriented therapy, animal recreation, a host of others.

These labels can be misleading. The use of the term therapy dog for a dog that visits a nursing home to provide comfort and support is in a sense misleading because these types of animal visitation programs don't really constitute therapy in the actual medical sense of the word. Therapy being the treatment of a disease or disorder or of a bodily, mentally, mental or behavioral disorder. When we distinguish therapy from other events that have positive emotional effects, it really shouldn't be concluded that any event enjoyed by a patient is therapy. For one thing, ice cream and movies and children and electronic games, those produce positive emotional responses in many sorts of patients, but we don't necessarily call any of those things therapeutic in the scientific sense. So individuals involved in what might be described as dog therapy, in a sense suggesting that this is the use of an assistance or a service animal can't really claim to be doing anything that therapy does like diagnose or change the course of a disease.

It's not a whole lot different than referring to a circus clown's visit to a pediatric hospital as clown assisted therapy. Something we wouldn't do. And yet this idea that because it's a dog and it's making some sort of beneficial effect on the patient, we seem to think that that is an assistance animal in some, again, colloquial sense. The vocabulary that I've listed for you is also inconsistent across jurisdictional boundaries if you look at federal and state statutes, which we are going to be doing pertaining to the rights of individuals, the access to public spaces. There are definitions that seem to be at cross purposes as to what service or assistance animals are. We're going to be looking at the Americans with Disabilities Act, the ADA and thinking about the types of activities, may not involve physical actions, but may involve some behaviors that are tasks that need to be examples of work and yet may not be examples of assistance.

And we're going to be looking at if the dog or the other animal has its sole function of emotional support and nothing else, where do those animals and those tasks in a sense fit into the scheme? We're going to be looking at definitions not just in the ADA but in other areas, including public housing and transportation. And again, we will note that definitions sometimes are vague, they certainly conflict. They sometimes permit access, they sometimes restrict access. And logically, those aren't necessarily accesses that have disability related needs for support to them. In the states as opposed to the federal government, there are many states that have rules, not all states that have logically based or medically based rules. Many states' rules definitely conflict with other states' rules.

There are 10 states, Alaska, Arizona, Colorado, Georgia, Idaho, Louisiana, Massachusetts, Ohio, Oklahoma, and Oregon in which the term service animals is used. They're only classified as dogs that assist individuals with physical disabilities. There are no provisions there for dogs that assist individuals with psychiatric disorders. There are seven states, California, Maine, Maryland, New Jersey, North Dakota, Utah, and West Virginia that includes some minimal protections as a qualifying task for service dogs. As in the crime deterrent effects of an animal's presence don't constitute a work or a task. So the attempt is made to select out dogs that might assist, let's say with law enforcement or forensics from animals that are helping individuals with medical problems.

Labels used to identify animals that assist are inconsistent. There are certainly service dog statutes, assistance dog statutes. And two states, Delaware and Iowa used the word support dog. And again, a definition that seems to be somewhat inconsistent with how those definitions are used in federal law. A comparison of the codes and the statutes using those words reveals that certain factors repeatedly arise as to what goals these adjectives are actually trying to accomplish. Certainly the first and core factor that we're going to be attempting to answer is what helps differentiate the function of an animal as a device. That leads us to whether the animal provides a form of help to an individual that is tightly connected to the obstacles, the burdens that that individual's disability is actually creating for them situationally.

Tat focus is returned to again and again in winnowing out uses from abuses. And it's why service and assistance, those two tool related modifiers seem to always pop up again and again as the most applicable. The second factor is whether the assistance or the support provided by the animal requires something of the animal itself not just a basic skill level that say that all dogs or monkeys or horses have, but some advanced set of skills that dogs normally don't have. We understand very well about basic skills that are synonymous with basic obedience, sitting, staying, lying down, walking on a leash, coming when called, accepting a stranger as friendly, reacting appropriately to a distraction.

These types of actions don't seem advanced in any real sense in a way that we think of dog behavior being. We sometimes look as our second factor for something more specific, more special, more specialized as to what the animal can actually do. A third factor is whether a public service or a military or healthcare professional uses the animal to assist in some public service task or health-related treatment plan. In other words, if it's too privately used by the owner and the animal owner interaction is too, in a sense, private, if there's no public aspect, we get uncomfortable as considering it to be some legislatively protected activity. We often look to those conducting their job according to standards, let's say professional standards or accepted practices.

Firefighters, for instance, police officers, EMTs, public safety workers, if what they are doing in a sense is something that enables the dog to be a tool to conduct those jobs according to those standards, it gives us a higher comfort level that perhaps the skilled dog and the disabled person are doing something that has a public effect in some public level of control. Other concerns arise, certainly formalizing and memorializing the rules is important when we try and make consistent policies and forcible across social groups. So we have to often ask whether there is a certification available to help guide the training or the use of the assistance animal. Something that seems more objective than subjective as to what the animal does. Certainly, certifications and training standards exist. And some have been promulgated by service dog organizations or advocacy organizations, but they often are only for voluntary compliance. There seems to be nothing required to be done.

And forcing certification to be a mandatory requirement for use of a service or assistance animal sometimes makes us uncomfortable in that it begins to impinge on competing concerns we might have about personal privacy or equal protection of the disabled. So look at some of those themes, they seem to circle around the idea of opportunity and certainly equal opportunity and access, and certainly equal access and benefits as opposed to risks. Those are very general themes for us. Equal opportunity as lawyers we know is the principle that access to educational employment, other important societal benefits shouldn't be based on some immutable trait of an individual on a stereotype or on some completely irrelevant characteristic. So to analyze those elements in that theme, we've got to look at access to social benefits and individual traits and characteristics.

When we think of normal devices that often disabled people use, a cane or a wheelchair, we see that the law has developed that those devices are considered part of the person not a whole lot different than the leg or the arm. And they're primarily deemed irrelevant characteristics just like legs and arms often are for people. They wouldn't support a valid basis on which to deny equal access about the presence or the absence of a leg or an arm. And since assistance animals are functionally similar to devices like canes and wheelchairs, we try and apply the same reasoning. Now, to help us go through the next set of themes and rules, I want to play a little game. And we can call it a thought experiment. Certainly if you wish, you can grab a pencil and mark some things down. But alternatively, you can simply listen closely as I talk and keep some terms in your head. I think you can do that as an attorney.

And in our thought experiment, we're going to play a version of the game clue. As a child, you probably, or a young person, you probably are aware clue is a game in which players try to reveal the solution to a thorny fictional murder using the confluence of three things, a person, a weapon, and a room. And as they traipse around the board, the players try and put those three things in some sort of conjunction to determine the answer to a puzzle. So the game I'm going to propose is an analogous game. We'll call it, let's say, reasonable accommodation clue. We're going to be players trying to reveal the solution to a thorny access problem. And we're going to use the confluence of three things as well, an animal, a task, and a location. All part of our theme that we have been trying to develop in terms of what service or assistance animals might do or be needed for by a disabled person.

So let's consider some tasks. How about these tasks, either think of them or write them down. Pushing open a door, calming anxiety, retrieving an object, alerting to danger, signaling to start or stop an activity or guiding someone to safety. Those seem like fairly important core tasks, those six as to things that a person might need. How about these locations, think of these six locations. Again, this is our reasonable accommodation clue game we're playing in our heads. You can think of a movie theater, an airport, a restaurant, a hotel, a shopping mall, and a nightclub. Again, fairly straightforward locations that you certainly find people. And you might find an animal.

Finally, let's consider some animals. I'll try and choose six as fairly pedestrian types of animals that people would be familiar with or aware of. And let's think of them. We already have talked about dogs, so let's leave those off our list for a minute and think of these six. A hamster, those cute furry things in a cage. A rabbit, you're familiar with those. Certainly a monkey, you would know what those are. A Guinea pig, slightly larger and squeaky earth than a hamster, let's say. And a possum, you might have seen one of those by the side of the road. And a parrot, a fairly familiar type of bird from a pet store.

Think of those tasks, those types of things that a person might need help with. Those locations, a place where a person certainly would be normally. And those animals, some fairly standard types of animals we're familiar with in our day-to-day existence. So here's our first thought experiment, I think we're only going to do two. Imagine an animal trainer who is really good at their job, and that trainer is hired to train one of the animals to do one of the tasks. You can choose any of the animals, you can choose any of the tasks. And when you try and make that connection, again, you're imagining a trainer, terrific animal trainer, really good at training. Think is it easy or hard for the trainer to train the animal you've selected for the tasks you've selected? Think, can that type of training be done by anyone? Can it be done by only a skilled animal trainer? Can it be done at all?

That's our first thought experiment, hold on to some of those ideas for a minute. Here's a second thought experiment. Let's imagine an architect, a person who is very good at their job designing and building some sort of structure. And they've been hired to design some alteration to one of the locations. Remember our locations, the movie theater, the nightclubs, those things. And the alteration would enable someone to use one of the animals to engage in one of the tasks. So again, in our clue game, we're binding together our location, our animal, and our task. And we're using a great architect to help us do that. Again, is that easy? Is that hard? Can that alteration to the location be done by anyone? Can it only be done by a very skilled architect? Can it be done at all?

Try and place those things in your mind as to the task and the location being altered. I want you to notice a couple things. Notice in our first experiment, the answer depends almost exclusively on the animal you select, the hamster or the monkey or some of the other animal. Accomplishing number two on the other hand depends heavily on the task that you select not so much the animal. Does either, what we did with our first sort of experiment or our second one depend on the location? Does it really matter which location you selected? If we think about the nexus between the task and the location or the animal and the location, is there a significant connection? In other words, can all task be accomplished in spite of where they're being accomplished? And alternatively, can all animals engage in tasks in spite of where they're located?

Now, it seems fun to play a game, but of course we need to learn something in the seminar. And there's a reason for my thought experiments. And the reason is they seem to me anyway to reveal three real-world obstacles when we talk about assistance animals and service animals. One, training an animal is a critical element of making any accommodation for that use the animal really work. I think we can understand that from the game. Two animal types, of courses as non-scientists we can use that word. We'll ignore the scientific word species for our purposes. But animal types are a critical element of making an accommodation truly work as well. Three, the places themselves are in most content semi specific, and they really aren't that critical to making any sort of accomodation work for a task for disability purposes.

When we think of it, buildings and structures and human constructed locales, those are very plastic, very fluid things. They can be manipulated quite a bit if you have the money and the time to do it. Animals however, and animal behaviors aren't that fluid. They are a little bit fluid, but they are much more rigid and constrained. All the money and all the time in the world aren't going to help you train a hamster to do a certain thing that hamsters just are never going to be able to do. And we think of how regimented and restrictive animals are, which canes and the wheelchairs and other devices and structures are not in addressing the competing needs of, let's say, the disabled person and another citizen or a business. Accommodation requirements which neglect the rigidity of animal behavior, which may be focused only on the fluidity of material constructions will lead us into very real problems, and those problems exist today.

Now, certainly we can think of benefits to assistance animals over a variety of environments. In the workplace, they can certainly positively affect the support of a disabled person. They seem to improve often the productivity, psychological health of an employee. They simply increase attractiveness of a number of workplaces depending on the workplace, and of course depending on the animal. Those positive effects often get moderated of course by slightly more negative effects. There are potential ones, including allergies that people might have, phobias that certainly many people have, disruptions, just the standard disruption of seeing or having an animal in, let's say, a workplace or a public place in which there hasn't been traditionally an animal in that location before regardless of the task they're doing.

So as lawyers, one thing that we need to be focusing on in terms of the assistance animal is what parameters would we set and what criteria do we need to use to determine to keep things within those parameters? So in other words, we're doing what lawyers often do. We focus on detailing out the specific rules of a game and at the same time leveling the playing field by preventing undue hardship on the other players, the bystanders. Now, as politicians, it's crucial for us to be doing a second thing, which is determining violations and setting penalties. There our focus is on imparting a real value to playing by such rules by enforcing, let's say, an equal opportunity. And as a big role for us, to punish those who don't follow them. So let's think of the broadest definitions for the animal and the location and the task and the broadest protections we're interested in.

Certainly, if we think of the animal, we can think of any animal in the sense we don't care what type as long as it is individually trained, trained to perform a very specific task. And the task relates directly to the disability, that seems to be the importance. We can think of any disability, we don't particularly care which one as long as it has some sort of medical support and that it's an objectively diagnosed or determined. And that of course importantly, it requires assistance of some type. There are plenty of disabilities in which an assistance doesn't help or happen. So we would need to have something connected between the disability and the assistance request. And then our broadest definition of an accommodation and of a protection for is anything as long as, one, it's not unsafe or unhealthy. Two, it doesn't fundamentally alter some locations, some business. Three, it doesn't unduly burden the other people that might be using the location and the business. And four, it doesn't violate important protected rights we're already aware of.

So generally, a guide dog, a hearing dog, a service animal, an assistance animal, they're often permitted to accompany a disabled owner everywhere that any other member of the public is allowed to go. There are a few exceptions. But a member of the public might be permitted in the dining area of a restaurant but not in the kitchen, so therefore an assistance animal might be permitted in a dining area of a restaurant but not in the kitchen. It's also important to note that there are handlers, people who are not the disabled and yet who are training or handling the animal to assist the disabled who might themselves need access rights. So a guide dog without a handler may have no particular access right, and neither does, let's say, a hearing dog or other service dog without a handler. And yet, the handler has to be in a sense accommodated as well.

When we think of locations specifically the service animal might be excluded from, certainly again keeping in mind our other balancing and competing concerns, the idea of sterile rooms like an operating room or an emergency room or the inside of an ambulance or a delivery room. Clean rooms where certain manufacturing processes go on, places where food is prepared, open air zoological exhibits, let's say, where other animals might be in nearby presence. Certainly in courtrooms, in prison cells, in private areas at the discretion of the owner. There may be certain locations in which, yes, they seem to be public but there are very specific reasons why any animal, assistance or otherwise should not be in them. Now, we are aware I think that businesses are permitted to ask certain things. At the end of the seminar, we'll go through quite a specific list as to whether the animal is a service animal, what tasks it might be trained to perform that a handler cannot do for themselves.

But we also are aware that businesses aren't allowed to pry further, to ask, let's say, for information about the specific nature of the disability itself or other invasive related questions. Often some animals where things seem to signal to us that the animal is special or that the task is special, there are often guide dogs wearing special other harnesses, owners using special types of leashes or special types of gear. But there's no rule that requires either a special marketing or a special paraphernalia like a vest or a cloak. Gear in the sense doesn't make an animal into a service animal. Of course, we know plenty of unscrupulous types who might sell that type of gear over the internet to enable a pet owner to perhaps pass a pet off as a service or assistance animal. It's true with certifications as well, you can certainly buy anything in a sense off the internet, including golden [inaudible] certificates that make it seem like an animal is a service animal.

The service animal can be removed from a business when there is that fundamental alteration of the goods or services the business offers. If we imagine the service dog accompanying its disabled owner but then howling in the middle of let's say a symphony or a concert. Because that interferes with the performance of the concert and then fundamentally alters in a sense what that theater is all about, it seems like we should be able to and we do exclude those types of animals even though they're providing the service at the same time. Animals that misbehave that make unwanted contact that are otherwise disruptive, they can be removed as well. Now, the business still in a sense has to offer whatever the good or the services is just the animal has to remain outside. This includes where they might pose a direct threat to safety, the lunging, growling, snarling things that dogs sometimes do.

As we think of the typical patron of a restaurant, they aren't usually asked to put on a hairnet or gloves or an apron while they dine, so a service animal should be permitted to accompany someone there who also hasn't worn those things like gloves or some sort of suit. The dog should be able to accompany anywhere where the public is permitted again as long as no fundamental alteration is created. And when we think of the permission of the animal and the person in the given area, when we go back to our location and task and animal clues of our game, we think of these questions. Will the presence of that specific animal pose a direct threat in that specific instance, in that specific location? Not necessarily based on past experiences, but is that animal itself a known threat? Tow, would the presence of that specific animal fundamentally alter what it is that's actually being provided to the public?

And then three, back to this constant idea of accommodation, is there some accommodation that is reasonably possible? Is there some compromise that can be achieved that permits both the disabled person to access our service and doesn't constitute an undue hardship on the business or the other customers? With this idea of proof, sometimes it comes in a variety of forms and it's hard to tell what proof is sufficient and what isn't. It can certainly seem like a medical record, something provided by a medical provider that has to do with a disability. It can seem like some sort of recognized accredited program or even a training log or an evaluation by a trainer or something that attests to the training of the animal. Even in fact, an in-person demonstration or a video demonstration of the training seem to all help in terms of what types of proof we might be interested in establishing that that animal is engaging in that task for that person.

Now, we're going to come back to those themes, but let's examine at least some federal statutes and some state statutes. We're going to look at four federal statutes, the Rehabilitation Act of 1973, the Fair Housing Act, the ADA, and the Air Carrier Access Act. I've provided you citations to the statutes in your materials. The Rehabilitation Act of 1973 has to do with saying that no individual with a disability shall be by reason of that disability excluded from some participation in some federal assistance program like a federal financial assistance program. It's not the most important of the statutes, but it certainly refers to assistance animals. The second, the Fair Housing Act makes it unlawful to discriminate in the sale or rental to buyers or renters because of their, what are called handicaps in that statute to discriminate against a person because of a handicap, to refuse to permit at the expense of a handicapped person, some modification of a presence to allow them to enjoy it.

In the sense, the Fair Housing Act doesn't specifically mention animals, it does at least apply to all sorts of housing sale or rent. It applies to all sorts of dwelling units. It does have contrast with the other statutes, and it does talk quite a bit about accommodations, accommodations that might make an undue financial burden on a landlord in competition with an accommodation that might not cause that sort of administrative burden. I think I provided you a site to a case called Bronk v. Ineichen about balancing a landlord's economic and aesthetic concerns with some no pets policy. And yet the deaf tenant's need for a hearing ear dog and the reasonable balancing of those interests. I think I provided you the citation for Givens v. Village of Shady Side. The idea that a tenant's assistance animal did not create any threat or disturbance, so the landlord can't refuse to provide reasonable accommodation where there is no such threat.

Our third act, the Air Carrier Access Act talks about air transportation, about air carriers not being allowed to discriminate against otherwise qualified individuals on the basis of physical or mental impairments or having such an impairment. Carriers have to permit a service animal, now is the phrase, to accompany a passenger with a disability. They cannot deny transportation to a service animal that might offend or annoy others on the aircraft. They have to provide of course some reasonable accommodation as long as the animal owner provides some sort of documentation that it's not going to become a health or sanitation issue. There are other provisions about where the animal can sit, what sort of harness or tag it must wear, what type of emotional disability might be recognized.

The carrier is not required to accommodate unusual service animals. There has to be a determination of factors that might preclude the animal traveling in the cabin. And that act supports the idea of an emotional support animal. When we think of airports themselves, they're covered under the ADA, the Americans with Disabilities Act, which is our fourth one, which we should go to in the interest of time and talk about that. In that act, dogs only are now recognized as service animals, that has been true since 2011. There used to be exceptions for miniature horses, those are now taken out of the statute. So in a sense, a dog pre 2011, there was considered a number of different service animals that could have applied although household pets could not be applied.

There was no blanket right of universal access for all service animals before 2011, there had to be some evidence of individual training. Although there were no requirements as to the amount or the type of training the animal would have to undergo to qualify under the ADA, nor the type of work that it must provide, but it did have to be trained. Now, since 2011, again, only dogs are recognized. The disability has been broadened to include physical, sensory, psychiatric, intellectual or other mental disabilities. There are policies that are modified to permit a miniature horse where reasonable, but then there are a number of factors specific to miniature horses. And then there are combination requirements.

Now, service animals performing the functions and the task the individual with a disability could not perform for themselves become fairly fluid and flexible depending on what types of disabilities we're talking about. Again, the service animal must be permitted to accompany the individual but just to those areas where customers are allowed to go. They cannot be segregated from other customers unless there's that threat or risk to health. The restaurant may or may not have a posted no pets policy, but service animals are not considered pets. And the ADA requires an owner to modify a no pets policy to allow the use of a service animal. Doesn't mean the restaurant or the business owner has to abandon a no pets policy altogether, they simply have to make an exception.

If we look at some state statutes, I'm focusing on Oregon statutes specifically simply because that is my home state, and also because they are relatively comparable to other state's statutes. There are state statutes that say that a person who is blind specifically has a right to have a guide dog, and they call it a right under that statute. To make sure that those types of people are not required to pay any additional fee or admission charge but that they themselves are liable for damages done to places of public accommodation. Oregon has a separate statute about persons who are deaf. Again, having a right to have a hearing ear dog with them again with those same types of conditions. Oregon has a statute that prohibits a landlord from refusing to rent a dwelling unit to a person who has one of those types of animals and to recover compensatory damages if they're prohibited from doing it.

Oregon uses the phrase assistance animal and seems to have lists that specifically describe certain types of tasks, pulling a wheelchair, fetching a dropped item, performing balance work. And we seem to have a bit of a restricted area in which we consider the assistance to actually be as opposed to any type of assistance. Now, some of our statutes in this state raise preemption issues, which scheme takes precedence? For instance, Oregon has a state requirement that hearing ear dogs have to be kept on an orange leash. That likely would be preempted by the ADA rules since there is comprehensive federal regulatory governing of handicapped persons that don't allow for any sort of specific restriction of a certain type or color of a leash.

I think I provided you Green v. Housing Authority of Clackamas County, an Oregon case in which this idea that a landlord was trying to accommodate by substituting a flashing smoke alarm and a doorbell in place of a hearing assistance dog, finding the dog could do tasks that the landlord's devices were less effective in doing. If you look at Oregon state statutes, we talk about animal, not dog. We talk about daily life activity, about controlling the behavior of. Statutory sections that are more protective in a sense of the animal than the disabled person themselves. We have a number of statutes that provide remedies and compensation for interference with an animal. And then as we take a look at some case law, I provided you a few cases, I want to mention a couple.

Rose v. Springfield-Greene County Health Department, a 2009 case setting out that idea that just because there's an ADA statutory scheme, that doesn't create that blanket right of universal access for all service animals. And that idea of individual training having to be shown. I talked about the concert hall policies to allow a service animal even though it makes disruptive noises. That's Lentini v. Cal Center for the Arts. I think I mentioned Roe v. Providence Health System, that's a case about a hospital not violating the ADA simply by putting a disabled patient who used a service animal and insisting that the animal remain in the room where the patient insisted that it remain in the room 24 hours a day. The hospital didn't deny admission to the patient but tried to accommodate it by limiting the dog who apparently had some odor problems and not then violating the ADA in doing that.

I provided you a few other citations, two cases in which no animal's policies have to be removed, about tasks or functions being inquired into as to store policies being legitimate under state law. And about the reasonableness of landlords and about employers, about providing certain types of accommodations. I think I provided you some case law as to at least before 2011 other types of animals being assistance animal. Cases in which a horse was asked to be used as an assistance animal, a monkey, a bird or a cat. And also Bronk v. Ineichen, that was constant case from 1995 about a trainer, whether they're required to have professional credentials, in that case, they were not, as sufficient training. There of course are odd statutes in nearly every state, Oregon is no exception. For some reason, we have a service monkey exception statute that excepts service monkeys from certain types of rules even though we don't have a service monkey allowed as an assistance animal under the other state statutes or under the ADA.

Now, I want to get to these ideas of the broad definitions and protections about what it is we're trying to do. One category we're focusing on of course is the disabled person, another category we're focusing on is the public. And they compete in many ways. So we have big questions that arise when we think of those two categories. There are hidden and not so hidden issues. The public version of the questions sound like this, who's getting help with something that they really need help with, and who's getting away with something they really shouldn't be getting away with? In other words, the secret concern of the public is are you really a disabled person? The suspicion is that the person is actually healthy. The secret concern number two is, does that animal really assist you? The suspicion is it's simply a pet.

And the secret concern number three is, is that animal going to cause me trouble? The suspicion is it's going to erect something, it's going to hurt someone. And the overall concern, secret or otherwise is, do I really need to treat you differently? In other words, I'm suspicious that you demand special treatment that you probably don't deserve. On the other side of that fence of course is the disabled. They've got their own hidden and not so hidden issues. Their secret concern is are you trying to deny me access? The suspicion is that they're being targeted or stonewalled. They have a secret concern that are you accusing me of fraud? Their suspicion is you don't actually believe that I'm disabled even though I am. And the third secret concern is maybe I don't actually qualify for assistance. The suspicion is internal. Maybe I haven't followed some rule correctly, maybe the other person doesn't need to treat me differently.

Their overall suspicion is, well, I deserve special treatment, but I haven't correctly demanded it or met the requirements for it. So those competing views of what's going on between those categories certainly raise the specter of communication dynamics, how are the people talking to each other? It certainly raises that specter of location restrictions, where is the public normally allowed to go in the workplace? It certainly is that idea of what can and can't be asked affects both sides. What can be asked, what shouldn't be asked, what has been asked and yet shouldn't be answered are questions that come back and forth in terms of those secret and not so secret concerns.

I want to provide you in a sense 14 specific rules to take a look at in light of the federal and the state statutes and the case law. Rule one, any dog individually trained to provide assistance to any individual with a disability is a service animal. Service animals are any which perform some function or task which an individual with a disability cannot perform themselves. That's a pretty good number one rule for us to pay attention to. Two, some but not all service animals wear special equipment like collars or harnesses or vests. Some but not all are licensed or certified or have identification papers, yet none of those things are required. That's a good rule for us to follow. Three, a business owner may ask if it is a service animal required because of a disability. That threshold information is important for some people to learn and to be able to inquire about.

Four, a business owner may not ask for documentation of a disability or proof of certification as some sort of condition for providing the service. That's important. Five, the service animal must be permitted to accompany the individual with a disability to all areas where others are allowed to go. Six, an individual with a service animal may not be segregated from others. Seven, a business owner must modify any policy, including a no pets policy to allow the use of a service animal. Eight, a business owner cannot charge a fee, an additional fee for a service animal even if deposits are routinely required for pets. Nine, a business owner may charge a customer with a disability if the animal causes some sort of damage as long as it's a practice that is charged to non disabled as well.

10, a business owner is not required to provide things like care or food or special services for the animal. And of course can exclude an animal when behavior poses a direct threat to health or safety. 11, a business owner doesn't get to assume how a particular animal is going to behave. 12, if the business owner does exclude a service animal out of control, he still has to give the person, the individual the option of enjoying the service or the good without the service animal. With 13, we can now put together what can be asked. Question one, is that a trained service animal? That can be asked. Two, what is it trained to assist you with? That can be asked. Three, is that animal dangerous or unsafe? That can be asked. And four, do you have medical documentation? That can be asked.

What cannot be asked also numbers four in general. One, what type of disability do you have? That is an impermissible question. Two, how was the animal trained? That's impermissible. Three, do you have proof of its certification? And four, can you have it demonstrate what it does, its task? Those things, not allowed. So when we think of the information that is being asked, is being provided, that is not being asked and it's not being provided, we have to think of how helpful or harmful any of these things are. Often we think in line of the business owner or the other consumer or the other citizen, is that animal involving some alterations to the use of a facility that now changes the facility? Is that animal a hazard or exposing someone to significant harm? Is the disabled person not meeting criteria? That idea of being defrauding or defrauding others.

There are problems still left for us to deal with, restriction on location type problems. What is an acceptable task for an animal to do? Whether alerting someone to the presence of something harmful is either an assistance task or simply interrupts impulsive or destructive behaviors. What is sufficient control of an animal? Is it only the use of a harness or a restraint or a lead or a tether? What else might restrict either the animal from providing the task or the disabled person from enjoying the use of the animal? I was going to end with a case from District of Colorado, I think I provided you the site listing some penalties to businesses for violating those rules, we'll skip that. But we will get into our end goal, which is we're trying to objectively determine the benefit an assistance animal might provide to certain segments of the population.

We're trying to figure out if those benefits are obvious and don't require validation or whether they're more vague and require some validation. We might need more rigorous scientific evaluations about not just what animals can do but what they cannot do. And not just what tasks might assist a disabled person but which don't assist in the sense of assistance at all. We have an increasing recognition and acceptance of a wide range of assistive functions that, let's face it, dogs primarily. Some other animals, but mostly dogs can provide. These are positive developments for society. They reflect a long-time collective concern we have had for centuries about desiring to help individuals with certain challenges. Maybe over the last few decades, more specifically individuals with physical and emotional challenges. And only in the last couple of decades have we come up with the idea that dogs can play an important role in that evolution of assistance.

The benefits of assistance by dogs is tested in many different novel applications, the breadth of which is seemingly limited only by the creativity of the participants. We have a legal system that protects public access rights of individuals. Not just of those with disabilities but of all sorts of individuals under equal protection laws, including when accompanied or not accompanied by an animal. Sometimes we find that the laws or regulations are not consistent, their definitions are not clear, they don't specify requirements that we need to have specified. They may even list inclusionary or exclusionary criteria in a way in which they transfer across certain jurisdictional boundaries but not against others.

We need to work with this inconsistency, we need to develop an awareness to prevent the confusion that business and property owners have and to reduce or eliminate obstacles that individuals themselves have as well. I think with those types of ideas and those types of themes with a fairly close examination of the specific statutes and cases that I provided, you might get a better handle on the abuses and the uses of assistance and service animals in our country. I hope that you've enjoyed this presentation. I do encourage you to look at the references provided in your handout and outline, and I hope you have a pleasant rest of your afternoon.

I want to add one more section before the conclusion. And that is a few new changes in laws and updates in the types of technology that might be available. One, I'd like to mention that there are two bills pending in Congress, they have been there for a while. They would update federal regulations to facilitate access to air transportation for assistance animals. There is a Senate bill and a House resolution both authorizing heightening standards for aircraft equipment and facilities with assistance animals in mind. They protect in a sense travelers' rights to have emotional support animals with them during a flight as opposed to specifically assistance for service animals under the ADA.

These bills also eliminate the requirement for additional documentation. For psychiatric service animals, they prohibit air carriers from requesting any medical documentation at all. In other words, they become much more restrictive to the business in terms of inquiries as to ferreting out whether there is some sort of deceit or fraud on the part of the disabled person. These bills interestingly also propose a higher standard of care with respect to passengers with their disabilities. And they more severely penalize violations with trouble damages for each violation. These are burdens added to under the Air Carrier Access Act, added to transportation companies that seem to recognize more significant protections needed for travelers as opposed to other business patrons.

The second last thing I wanted to mention is, I think I provided the citation to you in your materials. But as recently as this year 2021, there has been a number of articles discussing the use of robotic animal-assisted therapy for psychological and cognitive health. These articles specifically address military populations. And these types of robotic-assisted devices that seem of course like they are dogs but of course are not dogs. They have very high costs, they have very limited availability. But they seem to open a door to a promise to take what was the wheelchair or the cane that was then replaced with the animal to then replace again the animal with something more elaborate, more mechanized, obviously not living, and perhaps hopefully not more expensive.

But the idea of still being the assistance device but in a much more technologically complicated way anyway. Whether that is now a new path to changing some of the regulations about the ADA requirements as to whether it is an animal as opposed to a device, that is for the future for us to determine. But of course, as technology does change, the laws often have to reflect those changes. And those may very well be happening under federal regulations as to the use of assistance animals. I wanted to mention those things as well.


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