Unleashing the Law of Assistance Animals
Service dogs, assistance animals, emotional support animals, guide dogs, therapy animals, and ordinary pets—what’s the difference? Rules pertaining to assistance animals are complex, often puzzling, and ever shifting. In this introduction to the law of assistance animals, we unleash three foundational disability laws: the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Fair Housing Act, and explore the making of an assistance animal under each of these acts.
Jason Potter: Welcome to Unleashing the law of Assistance Animals by Quimbee. My name is Jason Potter, and I'm a staff presenter at Quimbee. This presentation includes a number of course materials, including today's slides, complete with detailed presenter notes. You can follow along with those slides or you can just sit back and enjoy this presentation on the intersection of animal law and disability law. George Carlin once said, "What do dogs do on their day off? Can't lie around. That's their job." While that might be true for some canines and other animals, it certainly isn't true for assistance animals, whose job is to actively assist their disabled handlers in gaining equal opportunity. Animals have assisted humans for thousands of years, and early records of dogs helping humans navigate their environment can be found in paintings lining the walls of caves. Albeit dogs were one of the first non-human mobility assistance on record, today, there are a wide range of animals that can serve as assistance animals, and many different distinct types of assistance animals.
The law of assistance animals is at the crossroads of animal law and disability law. The subject spans a broad range of federal equal access laws, and state and local laws and regulations. In this introduction to the law of assistance animals, we will explore equal access and how our disability laws regard the animals that help individuals with disabilities achieve that end. We will primarily touch on the Americans with Disabilities Act, the Rehabilitation Act, and the Federal Housing Act, but we'll also touch on other federal and state laws that regulate the use of assistance animals. Pawsome. Let's go.
So I've already used the term assistance animals a couple of times, but what does that even mean? The term assistance animal is an informal umbrella term that encompasses three distinct classes of ameliorative animals. First, service animals, second, therapy animals, and third, emotional support animals, which we'll discuss in a few minutes. The subject of assistance animals involves disability law leashed to the relatively new area of animal law. For some context, let's take the mile-high view of each of these.
A basic premise of disability law is that access to important societal resources and benefits should be accessible regardless of immutable or irrelevant characteristics. Disability law overlaps with many other are areas of law from employment law, to health law, to insurance law, to education law. The sources of disability law in the US include federal statutes and their enforcement regulations, state and local rules and regulations, and federal and state cases. Like disability, the area of animal law intersects with a number of areas as well, from criminal law to property, to constitutional law, to disability and civil rights, to tax law. There have been a number of approaches to defining animal law, but the predominant ones are the rights-focused approach and the reformist approach.
The rights-focused approach is committed to advocacy on behalf of animals and fundamental endorsement of the principles of the animal rights movement. The reformist approach is more straightforward and descriptive. It's the combination of statutory and case law that relates to, or has an impact on non-human animals, including assistance animals, wildlife, animals used in research and entertainment, and animals raised for food.
Today, it's difficult to learn just how popular assistance animals have become in the US. But to give you a sense, I've pulled some numbers pertaining to one class of assistance animal in just one context, emotional support animals on airplanes. According to 2017 figures, more than 190,000 emotional support animals board Southwest Airlines flights every year. In 2017, 155,790 emotional support animals boarded American Airlines flights, and that was an increase of 48% from 2016, and there was a 17% decreased in checked pets. United Airlines flights carried 76,000 comfort animals in 2017. Now, it's impossible to discuss assistance animals partially through an animal law lens without mentioning the current status of animals as property under the law.
The principle that animals are treated as inanimate property of humans is entrenched in American law, including in disability law. Walkers, crutches, canes, braces, and wheelchairs are inanimate devices that are essentially considered part of the person with a disability. Under our disability laws, the device travels with the person with the disability as if it's part of them. These ameliorative devices are generally considered an irrelevant characteristic, an invalid basis to deny equal access. Under federal and state disability laws, assistance animals can be the functional equivalent of these devices. Under the ADA, a service animal works as an extension of the person with a disability. As an irrelevant characteristic and ameliorative device, they are an invalid basis to deny equal access to the person with a disability. We often think of service dogs as the dog having an access right, but any access the animal is given is dependent on the access right of the handler. That is, service animals generally lack their own access rights.
Whether an animal is a service animal depends not on the dog's abilities, but on the handler's disabilities. So under disability laws, the legal status of the animal depends on the legal status of the human relative to their disability. This does reflect one of the objections of the animal rights advocates to our system of laws. Only when human interests are at issue will animal interests be protected, but we are going to save further discussion on this point for another day.
All right, here's a rough outline of our agenda. In the presentation, we will discuss the history of assistance animals and major disability laws in the US, and tease out some of the various types of assistance animals at work today. We'll also consider the various definitions of service animals under federal law. And finally, we'll lay out some hot topics. Efforts to use animals for ambulation date back to ancient times. More modern efforts to do so were documented in 18th century records, showing the training of guide dogs to assist blind individuals. In the 1750s, a hospital for the blind in Paris, systematically trained dogs to help with the visually impaired. Post World War I, Germany and Switzerland made formal efforts to train guide dogs for soldiers with vision disabilities. In the US, in 1929, the seeing eye school in New Jersey was established, and it is the longest continually operating program in the world for guide dog training. In 1976, the first recorded use of an assistance animal to assist an individual with an auditory disability in the US occurred.
Disability anti-discrimination law in the US involves a multidimensional set of disability protections that ensure equal access for individuals with disabilities. These laws reach the workplace, housing, public entities, private entities, school, air carriers, and more environments. So how did this come to pass? We wouldn't have enough time to explain all of this in the presentation, but we'll give you a short version that doesn't even come close to adequately capturing the full range and full force of disability rights advocacy over the years. So here's the basic landscape of laws that developed over the years.
Before 1973, there were grassroots efforts. The disability anti-discrimination movement started a long time ago at the local level. People with disabilities in communities started to speak out against structural and personal barriers that excluded them from the community at large. Parents of children with disabilities also spoke out against structural and personal barriers that effectively barred their children with disabilities from having the same opportunities and education as children without disabilities.
In 1973, Section 504 of the Rehabilitation Act was passed. The passage of the Rehab Act was a momentous shift in disability public policy because the act prohibited discrimination based on disability by recipients of federal funds. And this act was modeled after previous laws, banning discrimination and based on race, ethnicity, and sex. This was the first time that individuals with disabilities were viewed as a protected class. In 1975, the individuals with disabilities in Education Act was passed. It was signed into law on November 29th by President Gerald Ford as the Education for All Handicapped Children Act. And it's now known as the Individuals with Disabilities Education Act, or IDEA. This act guarantees a free appropriate public education, or FAPE, in the least restrictive environment to every child with a disability. Congress reauthorized the IDEA in 2004, and most recently, amended the IDEA through the Every Student Succeeds Act in December of 2015.
Section 504 regulations were promulgated in 1977. This required a lot of advocacy from the disability rights community to ensure that there were substantive protections and enforcement. Regulations here laid the groundwork for the ADA. In 1986, the Air Carrier Access Act passed in Congress. Congress's goals were to address the unique difficulties faced by people with disabilities to overrule a case that held that certain non-discrimination regulations in effect at that time didn't apply to commercial airlines, and also, to provide a means to help balance protection of individuals with disabilities and passenger safety. In 1988, the fair housing act of 1968 was amended to add more robust enforcement mechanisms and add disability anti-discrimination provisions.
In 1990, the Americans with Disabilities Act was passed. The ADA was first introduced in 1988 in the 100th Congress. Then, a new version was introduced in 1989 by the 101st Congress. The guiding principle was to extend the basic civil rights protections, extended to minorities and women to people with disabilities. It was the first federal law prohibiting private sector discrimination against people with disabilities, absent a federal grant or contract. As one disability rights advocate stated, "Passage of the ADA also meant that accommodating a person with a disability is no longer a matter of charity, but instead, a basic issue of civil rights."
Post 1990, after the ADA, many states passed laws that provided more protection or protection with respect to matters to which the ADA does not extend. For example, under the ADA enforcement extends to private companies if they have at least 15 employees. Many state laws extend their discrimination protections to companies with fewer employers. Because there are so many laws that address assistance animals over the years, terminology and definitions surrounding assistance animals are not always uniform. It all can be really confusing. So let's tease it out.
Service animal. Under disability laws, like the ADA, a service animal is generally regarded as any animal individually trained to do work or to perform tasks on behalf of a person with a disability. Think of service animals as the gold standard of all assistance animals. They may accompany their handlers to most places. We'll cover this in a lot more detail in a moment. Psychiatric service animals are a specific type of service animal under the ADA used to assist those with psychiatric disabilities when their disabilities are so severe that it affects their ability to perform one or more major life activities. This is still the gold standard. And when we refer to service animals under the ADA, this also includes psychiatric service animals. As an example, a psychiatric service dog could be specially trained to assist an individual prone to psychotic episodes who becomes disoriented during an episode by preventing the individual from walking into the street or another dangerous environment during an episode.
Guide dog or seeing eye dog, this is a type of service animal specially trained to assist individuals who are blind or visually impaired around obstacles and other terrain features. This is also the gold standard. Hearing ear dog, or hearing aid dog, this is, again, a type of service dogs trained to alert their handler to important acoustic cues in the environment, someone calling their name, or a door knocking, and so on. This is also the gold standard.
FHA assistance animals are functionally the same as service animals. Some federal laws confusingly use assistance animals to mean service animals, like the FHA and Section 504, but still the gold standard. Although, these laws generally do not require assistance animals to be individually trained or certified. Emotional support animals or comfort animals, often called ESAs, are any animal that assists through its presence alone. It's got to be prescribed by a licensed mental health professional for a person with a mental illness, no standards for evaluating the necessity of an emotional support animal, though. Whereas, there are concrete rules to determine if someone needs a service animal. This is below the gold standard, but some access is granted.
A working dog is a canine trained for specific purposes, like hunting, herding, police work, search and rescue, detection of explosives. Now, they may or may not also be a service animal. A therapy dog is a dog employed in clinical settings to provide comfort and companionship. This is distinct from service animals and emotional support animals. Usually, a therapy dog assists people other than their handlers. A typical setting would be a hospital, a mental health institution, drug rehab centers, hospices, schools, and nursing homes. A pet. A pet is an animal kept for ordinary use. Now, I said, ordinary use. I recognize that your pets aren't ordinary. For companionship, let's just say, unrelated to a disability, not a service animal or an emotional support animal.
So here's the bottom line. There are three distinct types of assistance animals who work with individuals with disabilities or other challenges, service animals, emotional support animals, and therapy animals. Emotional support and therapy, animals are not considered service animals. The difference is sometimes the species or the individual training to perform a specific task or job on behalf of a person with a qualified disability.
In this presentation, our primary discussion will focus on assistance animals under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Fair Housing Act. Today's introduction to the law of assistance animals is built around several pawmazing hypotheticals. You'll meet some really cute guys along the way. We'll return to these hypos periodically during the presentation to ground and extend your understanding. We'll be helping their handlers determine the likelihood that they have discrimination claims under these laws. So we are not just looking at what qualifies as an assistance animal. We'll do that, but we're also exploring how assistance animals fit into the greater protections under these acts.
This is Charlie. This is Burrito, Charlie's adorable pug. Charlie has PTSD from the Vietnam War. The PTSD causes Charlie to become agitated and get anxiety in intense or stressful situations. Charlie enrolled Burrito in general training at Wolf Mart. Charlie, then registered Burrito as an emotional support animal. After that, Charlie personally trained Burrito to open and close doors, alert him when someone was the door, turn lights on and off, provide balance support, help him get his footing, and call him during his PTSD episodes. Charlie has no documentation of that personal training. Once training was complete, Charlie brought Burrito to a federally funded community center that hosted a local courthouse and library. Charlie was scheduled to testify there. At the entrance, charlie presented Burrito's photo identification card to the deputy. It listed Burrito as an ESA, emotional support animal. On the back of the card, it stated an ESA is not a working service dog under the ADA. Based on the card, the deputy refused to allow Burrito in the courthouse.
Now, Charlie wants to sue the county for violating Title III of the ADA. He believes that his service animal was a reasonable accommodation, and that its exclusion was a violation of the act. So should Burrito have gotten the boot? Well, we shall see. The Americans with Disabilities Act of 1990, prohibits discrimination based on disability, which includes employing a service animal, and extends to places of employment, public services, and public accommodation. The ADA is enforced by the Department of Justice, which promulgates regulations under the act. Title I involves discrimination in employment. Title II is discrimination by private entities. And Title III is discrimination by public entities. Now, we're going to take a closer look at title III today.
In Charlie's case, the community center with courthouse would be considered a public entity. To bring a claim under Title III of the ADA, a plaintiff must establish that the plaintiff is a qualified individual who has a disability, the plaintiff was excluded from a benefit provided by the public entity, and the exclusion was by reason of the disability. In Charlie's case, we are going to assume the first and the third. So the only issue is the second, exclusion from the benefit. A person can prove they were excluded from a benefit provided by a public entity if the entity refused to provide a reasonable accommodation. The exclusion of a service animal under the ADA can be a denial of a reasonable accommodation. So the central issue in Charlie's case is whether Burrito is a service animal under the ADA. What is a service animal?
When looking at the ADA service animal rules, there are a couple of important threads here, species and training. Basically, it used to be that any species of animal could join the ranks, service dogs, service monkeys, service horses, service ferrets, and so on. But the DOJ tightened all that up recently. Now, a service animal is any dog that has individual training to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, be they wild or domestic, trained or untrained, aren't service animals for the purpose of this definition. So emotional support animals are not service animals. Now, it could be any breed of dog. Just because certain dogs are considered aggressive to their well reputation, it can't be a reason to exclude that dog if the dog isn't actually aggressive and is under control.
So are service animals really limited only to dogs? Well, neigh. Under recent DOJ regulations, public entities must also make reasonable accommodations in policies, practices, and procedures to allow miniature horses if the horse has been specially trained to perform tasks for the person with a disability. They aren't technically service animals under the DOJ regulations, but many of the rules to determine eligibility are the same. The mini horse has to be a size that can be accommodated under the handler's control house broken and wouldn't compromise necessary safety measures of the facility. So to synthesize all of this, under the ADA, a service animal is a dog and basically a miniature horse that is individually trained to do work or perform tasks on behalf of a person with a disability.
So let's consider Charlie and Burrito for a moment. Burrito is a dog, a pug, check. Burrito doesn't appear to be aggressive or hasn't been trained to attack. Though, he may be an ESA, Charlie is arguing here that Burrito is a service dog under the ADA, not an ESA. So it looks like Charlie is okay here. Now, we'll need to dig deeper into the training or tasks, and what on behalf of means. We're assuming Charlie is disabled, so that part's okay. There are no federally mandated animal training standards. Here are some things that are disqualifying, emotional support, wellbeing, comfort, or companionship don't constitute work or tasks. Training to attack or other training to cause aggression are disqualifying. So no protection training is allowed. It's also disqualifying if the training is ongoing. Service animals that are in training are not yet service animals under the ADA. And an uncontrolled animal is disqualifying. If the animal is out of control and the handler doesn't take effective action to control it, or it's not housebroken, that would be disqualifying.
Now, some things that are still qualifying, undocumented training. You don't need any documents of training. Also, it's still qualifying if you've done home training with your own dog. So even if Wolf Mart only provided general obedience training, Charlie's individual training, even as the owner and even without a certification, can be enough, but that training needs to be specially tailored to the disability. What does that mean? The animal must be trained to perform tasks that directly relate to his or her disability. In other words, the tasks must ameliorate the disability. So if allowing a dog's training would effectively make any family pet into a service animal, that won't work.
In Charlie's case, his disability is PTSD. The PTSD causes him to become agitated and experience feelings of anxiety in unfamiliar, tense, or stressful situations. So Charlie would have to prove that the tasks he trained Burrito to perform ameliorated the agitation and anxiety he feels in stressful situations. So do these tasks ameliorate the symptoms of Charlie's PTSD? I've separated them into three types of tasks, daily living support, mobility support, and calming support. So for daily living support, Charlie has trained Burrito to open and close doors, to give door alerts, and to turn on the lights. Does that ameliorate the symptoms of Charlie's agitation, feelings of anxiety in unfamiliar tense and stressful situations? No. How about mobility support? He trained Burrito to help with balance and fall alerts. Now, does that ameliorate the symptoms of Charlie's PTSD? Do they ameliorate his agitation, his feelings of anxiety in unfamiliar tense or stressful situations? No. Now, how about calming support?
Now, regarding Burrito's calming influence, it's a little murkier. Under DOJ regulations, the provision of emotional support, wellbeing, comfort, or companionship is not work or tasks for the purpose of the definition. Burrito's calming of anxiety is probably in this world, but let's look at case law. Courts have found that a general calming influence is not enough. In one case, a dog offered emotional support and comfort, which the court determined weren't tasks. And in another case, the court found that monkey comfort is not a task. Also, general DOG guidance supports this. If the dog has been trained to sense that an anxiety attack is about to happen and takes a specific action to help avoid the attack or lessen its impact, then that would qualify. However, if the dog's mere presence provides comfort, that would not be enough to make them a service animal under the ADA.
For Burrito to be considered a service animal, there would probably need to be specific tasks that Charlie has trained Burrito to perform that ameliorate his anxiety in stressful and new situations. Here's an example. If Charlie trained Burrito to enter a new space before him and bark back at Charlie and this alleviated the anxiety caused by his PTSD, this would probably be sufficient to make Burrito a service animal. If this was the case, Burrito could accompany Charlie wherever members of the public may go, but there are some places they could be excluded from. These exclusions are based on the effect the animals presence would have on the service offered, also the handler's control, and the animal's actual temperament. So you don't roverdose; we're just going to look at one of these exclusions, fundamental alteration.
Back to Burrito. Let's imagine that Burrito has the training to make him a service dog. Charlie takes Burrito to the San Diego Wild Animal Park, a covered entity under the ADA, and the park's policy regarding service animal states there are some places within the park that are sensitive and restricted to service animals. Well, Charlie really wants to take Burrito into the lemur walk and kangaroo park, but service animals are excluded from those areas. Can the safari park even do this under the ADA? Under the fundamental alteration rule, if allowing the accommodation would be a fundamental alteration of the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or is an undue burden, the venue must provide an alternative.
At a zoo. A service animal can be inhibited from entering certain areas where animals like birds are the natural prey of dogs or where a dog is the natural prey of the zoo animal, such that the dogs mere presence could be disruptive to the zoo animals. In other areas of the zoo, where that does not occur, service animals must be permitted. And this is per DOJ guidance. So here, the safari park may forbid Burrito and all other service dogs from the kangaroo and lemur areas if the presence of dogs would be disruptive to the service offered. To synthesize all of this, under the ADA, a service animal is a dog, and basically a miniature horse, that is individually trained to do work or perform tasks that ameliorates specific challenges posed by the disability. There must be a nexus between the specific task and the specific symptom of the disability. A service animal under the ADA is not cart blanche to every covered facility. There are limitations based on its effect on the service offered, the handlers control, and the animals actual temperament.
And that wraps up our look into service animals under the ADA, but we're not going to untether Charlie and Burrito yet. We're moving to Section 504. And Section 504 in the ADA are so similar that we're taking Burrito on another walk. Let's imagine we've returned to Charlie and Burrito outside the community center or courthouse. The exact same situation. Charlie's PTSD causes him to get anxious, intense, or stressful situations. Charlie's enrolled Burrito in a general training at Wolf Mart, and then Charlie personally trains Burrito to, among other things, calm him during his PTSD episodes. Charlie brought Burrito to a federally funded community center, and Charlie presented Burrito's photo identification card to the deputy, and it listed Burrito as an ESA. The deputy denied entry to Burrito.
Now, instead of suing under the ADA, Charlie wants to Sue the county for violating Section 504 of the Rehabilitation Act. He thinks that his service animal was a reasonable accommodation, and that its exclusion was a violation of Section 504. Let's, again, assume that Charlie is a qualified individual with a disability, and the deputies actions were by reason of Charlie's disability. So should Burrito have gotten the boot now? Well, the Rehabilitation Act of 1973 helps individuals with disabilities with employment, independence, and equal access in society. The ADA and the Rehabilitation Act have very similar basic standards. Their standards are so similar, in fact, that claims under both the ADA and Rehabilitation Act tend to be analyzed together, but let's see whether this is true for their definitions of assistance animals.
A prima facie case under Section 504 consists of proof that the plaintiff is disabled under the act, the plaintiff is otherwise qualified to participate in the program, the program receives federal financial assistance, and the program discriminated against the plaintiff. In Charlie's case, we are assuming that he's disabled under the act, and there's no evidence he wasn't qualified to participate in the community center, which receives federal financial assistance. Therefore, the only issue under Section 504 is whether the community center discriminated against them. Failing to accommodate a service animal like under the ADA would be considered a violation of Section 504. So the only issue here is, again, whether Burrito is a service animal under Section 504. Although, many definitions in the ADA are applicable to Section 504, according to DOJ regulations for Section 504, the definition of service animal applicable to the ADA does not apply to sections 501, 503, or 504 of the Rehabilitation Act. This effectively means that the DOJ's ADA definition doesn't apply to Section 504.
Under Section 504, the inclusive term assistance animal is used to help distinguish it from the ADA's narrower term service animal. An assistance animal under Section 504 may be a service animal, an emotional support animal, any other animal that works provides assistance or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person's disability. Additionally, assistance animals under Section 504 are not subject to the same training requirements as the ADA. There is no individual training required. So let's compare what could qualify as a reasonable accommodation under the ADA and Section 504.
How about a service dog under the ADA? Yes. How about a service mini horse? Yes. Miniature horses do qualify. How about out a service owl under the ADA? No, it's not a dog or a mini horse. How about an emotional support dog? No. The DOJ regulations expressly prohibit emotional support animals. How about an emotional support kangaroo? No. Again, expressly prohibited in DOJ regulations are anything other than dogs and anything for emotional support. Well, what about an emotional support lobster? I'm not even going there. Now, on the Section 504 side, an assistance dog, would that be allowed? Yes. That's the gold standard. How about an assistance mini horse? Yes. Does it do work, assist, or perform tasks that can help alleviate one or more symptoms of a disability? That's the test. How about an assistance owl? Yeah. It's not limited to dogs and many horses like the ADA is.
The question is, does it do work, assist, or perform tasks that help alleviate one or more symptoms of a disability? It could. How about an emotional support dog? Yes. Does it provide emotional support to persons with disabilities who have a disability-related need for that support? The presence alone could be enough. How about an emotional support kangaroo here? Yeah. If provides emotional support to people with disabilities who have a disability-related need for that support, it could. It's presence, the kangaroo's presence alone could be enough. Now, how about that emotional support lobster? Yes. Does it provide emotional support to persons with disabilities who have a disability-related need for that support? Well, the lobster's presence alone could be enough. Now, an ESA has to have a certification by a therapist, a provider that it's needed, but it might be possible.
So let's apply this to Burrito. Although Burrito's exclusion from the community center would not likely be a violation of the ADA, it's more likely a violation of Section 504, unless there is some justification for the exclusion, the fundamental alteration, for example. Although Burrito needs no training like the dog would need under the ADA, Burrito does have that training to calm Charlie during his PTSD episodes. In fact, he seems to be an emotional support animal. Burrito provides support for Charlie's anxiety caused by PTSD. There is no evidence that Burrito is a direct threat or would fundamentally alter the nature of the services offered by the community center. So it's likely that Burrito would be considered an assistance animal under Section 504, and its exclusion by the deputy was a failure to accommodate Charlie's disability. Bottom line here, there are a few limitations on what animals could constitute assistance animals under Section 504. If an animal, less the symptoms of a disability, doesn't pose a threat or fundamentally alter the nature of the place or service to which it seeks access, then there are few limitations on what animals could constitute assistance animals under Section 504.
Now, new hypo. You represent your home, a housing authority subsidized by funds from the Department of Housing and Urban Development, or HUD. A month ago, YH received a request by a tenant, Silvana, to make an exception to its no pets policy. So Silvana could keep her two snakes Nacho and Tamale in her condo. Silvana submitted a letter from a physician saying her two rainbow boas were her therapy pets and provide a touch that assists with her dissociative disability. The manager wants to deny Silvana's request to keep the snake. The YH manager thinks that Silvana's need for them is not readily apparent or demonstrated, and he has seen no evidence that the snakes function as trained service animals. YH wants your advice about how to respond to this request?
What do you think of this? Let's limit our scope to the Fair Housing Act. The FHA makes it unlawful to discriminate against any person in the terms, conditions, or privileges of rental of a dwelling, or in the provision of services or facilities in connection with such dwelling due to the person's handicap. Discrimination occurs when there's a refusal to make reasonable accommodations in rules, policies, practices, or services when an accommodation may be necessary to afford a handicapped person equal opportunity to use and enjoy the dwelling.
In the snakes case, let's assume that Silvana is handicapped. That's the term used by the FHA, and that YHA is aware of this. The question for you would be whether the requested accommodation of waving YH's no pets policy is necessary for Silvana to have equal access, and whether her request is reasonable. Unlike the ADA and Section 504, the Fair Housing Act doesn't have minimum requirements and regulations for what animals qualify as assistance animals. One court found that two birds and two cats were assistance animals and a reasonable accommodation.
Like Section 504, assistance animals under the FHA may be service animal, an emotional support animal providing emotional support to persons with disabilities who have a disability-related need for that support, any other animal that works provides assistance or performs tasks for the benefit of a person with a disability, or provides emotional or that alleviates one or more symptoms or effects of a person's disability. So no training and certification is needed. Untrained animals that ameliorate handicaps by their presence alone are assistance animals under the FHA, and they have to be accommodated, but there are limits. One of those limits is necessity.
The animal must perform a function. That's a necessary benefit or assistance to the handicapped person. The request to allow an animal must also be reasonable. It can't be a financial and administrative burden. It can't fundamentally alter the nature of the housing provider services. It can't pose a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation. And it can't cause substantial physical damage to the property of others that can't be mitigated by another accommodation. So here, we're going to look at one of the major issues in FHA cases, necessity.
These determinations must to be based on objective evidence of the animal's conduct. They can't be based on speculation or fear that an animal may harm someone or damage property, and they can't be based on evidence of damage caused by other animals. Necessity. The 9th Circuit has interpreted this to mean that a plaintiff must show that, but for the accommodation, they likely will be denied an opportunity to enjoy the housing of their choice. The 3rd Circuit's test for a necessity is if having the animal is not a direct amelioration of a disability's effect, it's not necessary under the FHA. There must be a direct nexus between having the animal and a symptom of the disability. In other words, if the animal exists to serve the individual's disability, it is not legally, just a pet.
In the case of Nacho and Tamale, Silvana's letter from her physician stated that Silvana's snakes were her therapy pets, and provide a touch that assists with her dissociative disability. This information provides some detail about Silvana's disability and about the ameliorative effect the snakes have on her challenges, but it doesn't appear that we have enough information to determine this. First, we don't know what her dissociate disability actually is or of the specific challenges that her disability presents. That's important info. As YH's council, you're trying to determine if there's evidence that the snakes provide such an amelioration to the challenges her disability presents that not allowing them would mean she can't enjoy the benefits as everyone else does.
Under the FHA, your client, YH, would be allowed to take needed time to investigate and make reasonable requests for reliable information relating to Silvana's disability. You might advise YH to seek more information relating to the dissociative disability that's mentioned in the physician letter because that's vague and not a diagnosis. Overall, it's not clear if the snakes provide a necessary benefit. So why it shouldn't take any action yet?
Now, you've witnessed the making of Burrito as a service dog under the ADA and an emotional support animal under Section 504. You've also watched Nacho and Tamale slither towards being assistance animals under the FHA. Now, here are some rough takeaways. For all three acts, dogs and some little ponies that are individually trained to do a task that helps an issue caused by a disability are the gold standard. A direct match is needed between the animals act and the disability symptoms. Uncontrolled or dangerous animals just won't fly. If the animal's presence will be seriously problematic to the service, no dice. Backyard boot camps are pawsome. No finishing schools are needed. Vests, collars, or certifications are [inaudible 00:51:24] get ups, but now required. The federal government is not big brother to assistance animals.
If you are working for a covered entity, you only get three questions unless it's housing. First, is that a trained service animal? Second, what is it trained to do or assist you with? Third, is it dangerous or unsafe? That's it. So here's what's percolating in assistance animal land. Hot button issue one, snakes on airplanes. There are numerous stories about people taking advantage of ambiguities in animal assistance laws. Suspicion on airlines that an untrained pet is masquerading as a service animal is a problem that has been steadily growing.
There was a recent story about United Airlines barring a woman from bringing her emotional support peacock on a flight. Airlines are subject to the Air Carrier Access Act and regulations promulgated by the DOT. The ACAA prohibits disability discrimination by domestic and international airlines. Under current DOT regulations, an airline must allow a service animal to accompany a passenger with a disability on an aircraft. A service animal includes any animal that is individually trained or able to provide assistance to a qualified person with a disability, or any animal that is shown by documentation to be necessary for the emotional wellbeing of a passenger. So like Section 504 and the FHA, the ACAA currently also protects individuals with disabilities who use emotional support animals.
But this definition is a bit ambiguous. For example, there's nothing about tasks. And what does wellbeing mean? Advocates say that passengers are taking advantage of ambiguities in these regulations, and passing off their pets as emotional support animals. The Department of Transportation is seeking comment on proposed changes to the regulations. The proposed regulations defines service animal as a dog that's individually trained to do work or perform tasks for the benefit of a person with a disability, and would include psychiatric service animals. Other animals like emotional support animals would not be permitted. If finalized, it would be the most restrictive federal assistance animal law.
The ADA and 504 don't require documentation. The FHA doesn't require training. And none of them require documentation of the animal's health. The issue of fraud has also change at the state and local levels. So here comes hot button issue two, state fraud laws. States and municipalities have their own service animal laws. Interaction with federal laws can be an issue. While the intricacies of state service animal laws are beyond the scope of this presentation, one particular area of state and local service animal law is currently a hot topic worth mentioning, service animal misrepresentation and fraud statutes. At least 19 states have these statutes.
Here's one example, in Arizona. Arizona's law states a person may not fraudulently misrepresent an animal as a service animal or service animal in training to a person or entity that operates a public place. A court or duly appointed hearing officer may impose on the person misrepresenting the animal a civil penalty of not more than $250 for each violation. The downside to these laws appears to be that there is an enforcement problem. How does someone discover that a handler has fraudulently misrepresented their pet as a service animal? And is it worth it anyway? I mean, what if the accusing person is wrong? These laws seem difficult to enforce, but their intent is understandable.
Finally, I'd like to cover a few frequently asked questions about service animals. First, what tasks would a dog need to perform for a person with anxiety attacks in order to qualify as a service animal under the ADA? Well, good question. Under the ADA, the key is that the tasks need to be a specific action. They need to mitigate the anxiety attacks. The specific action would be helping to avoid the attack or lessen the impact. The dog would qualify if the dog could sense an oncoming attack and, say, retrieve a favorite Teddy bear. That would help the owner avoid the tack or lessen its impact. Also, the dog Burrito in the presentation would qualify as Charlie's service dog if it was trained to enter a room before Charlie, to bark back the coast is clear, and help Charlie avoid a PTSD episode that would otherwise result from entering a new space that he's not familiar with. But a dog's mere presence providing comfort would not be considered a service animal under the ADA.
And a second frequently asked question is about those vests that service dogs often wear. Under the ADA, covered entities can't ask for documentation, like proof that an animal is certified, trained, or licensed as a service animal in order to gain entry. The federal government doesn't have a registry or certification program for service animals, and it doesn't contract out that responsibility to anyone else. So many third-party retailers sell these vests and other accessories. And even through those vendors, you can register and get a fancy certificate, but it has no me for ADA purposes. Documents like certifications and registrations give no access rights under the ADA. The DOJ doesn't recognize them as proof that a dog is a service animal either. So basically, these companies are taking advantage of the lack of federal registry and owner's desires to have something official-looking for their animal. I have a service dog and I thought I needed this. It seemed necessary from those websites. It's not.
A third question that's frequently asked is, can a city or town require registration of a dog as a service dog? No. A city or town can't require registration of service animals under the ADA, but they still need to be licensed and vaccinated.
Today, we've explored the intersection between disability law and animal law and worked through assistance animal issues under the ADA, Rehabilitation Act, and the FHA. There's a lot more to the law of assistance animals than we could cover today. But one thing is true about assistance animals under all disability anti-discrimination laws; they're not pets. As one Arizona State Senator said, "If you have a legitimate condition and the dog or whatever animal within reason helps alleviate it, that's great. This is America. But if you are just someone who needed to have Pooky around because you're upset when they're not there, that's not okay." Thank you for joining us for this introduction to Assistance Animal law by Quimbee. To learn more about the content of today's presentation, please check out the accompanying course materials, which include today's slides and our associated presenter notes. We hope you'll join us again soon. Furwell.