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The American with Disabilities Act and service animals

STAYING OUT OF THE DOG HOUSE: Service Animals and Assistance Animals Under the ADA, Section 504, and the Fair Housing Act Irene Bowen L. Scott Lissner Jeanine Worden.

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The American with Disabilities Act and service animals

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  1. STAYING OUT OF THE DOG HOUSE:Service Animals and Assistance Animals Under the ADA, Section 504, and the Fair Housing ActIrene BowenL. Scott LissnerJeanine Worden

  2. The content provided in this presentation is for informational purposes only.  Neither the content nor delivery of the content is or shall be deemed to be legal advice or a legal opinion.  The audience cannot rely on the content delivered as applicable to any circumstance or fact pattern. The information provided is not a substitute for professional legal advice.

  3. The American with Disabilities Act and service animals

  4. DOJ’s new ADA regulations • Issued July 26, 2010 • Updates to 1991/1994 regulations under titles II (28 C.F.R. part 35) and III (28 C.F.R. part 36) • Two parts • Policy changes • New accessibility standards • Regulations and guidance are at www.ada.gov

  5. ADA principle: Reasonable modifications Entity must make reasonable modifications in policies where necessary to avoid discrimination. 28 CFR 35.130 (b) (7).

  6. Service animal: definition A dog that does work or performs tasks for the benefit of an individual with a disability (including psychiatric, cognitive, mental) 28 CFR 35.104, 38 CFR 36.104.

  7. Examples of tasks • Assist during seizure • Retrieve medicine or other items • Help individual with dissociative identity disorder to remain grounded

  8. …Examples of tasks • Prevent/interrupt impulsive or destructive behavior • Assist with balance, stability • Provide non-violent protection or rescue work

  9. Emotional support/comfort? If this is the only function, not considered a service animal DilipVishwanat/Getty Images, for The New York Times

  10. Can ask only two questions • Is this service animal required because of a disability? • What work or tasks is the animal trained to perform? Can’t ask about disability. 28 CFR 35.136, 38 CFR 36.302(c).

  11. Service animals under control(s)? pawluxury.blogspot.com

  12. Other issues • An entity can exclude a service animal if -- • it is not controlled or • it is not housebroken. • Entity is not responsible for care or supervision. • No “service animal” license or documentation required.

  13. And listen up! • No deposits can be required (beyond the usual) • But individual is responsible for damage beyond usual wear and tear • No intrusive inquiries about disability or diagnosis • State and local requirements may encompass other types of animals • Can consider allergies of other people with disabilities

  14. Other laws • Other laws or codes may call for admission of animals -- • Other than dogs • That provide emotional support or comfort • Higher education and housing: FHAA and section 504

  15. Miniature Horses • Exception to “a dog” is allowed, limits may be set • Determine policy in advance based on: • Individually trained • Handler’s control • Housebroken • Size/Weight in context • Legitimate safety requirements of specific facility

  16. Policy & Practice • General Policy • Work or tasks for individual with disabilities • Includes people with various types of disabilities • Not emotional support animals (point to reasonable accommodation process) • Control and care by handler • Locations of rest areas

  17. Staff Directives and Training • Permissible inquiries • Types of task • No documentation • Allow handler even if animal is excluded • Particular considerations, e.g., health care • Examples of situations • “Control” issues • Who makes decision

  18. Other Laws & Requirements • FHAA , ACAA & Section 504 regulations not limited to “Service Dogs” • Therapy, Emotional Support, Psychological support,… Animals as a reasonable accommodation. • Follows accommodation process • Allows verification • State/Local requirements

  19. ADA One Resources Two articles from AHEAD’s newsletter • The Ides of March are upon us: Are you complying with DOJ’s new regulations about service animals? http://ada-one.com/articles-tips/ahead-of-the-ada-access-curve-part-5/ • A Case of a Different Animal: DOJ’s lawsuit against the University of Nebraska about emotional assistance animals http://ada-one.com/articles-tips/ahead-of-the-ada-access-curve-part-8/

  20. DOJ Resources • DOJ ADA Requirements: Service Animals • http://www.ada.gov/service_animals_2010.htm • http://www.ada.gov/service_animals_2010.pdf DOJ web site: www.ada.gov DOJ information line: 800 - 514 - 0301 (voice) 800 - 514 - 0383 (TTY) ADA TA Centers: 800-949-4232 (Voice/TTY)

  21. Fair Housing Act Access for Individuals Who Use Assistance Animals

  22. Assistance Animals • Provide support, assistance or service (dog, cat, bird, or other animal) • Include emotional support or therapy animals • May be trained or untrained

  23. Animal Qualifies If … • Individual has disability, as defined in Fair Housing Act or Section 504 of Rehabilitation Act, • Animal needed to assist with disability, and • Relationship between disability and assistance

  24. Applying the principles … • Written application may not be required • Process should be easy and quick • Credible evidence from individual or note from doctor or other medical or social service professional • No fee, deposit, insurance, hold harmless agreement, extra inspections, “pet rules,” veterinary certificates, or special conditions

  25. What Are the Limits? • Individual responsible for maintaining and controlling animal • Access to housing and indoor and outdoor public and common use areas associated with housing

  26. Bases for Denial or Exclusion • Direct Threat (individualized assessment based on recent credible, objective evidence relating to specific animal) • Undue Financial and Administrative Burden • Fundamental Alteration

  27. More Information • U.S. Department of Housing and Urban Development and U.S. Department of Justice: Joint Statement on Reasonable Accommodations under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf

  28. CCONTACTACT: Irene Bowen, J.D. President, ADA One 9 Montvale Court Silver Spring, MD 20904 http://ADA-One.com IreneBowen@ADA-One.com 301 879 4542 (O) 301 236 0754 (F)

  29. CONTACT L. Scott Lissner, ADA Coordinator, The Ohio State University Office of Diversity And Inclusion 281 West Lane Ave. Columbus, OH 43210 Lissner.2@OSU.EDUHttp://ada.osu.edu (614) 292-6207(v); (614) 688-8605(tty) (614) 688-3665(fax)

  30. CONTACT Jeanine Worden Associate General Counsel for Fair Housing U.S. Dept. of Housing and Urban Development Office of the General Counsel Washington, D.C. 202-402-5188 jeanine.worden@hud.gov

  31. And now, to the panel

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