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Oklahoma Bar Journal

Service and Support Animals for People with Mental Impairments

By Amy Gioletti

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Legal confusion and public opinion about service and support animals abounds. News stories and internet searches reveal depictions of out of control animals, falsified documents and an unregulated market of companies selling unnecessary products such as vests and certifications. In response, some states, including Oklahoma, have enacted laws to punish individuals who attempt to pass a pet as a service or support animal1 in the context of rental housing.2 Additionally, advocacy groups are calling for federal regulations related to the licensing, training and certification requirements for service and support animals in order to establish a legitimate and regulated commercial industry, rather than an exploitative one.3

From a legal perspective, federal law is the primary vehicle to grant various categories of animals to people with disabilities for use in a variety of settings. Due to its comprehensiveness, the Americans with Disabilities Act (ADA) is perhaps the most frequently cited federal disability law; however, the ADA is not the only law granting rights to people with disabilities to possess and use service and support animals. Unfortunately, this web of varying legal and medical criteria can create confusion about what is allowed, by whom and where. This article will not attempt to persuade the court of public opinion. Instead, this article will offer guidance on some of the most frequently encountered settings invoking the legal rights and responsibilities of people with mental impairments to have and use service and support animals. This article will focus exclusively on federal law, including the ADA, Fair Housing Act and Air Carrier Access Act.

HISTORY OF THE AMERICANS WITH DISABILITIES ACT

While the Americans with Disabilities Act is the most well-known disability law, it was not the first federal disability rights law. Both the Architectural Barriers Act of 1968 and the Rehabilitation Act of 1973 pre-date the ADA; however, those laws are applicable only to federally funded property and programs, such as the public housing program and public schools.4 Thus, the ADA’s enactment in 1990 was bold due to its applicability to not only federally funded property and programs, but also to nearly every private and public setting, offering the promise to radically improve the accessibility of public life for people with disabilities.5

Fundamentally, the ADA provides rights to people with disabilities and is administratively enforced, primarily by the Department of Justice. Likewise, because the Americans with Disabilities Act is colossal in its reach, many people turn to the ADA for guidance when faced with questions about service and support animals. Under the ADA, a person with a disability is defined as an “individual [with a] physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such impairment; or being regarded as having such impairment…”6 Title I of the ADA applies to private employers.7 Title II of the ADA applies to state and local governments.8 Title III of the ADA applies to public entities and public transportation.9 Under Title III of the ADA, the definition of public accommodation includes a nearly exhaustive list of public places, such as hotels, public transportation, restaurants and bars, movie theaters, auditoriums, retail establishments, office of an accountant or lawyer, parks, schools, museums, fitness centers and other recreational facilities.10 In terms of the ADA, this article will only focus on the similar requirements of Titles II and III.

SERVICE ANIMALS UNDER TITLE II AND TITLE III OF THE ADA

Following implementation of the ADA’s Title II and Title III regulations on July 26, 1991,11 a service animal was defined as any guide dog, signal dog or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability.12 The original Title III regulations did not contemplate restrictions on the types of animals that could be service animals under the ADA and left open the possibility that any animal could be used as a service animal. Even still, the ADA in any iteration, has only ever recognized “service animals,” as opposed to other types of supportive animals, such as “emotional support animals,” “companion animals” or “assistance animals,” which are all terms that have found their way into common parlance.

Importantly, the ADA Amendments Act of 2008 changed the definition of service animal to remove reference to any animal being a service animal and limited the definition to dogs. In pertinent part, the current definition of a service animal under the ADA is “a dog that is individually trained 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, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.”13 There is one notable exception: The ADA permits individuals to possess and use miniature horses as service animals, though less common.14 Thus, in dramatic contrast to the original definition of service animal, the revised definition excludes all other types of animals. Additionally, regarding the exclusion of emotional support animals and comfort animals, the regulations maintain “the crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.”15

There are two key points here: 1) The definition of service animal includes the provision of assistance to a person with a psychiatric, intellectual or other mental disability and 2) the provision of emotional support, safety or comfort by a dog is not “work or tasks” for purposes of meeting the definition of a service animal. Under the ADA, in order for a person with a mental impairment to legitimately possess and use a service animal, the animal must be individually trained to do work or perform tasks to the individual’s benefit, including the work or task of “preventing or interrupting impulsive or destructive behaviors.”16 The bottom line is that while emotional support animals are not service animals, a service animal may be trained to perform work or tasks to benefit a person with a mental impairment, just as a service animal can be trained to perform work or tasks to benefit a person with a physical impairment.

Further, the right of people with disabilities to have and use service animals is dependent on the provision of a reasonable modification. The ADA requires public entities to make reasonable modifications to policies, practices and procedures to enable equal access for individuals with disabilities.17 In the case of service animals, the modification is typically to a “no animals allowed” or “no pets” policy. By allowing the service animal in contravention to its no pets policy, the entity is modifying such policy so that the individual with a disability has equal access to the public accommodation and to ensure the covered entity is not engaging in discrimination.

Specifically, when an individual brings a dog into a public entity, the public entity is entitled to assess whether the dog is a service animal. As such, the following two questions may be asked of a person who brings a dog into a covered entity: “(1) Is the dog a service animal required because of a disability? and (2) what work or task has the dog been trained to perform?”18 If the answer to the first question is affirmative and the answer to the second question indicates the animal has been trained to perform work or tasks, the animal must be permitted to remain in most instances, except for where the animal is not in the handler’s control or is not housebroken.19 ADA regulations specifically state that individuals are not required to produce documentation of the animal’s training, such as certifications.20 Therefore individuals who have paid a company to produce a certification have paid for a service that is not actually required by the regulatory framework of the ADA.

In summary, the ADA indicates that a dog is the only type of animal that can be classified as a service animal, though in some cases, a miniature horse may be a service animal.21 Because no other animals may be service animals under the current iteration of the ADA, only a dog (or miniature horse) is legally allowed to remain with its handler in the public spaces covered by the ADA. An entity is within its legal rights to ask for any other type of animal to be removed from the premises, because any other animal is not legally a service animal. However, although the 2008 ADA Amendments tightened the definition of service animal under the act, the general emphasis on limited inquiries for service animals remains. In 2016, the Department of Justice provided a reminder that “Congress enacted the ADA Amendments Act to restore the understanding that the definition of ‘disability’ shall be broadly construed and applied without extensive analysis.”22 As well, the ADA includes protections against retaliation and coercion for individuals attempting to exercise their rights under the act.23 This is an important consideration in any attempt to impose additional requirements to the process beyond the specifications of the law and regulations.

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SERVICE ANIMALS AND SUPPORT ANIMALS UNDER THE FAIR HOUSING ACT

Another major federal civil rights law that protects people with disabilities from discrimination is the federal Fair Housing Act of 1968 (FHA),24 administratively enforced by the U.S. Department of Housing and Urban Development.25 The FHA protects individuals from discrimination on the basis of race, color, sex, national origin, familial status, religion and disability.26 Disability was added as a protected class by the Fair Housing Amendments Act of 1988.27 In pertinent part, the Fair Housing Act applies to private owners engaged in the rental of four or more single family rental dwellings,28 private multifamily dwellings, residential real estate transactions and advertising.29 The act protects individuals engaged in fair housing activities from intimidation, coercion and retaliation.30 The FHA also includes minimum physical accessibility standards for new construction of covered multifamily dwellings31 with a date of first occupancy after March 13, 1991.32 Thus, the act reaches nearly all rental housing and most residential real estate transactions. Additionally, courts have found that shelters and other types of transitional housing may be considered dwellings subject to the Fair Housing Act.33

Regarding people with disabilities, the FHA’s definition of disability is identical to the ADA’s definition.34 Likewise, it requires housing providers to provide reasonable accommodations to individuals with disabilities who request such accommodations,35 including requests for service and support animals. This requirement extends to applicants to real estate transactions, including buying, selling and renting, as well as residents and any person associated with an applicant or resident, such as a guest or caregiver.36

In most significant contrast to the ADA, the Fair Housing Act’s allowance of animals for people with disabilities is not limited to service animals. Instead, the FHA allows for emotional support animals and other types of animals under the general umbrella term of “support animal” or “assistance animal.” Additionally, where the ADA limits service animals to dogs in most cases, the FHA does not definitionally restrict support animals to dogs, and it has never been interpreted by the agency or the courts to restrict the types of animals that may be considered emotional support animals or support animals. However, in a new guidance document published Jan. 28, 2020, FHEO Notice 2020-01, “Assessing a Person’s Request to Have an Animal under the Fair Housing Act,” the U.S. Department of Housing and Urban Development’s Office of Fair Housing and Equal Opportunity (HUD) established certain tests for determining whether an individual’s supportive animal must be allowed as a reasonable accommodation in housing.

FHEO Notice 2020-01 indicates the analysis should begin with a determination of whether the animal is a service animal under the ADA.37 If the animal is a service animal under the ADA, it must be permitted in housing. However, if the animal is not a service animal, the analysis must evaluate whether the animal “work[s], perform[s] tasks, provide[s] assistance, and/or provide[s] therapeutic emotional support for individuals with disabilities” under the traditional FHA reasonable accommodations approach.38 Therefore, in order for an individual with a disability to have and use an emotional support or support animal in housing, the individual, or a person on their behalf (such as a parent or caregiver), must make a verbal or written request for the animal, the housing provider must consider the request, and the housing provider must respond to the request within a reasonable timeframe,39 “generally within 10 days.”40 In evaluating a request, housing providers are entitled to a minimum amount of information to determine whether the individual is a person with a disability and whether the individual with a disability has a disability-related need for the animal.41 In contrast to the ADA’s treatment of service animals, a housing provider may request supporting documentation from an individual requesting to keep an emotional support or other supportive animal in housing under the FHA.42 This supporting documentation may come from a medical or other provider who is familiar with the person, the disability and the person’s disability- related need for the animal.43

Additionally, for the first time, HUD’s new guidance indicates the housing provider may evaluate the type of animal requested and creates two categories of animals: 1) Animals Commonly Kept in Households and 2) Unique Animals.44 Where the requested animal is an animal commonly kept in households, such as a dog, cat, bird, rodent, fish, turtle or “other small domesticated animal traditionally kept in the home for pleasure rather than for commercial purposes,”45 and the person has shown a disability-related need for the animal, the housing provider must approve the request for the animal.46 However, where the animal is a unique animal, the guidance indicates the individual requesting the animal should provide additional documentation showing the disability-related therapeutic need for the specific, unique animal.47 Some examples include specific situations where “the animal is individually trained to do work or perform tasks that cannot be performed by a dog,” a health care professional indicates the person has allergies to dogs or that the person’s symptoms would “significantly increase” without the animal, or the individual indicates the animal will be kept outside at a house with a fenced enclosure.48 If an individual showing of the need for the unique animal is made, the housing provider should permit the unique animal.49

Importantly, not only is the reasonable accommodation approval pertinent to allowing the animal in housing, it also removes the animal from consideration as a pet; thus, pet fees, pet deposits, pet weight restrictions and pet breed restrictions do not apply, regardless of whether the animal is a service animal or other supportive animal.50 However, the individual is required to maintain control of the animal, as well as feed, maintain and provide veterinary care for the animal, with or without the assistance of family members or caregivers.51 As with all other reasonable accommodation requests made under the FHA, the housing provider may deny a request if the specific request would result in a fundamental alteration of the housing provider’s program; approval would result in an undue financial and administrative burden; or the animal would pose a direct threat to the health and safety of others.52 The HUD guidance reiterates longstanding policy that the direct threat defense can only be used to deny a request for an animal where the housing provider has objective credible information about the behavior of the specific animal in question, and it cannot be based on subjective feelings or stereotypes about dangerous breeds.53

AIR CARRIER ACCESS ACT

The Air Carrier Access Act (ACAA) is a federal law that specifically applies to accessibility and nondiscrimination for people with disabilities in air travel54 and is administratively enforced by the Department of Transportation (DOT).55 The definition of an individual with a disability under the Air Carrier Access Act is substantially similar to the ADA and FHA definition.56 However, currently the ACAA maintains its own unique definition of service animal, which differs from the definition of service animal under the ADA. Specifically, the Air Carrier Access Act defines a service animal as “any animal that is individually trained or able to provide assistance to a person with a disability; or any animal that assists persons with disabilities by providing emotional support.”57 Additionally, in contrast to the ADA, but similar to the FHA, the ACAA allows airline carriers to request documentation on letterhead from a licensed mental health professional establishing that the individual is a person with a mental impairment and has a disability-related need for an emotional support animal in evaluating a request for an emotional support animal.58 Similar to the other laws, the ACAA requires the handler to maintain control of the animal.59

Notably, on Aug. 8, 2019, the DOT released clarifying guidance to airlines regarding enforcement of the service animal provisions of the ACAA.60 The Department of Transportation notes that compliance with this guidance is voluntary on the part of airlines, which may lead to implementation of individual airline standards, while the underlying ACAA continues to require uniform compliance.61 The guidance indicates the DOT will pursue enforcement action where airlines categorically exclude dogs, cats and miniature horses from airlines and may pursue enforcement action for categorical exclusion of other types of animals, except for “snakes, other reptiles, ferrets, rodents, and spiders.”62

Furthermore, the guidance indicates airlines should not place categorical limitations on the number of service animals an individual may possess; impose weight restrictions except to factor whether the animal could be transported in the aircraft cabin; impose age restrictions on animals, noting that enforcement actions will likely not be pursued in the case of very young animals; and flight length restrictions, except for questions about whether and how the animal will relieve itself in a way that does not cause a sanitation issue on flights over eight hours.63

However, the above requirements and definitions under the ACAA may change substantially – and soon. On Feb. 5, 2020, the DOT published a “Notice of Proposed Rulemaking on Travel by Air with Service Animals.”64 The proposed rule cites numerous complaints about service animals, inconsistent federal definitions of service animals, issues with unique service animals, misbehaving service animals and pets on aircrafts among other justifications for the proposed rulemaking.65 In a sweeping change, DOT proposes to align the definition of service animal under the ACAA with the definition of service animal under the ADA. If DOT adopts these changes, the ACAA will define service animals to include only dogs.66 Additionally, the ACAA will explicitly exclude emotional support animals, comfort animals, companionship animals, and service animals in training from its definition of service animal.67 While the regulations have not yet changed, the Department of Transportation has signaled that more stringent requirements are very likely forthcoming.

CONCLUSION

This article attempts to unravel the confusing web of laws concerning service and assistance animals; however, each situation remains unique. There is no one-size-fits-all approach, and the evaluation of any request requires at least a minimal amount of legal analysis. However, understanding and following the specific tests and procedures outlined in federal law, regulations and agency guidance will help resolve disputes before they arise. The bottom line is this: While the ADA applies to most situations in public life, it does not always apply, or it may apply in conjunction with another law. Therefore, an important first consideration when evaluating service and support animal requests is to always determine which laws and agency guidance are applicable to the setting. While recent agency guidance and proposed rulemaking indicates a more consistent approach is on the horizon, the current landscape of service and support animal guidance is not so simple.

ABOUT THE AUTHOR

Amy Gioletti works for a federal agency in Oklahoma City. She has primarily worked in civil rights and disability law since graduating from the TU College of Law in May 2011.

Endnotes

    1. Michael Ollove, “Several States Crack Down ‘Fake’ Service Animals,” USA TODAY,
      Oct. 29, 2017, www.usatoday.com/story/
      news/2017/10/29/several-states-crack-down-
      fake-service-animals/807676001/.
    2. Residential Landlord and Tenant Act, Okla. Stat. tit. 41, §§113.2C-D (2018).
    3. Robin Young and Serena McMahon, “Scam ‘Service Dog’ Industry Thrives on Lack of Federal Regulations,” WBUR, May 23, 2019, www.wbur.org/hereandnow/2019/05/23/fake-service-dog-registration.
    4. Architectural Barriers Act, 42 U.S.C. §§4151 (1968) (required accessible design and construction of federally funded buildings) and Rehabilitation Act, 29 U.S.C. 701 (1973) (requires affirmative action and nondiscrimination in federal employment related to the hiring of people with disabilities, nondiscrimination in federally funded programs and activities and requires electronic technology to be accessible and usable by people with disabilities in federal programs).
    5. See Arlene Mayerson, The History of The Americans with Disabilities Act: A Movement Perspective, Disability Rights Education and Defense Fund, 1992, https://dredf.org/about-us/publications/the-history-of-the-ada/.
    6. 28 C.F.R §36.105 (2011).
    7. 42 U.S.C. §12101 (2008).
    8. 42 U.S.C. §12131 (2008).
    9. 42 U.S.C. §12182 (2008).
    10. 28 C.F.R §36.104 (2016).
    11. Department of Justice, Civil Rights Division, Title II Regulations Supplementary Information, March 15, 2011, www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm.
    12. 28 C.F.R §36.104 (1991) (emphasis added).
    13. 28 C.F.R. §36.104 (2011).
    14. 28 C.F.R. §36.136(i) (2011).
    15. Id.
    16. Id.
    17. 42 U.S.C. §12182(b)(ii)(A)(ii) (2008).
    18. 28 C.F.R. §35.136(f) (2011) (state and local governments) and 28 C.F.R. §36.302(c)(6) (2011) (public accommodations).
    19. 28 C.F.R. §35.136(b) (2011) (state and local governments) and 28 C.F.R. §36.302(c)(2) (2011) (public accommodations).
    20. 28 C.F.R. §35.136(f) (2011) (state and local governments) and 28 C.F.R. §36.302(c)(6) (2011) (public accommodations).
    21. 28 C.F.R. §35.136(i) (2011) (state and local governments) and 28 C.F.R. §36.302(c)(9) (2011) (public accommodations).
    22. Department of Justice, Civil Rights Division, Amendment of Americans with Disabilities Act Title II and Title III Regulations to Implement ADA Amendments Act of 2008, Summary, 28 CFR §§٣٥-٣٦ (Oct. ١١, ٢٠١٦).
    23. 28 C.F.R. §36.206 (2011) and 28 CFR §35.134 (2011).
    24. 42 U.S.C. §3601 (1968, as amended 1974, and 1988).
    25. 42 U.S.C. §3608 (1988).
    26. 42 U.S.C. §§3604-3606 (1988).
    27. Fair Housing Amendments Act, PL 100-430, Sept. 13, 1988, 102 STAT. 636.
    28. 42 U.S.C. §3603(b) (1988).
    29. 42 U.S.C. §§3604-3606 (1988).
    30. 42 U.S.C. §3617 (1988).
    31. 24 C.F.R. 100.201 (2008) (defining “covered multifamily dwellings” as “buildings consisting of 4 or more dwelling units if such buildings have one or more elevators; and ground floor dwelling units in other buildings consisting of 4 or more dwelling units”).
    32. 42 U.S.C. §3604(f)(3)(C) (1988).
    33. See, e.g., Hunter v. The District of Columbia (D.D.C.) (2013); United States v. City Rescue Mission (W.D. Pa.) (2014). See also, Renee Williams, “Shelters and the Definition of ‘Dwelling’ under the Fair Housing Act,” 43 Hous. L. Bull. 225 (Nov. 2013) (available at www.nhlp.org/wp-content/uploads/Shelters-and-the-Definition-of-Dwelling-43-Hous.-L.-Bull.-225-230-31-Nov-Dec-2013.pdf).
    34. 42 U.S.C. §3602(h) (1988).
    35. 42 U.S.C. §3604(f)(3)(B) (1988).
    36. 42 U.S.C. §3604(f)(2) (1988).
    37. U.S. Dept. of Housing and Urban Development, Office of Fair Housing and Equal Opportunity, FHEO 2020-01, Assessing a Person’s Request to Have an Animal under the Fair Housing Act 6-7 (2020).
    38. Id. at 7-8 (2020).
    39. Id. at 7-13 (2020). See also U.S. Dept. of Justice, Civil Rights Division and U.S. Dept. of Housing and Urban Development, Office of Fair Housing and Equal Opportunity, Joint Statement of the Department of Housing and Urban Development and The Department of Justice: Reasonable Accommodations under the Fair Housing Act (2004).
    40. U.S. Dept. of Housing and Urban Development, Office of Fair Housing and Equal Opportunity, FHEO 2020-01, Assessing a Person’s Request to Have an Animal under the Fair Housing Act 13 (2020).
    41. Id. at 9-11.
    42. Id.
    43. Id.
    44. Id. at 12.
    45. Id.
    46. Id. at 12-13.
    47. Id.
    48. Id. at 13.
    49. Id.
    50. Id. at 14.
    51. Id.
    52. Id. at 13.
    53. Id. at 13-14.
    54. 49 U.S.C. §41705 (2003).
    55. 49 U.S.C. §41705(c)(1) (2003).
    56. 14 C.F.R. §382 (2013).
    57. See 14 C.F.R. 382.117(i) and Guidance Concerning Service Animals, 73 FR 27614, 27659 (May 13, 2008).
    58. 14 C.F.R. §382.117(e) (2013).
    59. U.S. Department of Transportation, Office of the Secretary, Guidance on Nondiscrimination on the Basis of Disability in Air Travel, 84 Fed. Reg. 43480 (Aug. 21, 2019).
    60. Id.
    61. Id. at 43486.
    62. Id.
    63. Id.
    64. 85 Fed. Reg. 6448 (2020).
    65. Id.
    66. Id.
    67. Id.

    Originally published in the Oklahoma Bar Journal -- OBJ 91 No. 7 (September 2020)