ANIMALS ON CAMPUS

The ADA: Beyond the ABC’sof Academics

Part C

Irene BowenL. Scott Lissner

Jeanine Worden

AHEAD, July 2013

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

CAUTIONCAUTION

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Overview:Which setting, which law?

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The Americans with Disabilities Act• The ADA (public and private entities) per DOJ

– Public and private entities must make reasonable modifications to policies where necessary to avoid discrimination

– Service animals (dogs) allowed where people go– Miniature horses admitted to facility per

assessment factors

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Section 504 of the Rehabilitation Act

• Department of Education: Postsecondary institutions receiving federal financial assistance must modify academic requirements to ensure they don’t discriminate on the basis of disability

• Regulation addresses guide dogs

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Fair Housing Act

• HUD regulations: In college or university housing, make reasonable accommodations for individuals who use assistance animals

• Can include emotional support or therapy animals (not just dogs)

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The American with Disabilities Act

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DOJ’s new ADA regulations

• Issued July 26, 2010• Updates to 1991/1994 regulations under

titles II (28 C.F.R. part 35) and III (28 C.F.R. part 36)

• Regulations and guidance are at www.ada.gov

SERVICE ANIMALS

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• Entity must make reasonable modifications in policies, practices, or procedures, when necessary to avoid discrimination.

• Modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.

• Permit individuals with service animals in all areas where members of the public, participants, invitees are allowed to go.

ADA regulations:Reasonable modifications

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Service animal: definition

A dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability (including psychiatric, cognitive, mental)

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Examples of tasks (1)• Assist during seizure• Retrieve medicine or other items• Help individual with dissociative identity disorder to remain grounded

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Examples of tasks (2)•Prevent/interrupt impulsive or destructive behavior•Assist with balance, stability•Provide non-violent protection or rescue work

Emotional support/comfort?

• If this is the only function, not considered a service animal

• A service animal for a person with a psychiatric or other mental disability performs a task, e.g., detects and responds

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Can ask only two questions

• Is this service animal required because of a disability?

• What work or tasks is the animal trained to perform?

Can’t ask about disability.

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Other issues (1)• An entity can exclude a

service animal if --• it is not controlled or• it is not housebroken.

• Entity is not responsible for care or supervision.

• No “service animal” license or documentation required.

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Other issues (2)• No deposits can be required (beyond the

usual)– But individual is responsible for damage beyond

usual wear and tear• State and local requirements may also apply• Can consider allergies of other people with

disabilities: • See DOJ agreement: Law firm settled after

requiring client to leave service dog outside office due to attorneys’ allergies, phobia

http://www.ada.gov/larkin-cd.htm 18

Psychiatric service animal case

• Alejandro v. Palm Beach State College, S.D. Fla. (2011)

• Student diagnosed with PTSD, major depressive disorder, ADHD, learning disorder.

• Then trained her dog as a psychiatric service animal.

• After she took dog to class for more than a year, it was banned from class.

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Court’s decision• Alejandro has substantial likelihood of showing --

– She is an individual with a disability under the ADA.– Her dog qualifies as a service animal: trained to establish

eye contact, nip her fingers, or snort when he perceived an imminent panic attack.

– The dog is “crucial” to her ability to engage in “major life activities” of studying, learning and attending school.

• College must permit her dog in all areas of campus, including the library, writing lab, cafeteria, and classrooms, until case is resolved.

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Outcome

• Later settled–Training of administrators–Almost $100,000 from college

• www.bazelon.org/LinkClick.aspx?fileticket=Rs5_Ily_Riw%3d&tabid=600

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MINIATURE HORSES

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ADA regulations

• Make reasonable modifications to permit if appropriate• Allowed if

– Reasonable– Individually trained

Use assessment factors

• Type, size, weight (whether facility can accommodate)

• Handler’s control• Whether housebroken• Legitimate safety

requirements of specific facility

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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)

• ADA One, LLC -- 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 animalshttp://ada-one.com/articles-tips/ahead-of-the-ada-access-curve-part-8/

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Section 504

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Acommodating No Pets Policies

• Begin with ADA Service Animal inquiry– If it meets the ADA Service Animal criterion you meet

your Section 504 obligations following the ADA regulations.

– If it is not a service animal is the request an accommodation request?

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Excerpt: “Service Animals in Post Secondary Education Settings” June 18, 2013 ADA On Line

CALLER: “Okay. But if it wasn't the service animal under the ADA, might there be some obligation under 504 in non-housing situations to permit the animal?”

RAMIN TAHERI, Staff Attorney, U.S. Department of Education:“If it's not a service animal under the ADA, it's not a service animal. And Schools are free to modify their policies however they feel necessary to avoid disability-based discrimination. But we're not talking about the service animal analysis outlined in the ADA.”

CALLER: “Right, they can modify their policy. I guess what I am trying to get at is if something is not a service animal, but for instance, a rabbit, the person says they need it in order to function at the school because of a psychiatric disability, and they have documentation of that, let's say, might 504 require the school to permit the rabbit as a reasonable accommodation in non-housing situations? “

RAMIN TAHERI:“Section 504 would require the school to modify their policies and procedures as necessary to avoid discrimination. The student with a disability who wants to use a non-service animal, for instance, the rabbit, is free to follow the particular college's reasonable procedures for requesting a modification or an accommodation. We would hope to see, as Jeanine mentioned, an interactive process in determining what is appropriate and necessary. And it's going to be a case-by-case basis.”

http://www.ada-audio.org/Archives/AudioConference/index.php?type=transcript&id=2013-06-18&app=128

RESOURCES• Archived Webinar Service Animals in Post Secondary Education Settings” June 18, 2013

http://www.ada-audio.org/Archives/AudioConference/index.php?type=transcript&id=2013-06-18&app=1

• Title II State and Local Government 28 C.F.R. Part 35 (with guidance)http://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm

• Title III Places of Public Accommodation 28 C.F.R. Part 36 (with guidance)http://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.pdf

• Department of Justice Revised FAQ on Service Animals• http://www.ada.gov/service_animals_2010.htm

• National ADA Network (DBTAC) Fact Sheet # 5 http://www.humancentereddesign.org/neada/documents/National_ADA_Center_Fact_Sheet_5_SERVICE_ANIMALS.pdf

• Dept. of Housing and Urban Development Memo: New ADA Regulations and Assistance Animals as Reasonable Accommodations under the Fair Housing Act and Section 504 of the Rehabilitation Act of 1973

http://www.nacua.org/documents/FHA_Memo_ServiceAnimals.PDF

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The Fair Housing Act

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Fair Housing ActAccess for Individuals Who Use

Service Animals and Assistance Animals

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Fair Housing Act Application The Fair Housing Act applies to virtually all housing, whether

or not there is federal financial assistance

Covered housing includes college and university housing, including dormitories and other student housing, fraternities and sororities, and faculty housing.

Recent decision holding that student housing is covered. U.S. v. Univ. of Nebraska at Kearney, 2013 U.S. Dist. Lexis 56009 (D. Neb. April 19, 2013)

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Obligation to Make Reasonable Accommodations The Fair Housing Act requires housing providers

to make reasonable accommodations for individuals with disabilities who use assistance animals

Individuals with disabilities who may need such accommodations include:Applicants, tenants, and residentsTheir family members Other persons associated with residents, tenants and

applicants.33

Assistance Animals Provide support, assistance or service Include emotional support or therapy animals –

terminology used is not important May be trained or untrained Not just dogs – examples: cat, bird, guinea pig,

ferret, miniature horse, capuchin monkey, etc.

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Assistance Animal Must be Permitted If…

Individual has disability, as defined in Fair Housing Act, AND

There is a relationship between the individual’s disability and the assistance provided by the animal

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Applying the principles … Oral request is enough -- written application may not be

required Process should be easy and quick No verification needed if disability and need for animal

are observable or known to housing provider Many ways individual may verify disability/need: note

from doctor, other medical or social service professional, peer support group, non-medical service agency, reliable third party in a position to know, or the individual himself (proof of receipt of SSDI, SSI, rehabilitation services, or credible statement)

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Housing Provider Does Not Need Details about the history, nature, or extent of the disability Access to medical records Detailed information about the animal

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Individual is Responsible

• For maintaining his/her assistance animal• For controlling his/her assistance animal

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Conditions May Not Be Imposed• No breed, weight, or size limitations• No fee, deposit, insurance, hold harmless agreement,

extra inspections, “pet rules,” veterinary certificates/records, student contract, or special conditions

• No restrictions on indoor or outdoor access to any areas of housing and public and common use areas associated with housing

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Bases for Denial or Exclusion• Specific animal poses a direct threat (individualized

assessment based on recent credible, objective evidence relating to specific animal’s actual conduct – not speculation about type or breed of animal).

• Undue Financial and Administrative Burden (very high standard to meet – generally not applicable)

• Fundamental Alteration (very high standard – typically not applicable)

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When Both the ADA and the Fair Housing Act apply …

• HUD recommends applying the ADA first. If an animal is a service animal under the ADA definition, a separate Fair Housing Act analysis is unnecessary. Access must be granted.

• Applying the Fair Housing Act first could result in ADA violations.

If the animal is not a service animal or a miniature horse covered by the ADA, you must then determine if a reasonable accommodation is required for an assistance animal under the Fair Housing Act.

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HUD Process– Complaint– Investigation and Conciliation– Determination of Reasonable Cause or No

Reasonable Cause– Charge of Discrimination– Opportunity to choose forum for litigation– Litigation before HUD ALJ or in federal court

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More Information• U.S. Department of Housing and Urban Development: Service Animals and

Assistance Animals for People with Disabilities in Housing and HUD Programs, http://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf

• 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

• Fair Housing Act complaint can be filed with HUD’s Office of Fair Housing and Equal Opportunity at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/online-complaint

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APPROACHES ON CAMPUS

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What is Your Service & Assistance Animal Policy?

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Service Animals

• Tiered Training• No ID badges or vests• Is that a Service Animal for a disability?• What Services does it perform?• Anywhere you can go• Behavior – under control

– Not the same as on a leash– Applicable code of conduct

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Assistance (Support) Animals

• Training: referral to accommodation process

• Reasonable Documentation• Other Species (safety and control

considerations)• May limit areas of access based on

objective data• May consider other effective

accommodations47

A Word About Clinical & Other Unique Settings

• Clinical Settings– CDC guidance made simple, “Do you gown up?”

• Practica, internships & externships– Representative selection of sights

• Work Study & Campus Employment– Title I accommodation process

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CONTACTIrene Bowen, J.D.President, ADA One9 Montvale CourtSilver Spring, MD 20904

http://ADA-One.comIreneBowen@ADA-One.com

301 879 4542 (O)301 236 0754 (F)

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CONTACT

L. Scott Lissner, ADA Coordinator, The Ohio State University Office of Diversity And Inclusion281 West Lane Ave.Columbus, OH 43210 Lissner.2@OSU.EDU Http://ada.osu.edu

(614) 292-6207(v); (614) 688-8605(tty) (614) 688-3665(fax)

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CONTACT

Jeanine WordenAssociate General Counsel for Fair HousingU.S. Dept. of Housing and Urban DevelopmentOffice of the General CounselWashington, D.C.202-402-5188 jeanine.worden@hud.gov

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