Good day ladies and gentlemen and welcome to your Service Animals: Unraveling the Differences and Best Practices conference call. At this time all participants are in a listen only mode. Later we will conduct the question and answer session and instructions will follow at that time. If anyone should require assistance, please press star and then zero on your touchtone telephone. As a reminder, this conference call is being recorded. I would now like to turn the call over to your host, Wendy Wilkinson.
Thank you. Good morning and afternoon everyone and welcome to the ADA Audio Conference series. My name is Wendy Wilkinson and I will be serving as moderator for this session. This program is a collaborative of the National Network of ADA Centers. The ADA Audio Conference series is offered on a monthly basis and covers a variety of topics related to ADA. Today''s session is titled, Service Animals: Unraveling the Differences and Best Practices. We are privileged to be joined by our speaker, Jacquie Brennan, from the Southwest ADA Center. I will introduce her shortly. Individuals are joining us today using a variety of medium including telephone, streaming audio on the internet and real time captioning. Individuals may also view today''s power point presentation online. Please refer to your instructions for the URL. A written transcript of this session will be created, edited and posted to the www.ada-audio.org conference site along with a digital recording of the session within 10 business days, following the conclusion of the program. Our speaker today is going to provide us with some very valuable information today and at the conclusion of her presentation, there will be an opportunity for everyone to ask questions. The Operator will provide instruction when we are ready to take questions. Depending on the number of questions we have, we may not be able to address all of your questions or concerns today. We do encourage you to follow up with questions to your regional ADA center and you can reach the center that serves you by calling 800-949-4232. Let me begin today''s session by introducing Jacquie Brennan. Jacquie Brennan is the training director and an attorney with the Southwest ADA Center. You can look at her complete bio by visiting the ADA.org website, that ADA Great Lakes Center will also provide. Let me begin now by turning the program over to Jacquie Brennan. Go ahead, Jacquie.
Thanks Wendy. I really appreciate the opportunity to present today. I am going to go through the power point first before we take any questions and we have already gotten a lot of questions in advance so I am going to try to address some of those as we go through the slides but you know if you have other questions, just be sure to, you know, wait until we are done and then we will take those. We are going to basically cover three different laws. The ADA, which as probably everyone listening knows is the Americans with Disabilities Act. We are also going to talk about the Fair Housing Act as it relates to animals, service animals and other kinds of animals and also the Air Carrier Access Act. So we are going to start with the second slide there, if you are following along on your power point, which is the Americans with Disabilities Act. Now you know there are five Titles to the ADA, Title I covers employment, Title II covers state and local governments, Title III covers places of public accommodation, Title IV covers telecommunications and Title V has a lot of miscellaneous provisions including provisions against retaliation and my favorite, the provision of attorney fees. But service and therapy animals are treated differently under different titles. So we are going to -- if you are unfamiliar with the Titles, you know refer back to this slide to make sure you know what we are talking about at any given time because there are some differences. So what is a service animal? Well currently the definition in the regulations is 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 including but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair or fetching dropped items. So the reason that the word currently is underlined in that last slide, is because the Department of Justice has issued new ADA regulations and we never know exactly when they will be enacted and you know get the final blessing of DOJ but we expect it will be within the next several weeks. As a lot of you probably know, the regs were proposed a while back and they did not go into effect before the end of the last administration. When the Obama administration came in a year ago, they wanted some time to review regulations and so sort of put a hold on those and not just ADA but all of them, and so now they are you know getting through that process and so we think that it won''t be very long. But the new regs really effect the information that we are discussing today and I will try, whenever possible, to discuss how those changes will be so that we are not just looking at current but we are looking at what is coming up as well. So, why are there new regulations? Well, DOJ gets a large number of complaints from people who use service animals and these complaints indicate that a large number of businesses and other covered entities are confused about their obligations when it comes to service animals. And probably for those of you who are listening who are handlers of service animals, you probably each have your own story of that confusion that is out there. And there is also a lot of confusion about how a service animal is defined and whether comfort animals or therapy animals or emotional support animals, whether they are covered by the ADA. Because in the old, well not old but really the current regs that we have, they are just not mentioned. And so the new regs are going to, we hope, help with that. Also, on the next slide, some individuals who do not have a disability claim that their animals are service animals and this has become a big problem, especially in certain areas, certain kinds of entities, that is a real issue. And then other individuals who may have a disability claim, either fraudulently or sincerely, albeit mistakenly, that their animals are service animals even though they do not meet the definition of service animal in the ADA. So the DOJ hopes that the new regulations will clear up some of the confusion both on the part of businesses and governmental entities as well as the confusion for people with disabilities who use service animals. Under the new regs there are more tasks listed, under the, you know the examples of tasks and it isn''t true that the animal has to perform one of these particular tasks or the regs anticipate that there might be others that have not yet been thought of but they do list more examples like assisting an individual during a seizure, retrieving medicine or retrieving the telephone, providing physical support to assist with balance and stability to individuals who have mobility disabilities and assisting individuals, including those with cognitive disabilities with navigation. Under the new regs the definition of service animal now includes a specific list of animals that are excluded, even if they are service animals under the current law. And these excluded animals include wild animals including non-human primates born in captivity. And they also include reptiles, rabbits, farm animals including any breed of horse, pony or miniature horse, pigs, goats, ferrets, amphibians and rodents. So under the new regs, those animals listed there will not be considered service animals and we haven''t had that kind of list of excluded animals before. So a therapy animal, there is currently no definition of a therapy animal, comfort animal, emotional support animal in the ADA. When it was written that label wasn''t anticipated and they didn''t discuss it at all. But it is clear that these kinds of animals are not covered by the ADA because they don''t meet the definition of service animal. So although we talk a lot about the confusion around this issue, for lawyers it hasn''t been that confusing in that we have a definition and these animals don''t meet that definition of service animal. But it has been very confusing because people think of these animals very often as service animals and it is hard to know the difference. When the new regs go into effect, the DOJ''s position on whether comfort animals are covered as service animals is this, it says, animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits or promote emotional wellbeing, are not service animals. So that is sort of a definition of therapy animals, is this animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits or promote emotional wellbeing. So those animals are not, they are not now service animals and they won''t be service animals still when the new regs go into effect. Now there are psychiatric service animals. Because of the ADA requirement that animals be able to do work or perform tasks, in most cases, animals that assist people who have psychic disabilities were just considered to be comfort animals. They really weren''t. They were psychiatric service animals but many times they were just thought to be comfort animals because it was a sort of a non-traditional role of a service animal. But the new regs recognize that there are psychiatric service animals. The new regs discuss psychiatric service animals that can be trained to perform a variety of tasks for individuals with disabilities including detecting the onset of psychiatric episodes or ameliorating their effects. Other tasks that might be performed by a psychiatric service animal include reminding a person to take medications, turning on lights or performing safety checks for persons who have post traumatic stress disorder, interrupting self-mutilation for individuals who have dissociative identity disorders and keeping disoriented persons from danger. So these are examples of tasks that psychiatric service animals can perform but this expressly does not expand the definition of service animal to include comfort animals and I think this might be one of those areas that is going to maybe get more confused [laughter] than less confused. Remember that in general, service animals have protections under the ADA but comfort animals do not. The new regs, though, do recognize that the exclusion of comfort animals is specifically for the non-employment provisions of the ADA and that such animals might be differently considered in employment settings, where there might be compelling reasons to allow comfort animals as a reasonable accommodation. That is going to be, you know, definitely considered on a case by case basis and it is going to, you know it is nice that the new regs have actually said that so that an employment situations can be something that is considered, something that is requested, something that is considered, the interactive process takes place but it is definitely not a deal where once the regs go into effect you just have that right to do that. It is just going to be one of those things that might be considered as a reasonable accommodation in various specific cases. Okay so what proof do you need? I think this might be one of the most common questions that we get about service animals, from both businesses and from individuals who use service animals. A service animal is not required to wear any kind of a special collar or harness. A lot of them obviously do but that is not a requirement and a service animal is not required to have papers that certify its training. So if it isn''t obvious that the animal is a service animal, then how does a business know whether it is, whether an animal that is being brought into the business is a service animal? The business can ask. And a lot of people think that that isn''t true, they think you can''t ask anything. If you just say it is a service animal but it is, of course first it is fine to ask the handler if the animal is a service animal required because of a disability. And it is also alright to ask whether the animal performs specific tasks for the person. Disability specific questions may not be asked. So they can''t ask, what is your disability that makes you need a service animal? And they can''t really ask about the specific tasks because if you disclose the specific task it might involve disclosing the disability. But they can ask whether the animal does perform specific tasks. Just last year the Department of Justice and Wal-Mart reached an agreement about service animals in a case that the DOJ had filed against Wal-Mart and Wal-Mart agreed that a greeter or a store manager may ask only one question. And that the question can be asked only if the need for the animal is not obvious. And the question is, is this a service animal required because of a disability? So in this settlement, that is the only question that they are allowed to ask. We did get this a lot too about animals that are not under the control of the handler. Because of the nature of their work, it is really unusual for a service animal to ever display any out of control behaviors. But if the animal does, then the animal can be excluded. Businesses may exclude an animal whose behavior poses a direct threat to the health or safety of others. And this has to be based on actual risk and not potential risk or generalizations about you know all dogs bite or whatever. It has to be based on the actual risk that that particular animal presents. But if the animal is out of control and you know it is clearly not under the control of its handler, than the business can exclude that animal. What about other people? Now sometimes other customers might be afraid of service animals and if that happens it might be possible to allow that customer to avoid getting close to the service animal but just because someone you know in a business says, I have a fear of dogs, you can''t let that dog in, that doesn''t really mean that the dog can be excluded. A business may not charge a deposit, any kind of a deposit, surcharge, cleaning fee or any other fee, to an individual with a disability as a condition to allowing the service animal to accompany the individual, even if the business has a policy of charging the customer fees or deposits for pets because of course, service animals are not pets so if they charge a pet deposit, that is great and they can charge that for all pets but they just can''t charge it for a service animal. Smelly dogs, another issue, there are entities, and this happens more in schools, colleges and universities and the reason is because normally in a, you know for most businesses you are just taking the animal in one time to access the services of that business and then you are gone. But like in schools and colleges and universities, the dogs are coming in, you know, for every class, every day of the week or several days a week and so this is sort of a problem if this happens. Because sometimes the service animals are not clean or you know downright stinky and it is okay to have a policy that says the dogs have to be clean and free from offensive odors. And sometimes the person with a disability argues that because of the disability they are unable to you know adequately clean their dog but it is, if the odor is really offensive and obviously again, just like everything to do with the ADA, it is a case by case basis and you know what is smelly to you [laughter] might not be smelly to me but you know if there is enough people that are complaining about the offensive odor, it is fine for the school to have a policy that says that the dog has to be cleaned and not have an offensive odor. Vaccinations, an entity may not require proof of training or any proof of any kind of certification for a service animal but it is fine to require proof that the animal is current on all vaccinations that are required by law. That is not the same as requiring proof that it is a service animal. That is just a health issue and it is just the law and virtually every locality has to have, you have to have dogs vaccinated against certain things and so it is okay to require that kind of proof. And typically that proof, we have got a question about this beforehand but in most jurisdictions that proof is just a tag that they give you for the dog to put on that simply says the dog has had his vaccination, mainly rabbis, so it doesn''t, you know it isn''t true that they just have to take your word for it if you say, yeah, I got my dog vaccinated. You have to show whatever proof your locality gives out for showing that the dog has vaccinations. Okay, Title I, remember, is employment. Service animals are allowed to accompany individuals with disabilities to their places of employment so that is done, that is not like a reasonable accommodation or anything, to allow a service animal. Service animals are allowed. And comfort animals, as I mentioned before, might be allowed in certain circumstances as a reasonable accommodation for a person with disability but that is again, you are going to be tired of hearing me say this but that is looked at on a case by case basis. Then Title II, which covers state and local governments, state and local governments may not prohibit service animals from their programs or services of the government entity and they may not charge surcharges or deposits, even if those are required for other animals like pets. So essentially the same thing that we have seen before, service animals have a right to go with the handler to programs and services of the government entity but no surcharges or deposits. Title III covers places of public accommodation including hotels, restaurants, bars, theatres, auditoriums, parks, stores, law offices, doctor''s offices, banks, bus stations, museums, amusement [laughter], amusement parks, salons, dry cleaners, spas, social service centers, golf courses, real estate offices, gyms and coffee shops and many, many other places. And those places may not exclude service animals from any area that is open to the public. Now transportation, the ADA applies to transportation providers. If the provider is a government entity like for subways and fixed route buses, paratransit services, rail, light rail then it''s covered by Title II of the ADA. And if it is a private entity that offers like taxi service or car service, limo service, those are covered by Title III. Okay so that is it for the ADA for now until we get to your questions. Now we are going to move into the Fair Housing Act. The Fair Housing Act was passed originally in 1968 after several years of trying to get passed and it provided protection from discrimination in housing based on race, color, national origin, later gender was added and then in 1988 it was amended to expand protection from housing discrimination to other classes, mainly disability and then familial status. For those of you who aren''t as old as I am might not remember but we used to have you know like you had to be 21 to live in an apartment complex and things like that so there was that sort of age thing and exclusion of kids so we did away with that and then also included disability. As you might expect the exclusion of disability required, I mean the inclusion of disability into the Fair Housing Act required a lot more work on the Fair Housing Act, a lot more regulations, especially around access but we are not going to talk about that part today. We are just going to concentrate on service animals. So under the FHA, landlords, condominium associations and other housing providers are prohibited from discriminating against housing applicants or residents because of their disability or because of the disability of anyone associated with them, as well as from treating persons with disabilities less favorably than others because of the disability. The Fair Housing Act also mandates that housing providers make reasonable accommodations in rules, policies, practices or services when necessary so that a person with a disability has the equal opportunity to use and enjoy the housing. And that is the key provision that we are looking at when we are talking about animals. So everything that we have discussed that pertains to service animals under the ADA, also applies to service animals under the Fair Housing Act so everything under that ADA discussion that we just completed, also applies under the Fair Housing Act except the ADA does not provide coverage for therapy animals, comfort animals or pets but the Fair Housing Act may. So therapy animals that are used as part of a medical treatment plan to provide companionship, relieve loneliness and sometimes help with depression and certain phobias are emotional support animals and they are not service animals because they do not do work or perform tasks that assist people with disabilities. So under the Fair Housing Act, those kinds of comfort or therapy animals may be allowed in housing even if there is a no pet''s policy in place. The Fair Housing Act definition of housing discrimination includes the refusal to grant reasonable accommodations in rules, policies, practices or services when such accommodations may be necessary, to afford such person equal opportunity to use and enjoy a dwelling. So waiving a no pets rule to allow a person with a disability to have the assistance of a service animal or a comfort animal constitutes a reasonable accommodation. Courts have found that landlords must use a flexible standard based on the needs of the particular tenant when responding to a request for an accommodation. So again, that case by case basis thing. Okay, now we are going to look at the Air Carrier Access Act. The regs went into effect last year that changed that a little bit in regard to really everything but also service animals that we are going to be talking about today. So the Air Carrier Access Act prohibits discrimination because of disability in air travel. It applies to all domestic airlines. It also applies to foreign airlines if those airlines fly into or out of the United States but there are some differences in which animals are covered by these foreign carriers so when we get to that part, we will discuss that. Air carriers are required to allow service animals traveling with people with disabilities to sit with them in the cabin of the aircraft. So there is a definition of service animal and it is different than the definition under the Americans with Disabilities Act and that is, you know, that is one of those things about the law is that you would think you have one word and so it would mean the same thing no matter what law they stick the word in but it doesn''t. And even like the definition of disability is different under all kinds of different laws, you know it is different under the ADA than it is under the Workers Compensation law or under the Individuals with Disabilities and Education Act or Social Security has a different definition so really, those definitions change from law to law and that is true even with the definition of service animal in this case. Because in this case the definition of service animal includes guide dogs, signal dogs, psychiatric service animals and emotional support animals. Persons traveling with pets as opposed to service animals or emotional support animals do not have any rights under the Air Carrier Access Act. Now the questions that flight attendants and you know other ground personnel are allowed to ask are a little different than they are under the ADA too. Airline personnel can ask questions and request documentation in some circumstances to determine whether the person is entitled to travel with a service animal. A common misconception among passengers is that once you invoke disability, they can''t ask you any questions and that is just not true. The types of questions that they can ask can actually vary depending on the disability and the animal. And additionally, documentation may be required. The level of documentation that may be required depends on the person''s disability and the type of service animal. So why does it depend on that? Shouldn''t all disabilities be treated the same? Well the reasoning behind this variation includes these two things, many people with disabilities who travel don''t have obvious disabilities and therefore the need for a service animal is not apparent. And even for some individuals with obvious disabilities, the need for the service animal may not be apparent. If the person has an obvious disability and the service animal is wearing a harness or tags, a vest or a backpack, something like that or the person has an obvious disability and the person provides an identification card or some other written documentation or the person has the obvious disability and provides credible, verbal assurances that the animal is a service animal, then the airline should permit the animal to accompany the person on the plane. So you know when you read laws, those little words like and and/are are important so for these three things the person has to have an obvious disability and then one of these other three. So either wearing a harness, tags, vest or backpack, that would be a service animal wearing that or the person provides identification cards or written documentation or credible, verbal assurances. Now of course that word credible, sticking that into a law is you know going to be problematic because what''s credible to one person won''t be credible to someone else but in this case it is in the ear of the beholder, I guess. So it is up to the airline personnel whether they believe the verbal assurance is credible. But if one of those three things happens when a person has an obvious disability, then the airline should permit the animal to go with the person. If personnel are not certain of the animals status, even after being told it is a service animal, then personnel can ask things like what tasks or functions does your animal perform for you? What has the animal been trained to do for you? Would you describe how the animal performs this task or function for you? Now you know sometimes, and I think travel is sort of a high stress thing anyway and so if you are traveling with a service animal that can be stressful for you because you really don''t want any problems and but it is also stressful for airline personnel who, believe me, have been told many times that an animal is a service animal when really it isn''t. It is a show dog [laughter] or it is just a pet and the person wants to take it on the plane and so they just say, oh yeah, this is my service animal. And then they get mad when the personnel start asking these kinds of questions and they say, you are not allowed to ask me any questions, I said it was a service animal. And then there is this big confrontation that usually doesn''t end that well. So it is important to know that airline personnel are allowed to ask these questions and you know just answer the questions. Emotional support or psychiatric service animals, for these animals, airlines may request very specific diagnostic documentation to be provided 48 hours in advance of the flight so it won''t be enough to just bring the documentation with you as you are preparing to board the plane. They can require that they have these 48 hours in advance of the flight. The documentation has to be all of these things, it has to be current, meaning not more than one year old. It has to be on letterhead from a licensed mental health professional. It has to state that the person has a mental or emotional disability recognized in the DSM-IV and it has to state that the animal is needed as an accommodation for air travel or for activity at the individual''s destination. So the documentation, the letter that has to be submitted 48 hours in advance, has to have all of these things on it. Also, the documentation has to state that the health professional is treating the individual and including the date and type of the mental health professionals licensed and the state or other jurisdiction in which that license was issued. It does not need to state the person''s diagnosis. So it doesn''t have to get specific about the diagnosis, even though it does have to say that it is a mental or emotional disability recognized in the DSM-IV but it doesn''t have to say which specific diagnosis it is. Unusual animals like miniature horses, pigs, and monkeys may be allowed to travel as service animals under the Air Carrier Access Act, even though under the new regulations of the ADA they will not be considered to be service animals. So for these unusual animals it depends on what well the airline can take into account the animals size, weight and whether the animal would pose a direct threat to the health or safety of others or cause a significant disruption in cabin service. If there are restrictions on the animal at the final destination then the animal may be denied boarding at the destination from which you are leaving or the point of origin. Now, snakes and other reptiles, ferrets, rodents and spiders will be denied boarding the plane at all because they may pose other safety and public health concerns. Now foreign carriers, remember I said there was a difference and foreign carriers are required to transport only dogs as service animals. So while other more unusual animals may be service animals under the Air Carrier Access Act for domestic airlines, foreign carriers are not required to transport those animals. Barking and jumping, if a service animal barks, growls, jumps on people or misbehaves in ways that indicate that animal has not been trained to behave properly in public settings or poses a direct threat to the health and safety of others or poses a significant risk of disruption in airline service, then the animal may be denied boarding. So even if, you know, at the gate area the animal is running around, it is not under the control of the owner, which is really sort of a prerequisite for all service animals to be under the control of the handler so if it is misbehaving in same way like that prior to being brought into the plane or once it is on the plane, of course before the doors close, then they can, the animal can be denied boarding based on that. Service animals cannot be denied passage because other customers are allergic to, annoyed by or afraid of animals. The airline will make accommodations to ensure that other passengers are comfortable. If a passenger with a severe allergy that rises to the level of a disability cannot travel in the same cabin as the animal, a carrier may rebook one of the passengers on a different flight and this is from the Q and A that they put out about the Air Carrier Access Act when the regs changed. Pre-boarding, passengers with a service animal may request pre-boarding and may ask for a bulkhead seat or a seat that better suits the animals needs. A person traveling with a service animal may request any seat unless it blocks an isle or an area designated for emergency evacuation. If the person cannot be accommodated in a requested seat, then the person must be given the opportunity to move to another seat within the same class of service. The airline does not have to ask other passengers to give up all or even most of the space in front of their seats to accommodate space for a service animal. The airline may try to find somebody willing to do that but they are not required to ask other passengers to do that. The airline can voluntarily reseat a person who is traveling with a service animal to a business class or first class seat to accommodate a service animal but it is not required to do that. I know people who sort of you know try to count on that and certainly it is nicer to have the additional space that you have in business class or first class but the airline is definitely not required to do that, no matter what the size of the animal or anything like that. In-flight services for animals, in-flight services and facilities do not have to be provided for service animals so there is no in-flight service. They don''t have to feed the animal or provide free cocktails or you know provide a place for the animal to relieve itself. None of that has to take place in the in-flight. Owners traveling with animals have to provide for the animals food, care and supervision. But in the terminal, airlines must provide animal relief areas and must provide escort service to individuals traveling with service animals, to these areas when requested to do so. And undue burden, airlines are not required to make modifications for service animals that would constitute an undue burden or would fundamentally alter their program. And although we didn''t mention it in the discussion of the ADA, that same thing applies to the ADA. They are not required to make modifications for service animals that constitute an undue burden or would fundamentally alter the program. But it seldom comes up in the context of the ADA relative to service animals because it would seldom constitute an undue burden, in fact I don''t think I''ve ever seen a case where that argument was even made with regard to service animals but it could be a little more common with airlines just because of some animals size, weight and so forth relative to you know flying an airplane so, that sometimes has come up. So we have a really decent amount of time for questions and I know we already have questions. If you want to email me you can do that anytime at the email address that is there. If we don''t get to your question, feel free to email me. Of course you can always call your regional ADA Center at 1-800-949-4232 and talk to whoever answers the phone about your particular questions. I am hoping that most of the questions that we will be getting will be of a you know a general nature that would sort of you know that everybody would be interested in as opposed to very detailed, personal situations that you might have which might really be better addressed in the, you know, in a one on one context, which I am happy to do through email or you can call your Center. I guess I should just mention the model policies that we included because we already have had some questions about those. So I will just say that the model policy for hospitals you know it gives a little background about what the guidelines are and sort of like what a service animal is and this will have to be changed to include more examples of tasks that are performed and work that is done by animals, especially with the new regs and also some specific mention of psychiatric service animals cause I think that is going to be maybe the next biggest area of confusion, in spite of the really good effort to not have that be confusing. So you know these will definitely be updated once that is done. And then the same is true of the model service animal policy for colleges and universities and the main, I guess the main reason that we even put this together was we had a lot of questions from colleges and universities about what they could and couldn''t do for service animals. You know they were worried about, they got a lot of complaints about some things to do with service animals, you know service animals, for example, that weren''t on a leash or weren''t clean. We had lots of concerns about that and so we came up with this model policy sort of based on those problems. But one thing that this model policy doesn''t address is really the Fair Housing Act part of it. We really did this just as an ADA piece but under the Fair Housing Act, if the college or university offers housing then they would probably want to have a separate policy for the housing part of that, that addresses what is covered by the Fair Housing Act in terms of service animals and therapy or comfort animals as well. So, okay, having said that we can start taking questions whenever whoever is going to ask me the question wants to do that.
Okay, thank you very much, Jacquie, that was a great presentation and treatment of a very complex and often hotly debated issue under the ADA and other disability non-discrimination laws. At this point I would like to ask the Operator to please instruct everyone on how they can submit questions.
Thank you. Ladies and gentlemen, if you have a question at this time, please press star then 1 on your touchtone telephone. If your question has been answered or you wish to remove yourself from the queue, please press the pound key. Our first question.
Do the service animal laws apply to nursing homes and adult care facilities?
Yes they do. [Laughter] They apply to nursing homes and you know in the same way that they would apply to hospitals and things like that and then they apply to any kind of adult care home as well, yes.
Thank you.
Jacquie, I am going to slip in a question. This is Peter Berg, I am going to slip in some of the questions that were submitted in advance and some of the questions that have been submitted online. And, wants to know if would the service animal policy for hospitals also apply to ambulances and any best practices for EMTs or paramedics taking someone with a service animal to the hospital where the individual wants to bring the service animal with. Jacquie Brennan Right, yeah definitely they would, the same rules would apply for ambulances and as far as best practices for the EMTs in the event of having to take someone to the hospital, of course it is going to be best to leave the service animal with its handler and close by so that the person knows that the animal is there and so that the animal knows its handler is there because that is sort of a, you know there is a two way deal there. The only sort of you know I guess exception might be in the case where the ambulance is too crowded to be able to allow the animal to be in the back and still the animal should be transported if at all possible but I could see that that could be the case in certain situations. But for the most part the animal should be right there.
Wouldn''t it also though, Jacquie, some of the issues with the person with the disability being able to care for the service animal come into play?
Well it would come into play at some point but normally in the case of actually being in the ambulance, I still think the best practices would require that the animal be allowed to accompany the person. Now it may be that once they are at the hospital that is going to be a problem but that is not a blanket reason to exclude the person, to exclude the animal and again that whole case by case basis thing. So if it is possible to contact somebody on the way to the hospital as really people often do when they are in an ambulance, they are able to call somebody else to meet them at the hospital or have someone else, have someone else call, then I think that would work.
Alright thanks.
Sure.
Our next question.
Airports and the requirement of relief areas, the service animals post security.
I am sorry, I heard the first part of the question but I didn''t hear the last part of the question.
What are the requirements for relief areas post security at an airport?
You know I think that the regs don''t specify whether it is in the sterile area or not but I know there has been a lot of discussion around that because very often when they need the relief area it is when you are changing planes and so you don''t want to have to go out of the, you know what they call the sterile area, the area where people have already gone through security to go to a relief area. So I think what most airports are doing is having it be where it can be part of the sterile area. But I know that some of the airports have not been able to do and people are still having to go out and then go through security again to get to the relief area and I think just a lot of that depends on the setup of the airport how they are doing that.
Our next question.
You mentioned a lot about allergies in your discussion about the Air Carrier Access Act, in terms of passengers with allergies and how their needs should be addressed, what about in the other areas that you covered both in terms of the ADA and Fair Housing, in terms of how allergies should be treated as opposed to service animals?
Well, the reason it comes up in the Air Carrier Access Act and they actually addressed it in their Q and A that came out with the regs is because you know you are in that very closed space and nobody can go anywhere you know, so the person with the allergy is stuck there, you know with the animal you know in relatively close quarters. But it hasn''t come up a lot in terms of you know in cases and so forth with people saying well I don''t want the animal in the room because I have an allergy. Typically for most people with allergies they have to be pretty close to the animal to have an allergic reaction. Not always, you know, I mean there are people who have really bad allergies to animals you know that will present a problem if they are, you know, they don''t even have to be that close but for most people they have to be sort of close so it is enough to say in colleges, to seat people far away. In Fair Housing it doesn''t come up, I don''t think I have ever seen that come up in a case in Fair Housing mostly because you are in a separate unit sort of you know so it is not typically you know like a big ward sort of thing and you can have your animal and it is right next door to somebody sleeping who has a bad allergy so usually there are separate units so I can''t say that I have ever seen that. Wendy, have you seen that come up in Fair Housing?
No, that hasn''t been an issue yet for the reasons I suspect you mentioned.
I was thinking more if you have got a landlord who says I don''t allow pets in my apartments because I am allergic and if I have to come in then I might be effected and so that is what prompted the question.
Yeah, I have never seen anybody do that but I don''t think that would go over.
I don''t think it would either but I was just curious if you had ever seen anybody.
Yeah, no I haven''t seen that but I think that would be a non issue.
Okay thank you.
Sure.
Our next question.
Thanks. I was wondering what kind of reasonable accommodations you might recommend to allow someone with a disability to run in a marathon with a service animal.
Hmm, that is a great question. Did they, I mean I just would request that you be able to do that. Has that happened and the marathon organizer said no?
Yeah, they have suggested that they start at the back, that they muzzle the dog, that they sign an agreement that they will take care of the poop and show them how they are going to take care of that if it you know goes during the race and stuff like that.
Hmm, that seems a little restrictive. [Laughter] I mean you know for sure they can require that you clean up after the dog, that is not a, you know, that wouldn''t be discriminatory to require that. I am not; the starting at the back seems like an odd thing. Of course the muzzling, they don''t have to be muzzled. They can''t, I mean that would clearly be unreasonable for them to say that without even ever seeing the dog it needs to be muzzled and if they saw the dog and the dog was biting someone then they could just exclude the dog but they can''t require you to muzzle the dog for the race. That one is pretty clear on that. But I don''t know about the starting at the back. I mean here is what I know about marathons. I have seen them on TV. That is the extent of my knowledge. [Laughter] So you know I know there is always a big crowd and so maybe that is their concern is that the animal, it wouldn''t be safe for the animal but that is not really something they get to kind of decide that way. So you know I don''t know about the starting at the back part that is the only part that I would have a question about. They can definitely require you to clean up after the dog and they can''t definitely, they definitely cannot require that the dog be muzzled.
What about the issue about asking for the dog to be registered as well, pay an entry fee and that sort of thing?
Oh, pay an entry fee, [laughter], seriously? No, they can''t do that, they cant do that. The dog is not running as an independent runner in the race. They can''t require that the dog pay an entrance fee, yeah, no they can''t do that.
Okay thanks.
Alright, Wendy, do you have anything you want to add to that?
No, I agree with you.
Okay.
Our next question
Hi, I have a question about housing. If a visitor with a service animal wants to visit a tenant in a unit in a no pets building, what law protects their right to go visit that person and if it is the FHA, can the housing provider require a document from the person saying that he or she has a disability related need for that dog?
Hmm, now that is a great question, let me think. Well they can''t, you know it is not assuming that the apartment would not be covered under the ADA so it would be a Fair Housing question, the person in the apartment can''t be discriminated against based on their association with the person with the disability. The person with the disability who uses a service animal can still visit, they are not bringing a pet so even though they may have a no pet policy, they are not violating a no pet policy by bringing a service animal, which is not a pet and what was the last? Oh and they can''t require that you provide or that the person provide proof that it is a service animal. They can just you know sort of ask that basic is this an animal that is required because of a disability and does the animal perform specific tasks for you? Wendy, anything else?
No, I would agree with you that it is sort of a novel issue but I think the FHA would govern that, would protect this person.
Right
Another question submitted in advance, and this one another housing question, wants to know is there any limit to the number of therapy cats a resident may have in their apartment?
Well there is no written limit, you know like there is nothing in the law that says you can have two but you know that is the max or anything but I think then when you start talking about multiple animals as therapy animals that you start to strain the not agreed upon definition of reasonable. You know reasonable, in terms of reasonable accommodation, reasonable is one of those words that any time you put it into a law it is just like you know money to a lawyers ears because we are never going to agree on what is reasonable. So for somebody, you know 12 cats might be exceedingly reasonable, you know, they are so cute. And you know where that would be very unreasonable for most landlords, I am thinking, so I think there is no particular number for sure and I think they would just, if you came before the court they would just look to see whether it was reasonable and also whether it violated other laws. There are lots of jurisdictions that have laws that says you can''t have more than three animals or four animals you know so it of course couldn''t violate that law either but I don''t think the landlord has to allow unlimited number of therapy animals, even if the person has letters from the doctor saying that they need you know a lot of therapy animals.
Alright thank you.
Sure.
Our next question.
Hello, I would like to get some clarification on one of the slides that you had in your presentation on ADA. Slide number 16; you said that service animals have the protection. Isn''t it true that under the ADA the individual with the disability has the protection, not the service animal?
Well you know, yeah, you are right. When we talk about service animals in this context we usually do talk about sort of the protections that the service animal has or rights that the service animal has but of course you know you are correct. Ultimately they are animals and it is the handler, I guess, that has the right. Technically, definitely but we tend to end up talking about it like that mainly because of the differences between sort of these rights of service animals versus therapy animals or other kinds of animals but absolutely.
Okay, I do have somebody else here who has a question.
Okay.
Under Title III was the public assembly facilities, how does a guest with a service animal arrange for ticketing in a reserve seating situation, that is similar to the airlines, that is what kind of prompted this question, the ACAA?
Yeah, well I mean you can just do like, you can just, when you get ticketed when you purchase the ticket you can tell them that you are going to have a service animal and you can ask, you know you may want to request certain seating based on the fact that you are going to have a service animal with you that is going to be on the floor. [Coughing] I am sorry, similar to you know a person who uses the wheelchair when they call up and make a reservation and buy a ticket, you know they say that they are in a wheelchair so that they can you know be seated at a place that will be convenient for them and whoever they are going with and that sort of thing. So you just tell them, you know in advance. You are not required to do that but especially if you want, I mean you could just show up with the service animal but especially if you know you know that I is better if you have an aisle seat or you know if there is some seating that works better than others and you want to request that, then you can do that at the time you purchase the ticket.
So as far as the operator of the building goes, what happens if someone just shows up with an animal, what is the obligation?
They allow the animal to come in, if it is a service animal. You are not required to give advanced notice of bringing a service animal so even if you just show up and you know you buy your ticket there at door or even if you buy your ticket in advance and you don''t tell them that you are bringing a service animal, you still have a right to access places of public accommodation with your service animal.
So I guess that is the valid question is if they are seated say in the middle of a row in non-continental seating, the 7th seat in or whatever the particular locality of the center of the section would be and there may be accessibility issues due to the aisle for other patrons who are getting to and from their seats, accessible to ask them be reseated to a place where the accommodation can be made say in a wheelchair space or something like that?
Well, you can ask them to do that but they are not going to be obligated to reseat you from the ticket that you purchased. That is why I think it would be good to tell them at the time you buy the ticket, you know that way you can maybe get the seat that you need. But they are not going to be obligated to reseat you at the time when you show up with your ticket. And if you know if it is going to be an issue then you may be required, if someone wants to get out of the aisle and the only way they can get out is over your service animal, you may have to move the service animal you know and that may require you walking out and walking back in. I mean you know people have to be able, I mean that is not only a convenience issue that people have to be able to get out of their seats when they want to but that is also a safety issue so that you know in an emergency people could still get out of the aisle. So I think it is a good idea, especially if your service animal has some size to it to plan that in advance. But they are definitely not going to be required to reseat you for the convenience of the service animal beyond the ticket that you have already bought.
Okay and so but as an operator of the venue, are we allowed to approach a patron that comes with a service animal that maybe one that is a lot larger than you know an 80 pound dog or 90 pound dog, something considerably large, and ask if they would mind being reseated in a location where maybe they could accommodate the animal?
You can definitely ask them.
Okay.
Definitely.
Jacquie, I have another question that was submitted online, someone wanted clarification on something you touched on during the ADA portion of the presentation about businesses being able to ask what task the animal performs and the person wants to know that by being able to do that, doesn''t that potentially disclose the disability?
Well under the ADA they can ask whether the animal does perform tasks but under the ADA it seems less likely that you could ask, what tasks, you know. Although that is allowed under the Air Carrier Access Act, specifically in that lot that they can ask that but in the context of the ADA I know that people, I know that that is a common question because and many people will disclose you know like because they don''t -- not everyone minds disclosing what tasks are performed and so a lot of times people will volunteer that but they are really only supposed to ask if the animal performs tasks. If the animal is a service animal that is needed because of a disability and if the animal performs a specific task or does work for the person.
Alright, thank you.
Our next question.
Hello, we have got a question here that relates to the Air Carriers Act and someone is concerned that they will try to charge for their service animal as excess baggage.
Yeah, they are not allowed to do that. [Laughter] Airlines, it is funny we were having this conversation just before we started the call today because airlines are trying to charge you know for so much, that for everything now and nearly all of them charge even for checking one bag and we had heard that some airline had tried to charge a person for bringing a wheelchair and saying that was like an extra bag and so they had to pay extra for that. And that wouldn''t be allowed and neither would it be allowed to charge extra for a service animal to be on the plane. They can''t lawfully do that, if they do, if they try that, if they say you can''t get on the plane without paying you know an extra $35 or whatever it is for the dog, then ask to see the, what is called the CRO, the Complaint Resolution Officer. We didn''t, today wasn''t really about enforcement but that is the mechanism under the Air Carrier Access Act for resolving issues so that you don''t miss your flight, is to request to speak to the Complaint Resolution Officer and there has to be one either in person or available by telephone at all times, 24/7 for the flights. So take it up with that person who you know we hope would know better than that they could charge for that.
Would it be possible to sneak in a second question about hospitals?
Yeah, I won''t tell. Go ahead.
In a hospital setting and the question has two pieces to it.
Oh great a two part snuck in question, nice, go ahead.
In a hospital setting can you have policies that restrict areas for service animals based on sterile areas and immune suppressant areas like cancer treatment and what about if the patient needs assistance with treating the animal, feeding the animal and toileting the animal while they are in the hospital?
Yeah, those are great questions. They can do it, now I haven''t, honestly I have never seen, there is case law about you know like not having an animal say in surgery because of the, because it is a sterile area and they don''t have to allow that. They can legitimately leave animals out of sterile areas like that. I haven''t seen the immune suppressant issue come up and so I am not sure. You know I just I really don''t know. I don''t know enough about that medically to really give a good opinion and I haven''t seen that come up but that would be an interesting one to know about if anybody has experience with that. But if they are unable to care for the animal then the animal can be you know barred from being there. So if it is not under their control and there is no one staying there with them that can you know take care of that, then the hospital definitely does not have to provide personnel to feed the animal or take the animal outside or anything like that. If the person can''t or doesn''t have someone staying with them who can do that, then they don''t have to you know, allow the animal to stay. That is not, that always come back to being something that the handler has to take care of and the public entity is never required to do that kind of thing.
Thank you, I would suggest that part of the answer about the immune suppressants might be found on the Center for Disease Controls guidance on service animals.
Oh good, okay great, I will look at that. Thanks. And that is on the CDC website?
Yeah.
Excellent, thank you.
Jacquie, we have another question submitted online, questioner wants to know what consideration should be given to tenants in a homeless care center setting or other type of congregant setting with regards to allergies and phobias of service animals.
Yeah, homeless shelters those single room occupancy kinds of places are still covered by the Fair Housing Act and so the person has the right to have animals but it does become a balancing act. I work a lot with the homeless community and it really is sort of a situation where directors of homeless shelters come up against this where they want to allow the service animal or even therapy animals, companion animals, to be with their handlers but you know they do tend to have the big, you know often the big sort of ward like sleeping arrangements and so for people who have a great fear of animals and you know such that that may be even a disabling condition or have the allergies, it is really a balancing act. And so they try to take in everybody''s needs into consideration and work out solutions from there but I haven''t seen anything, you know, anything that is specific in terms of you know any case law or anything that has come from that but I just know it is always a problem where they are you know trying to accommodate everybody. They try to put them as far apart as they can. They try to -- and of course the animal, the control thing is a huge thing. And if the animal is really a service animal who is well behaved, as you know the vast majority or nearly all, service animals really are well behaved, then sometimes that helps with the phobia piece of it, you know as long as the person can see that they are confined by leash or whatever but I don''t know, that is just a tough one. That is really hard.
Jacquie, if I could quickly go back to the previous question about the businesses and what they can ask and looking at the ADA business brief from the Department of Justice, on that particular document does say that businesses may ask if an animal is a service animal or ask what task the animal has been trained to perform.
Right, and it does and it has but and the problem is that if that requires disclosure and I think that is why we had that DOJ case you know with Wal-Mart where they had the settlement case that said you can only ask really one question, you know and in the new regs I think, I wish I had that in front of me because I think that is where I got that where they said that now you ask, can ask if there are tasks but not to disclose the specific task. I will have to look that up but yeah, and it always has been that way. I think we may even have that in the model policy because it is always been that you could ask what task. The DOJ definitely had that as something you can ask, what task, but I do worry about what the questioner said about how that can cause you to disclose the disability and I think DOJ is seeing that as a concern as well.
Okay, thank you.
Our next question.
Thank you for an excellent presentation. I have a couple of questions about psychiatric service animals.
Okay.
One is, in the area earlier we were talking about psychiatric service dogs, it referred to people as having psychiatric episodes. Is the word episode actually used in the ADA language?
In the new regulations you know I don''t remember if it says, I am guessing that it does but I don''t really remember. Maybe you have them there and you already know that it does or doesn''t? I am not sure.
Oh no, I don''t have it. I just find the word episode to be offensive to people with psychiatric diagnosis.
I think it does because I think I just got all of that language directly from the proposed regs, which you know they are not in effect yet and that could be, that could change.
I can check with them on that. Another question I have is where are we with psychiatric service dogs and the issue of the ACAA after the letters to the public and the public response?
Well the law hasn''t changed.
What is the next step?
The next step for what?
Well, in changing the law because there was a call for papers, a call for letters and they received hundreds of letters from the community nationally about the discrimination against people who use psychiatric service animals. What happens next and when, do you know?
Well as far as I know there is no plan to have anything else happen on that. But you know that would require that the regulations be changed and the regulations were, they had public comment before regulations went into effect and they didn''t change it then [laughter] and then they have heard a lot from a lot of people about this and they have made no move to try and change it at this point. So you know I mean that is what would have to happen is that the regulations would have to be changed.
My last question is, are people allowed to have multiple service animals, for instance somebody with a seizure disorder, in the past has been allowed to have more than one, maybe one to guide that person to a safe spot and another to go get help. Is that still allowed under the new regs?
It is not specifically not allowed so I guess it would just be determined on a case by case basis. There is nothing in there that says, you know, there is a limit.
Thank you.
I think we have time for one more question.
Alright.
Our next question.
Okay last question make it a good one, the pressure is on.
Hi, my question, I have a couple questions here. In the state of Hawaii, we are, on the Island of Kauai we have a state statute that states that our Finance Department license dogs and on that dog license we have to, if a person has a service animal we need to identify it as a service animal on the dog license and in order to certify it as, in order to put on the license that it is a certified service animal or we reference it as assistance animal, we ask folks for some kind of documentation, either from a doctor or from a certified training school because we are going to be putting this on the license and people sometimes use that dog license for their proof of certified assistance animal, let''s say when they are flying or elsewhere. So it is quite challenging for our dog license issuers because they are afraid on one hand because we have pounded it into their head that they shouldn''t be asking any personal questions about service animals, so they are sort of afraid to ask about the assistance animals, if they are in fact assistance animals, what assistance they provide for their owners and so on and so forth. Now my question to you is, is our state statute in non-compliance with the ADA by stating that the dog has to be certified by an accredited school or accredited trainer, yada, yada, yada and then again are our county rules and regulations in non-compliance with the ADA for also asking for that type of proof to put it on a dog license? And then the third part of my question is, I am not sure, I think it would just be best if we just issued the license for a dog, under -- they are charged $2 to have a dog license, everybody, why should we put anything about assistance animals? People can carry their own information regarding that. Anyway, I hope you understand.
Alright, thanks for your questions. Let Jacquie tackle that.
Yeah, sure, in fact we had a question submitted beforehand that was similar, about another state and I think that the ADA would sort of trump that because that laws, your state laws more restrictive. So it is fine of course to have people register their service animals but they don''t have to register them as service animals. If every dog needs to be licensed, for example, then service animals, service dogs will have to be licensed as well but they don''t have to be licensed as a service dog and they shouldn''t have to indicate that they are a service dog, particularly if you are then requiring proof, which the ADA clearly does not require, so yeah, I think that you are on the right track on that in terms of what your third part observation was that you know that there is no real need to be registered as a service animal anyway and that law would seem to conflict with the federal law of the ADA in that it requires much more from the person with the disability then the ADA requires.
Thank you, Jacquie. We need to conclude today''s ADA Audio Conference program. We do realize that many of you still have a lot of questions for our speaker and I apologize if you did not get a chance to ask your question. I do want to assure everybody that we are the Southwest ADA Center, putting together an E-bulletin which we hope have by the end of this week. We have heard a lot of great questions and new novel issues. We anticipate that we will also address those in that E-bulletin, which the Great Lakes Center will help us distribute so all of you will be sure to get that. We want to thank our speaker once again, Jacquie Brennan. You did a fabulous job, both in presenting and answering questions so thank you so much for sharing your time and knowledge with us. If you do have additional questions you can call your regional ADA Center, again at 1-800-949-4232 or submit questions directly to Jacquie and she has given us her email address which is jbrennan@pcn.tmc.edu. I think that everyone learned a great deal from today''s program. I want to remind everybody that a digital recording of today''s session as well as a written transcript will be available for viewing and download at www.ada-audio.org website within the next 10 business days. We want to invite you to join us for next month''s session. It will be held on February 16th at 1:00 and the title is Aging Workers with Disabilities and Implications for Employers. It is going to be presented by Susanne Bruyere and Wendy Strobel. They both work for the Employment and Disability Institute at Cornell University and they also house the Northeast ADA Center. Once again we encourage you to review the website and familiarize yourself with a full array of programs available during 2010. We have one each month and on a variety of topics. Questions regarding the ADA Audio Conference Series can be directed to 877-232-1990 voice or TTY or by email to adaconferences@adagreatlakes.org Once again, thank you so much for joining us and have a great day. We encourage you also to please complete the evaluation for today''s program and submit per the instructions you were provided. Thanks again everyone and have a wonderful day.
Ladies and gentleman, thank you for your participation in today''s conference. This concludes the conference and you may now disconnect.