Full Title Name:  Evolving Functions of Service and Therapy Animals and the Implications for Public Accommodation Access Rules

I: SITUATIONS DEMONSTRATING PROBLEMS ARISING FROM THE LACK OF UNIFORMITY IN TRAINED DOG ACCESS RULES

A blind man, allergic to dogs, uses a guide horse, a miniature horse less than three feet tall weighing only 30 pounds.   A dog recognizes that his master is about to have a epileptic seizure and aggressively nuzzles the master’s leg as a signal that the master should give himself a shot to avoid the seizure.   A boy with autism has a canine companion that keeps him from going into a state of withdrawal.   A woman who is troubled by the idea of leaving her dog at home brings him with her everywhere she can.  

Which of these four people can bring the animal into a restaurant?  

The answer to this question will vary in each of these cases depending on the state or federal rules that are applied.  

The man with the guide horse has a type of service animal that, if properly trained, would in some states and under federal air transportation rules qualify for access with its user.   Recently proposed Department of Justice rules, however, state that a miniature horses are not service animals, and would not have to be excepted by a business from its no-pets policy.   The individual with epilepsy has a physical condition, though it will not be visible most of the time, and under the laws of most states should be able to bring the dog in a restaurant because it satisfies the requirement of being a service or assistance dog to someone with a physical disability.   Some states that define service animals as helping the “mobility impaired” might not allow this person to be accompanied by the dog if they apply state law in a situation, though they would if they apply federal law. The boy with autism has a mental health disability that in some states will entitle him to bring the dog into a restaurant even though he is not physically disabled.   Access for the boy and his dog might depend, at least under certain federal rules, on whether the dog performs any functions other than comfort, such as stopping the boy from engaging in self-destructive behavior, or barking to alert his parents when the boy gets out of bed in the night. The woman who feels guilty about leaving her dog at home will not qualify for restaurant access in any state.   The Department of Transportation’s air carrier access rules allow access for emotional support animals if the owner can document a diagnosed mental or emotional disorder.   On the other hand, if she falsely claimed that the dog was a service dog, she could be prosecuted for her brashness in some states.

Jurisdictions also differ on how places of public accommodation may challenge the status of the animal.   Some states provide unique documentation or tags to disabled individuals using service animals, while other states do not distinguish service animals from pets in issuing licenses and tags.   Some states require that trainers carry identification, but do not apply such requirements to individual users of such dogs.   In most states, the rights of individuals owning service animals are enumerated without any specification as to how a challenge for admission is deemed satisfied.   Federal rules are equally inconsistent.   The Department of Justice discourages inquiry by a business as to anything but what the service animal does for the individual.   The Department of Transportation, however, allows a carrier to rely on a special tag issued by a state (or subdivision) to a service animal.   The Department of Housing and Urban Development allows a housing authority to ask for a letter from a health authority verifying a nexus between the individual’s disability and the service provided by the animal.    Disabled individuals may have to provide specific evidence of an animal’s status for one type of activity, but provide something else for another activity.   If traveling from state to state, the burden can be even greater.   When taking an airplane, an individual with an emotional support animal may be able to keep an animal with him in the cabin, but unable to take it into some of the facilities in the airport.

Consider another increasingly common situation.   A trainer of therapy dogs regularly takes the dogs to the cancer ward of a children’s hospital.   The hospital is 75 miles away from her house and she lives in the Midwest where winters are very cold and summers stifling hot.   She needs to go into a restaurant on her way home from the therapy dog assignment, but the only restaurant available refuses entry to the dog because it does not qualify as a service dog, and probably does not qualify as a service dog in training.   Should she be allowed to bring the dog into the restaurant in these exceptional circumstances? In some states, a handler of a search and rescue dog would be able to bring a dog into a restaurant if going to or from a search and rescue assignment, but this would not be true in most states.   Should there be some sort of intermediate access provision for certain categories of trained dogs that do not meet the definition of service dog? What about a cancer-sniffing dog that accompanies a nurse to remote villages in Alaska as a means of pre-screening patients that may be airlifted to a university hospital in Anchorage?   No access provisions currently apply to such a handler and animal (and no such animals are yet known to exist, but the idea may someday be practical), though policy arguments strongly favor limited access.

There should be much greater uniformity among the federal regulatory agencies, and among the states, as to the access rights of handlers with mental disabilities who use service dogs.   Although this uniformity might be provided if states follow federal rules issued under the Americans with Disabilities Act, the Act and implementing rules issued by the Department of Justice do not adequately consider appropriate training requirements and verification procedures. Further, the burden is placed on the places of public accommodation since the federal government is not generally involved in the registration, licensing, and tagging of dogs.  

With the increasing use of service dogs, some trainers and training facilities have been known to certify poorly trained dogs for service and therapy purposes.   The solution to this—at least a partial solution—is to assure that dogs whose trainers and owners claim are service and therapy dogs receive appropriate tests for the certifications they are given.   This does not mean that any specific set of testing and certification organizations should be given a monopoly.   States and political subdivisions that license specially trained dogs could do the testing, but given tight government budgets the easiest approach is for these governments and agencies to recognize certifications by organizations, many of which are national in scope and operation, with a record of rigorous testing and certification requirements.   It is also the position of the authors that there should be limited access rights for certain categories of trained dogs that need to travel for others to obtain the benefits of their training.   The absence of uniformity on these issues leads to confusion, and makes it difficult for managers of restaurants, hotels, and other places of public accommodation to make fair decisions. [1]  

II: TYPES OF SERVICE AND THERAPY ANIMALS AND RELATED ACCESS RULES

This Part will discuss the types of service and therapy animals.   Issues regarding access of the various types of service and therapy animals will be discussed for each type of service animal, but the discussion will be most expansive under those categories where there is the most confusion and which have produced the most discussion in recent regulatory releases and other developments.  

A. Service Animals Defined

Most definitions of service animals or service dogs include guide dogs, signal dogs, and service dogs for the otherwise disabled.   Department of Justice regulations, for instance, define a service animal as a—

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. [2]  

The same definitional regulation specifies that a disability “means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual….” [3]

The Department of Justice’s recently proposed revision of the definition of service animal is broader:

Service animal means any dog or other common domestic 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 who are blind or have low vision, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing minimal protection [4] or rescue work, pulling a wheelchair, fetching items, assisting an individual during a seizure, [5] retrieving medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and assisting individuals, including those with cognitive disabilities, with navigation. The term service animal includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities…. [6]

The trend in federal and state law has been to recognize that individuals with psychiatric conditions may have service animals, but at least 18 state laws still require that the individual served by the animal must be physically disabled. [7]   Some state statutes are even narrower, referring to “mobility impaired.” [8] Most states refer to service animals as serving the disabled, without limiting the reference to the physically disabled.  

Even with states that define service animals as serving the physically disabled, or which provide access rights to the physically disabled when accompanied by service animals, [9] it is not clear that state enforcement would be denied a mentally disabled individual with a service animal.   Many civil enforcement actions and tort suits refer to both federal and state rules.   Some states may assume that federal coverage is a sufficient protection for the mentally disabled. [10]  

B. Guide Dogs

Guide or seeing eye dogs have been used by blind people since after the First World War and are the most protected assistance dogs in the world. [11]   As far as public accommodations are concerned, they are almost regarded as canes, wheelchairs, or other prosthetic devices.   Although guide dogs, as with other service dogs, could be excluded from a place of public accommodation if out of control, [12] this is, given the rigorous selection procedures and the level of training guide dogs receive, almost unheard of.  

Two other exceptions to the general presumption of access for the blind or partially blind accompanied by guide dogs include owner-occupied rentals and zoos.   In Wisconsin, for instance, a landlord may exclude a tenant with a guide dog from, say, a room in the owner’s house, if the owner presents a certificate “signed by a physician which states that the owner or family member is allergic to the type of animal” the potential renter possesses. [13] Arizona [14] and California [15] have a specific exception to the guide/service dog access law by which zoos can prohibit trained dogs from coming in direct contact with zoo animals.   Direct contact might occur in a petting zoo environment, or on an open-sided train running through a wild animal habitat.   The zoo must provide an adequate place to leave the guide or service dog, and must provide a sighted individual to accompany the blind person, if requested.  

A number of states, while permitting guide and other trained dogs access to public accommodations, specify that such dogs may not occupy seats in buses, trains or other vehicles of public transportation. [16]

C. Signal Dogs

Signal dogs alert their masters to specific sounds, often by nudging an arm or a leg, including the sound of a doorbell, alarm clock, someone calling the master’s name, sirens, cars honking, a smoke or security alarm, or a sound made by a computer when an email is received.   Statutory law in most states includes signal dogs, also known as hearing dogs or hearing ear dogs, in the same provisions that apply to guide dogs.   Although many signal dogs receive extensive training, others may not be as well trained and disputes have arisen as to the qualifications of dogs alleged to be hearing dogs. [17]

D. Service Dogs for Individuals with Other Physical Disabilities

As noted in the discussion of the definition of a service animal, service dogs may perform functions, such as helping with balance for someone who is mobility impaired, pulling a wheelchair, fetching dropped items for someone who cannot bend over, etc.   Most legal and regulatory definitions of “service animal,” “service dog,” “assistance animal,” etc., include references to such functions.   Three of the most common disabilities with which service dogs have been associated are mobility impairment, seizure-alert and seizure response functions.

1. Mobility Impairment

Federal and state laws and rules often mention functions that dogs perform for the mobility impaired, [18] “providing physical support and assistance with balance and stability to individuals with mobility disabilities.” [19]   Missouri defines a “mobility dog” as “a dog that is being or has been specially trained to assist a person with a disability caused by physical impairments.” [20] New Hampshire provides that a “mobility impaired person using a service dog shall provide the dog with a leash colored blue and yellow.” [21]            

2. Seizure-Alert Dogs  

The Department of Justice’s proposed revision to 28 CFR 36.104 states, in the definition of “service animal,” that such an animal is “individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to … assisting an individual during a seizure….”   The wording is curious as it does not refer to alerting an individual of an oncoming seizure, though the Department of Transportation, in a guide published in 2005, noted that service animals may assist people with disabilities by “[a]lerting persons with epilepsy of imminent seizure onset.” [22]  

Some states have included seizure-alert dogs among those animals that qualify as service animals. [23] Illinois law provides:

When … a person who is subject to epilepsy or other seizure disorders is accompanied by a dog which serves as a … seizure-alert, or seizure-response dog for such person or when a trainer of a … seizure-alert, or seizure-response dog is accompanied by a … seizure-alert, or seizure-response dog or a dog that is being trained to be a … seizure-alert, or seizure-response dog, neither the person nor the dog shall be denied the right of entry and use of facilities of any public place of accommodation … if such dog is wearing a harness and such person presents credentials for inspection issued by a school for training guide, leader, seizure-alert, or seizure-response dogs. [24]

Thus, Illinois law conceives of trainers of seizure-alert dogs, though the wording might not have to mean that the trainer is teaching the dog to recognize seizures. New Jersey also provides that a service dog includes “a ‘seizure dog’ trained to alert or otherwise assist persons subject to epilepsy or other seizure disorders.” [25]   It is likely that most states, even without specific reference in their codes, would recognize seizure-alert dogs as service animals. [26]

The authors believe that seizure-alert dogs are appropriately classified as service dogs, but note that there is a problem where statutes refer to service dogs as trained for the functions they perform.   The Epilepsy Institute states on its website:

[T]o date, there is no scientific proof that animals can alert humans to seizures. Even if this ability is confirmed, it is not known that this apparent ability can be acquired through training and/or what kind of training is effective…. Some reports appear quite viable and warrant scientific research to confirm this ability. [27]

The Epilepsy Institute began one study of the issue, using EEG and video monitoring of people with their dogs, but had to discontinue the study due to limited funding.

In a case report, two researchers at the Jefferson Hospital for Neuroscience in Philadelphia evaluated the detection abilities of seizure-alert dogs in an inpatient epilepsy care unit where patients were undergoing continuous computer-assisted EEG. [28] The authors concluded:

Between March and May of 2004 we monitored two patients who owned “seizure dogs” in the Epilepsy Care Unit at Thomas Jefferson University Hospital in Philadelphia. Both patients were accompanied by their “seizure dogs” during their admission, as the patients felt more secure with the dogs. The dogs’ performance in alerting before a seizure was poor for patient 1 and misleading for patient 2. In our limited but objective experience, the “seizure dogs” were not as effective as previously thought in predicting the seizure activity. At the same time we must be fair and recognize the limitations that the environment of the Epilepsy Care Unit places not only on patients but also on seizure-alert dogs. Similar studies (in epilepsy monitoring units) of larger samples of patients are needed to determine if these trained dogs are responsible for clinical improvement in epilepsy patients.

A 2003 study found that of 29 patients that owned pet dogs, nine reported dogs responding to seizures and three reported their dogs were able to alert a seizure onset. [29] “Seizure-alerting/responding behavior of the dog did not appear to depend on its age, gender or breed…. Findings suggest some dogs have innate ability to alert and/or respond to seizures.   Success of these dogs depends largely on the handler’s awareness and response to the dog’s alerting behavior.”   These authors also argued for further studies.

Another study found evidence that using seizure-alert dogs reduced the frequency of certain types of seizures.

We have previously reported that dogs can be trained to recognize specific changes preceding an epileptic seizure in humans. Such dogs can provide an overt signal that acts as a useful warning to the human. Early observations suggested that seizure frequency might also be reduced. We report a prospective study of 10 consecutive referrals to our Seizure Alert Dogs service of people with tonic-clonic seizures…. [30]

One study surveyed families of epileptic children in families that owned a dog.   About 40% of such dogs showed anticipatory ability, with the anticipatory behavior being specific.   The research indicated that quality of life was higher in families where the dog responded to seizures. [31]   A study of a program that trained seizure-response dogs working with individuals who had an average of 36 seizures per month, with an average medication failure of 4.8 per moth, found that 59% of the dogs developed alerting behavior spontaneously. [32]   Owners must become aware when the dog is demonstrating the alerting behavior. [33]   Even if the ability arises spontaneously, it is likely that rewarding the dog for such alerts will encourage the continuation and perhaps refinement of the behavior.  

The scientific literature on seizure-alert dogs is relatively slight and more study is needed to verify that this skill can be identified in scientifically designed studies beyond surveys relying on self-reporting by users and families. [34] Social and legal acceptance of seizure-alert dogs appears to be rather premature, and it must be questioned whether a seizure-alert ability can be trained, at least initially.   It may not be accidental therefore, that in its June 2008 proposals for modifying the definition of service animal in 28 CFR 36.104, the Department of Justice referred only to seizure-response functions.   If further studies do not demonstrate that alerting to seizures is really happening in most cases, some seizure-alert dogs (i.e., ones with no seizure-response or other service dog functions) will, in effect, be more properly classified as pets or emotional support animals whose masters have seizure conditions. They might also appropriately qualify as psychiatric service dogs under certain circumstances.  

The Department of Housing and Urban Development squarely faced the issue of service tasks that do not need to be trained in the preamble to recently finalized regulations:  

[T]there are animals that have an innate ability to detect that a person with a seizure disorder is about to have a seizure and can let the individual know ahead of time so that the person can prepare. This ability is not the result of training , and a person with a seizure disorder might need such an animal as a reasonable accommodation to his/her disability. Moreover, emotional support animals do not need training to ameliorate the effects of a person's mental and emotional disabilities. Emotional support animals by their very nature, and without training, may relieve depression and anxiety, and/or help reduce stress-induced pain in persons with certain medical conditions affected by stress. [35]

Kansas defines a service dog as one that has been “specially selected , trained and tested to perform a variety of tasks for persons with disabilities.” [36]   Seizure-alert dogs may belong in a category that has been selected, but not necessarily trained, for a specific service function.   Even though such dogs may be tested, it is doubtful that governmental agencies would want to require those subject to seizure disorders to undergo testing for animals they believe give them advance warning of impending seizures.

3. Seizure-Response Dogs  

Dogs can also respond to a seizure, and may carry medicines, attempt to arouse unconscious handlers during a seizure, keep persons having seizures from walking into obstacles, and activate a medical alert or pre-programmed phone. [37]   Such dogs, given the tasks they are trained to perform, clearly fall within most definitions of service animals. [38]

4. The Problem of Non-visible Physical Disabilities  

An easier distinction than that between physical and mental disabilities might be between visible and non-visible disabilities.   A person using a guide dog has lost some or all of his sight, as a person using a hearing dog has lost some or all of his hearing, but individuals with physical disabilities, other than mobility impairment, may not to others have an obvious need of an accompanying animal. [39]   An individual with a seizure-alert dog, for instance, will not appear, except while having a seizure, to be different from another individual walking a pet.   Many disputes regarding access to public accommodations begin when an individual with a non-visible disability attempts to bring a service dog into a restaurant, theater, or other public location.   Although the distinction between visible and non-visible disabilities is not commonly acknowledged in access provisions, there are situations where this will be a significant issue. [40]   For instance, rules of the Department of Housing and Urban Development, discussed below, allow housing providers “to verify the existence of the disability, and the need for the accommodation-- if either is not readily apparent .” [41]

E. Service Dogs for Individuals with Mental Health Disabilities and Emotional Support Animals

Dogs owned by individuals with mental or emotional disabilities will often not qualify as service dogs because they are, from most governmental perspectives, pets.   Dogs can, however, be taught to respond to anxiety attacks with physical actions, such as circling the affected individual to provide assurance that they are their, retrieving someone else to help the master during a severe anxiety attack, or barking to achieve the same result.   One area where dogs have been found particularly useful concerns autistic children.  

Categorizing dogs owned by individuals with mental disabilities has produced more debate than any other aspect of the access rules for service dogs, as will be clear from consideration of this issue given by three federal agencies discussed below.   The largest issue involves the question of how, or perhaps whether, an emotional support animal is to be distinguished from a service animal.

1. Dogs and Autism

One organization that trains dog for children with autism suggests that such dogs should accompany children at all times, including going to school, because the mere presence of the dog calms an autistic child and reduces outbursts. [42]    Another training organization lists autistic symptoms and specific reactions dogs can be trained to have to the symptoms:

• Impulsive running .   The dog retrieves the child to a parent.
• PICA (impulsive eating of nonfood items such as dirt, chalk, coffee grounds, cleaning chemicals, feces, soap, etc.). The dog interrupts the behavior.
• Self stimulation (slapping the face, etc.) and self harming. The dog interrupts the behavior.
• Mood swings.   The dog crawls onto the child’s lap and calms him.
• Night awakenings. The dog barks to alert the parents.
• Refusal to speak. The dog maintains eye contact when child tries to speak and responds to verbal commands; other people may engage with the child by paying attention to the dog. [43]

Thus, those legal definitions that require that service dogs be trained to engage in specific behaviors can be satisfied by dogs given to autistic children. [44]  

2. Service Animals for Individuals with Mental Health Disabilities in Department of Justice Rules

In proposing revisions to service animal regulations in June 2008, the Department of Justice noted that there was considerable confusion as to whether individuals with mental disabilities can have animals qualifying as service animals.  

The Department believes that psychiatric service animals that are trained to do work or perform a task (e.g., reminding its owner to take medicine) for individuals whose disability is covered by the ADA [Americans with Disabilities Act] are protected by the Department's present regulatory approach.

Psychiatric service animals can be trained to perform a variety of tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and ameliorate their effects. Tasks performed by psychiatric service animals may include reminding the handler to take medicine; providing safety checks, or room searches, or turning on lights for persons with Post Traumatic Stress Disorder; interrupting self-mutilation by persons with dissociative identity disorders; and keeping disoriented individuals from danger. [45]

The preamble also notes that “a psychiatric service dog can help some individuals with dissociative identity disorder to remain grounded in time or place.” [46] This appears to be “work” without a specific “task.”   Some of the tasks listed in the prior discussion might be more easily defined than others.   Turning on lights or interrupting self-mutilation, [47] if the dog can demonstrate the skills, are certainly impressive.   Keeping disoriented individuals from danger might be more difficult to assess in a training setting. Most dogs will search a new environment automatically, so it is not clear how room searching should be demonstrated.

Although an individual with a mental health disability can have a service animal, the animal must do more, in the current view of the Department of Justice, than provide emotional comfort and support to qualify as a service animal.  

Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or to promote emotional well-being are not service animals. [48]

The Department, in the previously reference proposed rules, acknowledges that there are situations in which an animal providing emotional comfort and support should be covered by access provisions, but seems to regard this as largely a perspective appropriate for employment environments and housing:

[T]here are situations …, particularly in the context of residential settings and employment, [49] where there may be compelling reasons to permit the use of animals whose presence provides emotional support to a person with a disability. Accordingly, other federal agency regulations governing those situations may appropriately provide for increased access for animals other than service animals. [50]

An animal that provides comfort and support may be used by an individual whose impairments “do not rise to the level of a disability.” [51] The preamble to the proposed DOJ rules notes that “emotional support” animals are covered under the Air Carrier Access Act and implementing regulations (as discussed in the following section), but air carrier access involves separate considerations than access to other places of public accommodation.

3. Service and Support Animals for Individuals with Mental Health Disabilities in Department of Transportation Rules

The Department of Transportation (DOT), [52] in the preamble to recently issued final rules on air carrier responsibilities, summarized comments on the issue of emotional support animals as follows:

Unlike other service animals, emotional support animals are often not trained to perform a specific active function, such as pathfinding, picking up objects, carrying things, providing additional stability, responding to sounds, etc. This has led some service animal advocacy groups to question their status as service animals and has led to concerns by carriers that permitting emotional support animals to travel in the cabin would open the door to abuse by passengers wanting to travel with their pets. [53]

While acknowledging that there could be abuse here, the final rules limit access of emotional support animals to individuals with a diagnosed mental or emotional disorder, and carriers may insist on “recent documentation from a licensed mental health professional to support the passenger’s desire to travel with such an animal.”   The final rule fleshes out the documentation requirement:

If a passenger seeks to travel with an animal that is used as an emotional support or psychiatric service animal, you are not required to accept the animal for transportation in the cabin unless the passenger provides you current documentation (i.e., no older than one year from the date of the passenger's scheduled initial flight) on the letterhead of a licensed mental health professional (e.g., psychiatrist, psychologist, licensed clinical social worker, including a medical doctor specifically treating the passenger’s mental or emotional disability [54] ) stating the following:

    (1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders--Fourth Edition (DSM IV);

    (2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger's destination;

    (3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and

    (4) The date and type of the mental health professional's license and the state or other jurisdiction in which it was issued. [55]

Carriers may also require advance notice of 48 hours of a passenger’s wish to travel with an emotional support animal. [56]     This may be a significant burden if the individual must fly on an emergency basis, such as to a funeral. “Of course, like any service animal with a passenger wishes to bring into the cabin, an emotional support animal must be trained to behave properly in a public setting.”  

The Department of Transportation noted that businesses in airport terminals, such as restaurants and stores, are not covered by the rules applicable to airlines, but rather to those imposed by the Department of Justice, and that Department of Justice rules (described earlier) may deny access to an animal that the airlines might have to accept.   Therefore, an individual with an emotional support animal might arrive at an airport and not be able to take an animal into a restaurant, despite being able to later take the animal onto a airplane.   The DOT is reduced to counseling on this issue:

[A] concession could, without violating DOJ rules, deny entry to a properly documented emotional support animal that an airline, under the ACAA [Air Carrier Access Act], would have to accept. On the other hand, nothing in the DOJ rules would prevent a concession from accepting a properly documented emotional support animal. We urge all parties at airports to be aware that their services and facilities are intended to serve all passengers. Airlines, airport operators, and concessionaires should work together to ensure that all persons who are able to use the airport to access the air transportation system are able equally to use all services and facilities provided to the general public. [57]

In 2005, the Department of Transportation issued technical assistance regarding the rights of the disabled to air transportation, which included directives regarding access of the disabled with service animals. [58]  

The Department of Transportation recently issued regulations concerning flights to the United Kingdom, noting that UK carriers have more restrictive pet policies than U.S. carriers. [59]    UK law generally provides that only guide and assistance dogs may accompany owners in the passenger cabin on a flight. [60]

4. Assistance Animals for Individuals with Mental Disabilities in Federal Housing Rule s

Regulations under Title 24 of the Code of Federal Regulations, Housing and Urban Development, create requirements regarding service animals in three separate locations: [61]

1. 24 CFR Part 100: Discriminatory Conduct under the Fair Housing Act; Subpart D: Prohibition against Discrimination Because of a Handicap, under the section concerning “Reasonable Accommodations.” [62]
2. 24 CFR Part 5: General HUD Program Requirements; Waivers; Subpart C: Pet Ownership for the Elderly or Persons with Disabilities, under the section concering “Exclusion for Animals that Assist Persons with Disabilities.”   This section provides rules for the elderly, as well as persons with disabilities. [63] As will be discussed below, this section was recently amended.  
3. 24 CFR Part 960: Admission to, and Occupancy of, Public Housing; Subpart G: Pet Ownership in Public Housing, under the section concerning “Animals that Assist, Support, or Provide Service to Persons with Disabilities.” [64]

(a) Reasonable Accommodations under the Federal Fair Housing Act. Under the first item on the preceding list, it is unlawful for a person to refuse to make reasonable accommodations to afford a person with a disability an equal opportunity to use and enjoy a dwelling unit, including public and common use areas. [65] An example in the regulations indicates that refusing to rent an apartment to an applicant with a guide dog because of a no-pets policy is a violation of the “reasonable accommodations” requirement. [66]

(b) Pet Ownership in HUD-Assisted Housing for the Elderly and Disabled.   In October 2008, the Department of Housing and Urban Development amended regulations governing requirements for pet ownership in HUD-assisted public housing and multifamily housing projects for the elderly and persons with disabilities. [67]   The amended provision, 24 CFR 5.303, reads as follows:  

Exclusion for animals that assist, support, or provide service to persons with disabilities.

    (a) This subpart C does not apply to animals that are used to assist, support, or provide service to persons with disabilities. Project owners and PHAs [public housing agencies] may not apply or enforce any policies established under this subpart [such as no-pet policies] against animals that are necessary as a reasonable accommodation to assist, support, or provide service to persons with disabilities. This exclusion applies to animals that reside in projects for the elderly or persons with disabilities, as well as to animals that visit these projects.

    (b) Nothing in this subpart C:

    (1) Limits or impairs the rights of persons with disabilities;

    (2) Authorizes project owners or PHAs to limit or impair the rights of persons with disabilities; or

    (3) Affects any authority that project owners or PHAs may have to regulate animals that assist, support, or provide service to persons with disabilities, under federal, state, or local law.

This amendment substantially conforms 24 CFR 5.303 to 24 CFR 960.705, the latter applying to animals that reside in public housing other than housing developments for the elderly or persons with disabilities.   Prior to the amendment to Part 5, a tenant had to certify that he or a member of his family was a person with a disability, the animal had been trained to assist persons with that specific disability, and the animal actually assisted with that disability.   This requirement was eliminated. Now, according to the preamble, public housing agencies—

are authorized to verify that the animal qualifies as a reasonable accommodation under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) (Section 504) and the Fair Housing Act (Title VIII of the Civil Rights Act of 1968, as amended (42 U.S.C. 3601-3631)). An animal qualifies as a reasonable accommodation if: (1) An individual has a disability, as defined in the Fair Housing Act or Section 504, (2) the animal is needed to assist with the disability, and (3) the individual who requests the reasonable accommodation demonstrates that there is a relationship between the disability and the assistance that the animal provides. [68]

Thus, the certification requirement may have been eliminated, but a demonstration requirement remains.   The preamble elaborates:

To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the person's disability. Thus, in the case of assistance/service animals, an individual with a disability must demonstrate a nexus between his or her disability and the function the service animal provides. The Department's position has been that animals necessary as a reasonable accommodation do not necessarily need to have specialized training. Some animals perform tasks that require training, and others provide assistance that does not require training. This position is also articulated in the Public Housing Occupancy Guidebook and the Multifamily Occupancy Handbook.

Housing providers are entitled to verify the existence of the disability, and the need for the accommodation--if either is not readily apparent. Accordingly, persons who are seeking a reasonable accommodation for an emotional support animal may be required to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides support that alleviates at least one of the identified symptoms or effects of the existing disability. [69]

In addition, housing providers are not required to provide any reasonable accommodation that would pose a direct threat to the health or safety of others. Thus, if the particular animal requested by the individual with a disability has a history of dangerous behavior, the housing provider does not have to accept the animal into the housing. Moreover, a housing provider is not required to make a reasonable accommodation if the presence of the assistance animal would (1) result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by a reasonable accommodation; (2) pose an undue financial and administrative burden; or (3) fundamentally alter the nature of the provider's operations. [70]

HUD indicates a willingness to interpret an appropriate animal’s functions broadly enough to include emotional support:

Examples of disability-related functions, include, but are not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support. [71]

To commenters who objected that HUD was creating different standards than those issued by the Department of Justice under the Americans with Disabilities Act, HUD noted:

There is a valid distinction between the functions animals provide to persons with disabilities in the public arena, i.e., performing tasks enabling individuals to use public services and public accommodations, as compared to how an assistance animal might be used in the home. For example, emotional support animals provide very private functions for persons with mental and emotional disabilities. Specifically, emotional support animals by their very nature, and without training, may relieve depression and anxiety, and help reduce stress-induced pain in persons with certain medical conditions affected by stress. Conversely, persons with disabilities who use emotional support animals may not need to take them into public spaces covered by the ADA.

(c) Other Public Housing.   As noted above, HUD also has rules for public housing other than housing developments for the elderly or persons with disabilities in 24 CFR Part 960. [72]   Here, HUD also allows a refundable deposit for pets, and other requirements, but excepts service animals from these requirements. [73]

5. State Laws on Use of Service Animals by Individuals with Mental Disabilities

As noted previously, many states confine the legal protections of individuals with service animals to those who are physically disabled or mobility impaired.   Individuals with psychological disabilities have more often been successful in obtaining permission to retain animals that provide emotional support in housing accommodations than elsewhere, in large part because other individuals are less likely to be bothered by what a neighbor does behind the door of his apartment. [74]  

Before early 2009 when the law changed in Utah, an emotional support animal could go anywhere that a service animal went, provided a letter was obtained from a “mental health therapist,” except a restaurant. [75] One case from Washington concerned a dog that would put herself between her master and other people, thereby lessening the owner’s anxiety attack. [76] There was some question as to whether the dog had been trained to engage in this “circling” behavior, and the appellate court remanded the case for trial on the issue of the animal’s qualifications as a service animal. Similar cases will be discussed below in the section regarding verification disputes.

F. Atypical Service Animals

Most state laws refer to guide dogs and hearing or signal dogs, but many refer to service or assistance animals.   In Iowa, an assistive animal is a trained “ simian or other animal….” [77] The Department of Transportation in elaborating on the requirement that service animals be allowed to accompany individuals with disabilities “in vehicles and facilities,” states:

Service animals shall always be permitted to accompany their users in any private or public transportation vehicle or facility. One of the most common misunderstandings about service animals is that they are limited to being guide dogs for persons with visual impairments…. Other animals (e.g., monkeys ) are sometimes used as service animals as well. In any of these situations, the entity must permit the service animal to accompany its user. [78]

Monkeys and even apes can therefore sometimes qualify as service animals.   Miniature horses have been trained to be guides, though only a small number are so far working with blind people. [79] Cats have been recognized as providing support to the emotionally impaired, at least in the cases involving rental accommodations. [80]

The suitability of unusual animals was considered by the Department of Justice in proposing revisions to 28 CFR Part 36.   The current definition of service animal in Part 36 states that a service animal 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….” [81]   The change proposed in June 2008 would define a service animal as “any dog or other common domestic animal…. The term service animal does not include wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, [82] miniature horse, pony, pig, or goat), ferrets, amphibians, and rodents.” [83]

The preamble describes the concern of the Department of Justice with the proliferation of animals used by individuals, finding that the area “needs some parameters.”  

When the regulations were promulgated in the early 1990s, the Department did not define the parameters of acceptable animal species, and few anticipated the variety of animals that would be used in the future, ranging from pigs and miniature horses to snakes and iguanas….

To establish a practical and reasonable species parameter, the Department proposes to narrow the definition of acceptable animal species to “dog or other common domestic animal ” by excluding the following animals: Reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, or goats), ferrets, amphibians, and rodents. [84]

Although miniature horses are being used as guides, it appears that they are not common domestic animals. The preamble also notes:

The Department is compelled to take into account practical considerations of certain animals and contemplate their suitability in a variety of public contexts, such as restaurants, grocery stores, and performing arts venues. [85]

The Department of Justice finds support for excluding monkeys in a position statement of the American Veterinary Medical Association, which stated: “The AVMA does not support the use of nonhuman primates as assistance animals because of animal welfare concerns, the potential for serious injury and zoonotic [ animal to human disease transmission] risks.” [86] Thus, in the state of Iowa at least, a monkey might be recognized as a service animal for state law purposes, but not for certain federal law purposes.

This is another area where federal regulatory agencies do not fully agree.   In May 2008, the Department of Transportation revised air travel regulations under the Air Carrier Access Act, including applying the rules to foreign carriers. [87]   Significant changes were made to the provisions regarding access for individuals traveling with service and support animals.   The Department of Transportation, like the Department of Justice, noted the proliferation of unusual animals as pets and supposed service animals, but stated the following:  

Because they make for colorful stories, accounts of unusual service animals have received publicity wholly disproportionate to their frequency or importance. Some (e.g., tales of service snakes, which grow larger with each retelling) have become the stuff of urban legends. A number of commenters nevertheless expressed concern about having to accommodate unusual service animals. To allay these concerns, the Department has added language to the final rule specifying that carriers need never permit certain creatures (e.g., rodents or reptiles) to travel as service animals. For others (e.g., miniature horses, pot-bellied pigs, monkeys [88] ), a U.S. carrier could make a judgment call about whether any factors (e.g., size and weight of the animal, any direct threat to the health and safety of others, significant disruption of cabin service) would preclude carrying the animal. Absent such factors, the carrier would have to allow the animal to accompany its owner on the flight. Any denial of transportation to a service animal would have to be explained, in writing, to the passenger within 10 days. [89]

Thus, it would appear that miniature horses, which can weigh less than many dogs, receive some level of recognition from the Department of Transportation.   Presumably a carrier could use the afore-cited position statement of the American Veterinary Medical Association to argue that monkeys pose a direct threat to the health of others. [90]   

G. False and Questionable Claims of Service Animal Status

In the preamble to its recently proposed revisions to access provisions regarding service animals, the Department of Justice notes that it “continues to receive a large number of complaints from individuals with service animals.”

At the same time, some individuals with impairments—who would not be covered as individuals with disabilities--are claiming that their animals are legitimate service animals, whether fraudulently or sincerely (albeit mistakenly), to gain access to hotels, restaurants, and other places of public accommodation. [91]

Some states have explicitly criminalized misrepresentation of a dog as a guide, signal, or service dog, [92] though other states may be able to bring a criminal action for such a misrepresentation under general fraud statutes.             

H. Therapy Dogs

Therapy dogs are usually privately owned pets that have received behavioral training to provide comfort to individuals in institutional settings, including hospital, nursing and retirement homes, mental institutions, schools, facilities for autistic and abused children, halfway houses for prisoners, and other environments including individuals who have been in stressful situations such as natural disasters.   The similarity in training of service and therapy dogs, as well as the American Kennel Club test to become a “canine good citizen,” are indicated in Table 1: Testing Criterion for Service Dogs, Therapy Dogs, and Canine Good Citizen Designation.   Although the particular testing program for service dogs used here (Assistance Dogs International) requires three tasks specific to the disabled individual served, the other testing requirements are substantially the same as those for the other two categories.   Even though a service dog would be covered by most access rules, a therapy dog would only be covered by access provisions in few circumstances, and a canine good citizen would, without other qualifications, probably never be covered by access rules.   This is not meant to be a complete survey of training approaches, but does indicate that high levels of training often overlap to a considerable degree among the more established and recognized therapy dog organizations.  

Therapy dogs are only referred to in the statutes of a few states, although the therapy dog movement has been around for more than 20 years and there are tens of thousands of therapy dogs providing many functions in the United States.   Kansas defines a professional therapy dog as—

a dog which is selected, trained and tested to provide specific physical or therapeutic functions, under the direction and control of a qualified handler who works with the dog as a team, and as a part of the handler's occupation or profession. Such dogs, with their handlers, perform such functions in institutional settings, community based group settings, or when providing services to specific persons who have disabilities. [95]  

The final sentence of the provision would exclude most certified therapy dogs, however, by stating that a professional therapy dog “does not include dogs, certified or not, which are used by volunteers for pet visitation therapy.”

A “qualified handler of a professional therapy dog” may bring such a dog on public transportation, into motels, hotels, and other temporary lodging places, and into businesses and establishments to which the public is invited, “including establishments which serve or sell food.”   Because the definition of professional therapy dog presumes that the animal lives in an institutional setting, no rental accommodations are mentioned.

If a question arises as to whether a dog handler is qualified, or whether the dog accompanying the handler is qualified as a professional therapy dog, to enter in or upon the places [of public accommodation], and amendments thereto, an employee or person responsible for such places may request, and the qualified handler shall produce, an identification card or letter, provided by the training facility, school or trainer who trained the dog. Such card or letter shall contain the following information: (1) The legal name of the qualified dog handler; (2) the name, address and telephone number of the facility, school or trainer who trained the dog; (3) information documenting that the dog is trained to provide therapeutic supports; and (4) a picture or digital photographic likeness of the qualified handler and the dog. If a card is used, the picture or digital photographic likeness shall be on the card. If a letter is used, the picture or digital photographic likeness shall either be printed as a part of the letter or be affixed to the letter. [96]

It is a misdemeanor in Kansas to represent oneself as having the right to be accompanied by an assistance dog or professional therapy dog into places of public accommodation. [97]

In New York, a therapy dog “any dog that is trained to aid the emotional and physical health of patients in hospitals, nursing homes, retirement homes and other settings and is actually used for such purpose, or any dog owned by a recognized training center located within the state during the period such dog is being trained or bred for such purpose.” [98]

A therapy animal, is defined for purposes of the Oregon criminal interference statutes, is an animal that has been professionally trained for, and is actively used for, therapy purposes.” [99]

Utah has a unique provision regarding therapists:

Owners, operators, and regulators of places [of public accommodation] are encouraged to permit a mental health therapist to be accompanied by a psychiatric therapy animal in the course of providing mental health therapy to a person with a disability on the same basis as a person with a disability is permitted to be accompanied by a service animal…. [100]

Utah’s criminal interference statute previously included psychiatric therapy animals before the law's amendment in early 2009. [101]

Access to public accommodations should be legislatively permitted when therapy dogs are being taken to and from appointments, similar to the limited access provisions in a few states regarding search and rescue dogs. [102]   Such access provisions should not apply to therapy dogs in training, however, since such animals are primarily pets and are not generally permitted to go on any assignments prior to certification.  

I. Access Rights of Trainers and Handlers

Before highly trained guide dogs are given to blind or partially blind individuals, they must undergo rigorous training.   Trainers must teach the dogs how to handle the environments in which they will live and work.   Most states, therefore, provide access rights to trainers, though many states insist that trainers be employees of recognized training dog schools.   Trainers must, under many codes, be prepared to produce documentation on their connection with a recognized training school, and that the dog is being trained to be a service animal. [103] The frequent references to recognized or accredited schools, centers, or organizations in the state codes indicate that many state legislatures anticipated that state governmental agencies (whether responsible for dog registration and licensing, agricultural regulation, or otherwise) would maintain lists of, or somehow know about, reputable service dog training facilities. [104]  

The Department of Justice, in the preamble to the previously discussed proposed rules issued in June 2008, said that commenters had recommended training standards as a means of differentiating untrained pets and service animals. The preamble emphasizes the DOJ’s insistence that “service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability, but has never imposed any type of formal training requirements or certification process.” [105]

Because of the variety of individual training that a service animal can receive--from formal licensing at an academy to individual training on how to respond to the onset of medical conditions, such as seizures--the Department is not inclined to establish a standard that all service animals must meet. While the Department does not plan to change the current policy of no formal training or certification requirements, some of the behavioral standards that it has proposed actually relate to suitability for public access, such as being housebroken and under the control of its handler. [106]

This fails to take into consideration the increasing reliance of the industry on testing and certification, something commenters had brought up by noting that “without training standards the public has no way to differentiate between untrained pets and service animals.” [107]   It also fails to take into consideration the fact that if no standard training or certification can be relied upon, businesses dealing with access issues, and courts dealing with disputes, are often left to make decisions that should more properly be left to those more familiar with industry standards.   As noted in the above discussion regarding therapy dogs, the underlying tests of many organizations show considerable uniformity in what is required for an animal to be designated as qualified for a service or therapy responsibility.  

III: VERIFYING SERVICE ANIMAL STATUS

Another area of considerable confusion concerns how a trained animal’s status may be verified by a place of public accommodation.   Given the proliferation of functions that service animals, and particularly service dogs, perform, it is not surprising that business owners find it difficult to distinguish service animals from household pets.   It is also not surprising that some pet owners take advantage of this confusion to assert that their pets are service animals.   They may even think this, given what they see on news reports.   Unfortunately, some training schools and internet sites that purport to train or certify service dogs also take advantage of the confusion. [108]   One website allows an individual to get a “personalized service dog certificate,” a vest saying the dog is a service dog, and other paraphernalia, by doing no more than checking a box to indicate that the user’s dog satisfies most of the items on a 10-point checklist.   That is Step 1 on the website.   Step 2 is to select a payment option to transfer $249 to the organization issuing the certificates. [109]

It should be emphasized again that any trained animal, even a guide dog, may be excluded from a place of public accommodation if it is out of control and the handler cannot get it under control, is not housebroken, is disruptive in a way that fundamentally alters the service the public accommodation provides (e.g., barking during a musical performance), or if the animal poses a threat to the health or safety of others. [110]  

A. Verification under Department of Justice Rules

A public accommodation, according the proposed rules of the Department of Justice, may inquire about the qualifications of a service animal:

A public accommodation shall not ask about the nature or extent of a person's disability, but can determine whether an animal qualifies as a service animal . For example, a public accommodation may ask if the animal is required because of a disability; and what work or task the animal has been trained to perform. [111] A public accommodation shall not require documentation, such as proof that the animal has been certified or licensed as a service animal . [112]

Verification involves a determination that the animal is qualified, but at least indirectly a determination that the individual served is disabled. The prohibition on requiring documentation deserves further consideration. [113]   Since states register and license dogs and provide tags (often through political subdivisions), providing proof of certification could easily be part of the registration process.   Animals that qualify as guide, hearing, or service status in many states receive identifiable tags or leashes.   This could, at least at the state level, be a means of distinguishing service animals for the non-visibly disabled from house pets, arguably with less stress on the service dog user that an inquiry about what tasks a service animal can perform.

B. Verification under Department of Transportation Rules

Except for emotional support animals, the evidence of an animal’s status as a service animal under Department of Transportation rules is very loose:

As evidence that an animal is a service animal, you must accept identification cards, other written documentation, presence of harnesses, tags, or the credible verbal assurances of a qualified individual with a disability using the animal. [114]

In a guide published for the airline industry in 2005, [115] the Department of Transportation said the following concerning service animal status:

Under particular circumstances, you may see a need to verify whether an animal accompanying a passenger with a disability qualifies as a service animal under the law. You must accept the following as evidence that the animal is indeed a service animal :

• The credible verbal assurances of a passenger with a disability using the animal ,
• The presence of harnesses or markings on harnesses,
• Tags, or
• Identification cards or other written documentation…. [116]

Keep in mind that passengers accompanied by service animals may not have identification or written documentation regarding their service animals….

Carriers may require that passengers traveling with emotional support animals present current documentation (i.e., dated within a year of the date of travel) from a mental-health professional stating that:     

• The passenger has a mental health-related disability;
• The passenger needs the animal for the mental-health condition; and
• The provider of the letter is a licensed mental-health professional (or a medical doctor) and the passenger is under the individual's professional care.

Even if you receive sufficient verification that an animal accompanying a passenger is indeed a service animal , if the service animal 's behavior in a public setting is inappropriate or disruptive to other passengers or carrier personnel, you may refuse to permit the animal on the flight and offer the passenger alternative accommodations in accordance with [14 CFR part 382] and your carrier's policy (e.g., accept the animal for carriage in the cargo hold).

Example 1: A passenger arrives at the gate accompanied by a pot-bellied pig. She claims that the pot-bellied pig is her service animal . What should you do?

While generally speaking, you must permit a passenger with a disability to be accompanied by a service animal , if you have a reasonable basis for questioning whether the animal is a service animal , you may ask for some verification. Usually no written verification is required.

You may begin by asking questions about the service animal , e.g., “What tasks or functions does your animal perform for you?” or “What has its training been?” If you are not satisfied with the credibility of the answers to these questions or if the service animal is an emotional support animal , you may request further verification.

You should also call a CRO [Compliance Resolution Official] if there is any further doubt in your mind as to whether the pot-bellied pig is the passenger's service animal .

Finally, if you determine that the pot-bellied pig is a service animal , you must permit the service animal to accompany the passenger to her seat as long as the animal doesn't obstruct the aisle or present any safety issues and the animal is behaving appropriately in a public setting.

Example 2: A deaf passenger is planning to board the plane with his service animal . The service animal is a hearing dog and is small enough to sit on the deaf passenger's lap. While waiting to board the flight, the hearing dog jumps off the passenger's lap and begins barking and nipping at other passengers in the waiting area. What should you do?

Since you have already made the determination that the hearing dog is a service animal and may accompany the deaf passenger on the flight, you may reconsider the decision if the dog is behaving in a manner that seems disruptive and infringes on the safety of other passengers. You should carefully observe the hearing dog's behavior and explain it in detail to a CRO (if the CRO is on the telephone). If, after careful consideration of all the facts presented, the CRO decides not to treat the dog as a service animal , you should explain your carrier's policy regarding traveling with animals that are not being allowed in the passenger cabin as service animals.

If an airline declines to accept an animal as a service animal, it “must explain the reason for your decision to the passenger and document it in writing.   A copy of the explanation must be provided to the passenger either at the airport, or within 10 calendar days of the incident.” [117]

Commenters to the proposed rules that preceded the final rules adopted by the Department of Transportation had argued against requiring carriers to accept service animals based on “credible verbal assurances,” and that airlines should be able to insist on evidence of certification.   To this, the Department responded:

Under U.S. law (the ADA as well as the ACAA), it is generally not permissible to insist on written credentials for an animal as a condition for treating it as a service animal. It would be inconsistent with the ACAA to permit a foreign carrier, for example, to deny passage to a U.S. resident's service animal because the animal had not been certified by an organization that the foreign carrier recognized. When flying to or from the United States, foreign carriers are subject to requirements of U.S. nondiscrimination law, though carriers may avail themselves of the conflict of laws waiver and equivalent alternative provisions of this Part. We acknowledge that some foreign carriers may be unused to making the kinds of judgment calls concerning the credibility of a passenger's verbal assurances that the Department's service animal guidance describes, and which U.S. carriers have made for over 17 years. However, the comments do not provide any persuasive evidence that foreign carriers are incapable of doing so or that making such judgment calls will in any important way interfere with the operation of their flights. [118]

The DOT precludes foreign carriers, absent a conflict of laws waiver, from imposing certification or documentation requirements for dogs beyond those permitted U.S. carriers. [119]

C. Federal Fair Housing Act Disputes on Service Animal Status

A case arising in West Virginia under the Federal Fair Housing Act and state law concerned a couple with dogs residing of a cooperative housing project.   The case demonstrates the difficulties that may arise without a certification system for establishing a dog’s status as a service animal. [120] The housing project originally permitted pets, but in 1996 the stockholders voted to phase out animals.   As a result, tenants could not replace dogs and other pets that died, though an exception was made for seeing-eye, hearing-aide, and dogs trained and certified for a particular disability.   A stockholder had to obtain a certificate or authorization request from a licensed physician specializing in the field of the specified disability.   Two tenants, the Jessups, purchased two dogs and presented a physician’s statement that “it is a medical necessity for [the Jessups] with their present health ailments to be able to keep their pets to suppress both the physical and mental need for companionship as well as the confinement due to the various illnesses.”   The board rejected the request of the Jessups to keep the two dogs.   The trial court found for the board, noting:

None of the [Jessups'] physician statements correlate dogs, generally, or the Jessups' two dogs, specifically, to the claimed disabilities. Nor has there been any link by expert affidavit or other offering that these two dogs are a necessary reasonable accommodation. The “necessity” for these dogs as indicated by the physicians is not related to any specific disability and is not related to the Jessups' ability to stay or live at Kenna Homes. In other words, even if one accepts the physician's statements as true, the Jessups can live and function at Kenna Homes without their dogs.

The Jessups appealed.   The appellate court reviewed statutes under the Americans with Disabilities Act, West Virginia fair housing statutes, and relevant cases. [121]   Although the court found that a dog might not have to be professionally trained, it must be individually trained, since “a dog cannot acquire discernable skills as a service dog without some type of training.”   Further, “federal case law holds that an animal does not have to have professional credentials in order to be a service animal under the FFHA.   This is because there appear to be no uniform standards or credentialing criteria applied to all service animals or animal trainers.” [122] There is no federal or West Virginia certification process.  

The court found, however, that under the Federal Fair Housing Act and the West Virginia Fair Housing Act, [123] a landlord may require a tenant seeking to keep a service animal—

to demonstrate that he or she made a bona fide effort to locate a certifying authority and, if such authority is located, to subject the service animal to the specialized training necessary for such certification. If the tenant fails to locate a certifying authority, it is reasonable for the landlord or person similarly situated to attempt to locate a certifying authority and, if one is located, to require certification of the service animal. If neither the tenant nor the landlord or person similarly situated can locate a certifying authority after reasonable attempts to do so, it is reasonable for the landlord or person similarly situated to require that a recognized training facility or person certify that the service animal has that degree of training and temperament which would enable the service animal to ameliorate the effects of its owners disability and to live in its owner's household without disturbing the peace of mind of a person of ordinary sensibilities regarding animals.

The court, therefore, accepted that something very similar to certification was needed despite the absence of a legal certification requirement. Further:

In order to show that the disabled person needs the assistance of a service animal to ameliorate the effects of his or her specific disability, it is reasonable to require the opinion of a physician who is knowledgeable about the subject disability and the manner in which a service dog can ameliorate the effects of the disability….

[W]here a tenant suffers from a disability which is not apparent to a person untrained in medical matters, it is reasonable for a landlord or person similarly situated to require a second concurring opinion from a qualified physician selected by the landlord or person similarly situated to substantiate the tenant's need for a service animal.

The court affirmed the lower court’s decision that the housing project could require the Jessups to get additional verification of the skills of their dogs and their need to have them.

As discussed above, HUD has amended regulations governing requirements for pet ownership in HUD-assisted public housing and multifamily housing projects for the elderly and persons with disabilities.   Prior to the October 2008 amendment to Part 5, a tenant had to certify that he or a member of his family was a person with a disability, the animal had been trained to assist persons with that specific disability, and the animal actually assisted with that disability.   This requirement was eliminated, and HUD now requires “an identifiable relationship, or nexus, between the requested accommodation and the person's disability.”   Further, as noted above:  

Housing providers are entitled to verify the existence of the disability, and the need for the accommodation--if either is not readily apparent. Accordingly, persons who are seeking a reasonable accommodation for an emotional support animal may be required to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides support that alleviates at least one of the identified symptoms or effects of the existing disability. [124]

It is not clear if the documentation provided by the individuals in the lawsuit just discussed would be regarded as adequate by HUD. [125]  

D. State Verification Requirements

As with the federal government, many states have provisions regarding procedures that are appropriate for places of public accommodation that may question an animal’s status as a service animal.   States themselves and their political subdivisions may also verify service animal status for (1) waivers or reductions of license and registration fees, (2) special tagging or gear requirements, and (3) validation that trainers are working for qualified training schools. [126]  

1. Verification by Public Accommodations under State Law

Only nine states statutorily specify that access is to be allowed if the dog is wearing specially colored gear or a distinctive tag, though given local administration of tagging this approach likely applies in more areas. [127]   Some states provide that access is to be allowed if the handler presents a credential for inspection that has been issued by a training school. [128] Kansas allows training facilities to issue identification cards or letters with specified information to persons using dogs they have trained, but individuals who have trained their own dogs can obtain identification cards by applying to the state. [129]   Utah encourages persons accompanied by service animals to display the animal’s identification card, a service vest, or other form of identification. [130]   Handlers of professional therapy dogs, as well as trainers of assistance dogs, are also to carry identification cards in Kansas.

Some states indicate the dog’s status as a guide, signal, or service dog on its license, but do not specify whether such identification is to be used to assure access, though this can probably be assumed. [131]   Some states specify that a charge of criminal interference with a service dog can only be lodged if the dog is wearing distinctive gear. [132] Some states allow a business to which a disabled person is seeking access to ask what special tasks the dog can perform. [133]  

More specific and sometimes stringent identification requirements are required in some states for trainers than for the disabled who ultimately use the dogs. [134]

West Virginia does not permit demands for proof of an animal’s service status. [135]   In Arizona, discrimination includes “[r]equiring provision of identification for the service animal.” [136] In Nevada, it is unlawful for a place of public accommodation to require proof that an animal is a service animal or service animal in training. [137]   However, the place of public accommodation may:

(a) Ask a person accompanied by an animal:

(1) If the animal is a service animal or service animal in training; and

(2) What tasks the animal is trained to perform or is being trained to perform.

(b) Ask a person to remove a service animal or service animal in training if the animal:

(1) Is out of control and the person accompanying the animal fails to take effective action to control it; or

(2) Poses a direct threat to the health or safety of others. [138]

Thus, states vary considerably in how their registration and licensing systems provide evidence of a dog’s special status. [139]   To the extent the special status is indicated by gear and tagging, disputes as to the status of a service animal are reduced.   This is particularly the case where a service dog is accompanying an individual with a non-visible condition.  

2. Verification by State and Local Governments

Many states do not charge owners of service dogs any licensing fee, and the owner will have to provide a document from a training school stating what the dog has been trained to be or do. [140] Some states indicate the dog’s status as a service dog on tags issued to such animals, or mandate or recommend that owners of such dogs use specifically colored gear. [141]   Ohio has a very complicated assistance dog registration law:  

When an application is made for registration of an assistance dog and the owner can show proof by certificate or other means that the dog is an assistance dog, the owner of the dog shall be exempt from any fee for the registration. Registration for an assistance dog shall be permanent and not subject to annual renewal so long as the dog is an assistance dog. Certificates and tags stamped “Ohio Assistance Dog-Permanent Registration,” with registration number, shall be issued upon registration of such a dog…. Duplicate certificates and tags for a dog registered in accordance with this section, upon proper proof of loss, shall be issued and no fee required. Each duplicate certificate and tag that is issued shall be stamped “Ohio Assistance Dog-Permanent Registration.” [142]

Tennessee law specifically conditions access to places of public accommodation on the disabled person or trainer first having “presented for inspection credentials issued by an accredited school for training dog guides.” [143]   As noted above, trainers of guide dogs must often be able to verify to places of public accommodation that they are training an animal at a recognized training school.  

IV: RECOMMENDATIONS

Uniformity of enforcement, and fairness to both governments and businesses, requires several changes that would involve changing the laws of most states and federal recognition of the those laws in verification procedures. The authors, therefore, make four specific recommendations:

1. State licensing authorities should verify that an individual with an animal he or she claims to be a service animal has a physical or mental disability.   For visible conditions, the government agent may observe the condition and note that this requirement is satisfied on the appropriate registration form.   For conditions where the service provided by the animal is not apparent, such as with a mobility impaired individual who uses the animal for balance, the government agent may ask the applicant the nature of the service provided by the animal. For non-visible and psychiatric conditions, the government agent may request a letter from a physician, psychiatrist, social worker, or other medical professional stating that the applicant suffers from a physical or mental condition that is alleviated by the tasks that the dog performs or by the companionship of the dog.

Inquiries and questions regarding an animal’s status, even if legitimate, can be embarrassing and can result in an individual limiting her choice of stores to those where the employees have previously acknowledged the qualification of a service dog.   Requiring that employees of public accommodations ask what the animal does, without asking what the individual suffers from, are naïve.   The individual will often have to explain what she suffers from in order to explain what the dog does for her. Thus, all states should take the approach of HUD, in recognizing that an individual with diagnosed psychiatric conditions may appropriately gain access with her animals if there is a nexus between the individual’s condition and the presence of the animal and that nexus can be verified by a letter from a medical professional.  

The authors believe that it is better for the individuals served, as well as for public environments, if dogs are trained at least at some minimal level—not to be aggressive, to be housebroken, etc.   A training requirement, however, cannot apply equally to all service animals in that some service animals, such a seizure-alert dogs, may develop the skill with minimal or no training, though their continued recognition of oncoming seizures will often be rewarded and, in that sense, reinforced and trained.

The authors have experienced, and all dog owners know, that the reaction of an owner or employee of a restaurant or store may often depend on factors that have nothing to do with the qualifications of the dog, such as whether other customers are complaining, the dog is wet from rain and shaking itself, the owner does not like dogs, and so forth.   Taking a service dog into a store may be fine one day when one store manager is on duty, but may cause a problem the next day when another store manager is working. The better approach is to make the state licensing authorities into society’s primary gatekeepers. To do this successfully, states should provide officials registering and licensing dogs with sufficient training to recognize when an individual has a disability that can be alleviated by the tasks or presence of a specially trained animal.    

2. State licensing authorities should verify if the applicant’s service animal has been trained to perform tasks related for the applicant’s condition, unless, as with psychiatric service dogs, a sufficient nexus is established by the letter of a medical professional.   Verification of service dog status may be made by reviewing a certificate of training of the service animal issued by a training school or organization that the state recognizes as training dogs for the disability of the applicant.   If the dog has been trained by the applicant, the government agent may conduct an appropriate test to verify the dog’s skills in performing tasks related to the individual’s disability.   Alternatively, the government agent may require the applicant to have the animal tested by a recognized training school or organization before proceeding with the application.  

The reluctance of the federal agencies, and of many state codes, to accept a certification system makes recognition of service dogs helping individuals with non-visible conditions more difficult.   In the June 2008 proposed rules, the Department of Justice provided that a “public accommodation shall not require documentation, such as proof that the animal has been certified or licensed as a service animal .” [144]   The Department’s objection to establishing a standard for “all service animals” to meet because of the “variety of individual training that a service animal can receive,” certainly acknowledges the complexity of a licensing system that would look to the qualifications of different types of service animals, but many service animals receive high levels of training (service dogs for autistic children, seizure-response dogs), or provide unique services (seizure-alert dogs), that could be verified by the training institution or an appropriate medical authority.   As noted previously, many states allow trainers of service dogs access to public accommodations when those trainers are affiliated with recognized training institutions.   This presumes that states, at least to varying degrees, have officials with knowledge of the more established institutions in the state.   This knowledge could be shared with licensing authorities.   Also, many states do not charge licensing or registration fees for owners of service dogs, and presumably rely on produced training or certification documentation to approve such waivers.   If no system for recognizing training and testing organizations is in place, such a system should be instituted.   The burden of this process can be reduced if states uniformly acknowledge the testing and certification procedures of the national and more reputable local organizations.   Admittedly, some states may have to investigate the legitimacy of some local training organizations.   This information could be kept in a shared federal/interstate database to which local agencies would have access.

3. State licensing authorities should issue a license to an applicant with a guide, signal, or service animal stating that the animal qualifies under state law as a service animal.   State licensing authorities should provide specially colored tags that can be prominently displayed on the animal’s collar, leash or harness.

A number of states already provide for specially identifiable or colored tags, and this approach should be adopted by all states. It might also be appropriate that licenses issued contain digitalized pictures of the owner and the service animal.   In any case, individuals serviced should obtain an identification document from the organization that has trained or certified a service dog, preferably with a picture of both the dog and the user.   State officials might also encourage owners of service and other trained dogs to use collars and/or leashes of specific colors, even if no law requires such gear. [145]   A separate tagging and color system could be provided to therapy dogs and search and rescue dogs to make public accommodation access easier when they are traveling to and from assignments. As noted above, the Department of Transportation allows identification of a service animal by the “presence of harnesses, tags , or the credible verbal assurances of a qualified individual with a disability using the animal.” [146] Other federal agencies should adopt the same procedure.    

Licensing and tagging service and support animals in a way to make them distinguishable from household pets would admittedly not resolve all disputes.   Some individuals only begin to think about the services their animals perform after an event such as a landlord’s adoption of a no-pets policy, but the number of disputes would be reduced and the ultimate comfort of service dog users would be increased.  

4. States should provide special licenses and tags to animals qualifying for limited temporal access.   These types of animals include therapy dogs (providing emotional benefits to various populations to which the handler takes the animal for visitations), and search and rescue dogs.   Such dogs should be licensed for admission to places of public accommodation, including restaurants, while being transported to and from assignments, or while on assignments.  

Thus, therapy dogs should have limited access privileges as search and rescue dogs already do in Connecticut and New Hampshire.   In addition to the special licenses and tags, it would also be desirable to require therapy dog handlers to follow procedures similar to those required in Kansas for handlers of professional therapy dogs, so that the handler should carry a photo identification card with a picture of the handler and the dog, the name and address of the handler, and a statement of the state-recognized training facility that the dog has been trained.

The law should recognize that with the increasing number of functions that dogs provide in the service and therapeutic spheres, there will be instances, as there already are in some states, where access rights should be recognized with limits of space or time.   Search and rescue dogs in two states have access rights when going to and from assignments.   Such limited-access rights might also someday be needed for cancer-sniffing and other disease-detection dogs that accompany health care workers in remote areas.

V: FINAL OBSERVATIONS

The model for exceptions to no-pets policies has been complete access for guide, signal, and service dogs for the mobility impaired or, more often, physically disabled.   Increasingly, service dogs for individuals with mental disabilities, often called psychiatric service dogs, are allowed full access to public accommodations.   Emotional support animals are to be admitted generally under Department of Transportation and Department of Housing and Urban Development rules.   Trainers of guide, signal, and service dogs have access rights in most states, and handlers of search and rescue dogs have limited access rights in at least two states.   Therapy dogs have access rights if they are used full-time by institutions in only one state.

The model for verification of service animal qualification has been, taking a general perspective, verification by function under Department of Justice rules, verification by nexus between the dog’s function and the individual’s condition under Department of Housing rules, and verification by identification cards, other written documentation, use of harnesses, tags, or even credible verbal assurances under Department of Transportation rules.   State laws sometimes follow the Department of Justice reluctance to ask about the individual’s condition, but sometimes allow for investigation that might not be acceptable under federal rules.   Some states provide special licenses and unique tags to individuals served by service animals, and assistance dog training facilities often provide such items, with or without actual legal significance.   Unfortunately, there has arisen an internet trade of providing certification cards and service dog paraphernalia with only self-verification by persons willing to pay hundreds of dollars to give themselves the trappings of owning a service dog.

Providing access to service animals and their trainers is generally based on the civil rights of those benefiting from the animals.   Even where the individual seeking the access is not himself disabled, such as with a trainer for service animals, or a handler of a professional therapy dog in Kansas, the ultimate justification for the exception to a no-pets policy concerns the beneficiary of the animal’s training.   That is, the animal must be able to learn to respond to the disadvantaged individual or population it serves in environments that individual or population will use or live.   In the case of a search and rescue dog traveling to a disaster site, the animal must be able to reach the location where it is to perform its function as a trained dog.   Although some uniformity in access rules is provided by federal rules, licensing and tagging procedures remain matters of state and local law, and uniformity in these procedures would probably require a greatly increased degree of cooperation among the states.  

Formal recognition of the value of dogs to individuals who are disabled is less than a century old, and more medical and therapeutic functions are being given to dogs all the time, meaning unfortunately that the present confusion of laws and procedures is likely to increase.   The legal system should be flexible enough to adapt to new services that dogs can perform, but this flexibility should be accompanied by uniformity that, at the moment, seems to be wishful thinking.