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Evolving Functions of Service and Therapy Animals and the Implications for Public Accommodation Access Rules

John Ensminger and Frances Breitkopf*


Animal Legal & Historical Center
Publish Date:
2009
Place of Publication: Michigan State University College of Law
Printable Version

Evolving Functions of Service and Therapy Animals and the Implications for Public Accommodation Access Rules

 

 

 

Table of Contents:

I. Situations Demonstrating Problems Arising From the Lack of Uniformity in Trained Dog Access Rules

II. Types of Service and Therapy Animals and Related Access Issues

  1. Service Animals Defined
  2. Guide Dogs
  3. Signal Dogs
  4. Service Dogs for Individuals with Other Physical Disabilities 

1.      Mobility Impairment

2.      Seizure-Alert Dogs

3.      Seizure-Response Dogs

4.      The Problem of Non-visible Physical Disabilities

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

1.      Dogs and Autism

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

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

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

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

 

F.       Atypical Service Animals

G.     False and Questionable Claims of Service Animal Status

H.     Therapy Dogs

I.         Access Rights of Trainers and Handlers

III. Verifying Service Animal Status

 

  1. Verification under Department of Justice Rules
  2. Verification under Department of Transportation Rules
  3. Federal Fair Housing Act Disputes on Service Animal Status
  4. State Verification Requirements
  5.  

      1. Verification by Public Accommodations under State Law
      2. Verification by State and Local Governments

IV.Recommendations

 

V. Final Observations

 

 

Topics & Links – Other Documents in the Web Center:

 

Assistance Animal Topic Area

 

Emotional Support Animals & Housing Topic Area 

 

 

Non-Web Center Resources:

Creature Comforts, Rebecca Skloot, NY Times Magazine (12/31/2008)

available at http://www.nytimes.com/2009/01/04/magazine/04Creatures-t.html?_r=3&sq=panda%20horse&st=cse&scp=1&pagewanted=all

 

 

 

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 Rules

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. 

Table 1: Testing Criterion for Service Dogs, Therapy Dogs, and Canine Good Citizen Designation

 

Service Dogs[93] (Assistance Dogs International)

Therapy Dogs

(Therapy Dogs International)

Canine Good Citizen

Basic Obedience

Required commands (90% of time for training completion)

Required commands:

Required commands:

  Sit

Required

Required (CGC)

Required

  Sit-stay

Required

Required (CGC)

Required

  Lie down

Required

Required (CGC)

Required

  Heel

Required

(staying near handler)

Required

(walking on a loose lead, heeling next to handler)

Test 3[94] (walking on loose lead, heeling next to handler)

  Come

Required

Required

Test 7 (come when called)

Urinate and defecate on command

Required

Cannot during test or working

 

Calm demeanor in public

Required (does not annoy member of the general public, disrupt normal course of business, vocalize unnecessarily)

Required: Test 1 (acceptance of friendly stranger); Test 2 (sitting politely for petting); Test 4 (walking through a crowd)

Required (walking on loose lead; no jumping)

Reaction to distractions

“able to perform tasks in public”

Loud sound, jogger running; walk by items being dropped, thrown, people yelling

Test 9 (reaction to distraction)

Leave-it command

Required

Required

 

Reaction to medical equipment

Not specifically mentioned but would be required if individual served used specific medical equipment

Dog must be tested around and not negatively reactive to common medical equipment (wheelchair, crutches, cane, walker, etc.)

 

Reaction to strangers

Required (no aggression towards people or other animals)

Required: Test 11 (say hello); tolerant of being held very tightly (sometimes done by mental patients, Alzheimer’s patients), yelled at, poked, etc.

Test 1 (accepting a friendly stranger); Test 2 (sitting politely for petting); Test 4 (walking through a crowd); Test 8 (reaction to another dog)

Supervised separation

 

3 minutes

Test 10 (supervised separation)

Appearance and grooming

Required to be neat

Required

Required: Test 3

Specific tasks

3 tasks to mitigate the client’s disability

N/A

N/A

Identification

Laminated ID card

Laminated photo ID

Certificate

Gear

Cape, harness, backpack, or other similar piece of equipment or clothing with a logo

Anything that helps (and does not impede) dog being handled, held, stroked, hugged, etc.

N/A

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.   

  1. 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.

  1. 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. 

  1. 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.  



* John Ensminger is a tax lawyer and specialist in anti-money laundering programs for financial institutions.  His book, Service and Therapy Dogs in American Society: Science, Law and the Evolution of Canine Caregivers, will be published by Charles C. Thomas, Ltd. (ccthomas.com), in 2010.  He can be reached at jensminger@msn.com.  Frances Breitkopf is the past president of the Ulster Dog Training Club in Ulster County, New York, of which John is also a member.  Fran can be reached at brightrose22@yahoo.com. Both authors own therapy dogs.  © John Ensminger 2010.

[1] This article discusses only certain aspects of state and federal statutory and regulatory law that are unique to trained dogs, specifically definitions of the various types of trained animals, access rights, and verification of status (including licensing and tagging).  State laws often also distinguish such animals from pets with regard to (1) traffic precautions (right of way at intersections for the blind accompanied by guide dogs, and often for the deaf and mobility impaired), (2) crimes (separate crimes for interference with a disabled person’s use of a guide, signal, or service dog; some states have separate cruelty statutes regarding trained dogs; some states have laws regarding interference or injury caused to a service dog by a house pet; some states specify that interference statutes do not apply if the disabled person with the animal was in the process of committing a crime when the interference occurred), (3) civil and criminal damages (veterinary bills for injuries, costs of different accommodations required by the loss of the animal, replacement costs including training costs), (4) license fees (often waived for service dogs), (5) rights to keep in disasters or emergencies, including the right to keep a service dog with the owner in an ambulance, (6) quarantine provisions (less rigorous quarantine provisions for service dogs), (7) exemption from state sales tax, (8) eligibility for food stamps and social service program reimbursements, (9) deductibility in determining eligibility for food stamps and other social services, (10) provision for school children (for mobility and safety), (11) programs for prisoners to train service animals, and (12) exemption from municipal fines for failure to clean up feces. 

[2] 28 CFR 36.104. The same wording is used by the Department of Transportation in 49 CFR 37.3.

[3] The Equal Employment Opportunity Commission proposed in September 2009 to expand the definition of major life activities as a result of the ADA Amendments Act of 2008, PL 110-325 (September 25, 2008). It is likely that similar rules will be issued by other agencies.  See EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, as Amended,” 74 Fed. Reg. 48431 (September 23, 2009) (proposing 29 CFR 1630.2(i)).

[4] The preamble to recently proposed revisions to regulations under the Americans with Disabilities Act of 1990, 28 CFR Part 36, Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, indicates that commenters urged elimination of the phrase regarding minimal protection, but the Department of Justice believes it should be retained but understood to exclude attack dogs that pose a threat to others. 73 Fed. Reg. 34516. Some commenters had noted that the mere presence of a dog may act as a crime deterrent and thus provide minimal protection, but the Department argues that this interpretation was not contemplated. 73 Fed. Reg. 34521. The Department cites dogs that alert individuals of an oncoming seizure, or responding to the seizure, as the sort of situation contemplated.

[5] The wording does not seem to cover seizure-alert dogs, as will be discussed further below, but the items specified are said not to be all inclusive.

[6] Proposed 28 CFR 36.104. 

[7] Arkansas (Public Health Code § 20-14-304(a)), Colorado (Government Code § 24-34-803(7)), Delaware (Commerce & Trade Code § 6-45-4502), Georgia (Handicapped Persons Code § 30-4-2), Hawaii (Blind and Visually Handicapped Persons Code § 7-347-13), Idaho (Public Welfare Code § 56-701A(7)), Illinois (Civil Liabilities Code § 740.13/5), Indiana (individual having a physical disability or “medical condition;” Criminal Code § 35-46-11.5(a)), Louisiana (Public Welfare Code § 46.1952), Maine (Criminal Code § 17.1312.7, referring to personal care dogs), Massachusetts (Criminal Code 1.272.98A), Mississippi (Criminal Code § 97-41-21(5)(g), referring to a service dog for a “physically limited” individual), Missouri (Public Health & Welfare Code § 12.209.150.4), New Jersey (Civil Rights Code § 10:5-5.dd, referring to disability but defining this with physical ailments, including seizures), Oklahoma (Blind Persons Code § 7.19.1.D.2), Oregon (Education & Culture Code § 346.680), South Dakota (Personal Rights Code § 20-13-23.2), and Tennessee (Professions, Businesses and Trades Code § 62-7-112(a)).  References to state codes in this article attempt to identify the portion of the state’s statutory system the code is located in. 

[8] Connecticut (with regard to transportation access, Human Rights Code §§ 46a-44(a), (b)), Maryland (Disabilities Code § 7-704(c)(4); see Disabilities Code § 7-705(d)), New Hampshire (Public Safety Code § 12.167-D:1.IX), and Ohio (Agriculture Code § 955.011(B), but defining mobility impaired as including seizure disorders).

[9] Some state statutory systems do not separately define any or all categories of service animals, but refer to such guide, signal, and service dogs (by whatever terms) in provisions providing access rights to users, discrimination and criminal interference statutes, and otherwise.  Apparently in this category are Alaska, Arkansas, Connecticut, Georgia, Michigan, Nebraska, South Dakota, Tennessee, and Vermont.  Some states do not post searchable versions of administrative codes and other pronouncements on which state officials may rely for enforcement purposes. 

[10] A 1996 letter signed by the Assistant Attorney General of the Department of Justice Civil Rights Division and the President of the National Association of Attorneys General (posted on many websites including www.ada.gov/animal.htm), provides some basic guidelines regarding access rules.  The letter indicates that 24 state attorneys general are distributing a similar document along with state-specific requirements “to associations representing restaurants, hotels and motels, and retailers for dissemination to their members.”  The 24 states were Alaska, Arizona, California, Connecticut, Florida, Hawaii, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Dakota, Washington, and Wisconsin. 

[11] Dorothy Harrison Eustis, “The Seeing Eye,” Saturday Evening Post, p. 43 (November 5, 1927).

[12] Nevada Business Code § 651.075.2 (place of public accommodation may ask a person with a service animal or service animal in training to remove it if it is out of control and the person accompanying the animal fails to take effective action to control it or it poses a direct threat to the health or safety of others).

[16] Alaska (7 AAC 43.755: school or shop); Delaware (Welfare Code § 31-2117: public conveyance); Kentucky (Animal Control Code § 258.500(3)); Mississippi (Public Welfare Code § 43-6-155: public conveyance); Ohio (Agriculture Code § 955.43(A): public conveyance); Pennsylvania (52 Pa. Code § 29.102: dog to be properly leashed and may not occupy seat in a public conveyance); and West Virginia (General Powers Code § 5-15-4(c)).  The U.S. Department of Transportation, in issuing final rules discussed in detail below, seemed not to be totally against the idea of a service animal occupying a seat, but indicated that it would not often be necessary: “If a flight is totally filled, there would not be any seat available to buy. If the flight had even one middle seat unoccupied, someone with a service animal could be seated next to the vacant seat, and it is likely that even a large animal could use some of the floor space of the vacant seat, making any further purchase unnecessary. Of course, service animals generally sit on the floor, so it is unlikely that a service animal would ever actually occupy a separate seat.” 73 Fed. Reg. 27635.

[17] See Brook v. Ineichen, 54 F.3d 425 (7th Cir. 1995) (Two profoundly deaf women who owned a dog named Pierre filed a complaint with the Madison Equal Opportunities Commission after their landlord tried to evict Pierre.  The women claimed the dog was a signal dog and, after they lost their jobs and moved, they filed an action for discrimination in federal court. Pierre’s status as a hearing dog was contested, and both sides produced evidence on the matter. “Other than their own protestations and self-serving affidavits which were undermined at trial, plaintiffs offered no evidence that Pierre had ever had any discernible skills. The defendant, on the other hand, introduced evidence that Pierre was not a hearing dog--the testimony of plaintiffs' former roommate and the defense expert—and impeached plaintiffs on a number of aspects of their testimony including the claim that Pierre had been certified at a training center.” Though a jury could have rationally found for the defendant, the trial court’s jury instructions were “a muddle” and the appellate court remanded for a new trial.)

[19] Proposed 28 CFR 36.104. 

[21] New Hampshire Public Safety Code § 12.167-D:5. A deaf or hearing impaired person is to provide a “hearing ear dog” with a leash and harness colored international orange. No color is specified for guide dogs for the blind but they are to have “a leash and harness designed specifically for this purpose.”

[22] A Guide to the Air Carrier Access Act and Its Implementing Regulations, 70 Fed. Reg. 41481, 41488 (July 19, 2005).

[23] Florida Social Welfare Code § 413.08(1)(d). The National Conference of State Legislatures states in “Epilepsy-Related Legislation 2000-2002,” that Florida was the first state to allow people with seizure disorders and epilepsy the right to be accompanied by a trained service dog in specific circumstances.” (www.ncsl.org/programs/health/epilepsy3.htm).

[25]. Ohio defines a mobility impaired person as an individual with a seizure disorder. Oh. Agriculture Code § 955.011(B)(1).

[26] Ohio defines a mobility impaired person as an individual with a seizure disorder. Oh. Agriculture Code § 955.011(B)(1).

[27] Epilepsy Institute, “Seizure Alert Dog Study” (emphasis added) (www.epilepsyinstitute.org/forms/index.htm).

[28] Rafael Ortiz and Joyce Liporace, “Seizure-Alert Dogs: Observations from an Inpatient Video/EEG Unit,’ 6(4) Epilepsy & Behavior, pp. 620-622 (June 2005) (abstract posted at www.sciencedirect.com/science?_ob=ArticleURL&_udi=B6WDT-4FW7R0N-1&_user=10&_rdoc=1&_fmt=&_orig=search&_sort=d&view=c&_version=1&_urlVersion=0&_userid=10&md5=7cfe3e01d406323ebc12a47b60cf6732).

[29] D.J. Dalziel, B.M. Uthman, S.P. McGorray, and R.I. Reep, “Seizure-Alert Dogs: A Review and Preliminary Study,” 12(2) Seizure, pp. 115-20 (March 2003).

[30] V. Strong, S. Brown, M. Huyton, and H. Coyle, “Effect of Trained Seizure Alert Dogs on Frequency of Tonic-Clonic Seizures,” 11(6) Seizure pp. 402-5 (September 2002).  Another study reported untrained dogs suffering “significant adverse health effects as a result of spontaneously reacting to, or anticipating, seizures in human owners,” which raises the question of whether a service function could have an element of cruelty.  V. Strong and S.W. Brown, “Should People with Epilepsy Have Untrained Dogs as Pets?” 9(6) Seizure pp. 427-30 (September 2000).

[31] A. Kirton, E. Wirrell, J. Zhang, and L. Hamiwka, 64(3) Neurology 581 (February 2005).

[32] A. Kirton, A. Winter, E. Wirrell, and O.C. Snead, Seizure Response Dogs: Evaluation of a Formal Training Program, 13(3) Epilepsy Behavior 499-504 (October 2008).

[33] D.J. Dalziel, B.M. Uthman, S.P. Mcgorray, and R.L. Reep, Seizure-Altert Dogs: A Review and Preliminary Study, 12(2) Seizure 115-120 (March 2003).

[34] The skill, where it exists, may not be correlated with the dog’s smelling some chemical change.  Cancer sniffing dogs may be trained and have a far higher success rate.  One study found dogs were particularly good at detecting lung cancer (99% overlap with biopsy-confirmed diagnoses), but very good with breast cancer as well (88% overlap).  M. McCulloch, T. Jezierski, M. Broffman, A. Hubbard, K. Turner, and T. Janecki, “Diagnostic Accuracy of Canine Scent Detection in Early- and Late-Stage Lung and Breast Cancers,” 5(1) Integr. Cancer Ther. Pp. 30-9 (March 2006).

[35] 73 Fed. Reg. 66384, 63836 (emphasis added).  The “reasonable accommodation” concept is also found in Department of Labor requirements.  See 29 CFR 1630.2(o), 1630.9.  The Appendix to 29 C.F.R. Part 1630 states “it would be a reasonable accommodation for an employer to permit and individual who is blind to use a guide dog at work, even though the employer would not be required to provide a guide dog for the employee.” See also Timberlane Mobile Home Park v. Human Rights Commission ex rel. Campbell, 122 Wn. App. 896 (2004) (dog that responded to migraines of tenant and alerted friends of the tenant of tenant’s need for assistance was not a service animal because the animal’s behavior was not the result of training). 

[37] Wikipedia, “Seizure Respone Dog,  (http://en.wikipedia.org/wiki/Seizure_response_dog).

[38] States that restrict functions of service animals to the blind, deaf, and mobility impaired, might not include such animals, but as noted previously, Ohio defines mobility impairment as including seizures. 

[39] The invisibility of mental health disabilities has been recognized as a reason why the rights of individuals with such disabilities are too easily ignored.  See Michael L. Perlin, “Lecture: A Law of Healing,” 68 University of Cincinnati Law Review 407, 424 (Winter 2000).

[40] The invisibility of individuals with mental health disabilities has been recognized as a reason why their rights are too often ignored.  See Michael L. Perlin, “Lecture: A Law of Healing,” 68 University of Cincinnati Law Review 407, 424 (Winter 2000).

[41] 73 Fed. Reg. 63835 (emphasis added).

[42] Autism Service Dogs of America has a website (http://autismservicedogsofamerica.com/about.cfm).

[43] Wilderwood Service Dogs, a nonprofit organization, maintains a website with materials including an embedded video that demonstrates dogs working with autistic children (http://autism.wilderwood.org).

[44] A Canadian program training dogs for placement with autistic children teaches the dogs to respond to the commands of the parent though the dog is on a leash with the autistic child and the leash is tied around the child’s waist to prevent him or her from running into traffic or other danger.  The parent may hold a separate leash.  The dog is taught to slow down when coming to a curb.  Kristen E. Burrows, Cindy L. Adams, and Suzanne T. Millman, Factors Affecting Behavior and Welfare of Service Dogs for Children with Autism Spectrum Disorder, 11(1) Journal of Applied Animal Welfare Science 42-62 (2008).

[47] Stopping self-mutilation is often part of training of service dogs serving autistic children.

[48] Proposed 28 CFR 36.104. 

[49] The preamble notes that the Department of Housing and Urban Development uses the term “assistance animal,” and that this usage denotes “a broader category of animals than is covered by the ADA.” 73 Fed. Reg. 34521.

[52] Department of Transportation rules regarding access to “vehicles and facilities” under 49 CFR 37.167, mention service animals in connection with sight, hearing, and mobility impairments, but do not mention individuals with mental disabilities.  See Appendix D to 49 CFR Part 37, 61 Fed. Reg. 25416.

[54] The final phrase before the end-parenthesis was added in technical corrections.  74 Fed. Reg. 11469, 11471 (March 18, 2009).

[56] The advance notice requirement and other issues were criticized by the Psychiatric Service Dog Society in a petition to the Department of Transportation, which sought public comment on  the issues raised by the Society in September 2009.  Department of Transportation, “Nondiscrimination on the Basis of Disability in Air Travel: Request for comments on petition for rulemaking,” Docket OST-2009-0093, 74 Fed. Reg. 47902 (September 18, 2009). 

[58] A Guide to the Air Carrier Access Act and Its Implementing Regulations, 70 Fed. Reg. 41481 (July 19, 2005).  See also the section of the preamble to the final regulations in 2008 entitled “Guidance Concerning Service Animals,” 73 Fed. Reg. 27657 (May 13, 2008).

[59] Department of Transportation, Notice of Guidance Concerning the Carriage of Service Animals in Air Transportation from the United States to the United Kingdom,” 72 Fed. Reg. 8268 (February 26, 2007).

[60] 72 Fed. Reg. 8271 (citing the UK’s Civil Aviation Authority’s Flight Operations Department Communication 3/2005 (March 11, 2005)).

[61] See also Notice PIH 2002-01 (HA) (January 31, 2003), in which the Office of Public and Indian Housing of the Department of Housing and Urban Development issued accessibility guidance under which recipients of federal housing funds must “allow a tenant with a disability to have an assistive animal if the animal is needed as a reasonable accommodation.” (“However, all provisions of the lease apply, such as maintaining the premises in clean and sanitary condition and ensuring that neighbors enjoy their premises in a safe and peaceful manner.”)

[62] 24 CFR 100.204. Under 24 CFR 100.5(b), “[t]his part [Part 100] provides the Department’s interpretation of the coverage of the Fair Housing Act regarding discrimination related to the sale or rental of dwellings, the provision of services in connection therewith, and the availability of residential real estate-related transactions.” Additional requirements may be imposed on federal and federally-assisted housing, so this requirement is included in the types of housing referred to in the following two items of the list. 24 CFR 100.5(c).

[63] 24 CFR 5.303. Subpart C “implements section 227 of the Housing and Urban-Rural Recovery Act of 1983 (12 U.S.C. 1701r-1) as it pertains to projects for the elderly or persons with disabilities….” 25 CFR 5.200(a).

[64] 24 CFR 960.705. Under 24 CFR 960.101, “[t]his part [Part 960] is applicable to public housing.”

[67] Department of Housing and Urban Development, “Pet Ownership for the Elderly and Persons With Disabilities,” RIN 2501-AD31, 72 Fed. Reg. 63833 (October 27, 2008).  Proposed rules were issued for comment in October 2007.  72 Fed. Reg. 58448 (October 15, 2007).

[69] See the discussion of In re Kenna Homes Cooperative Corporation below. 

[71] 73 Fed. Reg. 63836 (emphasis added).

[74] Crossroads Apartments Associates v. LeBoo, 152 Misc.2d 830 (NY 1981) (tenant permitted to demonstrate emotional and psychological dependence on cat); Prindable v. Association of Apartment Owners of 2987 Kalakaua, 304 F. Supp.2d 1245 (D. Hi. 2003) (condominium complex could impose restrictions on access of emotional support animal to common areas); Terrace Associates v. Hampshire, 532 N.E.2d 712 (Mass. 1989) (tenant had emotional attachment to and perhaps psychological dependence on cat, so question for court was whether burdens on housing project were undue given benefits to tenant; absence of noises, odors, and fact tenant was ideal tenant indicate only reason for eviction was that she had a dog; “a narrow exception to the rigid application of the no-pet rule, involving no untoward collateral consequences, will enable a handicapped person to continue to function successfully on her own.”)

[75] Utah Human Services Code § 62A-5b-102(2). Former text:  "The owner may obtain access to place of public accommodation other than restaurants if he has “specific documentation from a mental health therapist that the animal is needed …. by the person to address a mental health condition….”  The person must have a disability, although the disability could arguably be different from the mental health condition. 

[78] Appendix D to 49 CFR Part 37, 56 Fed. Reg. 45621 (September 6, 1991) (emphasis added).

[79] The Guide Horse Foundation, founded in 1999, is seeking volunteers to try using miniature horses, which commonly live 25 to 35 years, a third longer than large horses and much longer than guide dogs, which are often old at 12.  Miniature horses can be under two feet high and weigh not much above 20 pounds, making them smaller than many guide dogs.  To be in the foundation’s program, a horse has to be less than 26 inches high at the withers.  The Foundation says that guide horses do not crave affection as dogs do, allowing them to focus on their guide tasks.  They do not get fleas and have bladder control up to six hours. The Guide Horse Foundation has a website devoted to this cause (www.guidehorse.org).

[80] See Janush v. Charities Housing Development Corp., 169 F. Supp.2d 1133 (ND Cal. 2000) (denying defendant’s motion to dismiss on grounds plaintiff’s two birds and two cats could not be service dogs, noting that 28 CFR 36.104 defines 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….”).

[82] The exclusion of farm animals would cover horses.  Horses are widely used in animal-assisted therapy (AAT), but one survey paper noted that while it is generally believed that cats are used in AAT, “we found no qualified studies that used a cat.” Janelle Nimer and Brad Lundahl, “Animal-Assisted Therapy: A Meta-Analysis,” 20(3) Anthrozoos 225-238 (2007).  There is a growing literature on horses in animal-assisted therapy.  See C.K. Chandler, Animal-Assisted Therapy in Counseling (Routledge 2005).

[83] Proposed 28 CFR 36.104.  Department of Justice, “Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,” 73 Fed. Reg. 34508 (June 17, 2008) (proposed amendments to 28 CFR Part 36, concerning nondiscrimination in public accommodations and in commercial facilities). See also 73 Fed. Reg. 34465 (June 17, 2008) (proposed amendments particularly to 28 CFR Part 35, concerning nondiscrimination in provision of state and local governmental services).  Two appendices “inadvertently omitted” from the latter release were subsequently published in the Federal Register on June 30. DOJ, Civil Rights Division, RIN 1190-AA46, 73 Fed. Reg. 36963 (June 30, 2008).  Neither document mentions service animal issues. The following description cites page numbers of the release beginning on page 34508 of the Federal Register.

[85] Id.

[86] Citing AVMA, “Nonhuman Primates as Assistance Animals” (2005) (www.avma.org/issues/policy/nonhuman_primates.asp).  There are also behavioral arguments against the use of monkeys.  An article concerning the welfare of service and therapy animals has this to say regarding capuchin monkeys as assistance animals:

In most cases, these programs [training capuchin monkeys to assist individuals with serious disabilities] have found it necessary to neutrer and surgically extract the canine teeh from the monkeys before they can be used safely with such vulnerable human partners.  Monkeys may also be required to wear remotely controlled, electric shock-collars or harnesses in order to provide the user with a means of controlling the animal’s potentially aggressive and unreliable behavior.  Clearly, the necessity of using of such extreme and invasive measures raises doubts abou the practical value of such programs, as well as serious ethical questions concerning the welfacre of the animals involved.

James A. Serpell, Raymond Coppinger, and Aubrey Fine, The Welfare of Assistance Animals, Chapter 18 in Fine, Aubrey (ed.), Handbook on Animal-Assisted Therapy: Theoretical Foundations and Guidelines for Practice (Academic Press 2000).

[87] Department of Transportation (DOT), “Nondiscrimination on the Basis of Disability in Air Travel; Final Rule,” RINs 2105-AC97, 2105-AC29, 2105-AD41, 73 Fed. Reg. 27613 (May 13, 2008).  The Department had issued a notice of proposed rulemaking (NPRM) in November 2004 to apply the Air Carrier Access Act to foreign carriers.  DOT, RIN 2105-AC97, 69 Fed. Reg. 64363 (November 4, 2004), among other things proposing to move the provisions of 14 CFR 382.55, regarding access with service animals, to 382.117.  Another NPRM, which included proposals included in the final rules of 2008, concerned medical oxygen and portable respiration assistive devices, but did not mention service animals.  DOT, RIN  2105-AC29, 70 Fed. Reg. 53108 (September 7, 2005).  A third NPRM, issued in 2006, concerned accommodations for individuals who are deaf, hard of hearing, or deaf-blind, but also did not mention service animals.  DOT, RIN 2105-AD41, 71 Fed. Reg. 9285 (February 23, 2006). 

[88] It is not clear whether the Department of Transportation meant for monkeys to have this somewhat optional category in 49 CFR 37.167, as to which its own commentary stated that “[o]ther animals (e.g. monkeys) are sometimes used as service animals…. In any of these situations [service animals that are not guide dogs], the entity must permit the service animal to accompany its user.” Appendix D to 49 CFR Part 37, 56 Fed. Reg. 45621 (September 6, 1991).

[89] 73 Fed. Reg. 27636 (emphasis added).

[90] The Department of Transportation also issue rules regarding accessibility standards for cruise ships and other passenger vessels. See “Transportation for Individuals with Disabilities: Passenger Vessels,” RIN 2105-AB87, 72 Fed. Reg. 2833 (January 23, 2007) (“[F]oreign countries may limit entry of service animals; this should not affect the carriage of service animals on the vessel, however, since there is no requirement that the animal leave a cruise ship.”).

[92] California (Food & Agricultural Code § 30850 (person applying for assistance dog tag must sign affidavit that the dog is a guide, signal, or service dog); Penal Code § 365.7(a) (punishable by imprisonment of not more than six months, or a fine no above $1,000, or both)), Hawaii (unlawful to counterfeit a license tag; guide, signal, and service dogs are designated as such on licenses); Kansas (Social Welfare Code § 39-1112: misdemeanor to represent oneself as having the right to be accompanied by an assistance dog or professional therapy dog into a place of public accommodation; also a misdemeanor to represent oneself has having a disability to acquire an assistance dog), Maine (Criminal Code § 17.1314-A: civil violation to fit a dog with a harness to represent that a dog is a guide dog, fine of not more than $100); Missouri (Public Health & Welfare Code § 12.209.204: impersonating a person with a disability to receive accommodations provided to people with service dogs is a misdemeanor; second or subsequent violation increases the level of the misdemeanor; impersonating a person with a disability can be by word or action); Nevada (Public Welfare Code § 426.510.6(a): using a service animal contrary to public welfare law is a misdemeanor;  Public Welfare Code § 426.805: fraudulent misrepresentation of an animal as a service animal or service animal in training subject to fine of not more than $500); New Hampshire (Public Safety Code § 12.167-D:7.II: unlawful to fit a dog with a collar, leash, or harness so as to represent it as a guide, hearing, or service dog, and thus to misrepresent the physical status of the person); New Jersey (Civil Rights Code § 10:5-29.5: fitting a dog with a harness to represent the dog as a guide dog, or otherwise interfering with the rights of a person with a disability accompanied by a guide or service dog, is a crime with a fine of not less than $100 or more than $500); North Carolina (Disabilities Code § 168-4.5: unlawful to disguise an animal as a service animal or service animal in training); Texas (Human Resources Code § 121.006: fitting animal to represent it as an assistance animal when training has not been provided is a misdemeanor punishable by a fine of not more than $200); Utah (Human Services Code § 62A-5b-106: crime to misrepresent an animal as a service animal or to misrepresent a material fact to a health care provider to obtain documentation to designate an animal as an assistance animal); and Washington (Public Health Code § 70.84.060: unlawful to use a dog guide to secure rights and privileges of blind or partially blind, hearing impaired, or physically disabled).

[94] Test numbers refer to the test of Assistance Dogs International, Inc., which requires that dogs be Canine Good Citizens and pass additional testing requirements (testing requirements posted at http://www.tdi-dog.org/tditesting.html).

[98] New York Agriculture Code § 108.26.  In the interest of full disclosure, the authors of this article have been involved in drafting legislation in New York state that would allow limited access for therapy dogs while going to or from or on assignments. 

[102] Search and rescue dogs, dogs that use their sense of smell to find escaped convicts, bodies, lost children, etc., are increasingly owned by private individuals and rented as necessary by law enforcement agencies.  Like therapy dogs, privately owned search and rescue dogs are usually pets when they are not using the skills for which they have been trained.  Because they are rented to law enforcement (along with the services of their masters), these dogs often have to travel significant distances to perform their functions.  Two states, Connecticut and New Hampshire, have recognized the need that owners may have to obtain access to public accommodations and transportation facilities when they are going to and from assignments. Connecticut Crimes Code § 53-330a(a). Denial of rights to such a team member is a misdemeanor in Connecticut. Connecticut Crimes Code § 53-330a(b).  New Hampshire defines a search and rescue dog is “any dog which has been trained to perform typical search and rescue operations and is certified by a competent authority or holds a title from a competent authority or organization recognized by the office of the governor, department of safety, department of fish and game, or the Federal Emergency Management Agency or its successor agency.” New Hampshire Public Safety Code § 12.167-D:1.XI. Search and rescue dogs “involved in search and rescue missions at the request of a government agency” may be brought into the same places of public accommodation as guide, hearing, and service dogs “at the request of a government agency when such dogs are in the course of, or traveling to or from the scene of, their official duties.” New Hampshire Public Safety Code § 12.167-D:4. In Pennsylvania: “ It shall be unlawful for the proprietor, manager or employee of a theater, hotel, motel, restaurant or other place of entertainment, amusement or accommodation to refuse, withhold from or deny to any person, due to the use of a working police dog used by any State or county or municipal police or sheriff's department or agency, either directly or indirectly, any of the accommodations, advantages, facilities or privileges of the theater, hotel, motel, restaurant or other place of public entertainment, amusement or accommodation. Any person who violates any of the provisions of this subsection commits a misdemeanor of the third degree.” 3 P.S. § 459-602(c).  Since the dog may be “used” in law enforcement, it presumably does not need to be owned by a law enforcement agency and could, therefore, be rented as contemplated in the New Hampshire and Connecticut statutes.

[103] See Alabama (Handicapped Persons Code § 21-7-4: trainers of guide dogs); Arizona (Counties Code § 11-1024.E: anti-discrimination law includes trainer of service animal who is with an animal being trained); California (Civil Code § 54.1(7)(C): trainers of guide, signal, and service dogs may take them into public places; but see Proffer v. Columbia Tower, 1999 WL 33798637 (SD Cal. 1999) (landlord who permitted paraplegic tenant to maintain service dog did not have to accept other dogs the tenant hoped to train for other individuals with disabilities)); Colorado (Government Code § 24-34-803(2); Government Code § 24-34-803(7)(g): trainer of an assistance dog is “a person who is qualified to train dogs to serve as assistance dogs”); Connecticut (Human Rights Code §§ 46a-44(a), (b): Human Rights Code § 46a-44(d): a guide or assistance dog trainer is “a person who is employed by and authorized to engage in designated training activities by a guide dog organization or assistance dog organization that complies with the criteria for membership in a professional association of guide dog or assistance dog schools and who carries photographic identification indicating such employment and authorization, or a person who volunteers for a guide dog organization or assistance dog organization that authorizes such volunteers to raise dogs to become guide dogs or assistance dogs and causes the identification of such dog with (1) identification tags, (2) ear tattoos, (3) identifying bandanas on puppies, (4) identifying coats on adult dogs, or (5) leashes and collars.”); Florida (Social Welfare Code §§ 413.08(4), (8): trainer in the process of training a service animal has same access rights to public facilities as an owner, and is also liable for damages done by the animal); Georgia (Handicapped Persons Code § 30-4-2(b)(2): trainer of a guide or service dog has the same access rights as a user of such dogs, “so long as such trainer is identified as an agent or employee of a school for seeing eye, service, or guide dogs,” provided: “(A) Such dog is being held on a leash and is under the control of the person raising such dog for an accredited school for seeing eye, hearing, service, or guide dogs; (B) Such person has on his or her person and available for inspection credentials from the accredited school for which the dog is being raised; and (C) Such dog is wearing a collar, leash, or other appropriate apparel or device that identifies such dog with the accredited school for which such dog is being raise”); Idaho (Criminal Code § 18-5812B: access is not to be denied by a common carrier, hotel, restaurant, or other public place because an individual is accompanied by a “dog-in-training,” though “may be temporarily denied if the dog is poorly groomed so as to create a health hazard or the person accompanying the dog cannot maintain control of the dog.”): Illinois (Human Rights Code § 775.30/3: trainers of support dogs, guide dogs, seizure-alert dogs, seizure-response dogs, and hearing dogs have right of access to public accommodations equivalent to the rights of the physically disabled): Indiana (Health Code § 16-32-3-2(d): access rights of blind, deaf, and physically disabled apply to guide dog trainer while engaged in process of training a guide dog): Iowa (Human Services Code § 216C.11); Kansas (Social Welfare Code § 39-1109: professional trainer from a recognized training center, while engaged in training a dog, has the right to be accompanied by it into place of public accommodation.  If a question arises as to a trainer’s right to bring an assistance dog into a place of public accommodation, as with owners of assistance dogs, the trainer is to produce an identification card provided by the recognized training center with the following information: (1) Legal name of the trainer; (2) Name of the training center; (3) Address and telephone number of the training center; (4) Types of functions for which dogs are trained by the center; and (5) A picture or digital photographic likeness of the trainer); Kentucky (Animal Control Code § 258.500(7): trainers of assistance dogs are to have in their personal possession identification verifying that they are trainers of such dogs); Louisiana (Public Welfare Code § 46.1955: during training, a trainer or puppy raiser of an assistance dog has the same access rights to public facilities as physically disabled persons with assistance dogs have); Maine (Criminal Code § 17.1312.4); Maryland (Disabilities Code § 7-701(f); Disabilities Code §§ 7-705(a)(4), (c)); Massachusetts (Agriculture & Conservation Code §§ 19.129.39D, F); Minnesota (Public Welfare Code § 256C.02: “The service dog must be capable of being properly identified as from a recognized school for seeing eye, hearing ear, service, or guide dogs.”); Mississippi (Public Welfare Code § 43-6-155); Missouri (Public Health & Welfare Code § 12.209.152: trainer must be from a recognized training center to have same access right as a disabled individual); Montana (Human Rights Code §§ 49-4-214(3), (4): a dog in training to be a service animal “shall wear a leash, collar, cape, harness, or backpack that identifies in writing that the dog is a service animal in training.  The written identification for service animals in training must be visible from a distance of at least 20 feet.”); Nevada (Business Code § 651.075); New Hampshire (Public Safety Code § 12.167-D:4, D:1.VII: guide dog trainer is “any person who is employed by an organization generally recognized by agencies involved in the rehabilitation of blind and visually impaired as reputable and competent to provide dogs with training, and who is actually involved in the training process.”); New Jersey (Civil Rights Code § 10:5-29.3;Civil Rights Code § 10:5-5.t: guide or service dog trainer is a person “employed by an organization generally recognized by agencies involved in the rehabilitation of persons with disabilities as reputable and competent to provide dogs with training, and who is actually involved in the training process.”); New Mexico (Human Rights Code § 28-11-2); New York (Civil Rights Code § 47-b.3; Agriculture Code § 121-b.1(d): a formal training program or certified trainer is “an institution, group, or individual who has documentation and community recognition as a provider of service animals.); North Carolina (Disabilities Code § 168-4.2(b): access with a trainer allowed “when the animal is accompanied by a person who is training the service animal and the animal wears a collar and leash, harness, or cape that identifies the animal as a service animal in training.”); North Dakota (Disability Code § 25-13-02.1: trainer with an assistance dog in training may enter any place of public accommodation, common carrier, facility of a health care provider without being required to pay an extra charge for the dog provided (1) the trainer notifies an onsite manager that an assistance dog in training is being brought onto the premises; (2) the trainer wears a photo identification card issued by a nationally recognized dog training program; and (3) the trainer is liable for any damage done to the premises or facility by the assistance dog in training); Ohio (Agriculture Code § 955.43(A)(3)); Oklahoma (Blind Persons Code § 7.19.1.A, B: dog trainer must be from a recognized training center); Oregon (Education & Culture Code § 346.650; Education & Culture Code § 346.685); South Carolina (Social Services Code § 43-33-10(d)); Tennessee (Professions, Businesses and Trades Code § 62-7-112(a)(1)(B)(i): the “dog guide trainer shall first have presented for inspection credentials issued by an accredited school for training dog guides;” a dogs in training include “dogs being raised for an accredited school for training dog guides; provided, however, that a dog being raised for such purpose is: (a)  Being held on a leash and is under the control of its raiser or trainer who shall have available for inspection credentials from the accredited school for which the dog is being raised; and (b)  Wearing a collar, leash, or other appropriate apparel or device that identifies such dog with the accredited school for which it is being raised.”); Texas (Human Resources Code § 121.003(i)); Utah (Human Services Code § 62A-5b-104(2)); Virginia (Persons with Disabilities Code § 51.5-44: dog must be at least six months old “(i) in harness, provided such person is an experienced trainer of guide dogs; (ii) on a blaze orange leash, provided such person is an experienced trainer of hearing dogs; (iii) in a harness or backpack, provided such person is an experienced trainer of service dogs; or (iv) wearing a jacket identifying the recognized guide, hearing or service dog organization, provided such person is an experienced trainer of the organization identified on the jacket.”); and Wisconsin (Employment Code § 106.52(am)2: trainer can be required to produce certification or other credential issued by a school for training service animals that the animal is being trained to be a service animal).

[104] See the references to Connecticut, Georgia, Kansas, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Tennessee, and Wisconsin in the preceding footnote. 

[107] Id.

[108] Although reputable service dog organizations follow up on placement of service dogs, the authors have been advised that others do not, and that the rapid increase in service dog placements for autistic children may be leading to situations where dogs are being abused because some children are not capable of being handlers, at least without proper adult supervision.  Reputable organizations will have contact with all or at least most parties related to the care and education of an autistic child after the placement of a service dog, and will generally retain the right to reclaim the dog should it appear that the dog’s welfare is being endangered.  An organization that does not want to remain involved in a service dog placement should, in the opinion of the authors, be regarded as suspect.

[109] A disclaimer on the website states that the “purchaser understands and agrees that the only involvement by servicedogsamerica.org is to supply the represented information and equipment. Also, “Servicedogsamerica.org is not responsible for any actions legal or otherwise caused by the use of the equipment or printed material supplied.”  The website does note that “You can train your Service Dog to meet the specific needs of your disability.” 

[110] See, e.g., 28 CFR Part 36, Appendix B (noting that 28 CFR 36.302 “acknowledges that in rare circumstances, accommodation of service animals may not be required because a fundamental alteration would result in the nature of the goods, services, facilities, privileges, or accommodations offered or provided, or the safe operation of the public accommodation would be jeopardized”); Proposed 28 CFR 36.302(c)(2). See also proposed 28 CFR 35.136(b), 73 Fed. Reg. 34504; Alaska Criminal Code § 11.76.133(c)(2); Florida Social Welfare Code § 413.08(3)(e); and Nevada Business Code § 651.075.2.

[111] See DiLorenzo v. Costco Wholesale Corp., 515 F. Supp. 1187 (WD Wash. 2007) (“task or function” inquiry of shopper with dog, despite her production of a letter from her psychologist describing her disabilities and attesting to her suitability for use of a service animal, because (1) shopper claimed service animal status for her dog when it was a clearly untrained 12-week old puppy, (2) shopper’s husband brought dog into the store on another occasion without the shopper and claimed the dog was a comfort animal for him, (3) the shopper carried the dog in her arms, (4) dog could not alert shopper of panic attacks without prompting from shopper’s husband, so court found it “safe to say” the store’s employees could not witness the dog performing any task to assist the shopper with her disability.  Although inquiry was appropriate: “Clearly an inquiry would cease to be legitimate if it was used to harass or discourage people with disabilities from availing themselves of public accommodation. In this way, unduly repetitive questioning, after an adequate answer has been given, could suggest a pretext for discrimination, constituting an illegitimate inquiry. However, a similar course of action to what Defendant took here has been recognized as legitimate in the housing context.” The opinion states that the dog did in time become able to recognize panic attacks of its master and alert her, but shopper did not establish her claim under the Americans with Disabilities Act).

[112] Proposed 28 CFR 36.302(c)(6). 

[113] A letter signed by Deval Patrick, Assistant Attorney General of the Civil Rights Division of the Department of Justice, written July 26, 1996, and co-signed by Scott Harshbarger, President of the National Association of Attorneys General (posted on the ADA website at www.ada.gov/animal.htm), contained an attachment of “Commonly Asked Questions About Service Animals in Places of Business.” One such question was, “How can I tell if an animal is really a service animal and not just a pet?”  To this the attachment replied: “Some, but not all, service animals wear special collars and harnesses.  Some, but not all, are licensed or certified and have identification papers.”  Thus, it would appear that a state or local government-issued license specifying service animal status, or a certification, may be used, at least in the opinion of some Justice Department officials, to establish service animal status, though the document also cautions that “such documentation generally may not be required as a condition for providing service to an individual accompanied by a service animal.”

[114] 14 CFR 382.117(d).  (emphasis added).

[115] A Guide to the Air Carrier Access Act and Its Implementing Regulations, 70 Fed. Reg. 41481  (July 19, 2005).

[116] See also 14 CFR 382.117(d).  Assistance Dogs International has posted an Assistance Dog Model State Law on its website (www.assistancedogsinternational.org/modellaw.php) using the same language.

[121] Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995) (skill level of supposed hearing dog was “hotly contested, with some testimony casting doubt on the dog had been certified by a training center, but jury instructions mixed local, state, and federal law and may have led jury to erroneously infer that without school training a dog cannot be a reasonable accommodation); Green v. Housing Authority of Clackamas County, 994 F.Supp. 1253 (D Or. 1998) (“[T]here is no federal or Oregon certification process or requirement for hearing dogs, guide dogs, companion animals, or any type of service animal. There is no federal or Oregon certification of hearing dog trainers or any other type of service animal. The only requirements to be classified as a service animal under federal regulations are that the animal be (1) individually trained, and (2) work for the benefit of a disabled individual. There is no requirement as to the amount or type of training a service animal must undergo. Further, there is no requirement as to the amount or type of work a service animal must provide for the benefit of the disabled person. 28 C.F.R. § 36.104. The regulations establish minimum requirements for service animals.” The dog in Green, according to its owners, “alerted them to several sounds, including knocks at the door, the sounding of a smoke detector, the telephone ringing, and cars coming in the driveway.  The landlord’s “requirement that an assistance animal be trained by a certified trainer of assistance animals, or at least by a highly skilled individual, has no basis in law or fact. There is no requirement in any statute that an assistance animal be trained by a certified trainer.”); Janush v. Charities Housing Development Corp., 169 F. Supp.2d 1133 (ND Cal. 2000) (denying defendant’s motion to dismiss on grounds plaintiff’s two birds and two cats could not be service dogs, noting that 28 CFR 36.104 defines 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….”).

[122] It is not clear that this statement is correct.  Although precise uniformity would be impossible, most service dog training involves rather standard socialization and behavior requirements in addition to the specific tasks related to the individual’s disability. 

[123] See Fulciniti v. Village of Shadyside Condominium Ass’n (WD Pa., November 20, 1998) (condomium violated FHA in refusing to allow plaintiff to keep service animal that had received 1½ years of training, where doctors provided supporting letters, and association had presented no evidence dog created a disturbance or threat to any other residents in the association).

[125] See also John Ensminger and Frances Breitkopf, “Service and Support Animals in Housing Law,” 26(5) GP/Solo Magazine 54 (July/August 2009).

[126] Although most state statutes refer to the dog having been trained for its purpose (or “especially trained,” “individually trained,” etc.), some states specify, that the training must have been done at a certified or accredited school, particularly if a charge of discrimination or criminal interference is to be lodged. In Alabama, a penalty can be imposed for denial of access to a blind person being led by a guide dog wearing a harness when “the blind person presents for inspection credentials issued by an accredited school for training guide dogs….” Alabama Animals Code § 3-1-7.  See also Alaska Handicapped Persons Code § 11.76.130(c)(1) (interference with the rights of a physically or mentally challenged person when accompanied by a certified service animal, which has been “certified by a school or training facility for service animals as having completed such training.”); Iowa Human Services Code § 216C.11.1 (assistive animal is one trained by “recognized training facility”); Michigan Penal Code § 750.502c (misdemeanor denial of access may apply when, among other things, “the person with disabilities being led or accompanied has in his or her possession a pictured identification card certifying that the dog was trained by a qualified organization or trainer….”); Ohio Agriculture Code § 955.011(B) (defining guide, hearing, or service dog as having been “trained by a nonprofit special agency”); Tennessee Professions, Businesses and Trades Code § 62-7-112(a) (disabled person may not be excluded with dog guide provided “such blind or deaf or hard of hearing person or physically disabled person shall first have presented for inspection credentials issued by an accredited school for training dog guides.”); Texas Human Resources Code § 121.002(1) (assistance animal “has been trained by an organization generally recognized by agencies involved in the rehabilitation of persons with disabilities as reputable and competent to provide animals with training of this type.”)

[127] Connecticut Human Rights Code §§ 46a-44(a), (b), 46a-64(a) (access allowed provided dog is wearing a harness or an orange-colored leash and collar); Mississippi Public Welfare Code § 43-6-7 (blind or deaf person has a right to access with trained guide or hearing dog on blaze orange leash); New Hampshire Public Safety Code § 12.167-D:5 (disabled person’s dog to have leash and harness colored international orange; blind person to have leash and harness designed for guide dogs; service dogs to have leashes colored blue and yellow); North Carolina Disabilities Code § 168-4.2(a) (disabled person to show tag stamped “North Carolina Service Animal Permanent Registration”); Disabilities Code § 168-4.2(b) (service animal in training to wear a collar and leash, harness, or cape identifying animal as service animal in training); Ohio Agriculture Code § 955.011(A) (assistance dogs receive certificates and tags stamped “Ohio Guide-Dog Permanent Registration;” same for hearing and service dogs); Oklahoma Blind Persons Code § 7.19.1.C (dog used by a deaf person to wear orange identifying collar); Rhode Island Public Utilities & Carriers Code § 39-2-13 (guide, hearing-ear, or personal assistance animal wearing a yellow harness and trained by a recognized training agency or school may enter public facility); Virginia Persons with Disabilities Code § 51.5-44 (blind dog to have harness; hearing dog to have blaze orange leash; service dog to have harness or backpack); and Wisconsin Employment Code § 106.52(am)2 (service animal in training to wear a harness or a leash and special cape; service animal trainer can be required to produce a certification or credential issued by a school for training service animals).

[128] Hawaii Conservation & Resources Code § 3-143-4(6) (access not to be denied if a guide, leader, seizure-alert, or seizure-response dog is wearing a harness and the handler presents credential for inspection issued by a training school for the type of dog); Minnesota Human Rights Act § 363A.19 (access for service dog depends on user being able to properly identified as from a recognized school for seeing eye, hearing ear, service, or guide dogs); Tennessee Professions, Businesses and Trades Code § 62-7-112(a) (access to be allowed if dog guide is wearing a harness and blind or deaf or hard of hearing person first presents for inspection credentials issued by an accredited school for training dog guides; also for trainers); and Tennessee Professions, Businesses and Trades Code § 62-7-112(a)(2)(A) (in lieu of credentials from an accredited school, a deaf or hard of hearing person may apply to Tennessee Council for the Dear and Hard of Hearing for credentials).   

[131] Hawaii Conservation & Resources Code § 3-143-4(6) (guide, signal, and service dogs to be designated as such on licenses); and New York Agriculture Code § 110.3 (licenses to be conspicuously marked with words “Guide Dog,” “Hearing Dog,” “Service Dog,” “Working Search Dog,” or “Therapy Dog”); Agriculture Code § 112.7 (special tags for guide, hearing, service, and detection dogs).

[132] Colorado Criminal Code § 18-13-107(3) (criminal interference applies if dog is wearing harness normally used for dogs accompanying or leading persons with disabilities); Michigan Penal Code § 750.502c (criminal interference if a guide, dog is wearing a harness or a service dog is wearing a blaze orange leash and collar, hearing dog cape, or service dog backpack, and person using the dog has a pictured identification card certifying the dog was trained by a qualified organization or trainer); and South Dakota Animals & Livestock Code § 40-1-38 (criminal interference occurs if service animal is wearing a harness or other control device normally used by service animals).

[134] Georgia Handicapped Persons Code § 30-4-2(b)(1) (guide or service dog must be identified as having been trained by a school for such dogs; dog with person raising or training to be a service dog must wear “appropriate apparel or device that identifies such dog with the accredited school”); Kentucky Animal Control Code § 258.500(7) (trainers of assistance dogs to have in their possess identification verifying that they train assistance dogs); Maryland Licenses Code § 11-502 (dog guides issued licenses stating dog’s status; guide dogs to be issued orange license tags); Montana Human Rights Code § 49-4-214(4) (service animals in training to wear a leash, collar, cape, harness, or backpack identifying it as a service animal in training); and North Carolina Disability Code § 25-13-02.1 (for access to public accommodations, trainers are to wear photo ID issued by a nationally recognized dog training program).

[135] West Virginia General Powers Code § 5-15-4(e) (service animal not required to be licensed or certified by a state or local government and no requirement for specific signage or labeling).

[139] Some traffic statutes indicate that a disabled person’s use of special gear requires that driver’s yield right of way.

[140] Colorado (Government Code § 24-34-803(5)); Connecticut (Dogs and Kennel Code § 22-345); Delaware (Conservation Code § 7-1702(j): license fee waived for “a seeing eye, lead or guide dog or as a dog which has previously served in a branch of the United States armed forces”); Hawaii (Conservation & Resources Code § 3-143-4(6)); Kentucky (Animal Control Code § 258.500(9)); Louisiana (Welfare Code § 46.1958); Maine (Animal Welfare Code § 9.3923-A); Maryland (Licenses Code § 11-502: “dog guides” exempt); Massachusetts (Public Safety Code § 20.140.139); Michigan (Natural Resources Code § 287.291: for blind, deaf, and physically limited persons); Nebraska (Ne. Livestock Code § 54-603: no license tax is to be charged “upon a showing that the dog is a graduate of a recognized training school for dog guides, hearing aid dogs, or service dogs.”  If the dog retires from service, the owner becomes responsible for the license tax); New Hampshire (Animal Code § 45.466:8: no fee is to be required for registration and licensing of a guide dog, hearing ear dog, or service dog, provided the person applying for the license provides “a proper identification card from a recognized guide dog, hearing ear dog, or service dog training agency or school”); New Jersey (Agricultural Code § 4:19-15.3); New Mexico (Livestock Code § 77-1-15.1.C: for the blind, hearing impaired, and mobility impaired); New York (Agriculture Code § 110.3: no fee for any license for any guide dog, hearing dog, service dog, war dog, working search dog, detection dog, police work dog or therapy dog); North Carolina (Disabilities Code § 168-4.3); North Dakota (Municipal Government Code § 40-05-02(22)); Ohio (Oh. Agriculture Code § 955.011(A)); Oregon (Animal Control Code § 609.105); Pennsylvania (3 P.S. § 459-201(a): fees are reduced but not waived); Virginia (Agriculture Code § 3.2-6528); Washington (Labor Code § 49.60.380); and Wisconsin (Dogs Code § 174.055). This list does not include waivers by political subdivisions within states.   

[141] See references in the preceding footnote for California, Hawaii, Maryland (license to state “dog guide” in red ink), New Hampshire (individuals with signal dogs to fit dogs with leash and harness colored “international orange;” individuals with guide dogs to use leash and harnesses designed for such dogs; mobility impaired individuals to use blue and yellow leashes), New York (applicants for guide, service, hearing dogs may obtain special tag for the dog), Ohio (tabs to indicate assistance dog registration), Oklahoma (hearing dogs to be fitted with orange collars), Tennessee (Tennessee Council for the Deaf and Hard of Hearing issues special credentials for signal dogs), and Utah (identifying gear recommended).

[144] Proposed 28 CFR 36.302(c)(6). 

[145] The blue and yellow leash for service dogs in New Hampshire is only specifically mentioned for dogs serving the mobility impaired. 

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