I am a little bit late with an entry this week. However, I have a good excuse. My 14-year-old daughter went off to overnight camp for the first time. She will be gone 4 weeks! That leaves my wife and I empty nesters. This is going to take some getting used to.

The blog entry of the week is actually an Office of Civil Rights Letter dated July 15, 2016, that appeared in the Disability Compliance for Higher Education publication by Wiley, which I highly recommend for anyone dealing with disability compliance issues in higher education. There are lots of lesson to be learned from that letter. Also, there is a statement made in there that has everyone hopping, and we will discuss that. As usual, the blog entry is divided into categories and they are: true or false; answers; how well did you do; and explanations. While there are a bunch of categories, I can’t see why you wouldn’t read the whole thing.

I

True or False

  1. If a student refers to her dog as a pet even though she says it is needed to accommodate a disability, one can automatically deem it a pet.
  2. Only two questions are allowed if it is not obvious that the dog is a service dog.
  3. An emotional support animal can never be a service dog.
  4. Reasonable documentation can be obtained to assess whether an animal is an emotional support animal.
  5. Reasonable documentation cannot be asked for in order to assess whether a dog is a service dog outside of the employment context.
  6. A person with a service dog or an emotional support animal must carry an ID card certifying that the animal is a service animal or an emotional support animal.
  7. A College or University can take action if the dog is behaving in an out-of-control manner.
  8. A dog that fends off impending anxiety attacks of a student by licking her face and pawing at her to let her know that an anxiety attack is likely to occur is a service dog.
  9. A college may not require an individual to register a service animal.
  10. Emotional support animals are only applicable to residential facilities in campus housing pursuant to the Fair Housing Act.
  11. A) While comfort animals are not considered service animals under the ADA, they may be considered a necessary accommodation under §504; B) an institution has the obligation to engage in the interactive process… C) to assess an individual’s need for this accommodation. This is the statement referenced above.
  12. Emotional support animals can include other animals besides dogs.

II

Answers

  1. False
  2. Unclear
  3. False
  4. True
  5. True
  6. False
  7. True
  8. True
  9. True
  10. True
  11. A) not buying; B) true; C) not buying with respect to emotional support animal throughout campus.
  12. True

III

How well did you do?

If you got all 12 right, consider yourself best in show.

If you got 10 right, consider yourself as winning best in your group, but you want to move up to best in show certainly.

If you got 7-9 right, consider yourself as winning best in breed, but you certainly want to move up to winning your group and eventually best in show.

If you got below seven right, you need to have a trainer come in and/or consult knowledgeable legal counsel.

 

III

Explanations

  1. A student may not realize the difference between a pet and a service dog under the ADA. To the student, they may think of their service animal as a pet. When it comes to determining whether it is a service dog, what they think is not dispositive. The question is whether the dog has been trained to engage in recognition and response.
  2. We have discussed this issue in this blog entry. As I mentioned in that blog entry, my original understanding was that only two questions are allowed. If you look at the Department of Justice frequently asked questions publication, it uses the term, “only,” as does the OCR letter. On the other hand, how can you engage in the interactive process, which you are required to do under titles I-III, if you are so limited in the question you can ask even when narrowly focused follow-up questions can be posed if the answers are unclear?
  3. If a person is using a dog as an emotional support animal, it’s entirely possible that it also could be a service dog if it is acting in recognition and response mode and has been trained to do that.
  4. The Fair Housing Act does allow for reasonable documentation to be obtained to assess whether an animal is an emotional support animal.
  5. The ADA final implementing regulation do not allow for documentation to assess whether a dog is a service dog outside of the employment context.
  6. A person with a service dog or an emotional support animal cannot be required to carry documentation stating that the animal is a service animal or an emotional support animal.
  7. If a dog is behaving in an out-of-control manner, then action to exclude the service dog can be taken. The owner of the service dog is responsible for its care and handling.
  8. This dog is engaging in recognition and response and clearly has been trained to do that. Keep in mind, professional training is not necessary for the dog to be a service dog.
  9. Nothing wrong with a voluntary registration process. The problem with that approach is that voluntary often turns into mandatory. Also, since the questions for service dogs are so limited, a voluntary registration process may lead to people asking questions they are not allowed to ask.
  10. The Fair Housing Act applies to dormitories as we discussed here. It does not apply to the rest of the College and University. For the rest of the College and University, it would be the ADA (title II or title III), and §504 of the Rehabilitation Act. Accordingly, emotional support animals can be limited to residential facilities in campus housing. See also ¶ 11 below
  11. A) comfort animals are not considered service animals under the ADA; B) institution to have the obligation to engage in interactive process with respect to a student with a disability; and C) an institution does not have the obligation to engage in the interactive process with respect to allowing the emotional support animal throughout its campus despite what this letter from the Office of Civil Rights says. In particular, nothing in title II or title III DOJ’s final implementing regulations suggest emotional support animals must be allowed everywhere. In fact, the inference is exactly the opposite. Also, nothing in the §504 regulations suggest that emotional support animal should be allowed everywhere. Finally, since there are no regulations that have gone through the proper commenting process dealing with §504 and emotional support animals, I don’t see how a court would give deference to the interpretation of this regional office of OCR with respect to emotional support animals possibly being allowed everywhere. In short, to my mind, a College or University is on very solid ground in restricting an emotional support animal to the dormitories/living facilities.
  12. The Fair Housing Act allows for animals besides dogs to be emotional support animals. Colleges and universities are given latitude with respect to animals that pose a health or safety risk to others. You also want to make sure you check your local and state laws regarding animals that are permissible in dwellings.

9 Responses to Just where are ESA and service animals allowed on college and university campuses? The true false Analysis

Regarding your statement “an institution does not have the obligation to engage in the interactive process with respect to allowing the emotional support animal throughout its campus despite what this letter from the Office of Civil Rights says” – could you share any case law or DOJ or OCR settlements that support your position? If would be really great if you provide anything because there is such mass confusion among the colleges.
AHEAD did a webcast “Creature Comforts, Nuanced Approaches to Animals on Campus” in Fall 2017 with Irene Bowen, J.D. of ADA One (and former DOJ employee) and Scott Lissner, of Ohio State University. In referencing the OCR Delaware Technical Community College letter, these presenters did say that a request by a student for her ESA to go to other campus areas (besides the dormitories) should go through the ADA/504 modification of policy consideration process – which could mean that an ESA, if deemed appropriately needed to remove an education barrier, such as a student having her ESA present during a test to lower disability related anxiety, could accompany the student to the testing area or classroom.
Any other documentation to support your opinion would be greatly appreciated. Thank you.

What this excellent question also illustrates is that the line between an emotional support animal and a service animal can be very small. A dog acting as an emotional support animal very well could be engaged in recognition and response as well with some training. For example, a student might say if I get anxious, I have trained the dog to notice it and the dog will approach me so that I can hold it or pet it. To my mind, that would be trained recognition and response and make the dog a service dog.

If the “dog is behaving in an out-of-control manner” what actions can the college take? What constitutes “out-of-control” ? If the dog is asked to leave for “out-of-control” behavior, for how long can the college insist that the dog be gone, when can the dog return, and under what circumstances?

Thanks for raising this question. It not something you see a lot because service dogs are trained and know how to behave. If a dog is out of control, unless the dog is doing his or her job for some reason, it makes me wonder if the dog is indeed a service dog. As for a standard, I am not aware of much case law in the area for the reason I mentioned above. I would ask whether the dog is behaving as a reasonable prudent dog under the circumstances, but that is just a preventive law approach on my part. The other part of your question would depend upon tunneling into the facts. I think the real issue you have here is the dog may not be a service dog. That is, is it trained to engage in recognition and response. Finally, it is possible the dog could be a service dog for certain context and not others. For example, my dog is a service dog in the house but certainly not outside.

This gets a little hair splitting but…. In the Webinar Irene and I presented for AHEAD we talked about the obligation to engage in the interactive process when presented with a request for an ESA beyond the reach of the Fair Housing Act as based on Section 504 rather than the ADA tittles II and III. The detailed regulations referencing Service Animals are silent on ESA’s. This has been interpreted to mean that they were intentionally left our and not covered by Titles II and III. On the other hand, Section 504 is silent on animals all together. Which has been interpreted to mean that a request for an exception to your no pets policy for an ESA should be seen as an accommodation request under section 504 (similar to how we dealt with Service Animals under 504 prior to the ADA’s passage. I don’t have the URL handy but OCR referenced this in a webinar from the Great Lakes ADA Center and it forms some of the basis for the Deleware Letter already mentioned in the blog post. I will look for the reference and post it.

Scott – You are absolutely NOT spilling hairs and I stand corrected in that I clearly misspoke. I should NOT have said “ADA/504 modification of policy consideration process” but “rather 504 modification of policy consideration process”. Thank you for catching my error. For the sake of accurate discussion it is important to be clear what law we are talking about in terms of ESAs and higher education. I am also looking forward to your posting of additional information. Thank you again.

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