I wanted to get up a short blog entry this week on a couple of points (with baseball season starting, I thought the doubleheader in the title was appropriate). I already know what I am going to be blogging on for next week. Recently there have been two developments that are germane to what we talk about in the understanding the ADA blog. The first is the Supreme Court case deciding that Biden administration regulations interpreting the gun control act to cover weapon parts kits and partially complete, disassembled, or nonfunctional frames or receivers, was proper. The second case deals with direct threat when it comes to service animals. As usual, blog entry is divided into categories and they are: Bondi v. Vanderstock; Reaves facts; Reaves discussion of direct threat and why it applies; and thoughts/takeaways. The blog entry is pretty short, so the reader will probably want to read the whole thing.

 

I

Bondi v. Vanderstock

 

In Bondi,  here, Loper Bright does come up as a citation for a point made in that case, but Loper Bright isn’t what drives Bondi v. Vanderstock (my thanks to Brian East of Disability Rights Texas for pointing out the Loper Bright gets a mention in the opinion). The fact that Loper Bright did get a mention is a strong indicator that the approach taken by the Supreme Court in Bondi may also be the kind of approach that the Supreme Court might take in a future case involving just how controlling final regulations or even guidances are. In the majority opinion, Justice Gorsuch noted that the case involved a facial challenge to the rules. He also goes out of his way to explain how the rules fit squarely within the statute. In a concurring opinion, Justice Jackson says that statutory boundaries are critical and it doesn’t matter what a judge would have done if the judge was in the agency’s shoes. The delegation of authority to the executive agency to make the rules was pretty standard. All of which suggests that when it comes to holding that future final regulations of executive agencies are controlling, the Supreme Court will be looking at just how close the fit the particular final regulation is to the applicable statute.

 

With respect to direct threat and service animals, the case is Reaves v. Immediate Medical Care, P.A., here, decided by the United States District Court for the Middle District of Florida on March 12, 2025.

 

II

Reaves Facts

 

In this case, a person with a service animal arrived at a Dr.’s appointment with her service animal. Unfortunately, the doctor was severely allergic to dogs so as to result in the doctor having great difficulty in breathing when exposed to the dog. When the plaintiff was told as much, she understandably got upset. The doctor then discussed with the plaintiff in her office possible alternatives, such as an alternative appointment with another doctor or having the appointment with the doctor she was scheduled to see while the service dog waited outside. The Sheriff’s office was called and shortly after the sheriff’s department arrived, the plaintiff left the facility.

 

III

Reaves Discussion of Direct Threat and Why It Applies

 

 

  1. Defendant attempted to offer safe alternatives to the scheduled appointment.
  2. Defendant made an individualized assessment of a direct threat to safety, including a determination of whether reasonable modifications would mitigate the threat.
  3. The ADA does not set a demanding standard for evaluating the qualifications for training a service dog.
  4. DOJ regulations and the commentary to those regulations make clear that individuals may self-train service animals without obtaining formal certification. So, whether the individual who trained the service dog is a professional trainer, is a completely irrelevant question.
  5. The Ninth Circuit has rejected a strict formal certification requirement on the grounds that the ADA defines a service dog by its function and not by its training.
  6. Only in the most extreme of situations have courts ruled that a service animal fails based upon a training.
  7. Allowing service animals in a place of public accommodation is a presumptively reasonable modification to that place of accommodation policies.
  8. While allergies are not generally a defense for permitting a service dog, a service animal may be excluded if it poses a direct threat to the health and safety of persons providing or receiving services from an accommodation.
  9. Direct threat per 28 C.F.R. §36.208(b), must be determined by an individualized assessment based on reasonable judgment relying on current medical knowledge or on the best available objective evidence in order to ascertain: 1) the nature, duration, and severity of the risk; 2) the probability that the potential injury will actually occur; and 3) whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
  10. The existence or nonexistence of a significant risk must be determined from the standpoint of the person making the decision, and the risk assessment must be based on medical or other objective evidence. The belief that a significant risk existed does not relieve a defendant of liability.
  11. Courts need to assess the objective reasonableness of the view of healthcare professionals without deferring to their individual judgments.
  12. It is unclear what special burden, if any, should be placed on the defendant to show that it has conducted an individualized assessment of an alleged safety risk, given the burden to show discrimination rests in general on the plaintiff. The 11th Circuit has placed the burden on the defendant to show that the analogous exception for modifications that would fundamentally alter the nature of a place of public accommodation’s services and facilities, and the parties did not argue the point, though both noted that the 11th Circuit had not squarely ruled on the issue. The 11th Circuit’s case law on who has the burden of proof with respect to direct threat is inconclusive. Even so, the weight of persuasive authority suggest that the burden shifts to the defendant.
  13. The doctor did offer the plaintiff an alternative appointment with either of two other doctors. She also offered to see the plaintiff if the dog were taken outside. That suffices for an individualized assessment of the risks posed by the service dog based upon the best available objective evidence. It also shows that reasonable modifications were suggested to mitigate those risks.
  14. The Dr.’s testimony regarding her severe allergy to dogs, based on her prior consultation with her doctor and her own knowledge of her allergy and the symptoms, combined with an affidavit and video testimony, were sufficient to show that the dog presented a direct threat to the doctor.
  15. The direct threat regulation requires only a reasonable judgment not a perfect one.

IV

Thoughts/Takeaways

 

  1. The Supreme Court case is instructive. It certainly looks like the Supreme Court is going to insist on a close fit with statutory language before it gives credibility to final regulations. I realized that a facial challenge was involved here, but nevertheless the analogy is apt. All this said, at least on the disability right side of things, I don’t expect much in the way of enforcement actions, guidances, or regulations under this administration going forward.
  2. For the direct threat exception to apply, everything short of direct threat must be explored first. The doctor did that here.
  3. While a service dog must be trained, the ADA does not set a demanding standard for evaluating the qualifications of the training of the service dog. As we have discussed, anyone, I did it for mine, can train their dog to be a service animal.
  4. It is unclear just how much evidence is needed to support a direct threat defense. In this case, the actions of the doctor combined with video evidence suggesting she was having an allergic reaction were persuasive to the court.
  5. It is ultimately up to the court to decide whether a direct threat exists and not to the individual healthcare professional.
  6. Who has the burden of showing direct threat is a bit unclear, but the weight of authority suggests that the burden is on the defendant.
  7. The more evidence you have to back up a direct threat claim, the better off you are. For example, the doctor could have submitted medical records describing her severe allergy to dogs.
  8. Keep in mind, the direct threat standards for Title I v. Titles II and III are not identical. Title I direct threat regulations apply to self and others, while Titles II and III direct threat regulations only apply to others. Depending upon the case, the distinction can be extremely significant.