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TRANSCRIPT
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Therapy/Comfort Animals in Housing: A Case Study and Best
Practice
Steve Waller, Chair, Public Policy Advisory Committee
Overview
• The Law
• Case Study
• Best Practices
• Considerations
The Law
• Americans with Disabilities Act
• Section 504 of the Rehabilitation Act of 1973
• Fair Housing Act
Americans with Disabilities Act
• Title II: All public colleges and universities
– A public entity must modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability
• Title III: All private colleges and universities
– Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a place of public accommodation
Americans with Disabilities Act
• “Service Animal”: Any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.
• The following are not considered service animals:
– Any animal besides dogs, except for special provision for miniature horses,
– Animals the solely provide a crime deterrent effect,
– Emotional support, comfort or companionship animals, and
– Animals that are not effectively controlled or housebroken
*Housing providers and other who make decisions relating to animals in residential and transportation settings
should consult Federal, State, and local laws that apply in those areas (e.g., the FHAct regulations of HUD and the ACAA) and not rely on the ADA as a basis for reducing those obligations. (Title II, 28 CFR Part 35)
Section 504 of the Rehabilitation Act of 1973
• Any institution receiving federal financial assistance
• “may not impose upon handicapped students other rules . . . that have the effect of limiting the participation of the handicapped students in the [institution’s] educational program or activity.”
Fair Housing Act
• FHA covers residential “dwellings”
– Any building, structure, or portion thereof which is occupied as , or designed or intended for occupancy as, or designed or intended for occupancy as, a residence by one or more families. • FHA instructs that “family” includes a single individual
• “Dwelling unit” is defined as a single unit of residence for a family of one or more persons
• ADA “amendments do not affect reasonable accomodation requests under FHAct or Section 504” (HUD letter, February 17,2011)
Fair Housing Act
• Unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such a dwelling because of the handicap(s) of the person
– This includes the obligation to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy the dwelling
Fair Housing Act
• A person my keep an assistance animal (including an emotional support animal) in their dwelling as a reasonable accommodation if:
1. The person has a disability,
2. The animal is necessary to afford the person with a disability an equal opportunity to use and enjoy the dwelling, and
3. There is an identifiable relationship or nexus between the disability and the assistance the animal provides.
Case Study
• United States of America v. Millikin University
• University of Nebraska-Kearny
• Grand Valley State University
United States of America v. Millikin University
• Student with legal blindness and epilepsy
• Student requested a “quiet” dormitory due to noisy environments worsened her epileptic seizures
• Alleged she informed housing that she planned to obtain a seizure-alert dog to live with her on campus
United States of America v. Millikin University
• DOJ filed suite on November 2009
• Settlement (January 2011):
1. University denied any liability,
2. Included a statement in training materials for employees a) Unlawful to discriminate. . .,
b) Unlawful to refuse reasonable accommodations. . .
3. Reimbursed the student $4,437 in personal expenses
University of Nebraska-Kearny
• HUD filed an administrative charge in October 2011
• DOJ filed suite on November 23, 2011
– Challenged alleged refusal to allow student with emotional disability to live on campus with an emotional support dog • Also challenged “numerous onerous documentation
requirements” imposed on students with “physical impairments” who request accommodations
– First case of DOJ suite to enforce provisions of emotional support animal in university housing
• UNK challenges the facts and applicability of HFAct
University of Nebraska-Kearny
• Three principles of government case
1. The FHAct applies to dormitories and residence halls
2. The FHAct requires reasonable accommodations such as modification of policy to allow assistance animals, including emotional support animals, in covered housing
3. The FHAct allows only limited inquires about a disability and the nexus between the disability and the need for an animal.
Irene Bowden, AHEAD of the ADA Access Curve: Part 8: A case of a Different Animal: DOJ’s Lawsuit against the University of Nebraska about Emotional Assistance Animals; The Alert, Electronic Newsletter of the Association on Higher Education and Disabilities (Dec. 2011)
Grand Valley State University
• Suite filed in April 2012, Fair Housing Center of Western Michigan
– Alleged refusal to allow student with heart condition and severe depression to live on campus with an emotional support guinea pig • Alleged university would only allow service dogs for students with
disabilities
• GVSU claims to not have violated and laws and provided a reasonable accommodation
Best Practices
• Federal laws provide a floor, not a ceiling
• Consider how to manage other students’ concerns
– Must be a case-by-case situation
• Consider how, or whether, to distinguish between the treatment of trained “service animals” and potentially untrained “assistance animals” on campus
Josh Dermott, Esq., Update on Accommodating Service and Assistance animals on Campus: Making Heads or Tails of Federal Disability Laws, NACUANOTES, Electronic Newsletter of the National Association of College and University Attorneys (March 16, 2012)
Best Practices
• Remember while inquiries may be limited, accommodations are not limitless
• Train disability services and residence hall Staff
– Because of the uncertainty with respect to this area of the law, direct all staff, student, and faculty questions to a single person or team familiar with the law and campus policies
• Direct inquiries to the professionals Josh Dermott, Esq., Update on Accommodating Service and Assistance animals on Campus: Making Heads or Tails of Federal
Disability Laws, NACUANOTES, Electronic Newsletter of the National Association of College and University Attorneys (March 16, 2012)
Best Practices
• Work with your Disability Services office to establish who will house documentation, and how it will be handled/used. – Speak with one message across the campus
• Ask for reasonable information in order to ascertain the three criteria for support animal outlined by FHA and be prompt in any response.
• Create agreement forms with students that outline responsibilities and outcomes if the student (and/or animal) does not manage the situation in a reasonable manner.
Considerations
• There are NO restrictions on the type of animal that qualifies under FHA if it passes the 3 part test.
• ADA requires that the institution must permit the student with the service animal to have full access and opportunity. However, regulations note that the University need not accommodate a service animal if it poses a ‘direct threat’ to the health or safety of others, the owner cannot effectively control the animal, or if the animal is not housebroken.
• HUD acknowledges that the accommodation must be reasonable. Along those lines a University has an ability to manage the situation and deny an animal that poses a direct threat
Considerations
• Open Questions:
– What inquiries are allowed? • FHAct: When disability is not obvious, a provider may request
“reliable disability –related information that (1) is necessary to verify the person meets the definition of disability. . ., (2) describes the needed accommodations, and (3) shows the relationship between the person’s disability and the need for the requested accommodation.”
– What type of professional qualifies to provide the information for determining that an accommodation is needed?
Considerations
– Is there a limit on the species of animal?
– Are landlords required to authorize more than one animal as a reasonable accommodation for one person?
– Can a deposit be required?
– Can conditions such as to vaccinations and cleanliness requirements, registration with Disability Student Services offices, and leaving the animal alone in a unit while the owner/handler is elsewhere?
Irene Bowden, AHEAD of the ADA Access Curve: Part 8: A case of a Different Animal: DOJ’s Lawsuit against the University of Nebraska about Emotional Assistance Animals; The Alert, Electronic Newsletter of the Association on Higher Education and Disabilities (Dec. 2011)
Resources
• Association on Higher Education and Disabilities (AHEAD)
www.ahead.org
• National Association of College & University Attorneys (NACUA)
www.nacua.org
NACUANOTES
• Professional Periodicals
– The Chronicle of Higher Education
– Inside Higher Education
• Department of Justice – E-mail Updates, www.justice.gov/govdelivery/subscribe.html
