6.4 Animals on campus PartC final

Report
ANIMALS ON CAMPUS
The ADA: Beyond the ABC’s
of Academics
Part C
Irene Bowen
L. Scott Lissner
Jeanine Worden
AHEAD, July 2013
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The content provided in this presentation is
for informational purposes only. Neither the
content nor delivery of the content is or shall
be deemed to be legal advice or a legal
opinion. The audience cannot rely on the
content delivered as applicable to any
circumstance or fact pattern. The information
provided is not a substitute for professional
legal advice.
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Overview:
Which setting, which law?
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The Americans with Disabilities Act
• The ADA (public and private entities) per DOJ
– Public and private entities must make reasonable
modifications to policies where necessary to avoid
discrimination
– Service animals (dogs) allowed where people go
– Miniature horses admitted to facility per
assessment factors
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Section 504 of the Rehabilitation Act
• Department of Education: Postsecondary
institutions receiving federal financial
assistance must modify academic
requirements to ensure they don’t
discriminate on the basis of disability
• Regulation addresses guide dogs
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Fair Housing Act
• HUD regulations: In college or university
housing, make reasonable accommodations
for individuals who use assistance animals
• Can include emotional support or therapy
animals (not just dogs)
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The American with Disabilities Act
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DOJ’s new ADA regulations
• Issued July 26, 2010
• Updates to 1991/1994 regulations under
titles II (28 C.F.R. part 35) and III (28 C.F.R.
part 36)
• Regulations and guidance are at
www.ada.gov
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SERVICE ANIMALS
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ADA regulations:
Reasonable modifications
• Entity must make reasonable modifications
in policies, practices, or procedures, when
necessary to avoid discrimination.
• Modify policies, practices, or procedures to
permit the use of a service animal by an
individual with a disability.
• Permit individuals with service animals in all
areas where members of the public,
participants, invitees are allowed to go.
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Service animal: definition
A dog that is individually
trained to do work or
perform tasks for the
benefit of an individual
with a disability
(including psychiatric,
cognitive, mental)
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Examples of tasks (1)
• Assist during seizure
• Retrieve medicine
or other items
• Help individual with
dissociative
identity disorder to
remain grounded
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Examples of tasks (2)
• Prevent/interrupt impulsive or destructive
behavior
• Assist with balance, stability
• Provide non-violent protection or rescue
work
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Emotional support/comfort?
• If this is the only function,
not considered a service
animal
• A service animal for a
person with a psychiatric or
other mental disability
performs a task, e.g.,
detects and responds
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Can ask only two questions
• Is this service animal required
because of a disability?
• What work or tasks is the animal
trained to perform?
Can’t ask about disability.
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Other issues (1)
• An entity can exclude a
service animal if -• it is not controlled or
• it is not housebroken.
• Entity is not responsible
for care or supervision.
• No “service animal”
license or documentation
required.
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Other issues (2)
• No deposits can be required (beyond the
usual)
– But individual is responsible for damage beyond
usual wear and tear
• State and local requirements may also apply
• Can consider allergies of other people with
disabilities:
• See DOJ agreement: Law firm settled after
requiring client to leave service dog outside
office due to attorneys’ allergies, phobia
http://www.ada.gov/larkin-cd.htm
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Psychiatric service animal case
• Alejandro v. Palm Beach State College, S.D. Fla.
(2011)
• Student diagnosed with PTSD, major
depressive disorder, ADHD, learning disorder.
• Then trained her dog as a psychiatric service
animal.
• After she took dog to class for more than a
year, it was banned from class.
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Court’s decision
• Alejandro has substantial likelihood of showing -– She is an individual with a disability under the ADA.
– Her dog qualifies as a service animal: trained to
establish eye contact, nip her fingers, or snort when
he perceived an imminent panic attack.
– The dog is “crucial” to her ability to engage in “major
life activities” of studying, learning and attending
school.
• College must permit her dog in all areas of
campus, including the library, writing lab,
cafeteria, and classrooms, until case is resolved.
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Outcome
• Later settled
–Training of administrators
–Almost $100,000 from college
• www.bazelon.org/LinkClick.aspx?fileticket=Rs
5_Ily_Riw%3d&tabid=600
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MINIATURE HORSES
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ADA regulations
• Make reasonable modifications to permit
if appropriate
• Allowed if
– Reasonable
– Individually trained
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Use assessment factors
• Type, size, weight
(whether facility can
accommodate)
• Handler’s control
• Whether housebroken
• Legitimate safety
requirements of
specific facility
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Resources
• DOJ ADA Requirements: Service Animals
–
–
–
–
http://www.ada.gov/service_animals_2010.htm
http://www.ada.gov/service_animals_2010.pdf
DOJ web site: www.ada.gov
DOJ information line: 800 - 514 - 0301 (voice)
800 - 514 - 0383 (TTY)
– ADA TA Centers: 800-949-4232 (Voice/TTY)
• ADA One, LLC -- Two articles from AHEAD’s newsletter
– The Ides of March are upon us: Are you complying with
DOJ’s new regulations about service animals?
http://ada-one.com/articles-tips/ahead-of-the-ada-accesscurve-part-5/
– A Case of a Different Animal: DOJ’s lawsuit against the
University of Nebraska about emotional assistance animals
http://ada-one.com/articles-tips/ahead-of-the-ada-access- 25
curve-part-8/
Section 504
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Acommodating
No Pets Policies
• Begin with ADA Service Animal inquiry
– If it meets the ADA Service Animal criterion you meet
your Section 504 obligations following the ADA
regulations.
– If it is not a service animal is the request an
accommodation request?
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Excerpt: “Service Animals in Post Secondary
Education Settings” June 18, 2013 ADA On Line
CALLER:
“Okay. But if it wasn't the service animal under the ADA, might there be some obligation under 504 in nonhousing situations to permit the animal?”
RAMIN TAHERI, Staff Attorney, U.S. Department of Education:
“If it's not a service animal under the ADA, it's not a service animal. And Schools are free to modify their
policies however they feel necessary to avoid disability-based discrimination. But we're not talking about the
service animal analysis outlined in the ADA.”
CALLER:
“Right, they can modify their policy. I guess what I am trying to get at is if something is not a service animal,
but for instance, a rabbit, the person says they need it in order to function at the school because of a
psychiatric disability, and they have documentation of that, let's say, might 504 require the school to permit
the rabbit as a reasonable accommodation in non-housing situations? “
RAMIN TAHERI:
“Section 504 would require the school to modify their policies and procedures as necessary to avoid
discrimination. The student with a disability who wants to use a non-service animal, for instance, the rabbit, is
free to follow the particular college's reasonable procedures for requesting a modification or an
accommodation. We would hope to see, as Jeanine mentioned, an interactive process in determining what is
appropriate and necessary. And it's going to be a case-by-case basis.”
http://www.ada-audio.org/Archives/AudioConference/index.php?type=transcript&id=2013-06-18&app=1
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RESOURCES
•
Archived Webinar Service Animals in Post Secondary Education Settings” June 18, 2013
http://www.ada-audio.org/Archives/AudioConference/index.php?type=transcript&id=2013-06-18&app=1
•
Title II State and Local Government 28 C.F.R. Part 35 (with guidance)
http://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm
•
Title III Places of Public Accommodation 28 C.F.R. Part 36 (with guidance)
http://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.pdf
•
•
Department of Justice Revised FAQ on Service Animals
http://www.ada.gov/service_animals_2010.htm
•
National ADA Network (DBTAC) Fact Sheet # 5
http://www.humancentereddesign.org/neada/documents/National_ADA_Center_Fact_Sheet_5_SERVICE_ANIMALS.pdf
•
Dept. of Housing and Urban Development Memo: New ADA Regulations and Assistance Animals as Reasonable Accommodations
under the Fair Housing Act and Section 504 of the Rehabilitation Act of 1973
http://www.nacua.org/documents/FHA_Memo_ServiceAnimals.PDF
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The Fair Housing Act
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Fair Housing Act
Access for Individuals Who Use
Service Animals and Assistance Animals
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Fair Housing Act Application
 The Fair Housing Act applies to virtually all housing,
whether or not there is federal financial assistance
 Covered housing includes college and university
housing, including dormitories and other student
housing, fraternities and sororities, and faculty
housing.
 Recent decision holding that student housing is
covered. U.S. v. Univ. of Nebraska at Kearney, 2013
U.S. Dist. Lexis 56009 (D. Neb. April 19, 2013)
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Obligation to Make
Reasonable Accommodations
 The Fair Housing Act requires housing providers
to make reasonable accommodations for
individuals with disabilities who use assistance
animals
 Individuals with disabilities who may need such
accommodations include:
Applicants, tenants, and residents
Their family members
Other persons associated with residents, tenants and
applicants.
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Assistance Animals
 Provide support, assistance or service
 Include emotional support or therapy animals –
terminology used is not important
 May be trained or untrained
 Not just dogs – examples: cat, bird, guinea pig,
ferret, miniature horse, capuchin monkey, etc.
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Assistance Animal Must be
Permitted If…
 Individual has disability, as defined in Fair
Housing Act, AND
 There is a relationship between the individual’s
disability and the assistance provided by the
animal
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Applying the principles …
 Oral request is enough -- written application may not
be required
 Process should be easy and quick
 No verification needed if disability and need for
animal are observable or known to housing provider
 Many ways individual may verify disability/need:
note from doctor, other medical or social service
professional, peer support group, non-medical service
agency, reliable third party in a position to know, or
the individual himself (proof of receipt of SSDI, SSI,
rehabilitation services, or credible statement)
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Housing Provider Does Not Need



Details about the history, nature, or extent of the disability
Access to medical records
Detailed information about the animal
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Individual is Responsible
• For maintaining his/her assistance animal
• For controlling his/her assistance animal
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Conditions May Not Be Imposed
• No breed, weight, or size limitations
• No fee, deposit, insurance, hold harmless agreement,
extra inspections, “pet rules,” veterinary
certificates/records, student contract, or special
conditions
• No restrictions on indoor or outdoor access to any
areas of housing and public and common use areas
associated with housing
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Bases for Denial or Exclusion
• Specific animal poses a direct threat (individualized
assessment based on recent credible, objective
evidence relating to specific animal’s actual conduct –
not speculation about type or breed of animal).
• Undue Financial and Administrative Burden (very
high standard to meet – generally not applicable)
• Fundamental Alteration (very high standard –
typically not applicable)
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When Both the ADA and
the Fair Housing Act apply …
• HUD recommends applying the ADA first. If an
animal is a service animal under the ADA definition, a
separate Fair Housing Act analysis is unnecessary.
Access must be granted.
• Applying the Fair Housing Act first could result in
ADA violations.
 If the animal is not a service animal or a miniature
horse covered by the ADA, you must then determine if
a reasonable accommodation is required for an
assistance animal under the Fair Housing Act.
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HUD Process
– Complaint
– Investigation and Conciliation
– Determination of Reasonable Cause or No
Reasonable Cause
– Charge of Discrimination
– Opportunity to choose forum for litigation
– Litigation before HUD ALJ or in federal court
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More Information
• U.S. Department of Housing and Urban Development: Service Animals
and Assistance Animals for People with Disabilities in Housing and HUD
Programs,
http://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo
2013-01.pdf
• U.S. Department of Housing and Urban Development and U.S. Department
of Justice: Joint Statement on Reasonable Accommodations under the Fair
Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf
• Fair Housing Act complaint can be filed with HUD’s Office of Fair
Housing and Equal Opportunity at
http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_e
qual_opp/online-complaint
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APPROACHES ON CAMPUS
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What is Your Service & Assistance Animal
Policy?
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Service Animals
•
•
•
•
•
•
Tiered Training
No ID badges or vests
Is that a Service Animal for a disability?
What Services does it perform?
Anywhere you can go
Behavior – under control
– Not the same as on a leash
– Applicable code of conduct
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Assistance (Support) Animals
• Training: referral to accommodation
process
• Reasonable Documentation
• Other Species (safety and control
considerations)
• May limit areas of access based on
objective data
• May consider other effective
accommodations
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A Word About Clinical & Other
Unique Settings
• Clinical Settings
– CDC guidance made simple, “Do you gown up?”
• Practica, internships & externships
– Representative selection of sights
• Work Study & Campus Employment
– Title I accommodation process
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CONTACT
Irene Bowen, J.D.
President, ADA One
9 Montvale Court
Silver Spring, MD 20904
http://ADA-One.com
[email protected]
301 879 4542 (O)
301 236 0754 (F)
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CONTACT
L. Scott Lissner,
ADA Coordinator, The Ohio State University
Office of Diversity And Inclusion
281 West Lane Ave.
Columbus, OH 43210
[email protected] Http://ada.osu.edu
(614) 292-6207(v); (614) 688-8605(tty)
(614) 688-3665(fax)
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CONTACT
Jeanine Worden
Associate General Counsel for Fair Housing
U.S. Dept. of Housing and Urban Development
Office of the General Counsel
Washington, D.C.
202-402-5188
[email protected]
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