Scott Parrish Moore, Baird Holm LLP Evolving Challenge of Accommodating Service and Assistance Animals on Campus Scott Parrish Moore, Baird Holm LLP Christy Horn, University of Nebraska

Different Requirements for Different Settings The type of animal allowed and the verification required is dependent on the campus location Classroom/Student Activities Public Events Housing

Federal Statutes Americans with Disabilities Act Amendments Act (“ADAAA”) Section 504 of Rehabilitation Act (“Section 504) Fair Housing Act (“FHA”)

What’s In A Name Service Animals Assistance Animals Therapy Animal Emotional Support Animal Companion Animal Comfort Animal

U.S. v. UNK What Really Happened? Two students sought to live with “emotional support dogs” in student housing DOJ alleged UNK asked for too much information UNK unlawfully denied students a reasonable accommodation under the FHA

U.S. v. UNK Case settled two weeks before trial Consent Order included detailed policies governing “assistance animals” in student housing

ADAAA Generally, a public entity or public accommodation shall modify its policies, practices, or procedures to permit the use of a “service animal” by an individual with a disability.

What is a “service animal”? “[A]ny 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.”

What is a “service animal”? Only dogs “Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.”

“Work” or “Tasks” The work or tasks performed by a service animal must be directly related to the individual´s disability.

Does Not Include Dogs Necessary Solely for Emotional Support/Comfort/Companionship “The crime deterrent effects of an animal´s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.”

Verification of Service Animal May only ask two questions: Is the animal is required because of a disability; and what work or task the animal has been trained to perform. Cannot require “license” or “certification” documentation

Verification of Service Animal May never ask about the nature or extent of person’s disability. May not ask any questions “when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability” Examples: Guide dog for person who is blind Dog is pulling a wheelchair or providing assistance with stability and balance

Access Service animals must be permitted in all areas where public, students, and other participants in services, programs or activities are allowed to go.

Removal May remove a service animals if: The animal is out of control and the animal's handler does not take effective action to control it; or The animal is not housebroken.

“Handler’s Control” Handler may or may not be the person with a disability who needs dog Service animal must have a harness, leash, or other tether, unless: handler is unable because of a disability to use the mechanisms; or Mechanisms would interfere with the service animal's work or tasks In any case, the handler must be able to otherwise control animal by voice control, signals, or other effective means.

“Care” or “Supervision” College/University is not responsible for the “care or supervision” of service animal

No Conditions May not impose: Fee Deposit Insurance requirement indemnity agreement

Other Exceptions Do the other exceptions apply to service animals? Fundamental Alteration Direct Threat

Allergies/Fears ADA Business Brief “Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals.” “When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom . . . they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.”

Miniature Horses Must make reasonable modifications to permit if appropriate Individually trained Otherwise reasonable

Section 504 Nothing in statute or OCR regulations refer to “service animals” or other animals OCR Regulations “Reasonable modification” “Academic Adjustment” “Auxiliary Aid”

Section 504 Enforcement memorandum released prior to ADAAA stated OCR would use ADA definition of “service animal” Unclear if OCR will adopt revised definition of “service animal” from 2010 ADAAA regulations

Section 504 OCR Audio Webinar: “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 . . . an interactive process in determining what is appropriate and necessary. And it's going to be a case-by-case basis.”

FHA Like Section 504 nothing in statute or HUD regulations refer to “service animals” or other animals Reasonable Accommodation

FHA Must make reasonable accommodations in rules, policies, practices, or services when: “may be necessary”; to afford “equal opportunity to use and enjoy” housing

FHA “Necessary” and “equal opportunity” “Reasonable” No specific definition Factually specific “Reasonable” Undue financial and administrative burden Fundamental Alteration Direct Threat

Verification If disability and/or necessity for the animal is not obvious, may require verification However, resident may provide verification from any “reliable third party” How much information? More than ADAAA currently allows, but unclear how much more

Verification Form Include definition of disability Does the resident have a disability under this definition? Require a description of impairment and limitations Explain why accommodation is necessary to use and enjoy the housing Identify other “equally effective” accommodations

Access Where does housing stop and ADAAA begin? Housing includes public and common use areas that serve housing Common areas within residence hall Dining facilities Wellness Center Other areas

The Assistance Animal Hall DOJ insisted this violated the FHA “UNK will not limit room assignments for individuals with Assistance Animals to any particular building or buildings because the individual needs an Assistance Animal because of a disability.” However, Can take into account numerous factors including: Size of unit If the animal's presence would force another individual from individual housing (e.g. serious allergies).

Custody & Control May not charge a deposit require indemnification require insurance

Custody & Control May Licensing and other state or local requirements related to health and safety Student cannot leave the animal if absent overnight Evacuation Student must provide written consent to limited disclosure of information

ADA v. FHA Key Differences “Service Animal” v. “Assistance Animal” Definition of disability Request/Verification Process Access Custody and Control

“Disability” ADAAA expanded the definition of “disability” Expanded definition applies to Section 504 FHA was not amended Pre-ADAAA definition of “disability”

Inquiries Apply ADA “Service Animal” inquiry first Develop separate documentation guidelines for “assistance animals” FHA allows verification where disability and/or need for accommodation is not “obvious” Unclear how much is too much Who is a “reliable third party”? What latitude is there in determining who is “reliable”?

Access When does housing stop and the public accommodation/public entity begin Does it matter? Section 504 Impact on other students

Custody & Control From DOJ/HUD/OCR Audio Webinar: “We typically counsel colleges and universities that ask us the question that they really should not be putting forward a separate agreement to deal with a manner in which an individual cares for or maintains an assistance animal. That's an extra condition that you would be placing on the individual because of the disability.”

Custody & Control From DOJ/HUD/OCR Audio Webinar: Again, what we would say is that the individual's obligation to care for and maintain the animal, including picking up after the animal when the animal relieves itself, is an obligation that the individual already has. No agreement is required. But we would also say that students engage in all different kinds of behaviors, some of which are behaviors approved by postsecondary educational institutions, and some of which are not.”

Custody & Control From DOJ/HUD/OCR Audio Webinar: If disability prevents student from cleaning up after animal So for example, if the housing provider has maintenance people on staff, then there might be a need for the accommodation to be provided because it wouldn't be an undue financial and administrative burden to add a duty to the maintenance provider, and it wouldn't be a fundamental alteration in terms of the services being offered at the housing.

Custody & Control From DOJ/HUD/OCR Audio Webinar: “. . . you can't tell people where they must relieve their animal. You can remind them what their obligations are but not an agreement and not treating the students differently.”

Issues with Service Animals in the Classroom Disruption of the learning environment. Dogs who are not housebroken Owners who do not maintain control Classrooms that may be dangerous to the dog Other aspects of the classroom that provides issues for the service animal

Accommodating Students with Potential Allergic Reactions in Housing Should other students who may be severely allergic be contacted? When and how should such contact be made? Do they need to provide documentation of disability? What happens if you have students who provide documentation of severe allergies to assistance animals?

Dangerous Breeds Warren v. Delvista Towers (S.D. Fl. 2014) Miami-Dade County law that banned pit bull dogs was preempted by FHA Zatopa v. Lowe (N.D. Cal. 2002) Reasonable as a matter of law to exclude Pit Bulls

Live-In Residence Hall Staff/Family and Assistance Animals What documentation can be required? Do they have the same rights as students who live in Housing? What rules can be established?

Service Animals in Training Governed by state law What documentation can be required? What rules can be established in the classroom or the residences?

University of Nebraska Christy Horn University of Nebraska chorn@nebraska.edu

Scott Parrish Moore Baird Holm LLP (402) 636-8268 spmoore@bairdholm.com