A Discussion of Animals in DV Shelters -- The ADA and the Fair Housing Act

Note: This is a series of emails discussing animals in domestic violence shelters. it is presented in reverse chronological order, as that is how the discussion occurred.

The ADA, the Fair Housing Act, and the Rehabilitation Act of 1973, as amended all apply to domestic violence shelters.

The Fair Housing Act does not use the term “service animal” – the ADA does. For an animal to be admitted under the ADA, where there is a “no animals allowed” policy in effect, the animal must be a service animal. If it is, then the business (or state or local government program or service) must make a “reasonable modification of policy” and allow the animal in. For it to be a service animal, it must be individually trained to perform specific tasks to assist the person with their disability (alerting a deaf person to sounds, helping a person with a mobility disability with balance, or picking things up, guiding a person with a visual disability, etc.). The person with the disability may be asked if they have a disability, and if their animal is a service animal – that’s it. No documentation of the disability can be required, and no proof of training can be required, even if state law has this requirement. If the animal engages in disruptive behavior that causes a fundamental alteration of the business or program, the dog may be removed, but the individual must be given an opportunity to stay. Otherwise, the animal may accompany the individual with the disability in all public areas of the facility.

Under the Fair Housing Act, the rules, and the language, are different. Under the Fair Housing Act, the animal need not be individually trained to do anything. It need not be a service animal.

Under the Fair Housing Act, the term “reasonable policy modifications” is not used – rather, the term “reasonable accommodations” is used.

Discrimination under the FHA includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). See http://www.bazelon.org/issues/housing/infosheets/fhinfosheet6.html

Where the ADA anticipates a brief interaction between a store and a customer, and therefore prohibits intrusive questioning, the FHA contemplates a longer relationship, and like the employment provisions of the ADA, allows the housing provider to ask for more information about the disability (but still does not allow for disclosure of medical documentation):

“The request should state that the tenant has a disability and explain how the requested accommodation will be helpful. In addition, the tenant should include a note from his or her service provider, such as a doctor or therapist, verifying the need for the support animal (see sample letter, below, as an example). Note that the tenant need not disclose the details of the disability, nor provide a detailed medical history.” http://www.bazelon.org/issues/housing/infosheets/fhinfosheet6.html

“So long as the requested accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord must provide the accommodation.” http://www.bazelon.org/issues/housing/infosheets/fhinfosheet6.html

The individual seeking a reasonable accommodation under the Fair Housing Act must “demonstrate a relationship between his or her ability to function and the companionship of the animal.” http://www.bazelon.org/issues/housing/infosheets/fhinfosheet6.html

Under the Fair Housing Act, the individual with the disability needs to show that allowing the animal to accompany them allows them “an equal opportunity to use and enjoy his or her dwelling”; and that the reasonable accommodation would not constitute an undue burden or fundamental alteration.

So, if the animal is individually trained to perform tasks to assist the individual with a disability, it is a service animal under the ADA, and it must be allowed to accompany the individual. The service animal’s owner cannot be required to provide documentation of the nature of the disability, and no proof of training and no certification may be required.

If, however, the animal is not individually trained to perform tasks to assist the individual with the disability, it is not a service animal, and the domestic violence shelter does not have an ADA obligation to allow the animal to accompany the individual with a disability. The shelter does have a separate obligation, however, under the Fair Housing Act, even if the animal has no training at all, to determine whether allowing the animal to accompany the individual would provide her with an equal opportunity to use and enjoy a dwelling (the shelter). Emotional support animals, for example, may not receive any training at all to perform tasks to assist the individual with a disability, but the shelter would nevertheless have to admit the animal under the Fair Housing Act as a reasonable accommodation, if it can be shown that allowing the animal to accompany the individual would provide her with an equal opportunity to use and enjoy a dwelling (the shelter). In that case, the shelter would be entitled to ask for a doctor’s note that reflected that there was a medical need for the animal. A sample letter would state the following:

Dear [Housing Authority/Landlord]:
[Full Name of Tenant] is my patient, and has been under my care since [date]. I am intimately familiar with his/her history and with the functional limitations imposed by his/her disability. He/She meets the definition of disability under the Americans with Disabilities Act, the Fair Housing Act, and the Rehabilitation Act of 1973.
Due to mental illness, [first name] has certain limitations regarding [social interaction/coping with stress/anxiety, etc.]. In order to help alleviate these difficulties, and to enhance his/her ability to live independently and to fully use and enjoy the dwelling unit you own and/or administer, I am prescribing an emotional support animal that will assist [first name] in coping with his/her disability.
I am familiar with the voluminous professional literature concerning the therapeutic benefits of assistance animals for people with disabilities such as that experienced by [first name]. Upon request, I will share citations to relevant studies, and would be happy to answer other questions you may have concerning my recommendation that [Full Name of Tenant] have an emotional support animal. Should you have additional questions, please do not hesitate to contact me.
Sincerely,

Name of Professional
(Source of letter: http://www.bazelon.org/issues/housing/infosheets/fhinfosheet6.html)

My conclusion –

1. Determine if the animal the individual wants to bring into shelter is a service animal or not. You may ask “Is that a service animal?” and, “What service does the animal perform?” You may not ask the person to make the animal demonstrate the service, and you may not ask what the person’s disability is. See http://www.ada.gov/qasrvc.htm.
2. If you determine that it is a service animal, make a reasonable modification of policy under the ADA, and let them in, without further inquiry or documentation.
3. If they tell you that it is not a service animal (that it is not individually trained to perform tasks to assist them with their disability), or you independently make this determination, then consider your obligations under the Fair Housing Act. Determine whether they have a letter from a health care professional stating that they need to be accompanied by the animal in order to enhance his/her ability to live independently and to fully use and enjoy the dwelling. If they do, make a reasonable accommodation under the Fair Housing Act, and let them in.

Marc Dubin, Esq.
Former Senior Trial Attorney
U.S. Department of Justice
Civil Rights Division
Disability Rights Section\1992-2005
From: Jeremiah Sisovsky [mailto:jeremiah@ocadvsa.org]
Sent: Thursday, November 05, 2009 2:14 PM
To: Marc Dubin; Glenna Cooper; Marcia Smith
Cc: Cook, Rebecca F.; jdoty@ou.edu; jenifer.miller@doc.state.ok.us; Kidder, Barbara; Kristina Hakey; Nedbalek, Steve; SheryllS@health.ok.gov; Susan.Krug@oag.ok.gov
Subject: RE: Oklahoma service animal law

Uh oh. Let’s hash this issue some more. This is from Washington State Model Protocol for DV shelters:

2. However, when a survivor applies for space in your shelter or for transitional housing, things get a little more complicated. When a survivor is applying for housing, the Fair Housing Act applies, and it is a little different than the other laws. Under the Fair Housing Act, a housing provider may ask for a statement from a health care or mental health professional (the provider does not need to be an M.D., but should be qualified to provide the diagnosis or prescription). The statement should say that the individual is a person with a disability and will be assisted by a service animal. Your shelter staff may not ask for details or the nature of an individual‘s disability. Neither law requires that you ask for this documentation, and many shelters do not require it. However, if you choose to ask for it, you should proceed carefully. If you ask for documentation from one survivor, you should ask all survivors with service animals for documentation. If you assist one survivor in obtaining the needed documentation, you should assist all survivors with service animals. Your policy and practice should be consistent.

Does this seem to conflict with Marc’s answer? First, is this correct that the FHA applied (rather?) than the ADA? If a statement CAN BE asked for, would it not be more expedient for the victim to have the certification as Glenna suggests?

From: Marc Dubin [mailto:mdubin@pobox.com]
Sent: Thursday, October 22, 2009 6:01 PM
To: Glenna Cooper; Jeremiah Sisovsky; Marcia Smith
Cc: Cook, Rebecca F.; jdoty@ou.edu; jenifer.miller@doc.state.ok.us; Kidder, Barbara; Kristina Hakey; Nedbalek, Steve; SheryllS@health.ok.gov; Susan.Krug@oag.ok.gov; Marc Dubin
Subject: RE: Oklahoma service animal law


"(I)t is important to request for a identification card of the service dogs. Often people would abuse that law by saying their dog is a service dog when its actually not a trained dog. Once its a trained dog, they would need to provide the special card to justify that its a service dog certificated by some dog trainers."

No. Bad advice.

If you follow this advice, you will be engaging in discrimination, and you will be in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, federal civil rights laws that prohibit discrimination on the basis of disability.

If you receive federal financial assistance, you will be putting the continued receipt of this money at risk. If the Justice Department investigates the matter, you could be subject to injunctive relief, be required to pay damages, and be subject to a civil penalty of up to $55,000 for the first offense, and up to $110,000 for each subsequent offense.

By way of background, I am an attorney in Florida, and from 1992-2005, I served as a Senior Trial Attorney at the Justice Department, in the Disability Rights Section of the Civil Rights Division, in Washington, D.C. In that capacity, I was responsible for nationwide enforcement of the Americans with disabilities Act and the Rehabilitation Act on behalf of the United States. I helped write the technical assistance concerning service animals for the Justice Department, and investigated and settled many cases concerning violations of the ADA involving service animals on behalf of the Justice Department.

The Disability Rights Section has excellent technical assistance online, at www.ada.gov. I urge you to look at http://www.ada.gov/qasrvc.htm in particular.

The Justice Department's technical assistance says:

"...The ADA defines a service animal as any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. If they meet this definition, animals are considered service animals under the ADA regardless of whether they have been licensed or certified by a state or local government...."

"... Some, but not all, service animals wear special collars and harnesses. Some, but not all, are licensed or certified and have identification papers. If you are not certain that an animal is a service animal, you may ask the person who has the animal if it is a service animal required because of a disability. However, an individual who is going to a restaurant or theater is not likely to be carrying documentation of his or her medical condition or disability. Therefore, such documentation generally may not be required as a condition for providing service to an individual accompanied by a service animal. Although a number of states have programs to certify service animals, you may not insist on proof of state certification before permitting the service animal to accompany the person with a disability...." http://www.ada.gov/qasrvc.htm

Also see http://www.ada.gov/svcabrs3.pdf

You should take a careful look at http://www.ada.gov/terracemotel.htm, a Justice Department settlement agreement:

"Although persons may be asked if an animal is a service animal required because of a disability, they may not be required to show identification or certification of a service animal’s status; nor may persons with disabilities be required to show identification or certification of their own disability."

" No signage, harness, or other indicia is required to identify a service animal."

There are currently 290 DOJ settlement agreements online addressing service animals. The Justice Department looks for these cases. It takes them very seriously.

Feel free to contact me if I can be of further assistance.

Marc

Marc Dubin, Esq.
Director of Advocacy
Center for Independent Living of South Florida
6660 Biscayne Blvd.
Miami, Fl 33138
305-896-3000 mobile
305-509-7611 office
Skype: Southernmostatty
mdubin@pobox.com
Former Senior Trial Attorney 1992-2005
U.S. Department of Justice
Civil Rights Division
Disability Rights Section
Washington, D.C
www.ada.gov
“Marc’s style of negotiation is excellent. He offers concerns and information about possible violations of the law, time and time again, challenging one to improve services to people with disabilities and providing the tools and contacts to do so.... I have found him to be thoroughly professional, well-informed, very well-connected, and an asset to my efforts to enhance services to the disability community...." Joe Kocy, formerly the Broward County Administrator's Special Assistant for Housing
________________________________________
From: Glenna Cooper [gcooper@c-s-d.org]
Sent: Thursday, October 22, 2009 12:18 PM
To: Jeremiah Sisovsky; Marcia Smith; Marc Dubin
Cc: Cook, Rebecca F.; jdoty@ou.edu; jenifer.miller@doc.state.ok.us; Kidder, Barbara; Kristina Hakey; Nedbalek, Steve; SheryllS@health.ok.gov; Susan.Krug@oag.ok.gov
Subject: RE: Oklahoma service animal law

it is important to request for a identification card of the service dogs. Often people would abuse that law by saying their dog is a service dog when its actually not a trained dog. Once its a trained dog, they would need to provide the special card to justify that its a service dog certificated by some dog trainers.

I have several friends who does have service dog. They tells me that they are required to use vest or identification cover to help reduce the confusion along with the certifciation card. Most of them said they use orange vest with "working dog" wording on it depending on what they have.

Glenna


________________________________

From: Jeremiah Sisovsky [mailto:jeremiah@ocadvsa.org]
Sent: Wed 10/21/2009 10:21 AM
To: Marcia Smith; Marc Dubin
Cc: Cook, Rebecca F.; Glenna Cooper; jdoty@ou.edu; jenifer.miller@doc.state.ok.us; Kidder, Barbara; Kristina Hakey; Nedbalek, Steve; SheryllS@health.ok.gov; Susan.Krug@oag.ok.gov
Subject: Oklahoma service animal law



Thoughs? If you receive HTML emails then you can see the hightlights and easily find my comments in the below doc.



Oklahoma

Consolidated Assistance Animal/Guide Dog Laws

Citation: OK ST T. 7 § 12; 7 OK ST T. 7 § 19.1 - 19.2; OK ST T. 21 § 649.3; OK ST T. 41 § 113.1

Citation: 7 Okl. St. Ann. § 12; Okl. St. Ann. § 19.1 - 19.2; 21 Okl. St. Ann. § 649.3; 41 Okl. St. Ann. § 113.1

Summary:

The following statutes comprise the state's relevant assistance animal and guide dog laws.


Statute in Full:

Oklahoma Statutes Annotated Currentness. Title 7. Blind Persons. Chapter 1. Services to the Blind. Guide Dogs.

§ 19.1. Public conveyances and public accommodations--Guide, signal, or service dogs--Identification of dog--Definitions

A. Any blind, physically handicapped, deaf or hard-of-hearing person who is a passenger on any common carrier, airplane, motor vehicle, railroad train, motorbus, streetcar, boat, or any other public conveyance or mode of transportation operating within this state or any dog trainer from a recognized training center when in the act of training guide, signal, or service dogs shall be entitled to have with him or her a guide, signal, or service dog specially trained or being trained for that purpose, without being required to pay an additional charge therefor, but shall be liable as hereafter set forth in subsection B of this section.

B. A blind, physically handicapped, deaf or hard-of-hearing person and his or her guide, signal, or service dog or a dog trainer from a recognized training center in the act of training guide, signal, or service dogs shall not be denied admittance to or refused access to any of the following because of such dog: Any street, highway, sidewalk, walkway, any common carrier, airplane, motor vehicle, railroad train, motor bus, streetcar, boat, or any other public conveyance or mode of transportation, hotel, motel, or other place of lodging, public building maintained by any unit or subdivision of government, building to which the general public is invited, college dormitory and other educational facility, restaurant or other place where food is offered for sale to the public, or any other place of public accommodation, amusement, convenience, or resort to which the general public or any classification of persons from the general public is regularly, normally, or customarily invited (doesn't this sound more specific than the ADA? A DV shelter is not "regularly, normally, customarily" inviting the public, yet federal law supersedes state law right?) within the State of Oklahoma. Such blind, physically handicapped, deaf or hard-of-hearing person or dog trainer from a recognized training center in the act of training guide, signal, or service dogs shall not be required to pay any additional charges for his or her guide, signal, or service dog, but shall be liable for any damage done to the premises by such dog.

C. A dog used by a deaf or hard-of-hearing person shall be required to wear an orange identifying collar. (this is interesting for the fact that all other information I have read regarding service animals is that they MAY OR MAY NOT wear an identifying color/vest)

D. For the purposes of this section and Section 113.1 of Title 41 of the Oklahoma Statutes:

1. "Physically handicapped person" means any person who has a physical impairment which severely and permanently restricts mobility of two or more extremities, or who is so severely disabled as to be unable to move without the aid of a wheelchair;

2. "Service dog" means any dog individually trained to the physically handicapped person's requirements; and

3. "Signal dog" means any dog trained to alert a deaf or hard-of-hearing person to intruders or sounds.

(I have an ADA poster that says therapy dogs are not protected, but then I have something from Wisconsin that says therapy dogs are, but then the above indicates they MAY not be... and the signal dogs are only for deaf/hoh. Person with autism? Person with diabetes? Person who has seizures?)

CREDIT(S)

Laws 1968, c. 9, § 1, emerg. eff. Feb. 6, 1968; Laws 1981, c. 41, § 1; Laws 1985, c. 19, § 1, eff. Nov. 1, 1985; Laws 1988, c. 71, § 1, emerg. eff. March 25, 1988; Laws 1989, c. 154, § 3, operative July 1, 1989; Laws 1992, c. 122, § 1, emerg. eff. April 23, 1992; Laws 1998, c. 246, § 3, eff. Nov. 1, 1998.


§ 19.2. Penalty


Any person, or persons, firm, association, or corporation, or the agent of any person, firm, association, or corporation, who shall violate the provisions of Section 19.1 of this title shall be guilty of a misdemeanor.

CREDIT(S)

Laws 1968, c. 9, § 2, emerg. eff. Feb. 6, 1968; Laws 1985, c. 19, § 2, eff. Nov. 1, 1985.

Oklahoma Statutes Annotated Currentness. Title 21. Crimes and Punishments. Part III. Crimes Against The Person. Chapter 20. Assault and Battery.

§ 649.3. Harming, mistreating or killing service animal--Willful interference with service animal's performance--Permitting animal to fight, injure or kill service animal--Penalties--Exemption from registration or license fees

A. No person shall willfully harm, including torture, torment, beat, mutilate, injure, disable, or otherwise mistreat or kill a service animal that is used for the benefit of any handicapped person in the state.

B. No person including, but not limited to, any municipality or political subdivision of the state, shall willfully interfere with the lawful performance of any service animal used for the benefit of any handicapped person in the state.





jeremiah sisovsky, M.S., CM

disabilities access coordinator

Oklahoma Coalition Against

Domestic Violence and Sexual Assault

jeremiah@ocadvsa.org

405-512-5577 TDD and Relay calls Only

3815 N Santa Fe, Suite 124

Oklahoma City, OK 73118

405-524-0700 Main/Voice

www.ocadvsa.org