[nagdu] Expected DOJRuling in Next Few Weeks
cheryl echevarria
cherylandmaxx at hotmail.com
Sat Jan 30 17:20:32 UTC 2010
Believe or not the Cruise Lines allow all forms of service animals including Hourse, I hope that this doesn't change this if the DOJ change these options.
Cheryl Echevarria
Independent Contractor
www.Echevarriatravel.com<http://www.echevarriatravel.com/>
1-866-580-5574
blog.echevarriatravel.com
Reservations at echevarriatravel.com<mailto:Reservations at echevarriatravel.com>
Affiliated as an Independent Contractor with Montrose Travel CST-1018299-10
----- Original Message -----
From: Marion & Martin<mailto:swampfox1833 at verizon.net>
To: NAGDU List<mailto:nagdu at nfbnet.org>
Sent: Saturday, January 30, 2010 11:58 AM
Subject: [nagdu] Expected DOJRuling in Next Few Weeks
Dear All,
Below is the expected new regulations concerning service animals. These regulations are expected to be approved by the Office of Management & Budget within the next few weeks. I am disappointed that the department chose to exclude miniature horses as service animals, as I know that we have two members successfully using them as guides.
Fraternally yours,
Marion Gwizdala
1
Service Animals
and the Law
Jacquie Brennan
Attorney
DBTAC Southwest ADA Center
Americans with Disabilities Act
Title I -- Employment
Title II -- State and Local Governments
Title III -- Public Accommodations
Title IV -- Telecommunications
Title V -- Miscellaneous provisions.
Service and therapy animals are treated
differently under different titles so we will
look at each.
2
What is a service animal?
Currently, the definition in the regulations is
“any guide dog, signal dog, or other animal
individually trained to do work or perform tasks
for the benefit of an individual with a disability,
including, but not limited to, guiding individuals
with impaired vision, alerting individuals with
impaired hearing to intruders or sounds,
providing minimal protection or rescue work,
pulling a wheelchair, or fetching dropped items.”
Why is “currently” underlined?
Because the Department of Justice (DOJ)
has issued new ADA regulations that are
expected to be enacted within the next
several weeks.
A lot of these new regs affect this
information on service animals and other
animals used by people with disabilities.
3
Why are there new regs?
DOJ receives a large number of
complaints from people who use service
animals that indicate that a large number
of businesses and other covered entities
are confused about their obligations when
it comes to service animals.
There is also confusion about how service
animal is defined and whether comfort
animals are covered.
Also
Some individuals who do not have a
disability claim that their animals are
service animals.
Other individuals, who may have a
disability, claim, either fraudulently or
sincerely (albeit mistakenly), that their
animals are service animals even though
they do not meet the definition.
4
All Clear
DOJ hopes that the new regs will clear up
some of the confusion, both on the part of
businesses, as well as people with
disabilities.
More Tasks
Under the new regs, there are more tasks
listed as examples, such as “assisting an
individual during a seizure, retrieving
medicine or the telephone, providing
physical support to assist with balance and
stability to individuals with mobility
disabilities, and assisting individuals,
including those with cognitive disabilities,
with navigation.”
5
Not a Service Animal
Under the new regs, the definition of service
animal now includes a specific list of animals
that are excluded, even if they are service
animals under the current law.
These include wild animals, including nonhuman
primates born in captivity, reptiles, rabbits, farm
animals, including any breed of horse, pony, or
miniature horse, pigs, goats, ferrets,
amphibians, and rodents.
What is a therapy animal?
Currently, there is no definition of a
therapy, comfort, or emotional support
animal in the ADA.
These animals are not covered by the ADA
because they do not meet the definition of
service animal.
6
Not Service Animals
When the new regs go into effect, the
DOJ’s position on whether comfort animals
are covered as service animals is: “animals
who sole function is to provide emotional
support, comfort, therapy, companionship,
therpeutic benefits, or promote emotional
well-being are not service animals.”
Psychiatric Service Animals
Because of the ADA requirement that
animals be able to “do work or perform
tasks,” in most cases, animals that assist
people with psychiatric disabilities were
considered to be comfort animals and,
therefore, not service animals.
The new regs recognize that there are
“psychiatric service animals.”
7
Tasks
The new regs discuss psychiatric service
animals that can be trained to perform a
variety of tasks for individuals with
disabilities, including detecting the onset
of psychiatric episodes or ameliorating
their effects.
Other tasks
Other examples of tasks that might be
performed by a psychiatric service animals
include reminding a person to take meds,
turning on lights or performing safety
checks for persons with PTSD, interrupting
self-mutilation for individuals who have
dissociative identity disorders, and
keeping disoriented persons from danger.
8
But
This expressly does not expand that
definition of service animal to include
comfort animals.
Remember
In general, service animals have protections
under the ADA, but comfort animals do not.
The new regs, however, do recognize that the
exclusion of comfort animals is specifically for
the non-employment provisions of the ADA and
that such animals might be differently
considered in employment settings, where there
might be compelling reasons to allow comfort
animals as a reasonable accommodation.
9
What proof do you need?
A service animal is not required to wear a
special collar or harness.
A service animal is not required to have
papers certifying its training.
So if it isn’t obvious, how does a business
know whether an animal is a service
animal?
What can people ask?
It is all right to ask the handler if the
animal is a service animal required
because of disability.
It is all right to ask whether the animal
performs specific tasks for the person.
Disability-specific questions may not be
asked.
10
WalMart Settlement
In January 2009, the DOJ and Walmart
reached an agreement about service
animals in which Walmart agrees that a
greeter or store manager may ask only
one question, and that the question can
be asked only if the need for the animal is
not obvious. The question is -- “Is this a
service animal required because of a
disability?”
Out Of Control
Because of the nature of their work, it is
unusual for a service animal to ever
display any “out of control” behaviors.
Businesses may exclude an animal whose
behavior poses a direct threat to the
health or safety of others.
This must be based on actual risk and not
on potential risk or generalizations.
11
What About Other People?
Sometimes other customers might be
afraid of service animals.
If that happens, it might be possible to
allow that customer to avoid getting close
to the service animal.
Fees or Pet Deposits
A business may not charge a deposit,
surcharge, cleaning fee or any other fee to
an individual with a disability as a
condition to allowing the service animal to
accompany the individual, even if the
business has a policy of charging
customers fees or deposits for pets.
Service animals are not pets.
12
Smelly Dogs
Entities, especially schools, colleges, and
universities, often have problems with
service animals being unclean and
downright stinky.
It is all right to have a policy that says
that dogs must be clean and free from
offensive odors.
Proof of Vaccination
Although an entity may not require proof
of training or any kind of certification for a
service animal, it is all right to require
proof that the animal is current on all
vaccinations that are required by law.
13
Title I -- employment
Service animals are allowed to accompany
individuals with disabilities to their places
of employment.
Comfort animals might be allowed under
certain circumstances as a reasonable
accommodation for a person with a
disability.
State and Local Governments
State and local governments may not
prohibit service animals from programs or
services of the government entity.
Surcharges or deposits may not be
charged, even if they are charged for
other animals, such as pets.
14
Title III: Public Accommodations
Places of public accommodation, such as
hotels, restaurants, bars, theaters,
auditoriums, parks, stores, law offices,
doctor offices, banks, bus stations,
museums, amusement bars, salons, dry
cleaners, spas, social service centers, golf
courses, real estate offices, gyms, and
coffee shops, may not exclude service
animals from any area that is open to the
public.
Transportation
The ADA also applies to transportation
providers.
If the provider is a government entity, (as
is the case for subways, fixed route buses,
paratransit, rail, and light rail), it is
covered under Title II.
If the provider is a private entity offering
taxi, car, or limo service, it is covered by
Title III.
15
Fair Housing Act
The FHA was passed in 1968 to provide
protection from discrimination in housing,
based on race, color, national origin, or
gender.
In 1988, it was amended to expand
protection from housing discrimination to
other classes, including disability and
familial status.
What is prohibited
Landlords, condominium associations, and
other housing providers are prohibited
from discriminating against housing
applicants or residents because of their
disability or because of the disability of
anyone associated with them, as well as
from treating persons with disabilities less
favorably than others because of their
disability.
16
Reasonable Accommodations
The FHA also mandates that housing
providers make reasonable
accommodations in rules, policies,
practices, or services when necessary so
that a person with a disability has the
equal opportunity to use and enjoy the
housing.
That is the key provision when discussing
animals.
Like the ADA
Everything we’ve discussed that pertains
to service animals under the ADA also
applies to service animals under the FHA.
But -
While the ADA does not provide coverage
for therapy animals, comfort animals, or
pets, the Fair Housing Act may.
17
Emotional Support Animals
Therapy animals are used as part of a
medical treatment plan to provide
companionship, relieve loneliness, and
sometimes help with depression and
certain phobias. They are not service
animals because they do not do work or
perform tasks that assist people with
disabilities.
“No Pets Allowed”
Under the FHA, such comfort or therapy
animals may be allowed in housing, even
if there is a “no pets” policy in place.
18
Reasonable Accommodation
The FHA definition of housing
discrimination includes the refusal to grant
“reasonable accommodations in rules,
polices, practices, or services, when such
accommodations may be necessary to
afford such person equal opportunity to
use and enjoy a dwelling.”
Waiver
Waiving a no-pets rule to allow a person
with a disability to have the assistance of
a service animal, or a comfort animal,
constitutes a reasonable accommodation.
Courts have found that landlords must use
“a flexible standard, based on the needs
of the particular tenant” when responding
to a request for an accommodation.
19
Air Carrier Access Act
The ACAA prohibits discrimination because
of disability in air travel.
It applies to all domestic airlines.
It also applies to foreign airlines that fly
into or out of the U.S., although there are
some differences that we will discuss.
Service Animals
Air carriers are required to allow service
animals traveling with people with
disabilities to sit with them in the cabin of
the aircraft.
20
Definition of Service Animal
Different definition than under the ADA
Includes guide dogs, signal dogs,
psychiatric service animals, and emotional
support animals
Pets
Persons traveling with pets, as opposed to
service animals or emotional support
animals, do not have any rights under the
ACAA.
21
Questions
Personnel may ask questions and request
documentation in certain circumstances to
determine whether the person is entitled
to travel with a service animal.
A common misconception among
passengers is that, once you invoke
disability, questions are forbidden.
The types of question that may be asked
vary depending the disability & the animal.
Documentation
Additionally, documentation may be
required.
The level of documentation that may be
required depends on the person’s
disability and the type of service animal.
22
Why does it depend on that?
Shouldn’t all disabilities be treated the
same?
The reasoning behind the variation
includes:
Many people with disabilities who travel do
not have obvious disabilities and the need for
a service animal is not apparent; and
Even for some individuals with obvious
disabilities, the need for the service animal
may not be apparent.
If the person has an
obvious disability and…
The service animal is wearing a harness,
tags, vests, or backpack; or
The person provides identification cards or
other written documentation; or
The person provides credible verbal
assurances that the animal is a service
animal –
Then the airline should permit the animal to
accompany the person on the plane.
23
Additional Questions
If personnel are not certain of the animal’s
status, even after being told that it is a
service animal, they can ask things like:
What tasks or functions does your animal
perform for you?
What has the animal been trained to do for
you?
Would you describe how the animal performs
this task or function for you?
Emotional Support or
Psychiatric Service Animals
For these animals, airlines may request very
specific diagnostic documentation to be
provided 48 hours in advance of the flight.
24
Documentation must:
Be current (not more than 1 year old);
Be on letterhead from a licensed mental
health professional;
State that the person has a mental or
emotional disability recognized in the DSM
IV; and
State that the animal is needed as an
accommodation for air travel or for activity
at the individual’s destination.
Also
The documentation should also state that
the health professional is treating the
individual and include the date and type of
the mental health professional’s license
and the state or other jurisdiction in which
it was issued.
It does not need to state the person’s
diagnosis.
25
Unusual Animals
Unusual animals like miniature horses,
pigs, and monkeys may be allowed to
travel as service animals.
It depends on…
Depends on what?
The airline may take into account the
animal’s size, weight, and whether the
animal would pose a direct threat to the
health or safety of others, or cause a
significant disruption in cabin service.
If there are restrictions on the animal at
the final destination, the animal may be
denied.
26
Even more unusual animals
Snakes, other reptiles, ferrets, rodents, and
spiders will be denied boarding the plane
at all, as they may pose other safety and
public health concerns.
Dogs only
Foreign carriers are required to transport
only dogs as service animals.
27
Barking and Jumping
If a service animal barks, growls, jumps
on people, or misbehaves in ways that
indicate that the animal has not been
trained to behave properly in public
settings, poses a direct threat to the
health and safety of others, or poses a
significant risk of disruption in airline
service, it may be denied boarding.
Other customers
Service animals cannot be denied passage
because other customers are allergic to,
annoyed by, or afraid of, animals.
The airline will make accommodations to
assure that other passengers are
comfortable.
28
Severe Allergies
If a passenger with a severe allergy that
rises to the level of a disability cannot
travel in the same cabin as the animal, a
carrier may rebook one of the passengers
on another flight.
Preboarding
Passengers with a service animal may
request preboarding and ask for a
bulkhead seat or a seat that better suits
their needs.
29
Seating
A person traveling with a service animal
may request any seat unless it blocks an
aisle or an area designated for emergency
evacuation.
If the person cannot be accommodated in
a requested seat, then s/he must be given
the opportunity to move to another seat
within the same class of service.
Not Required
The airline does not have to ask other
passengers to give up all or most of the
space in front of their seats to
accommodate space for a service animal.
The airline may try to find someone willing
to do that.
30
Voluntary Response
The airline can voluntarily reseat a person
traveling with a service animal to a
business or first-class seat to
accommodate a service animal, but it is
not required to do so.
In-flight services for animals
In-flight services and facilities do not have
to be provided to service animals.
Owners traveling with animals must
provide for the animal’s food, care, and
supervision.
31
Terminal Relief
In the terminal, airlines must provide animal
relief areas and must provide escort
service to individuals traveling with service
animals to these areas, when requested.
Undue Burden
Airlines are not required to make
modifications for service animals that
would constitute an undue burden or
would fundamentally alter their programs.
32
Questions
Let’s talk now
or
Email me any time
<mailto:jbrennan at bcm.edu<mailto:jbrennan at bcm.edu>> jbrennan at bcm.edu<mailto:jbrennan at bcm.edu>.
Sheila Styron
816-896-6552
sheilastyron at everestkc.net<mailto:sheilastyron at everestkc.net>
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