[nagdu] laws concerning dogs in dorms

[Ginger Kutsch]

Danielle,
Pasted below is a presentation about service animals in postsecondary
education settings that may offer some clarification.

ADA Conference Series -  Service Animals in Post Secondary Education
Settings
Recent revisions to the regulations implementing Title II and III of the ADA
have put an increased focus on the issue of service animals in a variety of
settings. Post secondary institutions face unique challenges around service
animals when it comes to their policies and procedures in student housing,
classroom spaces and public areas. This session will explore the different
scenarios that often play out in post secondary education and discuss the
interplay between laws governing non-discrimination in housing versus equal
access to programs and services. 

Please note: This webinar and accompanying materials may be accessed on the
ADA Audio Conference Series website at
http://www.ada-audio.org/Archives/AudioConference/index.php?type=transcript&
id=2013-06-18&app=1 

The transcript beginning with Slide 9 is pasted below. 
 
Moving on to slide 9 and getting to what all of you have joined us for
today, and that is the tremendous list of speakers that we have with us
today. We have five presenters. From the U.S. Department of Justice,
Disability Rights Section, we have Deputy Chief Sally Conway. We also have
Special Litigation Counsel Kathleen Wolfe. From the U.S. Department of
Education, Office of Civil Rights, we have Staff Attorney Ramin Taheri.
Last, but certainly not least, from the United States (US) Department of
Housing and Urban Development, we have Associate General Counsel for Fair
Housing JeanineWarden. Also Cheryl Kent who is the Special Advisor for
Disability Policy. You can find all of today's speaker's full bios on the
ada-audio.org website and that's also where you will be able to access an
archive of today's session. The audio version of today's session will be
available tomorrow, and an edited transcript of today's session will be
available in three weeks time. So with that I would like to turn it over to
our speakers from the US Department of Justice, Sally and Kathleen, take it
away.

 SALLY CONWAY: Thanks Peter, This is Sally Conway, and Katy who you see as
Kathleen on your slides. And I will be talking to you a little bit about the
service animal provisions under the Americans with Disabilities act. So if
you would go to the next slide 11. One thing that I think you probably
already know is that in 2010, we published revised regulations for both
Title II and Title III. And we made some changes in our requirements for
service animals. And one thing that is really important to know is that.
what we did, we learned from a lot of experience, over twenty years.

Thanks, everybody. Okay, talking about the revisions to the provisions for
service animals under both Title II, which applies to state and local
governments, and Title III, which applies to public accommodations.

 As I said, we learned a great deal over the past 20 years in both enforcing
and providing technical assistance, and way, way back when I came to the
Department in January of 1994, we thought back then that the easiest problem
or issue or provision to fix quickly in the Americans with Disabilities Act
was going to be service animals. I'm hoping that some of you are rolling
your eyes, and I hope some of you are chuckling, because it made perfect
sense to us because it wasn't usually going to be a money issue. It was an
issue of education. And it is now 2013, and we are still having webinars and
audio conferences, and I'll tell you, the folks on our information line were
answering between 1100 and 1200 calls a week, and by far, the most frequent
topic is service animals.

 So what we're hoping to do today is to help provide some guidance and
clarification as people might need it. The other thing, when we're talking
about the ADA, I want to be very, very clear that the revisions in the rules
under the ADA have absolutely no effect on other federal laws that may
provide more expansive definitions of service animals and may provide
protection for folks who use other kinds of animals or dogs. So I just want
to be very clear about that.

 One of the first things we did is we went and looked at the definition of
"service animal," and over the years, it's been very difficult because for
those of you who remember, the prior definition really was a service animal
was any animal that has been individually trained, and it wasn't limited.
And it was very difficult for cover entities to work through all this and
figure things out.

 We had calls, and I'm sure all of you out there have had calls or talked to
folks who have had service iguanas, service goats. We truly did have service
bees and snakes and a number of different kinds of species. And our
experience was, was what was happening to folks who were using service dogs
is that there really was a backlash, and covered entities simply threw up
their hands and said how can you expect us to make any good judgments? So
we're just not going to let any kind of a non-human on our premises.

 So when we did our proposed rulemaking, we got lots and lots of comments,
and we ended up changing the definition to say very simply and this is slide
12. I'm sorry, Peter. That a service animal means 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. And we added at the end of this
slide, you are going to see: The work or tasks performed by a service animal
must be directly related to the individual's disability; that language was
nowhere in the original Title III reg. The other thing that we did is we
also added the definition of service animal and service animal provisions
into the Title II of the reg.

 So the next slide, Peter, number 13. What does this really mean? The first
big thing is it limited the species of service animals to dogs. We did not
place a breed limitation or a size restriction or limitation on the kind of
dog. We also wanted to be very clear that we were clear and put in writing
that people who have psychiatric or psychological disabilities absolutely
can benefit from the use of a service animal. And we also really, for the
first time, although it really has been our position all along, we made it
very, very clear that comfort, emotional support, therapy animals, companion
animals are not service animals for the purposes of the ADA.

 The other thing that is really important and it may sound obvious, but it's
the individual with a disability that has coverage under the ADA; it's not
the animal. And I think it gets confusing sometimes for folks. So we're
talking about a person with a disability under the ADA who uses a service
animal that has been individually trained to perform a specific service,
work, or task -- and it may be several tasks -- for that person with a
disability. And the tasks have to be related to the disability.

 In terms of the individual training requirement, there is no language
anywhere that requires that the animal, that the dog be trained by an
organization that trains guide dogs, hearing alert dogs. It can be trained
by an individual him or herself. And so there isn't a requirement that that
animal has to be trained by some organization that people may know about.
And I think a lot of that is because a lot of the tasks that these dogs are
performing, may be so very specific to a particular person with a particular
disability that has particular manifestations of that disability. So again,
the individually trained means that that dog has been trained.

 The next slide we were asked to speak quickly about miniature horses. And
one thing that I need to say is that miniature horses are not considered
service animals. It's a separate category under the requirement to
reasonably modify policies, practices, and procedures.

 You know, and at first when I heard about, miniature horses I didn't know
anything about them, and I thought, well, this doesn't sound right to me.
But the reason why people do use miniature horses is, number one, a lot of
folks has really significant allergies to dog dander, and they can't use a
service dog. And the miniature horses are really pretty hypoallergenic.

 And the other thing is that a lot of -- when folks use a service dog, the
working life of a service dog -- and Jeanine, you can correct me -- is
usually somewhere between six and eight years. And then if you use a service
dog, you need to go through the process of getting another service dog and
working with that animal for a long time so that it becomes effective for
you.

 Miniature horses, their work life can go 20 or 25 years.

 The other thing that I did learn for folks who are of larger stature and
may have difficulty walking, may have gate issues, may have balance issues,
the back of that miniature horse provides a firmer, almost a platform to
help stabilize someone in their gate.

 We are talking about miniature horses. We are not talking about ponies. We
are not talking about any kind of a horse other than a miniature horse. And
generally, they range between 70 and 100 pounds, and height-wise, usually
it's between 24 inches and 34 inches right to the base of their neck where
the mane ends at the top of their shoulders. So they are not ponies, and
people need to understand that.

 And we did clearly talk about the assessment factors that you need to look
at to determine if you are a covered entity, whether you can reasonably
modify a policy to allow someone with a disability to enter your premises
with a miniature horse. And that would be slide 15.

 And it's pretty similar to the analysis that you go through for a service
animal. You have to consider the type, size, and weight of the horse and
whether the facility can accommodate those features. You also need to make
sure that the handler has sufficient control of that horse. The horse should
not be walking around on its own. It would be just like a service animal
where folks who use service animals are required to keep control, and that
service animal stays in that general vicinity. The horse has to be
housebroken, and usually it's pretty easy to figure out if a horse isn't
housebroken. And whether the horse's presence in any facility or a building
or a covered entity compromises any legitimate safety requirements. That
analysis is really pretty similar to the analysis you would turn to in
figuring if we can modify our policies to allow someone with a disability to
enter our premises. I know that was a real quick trip for some of you down
memory lane, and a very quick discussion of the high points. With that, what
I'm going to do is I'm going to turn this over to our friend, Ramin Taheri,
from Department of Ed. Ramin, you're next.

***RAMIN TAHERI
Thanks Sally. My name is Ramin Taheri, part of the Program Legal Group in
the Office for Civil Rights. I am probably going to be even a little more
brief than Sally was. I want to just kind of give you a feel for what OCR is
and where we fit within this service animals issue. OCR is, as you know,
part of the Department of Education. We are head quartered in Washington. We
have 12 enforcement offices across the country. The office in the Program
Legal Group where I work is generally responsible for leadership, policy
development, and coordination of enforcement activities.

 If you look at slide 18, I'm just going to try to get into some of the
disability laws that OCR enforces. So OCR enforces Section 504 of the
Rehabilitation Act of 1973 and Title II of the ADA. And as Sally mentioned,
Title II is enforcement. We share enforcement authority with DOJ. Of course,
Title III of the ADA is something that DOJ enforces, and that applies to
virtually all private colleges and universities.

 If you look at slide 19, I'm going to discuss just some general provisions
of Section 504 and Title II. With respect to Section 504, we at OCR enforce
Section 504 with respect to colleges and universities that receive federal
financial assistance from the Department. And Title II, as I mentioned,
applies to all state and local governmental entities, including public
colleges and universities. In general, both laws prohibit disability-based
discrimination, and what that means is a qualified individual with a
disability may not, on the basis of disability, be excluded from
participation, denied the benefits, or otherwise subjected to
discrimination.

 If you look at slide 20, because Sally went over some of the basics of
Title II and the ADA in general, I am going to focus on some 504 principles.
In general, 504 states that postsecondary institutions may not discriminate
on the basis of disability. Colleges and universities must modify their
academic requirements to ensure that they do not discriminate on the basis
of disability. Postsecondary institutions must ensure that individuals with
disabilities are not discriminated against due to the absence of auxiliary
aids for students with impaired sensory, manual, or speaking skills.

 Now, what that means for service animals in general. As Sally mentioned,
service animal is a term of art that's defined in the ADA regulations. The
Department of Education Section 504 regulations, which are fairly ancient,
do not define service animals. The only real relevant mention is to dog
guides, and that's in 34 CFR 1044 4B, in the section about academic
guidance, may not impose rules such as the prohibition of dog guides in
campus buildings that have the effect of limiting the participation of
students with disabilities.

 Now, in practice, nearly all institutions subject to Department of
Education Section 504 jurisdiction are also covered by the ADA, either Title
II or Title III, and in the context of housing, also the Fair Housing Act.
What this means is that postsecondary institutions should consider the
specific requirements of the ADA when creating service animal policies or
considering individual requests to use a service animal. And of course, it's
relevant in the housing context as well, where the ADA also applies, but the
Fair Housing Act, which could be more liberal in some senses, applies. And
again, colleges and universities would do well to keep in mind the
requirements of the Fair Housing Act and the ADA in designing
housing-specific policies with respect to service animals.

 To give you some sense of OCR's work in this area with respect to service
animals, since October 1, 2010, we've had 26 cases in the postsecondary
context involving service animals. Of those 26, 3 are currently open, and of
those 3, 2 are public colleges that would also be subject to Title II.

 That's essentially what I wanted to go through. Of course, I'm happy to
answer questions later on. The final slide, 21, just kind of has our address
and our email and phone number. We are happy to, of course, provide
technical assistance or answer any questions that you might ask but other
that than that, I am going to turn it over to Cheryl Kent.

***CHERYL KENT
Good afternoon. This is Cheryl Kent, and thank you. I will be talking about
the Fair Housing Act today. I would like to mention that Housing and Urban
Development (HUD) also enforces Section 504 of the Rehabilitation Act in
terms of our programs and services. Receive money from HUD. (Inaudible).
We're focusing on the Fair Housing Act Today. The Fair Housing Act, so we
are focusing on the Fair Housing Act today.

 The Fair Housing Act prohibits discrimination on the basis of race, color,
religion, sex, national origin, familial status, and disability. The Fair
Housing Act applies to virtually all types of housing, regardless of whether
or not the housing is linked to federal funding.

 In addition to the more typical types of housing, like apartments, condos,
shelters, supportive housing, covered housing also includes college and
university housing, including dormitories and faculty housing. A recent
court decision held that the university housing is covered by the Fair
Housing Act. This is U.S. v. University of Nebraska at Kearney. It's
mentioned on your slide with the specifics. Could we go to the next slide?
Slide 24, under the Fair Housing Act, housing providers have an obligation
to make reasonable accommodations, rules, policies, practices, and services
so that people with disabilities may benefit from and may use and enjoy
their dwellings to the fullest extent that they can. Reasonable
accommodations must be made for individuals with disabilities who are
applicants, tenants, or residents. This also includes their family members.
And it also includes other persons associated with residents, tenants, and
applicants.

 Next, slide 25, assistance animals. You will notice I use the term
"assistance animals" because, again, we are talking about a broader type of
animal here, and that's the terminology HUD has traditionally used.
Assistance animals are not pets; an Assistance animal provides assistance
and performs tasks for the benefit of a person with a disability. Assistance
animals also may provide emotional support that alleviates symptoms of a
person's disability.

Assistance animals and the tasks that they do include: guiding individuals
who are blind or have low vision and alerting people who are deaf or hard of
hearing to sounds, providing protection or rescue assistance is another
example, alerting people to pending seizures or providing emotional support
to people who have a disability-related need. Assistance animals are not
just dogs. This is different, again, from the ADA. Under the Fair Housing
Act, assistance animals can include dogs; it can include cat, bird, guinea
pig, miniature horse, capuchin monkey, and the like.

 Next slide, please. Now, under the reasonable accommodation provisions in
the Fair Housing Act, the assistance animal must be permitted if the
individual has a disability as defined in the Fair Housing Act, and there is
a relationship between the disability and the assistance provided by the
animal. One thing to keep in mind is if you look at these two provisions, if
the person does not have a disability or they don't have a
disability-related need for an assistance animal, one or the other, then the
housing provided would not have to modify a no pets rule and provide a
reasonable accommodation.

Again, they must have both. If they have both a disability and there is a
disability-related need for the assistance animal, then the housing provider
must permit the assistance animal to live with the person and let that
person use the assistance animal in all areas of the premises where a person
would normally be allowed to go. This includes all of the public use areas
on the premises, for example.

 Next slide, please, slide 27. Now, in applying the principles here, under
the Fair Housing Act, an oral request is sufficient. A person with a
disability could make a written application. It's not a requirement,
however. We believe the process should be easy and quick. One thing we
pointed out in some of the guidance material we put out is where disability
and the need for the disability -- the need for the animal, rather -- is
obvious, the housing provider may not request any additional information
about the disability or the disability-related need for the assistance
animal. For example, you see a person who is blind using a Seeing Eye dog,
you may not ask for evidence that the person has a visual disability or
evidence that they have a need for a guide dog.

 Now, if the disability is not obvious, the provider may request
verification of the disability. We state that that verification can be
provided a number of ways such as: by a doctor or other medical
professional, a peer support group, a nonmedical service agency, a reliable
third party who would be in a position to know about the person's
disability, or the individual himself. For example, proof of receipt of SSI
or SSDI or a credible statement. Housing providers may not impose fees. No
fees, no deposits, no insurance, no hold harmless agreements, no inspections
or pet rules, no veterinary certificates or other special conditions.

 Next slide, slide 28, other conditions, in terms of other conditions which
may not be imposed, I want to point out or express that it's the
individual's responsibility to maintain and control the animal. That's for
the person with a disability. The housing provider may not impose, they
cannot impose or limit access to the housing and indoor and outdoor public
and common use areas associated with the housing, and they cannot impose any
breed, weight, or size limitations. They cannot impose vaccination
requirements or neuter requirements.

 Okay. Next slide, please, on slide 29. Limited situations where you would
have a basis for denying a reasonable accommodation for an assistance
animal. The request may be denied if the assistance animal poses a direct
threat to the health or safety of others that can't be reduced or eliminated
by another reasonable accommodation. The assistance animal may also be
denied if the specific animal in question would cause substantial physical
damage to the property of others. And again, that cannot be reduced or
eliminated by another reasonable accommodation.

 Now, in looking at these issues, you have to do what we call an
individualized assessment. If you are looking at an animal where you think
it's a direct threat, again, it has to be an individualized assessment based
on recent credible, objective evidence relating to a specific animal's
actual conduct, not speculation about type or breed of animal. For example,
you can't simply decide if a person happens to have a pit bull as an
assistance animal that there's going to be a direct threat in that case. You
have to have objective evidence. You have to have something specific and
recent, actual conduct, and not just speculation and things like that.

 Also under the basis of denial or exclusion, a denial may be made if the
animal in question if you can demonstrate it would impose an undue financial
and administrative burden on the housing provider's operation. And again,
this is a very high standard to meet. It would generally not be applicable.
It's very difficult to meet that standard. The third situation is a
fundamental alteration in the nature of the program. Again, this is a very
high standard and would not typically be applicable. The next slide, I am
going to turn over to Jeanine Worden. She is going to cover the rest of the
talk today.

***JEANINE WORDEN
Hi, everybody. I wanted to point out one other area where there is a
difference between the ADA with respect to service animals and, on the other
hand, the Fair Housing Act, with respect to assistance animals. Under the
ADA, as Sally discussed, the service animal must be individually trained.
Under the Fair Housing Act, by contrast, the animal may be trained or it may
not be trained. There is no requirement for training for an assistance
animal under the Fair Housing Act. HUD recognizes that there is going to be
situations where both the ADA and the Fair Housing Act apply, and we think
it's really important for housing providers such as colleges and
universities to understand that you need to comply with both laws, and we
suggest that since the requirements for both laws are somewhat different,
first of all, you need to familiarize yourself with both laws, and
certainly, listening here is a really great way to do that.

 But the second thing that we recommend is that the analysis should be done
first under the Americans with Disabilities Act. And that's because in the
Justice Department regulations, they have guidance on inquiries that may be
made, and under the Fair Housing Act, it's possible that some additional
inquiry could be permissible, depending on an individual circumstance. And
we don't want anyone to inadvertently violate the ADA because they're
following what's permissible under the Fair Housing Act.

 So we really recommend you to start with the ADA analysis. If it's a
service animal, you don't need to do the Fair Housing Act analysis because
any animal that qualifies as a service animal is automatically covered by
the Fair Housing Act. Similarly, if it's a miniature horse that's covered by
the ADA, it's automatically covered by the Fair Housing Act, and you don't
need to worry about anything additional. If you do the admission for ADA
purposes, the Fair Housing Act just follows.

 However, there comes a point where you may decide that an animal is not a
service animal covered by the ADA. And that's the point where it's really
important that the next step in the analysis occurs. So a step that Cheryl
talked about, which is figuring out if the individual has a disability and
if the animal in question serves some disability-related need of the
individual. If so, then a reasonable accommodation is required under the
Fair Housing Act, and we don't want you to skip that stuff because at HUD,
just about the number one type of complaint that we receive is a denial to a
person who was seeking a reasonable accommodation for an assistance animal.
Most of the cases that have been charged in the past two years where HUD has
issued a formal charge of discrimination, have actually involved assistance
animals. So we think this is a really important area for everyone to pay
attention to.

 If you would move on to the next slide, which is slide 31, we have included
a couple of documents that we think would be very helpful for people who are
looking to learn more about the Fair Housing Act and disability issues. One
is the joint statement by the Department of Justice and the Department of
Housing and Urban Development about reasonable accommodations under the Fair
Housing Act that provides general guidance on reasonable accommodations. The
second is a document that we recently issued, and it talks about service
animals and assistance animals in housing. And that document kind of fits
within the broader issue of reasonable accommodation and provides more
specific guidance relating to assistance animals under the Fair Housing Act.
Peter, I am going to turn it back to you at this point.

PETER BERG
All right. Thank you very much, Jeanine, and thank you to all our presenters
who provided a quick but thorough overview of law that is apply to service
animals in postsecondary educational settings.

I am going to go to a question submitted through the platform and direct
this one towards Ramin and Sally and Katy, so DOJ with this is not related
to housing. But this question, if you could provide some input on this,
deals with a secondary, so a community college, and a student that is coming
on campus and identifying that they're using a service animal. Is that
institution limited to asking the two questions that are found in the DOJ
regulations? One, is it a service animal necessary for a disability; and
two, what service, what task, what work does the animal perform? Or in a
college setting, does the college have the ability to require, if they want
to bring that service animal into the classroom and other settings on
campus, can they require the student to go to disability services, register
with disability services, and can the college obtain additional
documentation? So I don't know, Ramin, do you want to tackle that? 

RAMIN TAHERI
So assuming it's a service animal as defined by the ADA and this is a public
institution that we're talking about, then yes. I mean, the school is
limited by the specific ADA service animal provisions. I've said this to
people before, but an easy way to think about it is try to think about an
individual who uses a service animal like an individual who uses a
wheelchair. The person should be permitted to come on campus and to travel
wherever on campus he or she needs to go with the service animal without
being asked any questions, especially if it's obvious that the animal is a
service animal and the person is using the animal because of a disability.
Generally, with a service animal, the school wouldn't be permitted to
require the student to first be registered with disability services. I don't
know if you want to add anything else.

SALLY CONWAY
We certainly agree. A number of schools, though, as well as communities and
other covered entities use voluntary registries. Where someone, if they
choose, can identify themselves as someone perhaps who uses a service animal
or has a disability for whatever reason, but they can't be forced to as a
precondition of participating in a program, activity, or service. So
voluntary registries are -- they are fine as long as they are truly
voluntary. But I think we would agree with what Ramin told you.

PETER BERG
Sally, as you were answering and as Ramin was speaking, popped into my head,
what would be a best practice for schools to address, you know, where the
institution is limited to those two questions where you might have someone
going into different buildings on campus and how might you limit the number
of times that the person has to answer those two questions and. I think that
what you talked about, the voluntary registry might be a way to address that
particular situation.

SALLY CONWAY
This is Sally, the fact that someone uses a service animal, and especially
if it's fairly evident where they are using a service animal, I don't know
why really those two questions are always going to be asked. I mean, just
from a general standpoint. The answer would be they would have a right to
ask those questions.

SALLY CONWAY
They certainly would have a right to ask that, but again, we've been pretty
clear that unless if it's a parent especially, there's no reason to ask
them. Training of your staff, letting staff know, and really front-line
staff, the ones who are at the doors, the security people, campus police
teachers, professors, everybody, they should know that there may be service
animals coming into their facility, and give them some training so they
understand what the purpose is and, you know, what questions they can ask.
And the only two bases for exclusion. I mean, I think that education is
really important. So Ramin? 

RAMIN TAHERI
All I was going to say was that a better way for schools to approach it than
to adopt some type of voluntary policy is to make sure that all faculty and
staff are well trained, and so that they understand that this is a situation
that may arise. So the individual with a disability who using a service
animal doesn't have to answer those two questions in every single building
that he or she goes into. It really comes down to training and awareness.

PETER BERG
All right. Excellent! Operator, could we go to our first question on the
telephone, please? 

OPERATOR
We have a question on the phone line, sir.

PETER BERG
We'll take that question, please, if you can identify the line.

OPERATOR
Sure. That line is from ____. Question, sir? 

CALLER
Hi, Peter. Can you hear me? 

PETER BERG
Yep, go ahead. What's your question?

CALLER
Okay. My question, I just wanted to make sure we're crystal clear on this
issue of emotional support animals. When we're talking about Fair Housing
Act, we are not just talking about emotional support animals, but we are
talking about an emotional support related to a disability defined as
significant limitation, on and on like that. Is that correct? 

PETER BERG
I'll direct that to Jeanine and Cheryl if we could.

JEANINE WORDEN
Thanks Peter. Yeah, under the Fair Housing Act, when you are talking about
an emotional support animal, the animal that's permissible is an animal that
is providing emotional support, the cause of the person's disability.

CALLER
That disability has to fall under the definition of a significant limitation
of a major life activity? 

JEANINE WORDEN
It's the definition under the Fair Housing Act, yes, and that's a
substantial limitation on one or more major life activities of the
individual.

CALLER
Okay. All right, Great.

PETER BERG
All right. Thanks for your question. We've got another question that will go
to HUD and Ed. In a dormitory setting -- actually, two questions with this.
One, in a dormitory setting, so not in an apartment, can a
college/university require documentation that the assistance animal/service
animal has up-to-date and required vaccinations required by local
authorities? And then I'll give you the quick the second scenario.

 Many dormitories are into the suite-type setting, so where you have
multiple bedrooms in a single suite area. And the questioner wants to know
how you would deal with a situation, say you have three students that have
been assigned to a room, they've selected that room. One of those students
is a student with an allergy as defined as a disability under FHA and ADA,
then a randomly fourth assigned student is placed in that suite, and that
student has a service animal or assistance animal, and would there be any
issues with relocating one or other of the students in order to meet the
accommodation needs of both? So those two questions, if you wouldn't mind,
Jeanine, Cheryl, Ramin.

JEANINE WORDEN
This is Jeanine. I'll take a stab at the questions, and then Ramin, you can
add on if you'd like to supplement.

 So we said no veterinary certificates in PowerPoint slides that we
provided. That does not mean that the individual does not have the
responsibility for providing appropriate veterinary care for an assistance
animal, including vaccinations if they are required by state law. However,
we do not believe that the housing provider should be policing those
requirements.

 And so what we've said to all housing providers is the process for someone
using an assistance animal in housing should be a quick-and-easy process
where there aren't multiple hoops to jump through. And you can certainly
make clear to the individual that it is their responsibility to maintain and
control their assistance animal, but we would say no, there shouldn't be
people going behind the fact and policing that an individual is complying
with those responsibilities.

 Obviously, if you have reason to believe that someone is not complying with
those responsibilities, there are officials who do have enforcement
responsibility in that area, and those are typically animal control
officials. That would be what you would do if you really think that someone
isn't complying with their responsibilities as individuals.

 In the area where you're dealing with a suite and you have two individuals
with disabilities that cause conflicting situations, you know, what I have
always said to housing providers is you have to consider both individuals
and their rights and interests. And so I think that as opposed to
arbitrarily making a decision that is going to affect one or both of the
individuals, I think the college or university should be speaking to each of
the individuals. Obviously, you want to be careful about the individual's
privacy and not disclose any disability-related information with respect to
either individual. But what you do is you figure out a solution that
accommodates the needs of both. And reasonable accommodation is an
interactive process where it really requires consultation with the
individual and trying to accommodate the needs of both individuals. One
individual shouldn't get priority over the other if both have disabilities.
Both needs need to be equally accommodated. Ramin, did you want to add to
it? 

RAMIN TAHERI
The only thing I want to add is you have to keep in mind that the ADA can
apply in the housing context as well. So if it's a service animal we are
dealing with here, again, you are limited to those two questions, and I'm
not sure if Sally or Katy would want to jump in with respect to the question
about vaccinations, but depending on if there's a local requirement,
obviously, that might be something that would be permissible. As to part 2
of the question, again, with respect to a service animal, you know, OCR
would expect to see the college accommodate both the individual using a
service animal and the individual with an allergy. It wouldn't be a basis
for excluding the animal.

PETER BERG
Okay. Excellent! Thank you, Ramin. Do we have another question on the
telephone at this time, please? 

OPERATOR
Ladies and gentlemen on the phone, if you have a question at this time,
please press star and 1. We have a question, ma'am? 

CALLER
Hi. Can you hear me? 

PETER BERG
Yes, go ahead.

CALLER
Okay. Hi. This is a question for Ramin. I'm wondering if OCR has a sort of
written policy. I understood what you said to be that under 504 in non-dorm
or housing situations that the schools can follow ADA requirements when
developing a policy. But is that in writing anywhere? My concern is that
people could claim non-ADA service animals under 504.

RAMIN TAHERI
No, what I said was a best practice would be for schools covered by the ADA,
which will be most schools, to consider the requirements of the ADA first in
coming up with any service animal policies or procedures. That's not
something we've put out in writing, but that's just something, given the
interaction of the laws, would probably be the best way to approach it from
the perspective of the college.

CALLER
Okay. But if it wasn't the service animal under the ADA, might there be some
obligation under 504 in non-housing situations to permit the animal? 

RAMIN TAHERI
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.

CALLER
Thanks very much.

PETER BERG
All right. Thanks very much. Let's go to a question submitted online. We'll
go back to Ramin and also to Sally and Katy for service animals in clinical
settings, so healthcare arenas or even for students that are in veterinary
programs and have clinical placements as part of their programs, and you
know, what are the responsibilities of the educational institution in terms
of identifying clinical settings where service animals will be allowed, and
are there limitations on where someone in the healthcare setting may be may
be allowed to take their service animal? 

KATHLEEN WOLFE
Hi, this is Katy. So the general rule is that a service animal must be
permitted to go anywhere where participants or members of the public or
participants in the program can go. And that generally applies to clinical
settings as well. There may be very rare cases, where because of particular
immune aspects where a service animal can't go. If you have access to our
regulations and you look at the regulatory guidance to the service animal
regulations, there's a nice discussion of that that really talks about how
limited that exception is. And what we tend to do is we take a position
that's consistent with that of the CDC, which also has explained that
there's very rare cases. For example, a classic example is the burn unit of
a hospital that, you know, for particular reasons, it's not safe for the
operation of that particular facility for the dog to be there. But
otherwise, we see service animals in all kinds of medical context, and that
happens on a daily basis.

PETER BERG
Thank you. Ramin, did you want to add to that, or should we move along? 

RAMIN TAHERI
I think that was great.

PETER BERG
All right. Excellent! Do we have another question on the telephone at this
time? 

OPERATOR
I see no questions in queue at this time, sir.

PETER BERG
All right. Then we will go ahead and move on to questioners that we have
received. This one is for Cheryl and Jeanine, and a person wanted to know
about in terms of access to all parts of the housing environment, so other
areas such as swimming pools, other common space, and the person, the
requester, wanted to know is there any difference in terms of access to
those areas, whether you are talking about a service animal or an assistance
animal? And then in addition, I will give you one more because this is for
you guys at HUD again. If you could talk a little more about documentation
and what is considered appropriate documentation, from who is the
documentation deemed to be appropriate? The questioner thought that the
letter needed to be provided by a qualified medical professional. So if you
could, Cheryl and Jeanine, address those that would be great.

JEANINE WORDEN
Okay. This is Jeanine. So what we have said is to all housing providers is
that if a person is permitted a reasonable accommodation with respect to an
assistance animal, the person may have the assistance animal with them in
all public and common use areas associated with the housing. So if a person
wants to bring a bird with them to the pool, or the cat going with them to
poolside, they are permitted to do that. What's more common is sometimes we
do have an instance where someone has an untrained assistance dog that they
would like to take with them, and in the context of housing, we've seen them
take an assistance animal like that to an exercise room or poolside or other
recreational areas where the housing is located. If there's an area
associated with the housing that serves food, then that also would be an
area where a person would be allowed to bring their assistance animal. It
just depends what's associated, what is a public or common use area that is
associated with the housing.

 On the issue of documentation, I want to start by stressing that you should
really start with the ADA analysis first. Because Department of Justice
regulations set out the limited inquiries that are appropriate in
determining whether to provide access to a service animal, and so if you
don't start with the ADA inquiry first, you could end up asking for
something that you're not supposed to ask for.

 Under the Fair Housing Act, what we say is for a reasonable accommodation
to be granted for an assistance animal, such as an emotional support animal,
the individual must have a disability, and they must also establish a
disability-related need for the animal. As we've said in our reasonable
accommodation guidance, which was issued about a decade ago, there are many
ways for individuals with disabilities to establish a disability and a
disability-related need for the requested accommodation.

 For example, many individuals with disabilities receive Social Security
disability benefits or SSI benefits on the basis of disability, and that's
actually a tougher determination of disability than the definition that
applies under the Fair Housing Act. So if a person is receiving disability
benefits from the Social Security Administration or they are receiving
benefits for a disability through a state vocational rehabilitation agency,
which might well be the case for a student in a postsecondary institution,
obviously that individual has a disability, and you may already know,
because of the educational needs of the individual, the nature of the
disability that's involved.

 At that point, there really is no need for any kind of a letter for a
qualified medical professional to establish the disability because it's
already there. A lot of the times, the disability is readily apparent. Just
by looking, you can tell a person has a significant mobility disability, and
it may be that one of the things that an assistance animal does for the
person is provide emotional support. It may be that the animal is useful to
the individual because it helps them get outside to walk, and it provides
therapeutic assistance to the individual in that regard. A lot of this is
really common Sense. Before saying I'm going to get this documentation
because I'm entitled to the documentation, the right place to start is
really why is the individual asking to have an assistance animal? While you
shouldn't be asking any detailed questions about the nature of an
individual's disability, a lot of the time in saying why they need an
assistance animal, an individual with a disability will volunteer the very
type of information that would answer your question.

 So you ask for the documentation that you actually need in order to make a
determination that a person has a disability and has a disability-related
need for the assistance animal, and nothing more than that. In Fair Housing
Act cases that have been litigated in federal court or before HUD
Administrative Law Judges, in instances where the individual with a
disability has either come forward with a note from a medical provider or
from psychiatric social worker or from a counselor, typically the
documentation that was physician obtained was a very simple statement: Jane
Doe has a disability and needs this emotional support animal because of her
disability. And that's sufficient documentation under the Fair Housing Act
for a housing providing to be required to grant a reasonable accommodation.

PETER BERG
All right. Excellent! Take one more question online, and direct this one to
Ramin and Jeanine and Cheryl. And this gets to the issue of colleges and
universities being limited, requiring students to sign some type of
agreement regarding the care and cleaning up after the animal. The
questioner states that they have in place general student code of conduct
rules that if the student violates, that student can face disciplinary
action under that. The questioner wants to know how do colleges and
universities deal with students where there are issues with the student not
cleaning up after the animal or not taking care of making sure the animal is
under the handler's control, where you have a dog barking and so forth? 

RAMIN TAHERI
Well, you know, a service animal, under the ADA, I mean, there are a few
possible reasons for a covered entity to exclude an animal. If the animal is
not under the handler's control, that's one reason. If the animal is not
housebroken; so those are some instances where a college might have some
leeway in excluding a service animal. I'm not sure if Cheryl wanted to get
into some specifics about the Fair Housing Act.

PETER BERG
Yeah, this question was, I think, specific to dormitory housing situations.

CHERYL KENT
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. 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.

 What we say is if a person has an assistance animal and they are not
cleaning up after the animal, how do you deal with students who have
comparable situations, such as they're using a break room and leaving a
break room a mess? Or they are littering on the college campus? How do you
deal with those individuals? And you should be dealing with individuals who
have assistance animals in comparable ways, not tougher ways, not more
lenient ways. There could be a situation where a person with a disability it
asks for some type of reasonable accommodation related to a relief area for
the animal or like a designated area; so that there was a trash can nearby
that made it easier to dispose of the animal's waste. That would certainly
be a reasonable accommodation request that would make sense for the college,
the university, the student. It would make sense for everyone if that
reasonable accommodation request would be honored because everyone would be
served. Again, 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.

PETER BERG
All right, then, before we go check on the telephones again, Jeannie, a
quick one for you. Regarding -- similar to the ADA, in a housing situation
under FHA, a person wants to know is the, is the service animal/assistance
animal need to be under their control, under the handler's control while in
a housing setting? 

JEANINE WORDEN
Yes

PETER BERG
Simple enough. The folks that have to be happiest today, we have a topic on
service animals, and the Department of Justice is facing the least amount of
questions for a change.

JEANINE WORDEN
And we do notice that.

PETER BERG
Do we have another question on the telephone, please? 

OPERATOR
Ladies and gentlemen on the phone, if you have a question at this time,
please press star and 1. I do show we have a question from ________ 

CALLER
Hey again. This is for the Department of Justice, and I was reading the
Super Shuttle policy which adds to the worker tasks that are in the
regulations the following. I was just wondering if you could address it. It
says providing (Inaudible) stimulation to calm a person with post-traumatic
stress disorder. I'm not sure what the difference between that is and an
emotional support animal. Let's say that emotional support animal that's
been trained, and so I mean, having the dog generally calms people, or
holding the dog generally calms people. So is there something that I'm
missing there? 

SALLY CONWAY
Hi, Kathy, it's Sally. Well, I think the difference is, is that it's not the
mere presence of the animal that is providing some amelioration of some
manifestation of a disability I would need to look specifically at the Super
Shuttle agreement, but I think what happens, we always categorize, we love
as humans to categorize things, and this goes in this hole, this goes in
this hole, and this goes in that hole. An animal that has been trained or
that recognizes that something might be happening, okay, but then is trained
to do a specific task once it recognized that, so it may be in terms of
anxiety, it may very well be that the animal has the ability to know when
the stress level and the anxiety level is really building up in the person
who has the disability, and once it recognizes that, it's trained to do a
very specific task. For instance, licking on the inside of a palm. It could
be trained to rub up against the outside of the leg. And to me, that's more
of a service animal because it is being trained to perform a task on behalf
of that person with a disability that will help to ameliorate that symptom.

 You know, analogy I can think of is somebody who has diabetes and has an
animal that, for whatever reason, can sense the onset of perhaps a
hypoglycemic episode, and that animal, that dog, has been trained to do
something very particular to alert the person to what it has sensed. And to
me, that's very different than having an animal. I have cats because I live
on the 15th floor. And petting one of my cats does have a calming effect on
that. But trust me; my cat has not been trained to do anything. So the
innate ability of an animal to calm someone down, absent a specific trigger
or a specific task, that brings it for purposes of the ADA, to an emotional
support animal.

CALLER
That helps. Thank you.

PETER BERG
Thank you. Ramin, we are going to go back to you with this question. There
have been quite a few questions around this issue that was actually started
by caller with her question. And this deals with assistance animals. So you
have a student that is allowed to have an assistance animal under FHA. It's
not a service animal. And the myriad of questions that have come in since
that discussion have to do with what are the obligations of the institution?
What are the rights of the person with the assistance animal to bring that
particular animal into settings outside of housing, so into the classroom,
into, you know, extracurricular activities, sports activities, and then if
you could address that.

 And then secondly, a number of questions come in regarding assistance
animals that are left by the student in the dormitory in the housing
setting, and what are the rights of the student with the assistance animal?
What can the educational institution do in terms of how long animals may be
left unattended, what about animals that are causing disturbances while the
handler is gone, so just a number of questions that have come in on those
two topics if you could address those, Ramin, please.

RAMIN TAHERI
Okay. So the first one that Kathy brought up, you know, essentially the
answer is so if we are not talking about a service animal as defined by the
ADA and we are outside of the housing context so the Fair Housing Act
doesn't apply, it's a situation where under Section Title IV, colleges and
universities are required to modify policies and procedures to avoid
disability discrimination. Now, the student who wishes to bring a comfort or
assistance animal into a classroom setting or what have you, the obligation
would be on that student to approach the school, follow the school's
reasonable procedures for requesting a modification or accommodation through
disability services or what have you. As I mentioned, hopefully the school
engages in an interactive process with that student to determine what's
appropriate and necessary with regard to modifications. I can't sit here and
tell you that every animal should be permitted or that all animals should be
excluded. That's going to be a fact-specific determination made on a
case-by-case basis. Then I think the second question about housing, is that
for Jeanine? 

PETER BERG
Yeah, I guess, yeah, that would go to you or let Jeanine take that.

 JEANINE WORDEN: I'll give it a shot. So noise issues, with respect to
assistance animals, you know, the student has the obligation to maintain and
control the animal, but the noise issue associated with an animal is really
not all that different from a noise issue associated with a student. I hear
tell students party from time to time, and I understand that can be noisy
too. So you deal with the assistance animal noise issue in the same way that
you would deal with another type of student noise issue. The student needs
to understand the obligations of not engaging in noisy behavior or allowing
the assistance animal to engage in noisy behavior that would disrupt other
students. However, if loud parties are tolerated, then loud assistance
animals are tolerated.

PETER BERG
All right. Thanks. Could you address the application of FHA to fraternity
and sorority housing? 

JEANINE WORDEN
That's another quick answer. Yes.

PETER BERG
Excellent. The FHA does apply. Very good, I guess this is for anyone. DOJ,
Ed, HUD.

 Address the issue of service animals in training and where they would be
allowed to go, whether that's covered, and then also what about a trainer?
So it's not a person with a disability, but it's someone that trains service
animals or assistance animals. So someone wants to jump in? Is that DOJ? 

SALLY CONWAY
I am happy to jump in from the ADA perspective. Because service animals in
training have not yet been trained, they don't meet the definition of a
service animal. But with all that being said, there are a number of local
jurisdictions and states that have enacted legislation and ordinances that
particularly applies to folks who are training service animals, to bring
them into businesses. You know, the animals need to get this experience, but
for purposes of the ADA, because that animal has not yet been individually
trained to do work or perform tasks for a person with a disability, it's not
considered a service animal for purposes of the ADA. Irrespective of if the
trainer is a person with a disability or not.

PETER BERG
Excellent. Jeanine, did you have any comment under FHA with regard to
animals in training? 

JEANINE WORDEN
In order to be assistance animal under the Fair Housing Act, the animal does
not have to be trained. So you know, as long as the individual has a
disability and the animal serves a disability-related need of that
individual, it qualifies as an assistance animal under the Fair Housing Act.

PETER BERG
Excellent. Thank you. Ramin, we'll go back to you. We sort of touched on
this, but I guess a follow-up question. I just want to remind folks that in
addition to receiving questions through the webinar platform, I'm also
providing questions to our presenters that are coming via email as well. So
this question goes to Jeanine and Cheryl as well as Ramin. But it talks
about service animals in food preparation areas, so I guess in a housing
setting, where in a dormitory you may have a common use food preparation
kitchen area, and then Ramin, for you, you sort of already answered this,
but wanting to know about excluding a service animal in a culinary class.
Jeanine, you want to take the first part of that, a Ramin, the second part,
please? 

JEANINE WORDEN
Sure, I'll start. If there's a common use food preparation area in a
dormitory, such as a student kitchen, the assistance animal would need to be
allowed in that area. It's a public and common use animal for housing.
Specifically it's probably a common use area of a dwelling, unless members
of the public are allowed there. It's covered by the Fair Housing Act, and
if the individual with a disability and anyone else gets to go there, so
does the assistance animal.

RAMIN TAHERI
For my part, it's clear that a service animal as defined by the ADA would
need to be permitted into the same types of places where food is sold or
prepared. That's not a basis for excluding the animal.

PETER BERG
Thanks. We are just about at the bottom of the hour. So I am going to take
one last question that was submitted and thank you to all of you that have
submitted your questions. Unfortunately, we are not able to get to all of
them, but this question did come up a couple times, and I guess it's opened
for anyone in terms of ADA application as well as FHA. What if a student is
unable to pick up after their service animal or assistance animal? From the
terms of what would be the responsibility of the educational institution? 

JEANINE WORDEN
Well, I can start. From a fair housing perspective, a person can always
request a reasonable accommodation, and if they establish a disability and a
disability-related need for the accommodation, it should be granted unless
it poses an undue financial and administrative burden or fundamentally
alters the nature of the operations of the housing provider. 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.

PETER BERG
All right. And we are just past the bottom of the hour, so we're going to go
ahead and stop with the question-and-answer portion of our presentation.
Want to first of all thank all of our presenters and the wonderful job that
they did, Sally Conway and Katy Wolfe from the Department of Justice; Ramin
from the U.S. Department of Education, Office of Civil Rights; and then
Jeanine and Cheryl from the U.S. Department of Housing and Urban
Development. Thank you all very much for your time and expertise in coming
together to put together this presentation and address the myriad of
questions that have come in. This is a topic that is of great interest, and
hopefully today's session has clarified and shed some light on many of the
areas where folks had questions.