Animal Welfare Information Center Newsletter, Summer 1996, Vol. 7 No. 2 *************************

 

Please go to the AWIC site for CURRENT INFORMATION on Assistance Animals and Legislation, Regulations and Guidelines pertaining to Assistance Animals.

No Dogs Allowed?

Federal Policies on Access for Service Animals

by
Kelly Henderson, M.Ed.,
Department of Special Education, University of Maryland, College Park, Maryland
Graphic:  Service Dog

For ages, humans have explored the potential healing benefit of animal companions for people who are ill or who have disabilities. The use of animals to assist their ailing human counterparts dates to the early Greeks who gave horseback rides to raise the spirits of people who were incurably ill, and documentation from the seventeenth century makes medical reference to horseback riding as treatment for gout, neurological disorders, and low morale (6). Even the famous nursing pioneer Florence Nightingale testified to the benefits of pet animals for the sick (11).

Since the middle of this century, the physical and emotional needs of disabled people in Western societies have became more visible and demanded more public attention (13). A variety of methods have been sought to increase the personal independence of people with disabilities. Since the 1960's, use of companion animals to increase physical mobility has contributed to logistical and emotional independence for many people with sensory, health, and other physical impairments. Probably the first systematic use of companion animals to assist disabled Americans was the training of dogs to guide people who are blind and visually impaired. While the earliest formal training of guide dogs in the United States dates back 65 years (8), widespread training has only occurred during the last three decades. Sixteen major guide dog training facilities operate in the United States (20). Each is administered independently. Guide dog training techniques are similar across schools, but policies, such as applicant requirements and types of dogs used, vary.

While guide dogs for the blind are the most commonly identified companions for people with disabilities, a number of other partnerships have been initiated. In 1975, Canine Companions for Independence (CCI) pioneered the concept of the service dog, a highly trained canine used to assist people who have disabilities with specialized services. CCI classifies specific types of service dogs by function. Service dogs perform tasks such as operating light switches, retrieving items, pulling wheelchairs, and opening doors. Hearing dogs assist people who are deaf or hearing impaired by alerting them to sounds such as telephone rings, crying infants, alarms, and people calling them by name.

The largest of service animal training organizations, CCI has four training centers across the United States. Several other groups operate training facilities either nationally or regionally. Policies vary by organization though many facilities prepare dogs to serve both mobility-impaired people and those with hearing impairments. Throughout the United States, nearly 70 organizations train service dogs, and about 45 providers train hearing dogs (19). Assistance Dogs International, Inc., a nonprofit association of training programs, establishes standards that member organizations must meet.

While canine assistants have great potential for improving the quality of life for many disabled people, the use of service animals remains an exception to the rule. In its 20-year history, CCI has trained only 600 animals. At least 9 million Americans live with significant physical and sensory impairments (14), but there are only 10,000-12,000 assistance dogs at work, of which 7,000 are guide dogs (5).

Social animals, those used to address animal-assisted therapy goals, are trained and used in a wide variety of settings including hospitals, nursing facilities, schools, and other institutions. While several national organizations provide structured training and certification programs for these animals, most are not recognized as "service animals" under Federal law. Therefore, this category of assistance animals will not be referenced in this review of service animal policy.

Policy Overview

Federal policy dictating access and training rights for disabled people who have service animals has, but for the past decade, been virtually nonexistent (1,2, 9,12). In its absence, many individual States did address rights for service animals through laws providing disabled people access to public facilities and housing. To date, all States and the District of Columbia have to some extent legislated such access rights. However, the extent of coverage varies considerably State to State and many State codes do not include reference to service dogs other than guide and hearing dogs.

In two major pieces of Federal transportation and housing legislation, provisions to prohibit discrimination against people with disabilities were interpreted to include access for service animals. Regulations implementing the Air Carrier Access Act of 1986 (1) and the Fair Housing Act of 1988 (9) clarify that anti-discrimination protections extend to people who use service animals.

The Air Carrier Access Act of 1986 (ACAA)

The first Federal legislation to directly address public access rights of people with disabilities who have service animals was the Air Carrier Access Act of 1986 (1). The act amended the Federal Aviation Act of 1958 to provide that prohibitions of discrimination against handicapped people apply to air carriers. Regulations clarify that air carriers must permit "dogs and other service animals used by handicapped people to accompany the people on a flight" (16). As a result of these 1986 stipulations regarding air transport, the 1990 Americans with Disabilities Act does not reference air carriers in its Title II and III transportation requirements.

The ACAA regulations provide one of the most specific statements of Federal policy regarding accommodation of service animals. While efforts to implement other Federal laws, such as the Americans with Disabilities Act, rely largely on technical assistance guidance, regulatory examples, and settlements to guarantee access and accommodation rights for disabled people who have service animals, the ACAA directly regulates these rights. The act requires air carriers to permit service animals to accompany people with disabilities on flights (14 CFR 382.55 (a)) (16).

(1) Carriers shall accept as evidence that an animal is a service animal identification cards, other written documentation, presence of harnesses or markings on harnesses, tags, or the credible verbal assurances of the qualified handicapped person using the animal.

(2) Carriers shall permit a service animal to accompany a qualified handicapped individual in any seat which the person sits, unless the animal obstructs an aisle or other area that must remain unobstructed in order to facilitate an emergency evacuation.

(3) In the event that special information concerning the transportation of animals outside the continental United States is either required to be or is provided by the carrier, the information shall be provided to all passengers traveling outside the continental United States with the carrier, including those traveling with service animals.

Service animals are also referenced in the act's regulations regarding seat assignments and clarifies that in the case that the service animal cannot be accommodated at the seat location of his/her human companion, the carrier must offer the passenger the opportunity to move with the animal to another seat as an alternative to requiring the animal to travel with checked baggage (14 CFR 382.37(c)).

The Fair Housing Amendments Act

In a comprehensive housing rights bill, Congress provided specific rights to accommodations for people with disabilities. The Fair Housing Amendments Act of 1988 prohibits discrimination in the sale or rental of a dwelling based on handicap (9). The act defines discrimination to include:

a) A refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if modifications may be necessary to afford such person full enjoyment of the premises...; or

b) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

The implementing regulations restate the law with regard to the policy on reasonable accommodations, and contribute an illustration by example (10):

Example (1): A blind applicant for rental housing wants to live in a dwelling unit with a seeing eye dog. The building has a no pets policy. It is a violation of Section 100.204 for the owner or manager of the apartment complex to refuse to permit the applicant to live in the apartment with a seeing eye dog, because without the seeing eye dog, the blind person will not have an equal opportunity to use and enjoy a dwelling.

The illustration does make clear that at least in the case of a guide dog for the blind, reasonable accommodations in rules, policies, practices, or services include special consideration for housing of service animals.

The Americans With Disabilities Act (ADA)

National access rights for service animals (28 CFR 36.104 defines the term "service animal" as "any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability.") across settings became a reality with the passage of the Americans with Disabilities Act of 1990 (2). Title I, administered by the Equal Employment Opportunity Commission (EEOC), prohibits employment discrimination against qualified individuals with disabilities. Under Title I, discrimination includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual who is an applicant or employee unless such covered entity can demonstrate that accommodation would impose an undue hardship on the operations of the business of such covered entity. (42 USC 12112(b)(5)(A))

Regulations (18) clarify the types of reasonable accommodations for which an employer is responsible. A sizable list of reasonable accommodations is noted in 29 CFR 1630.2(o) including modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, and acquisition or modifications of equipment or devices (29 CFR 1630.2(o)(2)(ii)).

Title II, Section 12132, of the ADA prohibits discrimination against qualified disabled people in public services including public transportation. Though the Title II regulations (28 CFR 35.130) do require "reasonable modifications" to avoid discrimination, they do not directly acknowledge access rights of service animals.

Of all sections of the Americans with Disabilities Act, Title III references service animals most directly. Title III prohibits discrimination of people with disabilities in public accommodations and services operated by private entities. Section 12182(b)(2)(A) clarifies specific prohibitions on discrimination on the basis of disability, and includes in the definition of discrimination:

a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. (42 USC 12182(b)(2)(A)(ii))

The U.S. Department of Justice (DOJ) implementing regulations (15) clarify "modifications in policies, practices, or procedures." 28 CFR Section 36.302(c) specifically addresses service animals and clarifies that "Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability" (see AWIC Newsletter vol. 6 #2-4--Americans with Disabilities Act and its Applicability to Zoos). The regulation further clarifies that public accommodations are not required to supervise or care for a service animal.

Implementation of the ADA

The EEOC and the DOJ, Civil Rights Division, use several reference aids to clarify the legislative intent of the ADA. Both agencies publish technical assistance manuals (21,22) that provide clarifications of the code and regulation through explanations and examples. Both agencies also have authority to take a variety of actions in response to complaints and charges filed. Service animal policy is thus affected by the lawsuits, amicus briefs, and formal and informal settlement agreements brokered by the agencies.

EEOC technical assistance guidelines (21) support the Title I regulatory language and define employers' responsibilities to make modifications for people with disabilities who have service animals in the workplace.

It may also be a reasonable accommodation to permit an individual with a disability the opportunity to provide and utilize equipment, aids or services that an employer is not required to provide as a reasonable accommodation. For example, it would be a reasonable accommodation for an employer to permit an individual who is blind to use a guide dog at work, even though the employer would not be required to provide a guide dog for the employee. (29 CFR 1630.2 App)

Title III prohibits discrimination on the basis of disability in public accommodations. U.S. Department of Justice regulations do specifically define service animals and require public accommodations to modify policies and procedures to permit use of service animals. The Title III Technical Assistance Manual (22) clarifies the definition of service animal by listing tasks typically performed by service animals: guiding people who have impaired vision, alerting individuals with impaired hearing to the presence of intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or retrieving dropped items (III-4.2300).

The manual reinforces the access policy via illustration.

An individual who is blind wishes to be accompanied in a restaurant by her guide dog. The restaurant must permit the guide dog to accompany its owner in all areas of the restaurant open to other patrons and may not insist that the dog be separated from her (III-4.2300).

The manual offers additional guidance regarding responsibilities of the service animal owner and of the public accommodation (III-4.2300).

The care or supervision of a service animal is the responsibility of his or her owner, not the public accommodation. A public accommodation may not require an individual with a disability to post a deposit as a condition of permitting a service animal to accompany its owner in a place of public accommodation, even if such deposits are required for pets.

In these cases, the technical assistance and interpretive guidance helps to secure public access and employment accommodation rights for people with disabilities who have service animals. However, in a recent manual supplement, the guidance describes situations in which it would permissible for health and safety reasons to not allow access to service animals. The DOJ Title III Technical Assistance Manual (22) attempts to clarify these provisions by acknowledging that in rare circumstances, if the nature of the goods and services provided or accommodations offered would be fundamentally altered or the safe operation of a public accommodation jeopardized, a service animal may not be allowed to enter (III-4.2300, 1994 Supplement).

In practice, health concerns have given rise to conflicts about the access of service animals in medical facilities. Though many hospitals work to negotiate satisfactory access policies, some institutions remain less flexible, leaving disabled people with service animals to pursue legal remedies through State or Federal channels.

ADA Complaint Resolution

Both the EEOC and DOJ investigate charges of ADA violations. The DOJ has been involved in a number of recent lawsuits, briefs, and settlements that address access and accommodation rights for service animals. One case, Crowder v. Kitigawa (7), went to trial on constitutional, as well as ADA, Title II (prohibition of discrimination in activities of state and local government) claims. In February 1994, the U.S. District Court for the District of Hawaii ruled against the plaintiff, a visually disabled guide dog user who protested Hawaii's canine quarantine. In June 1994, the U.S. Department of Justice filed an amicus brief (23) supporting an appeal of the case, which is currently under review by the U.S. Court of Appeals.

Several additional complaints regarding access rights for people with disabilities who have service animals have been pursued by the Department of Justice. In at least two formal and several informal settlement agreements with the DOJ under Title III of the ADA, owners and operators of private businesses agreed to modify policies with respect to access for service animals. Upon negotiation with the DOJ, most public accommodations and facilities agreed to take steps to ensure that disabled people who use service animals are provided access to the facilities. For example, an inn modified its policy to permit people with disabilities accompanied by service animals to stay without paying the $25 flea extermination service fee. In another settlement, a drugstore chain agreed to modify its "no animals" policies by making exceptions for service animals.

Other Implementation Concerns

Beyond the regulatory enforcement and judicial interpretations of Federal law, access and accommodation rights for service animals are further affected by several other factors. To date, Federal policies fail to address a number of aspects related to service animals.

The training of service animals is currently not regulated by Federal agencies. No Federal law or regulation includes reference to access for animals in training, although 21 States do secure such rights in State code (4). No guidelines for service animal trainers or for certification of the animals themselves is found in Federal policy. Though a number of service animal training organizations do maintain membership in Assistance Dogs International, Inc., and meet ADI standards for training, each organization may still maintain its own certification and evaluation criteria. While no federally recognized certification or training standards have yet been established, two Federal laws address certification or other proof of service animal status. Regulations implementing the ACAA require air carriers to accept as evidence that an animal is a service animal identification cards, other written documents, presence of harnesses or other markings on harnesses, tags or the credible verbal assurances of the qualified handicapped person using the animal (14 CFR 382.55(a)(1)). Department of Justice ADA technical assistance indicates that a number of States have programs to certify service animals; however, a private entity cannot insist on proof of State certification before permitting the entry of a service animal to a place of public accommodation. The importance of training and use of service animals to people with disabilities has yet to be recognized by the health insurance industry (3). For example, the time a parent of a child with a disability or an adult with a disability invests to attend a service animal training session (some as long as 6 weeks) is not covered by Federal Family and Medical Leave Act criteria of "serious illness" (17).

The use of service animals has improved the quality of life for people with sensory and physical disabilities. While people with disabilities in America still confront barriers erected by ignorance and misinformation, the three major Federal laws reviewed above work to defeat such discrimination by guaranteeing access and accommodation rights to people with disabilities who use service animals.


Kelly Henderson can be reached at the University of Maryland, Department of Special Education, 1308 Benjamin Building, College Park, MD 20742-1161; 301-405-6503, or e-mail: hendhage@wam.umd.edu.


References

  1. Air Carrier Access Act, 49 USC app. 1374 (1986).

  2. Americans With Disabilities Act, 42 USC Part 12100 (1990).

  3. Allen, K. (1995). Coping with life changes and transitions: The role of pets. InterActions 13(3): 5-10.

  4. Assistance Dogs International (1994). Legal rights of guide dogs, hearing dogs, and service dogs. Assistance Dogs International:Lakewood, CO.

  5. Assistance Dog United Campaign. What is the Assistance Dog United Campaign and why is it needed? (Information sheet available from Assistance Dog Institute, Rohnert Park, CA 94927).

  6. Bustad, L.K. and L. Hines (1984). Historical perspectives of the human-animal bond. In The Pet Connection, R.K. Anderson, B.L. Hart & L.A. Hart, eds., Center to Study Human-Animal Relationships and the Environments:Minneapolis, pp.15-29.

  7. Crowder v. Kitagawa, 842 F.Supp. 1257 (D. Hawaii 1994).

  8. Eames, E. and T. Eames (1989). A comparison of the guide dog movements of England and the United States. Journal of Visual Impairment and Blindness 83(4): 215-218.

  9. Fair Housing Amendments Act, 42 USC Sect. 3604 (1988).

  10. Fair Housing Amendments Rule, 24 CFR Sect. 100.204 (1989).

  11. Hines, L.M. and L.K. Bustad (1986). Historical perspectives on human-animal interactions. National Forum 66(1): 4-6.

  12. Housing and Urban-Rural Recovery Act, 12 USC 1701n-1 (1983).

  13. Karan, O.C. & Greenspan, S. (Eds.). (1995). Community Rehabilitation for People with Disabilities. Butterworth-Heinemann:Boston

  14. La Plante, M.P. (1991). Medical conditions associated with disability. In Disability in the United States: A portrait from national data, S. Thompson-Hoffman and I.F. Storck, eds., Springer:New York, pp.34-72.

  15. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 28 CFR Part 36 (1991).

  16. Nondiscrimination on the Basis of Handicap in Air Travel, 14 CFR Part 382 (1990).

  17. Ptak, A.L. (1995). Service dogs for children with disabilities: When are they the right prescription? Delta Society Alert 6(3): 1-2.

  18. 18Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 29 CFR Part 1630.

  19. Stiverson, C. (in press). Assistance dog providers in the United States (2nd Edition). (To be available from N.C. Service Dogs, P.O. Box 160, Fairview, N.C. 28730).

  20. Stiverson, C. & Dodson, G. (1995, March). Assistance dog providers in the United States. Ball State University:Muncie, IN.

  21. U.S. Equal Employment Opportunity Commission (1992). A technical assistance manual on the employment provisions (Title I) of the Americans with Disabilities Act (Publication no. EEOC-M-1A). U.S. EEOC:Washington, DC.

  22. U.S. Department of Justice (1992, 1993, 1994). The Americans with Disabilities Act Title III Technical Assistance Manual and Supplements. U.S. DOJ: Washington,D.C.

  23. U.S. Department of Justice amicus curiae brief in Crowder v. Kitigawa (submitted June 13, 1994), No. 94-15403


This article appeared in the Animal Welfare Information Center Newsletter, Volume 7, Number 2, Summer 1996

Go to:
Related Article: Service Animal Information
Contents, Animal Welfare Information Center Newsletter
Top of Document

The Animal Welfare Information Center
U.S. Department of Agriculture
Agricultural Research Service
National Agricultural Library
10301 Baltimore Ave.
Beltsville, MD 20705-2351

Phone: (301) 504-6212
FAX: (301) 504-5181
Contact us: http://awic.nal.usda.gov/contact-us

Policies and Links


USDA logo ARS logo NAL logo
June 18, 2013
This page's URL is http://www.nal.usda.gov/awic/newsletters/v7n2/7n2hende.htm