One of the confusing issues out there is the difference between a service dog and a therapy dog and why it matters. 28 C.F.R. § 35.104 and 28 C.F.R. § 36.104 (the sections of the federal regulation that apply to service animals for public entities and for places of public accommodations respectively), both define service animal in the same way. Under those regulations, a service animal is any dog 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. 28 C.F.R. § 35.104 and 28 C.F.R. § 36.104. The work or task performed by the service animal has to be directly related to the handler’s disability. Id. The regulations go on to give examples of what such work or tasks may include. According to the regulations, such work or tasks may include but is not limited to: assisting individuals who are blind or have low vision with navigation and other tasks; alerting individuals who are deaf or hard of hearing to the presence of people are sounds; providing nonviolent protection or rescue work; pulling a wheelchair; assisting an individual during a seizure; alerting an individual to the presence of allergens; retrieving items such as medicine or the telephone; providing physical support and assistance with balance and stability to individuals with mobility disabilities; and helping persons with psychiatric and neurological disability by preventing or interrupting impulsive or destructive behaviors. Id. Very importantly, for purposes of this particular blog entry, the regulations go on to say that, “the crime deterrent effects of an animal’s presence and the provision o f emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” Id. (emphasis added).
Before moving on further, a couple of points are in order. First, while not specifically listed in the definition of a service animal, in a separate section of the regulations, miniature horses get protection. See 28 C.F.R. § 35.136(i) and 28 C.F.R. § 36.302(c)(9) (the Department of Justice regulations pertaining to the inclusion of miniature horses with respect to title II and title III entities respectively). Second, this blog entry is specifically focused on the Americans With Disabilities Act and the Department of Justice regulations. Other laws out there, such as the fair housing act, have different statutory provisions and regulations that may also impact on the situation. Nevertheless, I do not address those here.
28 C.F.R. § 35.136(f) and 28 C.F.R. § 36.302(c)(6) (the sections of the regulations that apply to the inquiry that may be made of service animal by public entities and places of public accommodations respectively), both limit the inquiries that can be made when someone shows up with an animal at the public entity or at the place of public accommodation. The inquiries they can make are whether the animal is required because of a disability and what work or task the animal has been trained to perform. 28 C.F.R. § 35.136(f) and 28 C.F.R. § 36.302(c)(6). However, those inquiries cannot be made if it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability. Id.
So here’s the problem. Under the Americans with Disabilities Act, service dogs must be allowed into the place of public accommodation or into the public entity. However, dogs that are not working or providing a task, as the Department of Justice sees it, but are there to keep the person with a disability calm, are not protected by this regulation because those animals are providing emotional support, well-being, comfort, or companionship rather than are working or performing a task for the handler. The other problem is that the ADA is not the only law in play. For example, the Fair Housing Act and their regulations do allow for emotional support animals.
All of this leads to the following. First, if a public entity or a place of public accommodation is faced with the situation where a person shows up with a dog and wants to take it into the public entity or a place of public accommodation and it is not obvious that the dog is performing work or a task for the handler, the public entity or the place of public accommodation can make the inquiries noted above. However, since the inquiries are limited, making the inquiries may not be terribly helpful. For example, if the person with a disability is knowledgeable enough about the distinction between service dogs and emotional support, the person with a disability may very well phrase their response in terms of the dog performing work or a task even though the dog is in fact a dog providing emotional support and not a service dog. At that point in time, the public entity or place of public accommodation is in a very difficult position. In such a situation, will the public entity or place of public accommodation really pick up the phone and ask the appropriate person, preferably legal counsel, whether the response the person with a disability gave them was in fact a dog performing work? Maybe, such a person would; it is certainly not practical. All this does serve to state the need for training of personnel when dealing with these situations.
The other thing that all this does is set up a situation where a person may sue under laws that do allow for emotional support dogs and completely ignore the ADA. That is exactly what happened in United States v. University of Nebraska at Kearney, 2013 WL 1694603 (D. Neb. April 19, 2013). In that case, the Department of Justice brought suit on behalf of a person who enrolled at the University and wanted to stay in a dormitory with her therapy dog. The University denied the request. As a result, after a few weeks, the plaintiff withdrew from classes and moved out of the dormitory. The Department of Justice filed suit under the Fair Housing Act and sought summary judgment for the principle that the Fair Housing Act applied to the dormitory.
The university argued that a dormitory was not a dwelling under the Fair Housing Act since no residence was involved. However, the court was having none of it for several reasons. First, it noted that courts have said that the ordinary meaning of the word residence refers to a temporary or permanent dwelling place, abode, or habitation to which a person intends to return and is not a temporary sojourn or transient visit. In other words, the court said, a house, apartment, condominium or co-op that you reside in is a residence, but the hotel you stay in while you are on vacation is not.
Second, students in a dormitory do all the things that they would do as if they were in a place called home.
Third, while a temporary sojourn or transient visit would not be a residence, a resident can be temporary or permanent.
Fourth, a person lives in a dormitory in university housing for extended period of time that is very similar to many other residential living situations.
Fifth, courts have held that housing provided for migrant workers are residences within the meaning of the Fair Housing Act.
Sixth, the court noted that the particular place that the plaintiff’s particular dormitory was actually less seasonal than students in other university housing (the “dormitory,” was off-campus and more like apartments than they were traditional dormitories).
Seventh, the court said that the university making the analogy to a jail simply didn’t hold up because in the context of the university, freedom of choice as to where to live was involved, which is not the case with a jail, and that also just because they are residing in a dormitory as part of the educational process, does not fundamentally change the nature of the dormitory being a residence.
Eighth, the Department of Housing and Urban Development’s own regulations specifically talk about a dormitory being a dwelling and since those regulations were properly promulgated and consistent with the statute that the Department of Fair Housing and Urban Development was implementing, those regulations were persuasive.
I read that the University Nebraska Kearney was considering this opinion and deciding whether they should appeal. As this particular decision seems to be pretty strong in its reasoning even though it is a case of first impression, it will be interesting to see whether the University does in fact appeal.
To summarize: service dogs and therapy dogs are not the same thing. Also, it would be wise for a public entity and a place of public accommodation to conduct trainings so that staff members are aware of the difference between a service dog and a therapy dog and know how to handle situations when a dog shows up. Also, that training would need to discuss permissible inquiries and how to deal with the information gleaned from those inquiries. Finally, especially if you are responsible for dwellings as the term would be understood by the Fair Housing Act, don’t assume that you can do stand behind the service animal definition under the ADA. Other laws, such as the Fair Housing Act, may go quite further than the ADA.