Service Animals and Assistance Animals in Assisted Living
Service animals and assistance animals have been on the upswing in recent years. Indeed, the variety of living things that have been claimed as emotional support animals includes peacocks, turkeys, pigs, lizards, kangaroos, snakes and many others. What does this mean for assisted living residences and assisted living facilities?
Firstly, it is important to distinguish between “service animals” and “assistance animals.”
The U.S. Department of Justice has issued regulations to limit the definition of “service animal” under the ADA to include only dogs, and to further define “service animal” to exclude emotional support animals.[i]
Thus, a service animal is a dog.
However, the U.S. Department of Housing and Urban Development (“HUD”) has issued a notice indicating that this limitation on the definition of “service animal” does not relieve housing providers of their “obligations to make a reasonable accommodation for any assistance animal, including an emotional support animal, under both the Fair Housing Act or Section 504 of the Rehabilitation Act of 1973 (“Section 504.”)”[ii]
Assisted living provides care and support for people with disabilities. Thus, the issue of assistance animals and emotional support animals is potentially quite important and the residence agreement and related policies must be compliant with the law. The Fair Housing Act and the related HUD regulations prohibit discrimination because of disability and apply regardless of any federally funded assistance. It is these provisions that prevent Home Owners Associations from prohibiting assisted living in residential communities. It is also these provisions that call for consideration of a reasonable accommodation request for service and assistance animals.
There are some important rules available from HUD that can help owners and managers maneuver through this sensitive area.[iii]
Service Animals (Dogs)
Regulations related to the Americans with Disabilities Act have been revised by DOJ to define a service animal as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. The regulations specify that “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.”[iv]
However, the fact that a person with a disability wants to be a resident in a residential assisted living home does not automatically require the owner to accept that resident and their service animal. The home or facility may make two inquiries of the applicant:
1. Is the Service Animal required because of a disability?
and
2. What work or tasks has the animal been trained to perform?
Only these two questions may be asked with respect to the service animal.
Of course, the administrators will know the nature of the disability an other information as a matter of its ordinary intake forms, and individual assessments.
The individual’s use of a service animal is not handled as a request for a reasonable accommodation. Rather, an animal need only meet the definition of “service animal” to be allowed.
Further, HUD guidance prevents the home or facility from inquiring about certificates and training of the animal. “These are the only two inquiries that an ADA-covered facility may make even when an individual’s disability and the work or tasks performed by the service animal are not readily apparent (e.g., individual with a seizure disability using a seizure alert service animal, individual with a psychiatric disability using psychiatric service animal, individual with an autism related disability using an autism service animal.)”[v]
When a facility is part of the Medicaid program, it is an “ADA-covered facility.” Otherwise, the question of whether an assisted living home or facility is considered an “ADA-covered facility” is not always clear. We will be writing another article on this point in the coming weeks.
Where the disability and service provided by the dog are apparent, the home or facility may not ask even these two limited questions.
Indeed, “the animal may not be denied access unless:
1. The animal is out of control and its handler does not take effective action to control it;
2. The animal is not housebroken (i.e., trained so that, absent illness or accident, the animal controls its waste elimination); or
3. The animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level by a reasonable modification to other policies, practices and procedures.[vi] Moreover, if the person and service animal become resident, the home or facility may not require a “Pet Deposit,” but may require the resident to cover the costs of repairs for damage the animal causes to the dwelling unit or the common areas.”[vii]
Thus, the decision to accept or reject the application of a resident may not be based upon the existence of a Service Animal without at least one of the three criteria listed above.
The law and regulations related to service animals are not the final word when evaluating a potential resident for the assisted living home or facility. There may be other, more ordinary reasons, to consider when evaluating an individual’s appropriateness for the home or facility
Reasonable Accommodation for Assistance Animals
Companies have sprung up in recent years offering kits to “certify” virtually any creature as an assistance animal. Fortunately, that is not the final word on the matter. HUD provides guidance on the rules for acceptance and reasonable accommodations that must be made for potential residents with assistance animals.
It is important to understand that an assistance animal is not a pet. “It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Assistance animals perform many disability-related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance. . . . or providing emotional support to persons with disabilities who have a disability related need for such support.”[viii] There is not a requirement under the Fair Housing Act (FHA) or Section 504 that requires an assistance animal to be trained or certified. Further, “while dogs are the most common type of assistance animal, other animals can also be assistance animals.”[ix]
Where a potential resident provides a residency application and a reasonable accommodation request for an assistance animal, including an emotional assistance animal, the home or facility management must consider two limited questions.
1. Does the person seeking use and live with the animal have a disability – i.e., a physical or mental impairment that substantially limits one or more major life activities?
2. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?
If the answer to question (1) or (2) is “no,” then the FHA and Section 504 do not require a modification to a provider’s “no pets” policy, and the reasonable accommodation request may be denied.[x]
Where the answers to both 1 and 2 above are are “yes,” the home or facility must provide an exception to the “no pets” rule or policy to permit the person with the assistance animal “unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services.”[xi] This is an important consideration for an assisted living home or facility. Where an assisted living home or facility uses this argument as the basis for rejection of a resident and their assistance animal, the home should consult with a Fair Housing Act attorney prior to notifying the applicant.
The request may also be denied if:
1. “The specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or
2. The specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.”[xii]
Unlike with service dogs, a housing provider may ask individuals who have disabilities that are not apparent to submit “reliable documentation of a disability and their disability-related need for an assistance animal.”
For example, the home or facility may ask for documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of the disability.
The home or facility may not request documentation showing the disability and need for the assistance animal if the disability or related need is readily apparent (e.g., a blind person with a guide dog.)
A request for a reasonable accommodation may not be conditioned on a fee or deposit or other conditions ordinarily applied to residents with pets.
Complaints from potential residents that believe their request for reasonable accommodation was unfairly denied may be submitted to HUD. This can be an expensive proposition for an assisted living home or facility. Thus, it may be prudent for a home or facility that is rejecting an applicant with a service or assistance animal to consult with its attorney prior to sending the rejection notice.
Service animals and assistance animals may become increasingly important issues for assisted living providers as the Baby Boomers, with their diverse tastes and habits, begin moving into assisted living homes. And there are a few things to know in order to accommodate a service animal in any home.
Knowing the law and regulations related to service animals and assistance animals will provide some certainty as homes and facilities begin confronting those many varied tastes and habits as the Baby Boomers move into assisted living.
[i] Nondiscrimination on the Basis of Disability in State and Local Government Services, Final Rule, 75 Fed. Reg. 56164 (Sept. 15, 2010)(codified at 28 C.F.R. part 35) and Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, Final Rule, 75 Fed. Reg. 56236 (Sept. 15, 2010)(codified at 28 C.FR. part 36).
[ii] Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs. FHEO notice: FHEO-2013-01. April 25, 2013.
[iii] Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs. FHEO notice: FHEO-2013-01. April 25, 2013.
[iv] 28 C.F.R. § 35.104;28 C.F.R. § 36.104.
[v] Ibid., p. 5.
[vi] Ibid.
[vii] Ibid. P.3.
[viii] Ibid. P.2.
[ix] Ibid.
[x] Ibid.
[xi] Ibid. P.3.
[xii] Ibid.