Legal Update

Series: AHEAD of the ADA Access Curve

By Irene Bowen, ADA One, LLC

This is the thirteenth in a series of articles, “AHEAD of the ADA Access Curve,” to assist disability service providers, ADA Coordinators, and others in promoting compliance with the Americans with Disabilities Act, section 504, and the Fair Housing Act. This series approaches selected issues as key to the civil rights of individuals with disabilities. It is intended to provide some helpful tools in a time of shifting requirements and shrinking resources.

Animals in Housing: What the DOJ Consent Decrees with the University of Nebraska and Kent State University Tell Us

We’re interrupting our mini-series about self-evaluations and transition plans in light of two important recent settlement agreements between the U.S. Department of Justice (DOJ) and the University of Nebraska at Kearney (UNK) (http://www.justice.gov/opa/file/767276/download, September 2015) and Kent State University (http://www.justice.gov/opa/file/809811/download, January 2016).

The consent decrees address issues that continue to dog colleges and universities: What can we ask an individual who wants to have an assistance animal in campus housing? When is it appropriate to deny an assistance animal? What type of documentation of disability and need can be required? We now have some answers, although the details of the two decrees differ from each other in some ways.

Keep two things in mind: First, these agreements relate only to assistance animals (such as emotional support animals) under the Fair Housing Act (FHA). They do not pertain to the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act. The ADA allows only very limited inquiries of people who wish to be accompanied by service animals -- dogs that are trained to perform a task or do work. Section 504 (along with the ADA) may require that various types of animals be allowed on campus as a reasonable modification on an individual basis. The FHA applies to a wider group of animals, including those that are not dogs and those that provide emotional support or other amelioration of disabilities, with or without training. Second, the consent decrees result from negotiations particular to the two cases, and technically they apply only to those two universities. But because the agreements and related university policies were approved by DOJ, they can give other schools helpful guidance in developing their own policies.

In both cases, DOJ alleged that the university had denied requests from two students with psychological disabilities, who wanted the “reasonable accommodation” of keeping an assistance animal -- in this case, an emotional support animal -- with them in apartment-style student housing. DOJ claimed that the universities had refused to allow the animals, in violation of the Fair Housing Act’s requirement to make “reasonable and necessary” accommodations to afford persons with disabilities an equal opportunity to use and enjoy housing. In both cases, the federal district court had found that university apartment-style housing was covered by the Fair Housing Act. The consent decrees, with specific policies, followed and resolved the substantive issues without a court decision on the merits.
Most significantly, the Nebraska agreement explicitly recognizes that the environment of postsecondary housing has features different from other types of housing (for example, institution-allocated room assignments, sharing of rooms or suites in certain residence halls). Both agreements give the schools some authority to set limits, impose conditions, and consider the interests of other students while protecting the rights of students with disabilities. A school cannot ban animals in residence halls, and decisions about when an accommodation request is “reasonable” are to be made on a case-by-case basis. (The universities also must pay damages to the two individual complainants – a total of $140,000 from the University of Nebraska and $100,000 from Kent State.)

Highlights of the agreements
In my view, although it holds less detail than the Nebraska decree, the Kent State policies attached to its decree are more straightforward (and perhaps a better basis for other schools’ policies) than the Nebraska policies; and the Nebraska settlement raises some unanswered questions. But the two settlements have some common elements.

Both agreements deserve a close read. Here are the highlights, including those from the University of Nebraska’s Reasonable Accommodation Verification Form for University Housing (not made available to the public):

Request for accommodation: If the animal in question is not a service animal (a dog that performs a service or work and that must be allowed to accompany a person with a disability under the ADA), the school can require a written accommodation request along with documentation. The student must fill out a reasonable accommodation form, which calls for identification of his or her disability and the accommodation that is considered necessary because of that disability. The Disability Services office must make a determination (which is appealable) promptly (for the University of Nebraska, within seven days).

Verification form: Under the Nebraska policies, if the individual’s disability and need for an accommodation are obvious, the university cannot request further information. If the disability is obvious but the need is not, the university can require the student to complete a “verification form” and designate a “reliable third party” who can verify that the accommodation is necessary. If the disability and the need are not obvious, the individual can be required to fill out the form and designate a reliable third party as to both questions. The form also asks if there is another accommodation that may be equally effective in allowing the resident to use and enjoy university housing. The Kent State agreement follows a simpler approach, with an “application for reasonable accommodation” (see above), along with an “assistance animal request” form to be completed if an animal has not been trained to do work or perform tasks.

Reliable third party: As to Nebraska’s policies and forms, this is someone who is familiar with the person’s disability and the necessity for the accommodation. He or she can be a doctor or other medical professional but does not have to be. The third party can be a peer support group or a non-medical service agency such as the National Association of the Deaf (NAD). Kent State’s assistance animal request can be completed by a ”health or social service professional”; this does not seem to include a service agency such as NAD, and the third party is not asked if there is another possible accommodation.

Unreasonable accommodations: A request can be denied as unreasonable if it (a) imposes an undue financial or administrative burden, (b) poses a direct threat to the health and safety of others (threat to self is not included here); or (c) would cause substantial property damage. The Nebraska agreement sets out two other reasons for denial: a request is “otherwise unreasonable to the operation of the university” or “fundamentally alters university housing policies,” neither of which is further clarified. The Kent State agreement is more clear and true to the statute: an accommodation can be denied if it would “fundamentally alter the nature of the university’s operations.”

Criteria for determining reasonableness: The policies list six factors as being among those that can be considered as to whether the presence of the animal is reasonable, or in making housing assignments for students with assistance animals. They are –
• The size of the animal
• Whether the animal’s presence would force another individual from individual housing (e.g., serious allergies)
• Whether the animal’s presence would violate individuals’ rights to peace and quiet enjoyment
• Whether the animal is housebroken or able to live with others
• Direct threat (currently or in the past) to the individual or others
• Past excessive damage to housing caused by the animal.

Room assignments: The University of Nebraska, Kearney, cannot limit room assignments of those with assistance animals to a particular building or buildings; it may assign an individual with an assistance animal to a single room without a roommate.

Access to areas other than the individual’s room or suite: It appears that the animal can accompany the individual anywhere within the building that contains the individual’s dwelling (e.g., room or suite), such as common areas. The animal can go elsewhere (outside) for “natural relief,” while in an animal carrier or controlled by leash or harness.

Obligations of the animal’s owner: The animal cannot be left overnight in university housing to be cared for by anyone other than the owner. The owner must clean up after the animal, ensure that the animal does not disturb the peace and quiet enjoyment of others, and otherwise ensure that the animal is well cared for.

Disclosure of information: The university is allowed, with mandatory written consent from the individual, to disclose information to those impacted by an animal’s presence, such as residence life personnel and potential or actual roommates and neighbors, but not including information about the individual’s disability.

License: The university can require documentation of compliance with local ordinances and laws, including vaccination certificates and licenses.

Removal of an assistance animal: The university may require removal of the animal if it poses a direct threat to the health or safety of others (again, threat to self is not included here), if it causes substantial property damage, if its presence results in a fundamental alteration of a program, if the owner does not comply with his or her responsibilities, or if the animal creates an unmanageable disturbance.

Unanswered questions
Some questions remain unaddressed or unanswered.

For example, as to the question on the UNK verification form, how does a third party know if there is another effective accommodation? Could a non-medical professional suggest that a person would not need an emotional support animal if he or she took anti-anxiety medication instead, or could the university insist on such an alternative?

How do these agreements and policies apply to non-traditional types of housing such as language houses, sororities and fraternities, and learning communities, where participation is directly tied to a specific residential building or area of a building?

Finally, would there be any different outcomes or policy considerations for faculty housing vs. student housing? The consent decrees appear carefully drafted to apply only the student housing (the subject of the complaints) but the policies that are part of the decree refer to “individuals in University housing,” without limitation to student housing. The UNK verification form speaks of only students.

Next steps on your campus
I recommend that you (and/or counsel) look carefully at both agreements and consider to what extent it is appropriate to incorporate their provisions or concepts into your own policies. Once you have policies in place, it will be important to inform and train those responsible for implementing them (as required of both universities under the agreements) and to monitor compliance. Your campus should work to find its own ways to balance the administrative realities of the institution with the needs of all students and faculty – including those with disabilities such as depression or anxiety. Disability services providers and others on campus now have clearer guidance to move ahead of the curve -- not only to reduce risk of complaints and litigation but to create an environment that benefits all students and complies with the Fair Housing Act.

This series of articles is provided as a member service by Irene Bowen, J.D., with ADA One, LLC. Irene was formerly the Deputy Chief of DOJ’s Disability Rights Section. She is also former Deputy General Counsel of the U.S. Access Board. ADA One provides consulting, training, and speaking services related to the Americans with Disabilities Act and similar laws. You can contact Irene at IreneBowen@ADA-One.com or by phone at 301 879 4542. The web site is http://ADA-One.com.

The content in this article is for informational purposes only. It is not and shall not be deemed to be legal advice or a legal opinion. You cannot rely on the content as applicable to a particular circumstance or fact pattern. If you need legal advice about a particular issue and particular facts, you should seek professional legal advice.