Transcript of “Rights Here, Rights Now –
Episode 35 Service Animals with Dana Traynham
Produced by the disAbility Law Center of Virginia.
[INTRO]: The information provided on this podcast does not, and is not intended to, constitute legal advice. Instead, all information, content and materials available are for general informational purposes only.
[Enter host, Valerie Jones.]
[Valerie]: Welcome to Rights Here, Rights Now!- a podcast about disability advocacy and activism. I'm your Advocate host, Valerie (Jones)!
[Enter host, Virginia Pharis.]
[Virginia]: And I'm your Advocate host, Virginia!
[Valerie]: Every two weeks we dig into to relevant issues, current events, and avenues for self-advocacy.
[Virginia]: ‘Cause someone has to.
[Valerie]: And it might as well be us.
This podcast is produced and edited by the disAbility Law Center of Virginia, the Commonwealth’s protection and advocacy agency for disability rights.
[Enter, hosts Virginia Pharis & Valerie Jones]
[Virginia]: So, Valerie, we have a much asked for episode today! We're going to be talking about service animals, emotional support animals, difference between those. And, we're going to be talking to Dana Traynham again. Who’s been on a couple of our podcasts before! Before jump in, let's check out disability in the news.
[NARRATOR]: Zoom is committing to continuing to improve accessibility features for disabled users. By the fall there will be a new Live Transcription feature for all video calls. Currently there are automatic closed captions available to meeting hosts upon requests. Zoom already provides manual closed captioning, screen reader support, and several other accessibility features. As we know though, manual closed captions can often times be misconstrued and hard to understand, so these will be a welcomed addition. We can’t wait for these new features to roll out soon!
[Virginia]: Welcome back to the podcast: Staff Attorney Dana Traynam who is just- your hero & mine. She is back with us this week, to talk about service animals. Is this you know, are service animals in the area that you usually work in here at dLCV??
[Enter, return guest & Staff Attorney, Dana Traynham]
[Dana]: It hasn't been an area that I worked a lot in; But, I recently did some research so that I could update our fair housing page. And, (as) I really delved into the topic-- It's, it's so common for me to do this (pause). I'll go to the research one issue, and, the next thing you know, five hours later- you know- I have delved into it *way* deeper than I ever started out to! And, that's part of what happened with service animals, & assistance animals, in (the more) general term. So I wanted to come on in and share what I learned. And, it's very timely because something is going to change next week, as far as assistance animals go, so we'll get into that later and so I thought it was very timely to talk about this issue.
[Valerie]: Could you help me with this question? So, I heard names for animals that assist people with disabilities: name such as service animal, assistant animal, emotional support animal, therapy dog, and others. Are they all the same?
[Dana]: Yes, I know. And, it's very important that we look at the language that we use when we were talking about assistance animals! So let's go down the list. Assistance animals- that's a very general term- I'm including all of the different types of assistance that dogs **may provide** to people with disabilities. That would include all of those things phrases that you just mentioned! The reason that we have different definitions- and different terms- is because laws that pertain to people with disabilities, Define things differently. So, the main three laws that we have that deal with service animals and assistance animals is (are): the Americans with Disabilities Act, the Fair Housing Act, and then, under the rules and regulations that pertain to airline travel.
[Dana, con’t.]: Each one of them look at these animals differently. The Americans with Disabilities Act has a very strict definition of a service dog. And I say service dog because the ADA says, that a service animal is a dog who is specifically trained to provide a service or do a task for person with a disability; The ADA changed a few years ago to make that very strict definition of a service animal. Whereas, it used to be pretty much open the other types of animals. But they've limited it to dogs. I will say they allow service miniature horses in very rare circumstances, but for the most part the ADA only refers to dogs who are specifically trained, to do something for person with a disability. And, if you look at the fair housing act, it's much more broad. It’s a broader definition of assistance animal. The FHA obviously covers housing issues, where we live- it says that they still- that we still- recognize things like emotional support animals and service animals that are animals other than dogs.
So when I'm talking about service dog I'm saying a very narrow definition of what that means under the Americans with Disabilities Act. Now, when I'm talking about assistance animal, or emotional support animal, that's the broader definition that you find within the Fair Housing Act. Now, the one that is changing is the law that in the regulations and rules relating to airline travel Now that won’t be until next week. They have had more of the fair housing type definition of it- So, you can take emotional support animals on a plane. & you can have service animals other than dogs as of the 21st of this month… next week.
They will adopt the ADA definition of service dog. So, I don't know if you guys have seen over the last few years? The airline industry has really been struggling with emotional support animals. [They’ve] included, “Dexter, the support peacock”. They've had-someone came in with a full-size pig? Someone else came on with a turkey. Some of these animals really are not trained. They were not trained animals. they made mess on the plane, they bit passengers & airline personnel,-- and it really got to the point where it had become unruly. And unfortunately- what we're seeing now, though, is that the airline industry or the Department of Transportation, has gone from one extreme to the other. Okay, so, first they’re allowing pretty much anything! And now they’re going to another extreme where they’re saying only dogs.
I mean, I love to fly, but I know that there are people that don’t. And it’s very stressful! And, having an emotional support animal, that is truly an emotional support animal, could be very helpful to that person. And it may mean the difference between flying and not flying, for that person. Some of the other terms- therapy dogs, disaster dogs, search-and-rescue dogs- they are assistance animals- they do assist people, sometimes, people with disabilities, sometimes not, in various situations (but), they are not service animals. When you're talking about a service animal, you have to remember: that animal is specifically trained to do a task for a person with a disability, & a service for a particular individual, with a disability. So, a therapy dog could go to a Children's Hospital in Seattle, but it isn’t a service dog. Sooo did I just, does is that totally confuse the issue even more, or…? (Pause.)
[Virginia]: Yeah, I think it is helping. That can give the, sort of a good, and broad basis of understanding. You know, forgive us if we you know start asking questions that have already been answered, and we have to synthesize a little bit but you know that's that's three laws and we have to synthesize a little bit.. (pause). So talking about (categories) it for a second. It sounds like there are two categories that come up,[…] service animals, which are defined, in a very clear way, and emotional support animals, which are not. Why does the difference ultimately matter?
[Dana]: Because it dictates where that animal can go. So if an individual with a disability has a service dog, and that dog qualifies as a service dog, and that individual qualifies as an individual with a disability, then that dog can go anywhere the individual goes. so anywhere that you know has public access. Into restaurants. Into stores. Even if there’s a sign that says, “No Dogs Allowed.”
[Valerie]: And, have there been any cases throughout the time where this has been challenged? Where they couldn't take it in? & individual had to challenge the ruling?? Has there been any case over time, or do you know of?
[Dana]: So, I'm going to go back & [use the] to the terminology of service animal versus assistance animal. Because only a service dog goes [gets to go] into a public place. And, see, the terminology- it gets a little tricky. So, there have certainly been cases where individuals have been challenged, about whether they can bring their service animal into a public place. We see that at DLCV We still see that things like, “Well, there's somebody else here, who is allergic to dogs, so you can't bring your dog in,” & we've seen that in school systems. Where people- children- with disabilities have taken their service animal, and then they say, “Well, there's another kid in the classroom is who has an allergy. So, the dog can't come.” Or, “There's another child in the class, that is afraid of dogs, and so the animal is not allowed. But, those cases are, by and large, not successful.
and, on plane, for example, the rule says that the individual who needs the service animal takes priority over any other disability, that would say, the service animal can't be there- Such as an allergy. The airline has to give priority to the individual with a service dog and then somehow, accommodate the individual with the allergy, somehow,…[…] weather that's putting them in another section of the plane, or, (providing them service) and giving (give) them a ticket to another flight. But, that's not a reason to deny a service dog. And so, when you are looking under, the rights (that can’t be denied) for a service dog, there are a lot of rights that are protected for that animal in that individual with a disability to have that animal with them. [Pause]
[Valerie]: Thanks, Dana, that’s good to know.
[Virginia]: Yeah, so you know…You've already,..you've already invoked, you know, my previous mascot. (LOL!) It was, like, 2015, “Jeremy emotional support Peacock,” I can't remember exactly what his name was! But, you know, you’ve still […]you've seen those stories in the news. (And) I've seen this very clearly, where, people who were using animals, other than dogs, or miniature horses, and, in rare events. Which, are now under the only things that are being considered as emotional support animals. With this being the case, with this new shift happening, you know, if - (say) you had an animal that was being used for emotional support, previously- what should they expect now that the law has changed?
[Dana]: Service animals now are only legally recognized, & required to be recognized under the FHA. So if you're looking at housing situations, even though, you know that the Department of Transportation made it very clear, that, airlines can still allow emotional support animals. The difference is the rules no longer require the airline to allow it. So, airlines can make their own rules, that are less strict- than the Department of Transportation. So, (then) that will be an airline by airline decision. I kind of think that most Airlines will go along with the Department of Transportation, definition, but I'm not sure. And so, if, someone has an emotional support animal, and, they are going to fly after January 21st, (then) they may want to look at different airlines, to see if they have different rules for emotional support animals. And so, you know, small animals that can fit in the cabin of a plane, (or,) within the passenger’s space, or who are allowed on the plane…whether or not the issue, is payment. So, like, for example, I was looking into, [..] there is an airline that allows,…you know, me to take my small dog who can fit in a carrier, so, Virginia much like Stuart, maybe, could go on a plane, but you'd have to pay about $125 to allow that to happen. Whereas, if Stewart were a service dog, there would be no fee. You’d be allowed to take Stewart on the plane and he be allowed to sit on your lap and provide the services he provides for you at no cost, no extra cost. And, that's where things kind of got out of hand, I think, on planes. Because that’s when you're already looking to pay in hundreds of dollars for your own ticket. You know. And, and, I'm, I'm, going to tell you, I am not in any way judging, “Dexter the Peacock,” or, you know, The Pig, or, you know, (Virginia: Oh, Dexter!) Yes, & unfortunately, he has moved on. He has crossed the Rainbow Bridge!
[Virginia]: Jeremy would be a good name for peacock, you know.
[Dana]: Yes, I’ll keep that in mind, if I ever choose to get one. But, you can imagine, I’m a large woman, and I if I sit in a plane seat, [&] there ain't much room…between me, and the next person. So, if we’re talking, “Dexter the Peacock,” or, a full-sized pig, you can imagine, how that disrupts the flow of air travel. And, so, I think airlines, and, the Department of transportation felt like they had to do something. Unfortunately, they went way to the other extreme.
[Virginia]: Also, just, so, this does make sense for listeners, at home. Dear listeners: Steward is my 9 lb Chihuahua, with a traumatic brain injury. We love him very much! He is, the “Unofficial Mascot,” of DLCV, and is on all of our Zoom calls. And, is, sort of a, “podcast support animal,” although he does not provide a service & has not been trained in any way.
[Dana]: I just happened to think about this, so, as, (and) I want to mention it. So, there's an emotional support animal classification, which we now know is only really recognized in Fair Housing Law. But, there's also something called a psychiatric service dog. And that is a dog who has been specifically trained to provide a service for a person with a disability- in this case a person with mental illness. So, a psychiatric service dog, for example could do things like recognize when a person is about to have a panic attack. And, calm that person down. They've been trained to do that. An emotional support animal doesn't have to be trained; -they provide their service just by being who they are- not by being trained! But, a psychiatric service dog, is specifically trained, to assist a person with mental illness. That is different from an emotional support animal. Ad. that psychiatric service dog, would be recognized under the Americans with Disabilities Act, as a (an actual) service dog. J
[Valerie]: That is so good to know, Dana. Thank you. I've often seen service animals wearing signs or a vest, that says, “Please do not pet,” Why can't I pet a service animal? Why is this always the case? Is this always the case and what if the service animal isn't wearing a sign, (or a vest)?
[Dana]: So, if a service animal is wearing their vest, it means that they are on duty. They are on the job! And, their job, often requires them to be totally in tune with their handler- the person with a disability. They need to be- totally- their attention needs to be totally on that person- with a disability- so that they can provide the service that they've been trained to provide. If, we pet the dog, play with the dog, talk to the dog, then we are taking the attention AWAY from the person with a disability. And, it could be disastrous. I mean, if, that dog is trying to do something that is very important for that person with disability…like, provide mobility support, and, we take that the animal’s attention away from the individual, it could you know, have consequences. When taking off the vest(s), then, the animal’s off duty- the animal is on break. We once had an employee at our agency, who was blind, and, she had a guide dog named Glaze, & it was so great. When, you know, he, had several breaks during the day, and he knew; I can't even remember if it was a he or a she. They (She) knew it was breaktime. And she’d go, ripping down the hall, & some of us would have balls that we throw down the hall, and, then it was break time for us too because we could play with blazing and pet her and everything, but, when, that that harness of hers went back on, that was it. I mean, we didn't talk to Glaze; we didn't do any of that. And, I have to say: when I go to conferences with a lot of people with disabilities and there are service animals there- it’s hard! Cuz (Because) I'm a dog person! And it's hard! You know, you can't get into it. You really- you should not talk to them, you should not make any contact with them. (Or anything!)
[Valerie]: Certainly. Thank you for that bit of information, Dana.
[Virginia]: Yeah, I think you brought up really good point. I think of people don't… think about it… A lot of people are aware that they probably shouldn't touch a service animal while it's working. I don't think a lot of people are aware that they shouldn't do the like, “Who's a good boy? Who's a good boy?. Well [because] that service animal is working. Because, they are, in fact, being “a very good boy!” But you know there's a time and a place to let them know that. I would just add, you know, while most dogs are trained to know the vest on/vest off, mentality- And it’s (is) probably always best to err on the side of the animal’s owner. And, always ask for permission, before talking to, OR heading that animal. Because we just never know is that vest on? Or is it off? It’s hard to say!
[Dana]: Well, you know, that’s…that’s good practice for you know, any animal. I teach my two year old that! You know. You don't touch anybody's dog without asking permission. But, it's even more important for a service dog.
[Virginia]: So, for a service dog, do you write a pet deposit? Does someone with a service animal have to pay that fee??
[Dana]: So: for the most part, no. Because a service animal’s not a pet. So any rules that are for pets, -does not apply- to a service dog. Or, [to] any type of assistance animal. The issue gets to be, WHEN it goes beyond what we're talking about today. Because it gets into some legal stuff. That means when the housing provider is covered under, & is obligated by, the Fair Housing Act (FHA). And there are some exceptions. Some landlords are not obligated under the Fair Housing Act. But for the most part, if your living in an apartment building, and they have a pet deposit, or they have a monthly pet fee, then, [no] you do not have to pay that, (for) a service dog, or a emotional support animal. As long as you have asked for that reasonable accommodation. That’s what it is to have a service animal.
[Virginia]: Thank you. So, I know you said apartment complexes. What if we're talking about, you know, somebody who is leasing, or renting, from a private owner, or it's like you know, a Craigslist situation? Or, somebody just, you know, is renting out of the second half of the duplex, or something? Does the law still apply then in terms of deposits of denying someone access based on whether [or not] they have a service animal?
[Dana]: So, [it is] just like we said with planes: Anybody can allow, you know now, a service dog, or, allow an assistance animal; but, in order to be protected, by one of these laws- the individual has to be obligated by that law- meaning (that) they don't meet one of the exceptions. And one of the exceptions is an individual that runs a private house, if they have, I think it's less than 4, and they don't use a broker to advertise, or rent, their establishment, their home, if it is a duplex- in that the owner lives on the other side- there are exceptions. And then that- that- those exceptions say that the landlord does not have to follow the Fair Housing Act Rules. They still could allow the service animal, BUT, it just means that the individual doesn't have federal law behind them. So, it can get a little confusing and *maybe* we need to do a podcast on Fair Housing.
[Dana, con’t]: And, so, [that’s the] in the the ins-and-outs of that. But that gets a little bit -little bit- straighter, of what we're talking about today. So, if someone has lived at a residence, and they've been diagnosed with depression, or another mental illness, &, the doctor requires them to have a service dog. (Pause), & the property under no circumstances allows animals, the landlord would [have to] say something like: they would have [tricked?] them. If they brought an animal into the residence. It's just cause (because) to take this individual to court- (pause), well, again, if,-if, the place- if- the owner of the property is obligated under the Fair Housing Act, then they have to allow a service dog or an emotional support animal. [Period.] If it is requested as a reasonable accommodation, by a person with a disability. So, yes, that would be a good case to (too), you can either take a case to court, or, you can file a fair housing complaint against them. Sounds like we really need to do a podcast fair housing complaint for you could file a lawsuit on that because if they are in fact required to follow the rules!
[Valerie]: I hope we do have a fair housing act to talk as done so I would love to find out more information about this so hopefully someone’s listening! […] (Pause.)
[Virginia]: So, talking about service animals specifically that are trained to do a specific service…a specific task... First of all, how does the person with the disability prove that they're, you know prove is in heavy air quotes that there is an animal? And, what should they have to do?
[Dana]: That does come up. So, there are online companies now that you can pay a fee to do this…and, they will send you a letter that says that ‘some service animal is certified,’ as a service animal. It's really not worth (what) the paper that it's written on. There is a certification requirement for service animals. And, from what I understand, from these online companies, which (where it) is required to fill out a questionnaire. And then, you know, they don't require any proof that the animals been trained, or that you have a disability, or anything like that.
So, what is required under the ADA, that we're talking about, is for a service dog- the animal has to be specifically trained. That doesn't mean it has to be trained by an organization, you know, the dog can be trained by the individual with a disability, it can be trained by a family member, can be trained by anybody- But the dog has to be specifically trained to perform a task for that individual. So, that's how it's different from an emotional support animal that doesn't necessarily have any training at all. But, a service dog does have to have some sort of training. So that it can provide the task, (for that person.)
So, if the dog picks up items from the floor, that the individual cannot pick up, that dog has to be trained to do that. Or, if the dog opens the refrigerator, gets a bottle of water, the dog has to be trained in order to do that. And so, that's the requirement. The dog is specifically trained to do a task, for the individual, & then the individual also has to have a disability in order to have a service dog. And (for) emotional support animals, and the requirements for that varies depending on the situation. All the laws say that if an individual has a visible, an obvious disability, then no more proof is needed. So if the individual is using a wheelchair for mobility, if they're obviously blind or deaf, or anything that we can physically see, then, they don't have to provide any other proof of disability. However, if the disability is not obvious, (if) it's not visible then they have to show proof of disability. BUT, that (then) they don't have to disclose their diagnosis. They don't have to disclose their medical records. It would (just) be a simple sentence from a doctor. On the doctors letterhead: “Dana has a disability and because of this disability, she needs a service animal.”
And so, (as well): The property, owner or the or the establishment owner can ask what tasks that animal provides, but, they, they can't require a (any) certification. Because it's not required. So, there is some proof, there that has to be, [and we’ve seen that], at times. But it's not- (and) it should not be so prohibitive that the individual, you know, can’t meet the requirements [that they need.] And at dLCV we have found (& there have been cases) that (they need the proof of??) you know, receiving SSI or SSDI disability in order to receive those benefits (of that, for a service dog).
[Valerie]: So, many questions, so many questions! Okay, so finally, Dana I (we), would like to say thank you first of all, and before I ask this last question It has been tremendous having you on here! And can you let us know where listeners can find out more information on service and assistance animals information on that?
[Dana]: Right now it’s on our webpage, it's there right now. It’s under the fair housing page, under resources, on dlcv.org. Go to resources, and then Fair Housing. I think, after this podcast, and the other information that we have, we may actually be developing an assistance animal page under resources so we can put all these things under (just) one heading.
You can also go to www.ada.gov; It has a page on assistance animals with frequently asked questions. You can also go to HUD. www.hud.gov. It also has information on service animals. And I think that probably provides information on that. And, just know that the Airline Access Act & the Department of Transportation rules, (will) follow the Ada from next week (forward.)
[Virginia]: Dana, you’re the hero we need right now! Thank you so much.
[Valerie]: Thank you so much, Dana, for all of your information. Even though you're not an expert on this topic but thank you so much for all the research you put into this it's greatly appreciated! It’s always a pleasure having you!
[Dana]: Thank you guys; thank you very much and thanks for having me again!
[Valerie]: And now, a dLCV highlight!
[NARRATOR]: Patrick is quadriplegic and spends his days in his electric wheelchair . He recently got a new wheelchair. The wheelchair is so big it was not getting through his door at his home very well. This then meant his time in the community was very limited. He could not go to the grocery store, be with his friends, or most importantly look for work. Patrick called dLCV to ask for our assistance in getting his wheelchair repaired. He said the company where the wheelchair came from was not returning his calls. dLCV contacted the company to ask about the wheelchair adjustments. The company agreed to meet with Patrick and assess the issue. After they met with Patrick, they agreed to replace his wheelchair. Now because of one phone call to dLCV, Patrick can now move about his community and prepare to go to work with his own independence.
[Valerie]: Thank you (thanks) again to Dana for being willing to come in and talk to us about that. I think that the next couple months with (all) these legal changes, are going to be really interesting for the disability community! we might- might further down the road, have, you know, an update episode, or something along those lines. And I needed to find more about the services [of special needs animals] in the housing part of this a whole umbrella. It'll be way more interesting to find out information on that.
[Virginia]: Yeah, it's just… There's a lot of facets, and it's really complicated so as always, if anybody has any questions about that stuff, if anybody is facing a service animal, or a denial issue, they are are welcome to call dLCV for assistance.
[Valerie]: Great to know! J Thank you all for listening to this episode of: Rights Here, Rights Now! brought to you by the disAbility Law Center of Virginia. We're available on Apple podcasts, Spotify, or wherever you get your podcasts. Don't forget to subscribe and leave a review!
[Virginia]: If you need assistance or want more information about dlcv, and what we do, visit us online, at dlcv.org
[Valerie]: Or, follow us on Twitter at @disAbilityLawVa, and share us with your friends.
[Virginia]: Until next time, I’m Virginia
[Valerie]: And I’m Valerie.
[Virginia]: And this has been: Rights Here.
[Valerie]: Rights Now!
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