THE PAWS-A-TIVE NOTE

ISSUE #2-B

September 13, 2017

BREAKING DOWN BARRIERS

Welcome back and I thank you for your interest in reading this information. Hopefully you read the last issue where we discussed service animals. If not I urge you to do so now, before reading this issue, as there is much needed information in it & things will make more sense to you too.

So I would like to start with some definitions in order to clarify different types of "use" categories. These simple things will also help you to understand how & why the laws are written & applied the way they are.

1) HANDLER- Is a person with a legally recognized disability (physical or

psychological/mental/emotional condition) that has a

service animal (dog/mini horse). Most of the time an RX/Dr.

letter is not required. You would need one for a pilot (guide)

animal and for the PSD/EMOTIONAL/MENTAL conditions.

Most often only has 1 SA, but could have more than 1. If a

person has a legally recognized disability/medical

condition that significantly hinders them in their daily

activities of life, then they have the right to have a SA.

2) SERVICE ANIMAL- Is a dog/mini horse individually & specifically

trained to perform specific work/tasks for a person with a

recognized legal disability in order to help lessen/avoid

the impact that disability has on a person's daily life

activities, thus enabling them to live a fuller, less hindered

life. This particular animal usually works for only one

person. May be abbreviated as SA or SD. They & their

handler are granted broad & specific rights of access

across the board by the federal government with basic civil

rights & access under the:

Department Of Justice (DOJ),

Americans with Disabilities Act (ADA),

Fair Housing Act (FHA),

The Air Carrier Access Act (ACAA) and

Section 504 of the 1973 Rehabilitation Act.

They are NEVER considered a pet.

NO registration, certification, ID, harness... is required & it

can NOT even be asked for or required in most instances!

3) EMOTIONAL SUPPORT ANIMAL- Also known as an Assistance Animal.

May be abbreviated as ESA or AA. This may be ALMOST any

pet. They are NOT specifically trained for work or tasks,

obedience training does NOT count as specifically trained

for work or tasks nor does the fact that they may lick you &

it makes you feel better. They provide general comfort &

calming for their OWNER by being near them. One animal

may serve multiple family members. They do not have as

broad a rights of access as SA & their handler, they may be

excluded from a broad range of places. They are covered mainly under the FHA & ACAA. Requires an RX/letter from a

licensed qualified treating health care provider to be valid,

must be renewed yearly. Most people choose to have their

ESA wear identifying equipment like a harness or collar

with patches on it.

4) PSYCHOLOGY SUPPORT DOG- Is a "type" of ESA, but is considered a

SERVICE DOG because it is specifically trained for

it's tasks. Abbreviated as PSD. This animal serves 1 person.

A letter/RX is required from a licensed qualified treating

Health care provider to be valid. It must be renewed

annually.

5) THERAPY ANIMAL- This is an animal that is typically taken into nursing homes or hospitals by a person in order to help bring comfort to many people. Again these can be a broad range of animals, but they typically are owned by a single person & most often they are certified to ensure they have obedience training & a good disposition.

So, the next big area I think we should discuss is an Emotional Support Animal. These can literally be ALMOST ANY animal. To be valid or legal, you do need to have a letter/RX from a qualified licensed treating health care practitioner. This means your treating Dr., psychiatrist, psychologist, sometimes a social worker or therapist/ counselor... And that letter or RX is only valid for one year. You must also have some type of medical/psychological (emotional or mental) condition that qualifies you to legally have an emotional support animal.

IMPORTANT NOTE: There are places on the internet who will, for a very hefty fee, sell you the documents you need to have! You should know they will sell these to ANYBODY who pays their fees! They claim you will be "evaluated" by a "qualified" individual. This is also how a lot of people who DON'T REALLY NEED an emotional support animal are getting around a banned pet policy with landlords or deposits... or so that they can have their little dog fly in the cabin on a commercial flight & not have to pay extra fees... THIS IS WRONG! You need to keep in mind here you are dealing with federal laws! And you could find yourself facing charges when you fraudulently have a service animal/ESA! I implore you to keep in mind, these people do not care about you, they are only out to make money! If you truly need an ESA, your local treating physician/mental healthcare provider will have NO PROBLEM writing you the correct legal documents you need to be secure with your ESA at NO CHARGE! And for those who are being fraudulent, you are doing a GREAT DISSERVICE to those of us who truly NEED a service animal/ESA! The letter/RX you need will also have to be renewed YEARLY! So think about that before throwing your hard earned money at those shady internet places! It's not like you pay a one time fee that lasts the lifetime of the animal! So I urge you to seek the local qualified care, of someone who will really be doing what is in your best interest!

For those of you who are thinking, oh what can it hurt? They just think it's "cool" that they get to take cute little Fluffy with them in the cabin on a plane or have a pet in their living quarters where pets are banned or get out of paying a pet deposit. When people do this sort of thing it reflects badly on ALL legitimate service/assistance animals when something adverse happens! The other side of this is for those of us who legitimately have a service/assistance animal, WE ALREADY KNOW these online places are bogus! WE have NO NEED to utilize such places as we can get the proper paperwork from our local treating healthcare provider, AND they won't charge us to give us what we need!

Some of these places also do a "registration" & issue ID's for the service/assistance animal, again for a fee. AGAIN THEY ARE BOGUS! The DOJ/ADA does not recognize these as legitimate & they in fact carry NO weight with them to "PROVE" ANYTHING! Those of us who legally have our service/assistance animals already know our rights & know this!

Sorry, but I felt I had to speak my mind on the matter as I also think this is where some confusion takes place with people. Let's say you own a bar and one of your employees has never encountered this before. Somebody comes in with a dog and the employee says no pets are allowed. They say this a service/assistance animal and you ask to see something to prove that. (remember this isn't legal though for you to do things this way) The person flashes you what LOOKS like an official ID, so the employee says ok. So I ask you, what's wrong here? What's wrong is the employee now wrongly thinks that every time somebody comes in & claims to have a legitimate service/assistance animal, they are going to expect that person to be able to show them an ID! FEDERAL LAW says NO ID/REGISTRATION/ CERTIFICATION... is required for a SA AND IT'S NOT LEGAL TO ASK FOR IT! Also, ONLY 2 questions are permitted to be asked:

1) Is this a service animal required because of a disability?

2) What work or tasks is it trained for?

Also, the fact is that ESA/assistance animals are not granted the same across the board public access rights as service animals! So they can be excluded from places!

It's important to note also that even though there is some crossover in the federal laws/acts/statutes applying to which classification of animal, the actual terms of SA/SD/PSD vs ESA/AA vs THERAPY ANIMAL... are NOT synonymous or interchangeable. If you actually go to the government websites and read all of this stuff that the ADA/DOJ has enacted it defines the classification of the animals very precisely, they also specifically exclude certain ones. However, under the FHA their terms are used much more loosely to apply to a broader scope that must be allowed. Then you also have the section 504 act of 1973, the ACAA... So it should be noted, that when a specific instance/area may be covered/governed by more than one entity/jurisdiction/laws/acts.... with respect to a SA/SD/PSD only the ADA requirements need to be met. If it is anything else (ESA/AA, sections 504, ACAA...), then you have to go through each applicable one to define if the animal qualifies.

So, just what is an Emotion Support Animal (ESA), also called an assistance animal (AA), and what do they do? Well, by current LEGAL definition, it is NOT a Service Animal. The reason is because they are not specifically trained for tasks to assist a person with a disability, they are simply a pet that in general makes the owner feel better to have with them. Please understand, I am not saying they don't serve an important purpose here. I am stating at the present time what the CURRENT legal definition is, and we are trying to inform people in plain english so they understand. Many times the people who have an ESA are dealing with a mental or emotion condition such as anxiety or depression. Or a child may be autistic or have ADD/ADHD. Many times a pet has a very calming effect for them. Your ESA MUST also alleviate one or more of your symptoms you experience with your "condition".

I have to say something here. In the past many people who dealt with a severe mental or emotional conditions would be put in an "institution". There was not the awareness, understanding or means to treat/help these people that we have today. In more recent times mental health issues have been brought to the forefront of attention, in part I think, due to many of our returning military combat veterans. This is a good thing on one hand that they are getting the help they need, but kind of sad that's what it took to bring mental health issues into the public eye. Thanks go to all of the families who stood up and demanded their loved ones get the help they needed & deserve! When mental health issues go untreated, far to often it ends up with the person committing suicide! So I think in the not so distant future, we will begin to see ESAs being given greater access rights too, at least that is my hope.

ESAs are governed mainly under the federal FHA as far as federal rights, then SECTION 504 DISABILITY ACT OF 1973 & HUD SECTION 504, & ACAA. The FHA covers virtually ALL types of housing & temporary stay facilities. It warrants equal access to housing without prejudice in relation to race, nationality, heritage, skin color, sex, sexual orientation, age...and also grants those with ESA equal access. It means that for your housing/living quarters/temporary stay accommodations... your ESA is exempt from a no pet policy, pet deposits/cleaning fees, breed/size restrictions... provided it doesn't pose a valid health & safety risk to others or risk of substantial damage. Fear or an allergy are NOT valid reasons to exclude one either. It also means that REASONABLE accommodations MUST be made for your ESA. It also states something to the effect of that you be allowed to enjoy your accommodations to the fullest extent. There is also something else taken into consideration though, with respect to "reasonable" accommodation. And that is money. So let's explore that issue.

Just what does reasonable accommodation mean? It means that if pets are banned, your ESA/SD must be allowed. This costs the place nothing in terms of $.

Now let's say that you want to rent an apartment/condo, and there is no "green" space outside or if there is it's not "designated" for dog use. It would be reasonable for the property owner/manager to work with you to designate/create a specific area to potty & perhaps exercise your SA/ESA. Now you or somebody of your choosing would of course be responsible for cleaning up the poopoo, unless management sees to it. A reasonable thing to do is fence a 10 ft X 10 foot ( or 10 X 20 ft) area (could use a simple chain link type of kennel) and put gravel &/or then mulch down on top. This is easy to clean up & provides good drainage. Depending on the cost one of you would cover it or split it. When you look at a $ cost to benefit ratio, this would be a reasonable thing.

Now let's say you want to rent an apartment/condo that is in an older multi level building. The only place available is on the 3rd floor. Is it reasonable to expect the property owner to renovate the building and put elevators in if you can't do stairs? Probably not because the $ cost to make this access for only 1 person is cost prohibitive. So in this case the cost out weighs the benefits. And safety wise that's not going to be the best choice for you either, just in case of a fire.

Now if there was a place on the first floor available, and you needed a ramp installed, that would be a reasonable accommodation as well. But that might be up to you to cover the cost and it would have to meet safety standards and not pose a hazard to or impede other traffic through the area.

Keep in mind the FHA grants you the right to have your ESA/AA IN YOUR DWELLING. That means the actual room, apartment, condo... it may not actually mean the entire complex however. And this is where things can get sticky legally and you would need to consult an attorney.

Let's say in your living complex there is a large common room that folks can gather in to watch TV, shoot pool, play cards, eat... can you take your ESA/AA there with you? Well, maybe. It could be argued that area is not your actual living quarters. But it could also be considered an extension of your living quarters and to deny you access with your ESA/AA would be to keep you from enjoying your living quarters to the fullest extent.

See how some things could be confusing? Or what if you want to visit/stay with your friend and their complex has a no pet policy? Can you have your ESA/AA with you? I have read court case verdicts where some have been granted access and others were denied.

These are areas where you would need to consult an attorney. These are great situations for an attorney to weigh in on to answer, if anybody would be so kind. I will update things if somebody does.

The FHA also states that you have to answer yes to 2 things to qualify for an exemption to a no pet policy.

1) Does the person seeking to use/live with the animal have a disability that is physical or mental impairment that substantially limits 1 or more major life activities?

2) Does the person making the request have a DISABILITY RELATED NEED to have the animal?

If the answer is no to either question then the FHA/section 504 do NOT have to grant the reasonable request for exemption. If the answer is yes to both questions then they must grant it provided the specific animal in question poses no direct threat to the heal & safety of others or pose a threat of causing substantial damages. They may also deny your request if it would place an undue financial or administrative burden or would fundamentally alter the nature of the providers services. (think back to the earlier scenarios about reasonable accommodations)

So what does that mean? Well let's say at you & your parents home you have a rescue sanctuary for wild animals (lions/tigers/bears/wolves...) is it reasonable to allow you to bring one to your apartment or dormitory at a learning institution? NO! I am using this extreme example to easily make my point here. I think we would ALL instantly say NO! What about a poisonous snake? Again NO!

An acceptable alternate animal for you would be a dog, cat, bunny, garter snake, ferret, hedge hog...

A housing provider may NOT request documentation for the disability/disability related need IF the disability is readily apparent or already known to the provider! So, it's not ok to ask for proof for a guide animal, or if mobility issues are apparent...

A housing provider may not deny a request for an accommodation BECAUSE they are unsure if the person seeking it has a disability or not or a disability related need for it. The decision must be based on facts. So, that means they may ask individuals who have disabilities that ARE NOT READILY APPARENT OR KNOWN, or IF KNOWN BUT THE DISABILITY RELATED NEED FOR THE ANIMAL IS NOT, to submit proof. this usually will be for an ESA. It could also be for a seizure/diabetic alert animal, for a PSD...

They may NOT ask for your diagnosis, access your medical records, access health care providers or ask for extensive detailed information! They simply need a letter/RX from your proper treating Health care provider stating you have a disability & that it alleviates 1 or more of your symptoms.

They must process your request without undo delay too. So that means they can't repeatedly put off addressing your request to say the condo board, they can't keep requesting additional information...

I think I have covered the FHA thoroughly. I'm not going to get into the specifics (at present) of sections 504 of the 1973 rehabilitation act. It's a civil rights laws document too, and can easily be looked up & read.

The next thing in line to cover is the AIR CARRIER ACCESS ACT. Also known as TITLE 49, was originally enacted in 1986. There have been changes made to it over time, because individuals with disabilities were denied access rights with their SA/ESA. Court cases that went all the way to the U.S. Supreme Court were fought! It prevents discrimination against persons with disabilities. It's very detailed in how airlines & airports must comply.

What we are looking at is how it affects your air travel if you have a SA/ESA/AA. In plain terms, it states that you MUST be allowed to travel with your SA/ESA/AA IN THE CABIN WITH YOU, provided it does not pose some kind of hazard and they can't charge fees for it. They must provide access assistance too, and give first boarding access rights if you want it...

It states (and I quote here) "Carriers must permit dog guides or other service animals with appropriate identification to accompany an individual with a disability on a flight. Identification may include cards or other documentation, presence of a harness or markings on a harness, tags, or the credible verbal assurance of the passenger using the animal."

Now, I would like to point out one thing here. As I previously made VERY clear, by the DOJ/ADA laws SA are exempt from being required to show ANY proof of training, registration, ID, be required to wear equipment like certain harnesses/collars, patches... however, an ESA/AA can be required to show an RX/HEALTH CARE PROVIDER LETTER. OTHER THAN THAT, I URGE THOSE WHO HAVE THEM NOT TO DO THE "ID" CARD THAT YOU GET FROM THE INTERNET PLACES!

So, here's the reality of it. When you book a flight, it's a good idea to actually contact the specific airline and SPEAK with an agent! Let them know you have a SA/ESA that will be flying in the cabin with you. Each one has their own specific policies & procedures/paperwork... so find out ahead of time. Even though you are NOT required by law to show "proof" for your SA (you must for an ESA though) it is a good idea to have a letter from your Licensed Healthcare Provider JUST IN CASE you run into a problem before boarding.

Why do I say this? Well, because in reality there can be a bit of confusion is why. The federal law (DOJ/ADA) says you don't have to, but the ACAA says that something for ID or EQUIPMENT OR THE CREDIBLE VERBAL ASSURANCE FROM THE PASSENGER! So, it will depend on WHO is making that determination of "credible" as to whether you get on that plane or not! And there are plenty of cases that have made the news of somebody with a legitimate SA being denied boarding access!

It is the airlines responsibility to properly school their people and all contracted workers. Again, people do not always follow the rules and they interject their own judgement onto situations.

Here's another situation. If you get a SA from an organization they will sometimes issue an ID card for that SA to certify it's ID & training with them (Say from THE GUIDE DOG FOUNDATION here in the U.S.). But not all of them do, or if your SA was trained privately (by you or somebody you chose) it will probably NOT have such an ID. It doesn't make them any less of a service dog! And I think it's safe to say, somebody who has a visible physical impairment is less likely to have an issue than somebody with an invisible one (such as PTSD or DEAF).

So, what all this comes down to is this, if you have a letter from your Healthcare provider stating you have a disability and require the SA then you can avoid a lot of problems and possibly being prevented from boarding your flight! I know, I know, it's NOT right that you should have to! But we are dealing with reality here folks! By rights those of us with SA should NEVER have to deal with being given a hassle for the right of access ANYWHERE. The reality of it is, all to often we do have to deal with it! If you don't believe me just go on you tube and look up videos for it.

The other side of the coin is, the more stories of people being stupid and denying a handler & a SA access makes the news, the more people get properly informed. And I think it's oh so funny when a large corporation or airline goes into damage control mode to try and smooth the situation over. The truth of it is the situation should NEVER have taken place to start with!

I would like to make a point here. I know this can be a pain to carry such a letter with you! And I know you shouldn't HAVE to! But I would like to say (in my opinion) it is not only our responsibility to stand up for our own individual rights as a PERSON, but for ALL people! It is our responsibility to stand up for ALL people who deal with a disability! It is our responsibility to be PROACTIVE too! So what do I mean by that? Several things.

1) When we encounter a situation and a person either doesn't correctly know the laws, rights, refuses to give a handler access...it IS our place to properly inform them! Think about it this way, the next person with a SA may not be able to do stand up for their rights.

2) We MUST do so and conduct ourselves in as calm & tactful a manner as possible! Carry cards with you that have the ADA federal laws on them to give to people, laminate one and carry it in your wallet.

3) If you encounter an issue, remain calm, try to engage somebody as a witness to the situation. If you need to video it, with your cell phone or other device, do so. (People tend to not like it when you do this though, and for good reason as you now have proof of their actions)

4) IF the person still refuses you access, request that the police be called! Remember, the laws are on your side here! If they won't call them, then you do it or ask your witness to do it! Law enforcement should be well informed about such matters, and if they are unclear, show them your card with the FEDERAL LAWS!

5) If there is some place for you to go and sit quietly out of the way with your SA, do it & do not leave the building if possible! Do NOT allow somebody to get in your face (or you into theirs) in a yelling/cussing match or making a huge scene! Not to mention this will stress your SA out! Yes you have a point to make, but do it tactfully!

6) Try to keep in mind the other persons point of view here. Remember they are most apparently NOT properly informed and are usually following their company procedures & protocols or their superior's orders (or misinterpreting them)!

7) FOLLOW UP! When a situation occurs it is important that you follow up! Get the name/s of all person involved and company! This includes who denied you access, witnesses, police officers... also their contact numbers... if you have called the police follow through with filing a report! This is VERY IMPORTANT!

You may be thinking why? The situation is resolved. It's called CYA! Cover your "butt". If you weren't able to video it or don't have a witness, this may be your only proof that it happened! AND if it happens again (to you or somebody else) this will show a willful pattern of breaking the law. Even one incident is grounds for charges or a lawsuit, more than one incident is really nailing the coffin shut on them!

If the law enforcement officers on the scene do not take proper action to enforce the federal laws, then ask for a supervisor! But be respectful at all times and give them reasonable time to resolve the situation.

It's also important to notify the company, private security force, property owner/manager... so that they can deal with the issue too.

When I recently had my issue of access I followed up with the manager. Now it was 3 weeks after the incident before I was actually able to get a hold of her, to speak with her. But I calmly explained who I was and she immediately knew of what I was speaking of. She did apologize profusely to me, told me she thought things had been resolved (I told her no they really hadn't been, hence my calling her) and told me that the girl misunderstood what she had been told over the phone. She then assured me she had since spoken with her to properly inform her and would do so again. I conveyed nicely to her the laws that were broken, what the consequences could be and I told her that should another incident happen That further actions would be taken.

I also at this point, made a suggestion that perhaps a staff meeting and an in-service would be appropriate and offered my services for it. I felt this was a gesture of good will too.

The manager thanked me for my offer, said she agreed a staff meeting was a good idea and would think about it, apologized again for the incident...and that is where things were left. I did ask that the owners contact me. I've not heard from them, I suspect they don't want them to know what happened.

In any case, as long as I don't have any further incidents in their establishment (or hear about any) that will be the end of it on my part as I do not wish to create problems. I just don't want to be given a hassle to enter a place that serves food & drinks (or anywhere) with my service dog! ESPECIALLY SINCE IT'S PHYSICALLY OBVIOUS I NEED HIM!

8) Have a copy of state laws that may give you rights too. Remember federal law does NOT grant these access rights to SA in TRAINING. However, many states grant these same access rights to a SA in training!

As much as none of us like to create a problem where one doesn't need to be, sometimes we MUST take action! Following up with postings online, the news, reviews of places, contacting an attorney or civil rights organizations... do need to be done sometimes. So don't be afraid to stand up for yourself and others. Remember, your in the right here!

Back to ESA topic. I think it's important to discuss why ESA/AA are not granted the same access rights as SA. I think things have been done this way in order for greater rights to be granted for private individuals to have a broader range of rights to have ALMOST ANY ANIMAL they choose in their private living quarters, and no specific training is required. Many people have exotic pets that could pose a threat to public safety. So, how do you grant fair rights of access to public places for SOME ESA/AA and not others? I don't know that you can.

I'm not picking on anybody here. But to make a point, the MAJORITY of reptiles and a large percentage of amphibians carry Salmonella. Now this isn't a problem for them, but it poses a serious health risk for people! So while a person can have one in their private home and it's an ESA/AA, it doesn't mean it's safe to take all over out in public.

I know this topic will be opening up a whole new can of worms.

Again I think this is a good place to stop. I hope you've been paying attention, because there may be a test at the end of this series! I of course welcome you to contact me and must state that I am not an attorney, DR., ... and what is provided here is for informational purposes only! I urge you to seek the proper qualified licensed persons if you have an issue to deal with!

In the next issue we'll deal with proper etiquette when you encounter a handler & SA, and any other loose ends that I think of. I'll answer any questions that may have been submitted or discuss certain situations...