Staying “paw-sitive”: solutions for service animal regulations

Senior staff writer Cody Davis explains the current law relating to service animals, as well as ways in which service animal regulations may be improved.

Staff writer Cody Davis poses with guide dog Bingo in 2015 (Courtesy of Cody Davis)

Since at least the early 20th century, service animals have been trained and used to greatly improve the mobility, independence, and lives of individuals with disabilities.  Over time, the use of service animals became more pervasive and their benefits to society and those they serve became more evident.  As a nation, we recognized the need for service animals and enacted laws across all levels of government which established certain rights for service animal users.  These laws sought to increase access to public services, public accommodations, transportation, and housing for disabled individuals and their service animals.

To achieve these goals, federal laws, including the Americans with Disabilities Act (ADA), Fair Housing Act (FHA), and Air Carrier Access Act (ACAA) set minimum standards for the rights and treatment of service animal users.   Because of the ultimate goal of access and other policy considerations, these laws are quite relaxed on what procedures or qualifications a person must satisfy to enjoy the rights granted to service animal users;  they are also fairly restrictive when it comes to what a public entity, business, or other public accommodation may do to verify that they are accommodating a person with a legitimate service animal and a legitimate claim to the related rights.

The ADA gives disabled individuals the right to equal access to public accommodations, such as restaurants, with their service animals. ADA regulations allow only two questions to determine if accommodation of an animal is required.  First, one may ask if the animal is required because of a disability, and second, what task or work the animal has been trained to perform.  The regulations also state that the questions cannot be asked at all if the answer to either of the two questions is apparent, as in the case of a guide dog guiding a blind person.

Further, the law prohibits questions about the nature or extent of a disability and one may not require a disabled person to provide documentation, tags, identification, or other proof that an animal is a service animal.  While the ADA does define what a service animal is, there is a lack of strict qualifications or process for determining if an animal is in fact a service animal;  other federal laws have even more relaxed standards for what animals must be accommodated in certain situations.

The current scheme for regulating service animal access is arguably problematic.

Because of the supremacy of federal law, state and local governments cannot establish more strict standards to qualify for the rights granted persons with service animals, nor can they permit any inquiry or screening beyond what is allowed under federal law.  Nevertheless, some recent actions at the state level have attempted to address increasing concerns over the current laws governing service animals.  One such attempt has been seeking to eliminate the incidences of people passing pets as service animals by imposing criminal sanctions.  For example, a bill recently proposed in the Georgia House of Representatives sought to strengthen regulations of service animals as much as legally possible and criminalize the use of fraudulent service animals—something only a handful of states already do.  Likewise, a bill recently passed in Texas provides criminal penalties for those who use fraudulent service animals.

The current scheme for regulating service animal access is arguably problematic.  This scheme, along with a lack of education on and exposure to service animals, has allowed those without a legitimate service animal and the rights associated with it to take advantage of the law, and potentially decrease access for those with legitimate service animals.

Take for example two individuals who wish to be served at a diner.  Individual A is blind and has a legitimate, trained guide dog.  Individual B has a dog that, for the purposes of this example, is not a service animal protected by federal, state, or local law.  Assuming the restaurant manager is well educated on the ADA, individual A would be accommodated with his service animal, but individual B would also be accommodated with her animal because she knew how to respond to the questions the manager is allowed to ask.  With a little bit of research, individual B could easily fabricate the answers necessary to force the manager to accommodate her.

Though the person with legitimate service animal was accommodated, this scenario still poses issues.  Individual B’s dog may not be well behaved, and that can interfere with the work of the legitimate service animal.  On a larger scale, Individual B’s poorly behaved animal also reflects poorly on legitimate service animals.  This could indirectly decrease access to individuals with service animals, as the poorly behaved dog has the potential to create or reinforce an unwillingness to accommodate service animals.

[T]he laws protecting service animal users can be abused and can directly decrease public access for legitimate service animal users. 

With the two same individuals wishing to be served at the same diner, consider the scenario where the manager is not educated on the ADA.  Individual B alleges her dog is a service animal, and presents an official looking ID tag, registration, and vest (all of which are readily available for purchase on the internet).  Often, this type of identification is what the public expects of service animals, and because the manager is not educated on the ADA, the diner accommodates Individual B.  Then individual A enters the diner with his legitimate service animal;  but, because identification is not required by law, individual A has no ID tag or vest to prove that his animal is a service animal.  In this scenario, the manager may very well deny service to individual A because he cannot show that his animal is a service animal as individual B could.

This scenario is demonstrates how the laws protecting service animal users can be abused and can directly decrease public access for legitimate service animal users.  This problem will be further perpetuated as individuals continue to utilize ID tags and vests to take advantage of the law and those not well educated on the law.  The public may increasingly come to expect some type of identification for service animals, which could potentially decrease access for individuals with legitimate service animals that have no such identification.

The current scheme for regulating service animals also has potential to decrease access for service animal users because its regulations may be seen as frustrating or burdensome to those required to accommodate. In other situations, people like the diner manager in the above scenarios may be willing to accommodate any animal that is alleged to be a service animal for fear of legal action, and that willingness may also result in a negative perception of service animals, especially if the animals allowed are poorly behaved.  Further, individuals not educated on the ADA will be aware of their inability to successfully determine if an animal is a service animal, and will become aware of the ability of others to so easily abuse the laws.  This too may create or reinforce a negative perception of service animals and the regulatory scheme which protects their handlers.

The most effective way to address the issues described here may be to allow for a national or state-by-state registry. 

Given the great issues with the current scheme, perhaps reform is necessary to make it easier to determine when accommodation of an animal is required, thus making it more difficult for individuals to take advantage of the law.  While something like education may alleviate some of these issues, it is not as effective of a solution as a reform in the law would be.  One possible solution, as mentioned above, is the criminalization of abuses of the law; however, such laws are unlikely to be effective.  The laws may not provide the expected deterrence effect and cases might not be prosecuted as fiercely as necessary. It may also be difficult to catch offenders given the current federal regulations.

The most effective way to address the issues described here may be to allow for a national or state-by-state registry.  A national service animal registry could provide safeguards against those who wish to abuse the law. It could also bring some level of certainty and reassurance to the public and those who must accommodate service animal users.  With a well-developed registration process, a service animal registry could ensure that service animals are adequately trained and prevent most attempts to pass a pet as a service animal.

By utilizing a government-issued service animal ID and allowing public entities to request the ID, individuals, such as the diner manager above, would be greatly assisted in determining the validity of a service animal.  This could potentially alleviate concerns that the public and those accommodating service animal users have about fraudulent service animals.  If the registry and accompanying rules are successful at eliminating a substantial number of incidences of pets passed as service animals, it would decrease the incidences of pets interfering with the work of service animals in public.  It could also potentially improve perceptions of service animals, as they will no longer be grouped with poorly behaved pets portrayed as service animals.  Further, such a registration system and documentation would conform to what many people expect when they are asked to accommodate a service animal user– some type of proof that an animal is in fact a service animal and not just a pet that someone wants to bring inside.

A registration system has the potential to directly increase public access for individuals with legitimate service animals, as well as indirectly increase public access as a result of improved perceptions of service animals. A registration system would also increase confidence in the service animal regulatory scheme as a whole.  For such a registry to be successful, it would need to be mandatory so as to guarantee all of the rights of a disabled individual with a service animal.

[T]here are concerns that may cause one to disfavor a service animal registry, many of which were taken into consideration in the creation of the current scheme. 

Of course, there are concerns that may cause one to disfavor a service animal registry, many of which were taken into consideration in the creation of the current scheme.  First, if the goal of the law is to increase access for persons with disabilities and their service animals, it is a bit contradictory to include another barrier to enjoying the benefits of a service animal. Many may see a registry as just another hurdle to be navigated by a population that generally has less financial and overall resources.  This concern could be addressed by ensuring that any service animal registration scheme is little cost to those who utilize it and that it imposes little burden on those who seek to register their service animal.

Another concern with a service animal registry is that mandatory registration may be seen as invasive to applicants, especially since information on disabilities and and information on an individual’s need for a service animal often includes one’s private personal health information.  This has the potential to discourage individuals who need a service animal from obtaining one and registering it.

Finally, the logistics of a service animal registry may be difficult to arrange.  The registry would require some type of administration and maintenance.  This, of course, would require funding that may be hard to come by.  One must also consider that the less cost that is placed on individuals seeking registration, the greater cost will be placed on the government.

Ultimately, as with any policy decision, there must be a balancing of the benefits of a service animal registry with the burdens it would place on people with disabilities.  Taking into consideration the concerns discussed here, it seems the burdens of disabled citizens with service animals can be minimized. A registry seems the most likely solution, as the potential benefit of increased access for service animal users would outweigh those minimal burdens.

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About Cody Davis (12 Articles)
Cody Davis is a third year law student and serves as a contributor for the Campbell Law Observer. He is originally from Archdale, NC. He received his bachelor's degree from N.C. State, majoring in Political Science and minoring in Criminology and Philosophy. In addition to pursuing a Juris Doctorate at Campbell University School of Law, Cody has simultaneously earned his Masters in Public Administration at NC State. He currently serves as the Assistant Director of the Campbell Law Pro Bono Council and has worked as a research assistant for Professor Bobbi Jo Boyd. He is currently interning at the Legislative Analysis Division of the North Carolina General Assembly.