Before we get started on the blog of the week, I hope everybody had a happy Easter and a successful Passover. Also, there should be a really good men’s basketball game tonight. There was a really good women’s basketball game yesterday. I am assuming just about everybody’s bracket was busted in large part before tonight.
Turning to the case of the day, C.L. v. Del Amo Hospital, which can be found here185199208208206205, a published decision from the Ninth Circuit decided on March 30, 2021. It is one of the few cases that applies across the entire range of the ADA in one way or another. Since the ADA has several different titles with each having its own statutory provisions, regulations, interpretive guidances, and common law, there are not a lot of cases that apply across the board with the exception of those involving definitional matters. Even definitional matters are much less of a big deal than they used to be because of the amendments to the ADA. Our case of the day is one of those cases that applies across the board. It deals with the question of whether a covered entity can demand that a service animal either be certified by some entity or be professionally trained. For lots and lots of reasons, the Ninth Circuit says no to both questions. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning the ADA prohibits certification requirements for service dogs because the ADA defines a service dog in functional terms without reference to specific training requirements; court’s reasoning the ADA prohibits certification requirements for service dogs because DOJ has consistently rejected a formal certification requirement; court’s reasoning the ADA prohibits certification requirements for service dogs because allowing a person with a disability to self-training a service animal furthers the stated goals of the ADA; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
C.L. is a speech-language pathologist with a master’s degree in Speech and Language Pathology and a Ph.D. in Education. As a child, C.L. endured years of physical, psychological, and sexual abuse. She escaped her family’s abuse at age 17, but then experienced a 10-year abusive relationship before escaping and starting therapy in 1995. By 1996, she had been diagnosed with PTSD and DID, and started taking medication. Since then, C.L. has been diagnosed with anxiety and depression.
Plaintiff-Appellant C.L. (“C.L.”), who survived years of abuse at the hands of her family and a romantic partner, has been diagnosed with post-traumatic stress disorder (“PTSD”), dissociative identity disorder (“DID”), anxiety, and depression. As a result of these conditions, C.L. experiences hypervigilance, PTSD-related nightmares and flashbacks, severe anxiety in public spaces and while bathing, and has difficulty remaining focused and engaged in daily tasks. To mitigate the symptoms of her disability, C.L. obtained Aspen, a 16-pound bichon-poodle mix, intending Aspen to be her service dog. Because enrolling in a full training course to provide Aspen with formal certification was not a viable option for C.L., she began self-training Aspen to perform specific tasks she thought would ameliorate her disability and decrease her isolation.
Before and after obtaining Aspen, C.L. sought inpatient treatment at Defendant-Appellee Del Amo Hospital’s (“Del Amo”) National Treatment Center. When C.L. asked the Center if she could bring Aspen with her as her service dog, Del Amo denied Aspen admission, concluding that the dog’s presence would interfere with C.L.’s therapy. In the underlying suit, C.L. challenged Del Amo’s practice of denying admission to Aspen as a violation of Title III of the ADA and California’s Unruh Civil Rights Act. C.L. is undisputedly a person with a disability, and Del Amo is a place of public accommodation. After a bench trial, the district court determined that Aspen does not qualify as a service dog under the ADA.
C.L. began researching the possibility of obtaining a service dog. First, she purchased a book called Training Your Own Psychiatric Service Dog, by a service dog trainer named Katie Gonzalez, to help her understand the tasks performed by psychiatric service dogs and whether one could meet her needs. Katie Gonzalez is the director of Little Angels Service Dogs (“Little Angels”), a nonprofit service dog training organization. Gonzalez has trained service dogs, including psychiatric service dogs, for twenty years, and has published several books on training service dogs. Through her research, C.L. learned that because she was living on Supplemental Security Income, she could not afford to pay for a trained dog. A trained dog would cost at least $15,000.2062072092092001868 C.L. conducted further research and conferred with a service dog training agency about what dog breed might best meet her needs.
In August 2013, C.L. obtained Aspen—a 16-pound bichon-poodle mix that was then 8 weeks old—to be her service dog. At that time, she did not yet know what tasks she would want Aspen to perform. She took several dog-training classes at a general dog-training facility, Wags & Wiggles, where she learned how to train Aspen for general socialization and good behavior in public.2072082102102011879 C.L. used the methods she learned at the dog-training facility and Katie Gonzalez’s service dog-training book to begin training Aspen to perform specific tasks. C.L.’s method, as taught by the classes, included positive reinforcement and verbal acknowledgement of successfully performed tasks, while extinguishing inaccurate or inappropriate behavior. C.L. also used a clicker as a positive reinforcement tool.
In 2013, C.L. trained Aspen to perform specific tasks to mitigate symptoms of her disability:
- Waking from Nightmares:C.L. trained Aspen to wake her from nightmares by standing on her or licking her face. This task interrupted the nightmares, thereby improving her sleep and reducing the amount of distress she experienced following a nightmare. C.L. testified that by the end of 2013, Aspen was consistently performing the task of waking C.L. from nightmares and not waking her for any other purpose.
- Grounding:C.L. experiences flashbacks and anxiety. C.L. trained Aspen to place herself in a particular position on C.L.’s lap and apply deep pressure while facing forward. This “grounds” C.L. in the present. C.L. testified that Aspen was performing this task consistently by the end of 2013.
- Alert for People Approaching:C.L. trained Aspen to alert her that someone is approaching outside her sightline, alleviating C.L.’s symptoms of hypervigilance and improving her ability to focus on tasks at hand.
In 2014, C.L. attended a two-day seminar at Little Angels Service Dogs’ facility in San Diego. The seminar was the first course in a three-seminar series, where C.L. learned about how to select an appropriate service dog, the laws and regulations related to having a service dog, and basic training concepts. Specifically, C.L. learned additional techniques for using positive reinforcement and correcting unwanted behaviors such as the “leash tug” and an approach that involved tapping the dog in the hind area. Later that year, Little Angels offered two additional seminars for training one’s own service dog. C.L. says she did not attend them because they offered training in tasks that she did not need her dog to perform, such as turning on a light or opening a door. Moreover, she could not afford the tuition or the cost of traveling from her home in Santa Ana to San Diego. Nevertheless, she continued to communicate with Little Angels trainers via email and telephone to discuss Aspen’s progress, receive feedback, and get her training questions answered as she continued training.
C.L. testified to training Aspen to accomplish the following additional tasks in 2014 and 2015:
- Interrupt Self-Injurious Behavior:C.L. trained Aspen to interrupt behaviors such as cutting and banging her head against a wall. For example, when C.L. is banging her head against a wall, Aspen places herself between C.L. and the wall. Although C.L.’s therapist also proposed strategies for interrupting self-injurious behavior, including use of ice or a rubber band to safely provide a sensory distraction, C.L. testified that Aspen is much more effective than these strategies.
- Cornering:C.L. trained Aspen to go around a corner ahead of C.L. and alert her if someone is approaching. Being alerted to the presence of people before she sees them alleviates C.L.’s anxiety and hypervigilance.
- Boundary Control:C.L. trained Aspen to create a boundary with her body between C.L. and other people, enabling her to spend more time in public.
- Alert for Medication:C.L. trained Aspen to alert her when her anxiety is increasing, even before C.L. becomes conscious of it herself.
- Standing Guard by the Shower:C.L. has difficulty showering due to past sexual abuse, so she trained Aspen to sit in a specific location outside the bathroom door and to come get her if someone approaches.
On thirteen separate occasions, C.L. sought inpatient treatment at Del Amo’s National Treatment Center. Only seven of those admissions, which took place between September 2015 and August 2017, were the subject of C.L.’s claims in her initial complaint. The National Treatment Center program specializes in treatment of patients who have experienced trauma. During those seven admissions, Del Amo denied C.L.’s request to bring Aspen with her. The hospital denied C.L.’s request because Del Amo clinicians determined that Aspen’s presence in the Center would interfere with C.L.’s therapy by allowing her to rely on Aspen rather than learn coping skills.
After the four-day bench trial, the district court entered judgment in favor of Del Amo on the grounds that C.L. had not shown Aspen was or is a service dog due to the dog not being certified. The court did not reach the question of whether Del Amo had proved its affirmative defense of “fundamental alteration.” C.L. timely appealed.
Court’s Reasoning the ADA Prohibits Certification Requirements for Service Dogs because the ADA defines a service dog in functional terms without reference to specific training requirements.
- The ADA’s implementing regulations, 28 C.F.R. §36.104188202211211209208, define a service animal as any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including a psychiatric disability, where the work or tasks are directly related to the individual’s disability.
- Nothing in the regulations specifies by whom the dog must be trained. Rather, the regulations defines a service dog by the outcome of the training, i.e. what the dog is capable of doing to ameliorate an individual’s disability.
- The language also makes clear that the dog’s capabilities must be trained for that purpose. In other words, a well-trained companion animal that happens to alleviate a person’s anxiety does not suffice, but a dog trained by the individual to perform certain tasks to alleviate that anxiety does.
- District Courts around the country that have considered the question have found that the ADA does not require a service dog to perform a particular number of trained tasks or amount of work.
- There must be some evidence of individual training to distinguish the service animal from the ordinary pet.
- The head of the entity that plaintiff worked with in training her dog explained that the process of training a dog to mitigate symptoms of disability may involve reinforcing some natural behaviors and extinguishing other behaviors until the dog is consistently performing the desired task. She also testified that plaintiff’s dog had been trained to perform several tasks well beyond the normal behavior of a pet, such as: licking plaintiff’s face to wake her from a nightmare; interrupting self-injurious behavior; cornering; boundary control; and other specific trained tasks.
Court’s Reasoning the ADA Prohibits Certification Requirements for Service Dogs because the DOJ regulation, rulemaking commentary, and guidance have consistently rejected a formal certification requirement.
- DOJ has consistently stated in regulation, rulemaking commentary and other official department guidance that a service animal within the meaning of the ADA must be individually trained to perform tasks related to an individual’s disability, but the animal need not be formally certified.
- The test is a functional one. The tests ask whether the dog consistently helps a person with a disability meet the challenges of life by assisting in the person’s activities of daily living.
- In enacting the ADA, Congress explained that one of its purposes was to ensure that the federal government plays a central role in enforcing the standards that go along with the ADA. Accordingly, Congress gave the Atty. Gen. the responsibility to promulgate regulations implementing the provisions of title III of the ADA (and for that matter title II as well).
- DOJ regulations and commentary make clear that individuals may self-train service animals without obtaining formal certification.
- DOJ’s administrative guidance regarding the public accommodation provision is entitled to Chevron deference. The current regulations were made final after the DOJ published a notice of proposed rulemaking in June 2008. After receiving comments, the DOJ issued its final regulations in September 2010 and the regulations took effect in March 2011.
- Requiring certification under international standards used by some is contrary to multiple aspects of the 2010 DOJ regulations.
- The DOJ regulations, 28 C.F.R. §36.104189203212212210209, state that a person with a psychiatric or other mental disability may benefit from the use of service animals.
- Trained tasks can include preventing or interrupting impulsive or destructive behaviors.
- A dog can be trained to aid a person with a disability without formal schooling.
- The DOJ’s commentary accompanying rulemaking confirmed that persons with disabilities do not have to secure formal training of their animal and may self-train their animals.
- The DOJ actually considered and specifically rejected a recommendation submitted by multiple commenters to adopt formal training requirements for service animals.
- The DOJ justified its decision by noting that a certification requirement would increase the cost of acquiring a service animal thereby limiting access to such animals for individuals with limited financial resources. DOJ also suggested that such training standards would be too lengthy and detailed.
- DOJ expressed an intention not to unnecessarily impede individual choice in light of the diverse needs and preferences of individuals with disabilities.
- Declining to impose any kind of rigid training requirement, DOJ emphasized that individuals with disabilities are capable of training their service animal to perform tasks to do work to accommodate their disability.
- It is enough if a service dog has been trained to perform specific tasks that consistently aids a person with a disability by making them more able to perform necessary tasks and enjoy the activities of daily living.
- The District Court’s decision also creates tension and a mismatch with 28 C.F.R. §36.302190204213213211210, which talks about arrangement that places of public accommodations must make for service animals. In particular, subsection (c)(6) permits public accommodation to ask only two questions [the court’s words not mine], to determine whether an animal is a service animal: 1) whether the animal is required because of a disability; and 2) what work or tasks the animal has been trained to perform. The place of public accommodation is expressly prohibited from requiring documentation, such as proof that the animal has been certified, trained or licensed as a service animal.
- DOJ observed that requiring individuals with disability to carry around documentation would be unnecessary, burdensome, and contrary to the spirit, intent, and mandates of the ADA.
- Many district courts around the country have declined to apply a certification obligation.
- The DOJ has conveyed the same views in a Technical Assistance Manual and other guidance documents. Those materials can properly serve as authoritative sources of interpretive guidance.
- The DOJ Technical Assistance Manual on the ADA defines service animals by the tasks they perform and not by reference to a particular training protocol.
- The DOJ Technical Assistance Manual also identifies that a number of States have programs certifying service animals. However, it instructs that private entities may not insist on proof of State certification before permitting the entry of a service animal to a place of public accommodation.
- The DOJ’s frequently asked questions document makes clear that the ADA considers self- training to be a viable option.
Court’s Reasoning That the ADA Prohibits Certification Requirements for Service Dogs because allowing a person with a disability to self-train a service animal furthers the stated goals of the ADA.
- The ADA was signed in the law on July 26 of 1990.
- Congress sought to eliminate discrimination faced by people with disabilities in essential facets of everyday life, including but not limited to places of public accommodations.
- One of the ADA’s goals is to provide a clear and comprehensive national mandate for the elimination of discrimination against people with disabilities. 42 U.S.C. §12101191205214214212211(b)(1).
- The flexibility to self-train a service animal for an individual’s specific needs further the ADA’s goal contained in 42 U.S.C. §12101(a)(7) of helping people with disabilities live with equality of opportunity, full participation, independent living, and economic self-sufficiency.
- A certification requirement would have negative consequences for persons with psychiatric disabilities who rely on service animals.
- Research shows significant favorable impact that service animal can have on the quality of life for persons with disabilities, including psychiatric disabilities.
- Service animals have been shown to help individuals with autism, posttraumatic stress disorder, and anxiety.
- Service dogs have been associated with clinically significant reductions in PTSD symptoms compared to usual care alone.
- With a service dog, plaintiff can do a myriad of things that she could not do without the service dog, including but not limited to going out into public because of her animal’s training and alerting her to the presence of other people.
- Enrolling in a training course to obtain a certification is not always a viable option for people in the plaintiff’s situation who have not been able to work until obtaining the service animal.
- The certification that the District Court insisted on was not possible in this case because plaintiff would have had to attend three seminars and provide proof of disability from a medical provider. Those burdens would be in addition to the $900 tuition, plus any travel or other expenses required to attend multiple day sessions. Further, plaintiff did not attend all three sessions because some of the sessions were focused on tasks that she did not need her service animal to perform.
- DOJ declined to adopt formal training requirements precisely because the needs of each individual with a disability vary greatly from individual to individual.
- A ruling that service animals cannot be qualified under the ADA if an expert is not able to certify the animal based upon the standard of a private organization would have the effect of denying legally protected access to public accommodations for persons like the plaintiff needing a service animal to mitigate the effects of the disabilities in ADA covered spaces.
- There is no industrywide consensus on the proper certification standards. For example, the head of the agency that plaintiff worked with testified that her organization starts with the general certification framework of another organization, but then adds additional standards.
- It is unclear how a person like the plaintiff could reliably choose between these various standards, especially since the DOJ does not endorse any of them, to ensure the “certification,” will be judicially recognized.
- Importing a certification requirement would not create certainty for whether a dog is truly a service animal. Instead, it would multiply litigation over which certifications are judicially valid.
- Under the ADA, the proper focus is on whether a service animal will consistently and reliably help a person with a disability in performing activities of daily living.
The court remanded for the district court to consider whether plaintiff’s testimony regarding herself training of her animal combined with the head of the agency that she worked with in training her animal was sufficient to show that her service animal was more likely than not a qualified service dog at the time of trial.
- This is one of the few cases that you will run across where its impact goes across all titles of the ADA. Its reasoning is broad enough so that no covered entity (title I, title II, or title III), should insist on professional training or some kind of certification of a service animal. That means, for example, in the title I context when an employer is trying to figure out whether the animal is a service animal or not, the employer should not be asking for certification or proof of professional training when requesting additional documentation.
- With service animals the key is whether the dog has been trained to engage in recognition and response.
- Whether an animal is a service animal is outcome based.
- People with disabilities can certainly train their animals to be service animals. The plaintiff did in this case. As I have mentioned previously, I trained my miniature poodle to be a hearing dog while I practice virtually.
- Individuals even those with the same disability, vary greatly. So, it is entirely possible that a service animal may do different things for individuals with disabilities even with respect to two individuals of the same disability.
- We have talked many times before that the two questions is not two questions at all but two inquiries. The distinction is important because inquiries allows for narrowly focused follow-up questions while two questions does not. The problem, as we have also mentioned before, is that the DOJ regulations talk about two inquiries while the DOJ frequently asked questions document talks about two questions. Regulations per Kisor v. Wilkie, discussed here192206215215213212, trump guidance documents.
- The District Court talking about tension and mismatches with other titles of the ADA is an important point. We see that all the time with respect to animals being brought into places of employment of entities subject to title I of the ADA. The EEOC is completely silent on animals. So, one question that arises is whether an emotional support animal is kosher under title I of the ADA. An employee’s ESA creates immediate tension with title II and title III where the answer is a definitive no. We discussed service animals in the context of title I before in this blog entry193207216216214213.
- The Fair Housing Act and the Air Carrier Access Act are completely different laws. The Air Carrier Access Act has the advantage of final regulations being issued by the Department of Transportation, which we discussed here194208217217215214. The Fair Housing Act has a unique disadvantage of just being a circular195209218218216215 not connected to any regulations or even the statute itself. Nevertheless, the rules are different. With respect to the Fair Housing Act, one wonders if this case won’t impact the circular especially since the circular is not tied to any regulations or statutory provisions.
- The DOJ Technical Assistance Manual is treated very persuasively by the Ninth Circuit. That may have implications for other issues that arise where the Technical Assistance Manual would prove helpful to a plaintiff.
- Many people with disabilities pour a tremendous amount of financial and emotional resources into just surviving, but they also have the time to be able to train their dog to be a service animal. As the court mentioned, a professionally trained service animal is incredibly expensive. It also can can take a really long time for the person with a disability to get professionally trained animals.
- There is indeed no industrywide consensus on proper certification standards. Europe has them but no such thing exists here in the United States.
- Training a dog to do tasks they are naturally inclined to do is perfectly permissible if such actions by the dog reliably help a person with a disability in performing activities of daily living.
- This is one of the few times that I have seen a clear explanation of what the test is for a service dog (something along the lines of does the dog consistently/reliably help a person with a disability in performing activities of daily living).
- In my opinion, an appeal to the United States Supreme Court would not be successful for the hospital assuming the Court even took the case in the first place.
- Whether an animal is a service animal is established by a preponderance of the evidence.
- The case also calls into question the line of cases suggesting that a service animal must somehow in the title I context link up in a specific way to the essential functions of a person’s job.
- State service animal laws may not meet the floor set by this case. Even so, federal law trumps conflicting State laws per the supremacy clause.