Now in Legal Rebels:
Posted Apr 01, 2014 09:50 am CDT
Not long ago, the likelihood of seeing animals flying in first class would have been akin to, as the saying goes, the day “when pigs fly.” But nowadays dogs, pigs, turtles and other animals taught to aid an owner’s physical, mental, psychiatric or emotional condition are more often sitting in seats among passengers at 35,000 feet.
And it’s not just on planes. “Emotional support animals,” “psychiatric service animals” and even untrained animals that provide basic comfort to their owners are popping up in restaurants, stores and elsewhere.
“Public recognition of the area has exploded,” says John Ensminger, a New York City tax lawyer who also writes about legal issues affecting service animals on his blog Dog Law Reporter. That’s sparking concern among service animal advocates that more people are faking psychiatric or emotional conditions as a way to tote their pets with them everywhere.
Indeed, a cottage industry of sorts has sprung up around just that. Online companies sell vests, identification tags and certificates for service animals, making it easier for pet owners to pose as somebody who needs a service animal.
“People are buying bogus credentials, vests and other paraphernalia in an attempt to fake service animal status,” Ensminger says. “This makes problems for legitimate service animals because people start to doubt their validity even when they are trained service animals.”
The use of service animals once was relatively straightforward. They were primarily either guide dogs to help the blind or hearing dogs to help the deaf. Nowadays, all kinds of animals—including monkeys, miniature horses and cats—are trained to aid those with a wide range of conditions, including anxiety, hypoglycemia and post-traumatic stress disorder. Some have no formal training, but nonetheless their owners say they provide a palliative effect.
This proliferation of service animals, while helping many people in need, has left federal agencies scrambling to clarify long-standing definitions applied to people with disabilities and their service animals. In 2011 the Department of Justice, which oversees the Americans with Disabilities Act, tightened its definition of service animals to include only dogs that are “individually trained to do work or perform tasks for a person with a disability.” The agency specifically excluded “dogs whose sole function is to provide comfort or emotional support.” The ADA’s service animal provisions generally apply to places of public accommodation, such as restaurants or movie theaters.
Meanwhile, the Air Carrier Access Act, which regulates commercial air travel, extends the definition of service animals to include those providing emotional or psychiatric support. However, airlines are empowered to ask passengers flying with a service animal for a note from a mental health professional. Also, the Federal Aviation Administration is seeking comments on the design of “animal relief areas” inside airline terminals to accommodate all the furry friends traveling.
It turns out that while cases of flying pigs and dogs garner a good deal of attention, more disputes over the use of service animals are related to housing, partly because housing law is more diverse. The Fair Housing Act provides special accommodation for emotional-support animals in public housing. Still, courts have disagreed over the extent to which service animals must be accommodated in nongovernmental housing.
There is no official body that designates an animal as a legitimate service animal. Some private orga-nizations have begun pushing to require certification of service animals and their handlers in a bid to crack down on those abusing service animal rules.
However, many disability and service animal advocates are concerned that this could backfire, resulting in new problems for the legitimately disabled.
“Is it ripe for abuse? Yes. Do people abuse it? Absolutely,” says Marcy I. LaHart, a Gainesville, Fla., disability lawyer who specializes in animal law. But, she says, “anything that makes it more difficult for people with disabilities to be able to exercise their … rights is a bad idea.”
This article originally appeared in the April 2014 issue of the ABA Journal with this headline: “When Dogs and Cats and Horses and Pigs Fly: An uptick in onboard service animals is sparking controversy.”