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Disability Law

C.L. v. Del Amo Hospital, Inc.

Ninth Circuit Holds that Americans with Disabilities Act Prohibits Imposing Certification Requirement on Animal Who Meets Functional Definition of "Service Dog"

Congress enacted the Americans with Disabilities Act of 19901×1. Pub. L. No. 101-336, 104 Stat. 238 (codified as amended in scattered sections of 42 and 47 U.S.C.). (ADA) to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”2×2. Id. § 2(b)(1). In part, Congress achieved this purpose by requiring public accommodations to “permit the use of a service animal by an individual with a disability.”3×3. 28 C.F.R. § 36.302(c)(1) (2021). Recently, in C.L. v. Del Amo Hospital, Inc.,4×4. 992 F.3d 901 (9th Cir. 2021). the Ninth Circuit held that the ADA prohibits imposing a certification requirement on an animal who meets the functional definition of a “service dog.”5×5. Id. at 910. Judge Gould ensured that the decision aligned with existing Department of Justice (DOJ) service animal regulations. But at the same time, he stated a gloss on the service animal standard — asking “whether a service animal will consistently and reliably help a person with a disability in performing activities of daily living”6×6. Id. at 915. — that, if adopted in lieu of those regulations, would better achieve the ADA’s lofty goals.

Plaintiff C.L. is a public school speech-language pathologist who is a survivor of severe abuse by her family and a romantic partner.7×7. Id. at 904; C.L. v. Del Amo Hosp., Inc., No. SA CV 18-0475, 2019 WL 4187848, at *1 (C.D. Cal. Sept. 3, 2019), vacated, 992 F.3d 901 (2021). As a result, she developed complex post-traumatic stress disorder, dissociative identity disorder, anxiety, and depression.8×8. Del Amo Hosp., 2019 WL 4187848, at *1; Del Amo Hosp., 992 F.3d at 904. In 2011, C.L.’s treating psychologist, Dr. Michael Foust, suggested that a service dog might help her manage her symptoms.9×9. Del Amo Hosp., 992 F.3d at 905. After researching her options, C.L. concluded that a trained service dog was outside of her budget.10×10. Id. C.L. discovered that a fully trained dog “would cost at least $15,000.” Id. However, she learned that she could train a dog herself to meet her individualized needs.11×11. See id. In 2013, C.L. obtained an eight-week-old bichon-poodle mix puppy named Aspen.12×12. Id. at 906. Coincidentally, the author of this piece also has a small poodle mix named Aspen. Over the following months, C.L. trained Aspen to perform various tasks, including waking her from nightmares, alerting her to people approaching, and “grounding” her.13×13. Id. “Grounding” refers to when a service dog applies deep pressure to help “ground” the handler in the present when they are experiencing flashbacks or anxiety. Id.

Del Amo Hospital, Inc. is a psychiatric hospital in Torrance, California.14×14. C.L. v. Del Amo Hosp., Inc., No. SA CV 18-0475, 2019 WL 4187848, at *2 (C.D. Cal. Sept. 3, 2019). The hospital hosts the National Treatment Center Program (“NTC Program”), an inpatient program that assists with trauma stabilization.15×15. Id. C.L. checked herself into the NTC Program seven times between September 2015 and August 2017.16×16. Id. She requested to bring Aspen with her each time, but Del Amo Hospital denied the requests.17×17. Id. at *4. On March 23, 2018, C.L. filed suit in the Central District of California, challenging Del Amo’s denials under Title III of the ADA18×18. Title III of the ADA prohibits “discriminat[ion] . . . on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). and California’s Unruh Civil Rights Act19×19. Cal. Civ. Code § 51 (West 2021). (“Unruh Act”).20×20. Del Amo Hosp., 992 F.3d at 907. The Unruh Act states: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b) (West 2021).

After a bench trial, the district court entered judgment for Del Amo Hospital.21×21. Del Amo Hosp., 992 F.3d at 908. Judge Carter concluded that while C.L. has a disability as defined by the ADA, she failed to meet her burden to show that Aspen was a service dog.22×22. Del Amo Hosp., 2019 WL 4187848, at *6. Even though C.L. had trained Aspen, the judge found it decisive that she “did not receive a certification of Aspen as a service animal.”23×23. Id. Crucially, the court noted that a service dog trainer who testified during the trial “contradicted” herself when she stated that she believed Aspen to be a service animal but that she would not certify C.L. and Aspen “as a service dog and handler team.”24×24. Id. A service dog “handler” is “the individual with a disability [who is assisted by the dog] or a third party who accompanies the individual with a disability.” U.S. Dep’t of Just., Frequently Asked Questions About Service Animals and the ADA (2015), https://www.ada.gov/regs2010/service_animal_qa.pdf [https://perma.cc/W7SR-FUN6].

The Ninth Circuit vacated and remanded.25×25. Del Amo Hosp., 992 F.3d at 915. Writing for the panel, Judge Gould26×26. Judge Gould was joined by Judges Nelson and Cogan, the latter sitting by designation. ruled that “the ADA prohibits certification requirements for . . . service dogs.”27×27. Del Amo Hosp., 992 F.3d at 910. Although Del Amo Hospital attempted to frame the issue as a factual question of credibility reviewable only for clear error, Judge Gould concluded that the appropriate standard was de novo because the district court “improperly considered certification to be . . . legally necessary.”28×28. Id. at 909. Judge Gould found the district court’s legal conclusion erroneous for three reasons.

First, Judge Gould reiterated the definition of “service dog” from the ADA’s implementing regulations: “[A]ny dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability,” so long as the tasks or work are “directly related to the individual’s disability.”29×29. Id. at 910; 28 C.F.R. § 36.104 (2021). There is no mention of particular certification standards nor of a “requirement as to the amount or type of work” the dog must perform.30×30. Del Amo Hosp., 992 F.3d at 911 (quoting Green v. Hous. Auth. of Clackamas Cnty., 994 F. Supp. 1253, 1256 (D. Or. 1998)). However, the court noted that “a well-trained companion animal that happens to alleviate a person’s anxiety would not suffice”; rather, the dog must be affirmatively “trained” so that he does not “merely behave in a way that dogs naturally do.”31×31. Id.

Second, Judge Gould pointed out that the DOJ has repeatedly suggested that service animals “need not be formally certified.”32×32. Id. In 2010, the DOJ explicitly rejected suggestions to “adopt ‘formal training requirements for service animals,’” explaining that mandatory certification would limit access to service animals to those with substantial financial means.33×33. Id. at 912 (quoting Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. 56236, 56272 (Sept. 15, 2010)). In addition, the DOJ permits public accommodations wishing to determine whether an animal is a qualifying service animal to ask only two specific questions: whether the animal is “required because of a disability” and “what work or task the animal has been trained to perform.”34×34. 28 C.F.R. § 36.302(c)(6) (2021). Judge Gould concluded that the district court erred when it imposed a requirement for individuals with disabilities to obtain certification documents that public accommodations cannot ask to see.35×35. Del Amo Hosp., 992 F.3d at 913–14. Judge Gould also noted that the DOJ’s “Frequently Asked Questions About Service Animals and the ADA” document suggests that the ADA “considers self-training to be a viable option.”36×36. Id. at 913 (citing U.S. Dep’t of Just., supra note 24).

Finally, Judge Gould determined that “requiring certification would hinder the goals of the ADA.”37×37. Id. at 913–14. The ADA aims to help people with disabilities achieve “equality of opportunity, full participation, independent living, and economic self-sufficiency.”38×38. 42 U.S.C. § 12101(a)(7). Permitting individuals with disabilities to self-train service animals furthers this goal.39×39. Del Amo Hosp., 992 F.3d at 914. Because disability-related needs are unique, self-training offers a better opportunity to tailor the service animal’s work accordingly.40×40. See id. Besides, Judge Gould noted, there is “no industry-wide consensus on the proper certification standards,” so requiring certification would simply “multiply litigation over which certifications are judicially valid.”41×41. Id. at 915. Instead, the stated goals of the ADA are better served by simply asking: does the animal “consistently and reliably help a person with a disability in performing activities of daily living”?42×42. Id.

The Ninth Circuit remanded without reaching the second issue that C.L. argued: whether the district court had incorrectly concluded that her unimpeached testimony regarding Aspen’s training needed to be corroborated in order to satisfy the ADA.43×43. Id. at 909, 915. On remand, the district court determined that C.L. had shown that Aspen was a trained service dog.44×44. C.L. v. Del Amo Hosp., Inc., No. SA CV 18-0475, 2021 WL 4026761, at *11 (C.D. Cal. Sept. 3, 2021). However, the court concluded that Del Amo Hospital had not discriminated against C.L. because bringing Aspen into the treatment center “would have fundamentally altered the nature of the service that Del Amo Hospital provides.”45×45. Id. at *9.

The question on which Judge Gould ended his discussion — asking “whether a service animal will consistently and reliably help a person with a disability in performing activities of daily living”46×46. Del Amo Hosp., 992 F.3d at 915. — better achieves the ADA’s broad purposes than the DOJ’s existing service animal regulations. Judge Gould’s analysis concluded that Aspen could potentially qualify as a service animal under those regulations. But his gloss on the standard downplayed the fact that only some kinds of “work” — or “help,” as he put it — qualify. In 2010, the DOJ explained the distinction between “psychiatric service” and “emotional support” animals and explicitly excluded the latter from ADA protections, asserting that emotional support is not qualifying “work.”47×47. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. 56236, 56268–69 (Sept. 15, 2010). This restriction is both confusing and counter to the ADA’s broad goals. And further, it is unnecessary: the regulations contain safeguards that would prevent abuse even if emotional support qualified as “work” under the service animal regulations.

The ADA was enacted in 1990 to empower people with disabilities to participate fully in society.48×48. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2(a)(8), 104 Stat. 328, 329 (codified as amended in 42 U.S.C.). But over the ensuing decade, the Supreme Court narrowed the scope of the Act.49×49. In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), for example, the Court announced that whether a person has a qualifying disability should be assessed “with reference to corrective measures,” id. at 488, effectively excluding from coverage individuals whose disabilities could be mitigated by corrective measures like glasses or prostheses, see id. And in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Court determined that the phrase “substantially limits” sets a high bar for determining whether someone’s impairment amounts to a disability under the Act, id. at 196, 198. In response, Congress enacted the ADA Amendments Act of 200850×50. Pub. L. No. 110-325, 122 Stat. 3553 (2008) (codified as amended in scattered sections of 29 and 42 U.S.C.). to reinstate the broad protections that it had intended to establish with the ADA.51×51. Id. § 2(b)(1) (codified as amended in 42 U.S.C.). Ironically, when the DOJ promulgated updated regulations to implement the amended ADA in 2010, it narrowed the service animal provisions. The 1991 regulations were quite broad, defining “service animal” as “any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability.”52×52. 28 C.F.R. § 36.104 (1992) (emphasis added). But by 2010, the DOJ had noted an “increasing use of wild, exotic, or unusual species” as service animals,53×53. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. 56236, 56266 (Sept. 15, 2010). In its responses to comments and questions related to the 2010 regulations, the DOJ stated that “few anticipated the variety of animals that would be promoted as service animals . . . , which ranged from pigs and miniature horses to snakes, iguanas, and parrots.” Id. at 56267. as well as consternation among covered entities over their obligations under the Act.54×54. Id. at 56266.

In an effort to resolve these issues, the DOJ’s 2010 rules limited the definition of “service animal” to “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.”55×55. Id. at 56250 (emphasis added). Miniature horses can also sometimes qualify as service animals, but the regulations now restrict “service animal” to these two species. 28 C.F.R. §§ 35.156(i), 36.104 (2021). The agency also attempted to clarify a difference between “service animals” and “emotional support animals.”56×56. The DOJ describes “emotional support animals” as “[a]nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or to promote emotional well-being.” Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. at 56268 (alteration in original) (quoting Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 73 Fed. Reg. 34508, 34553 (proposed June 17, 2008)). The DOJ explained that “the provision of emotional support, well-being, comfort, or companionship . . . do[es] not constitute work or tasks for the purposes of this definition.”57×57. Id. at 56250; see Doron Dorfman, Suspicious Species, 2021 U. Ill. L. Rev. 1363, 1374. Yet the agency also stated that “[p]sychiatric service animals can be trained to perform a variety of tasks that assist individuals with disabilities.”58×58. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. at 56269. Under the ADA, public accommodations must permit the use of psychiatric service animals, but the same protections do not apply for emotional support animals.59×59. See Del Amo Hosp., 992 F.3d at 912; Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. at 56268.

As evidenced by Judge Gould’s efforts to illustrate the difference in his opinion, this distinction between psychiatric service and emotional support can be unclear. Judge Gould compared “a dog [who] may naturally jump up in [his] owner’s lap” with a dog trained specifically “to sit in her lap in a particular position and only in response to certain triggers related to the owner’s disability.”60×60. Del Amo Hosp., 992 F.3d at 911. While the former might provide emotional support, only the latter could be a “service animal” under the ADA. But there is no specific task, type of service, or way of performing the task required of service animals.61×61. Green v. Hous. Auth. of Clackamas Cnty., 994 F. Supp. 1253, 1256 (D. Or. 1998). Accordingly, it is not apparent why a dog who provides emotional support in a way that consistently alleviates his handler’s ADA-qualifying anxiety should not be covered. As comments on the DOJ’s proposed rules pointed out, some individuals find that animals provide crucial emotional support that helps them fully participate in society.62×62. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. at 56268–69. Scholars have likewise pointed out that the dividing line between emotional support and service animals is hazy. See generally Margaret Price, What Is a Service Animal? A Careful Rethinking, Rev. Disability Stud.: Int’l J., Dec. 2017, at 53; Tiffany Lee, Criminalizing Fake Service Dogs: Helping or Hurting Legitimate Handlers?, 23 Animal L. 325 (2017).

The DOJ’s explicit exclusion of emotional support work also has repercussions for psychiatric service dog handlers. Given the regulations’ broad guidance on the types of individual training that may qualify as “work,”63×63. See Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. at 56266 (noting that qualifying work “include[s], but [is] not limited to . . . preventing or interrupting impulsive or destructive behaviors”). it is difficult in some cases to discern whether an animal performs a psychiatric service task or emotional support. As a result, accommodations providers and members of the public sometimes harass legitimate service dog handlers for proof that the animal is a service animal.64×64. See Dorfman, supra note 57, at 1381–84. In states that make misrepresentation of service animals a misdemeanor,65×65. Service Animal Misrepresentation, Nat’l Conf. of State Legislatures (Aug. 15, 2019), https://www.ncsl.org/research/labor-and-employment/service-animal-misrepresentation.aspx [https://perma.cc/DT7T-EQ7F]; Lee, supra note 62, at 337. people with psychiatric disabilities may face a risk of being falsely convicted by a judge who concludes that a dog is “merely” an emotional support animal rather than a true service dog.66×66. Cf. Lee, supra note 62, at 344–45 (discussing the impact of implicit bias against people with disabilities in the enforcement of laws against fraudulent service animals). High-profile media criticism of emotional support animals aggravates these tensions — even when media stunts are based on a common misunderstanding of the law.67×67. See, e.g., Patricia Marx, Pets Allowed, New Yorker (Oct. 13, 2014), https://www.newyorker.com/magazine/2014/10/20/pets-allowed [https://perma.cc/Y4F2-R54C] (describing the author’s efforts to bring a turtle, an alpaca, a snake, and a turkey into New York City museums, restaurants, stores, and buses). As Patricia Marx acknowledges in her article, many people are confused about the fact that only service animals are entitled to enter most public accommodations. Id. Since service animals must be dogs or miniature horses, the accommodations Marx visited were not legally obliged to admit her various animals. Such criticism can lead to skepticism and exclusion of legitimate psychiatric service dog handlers.68×68. See, e.g., Justyna Wlodarcyzk, When Pigs Fly: Emotional Support Animals, Service Dogs and the Politics of Legitimacy Across Species Boundaries, 45 Med. Humans. 82, 86 (2019) (describing an airline’s exclusion of Captain Jason Haag and his psychiatric service dog Axel).

Abandoning the psychiatric service/emotional support distinction in favor of Judge Gould’s gloss on the regulations would likely better achieve the ADA’s broad goals. Psychiatric conditions are prevalent in the United States,69×69. Mental Health Disorder Statistics, Johns Hopkins Med., https://www.hopkinsmedicine.org/health/wellness-and-prevention/mental-health-disorder-statistics [https://perma.cc/SU69-BCLV] (“An estimated 26% of Americans ages 18 and older — about 1 in 4 adults — suffers from a diagnosable mental disorder in a given year.”). It is important to note, however, that not all of these mental disorders qualify as disabilities under the ADA. To qualify as a disability, the mental impairment must “substantially limit[] one or more major life activities.” 42 U.S.C. § 12102(1)(A). so a more flexible approach to psychiatric service animals may help meet the needs of a significant population of individuals with disabilities. Asking simply whether the animal “consistently and reliably help[s] a person with a disability in performing activities of daily living”70×70. Del Amo Hosp., 992 F.3d at 915. could permit more individuals with ADA-qualifying depression, PTSD, or anxiety to work with a service animal. The question discourages harassment and excessive attention on whether an animal “just” provides emotional support rather than some more clearly identifiable task and focuses instead on whether the animal helps a person covered by the ADA engage in major life activities.

Concerns that including emotional support as qualifying work might lead to widespread abuse are likely overblown. First, ADA regulations include codified requirements as to behavior and species. As previously noted, service animals must generally be dogs.71×71. 28 C.F.R. § 36.104 (2021). Additionally, although public accommodations are normally required to permit an individual with a disability to use their service animal,72×72. Id. § 36.302(c)(1) (2021). this requirement is not unbounded: a public accommodation may refuse to admit the service animal if he is “out of control” or “not housebroken.”73×73. Id. § 36.302(c)(2)(i)–(ii) (2021). Second, the law permits exceptions to the requirement to admit service animals where it would “fundamentally alter” the accommodation’s operations or services.74×74. 42 U.S.C. § 12182(b)(2)(A)(ii). For example, sterile medical facilities need not admit service animals,75×75. Tamara v. El Camino Hosp., 964 F. Supp. 2d 1077, 1083–84 (N.D. Cal. 2013); Rebecca J. Huss, Hounds at the Hospital, Cats at the Clinic: Challenges Associated with Service Animals and Animal-Assisted Interventions in Healthcare Facilities, 40 U. Haw. L. Rev. 53, 70 (2018). nor must psychiatric treatment facilities — as the district court in C.L.’s case concluded on remand.76×76. C.L. v. Del Amo Hosp., Inc., No. SA CV 18-0475, 2021 WL 4026761, at *9–10 (C.D. Cal. Sept. 3, 2021). Finally, public accommodations may exclude any service animal that “poses a direct threat to the health or safety of others.”77×77. 28 C.F.R. § 36.208 (2021); Roe v. Providence Health Sys.-Or., 655 F. Supp. 2d 1164, 1168 (D. Or. 2009); Huss, supra note 75, at 67–68.

In sum, the DOJ regulations are clear that (1) a service animal must be under control and housebroken, (2) the animal must assist the handler in a way that relates to their disability, and (3) the animal’s handler must qualify for ADA protections. If the animal is a threat to safety or would “fundamentally alter” the accommodation or service, the animal may be excluded. Given these requirements, it is unclear how much more work is done by distinguishing between an animal individually trained to assist an individual with a qualifying psychiatric disability and an animal who provides emotional and therapeutic services to an individual with a qualifying psychiatric disability in a way that supports their participation in major life activities.

Focusing covered entities and the public on these other requirements could shift attention to the animal’s behavior and the accommodation’s legitimate health and safety requirements, thereby limiting confrontations to instances where the animal is creating a danger or disturbance. In other cases, handlers should be given the benefit of the doubt so as to decrease the likelihood of confronting or excluding a person with a real, but perhaps not immediately visible, disability. If a dog and handler team meet all of the other requirements, perhaps it should not matter if the work the dog performs is emotional support. What should matter is simply whether the animal “consistently and reliably help[s] a person with a disability in performing activities of daily living.”78×78. Del Amo Hosp., 992 F.3d at 915.