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The Housing Dramas Continue

Webinar 3: Best Practices Series 6

Answers to questions posed by participants:

Does the law require universities to allow students with chronic conditions (psychiatric disabilities) to have comfort animals in the classroom?

While the FHA and Section 504 are the statutes that permit students to have assistance (comfort, support, etc.…) animals on campus much of the discussion pursuant to these statutes addresses the presence of assistance animals in housing environments. The most explicit discussion of the rights of students to be accompanied by animals as they participate in other institutional programs and services are found in the regulations implementing the ADA. The ADA only provides such protections for individuals with services animals. The Department of Justice has distinguished the FHA and Section 504 from the ADA by noting that requests for the use of assistance animals should be treated as accommodation requests. (See, HUD Policy Guidance: New ADA Regulations and Assistance Animals as Reasonable Accommodations (February 17, 2011) and NACUA Notes: Accommodating Service and Assistance Animals on Campus, Vol. 9 No.8 (April 14, 2011). Therefore, it is argued by some, including, reportedly, by OCR attorneys, that requests to be accompanied by assistance animals in the classroom must be given good faith consideration as accommodation requests. 

If we know that a student will be bringing a service or assistance animal, how do we handle disclosure to roommates? How do we notify roommates without compromising the confidentiality of the student with a disability?

First, there is no right to confidentiality conferred to students either under Section 504 or the ADA. When a student requests an accommodation, an institution is entitled to disclose information to persons who have a need to know as a part of the accommodation process. Students who will be sharing a living environment are such persons. It is advisable for institutions to provide notice on their housing applications that in shared room situations there is a possibility that an animal might be present so that individuals with allergies or other issues or concerns regarding animals can raise them during the application process.

Does the FHA require less stringent documentation for support of a reasonable accommodation than disability services (in general)? How can we reconcile that with current DS practices and policies concerning documentation?

Overall, the documentation standards of institutions must not be unduly burdensome. Standards should be tailored to gather information regarding the existence of a disability and sufficient detail about the manifestation of the disability to permit a determination as to what academic adjustments, auxiliary aids and/or services, if any, would be reasonable and effective. In enforcing the FHA, HUD does not apply less stringent standards than these. The position that HUD has taken is that institutions cannot go on a fishing expedition and seek information regarding medical conditions that are unrelated to the stated need for the assistance animal. See USA v. University of Nebraska at Kearny, No. 4:11-CV-3209 (D. Neb. 2013).   

How should “incompatible disabilities” be handled, e.g., when one student is allergic to another student’s service or assistance animal? Which student, if either is asked to move?

Each student’s request is treated as an accommodation request. It is not enough for a student to merely say they allergies or that they are terrified of a particular type of animal. If they are asking or demanding that the institution take action related to that information, they must provide documentation to support the need for the action. Further, even if the documentation supports the request, the institution must properly balance the needs of both students in arriving at a resolution. The facts of each case will dictate the resolution options that are available. Factors such as the severity of the student’s allergies, whether one of the student has priority because of timing of his/her request or their enrollment status, and the range of housing choices available to students may have an impact on the options available. 

If a student needs a single and there are none available in the dorm that she and her friends want to live in, is the institution required to allow her to have a single in that dorm?

Institutions must distinguish between the following types of request cases:

  • Ensuring equal access;
  • Honoring student priority choices; and
  • Responding to student’s preferences.

There is a compliance obligation to provide access to the housing program; thus, if it is an equal access issue it is paramount that the student’s needs be met. Additionally, the institution cannot ignore priorities conferred upon students as a group such as class status (e.g., juniors and seniors are permitted to live in apartments), lottery numbers, etc.… . If the student’s request is based upon a priority that is conferred to a group that the student is a member of, every effort must be made to ensure that the student gets the benefit of his/her priority status. Institutions have the greatest flexibility concerning preference cases. The ultimate responsibility is to provide access to the housing program so a decision that ensure access while demonstrating a good faith effort to respect the student’s preference will usually withstand scrutiny.    

a. We are creating "Living Learning Communities" in our residence halls. These are floors in the residence halls that have specific themes, e.g. community service or students in substance abuse recovery. If a student with specific housing accommodation needs (e.g. private bathroom, first floor) wants to be part of a Living Learning Community, do we need to move the location of the Living Learning Community to provide the accommodations?

b. There will be several Living Learning Communities on campus next year with three located in a non-accessible 4-story building. What burden falls on the institution to relocate the LLC of 25-30 students to an accessible hall if a student in a wheelchair wanted to live in the LLC?

Institutions are obligated to offer the same range of choices and opportunities to students with disabilities as other students. Therefore, when decisions are being made concerning the availability of such specialty housing the issue of access must always be on the table. Institutions that fail to give proper consideration to this issue are, at a minimum, violating program accessibility compliance standards and; if major renovations or new construction is involved architectural compliance standards are also an issue.

Can we tell students who are approved for a comfort animal that they cannot allow their comfort animal on furniture in the common rooms in the residence halls?

The standard you should use in developing such rules or guidelines is that they should not deny or restrict the use and enjoyment of common areas by the student. Arguably reasonable rules that ensure that animals do not soil common use furniture do not restrict the use and enjoyment of students with assistance animals. Thus, the focus should be on developing neutral rules or guidelines that are designed to protect full and safe use and enjoyment of all students.

a. A student who has severe anxiety says he must come early and settle before school begins to reduce anxiety? Can the student be charged?

b. A student wants to come early due to a disability-based need; but, limited staff results in the dorm not being staff for early admission. Is the University required to incur the expense of assigning staff to the dorm early to accommodate the student?

If an institution has a policy of charging students a fee for moving into housing early, OCR has ruled that the determining factor concerning whether a student with a disability can be charged the fee is whether it is a disability related need that can only be met by the student moving in early. Questions to ask include: What are the specific manifestations of the student’s disability that the early move-in is intended to address? Can the student’s identified needs be addressed during the regularly scheduled student move-in period? A good OCR case to consult on this issue is University of Wisconsin-Stevens Point, No. 05-09-2149 (OCR 2010): OCR ruled in this case that because the institution could demonstrate that the student’s need for mobility training could be adequately met at the beginning of school the student’s desire for an early move-in was a convenience rather than a disability-related need and charging the student the fee was not discriminatory.

Under circumstances where an institution does not offer students the option of moving in early, arguably, the institution can assert that it is an undue administrative and/or financial burden to staff a dorm that would otherwise not be staffed to accommodate one student. However, even under circumstances where it is determined that moving in early is not an option, the institution should explore whether there are alternatives available to meet the student’s identified disability related needs.  

If a student with a service or an assistance animal is requesting a housing accommodation for the university to allow them to live in a double room but not with another roommate (to make room for the animal) but our university has many single rooms, should we be housing them in a double room (as a single) or a single occupancy room?

The answer to the question depends upon whether the university has single rooms that would afford the student adequate living space with the animal. The obligation of the institution is to provide access to the housing program. Therefore, if there are singles that offer adequate space for students and their service or assistance animals then certainly university officials can choose to assign students to such singles.

a. Are institutions permitted to require students with service animals to notify either the disability services office or the public service office that they have a service animal on campus?

b. What is the recent OCR case in which they ruled that notification can be required for service animals when that individual is there on a permanent basis?

Prior to the revised regulations being issued under the ADA, OCR had ruled in Northwest Missouri State University, 07-07-2037 (August 2007) that postsecondary institutions could require that students with service animals, at a minimum, provide notice to an identified office that they were in need of a service animal as a means of the institutions managing the presence of such animals on campus. However, upon implementation of the revised regulations, there was some question as to whether institutions could continue to request such notification given the regulatory restrictions imposed with respect to institution initiated inquiries. A recent OCR ruling appears to settle this question. The resolution agreement outlining policies governing the use of service animals in the districts’ facilities included a provision that visitors would freely be allowed access while students and employees wishing to be accompanied by service animals on a permanent basis would be required to provide notice “prior to the proposed use of the animal on the premises.” (See Letter to Labs, No. 01-12-1277, (OCR 2013).

Is a college allowed to set a deadline for when housing accommodation requests are needed to secure housing?

While Institutions may set a fixed date for all students to submit applications for housing, they cannot single out students with disabilities in imposing such a requirement. It would be viewed as adverse or discriminatory treatment. Students with disabilities can seek accommodations at anytime and, while, institutions are entitled to a reasonable amount of time to review, process and respond to such requests, institutions cannot refuse to consider accommodation requests based upon some arbitrary date. Students are entitled to request that institutions modify their policies and procedures, including deadlines and due dates, and institutions are required to give good faith consideration to those requests.

Can we hold a student financially responsible for damages a service or assistance animal causes in housing?

Institutions should treat students with disabilities the same as other students regarding the enforcement of policies and procedures regarding housing damages and student responsibility. There is no reason to single out students with service or assistance animals.

a. Does an assistance animal have to be preexisting?

b. Must the student have a history of previously having a comfort animal prescribed?

c. Student who has never had a comfort animal in the past comes to school with a letter from a doctor that says: "Yeah, an animal might help." University asks for more specificity. The HC provider again provides the same letter.

A student’s desire to have an assistance animal is an accommodation request. Therefore, the student is responsible for providing documentation that establishes the existence of a disability, the manifestations of which supports the need for an assistance animal. This also means that institutions are entitled to raise questions about the legitimacy of physician letters that are suspect (e.g., letters obtained from on-line experts that have never treated the student, letters that merely support the desire of the student to have an animal with no evidence of a history of the student having used an assistance animal as an accommodation; and/or letters that provide no connection between the manifestations of the disability and the recommendation for the animal). Further, institutions have the right to offer alternative accommodations that they can establish would be equally effective as the use of an assistance animal.

a. If a student with a disability related need (i.e. anxiety, PTSD, etc.) requests a medical single and has appropriate documentation so we provide the single (not for a need for extra space, but a need for single space) is it ok that we charge them the single room rate at the university? 

b. Regarding accommodating a student with a single room, what about an associated reduced rate for the single room? Isn’t the single room itself the accommodation, not the rate?

Unfortunately, OCR has rejected this position on many, many occasions. OCR has consistently ruled that institutions must make exceptions to their room-rate policies when necessary to enable a student with a disability to participate in the housing program. Institutions are not permitted to charge students for the cost of accommodations that are deem necessary for the students to gain access to a housing program. See State University of New York at Potsdam, No. 02-11-2062 (OCR 2011) and University of Wisconsin-Stevens Point, No. 05-09-2149 (OCR 2010).

A student who experiences pseudo-seizures lives on the second floor and her trigger is fire alarms. During the past two alarms she experienced pseudo-seizures and froze while going down the stairs and blocked the stairs preventing other students from evacuating the building. There are concerns about safely getting the student out of the building. She insists she wants to live on the second floor. Can we require her to live on a first floor near an exit? She doesn't want this but our police believe this would be the safest thing to do to get her safely out of the dorm.

It is not reasonable for an institution to sacrifice the safety and wellbeing of all residents in order to satisfy the rooming preference of a student with a disability. Further, the student’s actual behavior during previous alarms provides objective evidence of the risk she poses in an emergency situation. The difficulties experienced during previous alarms, as well as the assessment of experts in the field (i.e., police and emergency personnel) supports the institution assigning the student to room that would provide for the safety of all concerned.

Regarding housing, if a dorm has no "single" rooms, do we have an obligation to create singles from doubles to ensure the housing accommodation is provided with minimal restrictions (i.e., student has the same options as peers to live with friends in specific dorms)?

Yes, if it is the only means of making the housing program accessible, as well as, offering the same range of choices and opportunities to students with disabilities, the institution may have to convert doubles to singles upon occasion.

When students have service animals or ESAs, is it acceptable to put a paw symbol (or some other coded identifier) in a discrete location on the student's door or window to alert facilities personnel of the animal's existence?

No, OCR ruled on this in Portland State University, No. 10112060 (OCR 2011). Placing such a symbol on the door would, arguably, be requiring students to disclose their disabilities to everyone. OCR described it as “limiting disabled students in their enjoyment of their university housing by requiring them to disclose their disability.”

I was wondering if you could address what a university should do if the student submits a request after the deadline for housing requests and we do not have the available accommodation for housing.  Should we allow the student to get out of the housing contract?   If we are out of single rooms how do we accommodate?

The key issues in such situations is that a) the University has provided clear and timely notice to students of the consequences of missing the deadlines for housing requests; b) the housing deficiencies the University experiences do not disproportionately impact students with disabilities (e.g., are students with disabilities the only one who have difficulty if they do not request housing within a set period of time); c) how the University handles similar situations, if any, where non disabled students fail to satisfy housing requirements. If the University is in a situation where the housing needs of all students are adequately met except for students with disabilities who need single occupancy as an accommodation, it is imperative that the University consider all options for providing access to the housing program up to and including converting double occupancy rooms to singles, as well as, allowing students to get out of the housing contract.

How should safety issues in labs be addressed when a student has a service animal?

The three important compliance imperatives to be respected are:

  • Institutions should not imposed absolute bans on service animals in all lab environments –Students with service animals are entitled to be in any space or environments that their peers are entitled to inhabit. Therefore, any restriction or limitation concerning the presence of a service animal must be clearly justified following a proper individualized assessment and must be the product of an informed decision based upon objective evidence not mere speculation. Further, any imposed restriction must be limited to an identified, supportable danger or safety risk that cannot be lessened or minimized by adjustments short of restricting the student’s access to the service animal.
  • The presumption that the animal is entitled to be presence should be the basis of a good faith individualized assessment to determine the manner in which the student and the service animal will participate in the lab environment –Institutions are obligated to review the lab environment, the tasks students are required to perform, the duties and tasks the animal performs for the student, as well as, the actual behavior and training of the animal and make reasonable modifications that will ensure the student is afforded an equal opportunity to participate in lab activities. It is impermissible to introduce unsupported and unfounded fears about animal behavior into the assessment process.
  • The student is responsible for ensuring that the service animal is under control –If the animal behaves inappropriately in the environment, the student must be given an opportunity to get the animal under control. If the student is unable to gain and maintain control of the animal then the institution is entitled to take necessary action to eliminate disruption and/or to address safety issues. Even if removal of the animal is justified, the institution is obligated to offer the student an alternative accommodation, if necessary, to ensure access.

What should an institution do if they believe that an animal that is being called a service animal is in fact a comfort animal?

The types of inquiries that institutions can make regarding service animals are extremely limited. If the statutory approved questions yield nothing, an institution is not entitled to take any other action absent concrete, objective evidence that that places the status of the animal as a service animal in question. Examples of such evidence include: consistent failure of the animal to perform the work or tasks identified and/or the student participating in activities without the animal under circumstances where the animal should be performing the identified work or tasks. In my opinion, if the issue is objectionable or problematic behavior of the animal, (e.g., the animal is out of control and the handler fails to or cannot get the animal under control) the best and most expedient approach is to remove the animal under the regulatory provision that makes the handler responsible for maintaining control rather than engaging in a debate about whether the animal is, in fact, a service animal.

Our dining services offer a variety of mandatory meal plans for students living in University dormitory-style housing. They are typically very creative and accommodating to students with specific dietary needs, such as gluten and lactose intolerance, etc. One month ago, during winter break, we had a new request. A student emailed a request to the Disability Resource Center (DRC) to cancel her meal plan contract for spring semester due to a disability-related need for modification of food texture. She has difficulty chewing and swallowing. She later modified her request to reduce her meal plan from 11 to no more than 5 meals per week. The student goes home on the weekends and some other nights during the week. Dining services is offering to work with the student to explore providing the necessary modifications in order to retain her 11 meals per week contract. They are also offering to increase the number of meals she can eat elsewhere on campus. Their dietician has met with the student and is involved in the process. What does an interactive process look like in this situation? How do we discern preference from disability-related need? What other things do we need to consider as we engage in the process of determining a reasonable solution? 

Regarding the interactive process, you are doing a good job. You have brought the necessary experts (e.g., disability services staff and the dietician) to the table and you have offered a number of options as accommodations. Therefore, as long as, everyone is participating in good faith there is no issue with the interactive process. The preference issue is a good deal more difficult. You need a very good understanding of the nature of the student’s disability and the manifestations of her condition, in order to decided if the on-campus dining options that you are offering are practical and workable. Getting to that level of understanding requires: 

  • A complete and detailed review of the student's documentation; 
  • A discussion with the student at which you request that she outline in detail the difficulties she has under the standard meal plan, as well as the perceived difficulties with the options you have offered (e.g., you want her to distinguish between the foods she can eat and those she must avoid so that you can get a sense of the range of choices available to her under the meal plan and options); and 
  • A discussion with her physician at which you explore and vet the information you have gathered regarding the nature of the student’s disability and the difficulty she has with the meal plan. 

The discussion with the physician must come at the end of the process because you need to be able to engage in a detailed discussion about the nature of the condition and the options available so that you come away with a clear understanding of the impact the disability has on the student and will, then, feel comfortable either insisting the student accept the alternative options you have offered or agreeing to the reduction in the meal plan. Of course, you will need to keep the dietician and/or someone from food service involved throughout this process. The process is extremely time consuming so you, of course, will need to decide if it is worth the time and effort, as opposed to simply granting the student the accommodation that she has requested.   

If a student who has a medical-based dietary restriction needs to live in an apartment so s/he can make their own food, what would be the amount charged for their housing? Our campus had four different rate structures where traditional halls are one price and the three apartment buildings are each a different and higher price.

The price is based upon the circumstances of the case. There are a number of issues that are pertinent. They include:

  • Do his/her medical-based dietary restrictions establish that s/he has a disability entitling her to protection under Section 504 and/or the ADA?
  • Are there reasonable alternatives that would make the food service program accessible to the student while satisfying his/her dietary restrictions and needs?
  • Are the apartments the only housing configuration that offers students the opportunity to prepare their own meals?

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