GingermanA recent news* story about a veteran with PTSD and his dog is a good reminder that service dogs and emotional support dogs are not the same, and that the subject is still confusing to many people. This is especially important now because many states are moving to criminalize misrepresenting the status of a dog, meaning that some with disabilities may become criminals because of their ignorance.**

The story itself is straightforward. The veteran went to the VA hospital with “Old Glory,” his four month old puppy. After some kind of confrontation he got a citation from the VA police. It is in the descriptions of the puppy that confusion becomes obvious. The story as reported says the veteran got the puppy “for emotional support.” The veteran is quoted as saying the dog is a “medical necessity” covered by the Americans with Disabilities Act. The VA police chief is quoted as saying that because the dog is only for emotional support and not trained for a task it is not a service animal, “citing VA regulations.” The story then continues:

That’s where things get confusing: ADA guidelines state a service animal can be used to calm people with PTSD. Different federal agencies apparently have different regulations.

Is it really confusing? Not really, but only if you pay careful attention to the difference between a calming influence and being trained to calm.

The VA police chief got it perfectly right. A “service dog” covered by the ADA and federal regulations issued under the Rehabilitation Act (which covers VA hospitals) must be trained to perform specific tasks related to an individual’s disability. When the most recent ADA regulations were promulgated many commentators specifically asked for an exception that would allow veterans with PTSD to bring emotional support animals in public places and DOJ refused, stating that because of safety and health considerations associated with both public accommodations and government facilities it was appropriate to allow only service animals, not emotional support animals. Service animals are those trained to do specific work or tasks. (See, Appendix A to the Title III regulations at 82-83 and Appendix A to the Title II regulations at 77-78). The current regulations specifically state that: ‘‘[t]he provision of emotional support, well-being, comfort, or companionship * * * do[es] not constitute work or tasks for the purposes of this definition.’’ (28 CFR §36.104 and §35.104). The VA adopted parallel regulations in 2015. (See, 38 CFR §1.218(a)(11)(viii)). As with the DOJ regulations, the VA regulations were adopted despite vigorous arguments that the VA should permit assistance or emotional support animals in its facilities (See, 80 FR Vol. 158 at p. 49161).  From a purely regulatory standpoint there is no confusion. The ADA and VA regulations have identical definitions of service animal.

There are service dogs specially trained to help those with PTSD. DOJ guidance on service dogs recognizes that dogs can be trained to do a room safety check or room search for individuals whose PTSD makes it hard for them to enter unknown spaces. DOJ also recognizes that dogs can be trained to calm a person with PTSD during an anxiety attack; however, special training to calm an individual about to suffer or suffering fro an anxiety attack is not the same as simply providing constant emotional comfort. Various organizations that train dogs specifically for veterans with PTSD emphasize that the training takes between 6 months and a year.† This is because the training involves sensing the onset of an anxiety attack before it manifests itself and acting in specific ways to calm to disabled individual. It also requires training to make sure the dog can be safely taken to public places, that it won’t react to other people and animals, that it is housebroken and so forth. A four month old puppy, no matter how comforting, cannot meet the definition of a “service dog” under the ADA or Veteran’s Administration regulations.

The “service dog” v. “emotional support animal” is confusing primarily because those who advocate for emotional support animals often fail to distinguish between “specially trained” and “able to do good.” The veteran in the story may indeed find that his dog is a “medical necessity” and that the dog provides valuable support. However, the existence of some benefit is not enough. The ADA, Rehabilitation Act and similar statutes all try to balance the needs of the disabled for access to public places with the risks associated with the presence of animals. The balance struck by the Department of Justice, VA and other government agencies requires that dogs have special training before they are allowed to enter public places where animals are otherwise forbidden. As the comments to the regulations show, the arguments for more inclusion of emotional support animals were considered but rejected. Today the subject is confusing only because of ignorance.

* “Veteran cited to federal court after dispute over service dog at VA hospital

** See, “Several states crack down ‘fake’ service animals.” The recent state level efforts to make it a crime to mis-represent a dog as a service dog were spurred by complaints from businesses and housing providers about fake service and assistance or emotional support animals. There is, as we have observed before, a booming business on the internet providing bogus diagnoses of disability along with fancy vests, certificates and similar meaningless paraphernalia. These laws are attacking a real problem, but given what seems to be widespread confusion about just what constitutes a service animal or emotional support animal, they may either punish the confused or be toothless because of the impossibility of proving criminal intent.

† See, for example, “Working Dogs for Vets.”