What is a Disability, Anyway?

By Richard Hunt, J.D.
January 24, 2017 - Last updated: January 22, 2017

Service Dog with Disabled OwnerMental health professionals are often asked to certify patients are “disabled” or have a “disability related need” for a service dog or therapy animal. Responding requires care, because “disability” and “disabled” are legal, not medical concepts.

A certificate or confirmation that a patient is disabled made without considering the legal context may lead to involvement in a legal dispute that has nothing to do with ordinary medical diagnosis or treatment.

“Disability” as a legal concept can be found in at least six federal laws: the Americans with Disabilities Act (ADA), the Air Carrier Access Act, the Rehabilitation Act, the Individuals with Disabilities Education Act (IDEA), the Congressional Accountability Act and the Social Security Act.

The related word “handicap” is found in the Fair Housing Act (FHA). These seven laws include four different definitions of disability. The definition of disability in the IDEA is oriented toward its educational goals. The definition for the Social Security emphasizes the ability to work. The other laws have broader definitions based on their particular purposes.

Because the definitions vary, an individual who is disabled under the ADA may not be “handicapped” under the Fair Housing Act or disabled for the purpose of receiving Social Security benefits. A child may be disabled with respect to IDEA but not be disabled under the ADA. “Disability” has meaning only when associated with a particular law.

In addition to these federal laws, each of which has its own set of regulations and administrative interpretations, there are more than 50 state laws that may or may not use the same definition of disability. California, for example, has a more liberal definition of disability, so a person disabled under California law may not be disabled under federal law. A certification that a patient is “disabled” in California may be meaningless in terms of a federal program or lawsuit.

Mental health professionals must also be aware that a mental disorder is not necessarily a disability. Under the ADA and FHA “disability” or “handicap” means “a physical or mental impairment that substantially limits one of major life activities.”

The words “substantially limits” are important because “substantially limits” is not the same as “significant distress” (from DSM 5) or “present distress or disability” (from DSM-IV). Courts have consistently said that a patient may be correctly diagnosed with depression, anxiety disorder, PTSD and other mental disorders and still not be disabled under federal law. Finding that a patient suffers from a mental disorder is simply not the same thing as determining the patient is “disabled.”

There are equally important distinctions between “service” animals and “emotional support animals.” “Service” animals are always dogs or miniature horses and must be trained to perform specific tasks. Emotional support animals can be any species and require no special training. This difference is important.

“Service” animals are permitted in public places like restaurants, retail stores and theaters because it is assumed they are trained to behave in crowds and around strangers.

Emotional support animals, on the other hand, get special treatment only with respect to no-pet and pet deposit policies in rentals or condominiums. Lack of training isn’t considered important in this situation because the animal is mostly confined to the residence of the owner. Certifying a patient needs a pet as a “service” animal may lead to embarrassing, even dangerous situations, with animals that cannot behave well in public.

Finally, even with emotional support animals there must be a “disability related need” for the animal. The key word here is “need.”

A veteran with PTSD who cannot sleep through the night without his German Shepherd by the bed needs the dog because he can’t use or enjoy an apartment he cannot sleep in. But a patient with mild depression may feel better when a pet cat is around, but nonetheless be capable of living day to day without the animal’s presence. Just because an animal is helpful does not mean there is a disability related need for the animal.

In the last few years many people have become aware that with a disability certification they can avoid pet deposits, fly their pets for free and even avoid health and safety regulations for restaurants. Mental health professionals should be aware that certifying a patient is disabled requires both a proper medical diagnosis and the application of the correct legal definition of disability. Otherwise the certification may simply be wrong and may lead to legal action.

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Richard Hunt is an attorney in Dallas, Texas. He is adjunct professor of disability law at Southern Methodist University and the author of accessdefense.com, a disability law blog. He focuses his practice on helping businesses in disability law matters. He may be reached by email at rhunt@hunthuey.com.

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