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Service Animals

There are many changes to the Americans with Disability Act that go into effect today including updates regarding Service Animals.  I hope you find the following information interesting and useful.  For more information on this and other important ADA changes, please visit www.ada.gov
Below are the newly updated Department of Justice's Americans with Disabilities Act (ADA) Title III regulations that specifically relate to access for service animals and public accommodations. These provisions go into effect today, Tuesday, March 15, 2011.
The definition of "service animal" is one of the important revisions to the regulations. The revised definition states: "Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition."
The revised definition does not limit the size, weight or breed of the dog. While some people have expressed concern about using dog breeds that have a reputation for unprovoked aggression or attacks, the Department of Justice (DOJ) asserts that the breed of a dog does not determine its propensity for aggression and that aggressive and non-aggressive dogs exist in all breeds. Public accommodations have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal's actual behavior or history - not based on fears or generalizations about how an animal or breed might behave. This ability to exclude an animal whose behavior or history evidences a direct threat is sufficient to protect health and safety.
The revised definition does not invalidate or limit the remedies, rights, and procedures of any other Federal, State, or local laws that grant greater or equal access to a broader category of animals than is covered by the ADA. For example, emotional support animals that do not qualify as service animals under the ADA's title III regulations may nevertheless qualify as permitted reasonable accommodations for persons with disabilities under the Fair Housing Act or the Air Carrier Access Act.
In Title III of the ADA, the section titled "Modifications in policies, practices, or procedures" (§ 36.302) has also changed. The text of excerpted portions of these provisions appears below (A and C). In some instances, we added additional guidance compiled from other DOJ documents to help clarify the intent.
§ 36.302 Modifications in policies, practices, or procedures
 (a) General. A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.
(c) Service animals.
(1) General.
Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.
(2) Exceptions.
A public accommodation may ask an individual with a disability to remove a service animal from the premises if:
(I) the animal is out of control and the animal's handler does not take effective action to control it; or
(II) The animal is not housebroken.
Additional DOJ Guidance: The DOJ asserts that a public accommodation must be careful when it excludes a service animal. For example, a dog that barks repeatedly during a live performance may be excluded. However, a public accommodation should not exclude a service animal that is barking in an environment where other types of noise, such as loud cheering or a child crying, is tolerated. The DOJ maintains that the appropriateness of an exclusion can be assessed by reviewing how a public accommodation addresses comparable situations that do not involve a service animal. Similarly, a public accommodation may exclude a service animal if the animal is not housebroken (i.e., trained so that, absent illness or accident, the animal controls its waste elimination). The DOJ recognizes that animals get sick, too, and that accidents occasionally happen. In these circumstances, the DOJ cautions against overreaction by public accommodations and asserts that simple clean up typically addresses the incident.
(3) If an animal is properly excluded.
If a public accommodation properly excludes a service animal under § 36.302(c) (2), it shall give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises.
(4) Animal under handler's control.
A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means).
(5) Care or supervision.
A public accommodation is not responsible for the care or supervision of a service animal.
Additional DOJ Guidance: The DOJ specifically notes in its guidance that there are occasions when a person with a disability is confined to bed in a hospital for a period of time. In such an instance, the individual may not be able to walk or feed the service animal. In such cases, if the individual has a family member, friend, or other person willing to take on these responsibilities in the place of the individual with a disability, the individual's obligation to be responsible for the care and supervision of the service animal would be satisfied.
(6) Inquiries.
A public accommodation shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public accommodation may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public accommodation shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public accommodation may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).
(7) Access to areas of a public accommodation.
Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a place of public accommodation where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.
Additional DOJ Guidance: A healthcare facility must permit a person with a disability to be accompanied by a service animal in all areas of the facility in which that person would otherwise be allowed. There are some exceptions, however. The Department follows the guidance of the Centers for Disease Control and Prevention (CDC) on the use of service animals in a hospital setting. Consistent with CDC guidance, the DOJ asserts that it is generally appropriate to exclude a service animal from limited-access areas that employ general infection-control measures, such as operating rooms and burn units. A service animal may accompany its handler to such areas as admissions and discharge offices, the emergency room, inpatient and outpatient rooms, examining and diagnostic rooms, clinics, rehabilitation therapy areas, the cafeteria and vending areas, the pharmacy, restrooms, and all other areas of the facility where healthcare personnel, patients, and visitors are permitted without taking added precautions.
(8) Surcharges.
A public accommodation shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public accommodation normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.
Additional DOJ Guidance: Public accommodations may not charge maintenance or cleaning fees, or any other type of deposit or surcharge, to individuals who are accompanied by service animals. For example, private taxicab companies are prohibited from charging higher fares or fees for transporting individuals with disabilities and their service animals than they charge to other persons for the same or equivalent service. There may be times when a public accommodation can charge for actual damages though. For instance, a hotel can charge a guest with a disability for the cost of repairing or cleaning furniture damaged by a service animal if it is the hotel's policy to charge when non-disabled guests cause such damage.
(9) Miniature horses.
(i) A public accommodation shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
(ii) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public accommodation shall consider -
(A) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
(B) Whether the handler has sufficient control of the miniature horse;
(C) Whether the miniature horse is housebroken; and
(D) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
(iii) Other requirements. Sections 36.302(c) (3) through (c) (8), which apply to service animals, shall also apply to miniature horses.
Note: Similar to the way that a book is broken down into chapters, the ADA is divided into Titles. Title III of the ADA covers public accommodations and Title II covers state and local government services. Essentially The changes to the service animal provisions in Title III are the same as those in Title II. You may view the full text of the revised ADA regulations implementing both Title II and Title III at: http://www.ada.gov/regs2010/ADAregs2010.htm
The contents of this message are intended for general information purposes only and should not be construed as legal advice or legal opinion. If you have additional questions concerning the ADA and service animals, please call the DOJ's ADA Information Line at (800) 514-0301 or visit the ADA Web site at http://www.ada.gov
 

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