[nagdu] Expected DOJRuling in Next Few Weeks

[Marion & Martin]

Dear All,
    Below is the expected new regulations concerning service animals. These regulations are expected to be approved by the Office of Management & Budget within the next few weeks. I am disappointed that the department chose to exclude miniature horses as service animals, as I know that we have two members successfully using them as guides.

Fraternally yours,
Marion Gwizdala 


1 
Service Animals 
and the Law 
Jacquie Brennan 
Attorney 
DBTAC Southwest ADA Center 
Americans with Disabilities Act 
 Title I -- Employment 
 Title II -- State and Local Governments 
 Title III -- Public Accommodations 
 Title IV -- Telecommunications 
 Title V -- Miscellaneous provisions. 
 Service and therapy animals are treated 
differently under different titles so we will 
look at each.
2 
What is a service animal? 
 Currently, the definition in the regulations is 
“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, 
including, but not limited to, guiding individuals 
with impaired vision, alerting individuals with 
impaired hearing to intruders or sounds, 
providing minimal protection or rescue work, 
pulling a wheelchair, or fetching dropped items.” 
Why is “currently” underlined? 
 Because the Department of Justice (DOJ) 
has issued new ADA regulations that are 
expected to be enacted within the next 
several weeks. 
 A lot of these new regs affect this 
information on service animals and other 
animals used by people with disabilities. 
3 
Why are there new regs? 
 DOJ receives a large number of 
complaints from people who use service 
animals that indicate that a large number 
of businesses and other covered entities 
are confused about their obligations when 
it comes to service animals. 
 There is also confusion about how service 
animal is defined and whether comfort 
animals are covered. 
Also 
 Some individuals who do not have a 
disability claim that their animals are 
service animals. 
 Other individuals, who may have a 
disability, claim, either fraudulently or 
sincerely (albeit mistakenly), that their 
animals are service animals even though 
they do not meet the definition.
4 
All Clear 
 DOJ hopes that the new regs will clear up 
some of the confusion, both on the part of 
businesses, as well as people with 
disabilities. 
More Tasks 
 Under the new regs, there are more tasks 
listed as examples, such as “assisting an 
individual during a seizure, retrieving 
medicine or the telephone, providing 
physical support to assist with balance and 
stability to individuals with mobility 
disabilities, and assisting individuals, 
including those with cognitive disabilities, 
with navigation.”
5 
Not a Service Animal 
 Under the new regs, the definition of service 
animal now includes a specific list of animals 
that are excluded, even if they are service 
animals under the current law. 
 These include wild animals, including nonhuman 
primates born in captivity, reptiles, rabbits, farm 
animals, including any breed of horse, pony, or 
miniature horse, pigs, goats, ferrets, 
amphibians, and rodents. 
What is a therapy animal? 
 Currently, there is no definition of a 
therapy, comfort, or emotional support 
animal in the ADA. 
 These animals are not covered by the ADA 
because they do not meet the definition of 
service animal. 
6 
Not Service Animals 
 When the new regs go into effect, the 
DOJ’s position on whether comfort animals 
are covered as service animals is: “animals 
who sole function is to provide emotional 
support, comfort, therapy, companionship, 
therpeutic benefits, or promote emotional 
well-being are not service animals.” 
Psychiatric Service Animals 
 Because of the ADA requirement that 
animals be able to “do work or perform 
tasks,” in most cases, animals that assist 
people with psychiatric disabilities were 
considered to be comfort animals and, 
therefore, not service animals. 
 The new regs recognize that there are 
“psychiatric service animals.”
7 
Tasks 
 The new regs discuss psychiatric service 
animals that can be trained to perform a 
variety of tasks for individuals with 
disabilities, including detecting the onset 
of psychiatric episodes or ameliorating 
their effects.
Other tasks 
 Other examples of tasks that might be 
performed by a psychiatric service animals 
include reminding a person to take meds, 
turning on lights or performing safety 
checks for persons with PTSD, interrupting 
self-mutilation for individuals who have 
dissociative identity disorders, and 
keeping disoriented persons from danger. 
8 
But 
 This expressly does not expand that 
definition of service animal to include 
comfort animals. 
Remember 
 In general, service animals have protections 
under the ADA, but comfort animals do not. 
 The new regs, however, do recognize that the 
exclusion of comfort animals is specifically for 
the non-employment provisions of the ADA and 
that such animals might be differently 
considered in employment settings, where there 
might be compelling reasons to allow comfort 
animals as a reasonable accommodation.
9 
What proof do you need? 
 A service animal is not required to wear a 
special collar or harness. 
 A service animal is not required to have 
papers certifying its training. 
 So if it isn’t obvious, how does a business 
know whether an animal is a service 
animal? 
What can people ask? 
 It is all right to ask the handler if the 
animal is a service animal required 
because of disability. 
 It is all right to ask whether the animal 
performs specific tasks for the person. 
 Disability-specific questions may not be 
asked.
10 
WalMart Settlement 
 In January 2009, the DOJ and Walmart 
reached an agreement about service 
animals in which Walmart agrees that a 
greeter or store manager may ask only 
one question, and that the question can 
be asked only if the need for the animal is 
not obvious. The question is -- “Is this a 
service animal required because of a 
disability?”
Out Of Control 
 Because of the nature of their work, it is 
unusual for a service animal to ever 
display any “out of control” behaviors. 
 Businesses may exclude an animal whose 
behavior poses a direct threat to the 
health or safety of others. 
 This must be based on actual risk and not 
on potential risk or generalizations. 
11 
What About Other People? 
 Sometimes other customers might be 
afraid of service animals. 
 If that happens, it might be possible to 
allow that customer to avoid getting close 
to the service animal. 
Fees or Pet Deposits 
 A business may not charge a deposit, 
surcharge, cleaning fee or any other fee to 
an individual with a disability as a 
condition to allowing the service animal to 
accompany the individual, even if the 
business has a policy of charging 
customers fees or deposits for pets. 
 Service animals are not pets.
12 
Smelly Dogs 
 Entities, especially schools, colleges, and 
universities, often have problems with 
service animals being unclean and 
downright stinky. 
 It is all right to have a policy that says 
that dogs must be clean and free from 
offensive odors. 
Proof of Vaccination 
 Although an entity may not require proof 
of training or any kind of certification for a 
service animal, it is all right to require 
proof that the animal is current on all 
vaccinations that are required by law.
13 
Title I -- employment 
 Service animals are allowed to accompany 
individuals with disabilities to their places 
of employment. 
 Comfort animals might be allowed under 
certain circumstances as a reasonable 
accommodation for a person with a 
disability. 
State and Local Governments 
 State and local governments may not 
prohibit service animals from programs or 
services of the government entity. 
 Surcharges or deposits may not be 
charged, even if they are charged for 
other animals, such as pets.
14 
Title III: Public Accommodations 
 Places of public accommodation, such as 
hotels, restaurants, bars, theaters, 
auditoriums, parks, stores, law offices, 
doctor offices, banks, bus stations, 
museums, amusement bars, salons, dry 
cleaners, spas, social service centers, golf 
courses, real estate offices, gyms, and 
coffee shops, may not exclude service 
animals from any area that is open to the 
public. 
Transportation 
 The ADA also applies to transportation 
providers. 
 If the provider is a government entity, (as 
is the case for subways, fixed route buses, 
paratransit, rail, and light rail), it is 
covered under Title II. 
 If the provider is a private entity offering 
taxi, car, or limo service, it is covered by 
Title III.
15 
Fair Housing Act 
 The FHA was passed in 1968 to provide 
protection from discrimination in housing, 
based on race, color, national origin, or 
gender. 
 In 1988, it was amended to expand 
protection from housing discrimination to 
other classes, including disability and 
familial status. 
What is prohibited 
 Landlords, condominium associations, and 
other housing providers are prohibited 
from discriminating against housing 
applicants or residents because of their 
disability or because of the disability of 
anyone associated with them, as well as 
from treating persons with disabilities less 
favorably than others because of their 
disability.
16 
Reasonable Accommodations 
 The FHA also mandates that housing 
providers make reasonable 
accommodations in rules, policies, 
practices, or services when necessary so 
that a person with a disability has the 
equal opportunity to use and enjoy the 
housing. 
 That is the key provision when discussing 
animals. 
Like the ADA 
 Everything we’ve discussed that pertains 
to service animals under the ADA also 
applies to service animals under the FHA. 
But - 
 While the ADA does not provide coverage 
for therapy animals, comfort animals, or 
pets, the Fair Housing Act may.
17 
Emotional Support Animals 
 Therapy animals are used as part of a 
medical treatment plan to provide 
companionship, relieve loneliness, and 
sometimes help with depression and 
certain phobias. They are not service 
animals because they do not do work or 
perform tasks that assist people with 
disabilities. 
“No Pets Allowed” 
 Under the FHA, such comfort or therapy 
animals may be allowed in housing, even 
if there is a “no pets” policy in place.
18 
Reasonable Accommodation 
 The FHA definition of housing 
discrimination includes the refusal to grant 
“reasonable accommodations in rules, 
polices, practices, or services, when such 
accommodations may be necessary to 
afford such person equal opportunity to 
use and enjoy a dwelling.” 
Waiver 
 Waiving a no-pets rule to allow a person 
with a disability to have the assistance of 
a service animal, or a comfort animal, 
constitutes a reasonable accommodation. 
 Courts have found that landlords must use 
“a flexible standard, based on the needs 
of the particular tenant” when responding 
to a request for an accommodation.
19 
Air Carrier Access Act 
 The ACAA prohibits discrimination because 
of disability in air travel. 
 It applies to all domestic airlines. 
 It also applies to foreign airlines that fly 
into or out of the U.S., although there are 
some differences that we will discuss. 
Service Animals 
Air carriers are required to allow service 
animals traveling with people with 
disabilities to sit with them in the cabin of 
the aircraft.
20 
Definition of Service Animal 
 Different definition than under the ADA 
 Includes guide dogs, signal dogs, 
psychiatric service animals, and emotional 
support animals 
Pets 
Persons traveling with pets, as opposed to 
service animals or emotional support 
animals, do not have any rights under the 
ACAA.
21 
Questions 
 Personnel may ask questions and request 
documentation in certain circumstances to 
determine whether the person is entitled 
to travel with a service animal. 
 A common misconception among 
passengers is that, once you invoke 
disability, questions are forbidden. 
 The types of question that may be asked 
vary depending the disability & the animal. 
Documentation 
 Additionally, documentation may be 
required. 
 The level of documentation that may be 
required depends on the person’s 
disability and the type of service animal.
22 
Why does it depend on that? 
 Shouldn’t all disabilities be treated the 
same? 
 The reasoning behind the variation 
includes: 
 Many people with disabilities who travel do 
not have obvious disabilities and the need for 
a service animal is not apparent; and 
 Even for some individuals with obvious 
disabilities, the need for the service animal 
may not be apparent. 
If the person has an 
obvious disability and… 
 The service animal is wearing a harness, 
tags, vests, or backpack; or 
 The person provides identification cards or 
other written documentation; or 
 The person provides credible verbal 
assurances that the animal is a service 
animal – 
Then the airline should permit the animal to 
accompany the person on the plane. 
23 
Additional Questions 
 If personnel are not certain of the animal’s 
status, even after being told that it is a 
service animal, they can ask things like: 
 What tasks or functions does your animal 
perform for you? 
 What has the animal been trained to do for 
you? 
 Would you describe how the animal performs 
this task or function for you? 
Emotional Support or 
Psychiatric Service Animals 
For these animals, airlines may request very 
specific diagnostic documentation to be 
provided 48 hours in advance of the flight.
24 
Documentation must: 
 Be current (not more than 1 year old); 
 Be on letterhead from a licensed mental 
health professional; 
 State that the person has a mental or 
emotional disability recognized in the DSM 
IV; and 
 State that the animal is needed as an 
accommodation for air travel or for activity 
at the individual’s destination. 
Also 
 The documentation should also state that 
the health professional is treating the 
individual and include the date and type of 
the mental health professional’s license 
and the state or other jurisdiction in which 
it was issued. 
 It does not need to state the person’s 
diagnosis.
25 
Unusual Animals 
 Unusual animals like miniature horses, 
pigs, and monkeys may be allowed to 
travel as service animals. 
 It depends on… 
Depends on what? 
 The airline may take into account the 
animal’s size, weight, and whether the 
animal would pose a direct threat to the 
health or safety of others, or cause a 
significant disruption in cabin service. 
 If there are restrictions on the animal at 
the final destination, the animal may be 
denied. 
26 
Even more unusual animals 
Snakes, other reptiles, ferrets, rodents, and 
spiders will be denied boarding the plane 
at all, as they may pose other safety and 
public health concerns. 
Dogs only 
 Foreign carriers are required to transport 
only dogs as service animals. 
27 
Barking and Jumping 
 If a service animal barks, growls, jumps 
on people, or misbehaves in ways that 
indicate that the animal has not been 
trained to behave properly in public 
settings, poses a direct threat to the 
health and safety of others, or poses a 
significant risk of disruption in airline 
service, it may be denied boarding. 
Other customers 
 Service animals cannot be denied passage 
because other customers are allergic to, 
annoyed by, or afraid of, animals. 
 The airline will make accommodations to 
assure that other passengers are 
comfortable. 
28 
Severe Allergies 
 If a passenger with a severe allergy that 
rises to the level of a disability cannot 
travel in the same cabin as the animal, a 
carrier may rebook one of the passengers 
on another flight. 
Preboarding 
Passengers with a service animal may 
request preboarding and ask for a 
bulkhead seat or a seat that better suits 
their needs.
29 
Seating 
 A person traveling with a service animal 
may request any seat unless it blocks an 
aisle or an area designated for emergency 
evacuation. 
 If the person cannot be accommodated in 
a requested seat, then s/he must be given 
the opportunity to move to another seat 
within the same class of service. 
Not Required 
 The airline does not have to ask other 
passengers to give up all or most of the 
space in front of their seats to 
accommodate space for a service animal. 
 The airline may try to find someone willing 
to do that.
30 
Voluntary Response 
The airline can voluntarily reseat a person 
traveling with a service animal to a 
business or first-class seat to 
accommodate a service animal, but it is 
not required to do so. 
In-flight services for animals 
 In-flight services and facilities do not have 
to be provided to service animals. 
 Owners traveling with animals must 
provide for the animal’s food, care, and 
supervision. 
31 
Terminal Relief 
In the terminal, airlines must provide animal 
relief areas and must provide escort 
service to individuals traveling with service 
animals to these areas, when requested. 
Undue Burden 
 Airlines are not required to make 
modifications for service animals that 
would constitute an undue burden or 
would fundamentally alter their programs.
32 
Questions 
Let’s talk now 
or 
Email me any time 
<mailto:jbrennan at bcm.edu> jbrennan at bcm.edu.



Sheila Styron
816-896-6552
sheilastyron at everestkc.net


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