[Nfbf-l] Fw: ADA Revises Definition of Service Animal

[Carlos J MontasAS]

----- Original Message ----- 
From: "The Seeing Eye, Inc." <advocacy at seeingeye.org>
To: "" <carlos.montas at gmail.com>
Sent: Tuesday, March 15, 2011 2:54 PM
Subject: ADA Revises Definition of Service Animal


As a service to our graduates, The Seeing Eye Advocacy Team has compiled 
selected information on 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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