[nagdu] ADA Revises Definition of Service Animal

[Ginger Kutsch]

FYI. Marion asked that I share this message that was sent out to
Seeing Eye graduates with the NAGDU list.   

-----Original Message-----
From: The Seeing Eye, Inc.
[mailto:advocacy_seeingeye.org at bmsend.com] On Behalf Of The
Seeing Eye, Inc.
Sent: Tuesday, March 15, 2011 3:55 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

Ginger Kutsch
Morristown, NJ