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You're listening to the Disability Law Lowdown Podcast, show number 60.

Jacquie Brennan: Hi, this is Jacquie Brennan. Today’s podcast show is about the new regulations that cover service animals under the ADA. The Americans with Disabilities Act was passed in 1990 and it was amended in 2008. It was the first comprehensive civil rights legislation for individuals with disabilities. Its five titles, as you probably know, cover employment, state and local government, public accommodations, telecommunications and miscellaneous provisions including the recovery of attorney fees and a prohibition on retaliation. The Department of Justice issued new implementing regulations in 2010. The definition of "service animal" changed in these new regulations from the Department of Justice and I want to emphasize here that we are talking only about the ADA regulations now. There are some other laws that use a broader definition and in those laws like the Air Carrier Access Act and the Fair Housing Act, those definitions haven’t changed. But for the ADA, we have a new definition and it won’t take you long to probably hear the main difference in this definition. 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. So the word that maybe jumped out at you there is that service animal now means any dog and we are going to talk more about that. But the definition in the new regulations from the Department of Justice goes on to say other species of animals whether wild or domestic, trained or untrained, are not service animals to the purposes of the ADA.

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 or 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 or neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effect 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. So comfort animals, emotional support animals, or therapy animals, these animals go by different names, but for purposes of this discussion I am going to call them comfort animals and I am including all of those labels in there. These animals are not service animals and they are not covered by the ADA.

Now really, this has always been the case. From the beginning, it was pretty clear that comfort animals did not really meet the definition of service animals, but in the ADA and in the regulations comfort animals weren’t mentioned at all one way or the other. So now the regulations spell it out. Comfort animals are not covered because they are not service animals, but, there are psychiatric service dogs. The regs go into details about the differences between psychiatric service dogs and comfort animals. Psychiatric service dogs can be trained to perform a variety of tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and to ameliorate their effects. An ameliorate just means, you know, to help, to do something positive for the effects of the psychiatric episode. So tasks performed by psychiatric service animals may include reminding the individual to take medicine, providing safety checks or room searches for persons with PTSD, interrupting self-mutilation or removing disoriented individuals from dangerous situations. The difference between a comfort animal and a psychiatric service animal is the work or the tasks that the animal performs. The regulations discuss service animals in great detail. I am going to go over the high points here. Now, when I say "entity", and I am going to say "entity" a whole lot because I am including entities that are covered by Title II so that’s basically all state and local government entities. And I am also including Title III entities which are all places of public accommodation. These are things like hotels, banks, spas, salons, gyms, theatres, arenas, stadiums, museums, stores, professional offices, and lots of other places like that. Basically anywhere where the public can go. So that’s what I am talking about when I am talking about an entity. And generally an entity, see I am already using that word, has to allow a service animal to accompany the person with a disability and or modify its policies, practices or procedures to permit the use of a service animal by an individual with a disability. There are some exceptions. It’s alright to ask the individual with a disability to remove his service animal from the premises if the animal is out of control and the individual does not take effective action to control it or the animal is not house broken. The regulations go on to say what they mean by the animal being out of control. They mean that the animal must be under the individual’s control. It must have a harness, a leash or some other tether. Unless the individual is unable to use one of those because of the disability and if that’s the case then the animal still has to be under some kind of control like voice control or signals.

Now if an animal is properly excluded because the animal is out of control or is not house broken then the entity has to give the individual with a disability the opportunity to participate in this service program or activity or any other place of public accommodation without having the service animal on the premises. The entity is of course not responsible for the care or supervision of a service animal and that hasn’t changed since the older regulations. So what questions can an entity ask about an animal? Well, the entity cannot lawfully ask about the nature or extent of a person’s disability, but, there are two questions that can be asked to determine whether an animal qualifies as a service animal. The entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. An entity shall not require documentation such as proof that the animal has been certified, trained or licensed as a service animal and the entity can’t even ask those two allowable questions if it’s readily apparent that an animal is trained to do work or perform task for an individual with a disability. Like if the dog is seen guiding an individual who is blind or has low vision or pulling a person’s wheel chair or providing assistance with stability or balance to an individual with an observable mobility disability. So individuals with disabilities must be permitted to be accompanied by their service animals in all areas of an entity’s facilities where members of the public or participants in services programs or activities are allowed to go.

An entity cannot 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. A service animal is not a pet. So if an entity normally charges individuals for damage they cause, though, an individual with a disability may also be charged for any damage that’s caused by his or her service animal.

Now I know that there are some people who are listening to this who are probably getting a little worried that I am not going to mention this next part because I emphasized earlier that only dogs can be service animals under the definition and that is true. The definition says that a service animal is a dog and it doesn’t mention other animals, but, later in the regulations it does go into one exception and that is for miniature horses. An entity shall provide access or 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. But there are additional assessments factors for miniature horses. To determine whether to allow a miniature horse into a specific facility, the entity must consider the size, the type and the weight of the miniature horse and whether the facility can accommodate those features. It can consider whether the individual has sufficient control over their miniature horse, whether their miniature horse is house broken and whether their miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation. So there are a few more conditions on miniature horses, but there is a provision that allows them access as service animals even though the actual definition just says dogs.

So the big changes in terms of service animals in the new regs involve the definition changes excluding animals except dogs and in some individual circumstances those miniature horses and including the limited questions that can be asked, it includes now a discussion of comfort animals which were not covered and it clarifies that there are psychiatric service animals. The Department of Justice really hopes that the new regulations will clear up a lot of confusion around the topic of service animals and if you have any questions of course you can call your ADA center at 1-800-949-4232. Thanks for tuning in.

The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers, which are a network of ADA centers that provide training, technical assistance and materials on the ADA and other disability-related laws. Funding for the centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research. Visit our website, DisabilityLawLowdown.com to listen to past shows or read the transcript of this and past shows. You can also subscribe to the Disability Law Lowdown at our web site or on iTunes.



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.