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

Fri Sep 23 09:48:01 EDT 2011

Hi everyone.

I mentioned yesterday that I wasn't sure if the new regulations for service 
animals included the miniature horses, and would check on it for 
clarification.  As it turns out, I found out they are definitely part of the 
new regulations that came out in March.

At one time, the DOT was considering excluding them, but for whatever 
reason, did not. So, if anyone decides to get one of these cute,  little 
horses, go for it!!

----- Original Message ----- 
From: "Easy Talk" <easytalk at earthlink.net>
To: <fcb-l at acb.org>
Sent: Thursday, September 22, 2011 11:10 AM
Subject: Re: [fcb-l] Fw: ADA Revises Definition of Service Animal

> Thanks Pat for clearing this up.  Unfortunately as long as it is this way, 
> there will always be people who will use untrained animals.
> Give someone  a license to steel and they will.
>
> Notice under number 6 it says generally, and never says anything about non 
> general, wonder how much fun a lawyer could have with that?
> Robert
>
>
> ----- Original Message ----- 
> From: "Patricia A. Lipovsky" <plipovsky at cfl.rr.com>
> To: <fcb-l at acb.org>
> Sent: Thursday, September 22, 2011 10:53 AM
> Subject: [fcb-l] Fw: ADA Revises Definition of Service Animal
>
>
>> FYI
>>
>> I started to send just the section that deals with documentation, but
>> decided to send the whole thing to clear up any other questions 
>> pertaining
>> to service animals.  Its a little lengthy, but #6 addresses the question
>> pertaining to documentation.
>>
>>
>> ----- Original Message ----- 
>> From: "The Seeing Eye, Inc." <advocacy at seeingeye.org>
>> To: "Patricia Lipovsky" <plipovsky at cfl.rr.com>
>> 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
>>
>>
>>
>>
>> This message was sent to plipovsky at cfl.rr.com by advocacy at seeingeye.org
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