New ADA Service Animal Regulations Effective 03/15/2011

When the Title III Americans with Disabilities Act went into effect in 1991, the Justice Department defined a service animal as “any guide dog, signal dog, or other animal.” Because this definition was not specifically limited to canines, numerous people have since demanded access and accommodation with what they designated as service pigs, service cats, service monkeys, service parrots, and even service iguanas and wild animals – and this is not an all-inclusive list. The new definition is limited to dogs.

§ 36.104 Definitions.
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 handler´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.

There is one exception for miniature horses to be used as service animals, but the caveat here is that they can be removed (as can dogs) if not housebroken, actually trained for the service to be performed, 0r n0t under control.The Justice Department received considerable comment on these issues and the commentary makes for extremely interesting reading for those who wish to read through the section-by-section analysis to comments. Of particular importance was the discussion on breed-specific limitations for service dogs.  Read complete analysis.

Conversely, if an individual uses a breed of dog that is perceived to be aggressive because of breed reputation, stereotype, or the history or experience the observer may have with other dogs, but the dog is under the control of the individual with a disability and does not exhibit aggressive behavior, the public accommodation cannot exclude the individual or the animal from the place of public accommodation. The animal can only be removed if it engages in the behaviors mentioned in § 36.302(c) (as revised in the final rule) or if the presence of the animal constitutes a fundamental alteration to the nature of the goods, services, facilities, and activities of the place of public accommodation.” (emphasis added)

and the following on breed-specific limitations:

Breed limitations.
A few commenters suggested that certain breeds of dogs should not be allowed to be used as service animals. Some suggested that the Department should defer to local laws restricting the breeds of dogs that individuals who reside in a community may own. Other commenters opposed breed restrictions, stating that the breed of a dog does not determine its propensity for aggression and that aggressive and non-aggressive dogs exist in all breeds.

The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks. Such deference would have the effect of limiting the rights of persons with disabilities under the ADA who use certain service animals based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others. Breed restrictions differ significantly from jurisdiction to jurisdiction. Some jurisdictions have no breed restrictions. Others have restrictions that, while well-meaning, have the unintended effect of screening out the very breeds of dogs that have successfully served as service animals for decades without a history of the type of unprovoked aggression or attacks that would pose a direct threat, e.g., German Shepherds. Other jurisdictions prohibit animals over a certain weight, thereby restricting breeds without invoking an express breed ban. In addition, deference to breed restrictions contained in local laws would have the unacceptable consequence of restricting travel by an individual with a disability who uses a breed that is acceptable and poses no safety hazards in the individual´s home jurisdiction but is nonetheless banned by other jurisdictions. 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. (emphasis added)

In other words, those communities that ban any breed of dog cannot prohibit these breeds from being used as service animals, require additional licensing fees, or impose any other restrictions that inhibit the rights of the disabled person to travel freely and have open access to public accommodations.  Read ADA complete revised guidelines.

 

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3 Responses to New ADA Service Animal Regulations Effective 03/15/2011

  1. Karen Norton says:

    Where in this does regualtion put “leash” control for therapy and companion dogs? How exactly is “under the control of the handler” defined. For intance, I work with a guide dog; but have had two incidents in my office where a companion dog was aggressive with my service dog. The companion dog was ot on leash, not under the control of the handler and the handler defends the position that it is detrimental to her disability that the companion dog be on leash. So, who has rights in a situation such as this? Can a companion/therapy dog truly not have to be on leash when in office or public domain?

    • Victoria Pagán says:

      I am no expert per say, however, as a person with epilepsy I have had to look into things a time or two. I have recently had a similar situation. My neighbor’s dog was a companion/therapy animal and is an annoying and very aggressive Labrador and I own an APBT. This dog always lunges at my dog, while my dog just ignores her. When I confronted the neighbor her response was that my dog was provoking her and that as long as her dog is on a leash, then she has control so I looked it up. Being in control of your animal, not only means that it is tethered or on a leash, it also means the dog is not barking, growling, pulling, or ignoring visual or verbal commands from its’ handler. Also, companion/therapy dogs are not afforded the same conveniences of a trained assistance/service dog.

  2. John says:

    Karen,

    If you read the section that was bolded above that says
    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.

    That section should deal appropriately with a companion animal that is behaving aggressively. On a case-by-case basis if it can be shown or articulated that the animal isn’t behaving properly, it may be excluded. Of course it’s up to the property owner/manager/agent to exclude the animal and a lot of property owners fear lawsuits so they may not be willing to take action.

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