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December&nbs=
p;5, 2011
The Use of Service Ani=
mals
by Persons with Disabilities
by Sarah A. Geddes
New regulations regarding the use of service animals
went into effect on March 15, 2011, for Title II agencies, t=
hat
is, state or local government agencies, as well as departments, a=
gencies,
special purpose districts, or other instrumentalities of a state =
or
local government. 28 CFR §&=
nbsp;35.104.
The new regulations define the term "service
animal" as "any dog that is individually trained to do =
work
or perform tasks for the benefit of an individual with a disabili=
ty,
including a physical, sensory, psychiatric, intellectual, or other
mental disability." The work or task must be "directly
related" to the individual's disability. Animals other than =
dogs
do not qualify as service animals under the new definition. 28 CFR § 35.104. (Separate rules provide for t=
he use
of miniature horses by persons with disabilities. 28 CFR § 35.136(i).)
The new regulations also contain a non-exhaustive li=
st
of "work" and "tasks" that service animals ma=
y be
individually trained to perform. These include retrieving items,
assisting an individual during a seizure, preventing or interrupt=
ing
impulsive or destructive behaviors in persons with psychiatric or
neurological disabilities, and more. Dogs that merely provide
emotional support or comfort do not qualify as a service animal.
34 CFR § 35.104.
Title II entities may only make one of two inquiries=
to
determine whether an animal qualifies as a service animal: (1)
whether the animal is required because of a disability; and (2) w=
hat
work or task the animal has been trained to perform. Where it is
readily apparent that the dog is trained to do work or perform ta=
sks
for a person with a disability, such as where a dog is observed
guiding a person who is blind, then these inquiries should not be
made. All other inquiries are not permitted, including the type of
training, whether the service animal is licensed or vaccinated, or
whether the service animal is housetrained. Nor may Title II enti=
ties
require any type of documentation of certification, training, or
licensing.
Service animals may be excluded in only one of two
instances: (1) the animal is out of control and the handler does =
not
take effective action to control it; or (2) the animal is not hou=
se
broken. In both cases, while the service animal may be excluded, =
the
individual with a disability must be permitted to participate wit=
hout
the service animal. Note that while these are permissible bases of
exclusion of a service animal, the Title II entity must not inqui=
re
regarding these two issues prior to permitting service animals. <=
o:p>
The service animal must be under the handler's contr=
ol,
meaning leashed, harnessed, or tethered. However, if the handler =
is
unable to use a leash, harness, or tether due to his or her disab=
ility,
or because it would interfere with the safe and effective perform=
ance
of work or tasks, then the service animal must otherwise be under=
the
handler's control through voice control, signals, or other effect=
ive
means. 28 CFR § 35.136(d).
If
you have any questions about service animals or other requirements
for accommodating persons with disabilities, contact your Clark H=
ill
attorney.
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