Ahead of the ADA Access Curve: Part 5

This article originally published in The Alert, January 2011, electronic newsletter of the Association on Higher Education and Disabilities (AHEAD) Copyright © 2004-2010 AHEAD. Reprinted with permission.

The Ides of March are upon us:

Are you complying with DOJ’s new regulations about service animals?

You probably know that the Department of Justice (DOJ) issued its updated ADA regulations in September 2010. But did you know that they will be effective in about a month — on March 15, 2011? (The new accessibility standards become binding a year later.) The regulations apply to state and local governments (including state universities and community colleges), which must follow the regulations for title II of the Act, and public accommodations (including private colleges and universities and proprietary schools), which are subject to title III.

So what specifically should your college or university do by March 15? While this article won’t cover all the policy-related changes in the regulations (see a summary in the Alert article from October 2010), it will focus on one area that may cause some confusion: service animals.

The only service animals that you must admit under the ADA are dogs. While DOJ asked in the proposed rules whether it should include other animals as service animals, in the end it kept this limitation. Of course, you can allow other types, and in fact you may be required to do so in residence halls under the Fair Housing Act Amendments or section 504.

Guide any policy revisions by these other principles in the new rules:

1. Service dogs aren’t just guide dogs that assist individuals who are blind. A service animal is any guide dog, signal dog, or other dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including people with sensory, psychiatric, intellectual, or other mental disabilities.

2. Among the types of work they can do, service animals can pull a wheelchair, provide physical stability or balance for people with mobility disabilities, alert individuals who are deaf or hard of hearing to another person’s presence or sounds, provide non-violent protection or rescue work, retrieve items such as medicine or telephones, alert people with epilepsy and other disorders to an oncoming seizure, alert individuals to the presence of allergens, and help persons with psychiatric or neurological disabilities by preventing or interrupting impulsive or destructive behaviors.

3. If the only purpose of an animal’s assistance is emotional support, comfort, or companionship, it is not a “service animal” for purposes of the ADA. (You may need to allow the animal as a reasonable modification in a residence hall or other housing. See the discussion later in this article.) However, you are free to allow support animals, and there may be state or local laws that allow a wider variety of animals to accompany individuals with disabilities, with fewer restrictions on the types of animals and the purposes they serve.

4. Be careful about “documentation.” You may ask only two questions about an animal that someone wants to bring into a building other than a residence hall or housing: (1) Is the animal required because of a disability? and (2) What work or tasks is the animal trained to perform?

You cannot ask questions about the person’s disability. For example, if a person says that a service dog alerts the individual to a seizure and makes sure the person gets to a safe place, you cannot ask, “Do you have epilepsy?” or “What causes your seizures?” If the responses reveal that an animal has been trained to provide assistance to a person with a disability, that person should be able to access all services and facilities while accompanied by the service animal. You should not ask the two permitted questions if the answers are readily apparent.

What DOJ doesn’t say is what you should or can do if the answers don’t reveal the connection between the disability and the task, and this may bring the toughest challenges. The best recommendation is to use good judgment and to have a “go-to” person who makes decisions if a front-line staff person has a question about whether to admit an animal. That go-to person should be informed about the regulations and your policies and be the one who makes a final decision.

5. The owner/handler of the animal is responsible for controlling and caring for the animal. A service animal should have a harness, leash, or other tether, unless the handler’s disability or the nature of the task performed would prevent using one, in which case the animal must be under the handler’s control through voice control or other means. You may ask an individual to remove a service animal from your building if the handler is not controlling the animal, it is not housebroken, its presence fundamentally alters the nature of your service, or it poses a direct threat to the health or safety of others that cannot be eliminated by reasonable modifications.

6. Service animals do not need certification, identification cards or licenses, special equipment such as vests, or professional training.

In residence halls or other housing, you may need to allow other types of animals, and may ask more intrusive questions.

The Fair Housing Act (FHA) and section 504 of the Rehabilitation Act of 1973, which will generally apply to residence halls and other housing such as faculty or graduate apartments, protect the right of people with disabilities to keep emotional support animals in those settings, as a reasonable accommodation. The tenant can be required to have a letter or prescription from an appropriate professional, such as a therapist or physician, establishing that the support animal is necessary for the tenant to use and enjoy the residence. The individual must demonstrate a relationship between his or her ability to function and the companionship or support of the animal.

And what about miniature horses?

It’s not likely to happen — because there are relatively few miniature horses in the country that assist people with disabilities — but it is possible that someone will come into one of your buildings with a miniature horse, and you should know what to do. Miniature horses have longer life spans than dogs and can be viable alternatives to dogs for people with allergies or whose religious beliefs preclude the use of dogs. The new regulations don’t consider a miniature horse to be a service animal but say that a miniature horse must sometimes be admitted – when it has been individually trained to perform tasks for an individual with a disability and its admission is otherwise reasonable under the circumstances. Factors to be considered when deciding whether admitting a miniature horse is reasonable include the horse’s type, size, and weight; the handler’s control of it; whether it is housebroken; and whether it compromises safety.

Some of the questions about animals may be complex and require assistance from legal counsel. There is more explanation of the service animal provisions of the title III regulations (found in section 36.302(c)) in the DOJ analysis of the 2010 revisions, at http://edocket.access.gpo.gov/2010/2010-21824.htm and http://edocket.access.gpo.gov/2010/pdf/2010-21824.pdf. For more about section 504, see “http://www.justice.gov/crt/housing/jointstatement_ra.php.

In the next article, we’ll turn to some of the other policy-related requirements of the new regulations, including those about Segways and other mobility devices, Video Remote Interpreting, and telephone communication.