The Department of Justice (DOJ) issued updated regulations on service animals, which became effective on March 15, 2011. Under the ADA, a "service animal" is any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including physical, sensory, psychiatric, intellectual or other mental disability.  Only a dog can qualify as a "service animal," however the ADA also requires that reasonable accommodations be made to permit the use of a miniature horse by an individual with a disability so long as it has been "individually trained to do work or perform tasks for the benefit of the individual with a disability."  28 C.F.R. § 36.101.

The work or tasks performed by a service animal must directly relate to the handler's disability (for example, assisting individuals who are blind or have low vision with navigation or other tasks). However, the provision of emotional support, well-being, comfort or companionship is not the type of "work or tasks" considered in the ADA's definition of service animal. Those having a dog for companionship will not be considered a service animal.

According to DOJ regulations, an entity (such as businesses and schools) cannot require documentation that the animal is a service animal. Instead, entities may ask two questions: 1) whether an animal is required because of a disability, and 2) what task or work the animal has been trained to perform. They cannot otherwise ask about the nature or extent of an individual's disability, nor can they ask these questions when it is "readily apparent that an animal is trained to do work or tasks for an individual with a disability."  28 C.F.R. § 36.101.  However, courts have refused to find an ADA violation where the individual with the alleged service animal refuses to respond to legitimate inquiries. 

Entities must modify policies and practices to permit the use of a service animal by an individual with a disability in any area open to the general public unless the entity can demonstrate: 1) the modification would fundamentally alter the nature of the entity's goods, services, facilities, privileges, advantages or accommodations, 2)  the safe operation of the entity would be jeopardized, or 3) such modification would result in an undue financial or administrative burden. 

If an entity does not allow an individual with a disability to be accompanied by their service animals in an area open to the general public, an individual can seek injunctive relief such as adjusting a policy or providing an auxiliary aid or service under Title II or III of the ADA or under Section 504 of the Rehabilitation Act. Individuals have also brought complaints to the DOJ and through this course have had success in obtaining monetary relief. In certain situations, a claim may also be brought under the Fair Housing Act, the Rehabilitation Act of 1973, the Air Carrier Access Act, as well as state civil and criminal statutes and local anti-discrimination ordinances.

For additional information on the rights of individuals with service animals generally, see the following resources on the DOJ's website:

ADA Business Brief: Service Animals
Commonly Asked Questions About Service Animals in Places of Businesses

If you believe you have been discriminated against, please contact the Jeanne A. Carpenter Legal Defense Fund.

References:

Hughes D. Epilepsy patients paired with ‘seizure alert dogs’ in pilot program. Neurology Reviews. 1999. 35.

Strong V. Brown SW. Walker R. Seizure-alert dogs – fact or fiction? Seizure 1999;8:62-65).

Brown SW. Strong V. The use of seizure-alert dogs. Seizure 2001; 10:39-41.

Reep R. Seizure dogs. Presented at the National Conference of the Epilepsy Foundation, 1998. (unpublished). ©2011.

While this material is designed to provide accurate and current information on the subject matter involved, the Epilepsy Foundation and the authors cannot guarantee the accuracy or completeness of the information contained in this publication. This material is not a legal document and does not provide legal advice or opinion. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

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