Update, February 25, 2017:

The U.S. Supreme Court on Wednesday ruled that the family of a Michigan girl with cerebral palsy can pursue a disabilities suit against her school for banning her service dog, in Fry v. Napoleon Community Schools.

Based on the lawsuit allegations, the family was not required to exhaust administrative remedies under the Individuals with Disabilities Education Act before suing.

The Ezra Eby Elementary School had banned the service dog, a goldendoodle named Wonder, in 2009, though it later relented. The school district had reasoned that Wonder didn’t need to help the girl, identified as E.F., because she already had a human aide. Wonder was trained to help E.F. retrieve dropped items, open and close doors, turn on and off lights, and take off her coat. E.F.’s pediatrician had recommended the dog stay with E.F. at all times to increase bonding.

The family’s suit against the school district suit relied on the Americans with Disabilities Act and the Rehabilitation Act, rather than the IDEA law.

Kagan said exhaustion wasn’t necessary because the substance of the suit wasn’t based on a denial of the IDEA law’s guarantee of a free appropriate education. She remanded the suit, however, for a determination whether the family had sought remedies under the IDEA law before filing the suit.

Service Animals and the ADA, summary

Section 36.302(c)(1) of the final ADA rule (see below) now provides that "[g]enerally, a public accommodation shall modify policies, practices, and procedures to permit the use of a service animal by an individual with a disability.'' This rule reflects the general intent of Congress that public accommodations take the necessary steps to accommodate service animals and to ensure that individuals with disabilities are not separated from their service animals. Congress intends that the broadest feasible access be provided to service animals in all places of public accommodation, including movie theaters, restaurants, hotels, retail stores, hospitals, and nursing homes ... In rare circumstances, accommodation of service animals may not be required because a fundamental alteration would result in the nature of the goods, services, facilities, privileges, or accommodations offered or provided, or the safe operation of the public accommodation would be jeopardized.

Note that Sec.36.302(c)(2) specifies that the rules do not require a public accommodation to supervise or care for any service animal. If a service animal must be separated from an individual with a disability in order to avoid a fundamental alteration or a threat to safety, it is the responsibility of the individual with the disability to arrange for the care and supervision of the animal during the period of separation.

Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, fetching dropped items, or individually trained to do something that qualifies as work or a task.

ADA law requires accommodation for service animals

(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.

(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.

(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.

(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.

(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.

Definition

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.

Relation to other laws, Emotional Support Animals

Emotional support animals that do not qualify as service animals under the Department’s title III regulations may still qualify as permitted reasonable accommodations for persons with disabilities under the Fair Housing Act and the Air Carrier Access Act. See, e.g., Overlook Mutual Homes, Inc. v. Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2009) ("the types of animals that can qualify as reasonable accommodations under the FHA include emotional support animals, which need not be individually trained"). Housing facilities must ensure that they apply the reasonable accommodation requirements of the FH Act when allowing a particular animal needed by a person with a disability into its housing and may not use the ADA definition to change its FH Act obligations. In addition, nothing in the ADA prevents a public accommodation subject to one statute from modifying its policies to give greater access to assist individuals with disabilities. For example, a fast food restaurant in an airport is, as a public accommodation, subject to ADA requirements, not to the ACAA requirements; yet an air carrier that flies out of the same airport must comply with the ACAA, but is not covered by the ADA. If a particular animal is a service animal for purposes of the ACAA and is thus allowed on an airplane, but is not a service animal for purposes of the ADA, nothing in the ADA prohibits an airport restaurant from allowing a ticketed passenger with a disability who is traveling with a service animal that meets the ACAA’s definition of a service animal to bring that animal into the facility even though under the ADA’s definition of service animal the animal lawfully could be excluded.

Air travelers who experience disability-related air travel service problems may call the hotline at 1-800-778-4838 (voice) or 1-800-455-9880 (TTY) to obtain assistance.

Psychiatric disorders

One service dog user stated that, in some cases, ‘‘critical forms of assistance can't be construed as physical tasks,'' noting that the manifestations of ‘‘brain-based disabilities,'' such as psychiatric disorders and autism, are as varied as their physical counterparts. The Department agrees with this statement but cautions that unless the animal is individually trained to do something that qualifies as work or a task, the animal is a pet or support animal and does not qualify for coverage as a service animal. A pet or support animal may be able to discern that the individual is in distress, but it is what the animal is trained to do in response to this awareness that distinguishes a service animal from an observant pet or support animal.

Tax deductions for service animals

For information about new tax treatment for service animals providing help for mental and neurological conditions, see

Service dogs.

IRS Circular 230 Disclosure

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