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2011 July 25 - 12:00 am

POV: Colleges Must Comply with New Federal Rules on Service Animals

Heather DeBlanc

The American Disabilities Act used to allow any animal to qualify as a “service animal” as long as it was trained to do a task for an individual with a disability. In the early 1990’s, when the Department of Justice originally issued its regulations, ADA did not define the parameters of acceptable animal species.

Over the last decade, there has been an increase in the number of unusual animals — such as pigs, snakes, iguanas, miniature horses and parrots — which have been promoted as service animals. There has also been a rise in the number of people who take advantage of these laws by claiming their pet is a service animal.

Effective March 15, 2011, new laws narrowed the definition of service animal to include only dogs and miniature horses. The definition specifically excludes all other species and clarifies that emotional support animals or pets are not service animals. The discernable quality of a service animal is that, when the handler is in distress or needs something, the animal is trained to respond. Where an animal’s mere presence provides comfort or support, it is not considered a service animal.

The laws covering service animals include ADA Titles II and III, Section 504 of the Rehabilitation Act, the Fair Housing Act and California Civil Code Section 54.

ADA Title II applies to state and local governmental entities, including community colleges. ADA Title III applies to businesses and nonprofit entities that are “public accommodations,” and private entities that offer examinations and courses related to educational and occupational certification. Therefore, community colleges must also comply with ADA Title III.

ADA Titles II and III, which prevent discrimination based on disability, require community colleges to modify policies, practices and procedures to permit use of service animals to accommodate individuals with disabilities. Under the ADA and the Rehabilitation Act, for purposes other than housing, the new definition of service animal is “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. . .” The regulations also carve out an exception for miniature horses as service animals if they meet certain assessment factors.

A community college, in determining whether reasonable modifications in policies, practices, or procedures are needed to allow a miniature horse into a facility may consider: 1) the type, size and weight of the miniature horse and whether the facility can accommodate an animal with these features; 2) whether the handler has sufficient control over the miniature horse; 3) whether the miniature horse is housebroken; and 4) whether the miniature horses presence compromises safety requirements.

California law only references dogs and no other species. Because federal laws impose additional requirements, a college’s policies and procedures should comply with the federal requirements.

A public agency can have a service animal removed from the premises if it is out of control and the handler does not take control, or if the animal is not housebroken. Also, the agency may not ask about the nature or extent of a disability, but may make two inquiries: 1) whether the animal is required because of a disability or 2) what work or task the animal is trained to perform.

The agency should not make these inquiries when it is readily apparent that the animal is trained to perform tasks for an individual with a disability. However, a college or other entity may not ask for documentation or proof of certification to prove the animal is a service animal (none is required) and cannot impose a surcharge because of the animal’s presence.

The standards for on-campus housing at a college or university are different. The U.S. Department of Housing and Urban Development has interpreted the FHA to require accommodation of “assistance animals.” Assistance animals include “species other than dogs, with or without training, and animals that provide emotional support.” The animal may not be permitted under certain circumstances, such as a threat to health and safety, the potential for property damage or poses unreasonable burdens.

Community colleges should update their policies and procedures to ensure compliance with the new accommodation requirements.

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Q: Are unusual service animals an issue on your campus?
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Heather DeBlanc (hdeblanc@lcwlegal.com) is an associate withthe Los Angeles office of Liebert Cassidy Whitmore, a full-service education
(including business and facilities), labor and employment law firm representing California community colleges in areas including litigation, negotiation and investigations.

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