28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) (published 2008)

5. Amend 28 CFR part 35 by adding § 35.136 to read as follows:

(a) General.  Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability, unless the public entity can demonstrate that the use of a service animal would fundamentally alter the public entity's service, program, or activity.

(b) Exceptions.  A public entity may ask an individual with a disability to remove a service animal from the premises if:

(1) The animal is out of control and the animal's handler does not take effective action to control it;

(2) The animal is not housebroken or the animal's presence or behavior fundamentally alters the nature of the service the public entity provides; or

(3) The animal poses a direct threat to the health or safety of others that cannot be eliminated by reasonable modifications.

(c) If an animal is properly excluded. If a public entity properly excludes a service animal, it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.

(d) General requirements.  The work or tasks performed by a service animal shall be directly related to the handler's disability.  A service animal that accompanies an individual with a disability into a facility of a public entity shall be individually trained to do work or perform a task, housebroken, and under the control of its handler.  A service animal shall have a harness, leash, or other tether.

(e) Care or supervision of service animals. A public entity is not responsible for caring for or supervising a service animal.

(f) Inquiries.  A public entity shall not ask about the nature or extent of a person's disability, but can determine whether an animal qualifies as a service animal.  For example, a public entity 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 entity shall not require documentation, such as proof that the animal has been certified or licensed as a service animal.

(g) Access to areas open to the public, program participants, and invitees.  Individuals with disabilities who are accompanied by service animals may access all areas of a public entity's facility where members of the public, program participants and invitees are allowed to go, unless the public entity can demonstrate that individuals accompanied by service animals would fundamentally alter the public entity's service, program, or activity.

(h) Fees or surcharges.  A public entity shall not ask or require an individual with a disability to post a deposit, pay a fee or surcharge, or comply with other requirements not generally applicable to other citizens as a condition of permitting a service animal to accompany its handler in a public entity's facility, even if people accompanied by pets are required to do so.  If a public entity normally charges its citizens for damage that they cause, a citizen with a disability may be charged for damage caused by his or her service animal.