IAADP
International Association of
Assistance Dog Partners


Excerpts from ADA Notice of Proposed Rulemaking

New Proposed Service Animal Definition

PART 36-NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES Subpart A-General††

PROPOSED DEFINITION

Service animal means any dog or other common domestic animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing minimal protection or rescue work, pulling a wheelchair, fetching items, assisting an individual during a seizure, retrieving medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and assisting individuals, including those with cognitive disabilities, with navigation.† The term service animal includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities.† The term service animal does not include wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, miniature horse, pony, pig, or goat), ferrets, amphibians, and rodents.† Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or to promote emotional well-being are not service animals.

Service animals.

The Department wishes to clarify the obligations of public accommodations to accommodate individuals with disabilities who use service animals.† The Department continues to receive a large number of complaints from individuals with service animals.† It appears that many covered entities are confused regarding their obligations under the ADA with regard to individuals with disabilities who use service animals.† At the same time, some individuals with impairments--who would not be covered as individuals with disabilities--are claiming that their animals are legitimate service animals, whether fraudulently or sincerely (albeit mistakenly), to gain access to hotels, restaurants, and other places of public accommodation.† Another trend is the use of wild, exotic, or unusual species, many of which are untrained, as service animals.† The Department is proposing amendments to its regulation on service animals in the hope of mitigating the apparent confusion.

Minimal protection.

††††††††††† In the Departmentís ADA Business Brief on Service Animals, which was published in 2002, the Department interpreted the minimal protection language within the context of a seizure (i.e., alerting and protecting a person who is having a seizure).† Although the Department received comments urging it to eliminate the minimal protection language, the Department continues to believe that it should retain the "providing minimal protection" language and interpret the language to exclude so-called "attack dogs" that pose a direct threat to others.

Guidance on permissible service animals.

In the original regulation implementing title III, "service animal" was defined as "any guide dog, signal dog, or other animal," and the Department believed, at the time, that leaving the species selection up to the discretion of the person with a disability was the best course of action.† Due to the proliferation of animals used by individuals, including wild animals, the Department believes that this area needs some parameters.† Therefore, the Department is proposing to eliminate certain species from coverage even if the other elements of the definition are satisfied.

Comfort animals vs. psychiatric service animals.

Under the Departmentís present regulatory language, some individuals and entities have assumed that the requirement that service animals must be individually trained to do work or perform tasks excluded all individuals with mental disabilities from having service animals. Others have assumed that any person with a psychiatric condition whose pet provided comfort to them was covered by the ADA.† The Department believes that psychiatric service animals that are trained to do work or perform a task (e.g., reminding its owner to take medicine) for individuals whose disability is covered by the ADA are protected by the Departmentís present regulatory approach.

Psychiatric service animals can be trained to perform a variety of tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and ameliorate their effects.† Tasks performed by psychiatric service animals may include reminding the handler to take medicine; providing safety checks, or room searches, or turning on lights for persons with Post Traumatic Stress Disorder; interrupting self-mutilation by persons with dissociative identity disorders; and keeping disoriented individuals from danger.

The Department is proposing new regulatory text in ß 36.104 to formalize its position on emotional support/comfort animals, which is that "[a]nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals."† The Department wishes to state, however, that the exclusion of emotional support animals from ADA coverage does not mean that individuals with psychiatric, cognitive, or mental disabilities cannot use service animals.† The Department proposes specific regulatory text in ß 36.104 to make this clear:† "The term service animal includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities."† This language simply clarifies the Departmentís longstanding position and is not a new position.

The Departmentís rule is based on the assumption that the title II and title III regulations govern a wider range of public settings than the settings that allow for emotional support animals.† The Department recognizes, however, that there are situations not governed exclusively by the title II and title III regulations, particularly in the context of residential settings and employment, where there may be compelling reasons to permit the use of animals whose presence provides emotional support to a person with a disability.† Accordingly, other federal agency regulations governing those situations may appropriately provide for increased access for animals other than service animals.

Modification in policies, practices, or procedures.

The preamble to ß 36.302 of the current title III regulation states that the regulatory language was intended to provide the "broadest feasible access" to individuals with service animals while acknowledging that, in rare circumstances, accommodating service animals may not be required if it would result in a fundamental alteration of the nature of the goods or services the public accommodation provides or the safe operation of the public accommodation.† 56 FR 35544, 35565 (July 26, 1991).† In order to clarify this provision, the Department is incorporating into the proposed regulation guidance that it has provided previously through technical assistance.

Proposed training standards.

The Department has always required that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability, but has never imposed any type of formal training requirements or certification process.† While some groups have urged the Department to modify this position, the Department does not believe such a modification would serve the array of individuals with disabilities who use service animals.

Detailed regulatory text changes and the Departmentís response to public comments on these issues and others are discussed below in the definition section, ß 36.104, and the section on modifications in policies, practices, and procedures, ß 36.302(c). †

Section 36.302 Modifications in policies, practices, or procedures

Section 36.302(c) Service animals

The Departmentís regulation now states that "[g]enerally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability."† 28 CFR 36.302(c)(1).† In general, the Department is proposing to retain the scope of the current regulation while clarifying its longstanding policies and interpretations.

The Department is proposing to revise ß 36.302(c) by adding the following sections as exceptions to the general rule on access.† Proposed ß 36.302 would:

  1. Expressly incorporate the Departmentís policy interpretations as outlined in published technical assistance Commonly Asked Questions about Service Animals (1996) (http://www.ada.gov/qasrvc.htm) and ADA Business Brief: Service Animals (2002) (http://www.ada.gov/svcanimb.htm) and add that a public accommodation 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 animalís owner does not take effective action to control it; (2) the animal is not housebroken or the animalís presence or behavior fundamentally alters the nature of the service the public accommodation provides (e.g., repeated barking during a live performance); or (3) the animal poses a direct threat to the health or safety of others that cannot be eliminated by reasonable modifications;

  2. Add that if a place of public accommodation properly excludes a service animal, the public accommodation must give the individual with a disability the opportunity to obtain goods, services, or accommodations without having the service animal on the premises;

  3. Add requirements that the work or tasks performed by a service animal must be directly related to the handlerís disability; that a service animal that accompanies an individual with a disability into a place of public accommodation must be individually trained to do work or perform a task, be housebroken, and be under the control of its owner; and that a service animal must have a harness, leash, or other tether;

  4. Modify the language in ß 36.302(c)(2), which currently states, "[n]othing in this part requires a public accommodation to supervise or care for a service animal," to read, "[a] public accommodation is not responsible for caring for or supervising a service animal," and relocate this provision to proposed ß 36.302(c)(5).† (This proposed language does not require that the person with a disability care for his or her service animal if care can be provided by a family member, friend, attendant, volunteer, or anyone acting on behalf of the person with a disability.);

  5. Expressly incorporate the Departmentís policy interpretations as outlined in published technical assistance Commonly Asked Questions about Service Animals (1996)† (http://www.ada.gov/qasrvc.htm) and ADA Business Brief: Service Animals (2002)† (http://www.ada.gov/svcanimb.htm) that a public accommodation must not ask about the nature or extent of a personís disability, nor require proof of service animal certification or licensing, but that a public accommodation may ask:† (i) if the animal is required because of a disability; and (ii) what work or tasks the animal has been trained to perform;

  6. Add that individuals with disabilities who are accompanied by service animals may access all areas of a public accommodation where members of the public are allowed to go; and

  7. Expressly incorporate the Departmentís policy interpretations as outlined in published technical assistance Commonly Asked Questions about Service Animals (1996)† (http://www.ada.gov/qasrvc.htm) and ADA Business Brief: Service Animals (2002)† (http://www.ada.gov/svcanimb.htm) and add that a public accommodation must not require an individual with a disability to pay a fee or surcharge, post a deposit, or comply with requirements not generally applicable to other patrons as a condition of permitting a service animal to accompany its handler in a place of public accommodation, even if such deposits are required for pets, and that if a public accommodation normally charges its clients or customers for damage that they cause, a customer with a disability may be charged for damage caused by his or her service animal.
These changes will respond to the following concerns raised by individuals and organizations that commented in response to the ANPRM.† †

Proposed behavior or training standards.

Some commenters proposed behavior or training standards for the Department to adopt in its revised regulation, not only to remain in keeping with the requirement for individual training, but also on the basis that without training standards the public has no way to differentiate between untrained pets and service animals.† Because of the variety of individual training that a service animal can receive--from formal licensing at an academy to individual training on how to respond to the onset of medical conditions, such as seizures--the Department is not inclined to establish a standard that all service animals must meet.† While the Department does not plan to change the current policy of no formal training or certification requirements, some of the behavioral standards that it has proposed actually relate to suitability for public access, such as being housebroken and under the control of its handler.

Hospital and healthcare settings.

Public accommodations, including hospitals, must modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.† 28 CFR 36.302(c)(1).† The exception to this requirement is if making the modification would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.† Id. at 36.302(a).† The Department generally follows the guidance of the Centers for Disease Control and Prevention (CDC) on the use of service animals in a hospital setting. As required by the ADA, a healthcare facility must permit a person with a disability to be accompanied by his or her service animal in all areas of the facility in which that person would otherwise be allowed, with some exceptions.† Zoonotic diseases can be transmitted to humans through trauma (bites, scratches, direct contact, arthropod vectors, or aerosols).† Although there is no evidence that most service animals pose a significant risk of transmitting infectious agents to humans, animals can serve as a reservoir for a significant number of diseases that could potentially be transmitted to humans in the healthcare setting.† A service animal may accompany its owner to such areas as admissions and discharge offices, the emergency room, inpatient and outpatient rooms, examining and diagnostic rooms, clinics, rehabilitation therapy areas, the cafeteria and vending areas, the pharmacy, rest rooms, and all other areas of the facility where visitors are permitted, except those listed below. Under the ADA, the only circumstances under which a person with a disability may not be entitled to be accompanied by his or her service animal are those rare circumstances in which it has been determined that the animal poses a direct threat to the health or safety of others.† A direct threat is defined as a significant risk to the health or safety of others that cannot be eliminated or mitigated by a modification of polices, practices, or procedures.† Based on CDC guidance, it is generally appropriate to exclude a service animal from areas that require a protected environment, including operating rooms, holding and recovery areas, labor and delivery suites, newborn intensive care nurseries, and sterile processing departments.† See Centers for Disease Control, Guidelines for Environmental Infection Control in Health-Care Facilities:† Recommendations of CDC and the Healthcare Infection Control Practices Advisory Committee (June 2003), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5210a1.htm.

NOTE from Joan about this†separate section:

QUESTIONS The DOJ is asking the public to comment on, will follow the explanations given.

"Service animal"

The Department is proposing to amend the definition of "service animal" in ß 36.104 of the current regulation, which is defined as, "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, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items."† Proposed ß 36.104 would:
  1. Remove "guide" or "signal" as descriptions of types of service dogs and add "other common domestic" animal to the Departmentís current definition;

  2. Remove "individuals with impaired vision" and replace it with "individuals who are blind or have low vision";

  3. Change "individuals with hearing impairments" to "individuals who are deaf or hard of hearing";

  4. Replace the term "intruders" with the phrase "the presence of people" in the section on alerting individuals who are deaf or hard of hearing;

  5. Add the following to the list of work and task examples:† assisting an individual during a seizure, retrieving medicine or the telephone, providing physical support to assist with balance and stability to individuals with mobility disabilities, and assisting individuals, including those with cognitive disabilities, with navigation;

  6. Add that "service animal" includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, or mental disabilities;

  7. Add that "service animal" does not include wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, and goats), ferrets, amphibians, and rodents; and††††††††††††††††††

  8. Add that animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not "service animals."
The Department is proposing these changes in response to concerns expressed by commenters who responded to the Departmentís ANPRM.† Issues raised by the commenters include:

"Minimal protection."

There were many comments by service dog users urging the Department to remove from the definition "providing minimal protection."† The commenters set forth the following reasons:† (1) the current phrase can be interpreted to allow "protection dogs" that are trained to be aggressive and to provide protection to be covered under the ADA, so long as they are paired with a person with a disability; and (2) since some view the minimal protection language to mean that a dogís very presence can act as a crime deterrent, the language allows any untrained pet dog to provide this minimal protection by its mere presence.† These interpretations were not contemplated by the ADA or the title III regulation.

In the Departmentís ADA Business Brief on Service Animals, which was published in 2002, the Department interpreted the minimal protection language within the context of a seizure (i.e., alerting and protecting a person who is having a seizure).† Despite the Departmentís best efforts, the minimal protection language appears to have been misinterpreted.† Nonetheless, the Department continues to believe that it should retain the "providing minimal protection" language and interpret the language to exclude so-called "attack dogs" that pose a direct threat to others.

Question 9:† Should the Department clarify the phrase "providing minimal protection" in the definition or remove it?

"Alerting to intruders."

Some commenters argued that the phrase "alerting to intruders" in the current text has been misinterpreted by some people to apply to a special line of protection dogs that are trained to be aggressive.† People have asserted, incorrectly, that use of such animals is protected under the ADA. The Department reiterates that public accommodations are not required to admit any animal that poses a direct threat to the health or safety of others.† The Department has proposed removing "intruders" and replacing it with "the presence of people."

"Task" emphasis.†

Many commenters followed the lead of an umbrella service dog organization in suggesting that "performing tasks" should form the basis of the service animal definition, that "do work" should be eliminated from the definition, and that "physical" should be added to describe tasks.† Tasks by their nature are physical, so the Department does not believe that such a change is warranted. In contrast, the phrase "do work" is slightly broader than "perform tasks," and adds meaning to the definition.† For example, a psychiatric service dog can help some individuals with dissociative identity disorder to remain grounded in time or place.† As one service dog user stated, in some cases "critical forms of assistance canít 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. †One commenter stated that the current definition works for everyone (i.e., those with physical and mental disabilities) and urged the Department to keep it.† The Department has evaluated this issue and believes that the crux of the current definition (individual training to do work or perform tasks) is inclusive of the varied services provided by working animals on behalf of individuals with all types of disabilities and proposes that this portion of the definition remain the same.

Define "task."

One commenter suggested defining the term "task," presumably so that there would be a better understanding of what type of service performed by an animal would qualify for coverage.† The Department feels that the common definition of task is sufficiently clear and that it is not necessary to add to the definitions section.† However, the Department has proposed additional examples of work or tasks to help illustrate this requirement in the definition.

Define "animal" or what qualifies certain species as "service animals."†

When the regulations were promulgated in the early 1990s, the Department did not define the parameters of acceptable animal species, and few anticipated the variety of animals that would be used in the future, ranging from pigs and miniature horses to snakes and iguanas.† One commenter suggested defining "animal" (in the context of service animals) or the parameters of species to reduce the confusion over whether a particular service animal is covered.† One service dog organization commented that other species would be acceptable if those animals could meet the behavioral standards of trained service dogs.† Other commenters asserted that there are certain animals (e.g., reptiles) that cannot be trained to do work or perform tasks, so these animals would not be covered. The Department has followed closely this particular issue (i.e., how many unusual animals are now claimed as service animals) and believes that this aspect of the regulation needs clarification.

To establish a practical and reasonable species parameter, the Department proposes to narrow the definition of acceptable animal species to "dog or other common domestic animal" by excluding the following animals:† reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, or goats), ferrets, amphibians, and rodents.† Many commenters asserted that limiting the number of allowable species would help stop erosion of the publicís trust, which results in reduced access for many individuals with disabilities, despite the fact that they use trained service animals that adhere to high behavioral standards.† The Department is compelled to take into account practical considerations of certain animals and contemplate their suitability in a variety of public contexts, such as restaurants, grocery stores, and performing arts venues.

In addition, the Department believes that it is necessary to eliminate from coverage all wild animals, whether born or bred in captivity or the wild.† Some animals, such as nonhuman primates, pose a direct threat to safety based on behavior that can be aggressive and violent without notice or provocation.† The American Veterinary Medical Association (AVMA) issued a position statement against the use of monkeys as service animals, stating, "[t]he AVMA does not support the use of nonhuman primates as assistance animals because of animal welfare concerns, the potential for serious injury and zoonotic (animal to human disease transmission) risks."† See AVMA position statement, Nonhuman Primates as Assistance Animals (2005), available at http://www.avma.org/issues/policy/nonhuman_primates.asp. The potential for nonhuman primates to transmit dangerous diseases to humans has been documented in scientific journals.

Although unusual species make up a very small percentage of service animals as a collective group, their use has engendered broad public debate and, therefore, the Department seeks comment on this issue.

Question 10:† Should the Department eliminate certain species from the definition of "service animal"? If so, please provide comment on the Departmentís use of the phrase "common domestic animal" and on its choice of which types of animals to exclude.

Question 11:† Should the Department impose a size or weight limitation for common domestic animals, even if the animal satisfies the "common domestic animal" prong of the proposed definition?

Comfort animals.

It is important to address the concept of comfort animals or emotional support animals, which have become increasingly popular, primarily with individuals with mental or psychiatric impairments, many of which do not rise to the level of disability.† Comfort animals are also used by individuals without any type of impairment who claim the need for such animals in order to bring their pets into places of public accommodation.

The difference between an emotional support animal and a legitimate psychiatric service animal is the service that is provided (i.e., the actual work or task performed by the service animal).† Another critical factor rests on the severity of the individualís impairment.† For example, only individuals with conditions that substantially limit them in a major life activity currently qualify for coverage under the ADA, and only those individuals will qualify to use a service animal.† See 42 U.S.C. 12102(2) (defining disability); 28 CFR 36.104 (same).† Major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.† Many Americans have some type of physical or mental impairment (e.g., arthritis, anxiety, back pain, imperfect vision, etc.), but establishing a physical or mental disability also requires there to be a substantial limitation of a major life activity.† Traditionally, service dogs worked as guides for individuals who were blind or had low vision.† Since the original regulations were promulgated, service animals have been trained to assist individuals with many different types of disabilities. In some cases, individuals with minor impairments who are not individuals with disabilities under the Act have mistakenly concluded that any type of impairment qualified them for the ADAís protection of the right of individuals with disabilities to use service animals.

Change "service animal" to "assistance animal."

Some commenters asserted that "assistance animal" is a term of art and should replace "service animal."† While some agencies, like the Department of Housing and Urban Development (HUD), use the term "assistance animal," that term is used to denote a broader category of animals than is covered by the ADA.† The Department believes that changing the term used under the ADA would create confusion, particularly in view of the broader parameters for coverage under the Fair Housing Act (FHA) cf., HUD Handbook No. 4350.3 Rev-1, Chg-2, Occupancy Requirements of Subsidized Multifamily Housing Programs (June 2007), available at http://www.hudclips.org. Moreover, the Departmentís proposal to change the definition of "service animal" under the ADA is not intended to affect the rights of people with disabilities who use assistance animals in their homes under the FHA.† In addition, the Department wishes to use the term "psychiatric service animal" to describe a service animal that does work or performs a task for the benefit of an individual with a psychiatric disability.† This contrasts with "emotional support" animals that are covered under the Air Carrier Access Act, 49 U.S.C. 41705 et seq., and its implementing regulations. 14 CFR 382.7 et seq.; see also 68 FR 24874, 24877 (May 9, 2003) (discussing accommodation of service animals and emotional support animals on air transportation), and that qualify as "assistance animals" under the FHA, but do not qualify as "service animals" under the ADA.

ANOTHER SECTION, DEFINING SPECIFICS

† 6. Amend ß 36.302 as follows:

† a. Revise paragraph (c)(2);

† b. Add paragraphs (c)(3) through (c)(8) and paragraphs (e) and (f) to read as follows:
ß 36.302 Modifications in policies, practices, or procedures.
† * * * * *
† (c)(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 animalís handler does not take effective action to control it;

† (ii) The animal is not housebroken or the animalís presence or behavior fundamentally alters the nature of the service the public accommodation provides (e.g., repeated barking during a live performance); or

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

† (3) If an animal is properly excluded.† If a place of accommodation properly excludes a service animal, 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) General requirements.† The work or tasks performed by a service animal shall be directly related to the handlerís disability.† A service animal that accompanies an individual with a disability into a place of public accommodation 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.

† (5) Care or supervision of service animals.† A public accommodation is not responsible for caring for or supervising a service animal.

† (6) Inquiries. A public accommodation shall not ask about the nature or extent of a personís disability, but can determine whether an animal qualifies as a service animal. For example, 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 or licensed as a service animal.

† (7) 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 place of public accommodation where members of the public, program participants, and invitees are allowed to go.

† (8) Fees or surcharges.† A public accommodation 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 patrons as a condition of permitting a service animal to accompany its handler in a place of public accommodation, even if people accompanied by pets are required to do so.† If a public accommodation normally charges its clients or customers for damage that they cause, a customer with a disability may be charged for damage caused by his or her service animal.

* * * * *


Return to IAADP Emergency Call for Help with ADA ANPRM (2008)

Return to IAADP Home