The Department of Justice has issued final regulations under the Americans with Disabilities Act revising the definition of and access rules covering service animals. The rules will be effective March 15, 2011.
The new definition of “service animal” is considerably longer than the older one. Previously, the definition had been:
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, 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.
The new definition reads as follows:
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 handler’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.
Thus, a service animal is now a dog, with the mention of “or other animal” deleted. The reference to allergen detection as a service animal function is interesting, as this has not been extensively reported on until recently.
There is, however, a new provision regarding miniature horses, stating that a public accommodation is to—
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.
This is a change from the rules proposed in 2008, which had specified that service animals could not be—
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. (emphasis added)
The inclusion of this provision came in response to comments concerning miniature horses, which have increasingly been used as guides. In determining whether reasonable modifications can be made, a public accommodation may consider the type, size, and weight of the horse, whether the handler has control, whether it is housebroken, and whether its “presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.” Presumably, a larger miniature horse might encounter more resistance. What will be seen as compromising legitimate safety requirements may have to await interpretation through specific disputes.
The final rules exclude cats from service animal status. The proposed rules had defined a service animal as “any dog or other common domestic animal individually trained” but had excluded farm animals. Primates, reptiles, rabbits, farm animals, ferrets, amphibians, and rodents were also excluded. That seemed to leave cats as a possibility, but perhaps even in 2008 the Department of Justice had concluded that cats could not be “individually trained.” There is no mention of cats in the preamble to the final rules. As pets, cats outnumber dogs, and if there are advocates of service cats, they will now have to step forward.
Primates and Other Species
The proposed rules would have excluded “wild animals (including nonhuman primates born in captivity),” and thus all primates. The final rules accept dogs but eliminate other “species of animals, whether wild or domestic, trained or untrained,” except for the unique category of miniature horses. The preamble to the final rules again cites the position of the American Veterinary Medical Association stating that it “does not support the use of nonhuman primates as assistance animals because of animal welfare concerns, and the potential for serious injury and zoonotic [animal to human disease transmission] risks.”
A capuchin monkey training organization had argued for limited recognition for these animals, but the DOJ declined to do so, noting “their potential for disease transmission and unpredictable aggressive behavior.” The Department acknowledged, however, that the Department of Transportation and the Department of Housing and Urban Development, in implementing, respectively, the Air Carrier Access Act and the Fair Housing Act, have been more accommodating to primates and other species with service or assistance animal functions. Some state and local laws refer to primates or monkeys in their definitions of service animals. The Department’s position may lead to modifications of such state and local laws, but individuals with service primates can expect increased resistance even without such changes since many businesses will cite the federal rules.
No Breed Limitations
Commenters had suggested that certain breeds should not be allowed to be used as service animals, such as those pets excluded by zoning laws. The Department sensibly responded:
Breed restrictions differ significantly from jurisdiction to jurisdiction. Some jurisdictions have no breed restrictions. Others have restrictions that, while well-meaning, have the unintended effect of screening out the very breeds of dogs that have successfully served as service animals for decades without a history of the type of unprovoked aggression or attacks that would pose a direct threat, e.g., German Shepherds. Other jurisdictions prohibit animals over a certain weight, thereby restricting breeds without invoking an express breed ban. In addition, deference to breed restrictions contained in local laws would have the unacceptable consequence of restricting travel by an individual with a disability who uses a breed that is acceptable and poses no safety hazards in the individual’s home jurisdiction but is nonetheless banned by other jurisdictions. Public accommodations have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal’s actual behavior or history—not based on fears or generalizations about how an animal or breed might behave. This ability to exclude an animal whose behavior or history evidences a direct threat is sufficient to protect health and safety.
The Department also rejected arguments for size or weight limitations, noting that certain types of service animals, such as guide dogs and dogs for individuals with mobility impairments, often have to be large. These positions are in agreement with the better reasoned case law.
Work or Tasks
The first sentence of the final regulations retains the language that a service animal is “individually trained to do work or perform tasks for the benefit of an individual with a disability.” In the proposed rule, however, this language was followed by a non-exclusive list of examples. Now, it is followed by the phrase, “including a physical, sensory, psychiatric, intellectual, or other mental disability.” The same “do work of perform tasks” phrase was contained in the original 1991 regulations. The final rule states that the “work or tasks performed by a service animal must be directly related to the handler’s disability.”
Some commenters had argued that “do work” should be eliminated so that a service animal’s function would have to involve demonstrable actions performed by the animal. The Department disagreed, retaining the language and citing a commenter:
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 handler 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.
An example in the preamble to the proposed rules noted that “a psychiatric service dog can help some individuals with dissociative identity disorder to remain grounded in time or place.” Commenters objected that this was too close to allowing emotional support animals to be service animals. The Department responded:
It is the Department´s view that an animal that is trained to “ground” a person with a psychiatric disorder does work or performs a task that would qualify it as a service animal as compared to an untrained emotional support animal whose presence affects a person´s disability. It is the fact that the animal is trained to respond to the individual´s needs that distinguishes an animal as a service animal. The process must have two steps: recognition and response. For example, if a service animal senses that a person is about to have a psychiatric episode and it is trained to respond, for example, by nudging, barking, or removing the individual to a safe location until the episode subsides, then the animal has indeed performed a task or done work on behalf of the individual with the disability, as opposed to merely sensing an event.
The Department thus declined to eliminate “do work” from the definition of service animal, but did add additional examples, one of which is “helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.” It would appear that a dog that is trained to remain in contact with its handler when sensing some behavior might begin could be said to be preventing the episode.
Emotional Support Animals
The definition of “service animal” concludes with the statement that “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purpose of this definition.” The 2008 proposed rules had somewhat different wording:
Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or to promote emotional well-being are not service animals.
The preamble to the final rules indicates that many advocacy organizations objected to this exclusion. It was also noted that since these animals are accepted in housing and airline access contexts, the difference is confusing. Others noted that exclusion of emotional support animals would lead to “excessive questioning of individuals with non-visible or non-apparent disabilities.” Still others recommended an exception for emotional support animals being used by current or former members of the military.
The Department has maintained its position excluding emotional support animals, but reiterates that “psychiatric service animals that are trained to do work or perform a task for individuals whose disability is covered by the ADA are protected by the Department’s present regulatory approach.” The preamble states that the “differences between an emotional support animal and a psychiatric service animal is the work or tasks that the animal performs.”
Psychiatric Service Animals
The proposed rules had emphasized that psychiatric service animals are service animals. That position is maintained in the final regulations.
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 for persons with PTSD, interrupting self-mutilation, and removing disoriented individuals from dangerous situations.
Some commenters had argued that formal training requirements should be imposed for service animals. This would no doubt aid the economy of certain segments of the service dog training industry, and might lead to some uniformity of standards, but the Department appropriately notes that service animals can be trained by the individuals using them. For some types of animals, such as hearing dogs (also known as signal dogs or hearing-alert dogs), training is often performed by an individual during the process of losing his or her hearing. The Department notes that a “training and certification requirement would increase the expense of acquiring a service animal and might limit access to service animals for individuals with limited financial resources.”
The Department also alluded to the difficulty of implementing a specific training standard, as some “suggested behavior or training standards were lengthy and detailed.” It was easier to provide circumstances in which an obvious lack of training, such as for a dog that is out of control or not housebroken, could lead to exclusion of the dog from a public accommodation.
The final rules include language similar to that in the proposed rules specifying that individuals with disabilities are to be allowed, with their service animals, “in all areas of public accommodation where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.”
The preamble notes that the Department accepts the guidance of the Centers for Disease Control and Prevention with regard to the use of service animals in hospital settings.
Consistent with CDC guidance, it is generally appropriate to exclude a service animal from limited-access areas that employ general infection-control measures, such as operating rooms and burn units. … A service animal may accompany its handler 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, restrooms, and all other areas of the facility where healthcare personnel, patients, and visitors are permitted without taking added precautions.
This description, in the author’s experience, generally describes the access that visiting therapy dogs have in hospitals.
The final rules retain the verification approach of the proposed rules, but recognize that a non-apparent condition may result in a different type of questioning of the handler:
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). (emphasis added)
The Department states that this approach is consistent with prior pronouncements. Some commentators had asked that the rules require documentation, similar to that which may be requested under housing accommodation requirements, including a letter from a mental health professional. The Department responded that “this proposal would treat persons with psychiatric, intellectual, and other mental disabilities less favorably than persons with physical or sensory disabilities.” More emphatically, the preamble states that “a documentation requirement of this kind would be unnecessary, burdensome, and contrary to the spirit, intent, and mandates of the ADA.”
Control and Care
A service dog must be under the handler’s control, though the “harness, leash, or other tether” requirement of the proposed rules has been modified to acknowledge that some individuals with disabilities may not be able to hold a leash:
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).
As has been true since 1991, the individual using the service animal is responsible for its care wherever he or she takes it. In a hospital or similar setting—
if the individual has a family member, friend, or other person willing to take on these responsibilities in the place of the individual with a disability, the individual´s obligation to be responsible for the care and supervision of the service animal would be satisfied.
Exclusion of Service Animals
Service animals that are out of control may be excluded. The Department notes, however, that the lack of control might not be the fault of the animal’s handler, such as when people pinch or provoke a guide dog.
While all service animals are trained to ignore and overcome these types of incidents, misbehavior in response to provocation is not always unreasonable. In circumstances where a service animal misbehaves or responds reasonably to a provocation or injury, the public accommodation must give the handler a reasonable opportunity to gain control of the animal. Further, if the individual with a disability asserts that the animal was provoked or injured, or if the public accommodation otherwise has reason to suspect that provocation or injury has occurred, the public accommodation should seek to determine the facts and, if provocation or injury occurred, the public accommodation should take effective steps to prevent further provocation or injury, which may include asking the provocateur to leave the place of public accommodation.
Thus, it may not be the person with the service animal who is excluded because of an incident, but rather the person taunting or interfering with the use of the animal.
Where a service dog barks, the preamble states that this is not automatically a reason for exclusion:
Commenters noted that the public accommodation must be careful when it excludes a service animal on the basis of "fundamental alteration," asserting for example, that a public accommodation should not exclude a service animal for barking in an environment where other types of noise, such as loud cheering or a child crying, is tolerated. The Department maintains that the appropriateness of an exclusion can be assessed by reviewing how a public accommodation addresses comparable situations that do not involve a service animal.
Surcharges for service animals continue to be impermissible.
The rules above apply to public accommodations. The Department has also revised its rules as to “all services, programs, and activities provided or made available by public entities,” which includes a state or local government, any department or agency of such a government, the National Railroad Passenger Corporation and any commuter authority.
The final rules will create new barriers for users of service animals that are not dogs or miniature horses, which leaves out primates, pot-bellied pigs, and other less common service animals. Users of such animals may be able to rely on some state or local access laws, and should not encounter problems in the housing and airline contexts. The Department is be commended for drawing a line between psychiatric service animals and emotional support animals, but is no doubt aware that an animal that keeps someone with a psychiatric disability grounded will sometimes be difficult to verify, and may become the source of disputes.
It has been almost twenty years since the original service animal regulations were put in place, and the Department has set a standard for exactness in drawing the lines that need to be drawn. With the proliferation of psychiatric service animals and autism service animals, as well as emotional support animals, the rules will soon be tested.
 Department of Justice, Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, RIN 1190-AA44, 75 Fed. Reg. 56236 (September 15, 2010). A notice of proposed rulemaking (NPRM) had appeared in 2008, 73 Fed. Reg. 34508 (June 17, 2008). The modifications of the proposed rules are significant, and may be largely in response to comments received, but may also reflect changes in ranking DOJ personnel coming in with the Obama administration. On January 21, 2009, the Department of Justice had notified the Office of Management and Budget that it was withdrawing final draft rules under Titles II and III (www.ada.gov/ADAregswithdraw09.htm, visited August 2, 2010).
 Businesses should not assume that most provisions could be ignored until then, as the Department of Justice makes clear that some of the revisions, such as with regard to service animals for individuals with mental health disabilities, confirm longstanding positions of the Department.
 28 CFR 36.104.
 See Greenhouse, S. (2010). When Treating One Worker’s Allergy Sets Off Another’s. New York Times, May 10, 2010, A1.
 28 CFR 36.302(c)(9). The Fact Sheets summarizing the regulatory release explains that miniature horses were not included in the definition of service animal to “allow flexibility in situations where using a horse would not be appropriate.” Fact sheets regarding the new rules are posted on the DOJ website (www.ada.gov/regs2010/ADAregs2010.htm).
 See discussion at 73 Fed. Reg. 34521.
 28 CFR 36.302(c)(9)(ii).
 AVMA Position Statement, Nonhuman Primates as Assistance Animals (2005, available at www.avma.org/issues/policy/nonhuman_primates.asp).
 Indeed, the Department of Transportation seems to find some hysteria in the concern about “unusual service animals,” which it notes “have received publicity wholly disproportionate to their frequency or importance.” As to service monkeys and pot-bellied pigs, DOT allows airlines to “make a judgment call about whether any factors (e.g., size and weight of the animal, any direct threat to the health and safety of others, significant disruption of cabin service) would preclude carrying the animal.” Department of Transportation, Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed. Reg. 27614, 27636 (May 13, 2008).
 See Iowa Human Services Code § 216C.11.1, defining an “assistive animal” as a “simian or other animal specially trained or in the process of being trained under the auspices of a recognized training facility to assist a person with a disability.”
 75 Fed. Reg. 56268..
 See Oras v. Housing Authority of the City of Bayonne, 373 N.J. Super 302, 861 A.2d 194 (2004) (appellate court found housing authority obligated to accommodate tenant’s disability and keep assistance dog weighing more than 20 pound limit on pets); but see Zatopa v. Lowe, C 02-02543 WHA (N.D. Cal. 2002) (permitting landlord to exclude pit bull, an emotional support animal of a tenant with AIDS and long-term clinical depression). See section, Accommodating Some Dogs but Not Others, Service and Therapy Dogs in American Society: Science, Law and the Evolution of Canine Caregivers, pp. 166-167. For scientific analysis of how much dogs can improve mobility, see Vincent et al. (2015). Service Dogs in the Province of Quebec: Sociodemographic Profile of Users and the Dogs' Impact on Functional Ability. Disability and Rehabilitation Assistive Technology, 10(2), 132-140.
 In a recently posted settlement agreement with Blockbuster Inc., the Department of Justice noted that service animals serve people in a number of ways, including “helping people with intellectual or cognitive disabilities to locate displaced items, find places, or follow daily routines….” DOJ Complaint 202-35-231, July 19, 2010 (posted at www.ada.gov/blockbuster_sa.htm, retrieved August 10, 2010).
 75 Fed. Reg. 56267.
 73 Fed. Reg. 34521.
 75 Fed. Reg. 56267.
 In a recently posted settlement agreement with Blockbuster Inc., the Department of Justice noted that service animals help people in a number of ways, including “orienting people with schizophrenia to reality, and helping people with intellectual or cognitive disabilities to locate displaced items, find places, or follow daily routines….” DOJ Complaint 202-35-231, July 19, 2010 (posted at www.ada.gov/blockbuster_sa.htm, retrieved August 10, 2010).
 The different access provisions in various federal, state, and local laws and rules can indeed be bewildering. See Ensminger, J. and Breitkopf, F., Evolving Functions of Service and Therapy Animals and the Implications for Public Accommodation Access Rules, Journal of Animal Law 6, 1-50 (2010).
 75 Fed. Reg. 56269.
 75 Fed. Reg. 56272.
 28 CFR 36.302(c)(7).
 Citing Centers for Disease Control and Prevention, Guidelines for Environmental Infection Control in Health-Care Facilities: Recommendations of CDC and the Healthcare Infection Control Practices Advisory Committee (June 2003).
 74 Fed. Reg. 56272.
 An exception would be the cafeteria.
 28 CFR 36.302(c)(6).
 Department of Justice, Commonly Asked Questions about Service Animals in Places of Business (1996). (posted at www.ada.gov/qasrvc.htm).
 75 Fed. Reg. 56272.
 75 Fed. Reg. 56271. Unfortunately, thoughtless behavior of other individuals takes a significant number of guide dogs, and other service animals, out of service every year. See Dawson, S. D. (2004). Protecting a Special Class of Animal: An Examination of and Recommendations for Enacting Dog Guide Protection Statutes. Connecticut Law Review, 37, 569.
 75 Fed. Reg. 56271. See Lentini v. California Center for the Arts, Escondido, 370 F.3d 837 (9th Cir. 2004) (quadriplegic woman’s service dog barked during performance, but was trying to keep people from bumping into the handler and the barking was not disruptive because of the nature of the performance).
 28 CFR 35.101, 35.104.
 Department of Justice, Nondiscrimination on the Basis of Disability in State and Local Government Services, RIN 1190-AA46, 75 Fed. Reg. 56164 (September 15, 2010).
Thank you for the comparison of old law and new law interpretation for our service dogs. Do any of these new laws help employees who need a service dog as a work accommodation?ReplyDelete