Changing One Word in Definition Assures Dogs Helping Autistic Children Can Be Service Animals

The definition of service animal in the regulations issued by the Department of Justice under the Americans with Disabilities Act has been changed by replacing one word, “handler,” with “individual.” The change, printed in the Federal Register of March 11, 2011, is labeled a correction, obviating the need for any review process. Thus, the most broadly applicable definition of “service animal” in the United States now 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 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." 28 CFR 35.104 and 36.104

The change was made, according to the Department of Justice, because “a service animal is not always controlled by the individual with a disability.” This adjustment in terminology has also been made throughout the preamble to the regulations, included as Appendix A to Part 36. Since the final rules are effective March 15, there was no need to make the change retroactive.

It appears likely that the modification is a recognition that autism service dogs are often trained to work with autistic children but not to obey commands they may give. The handler of the dog is not the child but usually a parent, although the commands relate to the child's condition. School personnel may also become involved in training and thus be able to give some commands to an autism service dog. The fact the child is not the handler has figured in disputes concerning whether such dogs are really service dogs. See K.D. v. Villa Grove Community Unit School District No. 32 Board of Education, 936 N.E.2d 690 (Ill. App. 2010); Kalbfleisch v. Columbia Community Unit School No. 4, 396 Ill.App.3d 1105, 920 N.E.2d 651, 336 Ill.Dec. 442, 252 Ed. Law Rep. 918 (2009).

K.D. and Kalbfleisch were suits between parents and school authorities, however, and the parents won. The resolution of a case with direct involvement of the Civil Rights Division of the Department of Justice was announced on March 7 by DOJ. DOJ said it had been investigating the Hillsboro, Oregon, school district, which eventually responded to pressure from the federal agency:

"The Justice Department announced today that the Hillsboro, Oregon, School District will allow Jordan “Scooter” Givens to bring his trained autism service dog into his classroom in the Hillsboro School District. The highly trained service dog, Madison, provides critical assistance to Scooter, recognizing when he is about to engage in behavior that might endanger him, and distracting him to obstruct this type of behavior. For nearly three years, Scooter’s parents’ efforts to get permission for Scooter to bring Madison to school had been rebuffed. After U.S. Attorney Dwight Holton and a senior attorney from the Civil Rights Division met in late January with the superintendent of the Hillsboro School District regarding the failure to accommodate the Givens’ request, the school district announced last Friday that it would allow Scooter to be accompanied by the service dog for a trial period."

The Justice Department was brought into the case by Joel Greenberg, an attorney with Disability Rights Oregon. Although courts had taken Justice’s position even without the adjusted terminology, the revised definition may help avoid disputes in the future.

76 Fed. Reg. 13285 - 13288 (March 11, 2011).

Thanks to Patty Dobbs Gross of North Star Foundation for providing the picture, which shows an autistic boy meeting his service dog for the first time.

Cruise Lines Must Accommodate Service Animals but Department of Transportation Seeks Comment on Emotional Support Animals (with Air Carrier Addendum)

The Department of Transportation has issued final rules on transportation for individuals with disabilities traveling on passenger vessels.[1] The rules are effective November 3, 2010. Comments are sought by October 4.

In 1991, the Department of Transportation stated that the Americans with Disabilities Act covered passenger vessels, including cruise ships, but noted that cruise ships are a unique mode of transportation, consisting of “self-contained floating communities.” The Department described cruise ships as something of a hybrid between a transportation service and a public accommodation, and noted that virtually all cruise ships serving U.S. ports are foreign-flag vessels.[2] In Spector v. Norwegian Cruise Lines,[3] the U.S. Supreme Court held that ADA requirements regarding disabled passengers applied to a foreign-flag vessel. In 2007, the Department issued proposed rules regarding cruise lines and received hundreds of comments.[4] A public hearing was held in April 2008 in which additional views were expressed.

The final rules define “service animal” as follows:

"'Service animal' means any guide dog, signal dog, or other animal individually trained to work or perform tasks for an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, alerting persons with seizure disorders to the onset of a seizure, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items."[5]

This definition remains unchanged from the 2007 proposed rules and is identical to the definition under regulations issued by the Department of Justice and contained in 28 CFR 36. 104, though as discussed further below, DOJ has proposed changing this definition.[6]

The section devoted to service animals on ships, 49 CFR 39.91, contains some changes from the 2007 proposals. The proposals stated that a service animal must be able to accompany a passenger in all locations that passengers can use on a vessel, which the final rules confirm, but the latter add the phrase, “including lifeboats.” There can be no overall limitation on the number of service animals that can be bought on a voyage as this would be “tantamount to a number limit on passengers with a disability.”

A new subsection deals with food for the animal:

"You must permit the passenger accompanied by the service animal to bring aboard a reasonable quantity of food for the animal aboard the vessel at no additional charge. If your vessel provides overnight accommodations, you must also provide reasonable refrigeration space for the service animal food."[7]

The preamble specifies that vessels are not required to provide food for service animals, but must allow passengers to bring a reasonable quantity of food aboard at no additional charge. There must be refrigeration space for the animal’s food on ships going overnight, but the requirement does not apply to short-voyage ferries or water taxis.

The verification requirement remains unchanged from the proposal:

"You must accept the following as evidence that an animal is a service animal: Identification cards, other written documentation, presence of harnesses, tags, and/or the credible verbal assurances of a passenger with a disability using the animal."[8]

The proposed rules had provided that if a cruise line decided not to accept an animal as a service animal, the decision had to be explained in writing to the passenger. This requirement has not been included in the final rules.

The final rules contain a new provision dealing with the situation where a foreign government does not allow a service animal to disembark:

"If the legal requirements of a foreign government (e.g., quarantine regulations) do not permit a service animal to disembark at a foreign port, as a PVO you may require the animal to remain on board while its user leaves the vessel. You must work with the animal’s user to ensure that the animal is properly cared for during the user’s absence."[9]

The preamble notes that limitations on the ability of a service animal to leave the ship at a foreign port would be included in the information provided to potential customers inquiring about an upcoming cruise.[10] The vessel can insist that the animal not disembark at such a port, but the passenger should be able to get off without the animal. The vessel should work with the passenger to make sure the animal is cared while the passenger is on a lengthy excursion. Presumably this means that the vessel could charge for care of the animal in such a situation.

The preamble seems to waffle on emotional support animals:

"While this rule does not require it, the Department believes that it is a good idea to permit not only service animals, per se, but also emotional support animals (ESA) to accompany passengers with disabilities who use them. This can be beneficial to individuals who genuinely need the assistance of such an animal to enjoy fully travel and services aboard a vessel. We refer PVOs [passenger vessel operators] and passengers with disabilities to applicable provisions of the Department’s Air Carrier Access Act regulations and appendices (14 CFR part 382) for suggestions on how and in what circumstances it is appropriate to accommodate people using ESAs."

Thus, vessels are not required to accept emotional support animals. The Department acknowledges that this is inconsistent with air carrier access requirements and seeks comment on whether vessels should be required to accommodate emotional support animals. If this were required, the Department seeks comment on what safeguards vessels should be able to require to prevent abuse—such as “passengers attempting to pass off their pets as emotional support animals.”

Neither the new rules nor the preamble mention psychiatric service animals, unlike the 2008 final air carrier access rules,[11] which lump them with emotional support animals in allowing airlines to require advance notice and certain documentation. The preamble to the final air carrier access regulations saw psychiatric service animals and emotional support animals as providing some potential for abuse, but nevertheless referred to the two types of animals as two distinct categories.[12] The distinction in the air carrier access rules appears to be that an emotional support animal accompanies a person with a mental health-related disability listed in the Diagnostic and Statistical Manual of Mental Disorders, that accompanying the individual is necessary for the passenger’s mental health or treatment, and that this necessity and the condition have been assessed by a mental health professional who provides care for the passenger. A psychiatric service animal, for air carrier access, is trained by its owner or a professional trainer to perform tasks, such as fetching medications, reminding the user to take medications, or “acting as a buffer against other people crowding too close.”

The preamble to the final passenger vessel rules states that they are consistent with proposed rules of the Department of Justice amending Title II and Title III, but DOT seeks comment as to whether emotional support animals are an area where different rules might apply to vessels[13] The 2008 proposed regulations of the Department of Justice distinguished between emotional support and psychiatric service, stating:

"The Department is proposing new regulatory text in § 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 wellbeing 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 § 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 Department’s longstanding position and is not a new position." [14] (emphasis added)

Thus, following the same language as now defines “service animals” for passenger vessels, DOJ has had a “longstanding position” of recognizing service animals with functions related to mental disabilities. However, since there is no mention of psychiatric service animals in the final (nor the proposed) passenger vessel regulations, it is not clear if DOT considers that they are covered. A strong argument could be made that the claim for consistency with the proposed DOJ regulations must mean that they are covered (as distinguished from emotional support animals) but the matter should be clarified. It would be anomalous if DOT, having distinguished psychiatric service animals from emotional support animals for air carrier access purposes were now to be suggesting that they are not to be distinguished for passenger vessel access purposes. It would also mean that DOT and DOJ have a considerable, and probably illogical, rift on this matter, which seems unlikely.

The preamble indicates that subsequent rules addressing accessibility standards will describe relief areas for service animals. This was an area that DOT sought comment on in the 2007 proposed regulations.[15] DOT noted in 2007 that cruise operators typically provide such areas, so the agency may not see this as one of the issues it needs to resolve quickly.

The Department of Transportation is to be commended for clarifying many issues regarding service animals aboard cruise vessels. The failure to specify the treatment of psychiatric service animals is unfortunate, since there are a good many people taking these animals into public accommodations. It would be best to clarify the status of such animals as soon as possible.

Addendum for Federal Register Posting of July 30, 2010. The Department of Transportation posted some corrections to air carrier access regulations on July 30. The only one having to do with service animals is a correction to 14 CFR 382.111(e), which provides that airlines must provide assistance in stowing and retrieving "carry-on items, including mobility aids and other assistive devices stowed in the cabin (see also Sec. 382.91(c))." The parenthetical reference to 14 CFR 382.91(c) was a mistake, since that section refers to relief areas in air terminals. The cross-reference was supposed to be to 14 CFR 382.91(d), which has to do with helping passengers who cannot carry their carry-on luggage get it on the plane. The correction has been made. The mistake might have convinced some people (quite reasonably so) that service animal relief areas were to be provided inside cabins, since the referring provision refers to helping people stow items in the cabin. It would not have been an impossible argument. The Department does not state whether anyone actually made such a case to an airline. Department of Transportation, Correcting Amendments, 75 Fed. Reg. 44885 (July 30, 2010).

Addendum re Comments on Department of Transportation Rules. The Psychiatric Service Dog Society submitted comments regarding these rules on September 21, 2010. I wrote the initial draft of the comments. The comments have been posted by the Department of Transportation.

[1] Department of Transportation, Transportation for Individuals with Disabilities: Passenger Vessels, RIN 2105-AB87, 75 Fed. Reg. 38878 (July 6, 2010).
[2] 56 Fed. Reg. 45599-45560 (September 6, 1991).
[3] 545 U.S. 119 (2005).
[4] 72 Fed. Reg. 2833 (January 23, 2007). The reference to hundreds of comments is contained in the preamble to the final rules (75 Fed. Reg. 38879). A search of the website where comments are posted (www.regulations.gov) did not produce nearly that many, though I acknowledge that I may not have fully understood the operation of the site.
[5] 49 CFR 39.3.
[6] Although the definition of service animal would be different under proposed rules issued by the Department of Justice in 2008, DOJ noted that the inclusion of psychiatric service animals in the definition of service animal was not a change in regulatory position, but rather a clarification of “the Department’s longstanding position” regarding the status of psychiatric service animals. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, RIN 1190-AA44, 73 Fed. Reg. 34508, 34516 (June 17, 2008). Since the Department of Transportation sees its final regulations as consistent with these proposals, it would appear that psychiatric service animals should also be accepted under the rules now applicable to passenger vessels.
[7] 49 CFR 39.91(c).
[8] 49 CFR 39.91(d).
[9] 49 CFR 39.91(e).
[10] 49 CFR 39.53(e).
[11] Nondiscrimination on the Basis of Disability in Air Travel, RINs 2105-AC97, 2105-AC29, 21050AD41, 73 Fed. Reg. 27614 (May 13, 2008).
[12] 73 Fed. Reg. 27655.
[13] 75 Fed. Reg. 38890.
[14] 73 Fed. Reg. 34508, 34516 (June 17, 2008). On January 21, 2009, the Department of Justice notified the Office of Management and Budget that it was withdrawing draft final rules under Titles II and III, leaving further regulatory modification to the then incoming Obama administration.
[15] 72 Fed. Reg. 2841.

Should Co-Worker's Asthma Trump Employee's Need for Service Dog?

An article appearing in the New York Times of May 11, 2010, describes an employee of the City of Indianapolis who is allergic to paprika with a reaction potentially so severe that it could be fatal. Steven Greenhouse, "When Treating One Worker's Allergy Sets Off Another's." The employee, Emily Kysel, obtained a service dog trained to alert her to the presence of paprika by jumping on her. The dog cost $10,000. The city initially permitted her to bring this dog to work but a fellow employee, allergic to dogs, suffered an asthma attack. Ms. Kysel’s boss then told her she could no longer bring the dog and advised her that if she did not report for work without the dog, she would be put on indefinite unpaid leave. She filed a complaint with the Equal Employment Opportunity Commission, pending as of this writing.

Two allergists wrote letters on behalf of Ms. Kysel, and the article indicates that she had almost died from eating chili five years before her problems with Indianapolis. She has had to go home from work when fellow employees were eating food with paprika near her, and when permitting her to bring the dog to work—before the allergic reaction of the fellow employee to the dog—employees were told not to have food with paprika in the office. The article mentions that blind employees are permitted to bring guide dogs to work but it is not specified if any such employees and dogs are in the unit where Ms. Kysel works. If so, it would appear that some shifting of offices might solve the problem, and a failure to do so could buttress Ms. Kysel’s discrimination argument. Such a situation would also suggest that the city is favoring one type of service dog over others, but again the circumstances of the guide dog users are not described in the article.

Cases have considered conflicts between individuals with service dogs and individuals with allergies, as has the Department of Transportation in a lengthy discussion in the final air carrier access rules. Generally, the rulings have concluded that an individual with an annoying but not dangerous allergy must accept the presence of the dog, though the facility should attempt to find a way to keep the individuals out of each other’s way. In Lockett v. Catalina Channel Express, 496 F.3d 1061 (9th Cir. 2007), a blind passenger with a guide dog could not be excluded from the Commodore Lounge of a ferry to Catalina despite the fact that a no-animals policy for the lounge was introduced for the comfort of a passenger with allergies.

In the preamble to its air carrier access rules, the Department of Transportation stated:

“Forcing the passenger with the service animal to move to another seat to make another passenger more comfortable, let alone denying transportation in the cabin to the service animal or its user, is not an option.

***

“If a passenger provides credible verbal assurances, or medical documentation, that he or she has an allergy to a particular sort of animal that rises to the level of a disability (e.g. produces shock or respiratory distress that could require emergency or significant medical treatment), and there is a service animal of that kind seated nearby, the carrier should try to place as much distance as possible between the service animal and the individual with the allergy. Depending on where the passengers are initially seated, this could involve moving both passengers. For example, if both are seated toward the center of the cabin, one could be moved to the front and the other to the back.

“It is unlikely that the mere presence of an animal in the same cabin would, by itself, even if located at a distance from an allergic passenger, produce a severe allergic reaction rising to the level of a disability. However, if there was strong evidence that this was the case, it could be necessary to rebook one of the passengers on another flight. Since one disability does not trump another, the carrier should consider a disability-neutral means of determining which passenger would have to be rebooked (e.g., which passenger made the earlier reservation). We emphasize that we expect any such situation to be extremely rare, and that carriers should not rebook a passenger absent strong evidence that the mere presence of an animal in the cabin, even in a location distant from the allergic passenger, would produce an allergic reaction rising to the level of a disability.

“There may be situations in which, with respect to a passenger who brings a very serious potential allergy situation to the attention of your personnel, it is appropriate to seek a medical certificate for the passenger.” 72 Fed. Reg. 27614, at 27655, 27660 (5/13/2008)

It is hard for me to believe that the City of Indianapolis is not a large enough employer, with a considerable amount of office space, for some accommodation not to be possible for both employees with their separate allergies. Nevertheless, it is conceivable that seniority or some other objective criterion may have to determine which employee has priority in this situation.

In this context, though I don’t like it, one argument could be that a stern enforcement of the no-paprika policy could be viewed as a factor weighing in the dog-allergic employee’s favor. Ms. Kysel’s situation differs from someone who suffers seizures who has a seizure-response or seizure-alert dog. With a service dog whose functions are connected with the handler’s seizures, there is nothing the employer can do to limit the possibility of the dog being needed in the work environment. With a dog that alerts to a spice that might cause something like a seizure, however, the employer can prohibit employees from bringing that spice to the office. Or is this naïve? Some employees, according to the article, expressed skepticism as to Ms. Kysel’s allergy, referring to it as an oddity. Without a dog to detect their violations of the anti-paprika rule, would they be likely to honor it? Would Ms. Kysel be in constant danger of someone intentionally or accidentally bringing a food with paprika into the office? Would other employees always know the food contained paprika? It would seem that a no-food policy would have to be implemented to be sure that no paprika comes into the office. Even then, with the sensitivity of a dog’s olfactory system, would the dog alert when an employee returns from lunch with paprika on his breath?

I spoke twice at the ABA Tax Section meetings in Washington, DC, on May 7 and 8 regarding the deductibility of service dogs, and shifting away from the access issue, I also think there are interesting tax questions regarding Ms. Kysel’s dog. I have no knowledge of whether she deducted the acquisition cost of the dog, as likely permitted under Section 213 of the Internal Revenue Code, and Regulation 1.213-1(e). The dog was acquired for a medical condition and probably would not have been acquired (at least at the $10,000 price tag) had it not been for that condition. The training and maintenance costs are deductible under other IRS pronouncements, and the condition that the dog provides a service for is a physical disability, as specified in Publication 502. (I have argued in several other places that I do not believe Publication 502’s restriction of service dog functions to physical disabilities is valid. See, e.g., Tax Notes, August 24, 2009.) But what if Ms. Kysel returns to work without the dog? Does the dog still provide a service function if there is no paprika in Ms. Kysel’s house and she does not enter markets or restaurants where it may be present? I think the answer is still yes, because she may have to avoid contact with paprika even in environments where it is not frequently present. Presumably the dog, like narcotics and explosives detection dogs, requires occasional testing to make sure it continues to alert to the target odor, which would also be a continuing expense.

As the world of service dogs becomes more complex, I believe that the IRS, as the City of Indianapolis in Ms. Kysel’s case, will begin to face some difficult situations.