(VICT) Nore on DOJ New ADA Definition of Service Animal
- From: "Ann Edie" <annedie@xxxxxxxxxxxx>
- To: <Guide-Horse-Users@xxxxxxxxxxxxxxx>, <vi-clicker-trainers@xxxxxxxxxxxxx>
- Date: Tue, 27 Jul 2010 05:35:48 -0400
Here's what the DOJ says about
specific breeds in the Title III: Final Rule amending 28 CFR
Part 36: Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities -
Species limitations. When the Department originally issued its
title III regulation in the early 1990s, the Department did not
define the parameters of acceptable animal species. At that time,
few anticipated the variety of animals that would be promoted as
service animals in the years to come, which ranged from pigs and
miniature horses to snakes, iguanas, and parrots. The Department
has followed this particular issue closely, keeping current with
the many unusual species of animals represented to be service
animals. Thus, the Department has decided to refine further this
aspect of the service animal definition in the final rule.
The Department received many comments from individuals and
organizations recommending species limitations. Several of these
commenters asserted that limiting the number of allowable species
would help stop erosion of the public´s trust, which has resulted
in reduced access for many individuals with disabilities who use
trained service animals that adhere to high behavioral standards.
Several commenters suggested that other species would be
acceptable if those animals could meet nationally recognized
behavioral standards for trained service dogs. Other commenters
asserted that certain species of animals (e.g., reptiles) cannot
be trained to do work or perform tasks, so these animals would
not be covered.
In the NPRM, the Department used the term "common domestic
animal" in the service animal definition and excluded reptiles,
rabbits, farm animals (including horses, miniature horses,
ponies, pigs, and goats), ferrets, amphibians, and rodents from
the service animal definition. 73 FR 34508, 34553 (June 17,
2008). However, the term "common domestic animal" is difficult to
define with precision due to the increase in the number of
domesticated species. Also, several State and local laws define a
"domestic" animal as an animal that is not wild.
The Department is compelled to take into account the practical
considerations of certain animals and to contemplate their
suitability in a variety of public contexts, such as restaurants,
grocery stores, hospitals, and performing arts venues, as well as
suitability for urban environments. The Department agrees with
commenters´ views that limiting the number and types of species
recognized as service animals will provide greater predictability
for public accommodations as well as added assurance of access
for individuals with disabilities who use dogs as service
animals. As a consequence, the Department has decided to limit
this rule´s coverage of service animals to dogs, which are the
most common service animals used by individuals with
disabilities.
Wild animals, monkeys, and other nonhuman primates. Numerous
business entities endorsed a narrow definition of acceptable
service animal species, and asserted that there are certain
animals (e.g., reptiles) that cannot be trained to do work or
perform tasks. Other commenters suggested that the Department
should identify excluded animals, such as birds and llamas, in
the final rule. Although one commenter noted that wild animals
bred in captivity should be permitted to be service animals, the
Department has decided to make clear that all wild animals,
whether born or bred in captivity or in the wild, are eliminated
from coverage as service animals. The Department believes that
this approach reduces risks to health or safety attendant with
wild animals. Some animals, such as certain nonhuman primates,
including certain monkeys, pose a direct threat; their behavior
can be unpredictably aggressive and violent without notice or
provocation. The American Veterinary Medical Association (AVMA)
issued a position statement advising against the use of monkeys
as service animals, stating that "[t]he AVMA 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." AVMA
Position Statement, Nonhuman Primates as Assistance Animals
(2005), available at
www.avma.org/issues/policy/nonhuman_primates.asp (last visited
June 24, 2010).
An organization that trains capuchin monkeys to provide in-home
services to individuals with paraplegia and quadriplegia was in
substantial agreement with the AVMA´s views but requested a
limited recognition in the service animal definition for the
capuchin monkeys it trains to provide assistance for persons with
disabilities. The organization commented that its trained
capuchin monkeys undergo scrupulous veterinary examinations to
ensure that the animals pose no health risks, and are used by
individuals with disabilities exclusively in their homes. The
organization acknowledged that the capuchin monkeys it trains are
not necessarily suitable for use in a place of public
accommodation but noted that the monkeys may need to be used in
circumstances that implicate title III coverage, e.g., in the
event the handler had to leave home due to an emergency, to visit
a veterinarian, or for the initial delivery of the monkey to the
individual with a disability. The organization noted that several
State and local government entities have local zoning, licensing,
health, and safety laws that prohibit non-human primates, and
that these prohibitions would prevent individuals with
disabilities from using these animals even in their homes.
The organization argued that including capuchin monkeys under the
service animal umbrella would make it easier for individuals with
disabilities to obtain reasonable modifications of State and
local licensing, health, and safety laws that would permit the
use of these monkeys. The organization argued that this limited
modification to the service animal definition was warranted in
view of the services these monkeys perform, which enable many
individuals with paraplegia and quadriplegia to live and function
with increased independence.
The Department has carefully considered the potential risks
associated with the use of nonhuman primates as service animals
in places of public accommodation, as well as the information
provided to the Department about the significant benefits that
trained capuchin monkeys provide to certain individuals with
disabilities in residential settings. The Department has
determined, however, that nonhuman primates, including capuchin
monkeys, will not be recognized as service animals for purposes
of this rule because of their potential for disease transmission
and unpredictable aggressive behavior. The Department believes
that these characteristics make nonhuman primates unsuitable for
use as service animals in the context of the wide variety of
public settings subject to this rule. As the organization
advocating the inclusion of capuchin monkeys acknowledges,
capuchin monkeys are not suitable for use in public facilities.
The Department emphasizes that it has decided only that capuchin
monkeys will not be included in the definition of service animals
for purposes of its regulation implementing the ADA. This
decision does not have any effect on the extent to which public
accommodations are required to allow the use of such monkeys
under other Federal statutes, like the FHAct or the Air Carrier
Access Act (ACAA). For example, a public accommodation that also
is considered to be a "dwelling" may be covered under both the
ADA and the FHAct. While the ADA does not require such a public
accommodation to admit people with service monkeys, the FHAct
may. Under the FHAct an individual with a disability may have the
right to have an animal other than a dog in his or her home if
the animal qualifies as a "reasonable accommodation" that is
necessary to afford the individual equal opportunity to use and
enjoy a dwelling, assuming that the use of the animal does not
pose a direct threat. In some cases, the right of an individual
to have an animal under the FHAct may conflict with State or
local laws that prohibit all individuals, with or without
disabilities, from owning a particular species. However, in this
circumstance, an individual who wishes to request a reasonable
modification of the State or local law must do so under the
FHAct, not the ADA.
Having considered all of the comments about which species should
qualify as service animals under the ADA, the Department has
determined the most reasonable approach is to limit acceptable
species to dogs.
Sent: Monday, July 26, 2010 6:13 PM
Subject: New definition of a service animal
FYI. The Department of Justice finally released the revised ADA
regulations implementing Title II and Title III which includes
the new definition of a service animal at:
<http://www.ada.gov/regs2010/ADAregs2010.htm>
http://www.ada.gov/regs2010/ADAregs2010.htm
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.
*****
§ 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 animal´s handler does
not take effective action to control it; or
(ii) The animal is not housebroken.
(3) If an animal is properly excluded. If a public accommodation
properly excludes a service animal under § 36.302(c)(2), 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) Animal under handler´s control. 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).
(5) Care or supervision. A public accommodation is not
responsible for the care or supervision of a service animal.
(6) Inquiries. 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).
(7) Access to areas of a public accommodation. Individuals with
disabilities shall be permitted to be accompanied by their
service animals in all areas of a place of public accommodation
where members of the public, program participants, clients,
customers, patrons, or invitees, as relevant, are allowed to go.
(8) Surcharges. A public accommodation shall not ask or require
an individual with a disability to pay a surcharge, even if
people accompanied by pets are required to pay fees, or to comply
with other requirements generally not applicable to people
without pets. If a public accommodation normally charges
individuals for the damage they cause, an individual with a
disability may be charged for damage caused by his or her service
animal.
(9) Miniature horses. (i) A public accommodation shall 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.
(ii) Assessment factors. In determining whether reasonable
modifications in policies, practices, or procedures can be made
to allow a miniature horse into a specific facility, a public
accommodation shall consider--
(A) The type, size, and weight of the miniature horse and whether
the facility can accommodate these features;
(B) Whether the handler has sufficient control of the miniature
horse;
(C) Whether the miniature horse is housebroken; and
(D) Whether the miniature horse´s presence in a specific facility
compromises legitimate safety requirements that are necessary for
safe operation.
(iii) Other requirements. Sections 36.302(c)(3) through (c)(8),
which apply to service animals, shall also apply to miniature
horses.
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