• Service Animal Rule Going to the Dogs: Proposed Rule Eliminates Wild Animals, And 'Comfort Animals from 'Service Animal' Definition
  • June 2, 2010 | Author: Carolyn Doppelt Gray
  • Law Firm: Proskauer Rose LLP - Washington Office
  • Proposed changes to the service animal rule have “sent fur flying” as the proposal would limit qualifying services animals to dogs (and similar domesticated animals) while eliminating the use of other species - such as monkeys and reptiles - as sanctioned “service animals.”  The proposed changes also would specifically prohibit “comfort animals” from qualifying as service animals.

    For businesses, the proposed species limitation would ease compliance burdens by creating a bright-line exclusion of exotic animals as service animals.  Monkeys, rodents, and reptiles, among others, would no longer be permitted to accompany individuals with disabilities into places of public accommodation, such as restaurants, movie theaters, educational facilities, stadiums, stores, hotels, trains, fitness centers, and museums.[1]

    A more difficult compliance question is presented by how businesses will distinguish between “comfort animals” - animals whose sole function is to provide emotional support or promote emotional well-being - from “psychiatric service animals” that would still qualify as service animals under the proposed regulations.

    I. The Current Definition of “Service Animal”?

    The existing regulation implementing Title III of the Americans with Disabilities Act (“ADA”) defines a “service animal” as “any guide dog, signal dog or other animal individually trained to provide assistance for the benefit of an individual with a disability.”[2]  (Emphasis added).

    The ADA defines “disability” as any “mental or physical impairment that substantially limits one or more major life activities.”[3]  In 2008, the ADA Amendments Act (“ADAAA”) expanded the ADA’s definition of “disability” by modifying key terms of that definition, including expanding the definition of “major life activities.”[4]  The effect of the 2008 amendments has been to increase the pool of qualified individuals with disabilities under the ADA.  In turn, the number of individuals who may be legally entitled to be accompanied by a service animal into a place of public accommodation has grown dramatically.

    The current regulations implementing Title II (state and local government) and Title III (public accommodations) of the ADA require that covered entities allow individuals with disabilities to be accompanied by their service animals.  Service animals are not “pets.”  Rather, service animals are individually trained animals that work, provide assistance, and perform tasks for the person with a disability.

    Guide dogs used by individuals who are blind or have low vision may be the most familiar service animal.  But the current definition does not limit “service animals” to canines.  In recent years, monkeys have risen in prominence as service animals because they can often be trained to perform tasks that dogs cannot, such as scratching an itch or retrieving small items.  In Washington state, a boa constrictor’s ability to warn his owner of impending seizures qualifies the reptile as a service animal under the current regulations.[5]

    II. Proposed Changes to “Service Animal” Definition

    On June 17, 2008, the U.S. Department of Justice (“DOJ”) published its notice of proposed rulemaking (“NPRM”) to amend 28 CFR Part 35.  In it, the DOJ explained that it “wishe[d] to clarify the obligations of public entities to accommodate individuals with disabilities who use service animals”[6] through proposed amendments to the service animal rule.

    A. Elimination of Certain Species

    First, the proposed amendments eliminate certain species from coverage under the ADA, even if the other elements of the definition are satisfied.  The proposed definition would limit “service animals” to any dog or other common domestic animal.  Due to the proliferation of animal types that have been used as “service animals,” including wild animals, the proposed amendments would exclude wild animals (including non-human primates born in captivity), reptiles, rabbits, farm animals, ferrets, amphibians and rodents as qualifying under the definition of service animals.

    At the July 15, 2008 hearing on the NPRM, many individuals stated the proposed species restriction goes too far by excluding types of animals that are known for providing essential services to individuals with disabilities, such as miniature horses being used as guide animals and certain types of captive bred monkeys.  One individual testified that “[t]hese task trained animals have provided essential services to their handlers for many years and prohibiting them would unnecessarily restrict the independence of their handlers.”[7]

    Second, the proposed amendments include new regulatory text that would specifically prohibit “comfort animals” from qualifying as service animals.  The text proposed by DOJ would revise

    § 35.104 to state 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.”

    B. Retention of Psychiatric Service Animals

    The proposed amendment makes clear that the exclusion of “comfort animals” from ADA coverage does not mean that persons with psychiatric, cognitive or mental disabilities cannot use service animals.  Rather, the proposed rule acknowledges the existence of specific service animals which are 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, room searches, or turning on lights for persons with Post Traumatic Stress Disorder.

    Psychiatric service animals include specially trained service dogs that assist traumatized veterans reintegrate into activities of daily living.  Recent legislation introduced by Senator Al Franken (D-Minn.) will devote millions of dollars to the study of whether scientific research supports anecdotal reports that dogs might speed recovery from the psychological wounds of the wars in Iraq and Afghanistan.  The Service Dogs for Veterans Act (S. 1495), signed into law on October 22, 2009, creates a three-year pilot program to evaluate the benefits of using psychiatric service dogs to help treat veterans with physical or mental injuries.

    III. “Service Animals” must be admitted into covered entities

    As previously noted, the current DOJ regulations require that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability, but the regulations do not impose any type of formal training requirements or certification process.  Without certification or licensing requirements, the decision whether to admit an animal claimed to impart cognitive or therapeutic benefits is discretionary and may present a difficult decision for covered entities.  To help offset this conundrum, businesses may ask the individual accompanied by a service animal:  “How does this animal assist you?”  Nonetheless, distinctions between “comfort” and “psychiatric” animals may be semantic and not readily grasped by those employees charged with deciding which animals fall within the revised “service animal” definition should the proposed rulemaking be implemented.  Therefore, at this juncture, if uncertainty exists, we caution businesses to be overly inclusive in recognizing canines described as “psychiatric animals.”[8]

    In anticipation of the final rule, the chart below summarizes relevant DOJ guidance[9] on how to best accommodate individuals with disabilities who utilize service animals.

    IV.General Guidance

    DO let service animals in, even if you have a “no pets” policy.  Service animals are not pets.  The ADA requires that businesses modify any “no pets” policy to allow the use of a service animal by a person with a disability.

     

    You may inquire as to how the service animal helps the individual.

    DON’T ask about the person’s disability.  

    DO admit all types of service animals, not just guide dogs.  If a business refuses to admit any other type of service animal on the basis of state or local laws, it is a violation of the ADA.  In this situation, the ADA provides greater protection for individuals with disabilities and so it takes priority over local or state laws or regulations.

    DON’T ask a person with a disability to remove his or her service animal from the premises unless:

     

     

     

    (1)     the animal is out of control and the individual with the disability does not take effective action to control the animal (for example a dog that barks repeatedly during a movie);

     

     

     

    or

     

     

     

    (2)     the animal poses a direct threat to the health or safety of others.

    DO permit the service animal to accompany the individual with a disability to all areas where non-disabled persons are allowed to go.  An individual with a service animal may not be segregated from other non-disabled individuals.

    DON’T charge a maintenance or cleaning fee for individuals who bring service animals into the business.  Neither a deposit nor a surcharge may be imposed on an individual with a disability as a condition to allowing a service animal to accompany the individual with a disability.  However, businesses or other covered entities may charge individuals with disabilities if a service animal causes damage so long as it is the regular practice of the entity to charge non-disabled customers for the same types of damages.



    [1]   28 C.F.R. § 36.104(5)(1-12) (listing twelve (12) categories of facilities included in the definition “Place of public accommodation”).

    [2]   28 C.F.R. § 36.104 (2010).

    [3]   See Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., as amended by ADA Amendments Act of 2008, Pub. L. 110-325 (Sept. 25, 2008).

    [4]   ADA Amendments Act of 2008, supra n.3.

    [5]   Nancy Bartley, Debate grows over what defines a service animal, Seattle Times, Oct. 19, 2009, available at: http://seattletimes.nwsource.com/html/localnews/2010091144&under;serviceanimals19m.html (last visited on May 4, 2010).

    [6]   73 Fed. Reg. 34,515-34,516 (June 17, 2008) (to be codified at 28 C.F.R. pt. 35).

    [7]   Testimony of Tiffany Huggard-Lee, Dep’t of Justice, Transcript of The Public Hearing On Notices Of Proposed Rulemaking, July 15, 2008, available at: http://www.ada.gov/NPRM2008/public&under;hearing&under;transcript.htm#c42&under;mt. (last visited on May 18, 2010).

    [8]   The DOJ’s Civil Rights Division oversees the review of the NPRM and the publication of the final rules.  A review of the rules that began in 2008 was suspended during the administration change.  It is expected that DOJ will publish the final rule around, or starting after, the 20th anniversary of ADA, July 26, 2010.

    [9]   U.S. Dep’t of Justice, Civil Rights Div., “Commonly Asked Questions About Service Animals in Places of Business,” (Jan. 14, 2008), available at:  http://www.ada.gov/qasrvc.htm (last visited on May 11, 2010); DOJ, “ADA Business Brief: Service Animals” (April 2002) available at http://www.ada.gov/svcabrpt.pdf (last visited May 11, 2010). 

    [10] In 2003, DOJ issued guidance regarding the accessibility of state and local government websites.  See http://www.ada.gov/websites2.htm.

    [11] Indeed, in April 2010, the FCC released its own first-ever paper on accessibility and technology - “A Giant Leap & A Big Deal:  Delivering on the Promise of Equal Access to Broadband for People with Disabilities” - which stressed many of the same points and offered several similar suggestions to the testimony at this hearing.