Service Animals

The Department of Justice is proposing to change the ADA “service animal” regulations. The new regulations say that individually trained animals that do work or perform tasks for persons with psychiatric, cognitive, or mental disabilities are clearly covered by the ADA. However, the new regulations will exclude from the definition of “service animal” emotional support or comfort animals. The proposed regulation will also limit “service animals” to any dog or other common domestic animal trained to do work or perform tasks for a person with a disability. The rule will exclude wild animals (including non-human primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, miniature horse, pony, pig or goat), ferrets, amphibians and rodents. There are additional wording issues noted below. There are two sets of regulations because ADA Title II covers state and local governments and Title III covers public accommodations.

Comments

Because the proposals for the Title II and III regulations are virtually identical, they are addressed jointly.

1. In response to the Department’s “Question 9” – it is our position that the phrase “provide minimal protection” should not be removed from the definition of service animal, and that rather the term should be clarified to exclude attack dogs. We agree with the Department’s observation that the “provide minimal protection” language is necessary and appropriate when discussing individuals who experience seizures. We would add that the language is also appropriate and necessary for individuals with other types of disabilities, including people with diabetes whose service animals alert them to hypoglycemic episodes and protect them in the event of a low sugar event such as unconsciousness, disorientation or coma.
   

2. We agree with the Department that the phrase “do work or perform tasks” in the definition of service animal should remain unchanged as it is most inclusive of the various services provided by service animals on behalf of people with disabilities.
   

3. In response to the Department’s “Question 10”, we do not, in theory, oppose the exclusion of certain species from the definition of service animal. There are some animal categories that certainly cannot meet the “do work or perform tasks” part of the service animal definition (e.g. insects, rodents, amphibians). However, we do not support the exclusion of miniature horses. Miniature horses have been used as service animals by the disability community for some time, particularly the blind community. Miniature horses are able to be trained to do work or perform tasks for people with disabilities, can be housebroken and are a viable option for those who are allergic to dogs or who would like a service animal with a longer lifespan. Accordingly, we would oppose the specific exclusion of “farm animals” from the definition of service animal. Similarly, we would oppose the use of the phrase “or other common domestic animal” to narrow the definition of service animal.
   

4. In response to the Department’s “Question 11”, we do not support the imposition of size and weight limits for service animals. Whether an animal is a “service animal” - able to do work or perform tasks for an individual with a disability - is a determination that should be made independent of the animal’s size or weight. If, as a practical matter, the size or weight of an individual’s service animal creates a direct threat in or fundamental alteration to a particular public entity or accommodation, there are provisions that allow for the animal’s exclusion or removal. See, 28 CFR 36.302 and 28 CFR 35.136.
   

5. We are pleased that the Department has proposed language formalizing its longstanding position that individuals with psychiatric, cognitive, or mental disabilities can use service animals. See, 28 CFR 35.104 and 28 CFR 36.104. Confirmation of this fact will help reduce the backlash currently experienced by individuals with those types of disabilities whose service animals perform work and tasks that are oftentimes identical to those performed by service animals for individuals with other types of disabilities (e.g. picking up objects, warning of danger/alarms, assisting with balance). At the same time however, we oppose proposed language that specifically and categorically excludes individually trained “comfort” or “emotional support” animals from the definition of service animal. The active provision of comfort and/or emotional support to a qualified individual with a disability whose disability results in an inability to self-soothe or de-escalate and control emotions is “work” that benefits the individual with the disability and should be recognized as such. Moreover, in practice, it will be confusing to distinguish between psychiatric service animals and comfort animals. This confusion will undoubtedly lead to increased discrimination against and/or the excessive questioning of individuals with non-visible or non-apparent disabilities. The fact that other federal laws recognize access for emotional support animals (Fair Housing Act, Air Carriers Access Act), simply adds to this confusion.
   

6. We agree with the Department that formal training requirements and/or a formal certification process is unnecessary and would not serve the array of individuals with disabilities who use service animals.
   

7. We appreciate the incorporation of the Department’s policy interpretations into the Modifications of Policies, Practices and Procedures sections (28 CFR 36.302 and 28 CFR 35.136), as it helps clarify the obligations of public entities and public accommodations to individuals with disabilities who use service animals. We particularly favor the incorporation of the Department’s policy interpretations pertaining to permissible and impermissible inquiries, as individuals who use service animals are routinely asked intrusive questions regarding their disabilities and/or asked to provide proof of animal certification or licensing in order to gain access to public entities and places of public accommodation. The proposed modification is necessary to protect the privacy rights of service animal users and recognizes that most people will not have documentation available showing that their animal is prescribed or individually trained. To provide the broadest feasible access to individuals with disabilities who use service animals, the Department should add language to clarify that is not necessary for a service animal to have a special identification card or wear a harness or collar identifying it as a service animal.

8. Regarding the Department’s proposal in sections §35.130(b)(7) and §36.302(c)(1) about the rights of service animal users in health care facilities, we approve of the DOJ’s comment that “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 ...” This language is very helpful, and must be maintained in the final rule, because many service animal users, when using these facilities, have encountered restrictions that are not consistent with the ADA, despite any demonstrable harm whatsoever. We object, however, to any language that indicates specific exceptions to the use of service animals in other hospital and healthcare settings. (See NPRM 34481 and 34524). Any exception to the use of service animals should only be permissible where there is a demonstrable fundamental alteration or direct threat, meaning that the public accommodation or public entity has the burden of establishing that the presence of a service animal will cause a significant risk of substantial harm to health or safety, or will fundamentally alter the nature of the service or program.