[nagdu] New definition of a service animal

Tue Jul 27 10:58:11 UTC 2010

Ginger, this information is great, thanks so much for passing it along.
This at least clarifies how the final decision was arrived, to in part
include certain animal species.  

Steve

P.S.  I hope that this information is being placed on the NAGDU website for
reference purposes as it appears that we will have to do a lot of retraining
on this issue. 

-----Original Message-----
From: nagdu-bounces at nfbnet.org [mailto:nagdu-bounces at nfbnet.org] On Behalf
Of Ginger Kutsch
Sent: Monday, July 26, 2010 8:19 PM
To: 'NAGDU Mailing List, the National Association of Guide Dog Users'
Subject: Re: [nagdu] New definition of a service animal

Steve,
Yes, this is the final rule. 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. 

-----Original Message-----
From: nagdu-bounces at nfbnet.org [mailto:nagdu-bounces at nfbnet.org] On Behalf
Of Steve Johnson
Sent: Monday, July 26, 2010 8:38 PM
To: 'NAGDU Mailing List,the National Association of Guide Dog Users'
Subject: Re: [nagdu] New definition of a service animal

So Ginger, this is now law, correct?  I would have to agree with JD in that
we will have to wait for the uproar.  At least the testimony was considered
and miniature horses were not totally left out in the barnyard as farm
animals or whatever the draft language stated, but it will be interesting to
hear from the person on the list who has a guide horse, and what her
thoughts and reaction are to this.

Steve

-----Original Message-----
From: nagdu-bounces at nfbnet.org [mailto:nagdu-bounces at nfbnet.org] On Behalf
Of Ginger Kutsch
Sent: Monday, July 26, 2010 6:13 PM
To: 'NAGDU Mailing List, the National Association of Guide Dog Users'
Subject: [nagdu] 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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