28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

"Service Animal" (Section-by-Section Analysis)

Although there is no specific language in the current title II regulation concerning service animals, title II entities have the same legal obligations as title III entities to make reasonable modifications in policies, practices, or procedures to allow service animals when necessary to avoid discrimination on the basis of disability, unless the modifications would fundamentally alter the nature of the service, program, or activity.  28 CFR 35.130(b)(7).  In order to qualify for coverage under title II, a person must be a "qualified individual with a disability," which is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity."  28 CFR 35.104.  The Department is proposing to add to the title II regulation the same definition of "service animal" that it will propose for the title III regulation.  The title III regulation currently contains a definition of "service animal" in § 36.104.

The current definition of "service animal" in § 36.104 is, "any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items."  The Department would modify that current definition, and add the same definition, as modified, to the title II regulation at § 35.104. The changes that would be made to the title III definition, and that would be incorporated in the title II definition are as follows:

1. Remove "guide" or "signal" as descriptions of types of service dogs, add "other common domestic" animal, and add "qualified" to "individual" in the Department's current definition;

2. Remove "individuals with impaired vision" and replace it with "individuals who are blind or have low vision;"

3. Change "individuals with impaired hearing" to "individuals who are deaf or hard of hearing;"

4. Replace the term "intruders" with the phrase "the presence of people" in the section on alerting individuals who are deaf or hard of hearing;

5. Add the following to the list of work and task examples:  Assisting an individual during a seizure, retrieving medicine or the telephone, providing physical support to assist with balance and stability to individuals with mobility disabilities, and assisting individuals, including those with cognitive disabilities, with navigation;

6. Add that "service animal" includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, or mental disabilities;

7. Add that "service animal" does not include wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, pony, miniature horse, pig, and goat), ferrets, amphibians, and rodents; and

8. Add that animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals.

The Department is proposing these changes in response to concerns expressed by commenters regarding the Department's ANPRM. Issues raised by the commenters include:

"Minimal protection." (Section-by-Section Analysis)

There were many comments by service dog users urging the Department to remove from the definition the phrase "providing minimal protection."  The commenters set forth the following reasons for why the phrase should be deleted:  1) The current phrase can be interpreted to apply coverage under the ADA to "protection dogs" that are trained to be aggressive and protective, so long as they are paired with a person with a disability; and 2) since some view the minimal protection language to mean that a dog's very presence can act as a crime deterrent, the language may be interpreted to allow any untrained pet dog to provide minimal protection by its mere presence.  These interpretations were not contemplated by the ADA.

Question 9:  Should the Department clarify the phrase "providing minimal protection" in the definition or remove it?  Are there any circumstances where a service animal providing "minimal protection" would be appropriate or expected?

"Alerting to intruders." (Section-by-Section Analysis)

Some commenters expressed a similar concern regarding the phrase "alerting . . . to intruders" in the current text as the concern expressed by commenters regarding the phrase "providing minimal protection."  Commenters indicated that "alerting to intruders" has been misinterpreted by some individuals to apply to a special line of protection dogs that are trained to be aggressive.  People have asserted, incorrectly, that use of such animals is protected under the ADA.  The Department reiterates that public entities are not required to admit any animal that poses a direct threat to the health or safety of others.  The Department has proposed removing "intruders" and replacing it with "the presence of people."

"Task" emphasis. (Section-by-Section Analysis)

Many commenters followed the lead of an umbrella service dog organization and suggested that the phrase "performing tasks" should form the basis of the service animal definition, that "do work" should be eliminated from the definition, and that "physical" should be added to describe tasks.  Tasks by their nature are physical, so the Department does not believe that such a change is warranted. In contrast, the existing phrase "do work" is slightly broader than "perform tasks," and adds meaning to the definition.  For example, a psychiatric service dog can help some individuals with dissociative identity disorder to remain grounded in time or place.  As one service dog user stated, in some cases, "critical forms of assistance can't be construed as physical tasks," noting that the manifestations of "brain-based disabilities," such as psychiatric disorders and autism, are as varied as their physical counterparts.  One commenter stated that the current definition works for everyone (i.e., those with physical and mental disabilities) and urged the Department to keep it.  The Department has evaluated this issue and believes that the crux of the current definition (individual training to do work or perform tasks) is inclusive of the varied services provided by working animals on behalf of individuals with all types of disabilities and proposes that this portion of the definition remain the same.

Define "task." (Section-by-Section Analysis)

One commenter suggested defining the term "task," presumably so that there would be a better understanding of what type of service performed by an animal would qualify for coverage.  The Department feels that the common definition of task is sufficiently clear and that it is not necessary to add the term to the definitions section; however, the Department has proposed additional examples of work or tasks to help illustrate this requirement in the definition of service animal.

Define "animal" or what qualifies certain species as "service animals." (Section-by-Section Analysis)

When the regulation was promulgated in 1991, the Department did not define the parameters of acceptable animal species, and few anticipated the variety of animals that would be used in the future, ranging from pigs and miniature horses to snakes and iguanas.  One commenter suggested defining "animal" (in the context of service animals) or the parameters of acceptable species to reduce the confusion over whether a particular service animal is covered.  One service dog organization commented that other species would be acceptable if those animals could meet the behavioral standards of trained service dogs.  Other commenters asserted that there are certain animals (e.g., reptiles) that cannot be trained to do work or perform tasks, so these animals would not be covered.  The Department has followed closely this particular issue (i.e., how many unusual animals are now claimed as service animals) and believes that this aspect of the regulation needs clarification.

To establish a practical and reasonable species parameter, the Department proposes to narrow the definition of acceptable animal species to "dog or other common domestic animal" by excluding the following animals:  Wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, miniature horse, pony, pig, or goat), ferrets, amphibians, and rodents.  Many commenters asserted that limiting the number of allowable species would help stop erosion of the public's trust, which results in reduced access for many individuals with disabilities, despite the fact that they use trained service animals that adhere to high behavioral standards.  The Department is compelled to take into account practical considerations of certain animals and contemplate their suitability in a variety of public contexts, such as libraries or courtrooms.

In addition, the Department believes that it is necessary to eliminate from coverage all wild animals, whether born or bred in captivity or the wild.  Some animals, such as nonhuman primates, pose a direct threat to safety based on behavior that can be aggressive and violent without notice or provocation.  The American Veterinary Medical Association (AVMA) issued a position statement against the use of monkeys as service animals, stating, "[t]he AVMA does not support the use of nonhuman primates as assistance animals because of animal welfare concerns, the potential for serious injury, and zoonotic [animal-to-human disease transmission] risks."  See the AVMA 2005 position statement, Nonhuman Primates as Assistance Animals, available at http://www.avma.org/issues/policy/nonhuman_primates.asp. The potential for nonhuman primates to transmit dangerous diseases to humans has been documented in scientific journals.

Although unusual species make up a very small percentage of service animals as a collective group, their use has engendered broad public debate and, therefore, the Department seeks comment on this issue.

Question 10:  Should the Department eliminate certain species from the definition of "service animal"?  If so, please provide comment on the Department's use of the phrase "common domestic animal" and on its choice of which types of animals to exclude.

Question 11:  Should the Department impose a size or weight limitation for common domestic animals, even if the animal satisfies the "common domestic animal" prong of the proposed definition?

Comfort animals. (Section-by-Section Analysis)

It is important to address the concept of comfort animals or emotional support animals, which have become increasingly popular.  The increased use of comfort animals is primarily by individuals with mental or psychiatric impairments, many of which do not rise to the level of disability.  Comfort animals are also used by individuals without any type of impairment who claim the need for such an animal in order to bring their pets into facilities of public entities.

The difference between an emotional support animal and a psychiatric service animal is the service that is provided, i.e., the actual work or task performed by the service animal.  Another critical factor rests on the severity of the individual's impairment.  For example, only individuals with conditions that substantially limit them in a major life activity qualify for coverage under the ADA, and only those individuals' use of a service animal will be covered under the ADA.  See definition of disability, 42 U.S.C. 12102(2) and 28 CFR 35.104.  Major life activities include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.  Many Americans have some type of physical or mental impairment (e.g., arthritis, anxiety, back pain, imperfect vision, etc.), but establishing a physical or mental disability also requires a substantial limitation of a major life activity.  Traditionally, service dogs worked as guides for individuals who were blind or had low vision.  Since the original regulations were promulgated, service animals have been trained to assist individuals with different types of disabilities.  As a result, individuals with minor impair- ments [sic] may mistakenly conclude that any type of impairment qualifies them for ADA coverage.

Change "service animal" to "assistance animal." (Section-by-Section Analysis)

Some commenters asserted that "assistance animal" is a term of art and should replace "service animal."  While some agencies, like the Department of Housing and Urban Development (HUD), use the term "assistance animal," that term is used to denote a broader category of animals than is covered by the ADA.  The Department believes that changing the term used under the ADA would create confusion, particularly in view of the broader parameters for coverage under the Fair Housing Act (FHA)  (cf., HUD Handbook No. 4350.3 Rev-1, Chg-2, Occupancy Requirements of Subsidized Multifamily Housing Programs (June 2007), available at http://www.hudclips.org.) Moreover, the Department's proposal to change the definition of "service animal" under the ADA is not intended to affect the rights of people with disabilities who use assistance animals in their homes under the FHA.

In addition, the term "psychiatric service animal" describes a service animal that does work or performs a task for the benefit of an individual with a psychiatric disability.  This contrasts with "emotional support" animals that are covered under the Air Carrier Access Act, 49 U.S.C. 41705 et seq., and its implementing regulations, 14 CFR 382.7, see also 68 FR 24874, 24877 (May 9, 2003) (guidance on accommodation of service animals and emotional support animals on air transportation) and qualify as "assistance animals" under the FHA, but do not qualify as "service animals" under the ADA.