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

Service animals.

The Department wishes to clarify the obligations of public entities to accommodate individuals with disabilities who use service animals.  The Department continues to receive a large number of complaints from individuals with service animals.  It appears, therefore, that many covered entities are confused about their obligations under the ADA in this area.  At the same time, some individuals with  impairments--who would not be covered as qualified individuals with disabilities--are claiming that their animals are legitimate service animals, whether fraudulently or sincerely (albeit mistakenly), to gain access to the facilities of public entities.  Another trend is the use of wild or exotic animals, many of which are untrained, as service animals.  In order to clarify its position and avoid further misapplication of the ADA, the Department is proposing amendments to its regulation with regard to service animals.

Minimal protection.

In the Department's ADA Business Brief on Service Animals, which was published in 2002, the Department interpreted the minimal protection language in its definition of service animals within the context of a seizure (i.e., alerting and protecting a person who is having a seizure).  Although the Department received comments urging it to eliminate the phrase "providing minimal protection" from its regulation, the Department continues to believe that the language serves the important function of excluding from coverage so-called "attack dogs" that pose a direct threat to others.

Guidance on permissible service animals.

The existing regulation implementing title III defines a "service animal" as "any guide dog, signal dog, or other animal."  At the time the regulation was promulgated, the Department believed that leaving the species selection up to the discretion of the individual with a disability was the best course of action.  Due to the proliferation of animal types that have been used as "service animals," including wild animals, the Department believes that this area needs established parameters.  Therefore, the Department is proposing to eliminate certain species from coverage under the ADA even if the other elements of the definition are satisfied.

Comfort animals vs. psychiatric service animals.

Under the Department's present regulatory language, some individuals and entities have assumed that the requirement that service animals must be individually trained to do work or carry out tasks excluded all persons with mental disabilities from having service animals.  Others have assumed that any person with a psychiatric condition whose pet provided comfort to him or her was covered by the ADA.  The Department believes that psychiatric service animals that are trained to do work or perform a task (e.g., reminding its owner to take medicine) for persons whose disability is covered by the ADA are protected by the Department's present regulatory approach.

Psychiatric service animals can be 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; providing safety checks, or room searches, or turning on lights for persons with Post Traumatic Stress Disorder; interrupting self-mutilation by persons with dissociative identity disorders; and keeping disoriented individuals from danger.

The Department is proposing new regulatory text in § 35.104 to formalize its position on emotional support or comfort animals, which is 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."  The Department wishes to underscore that the exclusion of emotional support animals from ADA coverage does not mean that persons with psychiatric, cognitive, or mental disabilities cannot use service animals.  The Department proposes specific regulatory text in § 35.104 to make this clear: "[t]he term service animal includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities."  This language simply clarifies the Department's longstanding position.

The Department's rule is based on the assumption that the title II and title III regulations govern a wider range of public settings than the settings that allow for emotional support animals.  The Department recognizes, however, that there are situations not governed exclusively by the title II and title III regulations, particularly in the context of residential settings and employment where there may be compelling reasons to permit the use of animals whose presence provides emotional support to a person with a disability.  Accordingly, other federal agency regulations governing those situations may appropriately provide for increased access for animals other than service animals.

Proposed training standards.  The Department has always required that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability, but has never imposed any type of formal training requirements or certification process.  While some advocacy groups have urged the Department to modify its position, the Department does not believe that such a modification would serve the array of individuals with disabilities who use service animals. 

Detailed regulatory text changes and the Department's response to public comments on these issues and others are discussed below in the definitions § 35.104 and in a newly-proposed  § 35.136.