[Federal Register Volume 75, Number 178 (Wednesday, September 15, 2010)]
[Rules and Regulations]
[Pages 56236-56358]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-21824]
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DEPARTMENT OF JUSTICE
28 CFR Part 36
[CRT Docket No. 106; AG Order No. 3181-2010]
RIN 1190-AA44
Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities
AGENCY: Department of Justice, Civil Rights Division.
ACTION: Final rule.
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SUMMARY: This final rule revises the Department of Justice (Department)
regulation that implements title III of the Americans with Disabilities
Act
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``Service Animal''
Section 36.104 of the 1991 title III regulation defines a
``service animal'' as ``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.'' Section 36.302(c)(1) of the 1991 title III regulation
requires that ``[g]enerally, a public accommodation shall modify
policies, practices, or procedures to permit the use of a service
animal by an individual with a disability.'' Section 36.302(c)(2) of
the 1991 title III regulation states that ``a public accommodation
[is not required] to supervise or care for a service animal.''
The Department has issued guidance and provided technical
assistance and publications concerning service animals since the
1991 regulations became effective. In the NPRM, the Department
proposed to modify the definition of service animal and asked for
public input on several issues related to the service animal
provisions of the 1991 title III regulation: whether the Department
should clarify the phrase ``providing minimal protection'' in the
definition or remove it; whether there are any circumstances where a
service animal ``providing minimal protection'' would be appropriate
or expected; whether certain species should be eliminated from the
definition of ``service animal,'' and, if so, which types of animals
should be excluded; whether ``common domestic animal'' should be
part of the definition; and whether a size or weight limitation
should be imposed for common domestic animals, even if the animal
satisfies the ``common domestic animal'' part of the NPRM
definition.
The Department received extensive comments on these issues, as
well as requests to clarify the obligations of public accommodations
to accommodate individuals with disabilities who use service
animals, and has modified the final rule in response. In the
interests of avoiding unnecessary repetition, the Department has
[[Page 56266]]
elected to discuss the issues raised in the NPRM questions about
service animals and the corresponding public comments in the
following discussion of the definition of ``service animal.''
The Department's final rule defines ``service animal'' as ``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.''
This definition has been designed to clarify a key provision of
the ADA. Many covered entities indicated that they are confused
regarding their obligations under the ADA with regard to individuals
with disabilities who use service animals. Individuals with
disabilities who use trained guide or service dogs are concerned
that if untrained or unusual animals are termed ``service animals,''
their own right to use guide or service dogs may become
unnecessarily restricted or questioned. Some individuals who are not
individuals with disabilities have claimed, whether fraudulently or
sincerely (albeit mistakenly), that their animals are service
animals covered by the ADA, in order to gain access to hotels,
restaurants, and other places of public accommodation. The
increasing use of wild, exotic, or unusual species, many of which
are untrained, as service animals has also added to the confusion.
Finally, individuals with disabilities who have the legal right
under the Fair Housing Act (FHAct) to use certain animals in their
homes as a reasonable accommodation to their disabilities have
assumed that their animals also qualify under the ADA. This is not
necessarily the case, as discussed below.
The Department recognizes the diverse needs and preferences of
individuals with disabilities protected under the ADA, and does not
wish to unnecessarily impede individual choice. Service animals play
an integral role in the lives of many individuals with disabilities,
and with the clarification provided by the final rule, individuals
with disabilities will continue to be able to use their service
animals as they go about their daily activities. The clarification
will also help to ensure that the fraudulent or mistaken use of
other animals not qualified as service animals under the ADA will be
deterred. A more detailed analysis of the elements of the definition
and the comments responsive to the service animal provisions of the
NPRM follows.
Providing minimal protection. The 1991 title III regulation
included language stating that ``minimal protection'' was a task
that could be performed by an individually trained service animal
for the benefit of an individual with a disability. In the
Department's ``ADA Business Brief on Service Animals'' (2002), the
Department interpreted the ``minimal protection'' language within
the context of a seizure (i.e., alerting and protecting a person who
is having a seizure). The Department received many comments in
response to the question of whether the ``minimal protection''
language should be clarified. Many commenters urged the removal of
the ``minimal protection'' language from the service animal
definition for two reasons: (1) The phrase can be interpreted to
allow any dog that is trained to be aggressive to qualify as a
service animal simply by pairing the animal with a person with a
disability; and (2) The phrase can be interpreted to allow any
untrained pet dog to qualify as a service animal, since many
consider the mere presence of a dog to be a crime deterrent, and
thus sufficient to meet the minimal protection standard. These
commenters argued, and the Department agrees, that these
interpretations were not contemplated under the original title III
regulation.
While many commenters stated that they believe that the
``minimal protection'' language should be eliminated, other
commenters recommended that the language be clarified, but retained.
Commenters favoring clarification of the term suggested that the
Department explicitly exclude the function of attack or exclude
those animals that are trained solely to be aggressive or
protective. Other commenters identified non-violent behavioral tasks
that could be construed as minimally protective, such as
interrupting self-mutilation, providing safety checks and room
searches, reminding the handler to take medications, and protecting
the handler from injury resulting from seizures or unconsciousness.
Several commenters noted that the existing direct threat
defense, which allows the exclusion of a service animal if the
animal exhibits unwarranted or unprovoked violent behavior or poses
a direct threat, prevents the use of ``attack dogs'' as service
animals. One commenter noted that the use of a service animal
trained to provide ``minimal protection'' may impede access to care
in an emergency, for example, where the first responder is unable or
reluctant to approach a person with a disability because the
individual's service animal is in a protective posture suggestive of
aggression.
Many organizations and individuals stated that in the general
dog training community, ``protection'' is code for attack or
aggression training and should be removed from the definition.
Commenters stated that there appears to be a broadly held
misconception that aggression-trained animals are appropriate
service animals for persons with post traumatic stress disorder
(PTSD). While many individuals with PTSD may benefit by using a
service animal, the work or tasks performed appropriately by such an
animal would not involve unprovoked aggression but could include
actively cuing the handler by nudging or pawing the handler to alert
to the onset of an episode and removing the individual from the
anxiety-provoking environment.
The Department recognizes that despite its best efforts to
provide clarification, the ``minimal protection'' language appears
to have been misinterpreted. While the Department maintains that
protection from danger is one of the key functions that service
animals perform for the benefit of persons with disabilities, the
Department recognizes that an animal individually trained to provide
aggressive protection, such as an attack dog, is not appropriately
considered a service animal. Therefore, the Department has decided
to modify the ``minimal protection'' language to read ``non-violent
protection,'' thereby excluding so-called ``attack dogs'' or dogs
with traditional ``protection training'' as service animals. The
Department believes that this modification to the service animal
definition will eliminate confusion, without restricting
unnecessarily the type of work or tasks that service animals may
perform. The Department's modification also clarifies that the
crime-deterrent effect of a dog's presence, by itself, does not
qualify as work or tasks for purposes of the service animal
definition.
Alerting to intruders. The phrase ``alerting to intruders'' is
related to the issues of minimal protection and the work or tasks an
animal may perform to meet the definition of a service animal. In
the original 1991 regulatory text, this phrase was intended to
identify service animals that alert individuals who are deaf or hard
of hearing to the presence of others. This language has been
misinterpreted by some to apply to dogs that are trained
specifically to provide aggressive protection, resulting in the
assertion that such training qualifies a dog as a service animal
under the ADA. The Department reiterates that public accommodations
are not required to admit any animal whose use poses a direct
threat. In addition, the Department has decided to remove the word
``intruders'' from the service animal definition and replace it with
the phrase ``the presence of people or sounds.'' The Department
believes this clarifies that so-called ``attack training'' or other
aggressive response types of training that cause a dog to provide an
aggressive response do not qualify a dog as a service animal under
the ADA.
Conversely, if an individual uses a breed of dog that is
perceived to be aggressive because of breed reputation, stereotype,
or the history or experience the observer may have with other dogs,
but the dog is under the control of the individual with a disability
and does not exhibit aggressive behavior, the public accommodation
cannot exclude the individual or the animal from the place of public
accommodation. The animal can only be removed if it engages in the
behaviors
[[Page 56267]]
mentioned in Sec. 36.302(c) (as revised in the final rule) or if
the presence of the animal constitutes a fundamental alteration to
the nature of the goods, services, facilities, and activities of the
place of public accommodation.
``Doing work'' or ``performing tasks.'' The NPRM proposed that
the Department maintain the requirement first articulated in the
1991 title III regulation that in order to qualify as a service
animal, the animal must ``perform tasks'' or ``do work'' for the
individual with a disability. The phrases ``perform tasks'' and ``do
work'' describe what an animal must do for the benefit of an
individual with a disability in order to qualify as a service
animal.
The Department received a number of comments in response to the
NPRM proposal urging the removal of the term ``do work'' from the
definition of a service animal. These commenters argued that the
Department should emphasize the performance of tasks instead. The
Department disagrees. Although the common definition of work
includes the performance of tasks, the definition of work is
somewhat broader, encompassing activities that do not appear to
involve physical action.
One service dog user stated that, 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. The Department agrees with this statement but cautions
that unless the animal is individually trained to do something that
qualifies as work or a task, the animal is a pet or support animal
and does not qualify for coverage as a service animal. A pet or
support animal may be able to discern that the handler is in
distress, but it is what the animal is trained to do in response to
this awareness that distinguishes a service animal from an observant
pet or support animal.
The NPRM contained an example of ``doing work'' that stated ``a
psychiatric service dog can help some individuals with dissociative
identity disorder to remain grounded in time or place.'' 73 FR
34508, 34521 (June 17, 2008). Several commenters objected to the use
of this example, arguing that grounding was not a ``task'' and
therefore the example inherently contradicted the basic premise that
a service animal must perform a task in order to mitigate a
disability. Other commenters stated that ``grounding'' should not be
included as an example of ``work'' because it could lead to some
individuals claiming that they should be able to use emotional
support animals in public because the dog makes them feel calm or
safe. By contrast, one commenter with experience in training service
animals explained that grounding is a trained task based upon very
specific behavioral indicators that can be observed and measured.
These tasks are based upon input from mental health practitioners,
dog trainers, and individuals with a history of working with
psychiatric service dogs.
It is the Department's view that an animal that is trained to
``ground'' a person with a psychiatric disorder does work or
performs a task that would qualify it as a service animal as
compared to an untrained emotional support animal whose presence
affects a person's disability. It is the fact that the animal is
trained to respond to the individual's needs that distinguishes an
animal as a service animal. The process must have two steps:
Recognition and response. For example, if a service animal senses
that a person is about to have a psychiatric episode and it is
trained to respond, for example, by nudging, barking, or removing
the individual to a safe location until the episode subsides, then
the animal has indeed performed a task or done work on behalf of the
individual with the disability, as opposed to merely sensing an
event.
One commenter suggested defining the term ``task,'' presumably
to improve the understanding of the types of services performed by
an animal that would be sufficient to qualify the animal for
coverage. The Department believes that the common definition of the
word ``task'' is sufficiently clear and that it is not necessary to
add to the definitions section. However, the Department has added
examples of other kinds of work or tasks to help illustrate and
provide clarity to the definition. After careful evaluation of this
issue, the Department has concluded that the phrases ``do work'' and
``perform tasks'' have been effective during the past two decades to
illustrate the varied services provided by service animals for the
benefit of individuals with all types of disabilities. Thus, the
Department declines to depart from its longstanding approach at this
time.
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 http://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
[[Page 56268]]
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.
Size or weight limitations. The vast majority of commenters did
not support a size or weight limitation. Commenters were typically
opposed to a size or weight limit because many tasks performed by
service animals require large, strong dogs. For instance, service
animals may perform tasks such as providing balance and support or
pulling a wheelchair. Small animals may not be suitable for large
adults. The weight of the service animal user is often correlated
with the size and weight of the service animal. Others were
concerned that adding a size and weight limit would further
complicate the difficult process of finding an appropriate service
animal. One commenter noted that there is no need for a limit
because ``if, as a practical matter, the size or weight of an
individual's service animal creates a direct threat or fundamental
alteration to a particular public entity or accommodation, there are
provisions that allow for the animal's exclusion or removal.'' Some
common concerns among commenters in support of a size and weight
limit were that a larger animal may be less able to fit in various
areas with its handler, such as toilet rooms and public seating
areas, and that larger animals are more difficult to control.
Balancing concerns expressed in favor of and against size and
weight limitations, the Department has determined that such
limitations would not be appropriate. Many individuals of larger
stature require larger dogs. The Department believes it would be
inappropriate to deprive these individuals of the option of using a
service dog of the size required to provide the physical support and
stability these individuals may need to function independently.
Since large dogs have always served as service animals, continuing
their use should not constitute fundamental alterations or impose
undue burdens on public accommodations.
Breed limitations. A few commenters suggested that certain
breeds of dogs should not be allowed to be used as service animals.
Some suggested that the Department should defer to local laws
restricting the breeds of dogs that individuals who reside in a
community may own. Other commenters opposed breed restrictions,
stating that the breed of a dog does not determine its propensity
for aggression and that aggressive and non-aggressive dogs exist in
all breeds.
The Department does not believe that it is either appropriate or
consistent with the ADA to defer to local laws that prohibit certain
breeds of dogs based on local concerns that these breeds may have a
history of unprovoked aggression or attacks. Such deference would
have the effect of limiting the rights of persons with disabilities
under the ADA who use certain service animals based on where they
live rather than on whether the use of a particular animal poses a
direct threat to the health and safety of others. Breed restrictions
differ significantly from jurisdiction to jurisdiction. Some
jurisdictions have no breed restrictions. Others have restrictions
that, while well-meaning, have the unintended effect of screening
out the very breeds of dogs that have successfully served as service
animals for decades without a history of the type of unprovoked
aggression or attacks that would pose a direct threat, e.g., German
Shepherds. Other jurisdictions prohibit animals over a certain
weight, thereby restricting breeds without invoking an express breed
ban. In addition, deference to breed restrictions contained in local
laws would have the unacceptable consequence of restricting travel
by an individual with a disability who uses a breed that is
acceptable and poses no safety hazards in the individual's home
jurisdiction but is nonetheless banned by other jurisdictions.
Public accommodations have the ability to determine, on a case-by-
case basis, whether a particular service animal can be excluded
based on that particular animal's actual behavior or history--not
based on fears or generalizations about how an animal or breed might
behave. This ability to exclude an animal whose behavior or history
evidences a direct threat is sufficient to protect health and
safety.
Recognition of psychiatric service animals, but not ``emotional
support animals.'' The definition of ``service animal'' in the NPRM
stated the Department's longstanding position that emotional support
animals are not included in the definition of ``service animal.''
The proposed text provided that ``[a]nimals whose sole function is
to provide emotional support, comfort, therapy, companionship,
therapeutic benefits, or to promote emotional well-being are not
service animals.'' 73 FR 34508, 34553 (June 17, 2008).
Many advocacy organizations expressed concern and disagreed with
the exclusion of comfort and emotional support animals. Others have
been more specific, stating that individuals with disabilities may
need their emotional support animals in order to have equal access.
Some commenters noted that individuals with disabilities use animals
that have not been trained to perform tasks directly related to
their disability. These animals do not qualify as service animals
under the ADA. These are emotional support or comfort animals.
Commenters asserted that excluding categories such as
``comfort'' and ``emotional support'' animals recognized by laws
such as the FHAct or the ACAA is confusing and burdensome. Other
commenters noted that emotional support and comfort animals perform
an important function, asserting that animal companionship helps
individuals who experience depression resulting from multiple
sclerosis.
Some commenters explained the benefits emotional support animals
provide, including emotional support, comfort, therapy,
companionship, therapeutic benefits, and the promotion of emotional
[[Page 56269]]
well-being. They contended that without the presence of an emotional
support animal in their lives they would be disadvantaged and unable
to participate in society. These commenters were concerned that
excluding this category of animals will lead to discrimination
against and excessive questioning of individuals with non-visible or
non-apparent disabilities. Other commenters expressing opposition to
the exclusion of individually trained ``comfort'' or ``emotional
support'' animals asserted that the ability to soothe or de-escalate
and control emotion is ``work'' that benefits the individual with
the disability.
Many commenters requested that the Department carve out an
exception that permits current or former members of the military to
use emotional support animals. They asserted that a significant
number of service members returning from active combat duty have
adjustment difficulties due to combat, sexual assault, or other
traumatic experiences while on active duty. Commenters noted that
some current or former members of the military service have been
prescribed animals for conditions such as PTSD. One commenter stated
that service women who were sexually assaulted while in the military
use emotional support animals to help them feel safe enough to step
outside their homes. The Department recognizes that many current and
former members of the military have disabilities as a result of
service-related injuries that may require emotional support and that
such individuals can benefit from the use of an emotional support
animal and could use such animal in their home under the FHAct.
However, having carefully weighed the issues, the Department
believes that its final rule appropriately addresses the balance of
issues and concerns of both the individual with a disability and the
public accommodation. The Department also notes that nothing in this
part prohibits a public entity from allowing current or former
military members or anyone else with disabilities to utilize
emotional support animals if it wants to do so.
Commenters asserted the view that if an animal's ``mere
presence'' legitimately provides such benefits to an individual with
a disability and if those benefits are necessary to provide equal
opportunity given the facts of the particular disability, then such
an animal should qualify as a ``service animal.'' Commenters noted
that the focus should be on the nature of a person's disability, the
difficulties the disability may impose and whether the requested
accommodation would legitimately address those difficulties, not on
evaluating the animal involved. The Department understands this
approach has benefitted many individuals under the FHAct and
analogous State law provisions, where the presence of animals poses
fewer health and safety issues and where emotional support animals
provide assistance that is unique to residential settings. The
Department believes, however, that the presence of such animals is
not required in the context of public accommodations, such as
restaurants, hospitals, hotels, retail establishments, and assembly
areas.
Under the Department's previous regulatory framework, some
individuals and entities assumed that the requirement that service
animals must be individually trained to do work or perform tasks
excluded all individuals with mental disabilities from having
service animals. Others assumed that any person with a psychiatric
condition whose pet provided comfort to them was covered by the 1991
title III regulation. The Department reiterates that psychiatric
service animals that are trained to do work or perform a task for
individuals 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 for persons
with PTSD, interrupting self-mutilation, and removing disoriented
individuals from dangerous situations.
The difference between an emotional support animal and a
psychiatric service animal is the work or tasks that the animal
performs. Traditionally, service dogs worked as guides for
individuals who were blind or had low vision. Since the original
regulation was promulgated, service animals have been trained to
assist individuals with many different types of disabilities.
In the final rule, the Department has retained its position on
the exclusion of emotional support animals from the definition of
``service animal.'' The definition states that ``[t]he provision of
emotional support, well-being, comfort, or companionship * * *
do[es] not constitute work or tasks for the purposes of this
definition.'' The Department notes, however, that the exclusion of
emotional support animals from coverage in the final rule does not
mean that individuals with psychiatric or mental disabilities cannot
use service animals that meet the regulatory definition. The final
rule defines service animal as follows: ``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.''
This language simply clarifies the Department's longstanding
position.
The Department's position is based on the fact that the title II
and title III regulations govern a wider range of public settings
than the housing and transportation settings for which the
Department of Housing and Urban Development (HUD) and the DOT
regulations allow emotional support animals or comfort animals. The
Department recognizes that there are situations not governed by the
title II and title III regulations, particularly in the context of
residential settings and transportation, where there may be a legal
obligation to permit the use of animals that do not qualify as
service animals under the ADA, but whose presence nonetheless
provides necessary emotional support to persons with disabilities.
Accordingly, other Federal agency regulations, case law, and
possibly State or local laws governing those situations may provide
appropriately for increased access for animals other than service
animals as defined under the ADA. Public officials, housing
providers, and others who make decisions relating to animals in
residential and transportation settings should consult the Federal,
State, and local laws that apply in those areas (e.g., the FHAct
regulations of HUD and the ACAA) and not rely on the ADA as a basis
for reducing those obligations.
Retain term ``service animal.'' Some commenters asserted that
the term ``assistance animal'' is a term of art and should replace
the term ``service animal''; however, the majority of commenters
preferred the term ``service animal'' because it is more specific.
The Department has decided to retain the term ``service animal'' in
the final rule. While some agencies, like HUD, use the terms
``assistance animal,'' ``assistive animal,'' or ``support animal,''
these terms are used to denote a broader category of animals than is
covered by the ADA. The Department has decided that changing the
term used in the final rule would create confusion, particularly in
view of the broader parameters for coverage under the FHAct, cf.
Preamble to HUD's Final Rule for Pet Ownership for the Elderly and
Persons with Disabilities, 73 FR 63834-38 (Oct. 27, 2008); HUD
Handbook No. 4350.3 Rev-1, Chapter 2, Occupancy Requirements of
Subsidized Multifamily Housing Programs (June 2007), available at
http://www.hud.gov/offices/adm/hudclips/handbooks/hsgh/4350.3 (last
visited June 24, 2010). Moreover, as discussed above, the
Department's definition of ``service animal'' in the final rule does
not affect the rights of individuals with disabilities who use
assistance animals in their homes under the FHAct or who use
``emotional support animals'' that are covered under the ACAA and
its implementing regulations. See 14 CFR 382.7 et seq.; see also
Department of Transportation, Guidance Concerning Service Animals in
Air Transportation, 68 FR 24874, 24877 (May 9, 2003) (discussing
accommodation of service animals and emotional support animals on
aircraft).
xxxxxxxxxxxxxxxxx
Subpart C--Specific Requirements
Section 36.302 Modifications in Policies, Practices, or Procedures
Section 36.302(c) Service Animals
Section 36.302(c)(1) of the 1991 title III regulation states
that ``[g]enerally, a public accommodation shall modify [its]
policies, practices, or procedures to permit the use of service
animals by an individual with a disability.'' Section 36.302(c)(2)
of the 1991 title III regulation states that ``[n]othing in this
part requires a public accommodation to supervise or care for a
service animal.'' The Department has decided to retain the scope of
the 1991 title III regulation while clarifying the Department's
longstanding policies and interpretations. Toward that end, the
final rule has been revised to include the Department's policy
interpretations as outlined in published technical assistance,
Commonly Asked Questions about Service Animals in Places of Business
(1996), available at http://www.ada.gov/qasrvc.htm, and ADA Guide
for Small Businesses (1999), available at http://www.ada.gov/smbustxt.htm, and to add that a public accommodation may exclude a
service animal in certain circumstances where the service animal
fails to meet certain behavioral standards. The Department received
extensive comments in response to proposed Sec. 36.302(c) from
individuals, disability advocacy groups, organizations involved in
training service animals, and public accommodations. Those comments
and the Department's response are discussed below.
Exclusion of service animals. The 1991 regulatory provision in
Sec. 36.302(c) addresses reasonable modification and remains
unchanged in the final rule. However, based
[[Page 56271]]
on comments received and the Department's analysis, the Department
has decided to clarify those circumstances where otherwise eligible
service animals may be excluded by public accommodations.
In the NPRM, in Sec. 36.302(c)(2)(i), the Department proposed
that a public accommodation may ask an individual with a disability
to remove a service animal from the place of public accommodation if
``[t]he animal is out of control and the animal's handler does not
take effective action to control it.'' 73 FR 34508, 34553 (June 17,
2008). The Department has long held that a service animal must be
under the control of the handler at all times. Commenters
overwhelmingly were in favor of this language, but noted that there
are occasions when service animals are provoked to disruptive or
aggressive behavior by agitators or troublemakers, as in the case of
a blind individual whose service dog is taunted or pinched. While
all service animals are trained to ignore and overcome these types
of incidents, misbehavior in response to provocation is not always
unreasonable. In circumstances where a service animal misbehaves or
responds reasonably to a provocation or injury, the public
accommodation must give the handler a reasonable opportunity to gain
control of the animal. Further, if the individual with a disability
asserts that the animal was provoked or injured, or if the public
accommodation otherwise has reason to suspect that provocation or
injury has occurred, the public accommodation should seek to
determine the facts and, if provocation or injury occurred, the
public accommodation should take effective steps to prevent further
provocation or injury, which may include asking the provocateur to
leave the place of public accommodation. This language is unchanged
in the final rule.
The NPRM also proposed language at Sec. 36.302(c)(2)(ii) to
permit a public accommodation to exclude a service animal if the
animal is not housebroken (i.e., trained so that, absent illness or
accident, the animal controls its waste elimination) or the animal's
presence or behavior fundamentally alters the nature of the service
the public accommodation provides (e.g., repeated barking during a
live performance). Several commenters were supportive of this NPRM
language, but cautioned against overreaction by the public
accommodation in these instances. One commenter noted that animals
get sick, too, and that accidents occasionally happen. In these
circumstances, simple clean up typically addresses the incident.
Commenters noted that the public accommodation must be careful when
it excludes a service animal on the basis of ``fundamental
alteration,'' asserting for example, that a public accommodation
should not exclude a service animal for barking in an environment
where other types of noise, such as loud cheering or a child crying,
is tolerated. The Department maintains that the appropriateness of
an exclusion can be assessed by reviewing how a public accommodation
addresses comparable situations that do not involve a service
animal. The Department has retained in Sec. 36.302(c)(2) of the
final rule the exception requiring animals to be housebroken. The
Department has not retained the specific NPRM language stating that
animals can be excluded if their presence or behavior fundamentally
alters the nature of the service provided by the public
accommodation, because the Department believes that this exception
is covered by the general reasonable modification requirement
contained in Sec. 36.302(c)(1).
The NPRM also proposed in Sec. 36.302(c)(2)(iii) that a service
animal can be excluded where ``[t]he animal poses a direct threat to
the health or safety of others that cannot be eliminated by
reasonable modifications.'' 73 FR 34508, 34553 (June 17, 2008).
Commenters were universally supportive of this provision as it makes
express the discretion of a public accommodation to exclude a
service animal that poses a direct threat. Several commenters
cautioned against the overuse of this provision and suggested that
the Department provide an example of the rule's application. The
Department has decided not to include regulatory language
specifically stating that a service animal can be excluded if it
poses a direct threat. The Department believes that the direct
threat provision in Sec. 36.208 already provides this exception to
public accommodations.
Access to a public accommodation following the proper exclusion
of a service animal. The NPRM proposed that in the event a public
accommodation properly excludes a service animal, the public
accommodation must give the individual with a disability the
opportunity to obtain the goods and services of the public
accommodation without having the service animal on the premises.
Most commenters welcomed this provision as a common sense approach.
These commenters noted that they do not wish to preclude individuals
with disabilities from the full and equal enjoyment of the goods and
services simply because of an isolated problem with a service
animal. The Department has elected to retain this provision in Sec.
36.302(c)(2).
Other requirements. The NPRM also proposed that the regulation
include the following requirements: that the work or tasks performed
by the service animal must be directly related to the handler's
disability; that a service animal must be individually trained to do
work or perform a task, be housebroken, and be under the control of
the handler; and that a service animal must have a harness, leash,
or other tether. Most commenters addressed at least one of these
issues in their responses. Most agreed that these provisions are
important to clarify further the 1991 service animal regulation. The
Department has moved the requirement that the work or tasks
performed by the service animal must be related directly to the
handler's disability to the definition of ``service animal'' in
Sec. 36.104. In addition, the Department has modified the proposed
language relating to the handler's control of the animal with a
harness, leash, or other tether to state that ``[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).'' The Department has retained
the requirement that the service animal must be individually
trained, as well as the requirement that the service animal be
housebroken.
Responsibility for supervision and care of a service animal. The
1991 title III regulation, in Sec. 36.302(c)(2), states that
``[n]othing in this part requires a public accommodation to
supervise or care for a service animal.'' The NPRM modified this
language to state that ``[a] public accommodation is not responsible
for caring for or supervising a service animal.'' 73 FR 34508, 34553
(June 17, 2008). Most commenters did not address this particular
provision. The Department notes that there are occasions when a
person with a disability is confined to bed in a hospital for a
period of time. In such an instance, the individual may not be able
to walk or feed the service animal. In such cases, if the individual
has a family member, friend, or other person willing to take on
these responsibilities in the place of the individual with a
disability, the individual's obligation to be responsible for the
care and supervision of the service animal would be satisfied. The
language of this section is retained, with minor modifications, in
Sec. 36.302(c)(5) of the final rule.
Inquiries about service animals. The NPRM proposed language at
Sec. 36.302(c)(6) setting forth parameters about how a public
accommodation may determine whether an animal qualifies as a service
animal. The proposed section stated that a public accommodation may
ask if the animal is required because of a disability and what task
or work the animal has been trained to do but may not require proof
of service animal certification or licensing. Such inquiries are
limited to eliciting the information necessary to make a decision
without requiring disclosure of confidential disability-related
information that a public accommodation does not need.
This language is consistent with the policy guidance outlined in
two Department publications, Commonly Asked Questions about Service
Animals in Places of Business (1996), available at http://www.ada.gov/qasrvc.htm, and ADA Guide for Small Businesses (1999),
available at http://www.ada.gov/smbustxt.htm.
Although some commenters contended that the NPRM service animal
provisions leave unaddressed the issue of how a public accommodation
can distinguish between a psychiatric service animal, which is
covered under the final rule, and a comfort animal, which is not,
other commenters noted that the Department's published guidance has
helped public accommodations to distinguish between service animals
and pets on the basis of an individual's response to these
questions. Accordingly, the Department has retained the NPRM
language incorporating its guidance concerning the permissible
questions into the final rule.
Some commenters suggested that a title III entity be allowed to
require current
[[Page 56272]]
documentation, no more than one year old, on letterhead from a
mental health professional stating the following: (1) That the
individual seeking to use the animal has a mental health-related
disability; (2) that having the animal accompany the individual is
necessary to the individual's mental health or treatment or to
assist the person otherwise; and (3) that the person providing the
assessment of the individual is a licensed mental health
professional and the individual seeking to use the animal is under
that individual's professional care. These commenters asserted that
this will prevent abuse and ensure that individuals with legitimate
needs for psychiatric service animals may use them. The Department
believes that this proposal would treat persons with psychiatric,
intellectual, and other mental disabilities less favorably than
persons with physical or sensory disabilities. The proposal would
also require persons with disabilities to obtain medical
documentation and carry it with them any time they seek to engage in
ordinary activities of daily life in their communities--something
individuals without disabilities have not been required to do.
Accordingly, the Department has concluded that a documentation
requirement of this kind would be unnecessary, burdensome, and
contrary to the spirit, intent, and mandates of the ADA.
Service animal access to areas of a public accommodation. The
NPRM proposed at Sec. 36.302(c)(7) that an individual with a
disability who uses a service animal has the same right of access to
areas of a public accommodation as members of the public, program
participants, and invitees. Commenters indicated that allowing
individuals with disabilities to go with their service animals into
the same areas as members of the public, program participants,
clients, customers, patrons, or invitees is accepted practice by
most places of public accommodation. The Department has included a
slightly modified version of this provision in Sec. 36.302(c)(7) of
the final rule.
The Department notes that under the final rule, a healthcare
facility must also permit a person with a disability to be
accompanied by a service animal in all areas of the facility in
which that person would otherwise be allowed. There are some
exceptions, however. The Department follows the guidance of the
Centers for Disease Control and Prevention (CDC) on the use of
service animals in a hospital setting. Zoonotic diseases can be
transmitted to humans through bites, scratches, direct contact,
arthropod vectors, or aerosols.
Consistent with CDC guidance, it is generally appropriate to
exclude a service animal from limited-access areas that employ
general infection-control measures, such as operating rooms and burn
units. See Centers for Disease Control and Prevention, Guidelines
for Environmental Infection Control in Health-Care Facilities:
Recommendations of CDC and the Healthcare Infection Control
Practices Advisory Committee (June 2003), available at http://www.cdc.gov/hicpac/pdf/guidelines/eic_in_HCF_03.pdf (last visited
June 24, 2010). A service animal may accompany its handler 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, restrooms, and all other areas of the facility
where healthcare personnel, patients, and visitors are permitted
without taking added precautions.
Prohibition against surcharges for use of a service animal. In
the NPRM, the Department proposed to incorporate the previously
mentioned policy guidance, which prohibits the assessment of a
surcharge for the use of a service animal, into proposed Sec.
36.302(c)(8). Several commenters agreed that this provision makes
clear the obligation of a place of public accommodation to admit an
individual with a service animal without surcharges, and that any
additional costs imposed should be factored into the overall cost of
doing business and passed on as a charge to all participants, rather
than an individualized surcharge to the service animal user.
Commenters also noted that service animal users cannot be required
to comply with other requirements that are not generally applicable
to other persons. 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
animals. The Department has retained this language, with minor
modifications, in the final rule at Sec. 36.302(c)(8).
Training requirement. Certain commenters recommended the
adoption of formal training requirements for service animals. The
Department has rejected this approach and will not impose any type
of formal training requirements or certification process, but will
continue to require that service animals be individually trained to
do work or perform tasks for the benefit of an individual with a
disability. While some groups have urged the Department to modify
this position, the Department has determined that such a
modification would not serve the full array of individuals with
disabilities who use service animals, since individuals with
disabilities may be capable of training, and some have trained,
their service animal to perform tasks or do work to accommodate
their disability. A training and certification requirement would
increase the expense of acquiring a service animal and might limit
access to service animals for individuals with limited financial
resources.
Some commenters proposed specific behavior or training standards
for service animals, arguing that without such standards, the public
has no way to differentiate between untrained pets and service
animals. Many of the suggested behavior or training standards were
lengthy and detailed. The Department believes that this rule
addresses service animal behavior sufficiently by including
provisions that address the obligations of the service animal user
and the circumstances under which a service animal may be excluded,
such as the requirements that an animal be housebroken and under the
control of its handler.
Miniature horses. The Department has been persuaded by
commenters and the available research to include a provision that
would require public accommodations to make reasonable modifications
to policies, practices, or procedures to permit the use of a
miniature horse by a person 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. The traditional service
animal is a dog, which has a long history of guiding individuals who
are blind or have low vision, and over time dogs have been trained
to perform an even wider variety of services for individuals with
all types of disabilities. However, an organization that developed a
program to train miniature horses, modeled on the program used for
guide dogs, began training miniature horses in 1991.
Although commenters generally supported the species limitations
proposed in the NPRM, some were opposed to the exclusion of
miniature horses from the definition of a service animal. These
commenters noted that these animals have been providing assistance
to persons with disabilities for many years. Miniature horses were
suggested by some commenters as viable alternatives to dogs for
individuals with allergies, or for those whose religious beliefs
preclude the use of dogs. Another consideration mentioned in favor
of the use of miniature horses is the longer life span and strength
of miniature horses in comparison to dogs. Specifically, miniature
horses can provide service for more than 25 years while dogs can
provide service for approximately seven years, and, because of their
strength, miniature horses can provide services that dogs cannot
provide. Accordingly, use of miniature horses reduces the cost
involved to retire, replace, and train replacement service animals.
The miniature horse is not one specific breed, but may be one of
several breeds, with distinct characteristics that produce animals
suited to service animal work. These animals generally range in
height from 24 inches to 34 inches measured to the withers, or
shoulders, and generally weigh between 70 and 100 pounds. These
characteristics are similar to those of large breed dogs, such as
Labrador Retrievers, Great Danes, and Mastiffs. Similar to dogs,
miniature horses can be trained through behavioral reinforcement to
be ``housebroken.'' Most miniature service horse handlers and
organizations recommend that when the animals are not doing work or
performing tasks, the miniature horses should be kept outside in a
designated area instead of indoors in a house.
According to information provided by an organization that trains
service horses, these miniature horses are trained to provide a wide
array of services to their handlers, primarily guiding individuals
who are blind or have low vision, pulling wheelchairs, providing
stability and balance for individuals with disabilities that impair
the ability to walk, and supplying leverage that enables a person
with a mobility disability to get up after a fall. According to the
commenter, miniature horses are particularly effective for large
stature individuals. The animal can be trained to stand (and in some
cases, lie down) at the handler's feet in venues where space is at a
premium, such as assembly areas or inside some vehicles that
[[Page 56273]]
provide public transportation. Some individuals with disabilities
have traveled by train and have flown commercially with their
miniature horses.
The miniature horse is not included in the definition of service
animal, which is limited to dogs. However, the Department has added
a specific provision at Sec. 36.302(c)(9) of the final rule
covering miniature horses. Under this provision, public
accommodations must 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. The public accommodation may take
into account a series of assessment factors in determining whether
to allow a miniature horse into a specific facility. These include
the type, size, and weight of the miniature horse, whether the
handler has sufficient control of the miniature horse, whether the
miniature horse is housebroken, and whether the miniature horse's
presence in a specific facility compromises legitimate safety
requirements that are necessary for safe operation. In addition,
paragraphs (c)(3)B-(8) of this section, which are applicable to
dogs, also apply to miniature horses.
Ponies and full-size horses are not covered by Sec.
36.302(c)(9). Also, because miniature horses can vary in size and
can be larger and less flexible than dogs, covered entities may
exclude this type of service animal if the presence of the miniature
horse, because of its larger size and lower level of flexibility,
results in a fundamental alteration to the nature of the services
provided.
xxxxxxxxxxxxxxxxxx
Dated: July 23, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010-21824 Filed 9-14-10; 8:45 am]
BILLING CODE 4410-13-P
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