In July 2010, the DOJ issued final regulations revising the Americans with Disabilities Act (ADA), including the definition of a “service animal.” DOJ published the new regulations in the Federal Register on September 15, 2010, with the final rules taking effect March 15, 2011. 28 C.F.R. Part 35 (Title II) applies to state and local government entities, and 28 C.F.R. Part 36 (Title III) (applies to public accommodations and commercial facilities.
The final rule limits “service animals” to dogs, disqualifying other species and rejecting requests to include “common domestic animals” or primates. Nonetheless, the rule contains an interesting discussion about animals such as capuchin monkeys trained to assist paraplegics and quadriplegics, and how reasonable accommodations for these animals under the Fair Housing Act is appropriate.
DOJ’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.”
The Rule changed the phrase “providing minimal protection” to “providing non-violent protection.” This change was meant to include seizure alert dogs, while specifically excluding attack dogs and dogs kept solely as a crime-deterrent effect. Similarly, the Rule changed the language “alerting to intruders” to “alerting to the presence of people or sounds,” in order to include dogs trained to alert a person who is deaf or hard of hearing to a doorbell ring, but exclude watch or attack dogs.
There was much discussion about the phrases “doing work” or “performing tasks,” with particular concern about whether a dog assisting a person with a psychiatric disorder would qualify. The Rule refused to change these phrases, noting that a dog assisting a person with a psychiatric disorder easily qualifies as “doing work” and “performing tasks” based on its training in recognition (e.g., awareness of an imminent psychiatric episode) and response (e.g., nudging, barking or moving the person to a safe location).
As noted above, the Rule recognizes the role of psychiatric service animals, but not “emotional support animals.” Once again, the Rule noted that the appropriateness of an emotional support animal under the Fair Housing Act and the Air Carrier Access Act, but refused to include emotional support animals under the wider umbrella of public settings that are covered by the ADA. On this note, the Rule specifically retained the term “service animal,” refusing to accept other terms such as “assistance animal” or “support animal.” Although the Rule refused to create a carve out for military personnel, the Rule did note its support of state or other laws that would allow emotional support animals for current and former members of the military.
Most notably, the Rule refused to set size, weight or breed limitations. The Rule made it abundantly clear that the ADA would not bow to state or local breed restrictions, primarily because the ADA already allows exclusion of an animal based on the specific animal’s actual behavior or history. For an insightful discussion about the Rule and breed restrictions, don’t miss Bob Barr’s The Barr Code post, Federal Law Leashes Pit Bull Restrictions, in the Atlanta Journal Constitution.
You may also consult DOJ’s ADA fact sheet on the final regulations to Title II and the fact sheet for Title III, and take a look at this post on Service Dog Central and the related links.
On a very interesting sidenote, the Washington Post recently took a look at a study by the Equal Rights Center showing that half of DC cabs will drive right by a blind person with a service dog. So how do you enforce the requirement that cabs make reasonable accommodations in that situation?