proposed guidelines for service animals

Greetings. The following note was sent to several guide dog related email lists and is posted here for your convenience and information. Links are provided where appropriate. Please consider submitting your comments on the following proposed changes. Enjoy.

***
New ADA Service Animal Definition Proposed in USA

Deadline for Public Comments: August 18, 2008!

Dear Friends,

You can make a difference! The Department of Justice (DOJ) has just
released a Notice of Proposed Rule Making (NPRM) having major implications
for those of us working with guide, hearing and service dogs. Your
comments and opinions need to be heard by DOJ before it finalizes the new
and expanded definition of service animal.

IAADP has sent its comments on several issues to DOJ and that document
follows this letter. It's important for you to respond to DOJ's
recommendations since our future access rights depend on the federal
government's rules implementing the Americans with Disabilities Act.

In DOJ's new definition of service animal, input is requested on three
major issues. These are the possibility of setting a size and weight
limit on service animals, retaining the phrase minimal protection in the
new definition and excluding a wide variety of species.

IAADP has responded as an organization, but your personal letters will
cary great weight. IAADP opposes any size and weight limitations on
service animals, requests eliminating the minimal protection phrase and
recommends the same behavior and training standards developed for
assistance dogs apply to all service animals. These positions are
detailed in the enclosed

In order for your voice to be heard, please write your own opinion piece
and follow the directions for submission given below. The Department of
Justice has made it easy to submit your comment by e-mail.

Please join IAADP in this campaign. Your opinions need to be
heard! Thanks for your help.

Ed Eames, Ph.D., President

Please click on the following link in order to submit your opinion piece
to the Department of Justice:

http://www.regulations.gov/fdmspublic/component/main?main=SubmitComment&o=090000648062a604


International Association of Assistance Dog Partners
Ed Eames Ph.D., President

* 3376 North Wishon Ave. * Fresno, CA 93704 *

* (559) 224-0544 * (559) 224-5851 Fax *
http://www.iaadp.org/

eeames@csufresno.edu

* www.IAADP.org

Board of Directors:

Toni Eames, Tanya Eversole, Jill Exposito, Joan Froling, Wendy Morrell,
Devon Wilkins


IAADP's Public Comment on the Department of Justice 2008 NPRM
Re: Revision of the ADA Service Animal Definition
Docket ID: DOJ-CRT-2008-0015

The International Association of Assistance Dog Partners (IAADP) is a
cross-disability consumer advocacy organization with more than 2,000
members working with guide, hearing and service dogs. Its mission is to
foster the assistance dog movement through education, advocacy and peer
support.

We commend the Department of Justice for including in its revised proposed
definition of service animal a number of new and essential elements,
particularly emphasis on maintaining control of the service animal in
public settings and the requirement of housebreaking. As an organization
committed to fostering the assistance dog movement, IAADP appreciates the
Department of Justice's attempt to clarify the definition of service
animal for the general population, public accommodation representatives
and those working with service animals. However, IAADP believes certain
issues need further clarification before being established as final rules.

In response to the NPRM published in the Federal Register on June 17th,
IAADP, based on the rationale discussed below, encourages the Department
of Justice to:
* Eliminate the phrase "providing minimal protection" from the
definition of service animal;
* Eliminate the phrase "do work" from the definition because it is
redundant and the example of work given in the NPRM,
grounding, undermines the Department's goal of maintaining a clear
distinction between specially trained service animals and those animals
whose mere presence can provide emotional support, companionship or
therapeutic benefits.
* Limit the use of other species only to animals which can be trained
to meet the same standards for behavior and training that assistance dogs
must meet to qualify for public access.
* Avoid placing a size or weight limit on common domestic animals such
as assistance dogs.

According to the NPRM, widespread misinterpretation of the minimal
protection language has been a problem for the last 15 years. The DOJ
notes "Despite the Department's best efforts, the minimal protection
language appears to have been misinterpreted."

By continuing the use of this language, nothing will change.

Since the mission of the new rules is to clarify and avoid confusion,
maintenance of this phrase undermines this goal.

Minimal protection has been used by some trainers and disabled partners to
justify attack and aggression training for what are claimed to be service
animals. Although the Department does not agree with this interpretation,
continuing to use the minimal protection phrase does nothing to curtail
the idea that attack and aggressive behavior are acceptable tasks
performed by assistance dogs.

The justification for including minimal protection in the original
definition was to guarantee the rights of those with seizure disorders to
train their service dogs for seizure response and alert tasks. Since the
new definition proposed by the Department includes assisting an individual
during a seizure, the minimal protection language is redundant and not
needed.

Therefore, in response to Question Nine, IAADP believes that maintaining
the "providing minimal protection" clause is counterproductive to the goal
of the current NPRM.

IAADP applauds DOJ's categorical statement: "Animals whose sole function
is to provide emotional support, comfort, therapy, companionship,
therapeutic benefits, or to promote emotional well-being are not service
animals."

IAADP believes it is imperative to make it clear that individuals with
disabilities whose pets or companion animals have not been trained to
perform tasks directly related to their disability do not qualify as
service animals. These are usually referred to as emotional support or
comfort dogs when associated with a person with a psychiatric, cognitive
or mental disability. Since individuals with psychiatric disabilities
constitute the largest single category of Americans with disabilities, the
distinction between task training to mitigate the effects of an
individual’s disability on the one hand, and mere presence on the other
should be clear and consistently supported by the Department.

IAADP'S concern is with the section in the NPRM that reads:

"In contrast, the phrase 'do work' is slightly broader than ’perform
tasks', and adds meaning to the definition." By definition all work is
task defined thus to say "do work" is redundant and not needed.

Another concern is the example given of a psychiatric service dog helping
some individuals with dissociative identity disorder to remain grounded in
time or place. By including grounding as work performed by a psychiatric
service dog, the Department is providing the basis for an individual with
a psychiatric disability to claim the mere presence of a dog, which helps
ground him/her, meets the DOJ definition of a service animal.

This reference contradicts the strong and clear statement that emotional
support, companion or comfort animals do not meet the Department's
definition of a service animal. It also contradicts the basic premise that
a service animal performs a task to mitigate the effects of an
individual’s disability. If included, this section will continue to be a
source of confusion to the public, businesses and assistance dog
partners. IAADP believes the reference to grounding should be eliminated,
as well as the phrase "do work".

In response to Question Ten, IAADP commends the Department for recognizing
the concerns expressed by many of our constituents about the use of
reptiles and other species that cannot be reliably housebroken, task
trained or, which by their very nature, pose a threat to public
safety. Our goal is to promote the responsible use of access rights and
prevent the erosion of societal tolerance for service animal teams in
places of public accommodation.

In response to Question 11 concerning the size and weight of common
domestic animals, IAADP endorses the current Department policy. We
believe it is not the role of the government to limit disabled people's
choice of what would be an effective assistance dog for them.

The size of a common domestic animal like an assistance dog is a matter of
individual choice/necessity and may be related to the nature of the
disability. Limiting size and weight would discriminate against disabled
individuals who because of their height or weight and/or the severity of
their mobility impairment need to work with very large powerful assistance
dogs on strenuous tasks such as providing stability while walking, helping
transfer in and out of chairs, getting up after a fall or pulling a
wheelchair. IAADP recommends not placing limits on the size or weight of a
common domestic animal like an assistance dog.

With the incorporation of IAADP's recommendations in the new definitions,
we feel that the current confusion and misinterpretations will be greatly
mitigated to everyone's benefit.

Thank you for the opportunity to comment on the NPRM.

Ed Eames, Ph.D., President
International Association of Assistance Dog Partners


***
Excerpts from ADA Notice of Proposed Rulemaking

New Proposed Service Animal Definition

PART 36-NONDISCRIMINATIO
N ON THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES

Subpart A-General

PROPOSED DEFINITION

Service animal means any dog or other common domestic 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 who are
blind or have low vision, alerting individuals who are deaf or hard of
hearing to the presence of people or sounds, providing minimal protection
or rescue work, pulling a wheelchair, fetching items, assisting an
individual during a seizure, retrieving medicine or the telephone,
providing physical support and assistance with balance and stability to
individuals with mobility disabilities, and assisting individuals,
including those with cognitive disabilities, with navigation. The term
service animal includes

Service animals.

The Department wishes to clarify the obligations of public accommodations
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 that many covered entities
are confused regarding their obligations under the ADA with regard to
individuals with disabilities who use service animals. At the same time,
some individuals with impairments-
-who would not be covered as individuals
with disabilities--are claiming that their animals are legitimate service
animals, whether fraudulently or sincerely (albeit mistakenly), to gain
access to hotels, restaurants, and other places of public accommodatio
Minimal protection.

In the Department’s ADA Business Brief on Service Animals,
which was published in 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). Although the Department
received comments urging it to eliminate the minimal protection language,
the Department continues to believe that it should retain the "providing
minimal protection" language and interpret the language to exclude
so-called "attack dogs" that pose a direct threat to others.

Guidance on permissible service animals.

In the original regulation implementing title III, "service animal" was
defined as "any guide dog, signal dog, or other animal," and the
Department believed, at the time, that leaving the species selection up to
the discretion of the person with a disability was the best course of
action. Due to the proliferation of animals used by individuals,
including wild animals, the Department believes that this area needs some
parameters. Therefore, the Department is proposing to eliminate certain
species from coverage 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 perform tasks excluded all individuals
with mental disabilities from having service animals. Others have assumed
that any person with a psychiatric condition whose pet provided comfort to
them 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 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, 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 § 36.104 to formalize
its position on emotional support/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 state,
however, that the exclusion of emotional support animals from ADA coverage
does not mean that individuals with psychiatric, cognitive, or mental
disabilities cannot use service animals. The Department proposes specific
regulatory text in § 36.104 to make this clear: "The 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
Departmen

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.

Modification in policies, practices, or procedures.

The preamble to § 36.302 of the current title III regulation states that
the regulatory language was intended to provide the "broadest feasible
access" to individuals with service animals while acknowledging that, in
rare circumstances, accommodating service animals may not be required if
it would result in a fundamental alteration of the nature of the goods or
services the public accommodation provides or the safe operation of the
public accommodation. 56 FR 35544, 35565 (July 26, 1991). In order to
clarify this provision, the Department is incorporating into the proposed
regulation guidance that it has provided previously through technical
assistance.

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 groups have urged the
Department to modify this position, the Department does not believe 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 definition
section, § 36.104, and the section on modifications in policies,
practices, and procedures, § 36.302(c).

Section 36.302 Modifications in policies, practices, or procedures

Section 36.302(c) Service animals

The Department’s regulation now states 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." 28 CFR
36.302(c)(1). In general, the Department is proposing to retain the scope
of the current regulation while clarifying its longstanding policies and
interpretations.

The Department is proposing to revise § 36.302(c) by adding the following
sections as exceptions to the general rule on access. Proposed § 36.302
would:

* Expressly incorporate the Department’s policy interpretations as
outlined in published technical assistance Commonly Asked Questions about
Service Animals (1996)
(http://www.ada.gov/qasrvc.htm
) and ADA
Business Brief: Service Animals (2002)
(http://www.ada.gov/svcanimb.htm
) and
add that a public accommodation may ask an individual with a disability
to remove a service animal from the premises if: (1) the animal is out
of control and the animal’s owner does not take effective action to
control it; (2) the animal is not housebroken 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); or (3) the animal poses a direct threat to the heal
* Add that if a place of public accommodation properly excludes a
service animal, the public accommodation must give the individual with a
disability the opportunity to obtain goods, services, or accommodations
without having the service animal on the premises;
* Add requirements that the work or tasks performed by a service
animal must be directly related to the handler’s disability; that a
service animal that accompanies an individual with a disability into a
place of public accommodation must be individually trained to do work or
perform a task, be housebroken, and be under the control of its owner;
and that a service animal must have a harness, leash, or other tether;
* Modify the language in § 36.302(c)(2), which currently states,
"[n]othing in this part requires a public accommodation to supervise or
care for a service animal," to read, "[a] public accommodation is not
responsible for caring for or supervising a service animal," and relocate
this provision to proposed § 36.302(c)(5). (This proposed language does
not require that the person with a disability care for his or her service
animal if care can be provided by a family member, friend, attendant,
volunteer, or anyone acting on behalf of the person with a disability.);
* Expressly incorporate the Department’s policy interpretations as
outlined in published technical assistance Commonly Asked Questions about
Service Animals
(1996) (
http://www.ada.gov/qasrvc.htm
)
and ADA Business Brief: Service Animals
(2002)
(http://www.ada.gov/svcanimb.htm
) that a
public accommodation must not ask about the nature or extent of a
person’s disability, nor require proof of service animal certification or
licensing, but that a public accommodation may ask: (i) if the animal is
required because of a disability; and (ii) what work or tasks the animal
has been trained to perform;
* Add that individuals with disabilities who are accompanied by
service animals may access all areas of a public accommodation where
members of the public are allowed to go; and
* Expressly incorporate the Department’s policy interpretations as
outlined in published technical assistance Commonly Asked Questions about
Service Animals
(1996) (
http://www.ada.gov/qasrvc.htm
)
and ADA Business Brief: Service Animals
(2002)
(
http://www.ada.gov/svcanimb.htm
) and
add that a public accommodation must not require an individual with a
disability to pay a fee or surcharge, post a deposit, or comply with
requirements not generally applicable to other patrons as a condition of
permitting a service animal to accompany its handler in a place of public
accommodation, even if such deposits are required for pets, and that if a
public accommodation normally charges its clients or customers for damage
that they cause, a customer with a disability may

These changes will respond to the following concerns raised by individuals
and organizations that commented in response to the ANPRM.


Proposed behavior or training standards.

Some commenters proposed behavior or training standards for the Department
to adopt in its revised regulation, not only to remain in keeping with the
requirement for individual training, but also on the basis that without
training standards the public has no way to differentiate between
untrained pets and service animals. Because of the variety of individual
training that a service animal can receive--from formal licensing at an
academy to individual training on how to respond to the onset of medical
conditions, such as seizures--the Department is not inclined to establish
a standard that all service animals must meet. While the Department does
not plan to change the current policy of no formal training or certifi
Hospital and healthcare settings.

Public accommodations, including hospitals, must modify policies,
practices, or procedures to permit the use of a service animal by an
individual with a disability. 28 CFR 36.302(c)(1). The exception to this
requirement is if making the modification would fundamentally alter the
nature of the goods, services, facilities, privileges, advantages, or
accommodations. Id. at 36.302(a). The Department generally follows the
guidance of the Centers for Disease Control and Prevention (CDC) on the
use of service animals in a hospital setting.

As required by the ADA, a healthcare facility must permit a person with a
disability to be accompanied by his or her service animal in all areas of
the facility in which that person would otherwise be allowed, with some
exceptions. Zoonotic diseases can be transmitted to humans through trauma
(bites, scratches, direct contact, arthropod vectors, or
aerosols). Although there is no evidence that most service animals pose a
significant risk of transmitting infectious agents to humans, animals can
serve as a reservoir for a significant number of diseases that could
potentially be transmitted to humans in the healthcare setting. A service
animal may accompany its owner 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 area

Under the ADA, the only circumstances under which a person with a
disability may not be entitled to be accompanied by his or her service
animal are those rare circumstances in which it has been determined that
the animal poses a direct threat to the health or safety of others. A
direct threat is defined as a significant risk to the health or safety of
others that cannot be eliminated or mitigated by a modification of
polices, practices, or procedures. Based on CDC guidance, it is generally
appropriate to exclude a service animal from areas that require a
protected environment, including operating rooms, holding and recovery
areas, labor and delivery suites, newborn intensive care nurseries, and
sterile processing departments. See Centers for Disease Control,
Guidelines for Environmental Infection Control in Health-Care
Facilities: Recommendations of CDC and t


NOTE from Joan about this separate section:

QUESTIONS The DOJ is asking the public to comment on, will follow the
explanations given.

"Service animal"

The Department is proposing to amend the definition of "service animal" in
§ 36.104 of the current regulation, which is defined 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." Proposed § 36.104 would:

* Remove "guide" or "signal" as descriptions of types of service dogs
and add "other common domestic" animal to the Department’s current
definition;
* Remove "individuals with impaired vision" and replace it with
"individuals who are blind or have low vision";
* Change "individuals with hearing impairments" to "individuals who
are deaf or hard of hearing";
* Replace the term "intruders" with the phrase "the presence of
people" in the section on alerting individuals who are deaf or hard of
hearing;
* 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;
* 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;
* Add that "service animal" does not include wild animals (including
nonhuman primates born in captivity), reptiles, rabbits, farm animals
(including horses, miniature horses, ponies, pigs, and goats), ferrets,
amphibians, and rodents; and
* 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 who responded to the Department’s ANPRM. Issues
raised by the commenters include:

"Minimal protection."

There were many comments by service dog users urging the Department to
remove from the definition "providing minimal protection." The commenters
set forth the following reasons: (1) the current phrase can be
interpreted to allow "protection dogs" that are trained to be aggressive
and to provide protection to be covered under the ADA, 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 allows any untrained pet dog to provide
this minimal protection by its mere presence. These interpretations were
not contemplated by the ADA or the title III regulation.

In the Department’s ADA Business Brief on Service Animals, which was
published in 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). Despite the Department’s best efforts,
the minimal protection language appears to have been
misinterpreted. Nonetheless, the Department continues to believe that it
should retain the "providing minimal protection" language and interpret
the language to exclude so-called "attack dogs" that pose a direct threat
to others.

Question 9: Should the Department clarify the phrase "providing minimal
protection" in the definition or remove it?

"Alerting to intruders."

Some commenters argued that the phrase "alerting to intruders" in the
current text has been misinterpreted by some people 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 accommodations 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.

Many commenters followed the lead of an umbrella service dog organization
in suggesting that "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 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 phys Define "task."

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 to the definitions section. However, the Department has proposed
additional examples of work or tasks to help illustrate this requirement
in the definition.

Define "animal" or what qualifies certain species as "service animals."

When the regulations were promulgated in the early 1990s, 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 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) t

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: reptiles, rabbits, farm animals (including horses, miniature
horses, ponies, pigs, or goats), 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 restaurants, grocery stores, and performing arts venues.

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 AVMA position statement, Nonhuman Primates as Assistance
Animals (2005), available at
http://www.avma.org/issues/pol

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.

It is important to address the concept of comfort animals or emotional
support animals, which have become increasingly popular, primarily with
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
animals in order to bring their pets into places of public accommodation.

The difference between an emotional support animal and a legitimate
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 currently qualify for coverage under the ADA, and only those
individuals will qualify to use a service animal. See 42 U.S.C. 12102(2)
(defining disability); 28 CFR 36.104 (same). Major life activities
include functions such as caring for oneself, 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 p Change "service animal" to "assistance animal."

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

ANOTHER SECTION, DEFINING SPECIFICS


6. Amend § 36.302 as follows:

a. Revise paragraph (c)(2);

b. Add paragraphs (c)(3) through (c)(8) and paragraphs (e) and (f) to read
as follows:

§ 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;

(ii) The animal is not housebroken 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); or

(iii) The animal poses a direct threat to the health or safety of others
that cannot be eliminated by reasonable modifications.

(3) If an animal is properly excluded. If a place of accommodation
properly excludes a service animal, 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) General requirements. The work or tasks performed by a service animal
shall be directly related to the handler’s disability. A service animal
that accompanies an individual with a disability into a place of public
accommodation shall be individually trained to do work or perform a task,
housebroken, and under the control of its handler. A service animal shall
have a harness, leash, or other tether.

(5) Care or supervision of service animals. A public accommodation is not
responsible for caring for or supervising a service animal.

(6) Inquiries. A public accommodation shall not ask about the nature or
extent of a person’s disability, but can determine whether an animal
qualifies as a service animal. For example, 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 or
licensed as a service animal.

(7) Access to areas open to the public, program participants, and
invitees. Individuals with disabilities who are accompanied by service
animals may access all areas of a place of public accommodation where
members of the public, program participants, and invitees are allowed to
go.

(8) Fees or surcharges. A public accommodation shall not ask or require
an individual with a disability to post a deposit, pay a fee or surcharge,
or comply with other requirements not generally applicable to other
patrons as a condition of permitting a service animal to accompany its
handler in a place of public accommodation, even if people accompanied by
pets are required to do so. If a public accommodation normally charges
its clients or customers for damage that they cause, a customer with a
disability may be charged for damage caused by his or her service animal.

* * * * *

Please contact Ed Eames by email
at
eeames@csufresno.edu
with questions or comments.