Yesterday, as part of ongoing follow up on my story in this week’s New York Times Magazine, I posted about a Department of Justice document leaked to me with the wording of their proposal to ban all non-canine service animals. Below the jump, for those interested, I’ve pasted an excerpt from that proposal, which is not yet public. It outlines the arguments the DOJ heard for and against the species ban during this summer’s public hearings, plus the DOJ’s responses, and its final ruling on the issue.
“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.
More proposal details below:
“Species limitations … 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 [Notice of Proposed Rulemaking], the Department used the term “common domestic animal” in the service animal definition and defined it to exclude reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, or goats), ferrets, amphibians, and rodents. 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. As a consequence, the Department has decided to limit title III’s coverage of service animals to dogs, which are the most common service animals used by individuals with disabilities.
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.
Wild animals, monkeys, and other non-human 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.” See AVMA position statement, Nonhuman Primates as Assistance Animals (2005), available at http://www.avma.org/issues/policy/nonhuman_primates.asp.
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 animal poses no health risks, and are used by individuals with disabilities exclusively in their homes. The organization acknowledged that the capuchin monkeys it trains are not suitable necessarily 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 owner or 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.
This commenter 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 licencing, 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 considered the potential risks associated with the use of nonhuman primates as service animals in places of public accommodations as well as the information provided to the Department about the benefits that trained capuchin monkeys provide to certain individuals with disabilities and has determined that nonhuman primates, including monkeys, will not be recognized as service animals for purposes of this rule. However, state and local governments may be required to accommodate home use of such monkeys by individuals with disabilities as discussed in connection with § 35.136(a) of the final rule for title II.
Having considered all of the comments about which species should qualify as service animals under the ADA, the Department has decided to limit acceptable species to dogs.”
Update: With the change in administration, these proposed changes have been pulled from the approval process for further review.