Culture Dish

As part of ongoing follow up on my story in this week’s New York Times Magazine, I’ve been posting about a Department of Justice document leaked to me with the wording of their proposal to ban all non-canine service animals. Yesterday I posted the DOJ’s rationale behind the species ban. I’ve since gotten several emails asking whether the leaked DOJ documents contained language banning the use of psychiatric service animals as well. It doesn’t. Here, below the jump, is the DOJ’s new proposed service animal definition:

“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, cannot be service animals. Examples of work or tasks include, but are 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, non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and assisting individuals with navigation. Emotional support, comfort, companionship, or therapeutic benefits; the promotion of emotional well-being; and the crime deterrent effects of an animal’s mere presence do not constitute work or tasks for the purposes of this definition.”

Below, for those interested, are details from the document explaining the DOJ’s rationale regarding psychiatric vs. comfort animals:

“The Department has adopted regulatory text in § 36.104 to formalize its position on emotional support or comfort animals, which states that “[e]motional support, comfort, companionship, or therapeutic benefits; the promotion of emotional well-being; and the crime deterrent effects of an animal’s mere presence do 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 Department has proposed 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 and mental disabilities.” This language simply clarifies the Department’s longstanding position.

Recognition of psychiatric service animals, but not “comfort animals”. The final rule contains additional text in § 36.104 to emphasize the Department’s longstanding position that emotional support animals are not included in the definition of “service animal.” This text provides that “[e]motional support, comfort, companionship, or therapeutic benefits; the promotion of emotional well-being; and the crime deterrent effects of an animal’s mere presence do not constitute work or tasks for the purposes of this definition.”

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 final rule. These are emotional support or comfort animals.

Commenters asserted that excluding categories such as “comfort” and “emotional support” animals recognized by Acts such as the Fair Housing Act or Air Carrier Access Act 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.

Other commenters expressing opposition to the exclusion of individually trained “comfort” or “emotional support” animals, asserted that the ability to self-soothe or de-escalate and control emotion is “work” that benefits the individual with the disability. They argue that veterans with agoraphobia and individuals with high levels of anxiety are able to go about in the world because they have an emotional support animal.

Some commenters explained the benefits emotional support animals provide including, emotional support, comfort, therapy, companionship, therapeutic benefits, and the promotion of emotional 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 the excessive questioning of, individuals with non-visible or non-apparent disabilities. Others explained that therapy or comfort animals enable them to live independently in the community setting, by alleviating panic or anxiety disorders by helping them to remain calm and unafraid.

Commenters contended that the proposed service animal provision leaves unaddressed the issue of how a covered facility (such as a restaurant) can distinguish between a psychiatric service animal, which is covered under the final rule, and a comfort animal, which is not. The Department has provided guidance on this issue, making clear that inquiries about whether an animal is a service animal must focus on the work or tasks that the animal is trained to perform. Such inquiries are limited to eliciting the information necessary to make a decision, without requiring disclosure of confidential disability-related information that a restaurant or other place of public accommodation does not need.

Some commenters suggested that a public accommodation should be allowed to require current documentation, no more than one year old, on letterhead from a mental health professional stating: (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. The commenter asserted that this will prevent abuse and ensure that individuals with legitimate needs for emotional support animals may use them. This proposal would treat persons with psychiatric, intellectual, and other mental disabilities less favorably than persons with physical and sensory disabilities. It also would 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. The Department believes that a documentation requirement of this kind is unnecessary, burdensome, and contrary to the spirit, intent, and mandates of the ADA.

Commenters asserted the view that if an animal’s “mere presence” legitimately provides such benefits to an individual with a disability and 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,” if the accommodation would be reasonable. 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 address legitimately those difficulties, not by evaluating the animal involved. The commenter noted the ruling requiring the reasonable accommodation of a companion animal under the California Fair Employment and Housing Act in Auburn Woods Homeowner Ass’n v. Fair Employment and Housing Commission, 18 Ca. Rptr. 3d 669, 682 (Ct. App. 2004), noted that “it was the innate qualities of a dog, in particular a dog’s friendliness and ability to interact with humans, that made it therapeutic here.” While the Department understands that this approach has benefitted many individuals in residential settings under the Fair Housing Act and analogous state law provisions where the presence of animals poses fewer health and safety issues, the presence of such animals is simply not appropriate in the context of public accommodations such as restaurants, hospitals, hotels, retail establishments, and assembly areas.

An advocacy group that works with service women who have been raped in the military and supports the use of emotional support dogs, noted that comfort dogs have changed the lives of these women to the extent that they now feel safe enough to step outside their homes. Many commenters advocated generally for the recognition under the ADA of animals that provide varying types of emotional support for persons with disabilities who have served in the military. They assert that a significant number of service members returning from active combat duty have adjustment difficulties due to combat, rape or other traumatic experiences while on active duty. Commenters noted that some current or former members of the military service have been prescribed animals that perform these functions for conditions such as Post Traumatic Stress Disorder. Commenters requested that the Department carve out an exception that permits current or former members of the military to use emotional support animals. 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 Fair Housing Act. However, having weighed carefully the issues, the Department believes that its final title III regulation must address appropriately 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 accommodation from allowing current or former military members or anyone else with disabilities to utilize emotional support animals if it wants to do so.

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 regulation. The Department reiterates 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 for persons with Post Traumatic Stress Disorder; 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 some cases, individuals who have impairments that do not qualify as a disability under the ADA have concluded mistakenly that the regulation gives them the right to use service animals.

The Department has adopted regulatory text in § 36.104 to formalize its position on emotional support or comfort animals, which states that “[e]motional support, comfort, companionship, or therapeutic benefits; the promotion of emotional well-being; and the crime deterrent effects of an animal’s mere presence do 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 Department has proposed 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 and mental disabilities.” 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 where the U.S. Department of Housing and Urban Development (HUD) and the U.S. Department of Transportation (DOT) regulations allow emotional support 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 compelling reasons to permit the use of animals whose presence provides emotional support to a person with a disability. 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. 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.

Comments

  1. #1 Patricia Williams
    February 1, 2009

    These restrictions prove the continued discrimination against those with mental illness. The U.S. Congress recently passed a law for parity between physical and mental illnesses regarding health insurance.

    This change would appear to me, to be a legitimate reason, to change the disparity between a “service animal” and an “emotional support animal”. If one has a mental illness, it follows, that emotional support, is of the utmost importance to the individual.

    The majority of those with mental illness, suffer from isolation. The non-judgemental emotional support of an animal would bridge that divide. In addition, it would result in supporting the individual with an increased quality of life. This is what those with physical disabilities,(ie. the blind, physically handicapped)enjoy by having a “service animal”.

  2. #2 Paula Shepard
    June 7, 2009

    I agree with the standards set up for all service dogs applying equally to psychiatric service dogs. I am the user of a psychiatric service dog and a trainer of psychiatric service dogs. If that emotional support dog is so vital and suited to be out in public and the person so disabled as to need a dog with them to help them then train it to be a service dog-problem solved. The only reason there is dissension against requiring training of a dog is because many don’t want to have to go to the trouble of specifically training a dog for this work, it is ever so much easier to yank FiFi off of the couch when one feels like it.

    I do not agree with having to show documentation everywhere I go, other service dog users do not have to do so and I shouldn’t have to either. My dog is finely and specifically trained for this work, I am disabled, I would not appreciate having to continually justify my status and need everywhere I go. What’s good for the goose is good for the gander.

  3. #3 Charles Romo
    June 22, 2009

    I want to say that I appreciate this article on psychiatric service animals. I am a person living with a disability and I have had my service animal (small dog- Miniature Italian Greyhound) for the past 8 years. I am constantly being challenged by individuals that do not know any other service animal other than a seeing or guide dog. My issues are generally with security guards. Because I do not look disabled, I am always asked if I am blind. I respond to them letting them know that it is illegal to ask me what my disability is. Generally, after being detained for about 10 minutes, I am allowed into the building after the manager confirms that my dog is a licensed service animal. Two weeks ago, the circumstances were different. I was told by the security guard that they can ask me what my disability is. After arguing with them about what they can and can not ask, I told them my disability. Another security guard made a crude comment about my disability. I was humiliated and embarrassed. I am now seeing a counselor in order to deal with this. I have contacted the Human Rights Commission of NY and I will be meeting with them in early July. I will follow through with my complaint because most security guards and the management company do not understand the scope of the law regarding service animals. There are over 8 different types of service animals that I am familiar with. I will also be filing a complaint with the Justice Depart. and Attorney General of NY. Businesses, especially security companies, need to train and inform their employees what constitute as a service animal. They need to be trained in how to ask someone if this service animal is for a disability that I may have.

    I have now setup a facebook, blog, and twitter account for my dog, Ramses, so that he (I) can educate the public about the different kinds of service animals, the law, ADA, and share articles and stories like this.

    Thank you for writing about service animals.

    Best,
    Charles

  4. #4 GoGo
    June 24, 2009

    Hi: Can anyone comment on the presence of emotional support animals in academic settings (i.e., a university classroom), and whether there are processes and procedures in place to ensure that the animal does not pose a risk to others. The distinction I see between designated service animals and emotional support animals is that service animals are screened, bred and trained to perform a specific function. There does not seem to be a requirement for emotional support animals to meet any kind of standard, or to be screened or assessed in any way, or to be clearly designated in public as a support animal. Any light anyone can shed on this issue would be welcomed. Thanks.

  5. #5 On the Fence
    June 26, 2009

    Paula-

    I agree that there should be vigorous training required to turn an emotional support animal into a service animal. My problem is that while I am disabled and I am more than willing to train my dog to help me, it is hard to come up with tasks other than emotional support-based tasks that he could do that would benefit me. Because of my disability I feel I need that emotional support to go out in public often, and now I am scrabbling to find an acceptable “task” or “work”, in addition to basic social manners required of all service dogs, so that he can qualify. If you had any suggests of “tasks” or “work” that are emotional support based but would qualify as tasks, that would be appreciated. I wish they had made the requirement that the dog had to be trained to function in public appropriately, but that if so then providing emotional support (to avoid panic attacks, suicidal thoughts or attempts, etc.) was good enough. A dog cannot tell when a depressed person cares so little about life they’d consider ending it, but simply having a dog on hand can be enough to prevent a person with depression from reaching that point, or if they do reach that point, from ending their life, just by their presence or offered unconditional love.

  6. #6 Katie
    June 28, 2009

    Hey On the Fence!
    When I first started looking into training a PSD I had similar thoughts, but looking at the Psychological Service Dog Society website, they actually have web pages designated to just that issue.
    http://www.psychdog.org/tasks.html
    this website has some helpful ideas of trainable tasks, such as medication reminders, positioning for tactile stimulation, cuddle/kiss commands…and likewise!
    Hope it helps!
    Katie

  7. #7 Paula Shepard
    June 30, 2009

    GoGo-
    A person with an emotional support dog legally has no right to have such a dog in a public place- PERIOD. There are safeguards in place for service dogs who do have a right. Service dog or no, if the dog poses a direct threat to the health and safety of others or is out of control and the owner does not take effective action to stop it, the owner can be asked to remove the dog but you must still provide services to the human. The reason there are no requirements or safeguards in place for emotional support dogs is because they have no legal right to be in public places. The distinction between the two is simply training to assist the disabled owner. A dog that is untrained is by definition NOT a service dog and not allowed in public places unless by invite. It is important to note that it IS legal for an individual to train their own service dog. You are not legally allowed to demand paperwork of any kind but I know for myself and others if approached kindly and respectfully and asked with the acknowledgement that you know it is at their discretion to show or not…often I’ll gladly show all kinds of paperwork. Confronted nastily with a condescending tone…you won’t get a shred of paper out of me and the police WILL be called. There are certian questions you are allowed to ask of the person- is that a pet or a service dog. If they say yes it is a pet- OUT!, do they have a legal disability- if they say no OUT!, you may also ask what the dog is trained to do for them but you may not require a detailed specific response to that question. You may never ask what the person’s specific disability is or demand documentation/tags/id cards. If the dog is not behaving itself reasonably or especially engages in a pattern of ill behavior then you have a right to put a stop to it but you must be reasonable. I hope this helps. You can contact me at windchyme@windchyme.com if you have any more questions, I would be glad to assist.

    On the fence-
    I hear you, half of what my dog does for me is pure emotional support, theres no doubt. What you need to think of very critically is what can you NOT do like others that he can help you do and how can he help you do that? I find it curious that you say that “often” you feel the need for help- not all the time?? I need my service dog every day, everywhere I go and if he is removed from me for more then 3 days my whole ability to function in the home and out in public starts to disintegrate badly by the third day- been there, done that, NOT fun. In the end you need to put yourself to some critical thinking about what he can do for you that you cannot or have difficulty doing safely yourself. My dog can tell when I am suicidal and at the end of my rope and so can many others dogs and actively works with and for me then. Just because you can’t figure something out, and my sympathies are with you on your difficulties, doesn’t entitle you to a free pass if you know what I mean. We may not like the rules but we need to abide by them.

  8. #8 Carol
    August 1, 2009

    I recently sent a letter to both Northwest and Delta which I will post below. (Some finger-pointing has ensued about which of them is running the show…)

    I have also learned a lot about this issue since then. Somewhere (I had thought on this site but can’t find it again) there was updated information about the DoJ no longer taking comments on their proposal, but I believe there was another address given which we could contact. If somebody knows where that was, could you please share?

    I am NOT an animal hater, we’ve always had pets. Nor do I want people with disabilities to have to stay home. I have always considered those “seeing eye dogs,” or other service animals, to have the same access rights as people. But obviously a goose that poops all over, then makes a racket, is not a trained anything. I have no doubt that its owner has emotional issues. Most of us flying nowdays do! (watching for terrorists, horrid security checks, remembering to put liquids in the checked bag, which we now have to pay to check, hoping we see it again, etc. etc.) If everyone with concerns about flying brought along an animal to hold… well, you get the idea.

    I believe we need stricter rules for airplanes than maybe for other public places. If I don’t appreciate eating next to a horse in a restaurant, or shopping in produce next to a monkey, I can complain and go elsewhere. But when you’re stuck in a small space on a plane, for which you’ve paid a good deal of money, and an animal/bird sits down beside you mid-flight, it’s pretty hard to leave. Although I was unaware of any allergy, I guess I must have one; fortunately they had an empty seat. As I said in my letter, I think an uncaged, untrained animal on a plane is a danger. As our stunned relatives said, “What about bird flu?”

    It appears the rules are increasingly being abused by those who don’t want to pay the rising fees to transport what is simply a pet, so they get a document to hold Fido on their lap, or put him in their purse, for free. This is insulting to everyone else, and is giving a bad name to those who truly need their service animals.

    [portion of letter]

    On July 10 my husband and I flew from the Twin Cities to Austin, TX on Northwest flight no. 3468, departing (that is, until the goose pooped) at 2:20 p.m. I was in the bulkhead aisle, my husband had been bumped to first class.

    There was on-board our flight a live, uncaged goose. The flight was delayed slightly as apparently it pooped all over somewhere back in coach, and there was much running back and forth with plastic bags. Shortly into the flight, the flight attendant showed up and told the gentleman next to me that he had to change seats with a woman further back who “recently had foot surgery and needed to elevate her foot.” (No mention of a goose.) He dutifully moved, and down plopped a woman with a large white goose on her lap. My first reaction was that it must be a toy. Then it started honking. It smelled. It fluffed its feathers, and they flew around. In about a minute I was getting congested, so I was also moved to first class – being, I learned, her second very unhappy seatmate – and of course at that point the woman finally had two seats to herself.

    When we questioned Delta personnel, we were told it was some sort of “emotional distress assistance animal,” and that there was a federal law requiring airlines to accommodate such persons if they have a letter from their doctor.

    This goose was the distressed one as it periodically started honking loudly, especially as we were landing, causing the woman to attempt to calm it down. Certainly those forced to share their small (and expensive) space with the thing were distressed. Airline personnel were not happy – and encouraged us to complain. The woman? She smiled the whole time, telling people she had flown with her goose 30-some times.

    We were stunned, to put it mildly. I’ve heard about the buses in, say, Guatemala, where every second person has a chicken or whatever farm animal on their lap, heading to market. But somehow I doubt the cost of those buses is comparable to an airline ticket.

    The plane that landed in the Hudson crossed my mind. I’m sure it would have been extremely helpful to have a terrified, honking goose flapping all over the cabin during their evacuation. THIS IS NOT A SAFE SITUATION (among other obvious problems), and I cannot believe that any non-third-world airline would tolerate it….

  9. #9 Pami
    August 2, 2009

    In Tacoma, Washington Emotional Support Dogs are allowed in these places and they have to let them in that is their rules.
    All public buses let them on just like you would if you had a service dog. As long as the ESD had all basic training and is potty trained. And also so does not bark or jump and people or other Service Dogs and ESD. And can also tuck tail.
    Same goes for the public Half Price Book Store. Grocery store but ESD can’t be in a shopping cart they must walk in a heel by cart no matter what size the dog is.

    Also all Starbucks Coffee Shops will let Emotional Support Dogs in as well, as long as they can lay and stay, no barking or going up to people.

    Tacoma public libaray will let Emotional Support Dogs in as will if they are trained right only.

    And the light rail in Tacoma, WA will as well.

    So please check out what town and city you live in before taking the ESD out in public.

    To buy Emotional Support Dog Patches go online to Pup’parel.com Let Lisa Know Pami Sent You!
    Good luck taking your ESD with you!
    Please let me know how it goes when you take your ESD with you out in public.

  10. #10 Sam
    August 4, 2009

    The Lady Pami Is right it does depend on your city and state if Emotional Support Dogs can go out in public. And she is right. The website Pup’parel does make real nice Emotional Support Dog Patches. I bought two of them. And also the green round patch that says please ask to pet me I’m Friendly it has a cartoon dog holding a bone. This is a real cute patch that gets the point across to every person that sees it. I put it on top of the vest.

  11. #11 acı cehre
    September 15, 2009

    I believe we need stricter rules for airplanes than maybe for other public places. If I don’t appreciate eating next to a horse in a restaurant, or shopping in produce next to a monkey, I can complain and go elsewhere.

  12. #12 Julie
    October 26, 2009

    Carol,
    I’m very sorry to hear that you went through such an absurd experience with someone’s emotional support animal. You may be relieved to know that such animals are no longer allowed on airplanes. If what I understand is correct, service dogs are the only form of service animal allowed on flights, and those of us with psychiatric service dogs, even fully trained and registered as such, have to notify the airline in advance, and show up with a recent doctor’s note explaining our disability and what our dog does to mitigate it. Personally, I find that to be going a little far.. If people with one type of disability have to do that, all of them should or none of them. In any case, these regulations should keep any untrained animals from interrupting your flights from now on.

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