Posted by 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.
February 1, 2009
June 7, 2009
June 22, 2009
June 24, 2009
June 26, 2009
June 28, 2009
August 1, 2009
August 2, 2009
August 4, 2009
September 15, 2009
October 26, 2009