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Old 07-31-2008, 07:04 AM   #11 (permalink)
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Default Re: Definition Changes to the ADA

IAADP Website

The International Association of Assistance Dog Partners (IAADP) represents more than 2000 disabled program graduates and owner-trainers who work with service, hearing and guide dogs to increase their independence. Seven years ago we formed a coalition with Assistance Dogs International, which represents more than 100 non profit assistance dog training programs in the USA. Other members include the Council of U.S. Dog Guide Schools and Guide Dog Users, Inc. Together we petitioned the U.S. Department of Justice to develop a better definition of a Service Animal as soon as the regulations for the Americans With Disabilities Act (ADA) came up for review. All of us were very worried about the future of the assistance dog movement due to widespread misunderstandings about the service animal definition.

The good news is that the US Department of Justice (DOJ) has finally proposed a new definition of a Service Animal, in an attempt to correct the problems with the old definition. Before finalizing the new Definition, its Notice of Proposed Rule Making (NPRM) on the ADA regulatory language is seeking comments from the public on three Questions pertaining to service animals. IAADP has also identified a fourth issue we see as critical.
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Old 08-13-2008, 08:13 PM   #12 (permalink)
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Default Re: Definition Changes to the ADA

New Proposed Service Animal Defintion
PART 36-NONDISCRIMINATION 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 individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities. The term service animal does not include wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, miniature horse, pony, pig, or goat), ferrets, amphibians, and rodents. Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or to promote emotional well-being are not service animals.
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Humane Animal Education & Services (HAES),
Putnam County Emergency Animal Support/Pet-Friendly Evacuation Shelters
Gov. Agency Member of FL State Agricultural Response Team
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Old 08-13-2008, 08:19 PM   #13 (permalink)
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Default Re: Definition Changes to the ADA

Public Comment and Submission Form


DOJ's ADA NPRM Public Comment Submission Website
Regulations.com Site


NPRM: Notice of Proposed Rule Making
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Old 08-13-2008, 08:29 PM   #14 (permalink)
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Default Excerpts from ADA Notice of Proposed Rulemaking

Excerpts from ADA Notice of Proposed Rulemaking

New Proposed Service Animal Definition

PART 36-NONDISCRIMINATION 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 individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities. The term service animal does not include wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, miniature horse, pony, pig, or goat), ferrets, amphibians, and rodents. Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or to promote emotional well-being are not service animals.

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 accommodation. Another trend is the use of wild, exotic, or unusual species, many of which are untrained, as service animals. The Department is proposing amendments to its regulation on service animals in the hope of mitigating the apparent confusion.

Minimal protection.

In the Departmentís 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 Departmentís 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 Departmentís 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 ß 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 ß 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 Departmentís longstanding position and is not a new position.

The Departmentís 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 ß 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 Departmentís response to public comments on these issues and others are discussed below in the definition section, ß 36.104, and the section on modifications in policies, practices, and procedures, ß 36.302(c).

Section 36.302 Modifications in policies, practices, or procedures

Section 36.302(c) Service animals

The Departmentís 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 ß 36.302(c) by adding the following sections as exceptions to the general rule on access. Proposed ß 36.302 would:

Expressly incorporate the Departmentís 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 animalís owner does not take effective action to control it; (2) the animal is not housebroken or the animalís 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 health or safety of others that cannot be eliminated by reasonable modifications;


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 handlerís 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 ß 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 ß 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 Departmentís 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 personís 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 Departmentís 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 be charged for damage caused by his or her service animal.

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 certification requirements, some of the behavioral standards that it has proposed actually relate to suitability for public access, such as being housebroken and under the control of its handler.

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 areas, the pharmacy, rest rooms, and all other areas of the facility where visitors are permitted, except those listed below. 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 the Healthcare Infection Control Practices Advisory Committee (June 2003), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5210a1.htm
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TJ aka Theresa A. Jennings

Karl's Kids Program Inc Animal Services 2000
ADAP Facebook
ADAP Blog
Member of Assistance Dog Advocacy Project (ADAP),
Humane Animal Education & Services (HAES),
Putnam County Emergency Animal Support/Pet-Friendly Evacuation Shelters
Gov. Agency Member of FL State Agricultural Response Team
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