[signed original on file in Office of Policy]

 

October 18, 2018

 

Policy Memorandum 18-02

To:                   All Employees

 

From:               Deputy Director  /s/ P. Daniel Smith

                        Exercising the Authority of the Director

 

Subject:           Use of Service Animals by Visitors with Disabilities – Interim Policy

 

1.   Purpose and Duration

This Policy Memorandum updates information about the use of service animals by visitors with disabilities in units of the National Park System.[1]  It provides guidance on what National Park Service (NPS) employees must do in order to comply with section 504 of the Rehabilitation Act of 1973 (29 USC 794) (section 504) and U.S. Department of Justice (DOJ) regulations implementing titles II and III of the Americans with Disabilities Act of 1990 (ADA) (42 USC 1213112165 and 1218112189, respectively).[2]  This Memorandum will remain in effect until such time as (1) NPS regulations in 36 CFR 1.4 and 2.15 are revised to differentiate service animals from pets (see section 2, below) and address instances where they may be excluded, or (2) more up-to-date guidance is issued on this topic.

2.   Background

The general regulations found in 36 CFR 2.15 apply a number of restrictions to pets in the National Park System.  (The term “pet” is defined in 36 CFR 1.4.)  Subsection (a)(1) of 36 CFR 2.15, however, exempts guide dogs accompanying persons with visual impairments and hearing ear dogs accompanying persons with hearing impairments from such restrictions.  These regulations predate passage of the ADA.

On September 5, 2002, the Director issued a memorandum (2002 Memorandum) based upon 1991 DOJ regulations that defined service animals to include any animal individually trained to do work or perform tasks for the benefit of an individual with a disability.  The 2002 Memorandum stated that service animals could accompany visitors with disabilities in areas of a park open to the public, and required the NPS to expand the definition of service animals to be consistent with the 1991 DOJ regulations.

On September 15, 2010, DOJ published revised regulations implementing titles II and III of the ADA, including a new definition of service animal that limits service animals to dogs and, in some circumstances, imposes obligations related to miniature horses.  The information in the 2002 Memorandum and NPS regulations at 36 CFR 2.15(a)(1) is not consistent with DOJ’s revised regulations.

On April 18, 2014, the NPS published a Notice of Proposed Rulemaking (79 FR 21876–21882; RIN 1024-AE06) to align its regulations with the 2010 DOJ regulations.  Until that rule is finalized, NPS employees have requested more guidance due to increased visitation by service animal users.  This Memorandum replaces the 2002 Memorandum because the policy herein is consistent with DOJ regulations at 28 CFR 35.104, 35.136, 36.104, and 36.302, and related DOJ guidance at:

https://www.ada.gov/2010_regs.htm

https://www.ada.gov/regs2010/service_animal_qa.html

https://www.ada.gov/service_animals_2010.htm

3.   Guidance

3.1   Definition of Service Animal

A service animal means 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.

Although the DOJ definition of service animal only refers to a dog, the NPS must make reasonable modifications to policies, practices, or procedures to permit the use of a miniature horse by a person with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.

Persons with disabilities have the right to train the service animal themselves and are not re­quired to use a professional training program.  Service animals-in-training are not considered service animals.

The work or tasks performed by a service animal must be directly related to the individual's disability.  Some of the many examples of work or tasks performed may include: 

·         assisting individuals who are blind with navigation and other tasks;

·         alerting individuals who are deaf to the presence of people or sounds;

·         pulling a wheelchair;

·         alerting individuals to the presence of allergens or the onset of a seizure;

·         retrieving items;

·         providing physical support and assistance to individuals with mobility disabilities; and

·         helping persons manage psychiatric and neurological disabilities. 

The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

3.2   Identifying Service Animals

When it is not obvious that a dog is a service animal, NPS staff may ask only two questions to identify whether the animal is a service animal:

(1)  Is the animal required because of a disability? and

(2)  What work or tasks has the animal been trained to perform?

NPS staff may not:

·         ask a person about the nature and extent of their disabilities;

·         require a person to show medical documentation or other proof of disability;

·         require a person to provide certification or documentation for the service animal;

·         ask that a service animal demonstrate its ability to perform the work or task;

·         require a permit to bring a service animal into a park; or

·         require that service animals wear identifiers such as vests, special collars, or harnesses.

Feedback from parks indicates an increasing concern about the fraudulent representation of pets as service animals.  DOJ regulations do not address this issue directly.  Parks with concerns are encouraged to contact the Service-wide Accessibility Program using the contact information provided in section 4, below. 

3.3   Use of Service Animals

Service animals must be allowed wherever visitors are allowed when accompanying an individual with a disability, subject to the requirements for using service animals in this Memorandum and to properly implemented closures as described below.

A service animal must be harnessed, leashed, or tethered, unless (1) these devices interfere with the service animal’s work, or (2) the individual’s disability prevents them from using these devices.  In those cases, the individual must maintain control of the animal through voice, signal, or other effective means.

NPS staff may require an individual with a disability to remove a service animal from a facility, service, program, or activity if:

·         the animal is out of control (see 28 CFR 35.136(b)(1) and 28 CFR 36.302(c)(2)(i)) and the animal’s handler does not take effective action to control it; or

·         the animal is not housebroken.

If a service animal is excluded for these reasons, the individual with the disability must have the opportunity to participate in the service, program, or activity without the service animal.

3.4   Limitations on the Use of Service Animals

With respect to closing areas to the use of service animals under 36 CFR 1.5(a), the NPS will construe 36 CFR 1.5(a) so as to be consistent with section 504.  The NPS is not required to modify policies, practices, or procedures to accommodate service animals if such modifications would “fundamentally alter” the nature of the goods, services, programs, or activities provided to the public.  Additionally, the NPS may impose legitimate requirements necessary for the safe operation of its services, programs, or activities.  Therefore, a park may prohibit service animals in an area closed to pets if (1) allowing them would require a fundamental alteration to the nature of the goods, services, programs, or activities provided to the public in the area, or (2) the presence of a service animal would jeopardize the safe operation of its services, programs, or activities.

3.5   Additional Measures

Superintendents should take whatever steps are necessary to implement the guidance in this Memorandum.  This includes updating compendium provisions, policies, and procedures, and educating personnel who interact with the public, including volunteers, concessioners, and partners.  Similarly, the information contained in this Memorandum will be incorporated in Director’s Order #42 and Reference Manual 42 (RM-42).

4.   For Further Information

If there are questions about service animals or implementation of this Memorandum, please contact the Service-wide Accessibility Program at accessibility@nps.gov.

-------End of Policy Memorandum-------



[1] The use of service animals by employees, concessioners, and volunteers is addressed in Director’s Order #16A:  Reasonable Accommodation for Applicants and Employees with Disabilities.

[2] Congress has stated its intent that the nondiscrimination principles of the ADA (which covers State and local governments and private entities) also apply to section 504 of the Rehabilitation Act (which covers Federal agencies).  Although the NPS is not subject to the ADA, NPS policy, as expressed in Director’s Order #42:  Accessibility for Visitors with Disabilities in National Park Service Programs and Services, is to align 43 CFR part 17, subpart E, "Enforcement of Nondiscrimination on the Basis of [Disability] in Programs or Activities Conducted by the Department of the Interior," with the ADA, and make NPS facilities, programs, and services accessible to and usable by persons with disabilities.  It is also NPS policy to follow, as appropriate, any DOJ regulations implementing titles II and III of the ADA.