Re: Changes to the ADA
From Becky Barnes, President, Guide Dog Users, Inc
Below, find a copy of GDUI's public comment on the sections of the DOJ's NPRM as they relate to proposed changes in the service animal definition, the inadvisability of retaining "minimal protection" language, opposition to the phrase "do work" as characterized by the term "grounding" and service animal height, weight and species requirements. GDUI offers sincere thanks to IAADP's Joan Froling for her arduous efforts in ferreting out the sections of the very lengthy document to get to the heart of service animal issues requiring our attention. GDUI also wishes to thank Joan and Ed Eames for excellent work on CADO's first draft before Becky Barnes, GDUI's new president, gave her blessing for me to represent GDUI on the CADO draft subcommittee, which document served as an excellent spring board for GDUI's comments. ...
Guide Dog Users, Inc. 14311 Astrodome Drive Silver Spring, MD 20906 866-799-8436
July 29, 2008
U.S. Department of Justice Disability Rights Section, Civil Rights Division Washington DC
Docket ID: DOJ-CRT-2008-0015
RE: ADA Service Animal Definition and Regulations
Guide Dog Users, Inc. (GDUI) is an international organization of more than 1000 members dedicated to advocacy, peer support, public education and all aspects of training, working and living with dogs specially-trained to guide individuals who are blind and visually impaired. GDUI does not train or place guide dogs, but acts as an independent resource network, providing information, support and advice concerning guide dogs, guide dog training and access laws to its members, the media and the public at large. GDUI strives to promote civil rights and enhance the quality of life for working guide dog teams. Drawing on the experiences and varied knowledge of its members, GDUI provides peer support, advocacy and information to guide dog users everywhere. In addition, GDUI works with public entities, private businesses and individuals to ensure that guide dog users enjoy the same rights to travel, employment, housing, and participation in all aspects of life that people without disabilities enjoy. GDUI is a special interest affiliate of the American Council of the Blind
GDUI along with all CADO's other member organizations are united in their desire to preserve the public access rights granted by the Americans With Disabilities Act (ADA) for the next generation. Collectively we remain deeply concerned about the abuses of the ADA taking place due to accidental or intentional misinterpretation of the original Service Animal definition. After careful review of the Notice of Proposed Rule Making issued June 17, 2008, along with CADO, GDUI commends the Disability Rights section in the Civil Rights division of the U.S. Department of Justice for a number of the changes in wording that have been proposed and for the unequivocal statement that makes clearer the fact that emotional support animals and companion animals are not service animals. We support the Department's decision to incorporate policies from its 1996 and 2002 interpretative guidance documents into the ADA regulation ( 28 CFR 36.302c) which will give these policies greater standing legally as well as educationally. We welcome the addition of the housebreaking requirement and the emphasis on keeping an animal under control in the newly proposed definition of a service animal. However we believe the effort to end the misinterpretations of the definition of a service animal falls short of achieving the intended goal in some areas. Below, GDUI will address the three questions posed in the NPRM pertaining to service animals as well as another important issue we strongly encourage the DOJ to reconsider, the retention of "Do Work" in the proposed new definition which contains the term "grounding" as an example.
QUESTION NINE: Should the Department clarify the phrase "providing minimal protection" in the definition or remove it?
GDUI is strongly opposed to the retention of the words "minimal protection" or any mention of "protection." Protection language is often incorrectly interpreted by individuals and training programs alike as a license to train aggression related protection behaviors. In a 2003 GDUI survey, 89% of guide dog handlers reported incidents of interference from uncontrolled dogs, and some of these attacks were perpetrated by other assistance dogs. In the NPRM the DOJ itself makes the point that despite its best efforts, the phrase continues to be misinterpreted. While the Department may not condone attack or aggression training, incidences of intentional and unintentional abuse and attack will certainly continue until the word "protection" is removed from the definition. This word has very specific meaning within the dog training industry, where it means only one thing, aggression training. In the NPRM, the Department said it tried to clarify "minimal protection" in 2002 with the example "alerting and protecting a person having a seizure," in its interpretative guidance document, "Business Brief; Service Animals." Unfortunately this clarification has also been misinterpreted as sanctioning protection training. There is far too much confusion for businesses attempting to figure out how much vocalizing or aggressive behavior is too much and represents grounds for asking an offending team to leave the premises. Therefore, any use whatsoever of the term "protection" which will further exacerbate these confusing and difficult situations is unproductive and notably unacceptable to GDUI members. Standing with CADO, GDUI believes the new task example cited in the proposed Definition, "assistance during a seizure" is a much more accurate description of tasks required to accomplish the goal of ensuring the inclusion of people who have a disabling seizure disorder. In conclusion, GDUI respectfully requests that the Department give further consideration to eliminating this misleading language in the service animal definition.
QUESTION TEN: Should the Department eliminate certain species from the definition of "service animal"? If so, please provide comment on the Department's use of the phrase "common domestic animal" and on its choice of which types of animals to exclude.
GDUI sincerely thanks the DOJ for responding to the many issues raised concerning the use of species which may pose a threat to public safety or which can't be housebroken or task trained. As a founding member of CADO, we believe the continuing use of such species will have a seriously eroding impact on societal tolerance for service animal teams in public places. In support of CADO's carefully considered position although some members are opposed to the use of any species other than dogs, , GDUI does not oppose the use of another species such as a miniature horse for guide work if, and only if, the animal can meet the same or equivalent standards for behavior and training that assistance dogs must meet to qualify for public access with handlers who are disabled. This approach is intended to place the emphasis for teams to qualify, more specifically on higher standards of public behavior and appropriate task training and would represent a far less arbitrary and discriminatory approach to this serious dilemma.
QUESTION ELEVEN: Should the Department impose a size or weight limitation for common domestic animals, even if the animal satisfies the "common domestic animal" prong of the proposed definition?
GDUI supports the Department's current policy of not imposing a weight or size limit on service animals. With the caveat and understanding that unless an oversized animal causes a fundamental alteration, we believe a size or weight limit on common domestic animals such as assistance dogs would unfairly discriminate against individuals whose height, weight and / or the severity of their mobility impairment necessitates a match with an assistance dog of sufficient size and strength to prevent falls and perform other useful tasks without injury to the dog.
Additional Issue: RETENTION OF "DO WORK" IN THE NEW DEFINITION
GDUI is pleased that the Department was receptive to CADO's educational efforts concerning individuals with psychiatric disabilities, autism and other mental impairments. On behalf of the entire assistance dog movement, CADO has been working to create a better definition of service animals, one that would maintain a clear distinction between those animals which are individually trained to perform tasks to mitigate the effects of a disabling mental or physical condition and any animal whose mere presence or companionship provides emotional support or some other therapeutic physical health or mental health benefit. We've all been hoping for a new definition that would end the confusion in the media, disabled community and the public and private sectors as to what qualifies an individual with a disability to legal public access with a well trained, public appropriate animal. While there is much improvement in the proposed definition in the NPRM, a serious flaw has come to our attention. It concerns the Department's explanation titled "Task Emphasis" in the NPRM. The content is so contradictory to the Department's own interpretative guidance document, "Business Brief : Service Animals" from 2002 and to the intent of the proposed definition, which is to eliminate misunderstandings on what qualifies an animal to be a service animal, GDUI joins all the other organizations CADO represents in vehemently opposing the retention of the phrase "do work," particularly if this phrase is defined by the use of the term, "grounding." We refer to the DOJ's statements: "Tasks are by their nature physical, so the Department does not believe that such a change [ to physical tasks in the definition ] is warranted. In contrast, the phrase "do work" is slightly broader than "perform tasks" and adds meaning to the definition. For example, a psychiatric service dog can help some individuals with dissociative identity disorder to remain grounded in time or place." This discussion, giving grounding as the example of "do work" followed by the assertion that "in some cases, critical forms of assistance can't be construed as physical tasks," leads the reader to conclude that work is a form of assistance that is NOT a physical task. It suggests an animal will qualify as a service animal if a mentally disabled owner says the dog's presence or companionship helps to keep him or her grounded in time or place. GDUI has been acutely aware that for years, pet owners with psychiatric impairments have used the "my pet keeps me grounded" rationale for bringing their non task trained animal into places of public accommodation, which actions currently represent acts of blatant service animal fraud. We are all deeply concerned that this "do work" example will be cited in the future as proof that task training is unnecessary for animals belonging to people with a psychiatric, cognitive or mental disability. Certainly the idea that work can be a non physical form of assistance and not a task will further confuse the distinction between service animals and pets. Therefore, in the interest of eliminating further confusion and abuse, GDUI urges the Department to reconsider this "do work" issue. We respectfully point out the fact that the Department's own interpretative guidance in 2002 excluded the phrase "do work" from the way it defined a service animal. The updated guidance document reads:
Service animals are animals that are individually trained to perform tasks for people with disabilities, such as guiding people who are blind, alerting people who are deaf, pulling wheelchairs, alerting and protecting a person who is having a seizure or performing other special tasks. Service animals are working animals, not pets.
The 2002 interpretative guidance on the ADA goes on to say: "Businesses may ask if an animal is a service animal or what tasks the animal has been trained to perform, but cannot require special ID cards.....etc."
Since 2002, the Department's own emphasis on the fact that Task Training is fundamental to the definition of a service animal in the Business Brief has been relied on by the disabled community, businesses, colleges and other interested parties. The DOJ has educated the public and businesses that the performance of tasks is the crucial distinction between specially trained service animals and other animals, whatever their label. It appears to GDUI that the "do work" phrase in the original definition had nothing to do with a non physical form of assistance. Rather, it merely reflected the fact it was customary to discuss the trained behaviors performed on command or cue by guide dogs as "guide dog work." Guide dog work is a series of trained tasks performed as needed, such as leading a blind person around obstacles, halting to indicate changes in elevation like a curb, avoiding traffic in the team's path, finding the location of a building's exit and finding an empty seat in a classroom or on a bus. These are trained tasks and stand in sharp contrast to the DOJ's example of the ambiguous concept of grounding. Since 2002, the work performed by service animals has been task defined, arguably making the retention of "do work" and its given example of grounding in the proposed new definition confusing and easily misinterpreted. Unfortunately, due to the impression the average person receives from the NPRM discussion cited above, the phrase "do work" if defined by a term such as "grounding" will seriously undermine the Department's profoundly essential goal of distinguishing between service animals and pets whose presence or companionship will provide emotional support, therapy, comfort, or other therapeutic benefits. Based on these considerations, GDUI in solidarity with all the other organizations which comprise CADO, strongly recommends the elimination of "do work" in the final rule's definition. Failing that, we request illustrating the phrase "do work" with appropriate examples to eliminate the devastating consequences of using the ambiguous term "grounding" as an example. If the DOJ persists in using grounding, GDUI believes it will undoubtedly undo and reverse many of the positive effects gained in educating the public, businesses and even the disabled community following the issuance of the widely distributed 2002 interpretative guidance document.
Guide Dog Users, Inc. thanks the DOJ for its efforts to help clarify the issues which have created so much confusion and misinterpretation of the original service animal definition and regulations. GDUI members are proud of their long and successful history conquering public access barriers in partnership with well trained guide dogs. In closing, GDUI respectfully asks that you seriously consider its jointly expressed concerns regarding these issues, so very important to guide dog handlers.
Becky Barnes, President, Guide Dog Users, Inc
TJ aka Theresa A. Jennings
Pyro vom Wildhaus aka Kaleb ~S.T.A.R.~
Non-Profit Mascot & Service Dog Candidate.
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Humane Animal Education & Services (HAES),