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Discussion Starter #1
PROPOSED LANGUAGE FOR ADA REFORMATION ACT

A BILL

To restore the intent and protections of the Americans with Disabilities Act of
1990.


Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the 'ADA Restoration Act of 2008'.

SEC. 2. FINDINGS AND PURPOSES

(a) Findings- Congress finds that-
(1) in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended
that the Act 'establish a clear and comprehensive prohibition of discrimination
on the basis of disability' and provide broad coverage;
(2) in enacting the ADA, Congress recognized that physical and mental disabilities
in no way diminish a person's right to fully participate in all aspects of society,
but that people with physical or mental disabilities are frequently precluded from
doing so because of prejudice, antiquated attitudes, or the failure to remove societal
and institutional barriers;
(3) while Congress expected that the definition of disability under the ADA would
be interpreted consistently with how courts had applied the definition of handicap
under the Rehabilitation Act of 1973, that expectation has not been fulfilled;
(4) the holdings of the Supreme Court in Sutton v. United Airlines, Inc., 527 U.S.
471 (1999) and its companion cases, and in Toyota Motor Manufacturing, Kentucky,
Inc. v. Williams, 534 U.S. 184 (2002) have narrowed the broad scope of protection
intended to be afforded by the ADA, thus eliminating protection for many individuals
whom Congress intended to protect; and
(5) as a result of these Supreme Court cases, lower courts have incorrectly found
in individual cases that people with a range of substantially limiting impairments
are not people with disabilities.
(b) Purpose- The purposes of this Act are-
(1) to carry out the ADA's objectives of providing 'a clear and comprehensive national
mandate for the elimination of discrimination' and 'clear, strong, consistent, enforceable
standards addressing discrimination' by reinstating a broad scope of protection
to be available under the ADA;
(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment
substantially limits a major life activity is to be determined with reference to
the ameliorative effects of mitigating measures;
(3) to reject the Supreme Court's reasoning in Sutton v. United Airlines, Inc.,
527 U.S. 471 (1999) with regard to coverage under the third prong of the definition
of disability and to reinstate the reasoning of the Supreme Court in School Board
of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of
the third prong of the definition of handicap under the Rehabilitation Act of 1973;
(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms 'substantially'
and 'major' in the definition of disability under the ADA 'need to be interpreted
strictly to create a demanding standard for qualifying as disabled,' and that to
be substantially limited in performing a major life activity under the ADA 'an
individual must have an impairment that prevents or severely restricts the individual
from doing activities that are of central importance to most people's daily lives';
and
(5) to provide a new definition of "substantially limits" to indicate that Congress
intends to depart from the strict and demanding standard applied by the Supreme
Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams and by numerous
lower courts.

SEC. 3. CODIFIED FINDINGS.

Section 2(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101) is
amended-
(1) by amending paragraph (1) to read as follows:
(1) physical or mental disabilities in no way diminish a person's right to fully
participate in all aspects of society, yet many people with physical or mental
disabilities have been precluded from doing so because of discrimination; others
who have a record of a disability or are regarded as having a disability also have
been subjected to discrimination;'
(2) by striking paragraph (7).
 

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Discussion Starter #2
(CONT.)

SEC. 4. DISABILITY DEFINED.

Section 3 (42 U.S.C. §12102) is amended:
By revising subsection (2) to read as follows:
(2) DISABILITY -
(i) IN GENERAL--The term "disability" means with respect to an individual --
(A) a physical or mental impairment that substantially limits one or more major
life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having an impairment that falls under (A) or (B).
By inserting after subsection (2) the following new subsections:
(3) SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY -- The term "substantially limits
a major life activity" means materially restricts a major life activity.
(4) MAJOR LIFE ACTIVITIES--
(A) In General -- Major life activities include, but are not limited to, caring
for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating and
working.
(B) Major Bodily Functions -- A major life activity also includes the operation
of a major bodily function. Major bodily functions include, but are not limited
to, functions of the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
(5) REGARDED AS -
(a) In General -- Subject to subsection (b), an individual meets the requirement
of "being regarded as having an impairment that falls under (A) or (B)" if the
individual establishes that he or she has been subjected to an action prohibited
under this Act because of an actual or perceived physical or mental impairment,
whether or not the impairment is perceived to substantially limit a major life
activity.
(b) Transitory and Minor Impairments -- This subsection shall not apply to impairments
that are transitory and minor. "Transitory" means an impairment with an actual
or expected duration of six months or less.
(c) Reasonable Accommodation -- An employer is not required to provide a reasonable
accommodation to an individual who meets the definition of disability solely under
2(C).
(6) STANDARDS FOR APPLYING THE DEFINITION OF DISABILITY -
(A) To achieve the remedial purposes of this Act, the definition of "disability"
shall be construed broadly.
(B) An impairment that substantially limits one major life activity need not limit
other major life activities in order to be considered a disability.
(C) An impairment that is episodic or in remission is a disability if it would substantially
limit a major life activity when active.
(D) (a) When determining whether an impairment substantially limits a major life
activity, such determination shall be made without regard to the ameliorative effects
of mitigating measures such as:
(i) medication, medical supplies, equipment or appliances, low vision devices (which
do not include ordinary eyeglasses or contact lenses, as defined in (b)), prosthetics
including limbs and devices, hearing aids and cochlear implants or other implantable
hearing devices, mobility devices, or oxygen therapy equipment and supplies;
(ii) use of assistive technology;
(iii) reasonable accommodations or auxiliary aids or services; or
(iv) learned behavioral or adaptive neurological modifications.
(b) The term "ordinary eye glasses or contact lenses" means lenses that are intended
to fully correct visual acuity or eliminate refractive error.
(c) Low vision devices are devices that magnify, enhance, or otherwise augment a
visual image.
(E) The ameliorative effects of the mitigating measures of ordinary eyeglasses or
contact lenses shall be considered in determining whether an impairment substantially
limits a major life activity.
(F) Nothing in this Act alters the standards for determining eligibility for benefits
under state worker's compensation laws or under state and federal disability benefit
programs.

SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.

(a) Section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112)
is amended--
(1) in subsection (a), by striking `with a disability because of the disability
of such individual' and inserting `on the basis of disability'; and
(2) in subsection (b) -
(A) in the matter preceding paragraph (1), by striking `discriminate' and inserting
`discriminate against a qualified individual on the basis of disability'.
(3) by inserting after subsection (b) the following new subsections:
(c) Notwithstanding section 6(E), a covered entity shall not use qualification standards,
employment tests, or other selection criteria based on an individual's uncorrected
vision or unaided hearing unless the standard, test, or other selection criteria,
as used by the covered entity, is shown to be job-related for the position in question
and consistent with business necessity.
(d) Nothing in this Act shall give rise to a claim by a person without a disability
that he or she was discriminated against because of his or her lack of disability.
Section 101(Cool is amended -
in the paragraph heading, by striking "WITH A DISABILITY"; and
by striking "with a disability" after "individual" both places it appears.

SEC. 6. RULE OF CONSTRUCTION REGARDING REGULATORY AUTHORITY.

Title V of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201) is amended
by adding at the end the following:
SEC. 515. RULE OF CONSTRUCTION REGARDING REGULATORY AUTHORITY.
The authority to issue regulations granted to the Equal Employment Opportunity Commission,
the Attorney General, and the Secretary of Transportation under this Act, includes
the authority to issue regulations implementing the definitions contained in section


SEC. 7. EFFECTIVE DATE

This Act shall become effective on January 1, 2009.
 

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Discussion Starter #3
Ogranizatins that are behind the proposed changes as of 06-02-2008 are:

1. AARP
2. AARP Foundation
3. American Association of People with Disabilities (AAPD)
4. American Council of the Blind
5. American Diabetes Association
6. American Foundation for the Blind
7. American Psychological Association
8. APSE: The Network on Employment
9. Bazelon Center for Mental Health Law
10. Brain Injury Association of America
11. Council for Learning Disabilities
12. Easter Seals
13. Epilepsy Foundation
14. Hearing Loss Association of America
15. Learning Disabilities Association of America (LDA)
16. Mental Health America!
17. National Alliance on Mental Illness (NAMI)
18. National Association of Community Health Charities
19. National Association of Councils on Developmental Disabilities
20. National Center for Learning Disabilities (NCLD)
21. National Council on Independent Living (NCIL)
22. National Disability Rights Network (NDRN)
23. National Health Council
24. National Multiple Sclerosis Society
25. National Spinal Cord Injury Association
26. Paralyzed Veterans of America
27. The ARC of the United States
28. United Cerebral Palsy
29. United Spinal Association
 

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Discussion Starter #5
Victoria, I'll get some additional info for you on this.

In the meantime:

ADA Compromise on Tap

Quote:
Advocates for the disabled and business communities are close to agreeing on proposed changes in the ADA Restoration Act, which would reverse the effects of two employer-friendly U.S. Supreme Court decisions.

By Bonnie Conrad, Julie Davidson and Melissa Turley, cyberFEDS®

Disability advocates and business leaders are close to reaching a proposed deal to recommend language to Congress that would resolve their conflicts over the ADA Restoration Act.

The proposed language, which could still change, would redefine "disability" to be any actual, past or perceived physical or mental impairment that "substantially limits a major life activity" and then defines this phrase to mean "materially restricts a major life activity," according to details released by the American Association of People with Disabilities.

The proposal also includes a non-exhaustive list of covered major life activities, and defines the operation of major bodily functions as a covered major life activity.

To read this whole article --> Human Rescources Executive Online
 

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Discussion Starter #6
Mentioned in the bill are two very important Case Law decisions.

SUTTON et al. v. UNITED AIR LINES, INC.
certiorari to the united states court of appeals for the tenth circuit
No. 97-1943. Argued April 28, 1999--Decided June 22, 1999

This case can be read at this link --> Service Dog Central


TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC. v. WILLIAMS
certiorari to the united states court of appeals for the sixth circuit
No. 00-1089. Argued November 7, 2001--Decided January 8, 2002

This case can be read at this link --> Service Dog Central
 

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Discussion Starter #7
The ADA Amendments Act - Changes to the ADA

As many of you know, there are some very important definition changes being proposed to the current ADA. The DOJ has been open (since June 17) to listening to comments and suggestions from various individuals and organizations in the SD world. This thread is to post some of those comments and suggestions and to discuss some of the DOJ proposals.

First some background on the updating of the ADA going on this year of which definition changes are a part.

**************************************************

June 16, 2008
Sweeping ADA update would affect millions
The Bush administration is about to propose far-reaching rules that would give people with disabilities greater access to tens of thousands...
By ROBERT PEAR

The New York Times

WASHINGTON — The Bush administration is about to propose far-reaching rules that would give people with disabilities greater access to tens of thousands of courtrooms, swimming pools, golf courses, stadiums, theaters, hotels and stores.

The proposal would substantially update and rewrite federal standards for enforcement of the Americans with Disabilities Act, a landmark civil-rights law passed with strong bipartisan support in 1990.

The new rules would set more stringent requirements in many areas and address some issues for the first time, in an effort to meet the needs of an aging population and growing numbers of disabled war veterans.

More than 7 million businesses and all state and local government agencies would be affected. The proposal includes some exemptions for parts of existing buildings, but any new construction or renovations would have to comply.

The new standards would, for example, affect the location of light switches, the height of retail service counters and the use of monkeys as service animals.

The Bush administration approved the proposal in May after a five-month review. It is scheduled to be published in the Federal Register on Tuesday, with 60 days for public comment. After considering those comments, the government would issue final rules with the force of law.

The proposal is stirring concern. The U.S. Chamber of Commerce says it would be onerous and costly, but advocates for disabled people say it does not go far enough.

The Census Bureau says more than 51 million Americans have a disability, with nearly two-thirds reporting severe impairments.

... snip ...

Limits on service animals

The proposed rules affirm the right of people with disabilities to use guide dogs and other service animals in public places, but they tighten the definition to exclude certain species.

When the existing rules were adopted in the early 1990s, the Justice Department said, few people anticipated the current trend toward "the use of wild, exotic or unusual species" as service animals.

The proposed rules define a service animal as "any dog or other common domestic animal individually trained to do work or perform tasks" for a person with a physical or mental disability.

Under this definition, monkeys would not qualify as service animals. The proposed rules also would exclude snakes and other reptiles; amphibians; rabbits, ferrets and rodents; and farm animals such as horses, pigs and goats.

To read this article in full --> Article Link
 

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Discussion Starter #8
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.

Sincerely,

Becky Barnes, President, Guide Dog Users, Inc
 

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Discussion Starter #9
Re: Changes to the ADA

Service Dog Central

Other Species

Some other species of animals are used as assistance/service animals. Primates are sometimes used for their greater manual dextarity, for example. In recent years, prompted in large part by a rule change by the U.S. Department of Transportation grouping emotional support animals in with service animals, many unexpected species have turned up as "service animals."

According to the Seattle Times, the U.S. Department of Justice is planning to put restrictions on just what species can be used for service work.

"Under this definition, monkeys would not qualify as service animals. The proposed rules also would exclude snakes and other reptiles; amphibians; rabbits, ferrets and rodents; and farm animals such as horses, pigs and goats."
--Seattle Times

This is not an arbitrary decision based on the social acceptability of various species. There are some very troubling concerns about the safety of people with disabilities relying upon some of these animals for assistance.

So called "guide horses," for example, though they have garnered much attention in the press are not considered safe by the National Federation for the Blind, by guide users, or by miniature horse breeders. The NFB has even gone so far as to pass a resolution in opposition to the use of guide horses.

To read this article in full --> Article Link
 

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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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Discussion Starter #12
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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Discussion Starter #13
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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Discussion Starter #14
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 Department’s 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 Department’s 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 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, 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 § 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 § 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 Department’s longstanding position and is not a new position.

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

Section 36.302 Modifications in policies, practices, or procedures

Section 36.302(c) Service animals

The Department’s 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 § 36.302(c) by adding the following sections as exceptions to the general rule on access. Proposed § 36.302 would:

Expressly incorporate the Department’s 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 animal’s owner does not take effective action to control it; (2) the animal is not housebroken or the animal’s 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 handler’s 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 § 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 § 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 Department’s 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 person’s 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 Department’s 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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