Tuesday, June 17, 2014

Service Dog Advocates, Is Your Proposed Rule Change Discriminatory?

As an advocate for users of assistance animals, I get discouraged when I see service dog handlers on social media and blogs trying to undermine the rights of other people with service dogs. There is so much misinformation out there, so little civil rights education, and such confusion between actual laws and regulations versus the preferences and prejudices of the public, service dog trainers, and service dog handler groups. It’s understandable that even well-meaning handlers could think that registration, certification, testing, etc., should be imposed on their peers.

If you’re thinking of proposing or promoting the idea of such limits on our rights to service dogs, please take a moment to read this ADA refresher with quotes from the Department of Justice (the agency that makes the regulations and is responsible for the enforcement of the public access section of the ADA, Title III).
Your registration or identification scheme is discriminatory if it keeps any person with a disability from living as free and spontaneous a life as a person without their disability when it comes to public accommodations:
Specifically, title III requires places of public accommodation to make reasonable modifications to policies, practices, or procedures to afford access to persons with disabilities, including those who use service animals, that is equal to the access afforded to individuals without disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a). [DOJ, from “SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND WAL-MART STORES, INC.” http://www.ada.gov/walmart.htm, emphasis added]
Before you propose a scheme for registering or identifying service dogs, ask yourself if it would make access more difficult for someone who . . .
. . . is jogging by a coffee shop with their seizure alert dog when a friend waves him/her down and offers to buy breakfast. The dog is unvested and the jogger is not carrying his/her wallet or purse. Could this person be denied the right to eat at the restaurant because of your scheme?
. . . is a lawyer taking Eskalith and Depakote which cause frequent urination and diarrhea/loss of control of the bowels. Nature isn’t just calling, she’s screaming when the person and psychiatric service dog rush from the courthouse and arrive at a restaurant for a business luncheon he/she is hosting. Will your scheme increase
the possibility that he/she will be humiliated in front of his/her clients or associates and have to leave with soiled clothing?
Your training/certification scheme is discriminatory if by making it more expensive, complicated, or more difficult for any person with a disability or in any way limits their access to a service dog.
Certain commenters recommended the adoption of formal training requirements for service animals. The Department has rejected this approach and will not impose any type of formal training requirements or certification process but will continue to require that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability. While some groups have urged the Department to modify this position, the Department has determined that such a modification would not serve the full array of individuals with disabilities who use service animals, since individuals with disabilities may be capable of training, and some have trained, their service animal to perform tasks or do work to accommodate their disability. A training and certification requirement would increase the expense of acquiring a service animal and might limit access to service animals for individuals with limited financial resources.
Some commenters proposed specific behavior or training standards for service animals, arguing that without such standards, the public has no way to differentiate between untrained pets and service animals. Many of the suggested behavior or training standards were lengthy and detailed. The Department believes that this rule addresses service animal behavior sufficiently by including provisions that address the obligations of the service animal user and the circumstances under which a service animal may be excluded, such as the requirements that an animal be housebroken and under the control of its handler.
[DOJ, Department of Justice ADA Title III Final Rule]
Notice the phrase “full array” and the omission of any mention of owner training other than tasks or work. Other than being housebroken, not menacing, etc., “under control of its handler” is the only requirement for public access.

It’s impossible to come up with any meaningful, specific standards that won’t limit the rights of some person with a disability to train and use the service dog of their choice. If I’ve got a seizure disorder and a dog with training flaws who can reliably alert me, it’s up to me to decide if I can work around those flaws and then do so in a way that keeps the dog under my control or, in the event of a human or canine mistake, quickly brings the dog back under my control.

Whether the public approves or my peers are embarrassed by my service dog is irrelevant. Under the Civil Rights Act of 1963 (on which the ADA was based) you don’t get any fewer rights because your appearance or behavior is embarrassing to other people of your race or ethnicity or because it may feed the public’s bad opinion of your racial or ethnic group. I’m sure there were a lot black people in the 60s who felt natural hair and Dashikis some were sporting weren’t helping their race’s acceptance. That didn’t make it any less illegal to forbid them in a dress code. “No shoes, no shirts, no service is legal,” but not “no Afros.”

It’s also impossible to come up with a meaningful test that won’t be difficult or impossible for some to pass because of their disabilities. Some may even be injured in the attempt if the stress of being tested or the presence of the tester triggers a seizure, panic attack, etc.

The ADA puts the power in the hands of the person with the disability. Each person with a disability (not the government, not their doctor, and not other people with disabilities) is in charge of how they will live with their disability, what they will use as assistance, and how they will use it. It is the service dog handler who decides how their service dog will be trained or acquired, it is he/she (not a doctor) who determines that a service dog is appropriate to help them and what it will be trained to do, it is he/she who determines if the dog is appropriate for public access, it is she/he who is responsible for any damage, injury, etc., caused by their dog.

This is consistent other public access rights under the ADA. No one with a disability can, for example, be asked for proof that they need their wheelchair, be told which model of wheelchair they may bring into a place of business, or be required to have their wheelchair inspected or registered . It is legal to construct your own wheelchair and the DOJ even refuses to specify the maximum dimensions of a wheelchair. See http://www.today.com/news/veteran-invents-tank-wheelchair-help-his-paralyzed-wife-2D79776968

Even when a person chooses to use a vehicle that non-disabled people more often use, like a golf cart, ATV, or a Segway (which gives rise to similar issues of faking/nuisance as to whether the person is actually a disabled person and whether one will use the vehicle safely and in a non-disruptive way) businesses are allowed to ask if one is disabled, but are not allowed to require documentation even though state-issued mobility disability placards are ubiquitous. They have to accept placards, but they also have to accept the person’s verbal statement alone. See http://www.ada.gov/opdmd.htm

22 comments:

  1. This comment has been removed by a blog administrator.

    ReplyDelete
  2. Thank you for this carefully argued position against registration and testing. You make excellent points, and your analogies are right on target.

    ReplyDelete
    Replies
    1. Thanks so much for your comment. I love feedback.

      Delete
  3. I would like to see higher levels of training of SDs re: obedience, by owner trainers, maybe even programs. Even a CGC or CGCA would be fine. But, not all owner trainers do a poor job.... same with programs. As an educator, I understand assessments of performance. I also understand one test at one point in time is ridiculous to predict competence or success. (ie: me - I scored in the bottom 1% in the Math portion of the GRE. Yet, I took 4 courses in Statistics and Research Methods and got an A in each course, and maintained a 3.8 GPA on a 4 scale. So do I have any good answers and solutions? Nope! I thank you for a very well written article. Roxann Hamilton, MEd, CPSWS, CWRAPF, CSIS, COALTC

    ReplyDelete
    Replies
    1. In that case, would you also like to see some sort of training and skills testing for people who use wheelchairs, and scooters? After all, those fancy power wheelchairs are extremely heavy, and could do a lot of damage in the hands of an unskilled user. In fact, if an unskilled wheelchair or scooter user were to run over my six-pound service dog, that would be the end of my dog, and I think I have every right to insist that my dog be protected from people who are not qualified to drive those things.

      And how about psychological testing for people who use crutches, or canes, or oxygen tanks - after all, we do not want to put these potentially dangerous implements into the hands of someone with serious anger management issues, or someone with PTSD who might unexpectedly perceive a need to use them as defensive weapons against members of the public.

      And while we are at it, shouldn't we require some sort of ID or certification for people to use those motorized carts some stores provide free for people with mobility-related disabilities? After all, some able people might be using those just because they are too lazy to walk.

      In fact, shouldn't the government maintain a database and issue ID's to all disabled citizens? The card could include a list of all the equipment/devices that person is qualified to use in places of public accommodation. That way there could never be any question at all that they are indeed disabled, and are indeed qualified to use certain types of equipment/devices to mitigate their disability.

      Now, what could possibly be wrong with any of these ideas?

      Delete
    2. "not all owner trainers do a poor job"

      Not all Scots are stingy...not all Irishmen get drunk every night...not all Blacks eat fried chicken and watermelon...not all Arabs are camel-riding terrorists...not all Mexicans are lazy...not all teenagers are hoodlums...not all little dogs are yappy, useless purse dogs...not all pit bulls/rottweilers/dobermans/fillinthebreed are aggressive...not all homeless people are alcoholics/drug addicts...

      Delete
    3. The way you worded your questions to me, My answer would be yes to each.

      Our multi-level government keeps varieties of data bases on us all ready: just look at census data, voter registration, IRS, state tax filers, drivers licenses, vehicle registrations, home owner data, medical data, social security data. public benefits data, FBI, CIA, school records, FAFSA, and on and on.

      I see nothing wrong with data bases on the issues you stated, or even stricter controls in some of the issues.

      Roxann (credentials in my original post)

      Delete
  4. I'm baffled by the notion that service dog "advocates" would propose mandatory registration or training. The objection I read is to dogs that aren't service dogs posing as such, and misbehaving in stores, which causes problems for people who have real SDs.. So: why not advocate for better education for business owners, so they know when they may legally exclude SD's (e.g. ONLY if it misbehaves). Reach out to the DoJ and to business organizations to develop training materials. When business owners start exercising their rights, the word will spread to the phonies (whose dogs are causing the problems) and we might see fewer of the abuses. THAT would protect the rights of SDs and their owners...

    ReplyDelete
    Replies
    1. Educate, Mediate, Litigate.

      I have only been impressed with maybe a score of OT SDs, and maybe 65% of program trained SDs over the last 25 years. I owner train. I produce rock solid performers of obedience - work - tasks - temperament.

      Roxann (credentials in my first post)

      Delete
  5. I have a question regarding bringing Service Dogs In Training into Public Spaces.
    My Service Dog of 10 years passed last April and so of course I needed another- I chose to Rescue another GSD to train to be my SD. Now we all know, SDs are not MADE, they are TRAINED > which generally takes a few months with an Intelligent Dog with few Tasks and up to 2 years for Detailed Tasks for some Dogs. My Question is this - What are the "Rights" if you will, of a Service Dog In Training.?
    My Condominium Association and The Board are in the process of Sueing me for not having my Dog "Registered" yet as a Service Dog. They are Requiring me to have her Tested and Show Proof of Passing and Compliance with the FHA, stating that they are a Private Entity owned by The Owners so the ADA does not apply. (They already called them).
    My GSD is Fully Task Trained, and presently is Obedient to Over 15 Commands with others being worked on. This Work ALL in Under 6 Months by a Disabled "MoM" as her Trainer. (Meaning, little time able to be Devoted to Training & Practice, weekly).
    Also, are you aware of any Advocates for this Type of Legal Situation with a Service Dog In Training and a Condominium Association?
    I have spoken to Attorneys and they are all in the $2 - 3,000 Range with an additional Hourly Rate of $250. Somewhat unaffordable.
    However, they do say they believe its a Fight I will Win, no Doubt.
    Also, my Drs. Office requires a letter of Service Dog Registration prior to allowing any Dogs in their Office.
    Where does one get this "Letter" ? Or this Registration # I keep hearing of. I see them on the Internet but surely THAT cannot be what they are referring to.
    Any assistance will be so greatly appreciated!
    Respectfully-
    Florida

    ReplyDelete
    Replies
    1. There is no registration required. Contact your Fair Housing Center that is nearest to you. They will help, and often have attorneys on their staff to assist you. I believe that every state has protection for "service dogs in training". If you can not find a Fair Housing Center contact your closest Center for Independent Living for assistance and resources in your area. Condominium associations are not above federal law.

      Delete
    2. No not every state covers 'In Training' service dogs. Thankfully in Florida we are.

      Delete
  6. Your doctors office would fall under the ADA law. Bring a copy of the law and your SD with you. Also the FHA does not require testing of service dogs. Please take them a copy of that law as well. That law can easily be found on google.

    ReplyDelete
    Replies
    1. She is referring to her SD "in training" which is not covered under the ADA. If her state laws allow for SD "in training" I believe the doctors office would be under that law and have to allow her in training dog access.

      Delete
  7. I hope all OTs do well, and their SDs, too. Great article! Great thinking!

    Roxann (credentials in my first post)

    ReplyDelete
  8. I am one of those low income owner trainers. When I knew I was becoming disAbled, I began looking for a dog to train. The programs were out since I didn't have the $$. Besides, I've had dogs all my life, so only the task training was different. I had written my list of tasks to train the dog. I knew the size I needed. I didn't need a large dog and medium sized dogs just weren't part of most programs. I had to opportunity to rescue a dog who'd been abandoned. I did my own character testing and knew it would be a challenge but he would work.
    Now I tell people I have an alphabet dog who has ADD and PTSD. lol Even so, he was quick to catch on to the training. He has his flaws but as I also tell people, we are a team because what one can't do, the other does. If I fall and am in pain, he panics...in working to calm him down I am able to overcome my own pain, so by that time we work together to get me back in my wheelchair. So that social test people want the dogs to be certified in? He'd fail. Yet we work well together.
    I too, have been told I need a letter or registration. If I believe it's a big issue which affects my quality of life, I will step up to the challenge with the ADA and DOJ, if not, then I let it go.
    For those who believe we, disAbled should be registered, consider how that has worked in the past. No thank you. As to those who bring non SD dogs into places, when I suspect that, I often just ask a simple question. "When do you think you will be retiring him/her?" Watching the eyes and face, you will quickly know a pet owner from a SD owner. Thanks so much for this article. I'm printing this out and also sharing.
    D

    ReplyDelete
  9. Hi, I have a service dog his name is Roscoe. He was trained with the assistance of Courteous Canine. He qualified as a service dog once he completed the Delta Society's test, 9 years later he is retired and we are actively looking for a new service dog (SD). This topic is being discussed all over social media and I believe there is a need to have a SD registered. This change would be most useful to airline company employees and TSA. The benefit to hassle free travel is worth the effort. It goes without saying this would also be a reduce or even eliminate the hassles with egress and ingress to public accommodations and retailers. There are challenges to overcome in order to come up with some consensus:

    ➔ If I register the government or whomever will know I'm disabled.
    ✔︎ The SD is registered in the same manner as you would getting his/her yearly tags. The owner is not registered only the dog is registered.

    ➔ I can't afford it
    ✔︎ If you cannot afford a tag for his/her shots and service dog tag. Then you are not a responsible owner and should not have any animals

    ➔ I self trained my SD because I cannot afford a professional trainer
    ✔︎ You may not need a professional trainer but at some point the dog should pass a conventional test certifying the SD meets the minimum standards.

    ➔ I have a letter from my doctor. It proves I need a service dog
    ✔︎ A written prescription by a doctor is a legal document. If a doctor signs it under false pretenses she/he could lose their license. A letter does not have the same legal standing.

    ➔ Fake service dogs
    ✔︎ No retailer should sell any service dog merchandise to someone whose dog is not registered as a SD.

    The overall concern is, why should the owner be registered. The owner is not registered. The dog is registered. The dog owns the tag. The SD can then go from one person to another. This is most helpful when traveling. During a layover my partner takes Roscoe out of the airport to do his business and return. My partner is not disabled but Roscoe is still a service dog.






    ReplyDelete
    Replies
    1. Those are good arguments in favor of registration, but 'who' is going to certify? Money is going to be made by someone and even then there will be away around it to have false registrations. And will 'organizations' be able to certify their own dogs? Because I know of organizations that are ADI members and some of their dogs pass on through that should not. I do see your point and agree it would make it so much easier for airlines and even business owners to see identification. But like another point was made - what if you just happen to not have it with you or lost it and you need your dog out in public NOW? You will be denied access.

      Delete
  10. Your Pin button doesn't work. I would like to share this on m Service Dog Pinterest board.

    ReplyDelete
  11. I appreciate this article please visit my page I have been trying to explain what you said, but I a frustrated. People are so quick to judge or condemn as Disabity Alliance did to me, and just said my dog charlie is not a designated service dog I don't think people should be allowed to say it's a fake service dog, has anyone stopped and thought how your words can hurt a person with disability. Get mad at the internet sites they are misleading vulnerable people with disabilities. Since CTV NEWs did my story I can't go out in my community people point a finger three are pointed back at you. I cant stand riding the bus because of the mean comments and dirty looks. I can't go out to a resturant, with out people looking under the table for my dog and being asses about it. I then find out Elsa or some one from Disability alliance is training her own dog after criticizing me, no one explained to me about the Guide dog Act or offered to help. All this time I just wanted to be independent and safe. I have a medical certificate certifying my disability I live in surrey Bc people are just so ignorant I just want my life back! I dread riding the bus or going out but I have a good lawyer this fake service dog business needs to stop you are punninshing people with disabilities and people need to be more compassionate now I have been denied the use of a service dog and training but my lawyer is working on that. I have been told bus drivers did not violate my rights not a service dog. I have been really up set there needs to be an advocate for service dog owners people have some compassion. I am on blogger and face book!

    ReplyDelete
    Replies
    1. Saying Fake service dog is just mean
      Dose anyone read the ADA or Bc guide dog Act has anyone explained to a person with disability and thier service dog about the rules, no prob just started barking about I am tired of people being so judgement and saying Fake service dog here's a tissue for yoUr issue some one needs to get mad at Pads society and the other training facilites they are not being very accomadting This is not fair some one please make this fake service dog issue go away and I think Pads said it is giving thier dogs a bad name with these fake service dogs what have they done for people with disabilities to help they need to be more flexible I think just want people to go to them and use thier dogs I believe government needs to make training and obtaining a service dog more flexible. Seems to me the Act discriminates people with disabilities and not include but exclude having a designated service dog. I just don't know how to say it maybe you can who wrote this article I am really fed up!

      Delete
  12. Very good article opposing regulations being put on service dogs/handlers, but something has to be done. Twice I had 2 unleashed dogs come after service dogs in training. One dog was coming out of the local public library off leash and came after my pup, and another time was at the Tractor Supply Store when a pit bull off leash left his owners side at the check out counter, came over to the check out counter where I was with my in training SD and barking and lunging. Don't know how my dogs were not injured those 2 times. Numerous time I have run into problems - little dogs at Walmart, loose dog in a laundromat, businesses that have their own dogs in there with them barking. People trying to walk up to me with their dog to 'socialize' with my in training dog even with a vest on! I seriously have to carry 'Bark off' (mace) now and I will use it. Yes something needs to be done but I also do not want strict regulations for disabled persons. They do not have the extra money for fees for registration, tags, special training or testing (like CGC for certification) on top of what they have already done. Not sure what the answer is but things can't stay like this. I fear the safety of handlers and service dogs! If the dogs that went after me and my dogs (and I am not disabled but a trainer), if they went after a child with a service dog (with adult handler) or a blind person who can't see what is happening, or someone with serious mobility issues that is so dangerous. And I found out from the cops in my town they would not defend me. They said it was a civil matter and I would have to take the other person to court and try to sue them. They were not willing to help me out even if I or dog was injured. "Civil matter' in a public place?!

    ReplyDelete