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Miniature horse
yes to non-federal governmental entities; yes to places of public accommodations; but not on planes.

As you know, I typically do not blog more than once a week. However, I have a good reason for doing so this week. Next week, I am going to be in Austin (Round Rock actually) attending and speaking at the Accessibility Professionals Association conference. Immediately following that or perhaps the week after, I very well may be in Houston testifying as an expert witness. So, I have a little bit of time this morning. Also, on Wednesday, the Department of Transportation came out with proposed regulations on service animals, here121. Since I have written about the issue of animals on planes numerous times before (such as here122, here123, and here124), I feel compelled to blog on it. As usual, blog entry is divided into categories and they are: 1) why DOT felt compelled to issue regulations; 2) just what are the proposed regulations and what are they seeking further comments on; and 3) thoughts/takeaways. The reader is free to focus on any or all of the categories.

 

I

Why The Regulations?

 

1. Service animal related complaints are increasingly a significant portion of disability related complaints that the department’s aviation consumer protection division and airlines receive.
2. Concerns have been raised by airlines, airports, and disability advocates about inconsistency between the definition of a service animal when it comes to U.S. carriers and foreign air carrier services.
3. The current rules are inconsistent with DOJ’s ADA rules. That could lead to some strange situations. For example, a restaurant on an airport concourse justifiably refusing an animal but that animal having the right to fly on the plane.
4. The current rules are inconsistent with respect to the kinds of animals that can be allowed on the plane when compared to DOJ rules for example. Right now, a variety of animals are permitted on the plane and that results in airlines expending considerable amount of time when it comes to unusual or untrained animals.
5. Passengers wishing to travel with pets may be falsely claiming that their pets are service animals in order to avoid paying the fee charged by most airlines. Airlines have reported increases in the number of service animals on aircraft and have expressed concern that the increase is due in part to passengers falsely claiming that their pets are emotional support animals.
6. According to airlines, passengers are increasingly bringing untrained service animals on board aircraft thereby putting the safety of crew members, other passengers, and other service animals at risk.
7. Some believe that emotional support animals pose a greater safety risk because they have not been trained to mitigate a disability and have not received adequate behavioral training.
8. Current regulations are confusing. For example, service animals for those with physical disability get different treatment than service animal for those with psychiatric disabilities.
9. The Federal Aviation Administration Reauthorization Act of 2018, which we discussed here125, mandated that the Department of Transportation conduct rulemaking proceeding to sort out this service animal/emotional support animal confusion.
10. An Access Advisory committee was formed by DOT to consider a whole bunch of issues but could not reach agreement.
11. A previous notice of proposed rulemaking was published and many comments were received, and so, the process has been moving along.
12. The current set up creates a market inefficiency, which requires carriers to forgo a potential revenue source.

 

II

 

The Proposed Regulations and What Further Comments Are Needed

 

1. The proposed regulations will define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. This definition pretty much tracks the DOJ final implementing regulations under title II and title III of the ADA (which we have discussed many times, such as here126), found at 28 C.F.R. §§104127, 36.104128. A passenger can have up to two service animals. While a passenger could travel with two service animals, that does not give the passenger additional space for those service animals. That is, the airline must allow that individual to use all of his or her allotted space for both service animals without encroaching into the space of another passenger.
2. Emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals because they are not trained to do work or perform a task for the benefit of an individual with a disability. Aligning this definition with DOJ’s ADA regulations decreases confusion for individuals with disabilities, airline personnel, and airports. That said, DOT is seeking comments on whether emotional support animals for individuals with disabilities should be regulated separately and distinctly from service animals. DOT is seeking comment on how to deal with the situation where an emotional support animal user with a mental health disability has trained their dog to do work or perform a task to assist them with their disability thereby transforming the animal into a psychiatric service animal. DOT is also seeking comment on whether emotional support animals are more likely to not behave (I can’t imagine that isn’t the case because of their lack of training, but I don’t know that for sure). DOT is also seeking comment on how limiting emotional support animal to dogs and cats might impact individuals with disabilities who rely on other species of animals to accommodate their disability. DOT’s current understanding is that dogs currently represent 90% of service animals transported on aircraft with cats coming in second. So, DOT is looking for information on how people who rely on emotional support animals would be impacted by the rule.
3. A passenger would be limited to one emotional support animal.
4. A service animal is limited to a dog for a couple of different reasons. First, dogs are the most common animal species used by individual to mitigate disabilities both on and off aircraft. Second, dogs also have the temperament and ability to do work and perform tasks while behaving appropriately in a public setting and while being surrounded by a large group of people.
5. Capuchin monkeys and miniature horses are not service animals. Monkeys are out because they may present a safety risk to other passengers as they have the potential to transmit diseases and exhibit unpredictable aggressive behavior. Miniature horses are out due to their size (I did recently read about a miniature horse flying with a person with a disability. If the regulations wind up as they are now, that person will not be able to do so in the future). The department is seeking comment with respect to limiting service animals to dogs.
6. Dog breed restrictions are out. DOT said as much in their final statement of enforcement priorities regarding service animals. DOT’s policy has been to require airlines to conduct individualized assessment that a particular service animal based upon the animal’s behavior or health rather than applying generalized assumptions about how a breed or type of dog is expected to behave. Under this policy, DOT allows airlines to refuse transportation to dogs exhibiting aggressive behavior and posing a direct threat to the health or safety of others regardless of breed. Also, DOJ rejects outright bans on service animals because of their breed in their final implementing regulations. For example, DOJ has advised municipalities that prohibiting specific breeds of dogs is out when it come to a service animal unless the dog poses a direct threat to the health or safety of others, which is a determination that has to be made on a case-by-case basis.
7. DOT recognizes that the airplane is a unique environment. Therefore, comment is sought on whether breed restrictions are justified in the airplane context. Also, comment is sought on whether allowing airlines to conduct an individualized assessment of a service animal’s behavior in order to determine whether the service animal poses a direct threat is an adequate measure to ensure aggressive animals are not transported on aircraft.
8. The proposed rule treats psychiatric service animals the same as other service animal trained to do work or perform tasks. The change not only harmonizes DOT’s regulation with DOJ’s ADA service animal definition, but also eliminates a weak rationale for having a different regulatory requirement for users of psychiatric service animals. That is, DOT believes that justification for treating service animal users with mental or emotional disabilities differently from service animal users with other disabilities is currently lacking.
9. A service animal will have to fit within the passenger’s foot space on the aircraft or can be placed on the passenger’s lap. While it is absolutely true that many large service animals accompany individuals with disabilities on aircraft, particularly for those individuals with mobility impairments, those animals are often trained to fit in the small spaces. Where an animal is too large to fit in the passenger’s foot space or placed on the passenger’s lap, DOT proposes to require airlines to seat the passenger traveling with the service animal next to an empty seat within the same class of service if such a seat is available. If no empty seats are available to allow a passenger to travel with the service animal in the cabin or the passenger’s scheduled flight, DOT proposes to require airlines to provide passengers the option to transport the animal in the cargo hold for free or to transport the passenger on a later flight with more room if available. DOT is seeking comment on this.
10. Service animals will have to be harnessed, leashed, or tethered unless the device interferes with the service animal’s work or the passenger’s disability prevents use of those devices. In that case, the carrier has to permit the passenger to use voice, signal, or other effective means to maintain control of the service animal. Such a requirement is essentially the same as to what is found in DOJ’s final implementing regulations at 28 C.F.R. §§136129(d), 36.302130(c)(4).
11. Under the proposed rule, an airline can decide that an animal is not a service animal if it is not under the control of its handler. That is a bit different from DOJ’s approach, which says the service animal may still be a service animal that can be excluded if it is out of control or the animal’s handler does not take effective action to control it.
12. DOT’s air transportation service animal behavior and attestation form, which airlines may require passengers with disabilities seeking to travel with the service animal on aircraft, includes a statement that the passenger understands the animal must be harnessed, leashed, or tethered unless the passenger is unable because of a disability to do so.
13. A handler is defined as a qualified individual with a disability who receives assistance from a service animal doing work or performing tasks directly related to the individual’s disability, or a safety assistant, as described in 14 C.F.R. §382.29131(b), who accompanies an individual with the disability traveling with a service animal. The service animal handler has the responsibility for keeping the service animal under control at all times and for caring and supervising the service animal, including toileting and feeding. A service animal trainer traveling with a trained service animal not serving as a safety assistant for passenger with a disability, and other passengers traveling with an individual with a disability on aircraft, will not be considered service animal handlers under the proposed rule. The department seeks comment on its decision to define service animal handler in this way. It also seeks comment on what impact, if any, it’s exclusion of third parties as service animal handlers might have on individuals with disability traveling on aircraft with the service animal. The DOT is also seeking comment on the proposed regulations regarding the animal must be under the control of the handler either via restraint device or by voice. It also seeks comment on whether in cabin pet carrier consistent with FAA regulation should be included in the rule as an optional service animal restraint device if the final rule recognizes emotional support animals.
14. With respect to documentation that the animal is a service animal, the proposed rule does the following: 1) require individuals traveling with a service animal to provide to the airlines standardized documentation of the service animal’s behavior, training, and health; 2) if the service animal will be on a flight segment longer than eight hours, DOT proposes to allow a standard form attesting that the animal would not need to relieve itself or can relieve itself in a way that does not create a health or sanitation risk; 3) the forms are the only documentation that an airline will be able to use and require of a passenger traveling with a service animal. The airline does not have to ask a passenger with traveling with the service animal for any documentation, but if they do, the airlines have to use the forms established by DOT. DOT is seeking comment on whether airline should be allowed to create their own forms or if uniformity is more helpful.
15. They DOT air transportation service animal behavior and training and attestation form is completed by the passenger and provides assurance that the service animal traveling on the aircraft has been individually trained to do work or perform tasks for the benefit of the passenger with a disability. It also provides assurance that the animal has been trained to behave properly in public, and that the user is aware that the service animal must be under his or her control at all times. DOT believes that the form serves as a deterrent for individuals who might otherwise seek to claim falsely that their pets are service animals as an individual is less likely to falsify a federal form. The DOT is seeking comment on ways to reduce any burden on individuals with disabilities traveling with service animals and is seeking comment on a variety of concerns, including: 1) what ways are out there to reduce the burden that the DOT’s behavior and training form would have on passengers with disabilities; 2) should airlines be allowed to require the form each time a service animal user travels, even for round-trip flights; 3) what medium should airlines use (hardcopy, electronic, email), to provide and collect the form passengers with disability; 4) are there privacy concerns airlines should consider; 5) do the questions in the form help airlines determine whether an animal has been adequately and properly trained; 6) does the form adequately educate passengers on how a service animal is expected behave, the consequences of misbehaving, and the seriousness of falsifying the DOT form; 7) should the airline be allowed to require only emotional support animal user to complete such a form if the department were to continue to require airlines to transport emotional support animals; and 8) does the general content and layout of the form makes sense.
16. The actual service animal behavior and training attestation form contains the following certifications: 1) the animal has been trained to do work or perform tasks to assist the individual with his or her disability and has been trained to behave well in a public setting without aggression towards humans or other animals; 2) the animal will be under the control of the handler either via restraint device or by voice commands; 3) the airline has the right to treat the animal as a pet if the animal engages in disruptive behavior that show that it had not been successfully trained to behave properly in a public setting; 4) the airline has the right to charge for the cost to repair any damage caused by the service animal so long as the airline charges passengers without disability for the same kind of damage; and 5) it is fraud to knowingly make a false statement to secure disability accommodations provided under DOT regulations.
17. DOT also proposes to allow airlines to require passengers to submit to the airline a DOT service animal health form completed by the passenger’s veterinarian. The form, which is to be completed by the veterinarian, describes the animal, indicates whether the service animal’s rabies vaccination are up-to-date and whether the animal has any known diseases or infestation, and states whether the veterinarian is aware of any aggressive behavior by the animal. The form will be valid for one year from the date of issuance. DOT seeks comment on whether one year is too long or too short for the vaccination form to be valid and the reasons for any such belief. The form is modeled after a number of State certificate of veterinary inspection forms and the United States Department of Agriculture APHIS 7001 form. DOT seeks comment on a proposal to allow airline to require that passengers provide the vaccination form as evidence that the service animal has received a rabies vaccine and that the animal is not exhibited aggressive behavior known to the veterinarian. It also seeks comment on whether the airline can refuse transportation to a service animal based upon information contained in that form, such as where the veterinarian discloses on the form that the animal has a history of aggressive behavior or has caused serious injury to a person or animal). DOT also seeks comment on whether the form would be effective in ensuring that the traveling public would not contract rabies from a service animal should they be bitten. DOT also seeks comment on the burden such a form imposes upon passengers traveling with disabilities. DOT also seeks comment on whether the animal health form should be limited to emotional support animal user in the event DOT decided to continue to require airlines to transport emotional support animals.
18. The current rule allows airlines to insist on documentation that the animal will not need to relieve itself or can relieve itself in a way not creating a health or sanitation issue when going on a flight of longer than eight hours. The proposed rule would only allow the airlines to request a DOT service animal relief attestation form and nothing else. That particular form just certifies that the animal will not need to relieve itself on the flight or that the animal can relieve itself in a way that does not create a health or sanitation issue on the flight. It also has a box saying that the handler is responsible for the cost to repair any damage caused by the animal so long as the airline charges passengers without disabilities for similar kinds of damage.
19. The proposed rule would prohibit airlines from requiring passengers to provide the DOT health, behavior and training and relief forms prior to the passenger’s date of travel and is seeking comment on that. The DOT is also seeking comment on whether using standardized DOT forms is the best way for airlines to collect data from passengers traveling with service dogs. Since aircraft are unique, DOT believes that a proposal allowing airline to require all service dog users to provide the DOT standardized form to assist airlines in determining whether a service dog poses a direct threat to the health or safety of others makes sense.
20. The proposed rule, as mentioned above, prohibits airlines from requiring individual traveling with the service animal to provide the DOT issued forms in advance of the passenger’s flight because advance notice may present significant challenges to passengers with disabilities wishing to make last-minute travel plans that may be necessary for worker family emergencies. Airlines can require users of the service animal to check in at the airport one hour before the check-in time at the airport for the general public to process service animal documentation so long at the airline similarly requires advanced check-in for passengers traveling with pets in the cabin.
21. DOT proposed rule requires airline to make an employee training to handle disability related matters available in person at the airline’s designated airport location to process service animal documentation promptly.
22. The DOT seeks comments on a proposal to require airlines to try to accommodate passengers failing to meet the one hour check-in requirement so long at the airline can do so by making reasonable efforts without delaying the flight.
23. The proposed rule would make the species requirement the same for both U.S. carriers and foreign carriers.
24. Proposed §382.74 does something different than what the current regulations do. That is, it matches up with the two inquiry paradigm of the DOJ’s title II and title III regulations. That is, it says that airline can only make two inquiries to determine whether an animal qualifies as a service animal. The two questions are: 1) is the animal required to accompanying the passenger because of a disability; and 2) what work or tasks has the animal has been trained to perform. You cannot ask about the nature or extent of a person’s disability or ask that the service animal demonstrate its work or tasks.
25. Proposed rule §382.75(e) requires that an airline’s website must make the DOT forms mandated by the proposed rule available to passengers in an accessible format.
26. Proposed rule §382.79(c) that with respect to making a determination to deny transport to a service animal on the basis that the animal has misbehaved and/or has caused a significant disruption in the cabin must be based upon an individualized assessment based upon a reasonable judgment relying on the best available and objective evidence to ascertain the probability that the misbehavior and/or disruption will continue to occur. Further, whether reasonable modifications in policies, practices, or procedure will mitigate the misbehavior and/or the disruption must also be considered.
27. Proposed rule §382.79(e) says if an airline is going to deny transport to the service animal, the airline must issue a written statement for the reason for the refusal. That statement has to include the specific basis for the airline’s opinion that the refusal meet the standards for denying transport. Further, that written statement must be provided to the individual with the disability accompanied by the service animal either at the airport or within 10 calendar days of the refusal of transportation.
28. Proposed §382.80 prohibits carriers from imposing additional restrictions on the transport of service animals beyond what is specified in the proposed regulations.

 

III

 

Thoughts/Takeaways

 

1. Current regulations implementing the Air Carrier Access Act are a mess. It’s amazing the system works at all. So, the proposed regulation brings needed clarity to the situation.
2. I do not have a dog in the fight. That is, I am not currently representing or consulting with anybody or any organization with respect to these proposed rules.
3. The proposed regulation gets rid of the arbitrary and unsupportable, even by DOT’s own admission, distinction between service animal for physical disabilities v. psychiatric disabilities.
4. The proposed regulations eliminate the issue currently seen in the Tampa airport where Tampa airport said that emotional support animals unless they were crated or on a leash, etc., were not allowed in the airport. Such a decision was consistent with title II of the ADA’s final implementing regulations. Now that service animal under the DOT regulations matches for all practical purposes the regulations under title II and title III of the ADA, this would no longer be an issue.
5. DOT is asking for lots of comments on many issues. The proposed reg was published on 2/5. So, that means comments due in by April 5 or possibly 6 (you have to check to see if a Sunday for a due date affects anything). So, these regulations could very well change.
6. Emotional support animals are out. How many people will be truly affected by this decision is an open question. I would certainly like to know that, and DOT would like to know that too as they are seeking comment on that question.
7. While DOT is seeking comments on breed restrictions, I don’t think you will see DOT back down on that. That means Delta Airlines will have to end its restriction on pitbulls.
8. Direct threat determination very closely resembles Chevron v. Echazabal, which we discussed here132. It brings needed clarity to the area to what was previously very confusing.
9. If an animal is not under the control of the handler, then it isn’t a service dog. This is a theoretical distinction but not necessarily a practical distinction from the ADA’s title II and title III DOJ regulations.
10. It isn’t clear to me how a person training an animal to be a service animal gets treated under the proposed rule. Airline travel is part of the training for service dogs.
11. The documentation approach seems balanced and simplifies things greatly. It will be interesting to see what happens during the commenting period.
12. Is a veterinarian really qualified to attest to a dog’s aggressive tendencies? Why would a person with a disability even submit a form from the veterinarian saying that the dog has been aggressive? What if the dog got aggressive because it was doing his or her job and a human element acted stupid?
13. Airlines can’t require the DOT standardized forms in advance.
14. DOT uses the two inquiries term found in the DOJ regulations but not in the DOJ’s frequently asked questions document. This leads to the real question of whether narrowly focused follow-up questions are in order if insufficient information is given to the two questions. Arguably, the answer is yes so long as the follow-up questions fall within those two inquiries. Also, interesting to note that nothing in this section of the proposed regulation, unlike the DOJ regulations, says that the work or task performed by the animal must be related to the handler’s disability, though other sections of the proposed regulation do make that clear.
15. The regulations are exclusive. That is, airline can not add additional restrictions beyond the regulation. That means, for example, Delta’s ban on pit bulls, which I believe is still in place, will have to end.
16. DOJ says it is seeking comments on how to deal with a person with a mental health issue who has trained his or her emotional support animal to do work or perform a task to assist them with the disability. I find this whole thing strange for two reasons. First, the emotional support animal at that point is a service animal and not an emotional support animal because it is engaged in recognition and response and has been trained to do so. Second, anybody can train a dog to be a service animal. So, I am not sure why commenting on this question is even needed. So, what DOT does in response to comments on this question will be interesting to see.
17. No doubt training will be needed. Be sure to use a knowledgeable trainer. That trainer needs to know both the applicable Air Carrier Access Act regulations as well as the ADA regulations pertaining to service dogs. That person also needs to recognize the similarities and differences between the two.
18. What will happen to people who falsify the forms? Is the system geared up for that? Does putting such people into the criminal justice system even makes sense?
19. This blog has been a deep dive, but it is not legal advice. There is no substitution for knowledgeable Air Carrier Access Act counsel.