NCD letter to DOT on service animal proposed rulemaking
April 20, 2020
The Honorable Secretary Elaine L. Chao
U.S. Department of Transportation
1200 New Jersey Ave., SE
Washington, DC 20590
Dear Madam Secretary:
I write on behalf of the National Council on Disability (NCD) - an independent, nonpartisan federal agency charged with advising the Administration, Congress and federal agencies on disability policy. As a sister federal agency, NCD takes this opportunity to provide comments on DOT’s NPRM to amend the Air Carrier Access Act (ACAA) service animal provisions. Specifically, proposed changes within the NPRM pertaining to amendments to the service animal definition which omits emotional support animals (ESAs), recommendations to restrict the breed of a service animal, and additional compliance requirements placed upon a person with a disability traveling with a service animal.
NCD acknowledges the airline industry’s frustration caused by fraud perpetrated by consumers falsely claiming that their pets are service animals or ESAs. Many people with disabilities share that frustration. However, the ACAA must not conflict with the Americans with Disabilities Act (ADA). This would create additional hardships and bureaucratic hurdles for people with disabilities to navigate, placing undue burdens on legitimate service dog users in an attempt to stop people without disabilities from making false claims. The proposals recommended in the NPRM would require people with disabilities to prove that their service animals are worthy of travel and/or restrict airline travel access to people with disabilities who use a service animal. This, in turn, may negatively impact their ability to access airline travel. It may also inadvertently add to the current stigma faced by service dog users, who already face ongoing problems and questions from businesses or citizens assuming legitimate service animals are actually fake.
Service Animal Definition
DOT’s proposed ACAA service animal definition 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. NCD applauds DOT for including psychiatric service animals under the service animals’ “umbrella”. Doing so removes the required medical documentation, 48 hours advance notice, and check-in requirements for psychiatric service animal users.
NCD is concerned with the recommendation to omit emotional support animals (ESAs) as a covered entity. NCD is aware that ESAs may not have the same degree of training as service animals, which creates additional in-flight risk factors, including handlers’ loss of control, causing havoc and undue stress on airline professionals and customers alike. Unfortunately, those who depend on ESAs to travel are paying for the indiscretions of those who have abused the system. NCD is also aware of the lost revenue in pet carrier fees when people fraudulently present their pets as ESAs. ESAs avail themselves in a myriad of species, and NCD acknowledges that parameters must be set for ESAs given the confines of airplanes and hygiene concerns. However, NCD believes that omitting them entirely from air travel would negatively impact access to air travel to a portion of the disability community.
DOT asked commenters to respond if we thought individuals with disabilities using ESAs would be less likely to travel by air if ESAs were no longer permitted to travel on planes. The answer to that question is yes. Some would cease to fly if not allowed to travel with their ESA, because the ESA mitigates the impact of their disability and is a necessary disability accommodation. DOT has recommended changes that would enable airlines to still transport ESAs such as: limiting ESA species to a dog or cat; requiring ESAs to be contained in FAA-approved pet carriers in the airport and on the aircraft or requiring ESAs to be tethered or leashed and under the owners control at all times. In addition, NCD recommends canine ESAs be required to complete the equivalent of a canine good citizen program, training designed for service dogs and offered for free at many airports. By requiring the training and additional regulations, it should minimize the amount of disruptions previously caused by ESAs. Additionally, airlines would still have the authority to refuse an ESA transport if any aggressive or disruptive behavior were exhibited prior to boarding. NCD recommends DOT consider standalone regulations to govern ESAs and ensure those regulations are the least restrictive option so as to include access to airline travel for people with disabilities who depend on ESAs for support.
While NCD does not believe that people with disabilities who need to travel with their ESA should be charged a fee, an alternative practice, to stem the false claims of owners claiming their pets as ESAs, could be the implementation of an ESA transport fee. A nominal fee could be charged for each ESA transport. For instance, the fee could be determined on a sliding scale depending on the size and/or amount of documentation provided to airport personnel. For instance, if the handler of an ESA provides the airline with the service animal health form, documentation of completion of a verifiable good canine citizen program, or additional training, the fee for transport should be at the low end of the scale. All ESA handlers could be required to sign the suggested attestation form of good behavior discussed in the NPRM. The agreed-upon fee parameters should be determined within these regulations. This mechanism would ensure the fee and any future rate increases are reasonable, so as not to price out a person’s with a disability ability to fly with their ESA.
Breed Restrictions
Within the NPRM, DOT suggested, “that the unique environment of an airplane in flight would justify permitting airlines to prohibit Pit Bull terriers and any other particular breeds or other types of dogs from traveling on flights under the ACAA, even when those dogs have been individually trained to perform as service animals to assist passengers with a disability.”[[1]](https://ncd.gov/publications/2020/ncd-letter-dot-service-animal-NPRM#_ftn1) Municipalities across the country are lifting Pit Bull bans that have been in place for decades. Breed bans are being lifted because municipalities have realized that breed bans are a simplistic answer to a far more complex social problem. It is the dogs’ individual history, training, behavior, and general size that determines the likelihood of aggression, not the breed.[[2]](https://ncd.gov/publications/2020/ncd-letter-dot-service-animal-NPRM#_ftn2) When a dog’s behavior is generalized by its attributes, innocent dogs and handlers suffer. Pit Bulls and other breeds that are historically stereotyped as “dangerous” are currently serving the community as service animals. A service animal is a highly trained animal, which in and of itself mitigates the likelihood of the animal being aggressive. The training of a service animal comes at a high price tag, organizations who train service animals will not certify any dog that is dangerous or ill-behaved in public. The bond created between a service animal and its handler is inseparable, and service dogs perform legitimate necessary tasks. It would be unconscionable for DOT to arbitrarily institute a breed ban on service animals simply because of misperceptions by airline personnel or the public. Doing so would create a potential scenario in which a person with a disability must decide to forgo air transportation or travel without their service animal, or they would be unrealistically expected to acquire another service animal simply to accommodate ACAA regulations. A person with a disability should not be required to choose from any of those options. NCD opposes DOT’s suggestion that Pit Bulls or any other breed be arbitrarily deemed as aggressive and banned from air travel. The rationale for breed bans does not outweigh the disruption and undue hardship it would place on a person with a disability who uses a service animal that may fall within a breed ban category.
Individual Assessment
NCD opposes DOT’s proposed rule that a person with a disability traveling with a service animal be required to report to the airport one hour prior to general guests so airport personnel can perform an individual assessment as to whether the service animal poses a direct threat to the health or safety of others. This raises several concerning questions: What type of assessment? Where would this assessment take place? Prior to the passenger entering the airport? At the gate? Who will execute the assessment? What type of training will the airline representative complete to be deemed qualified to perform the assessment? How would people with disabilities be compensated for lost travel and the cost of tickets if their service animal fails an assessment? Would airline representatives’ training include anti-bias training to ensure breeds, certain types of disabilities, people of color or other traditionally marginalized people do not receive more stringent assessments? Would people with disabilities have the right to appeal, and can that appeal happen within the hour before going through security?
The ACAA already conveys authority to airline personnel to refuse boarding any person’s service animal if they deem the service animal to be a direct threat to the health and safety of others, or the animal’s owner does not seem to have the animal under control. While not a formal assessment process, airline personnel may easily observe the individual and the service animal’s interactions within the airport, from curbside to the gate. If airline personnel observe any problems with the service animal, they can make a professional determination to refuse embarkment. There is no need to place additional provisions or undue burdens upon a person with a disability traveling with a service animal if the authority to be conveyed already exists. There is also no need for airlines to spend additional monies on training staff to do formalized assessments that are unnecessary. As a more reasonable and less expensive alternative, NCD recommends that all annual training of airline personnel include sessions explaining the needs of a person with a disability traveling with a service animal, and what is allowed under airline policies, the ACAA, and the ADA. The rationale for this training is to improve airline personnel understanding and treatment of people with disabilities while traveling. The training should inform personnel about specific behaviors not indicative of service animals and how to notify a gate agent or supervisor if they have questions or make any observations about concerning behavior.
Attestations and Health Record
14 CFR § 382.75(a) would allow airlines to require, as a condition of travel, to have: 1) a current completed copy of the U.S. Department of Transportation Air Transportation Service Animal Health Form; and 2) a completed copy of the U.S. Department of Transportation Air Transportation Service Animal Behavior and Training Attestation Form. And, for flight segments of eight hours or more, 14 CFR § 382.75(b) would provide that airlines may require disabled passengers with service animals to “confirm 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 by providing a DOT Service Animal Release Attestation Form.” NCD opposes travelers needing to bring mandatory documentation with them while traveling and sees it as an undue burden placed upon the person with a disability with a service animal.
The only useful purpose for the Animal Health Form is to ensure the animal has its rabies vaccination. This can be achieved and validated by an owner showing a service animal’s rabies tag, or by owners providing documentation when they notify the airline that a service dog will be traveling with them. Veterinarians are not capable of judging how an animal may behave on a flight, nor would they have any knowledge whether the dog has aggressive tendencies. Additionally, unless a person with a service animal is required to complete new animal health forms each time they fly, the assertion that the animal is free of disease and infestation is moot. Just because the animal is free of disease and infestation at the time of the vet visit, there is no guarantee that the animal will or will not be free of disease and infestation when its owner decides to fly. Surely, the intent of the health form was not to require a person with a service animal to pay for a vet visit prior to each flight to attest to the “fitness” of the dog. That would surely be an undue financial burden and fly in the face of the ADA.
If implemented, the U.S. Department of Transportation Air Transportation Service Animal Behavior and Training Attestation Form would require the person with a disability to certify their understanding that: their service animal has been individually trained to perform tasks to assist with a disability and is trained to behave well in a public setting without aggression; it is the handler’s responsibility to maintain an animal’s control at all times; if the service animal engages in disruptive behavior, airlines are permitted to treat the animal as a pet; airlines may charge passengers with disabilities traveling with service animals for costs to repair any damage caused by the animal; and that any false statements to secure disability accommodations is fraudulent under regulations of U.S. DOT. This form is superfluous and burdensome upon the person with the disability traveling with a service animal. If the service animal is not within the control of the handler at all times, not well behaved, or showing aggression, existing regulations allow airline personnel to treat the service animal as a pet.
The third proposed form, the Animal Relief Attestation Form Flight Segments Eight Hours or Longer, would require the service animal handler to attest that their dog will not need to relieve itself on the flight, and if it is necessary for a long flight, that the dog can relieve itself in a sanitary manner. Service animals are trained to contain their bodily functions for a prolonged period of time. It is also unclear what airlines consider a form of relief that would not be a health or sanitation problem. Will the person traveling with a service animal be charged damages if an animal relieves itself on the plane due to circumstances beyond the handler’s control? For example, this may happen if the flight or dis-embarkment is delayed, or there is excessive turbulence or other in-air emergencies where the dog perceives that its owner is in danger.
NCD recommends DOT follow DOJ’s current service animal definition regulation, which allows an entity to ask if the animal is required due to a disability, and what work or task the dog is trained to perform. No certification, licensing, identification or documentation is required as proof of a service animal. NCD understands the unique nature of air travel and issues that untrained animals may present in the air. However, the way to mitigate those issues is not to place additional regulatory burdens on the traveler with a disability with a service animal.
DOT states that the cost of completing the proposed documents, calculated by the Paperwork Reduction Act (PRA) accounting standards, would equate to 144,000 burden hours and $3 million in costs per year. In response to these concerns, DOT has stated that in some cases, carriers already ask passengers to complete equivalent nongovernmental forms, so this accounting overestimates the net burden created by this rulemaking.
NCD disagrees with the DOT’s final assessment of the net burden. The hours and costs actually underestimate the net burden, especially for people with disabilities. How would a traveler gain access to these forms? Would they be PDF fillable on an accessible website that includes explanations of the forms in American Sign Language? How will DOT ensure that the forms are 508 compliant? In addition to the 508 compliant requirements, the forms need to be compatible with screen readers and voice to text programs, and these functions are not always synonymous with 508 compliant documents. It also assumes all people with disabilities have the technology to download, complete, and submit the forms, despite a technology gap between people with disabilities and the general population.[[3]](https://ncd.gov/publications/2020/ncd-letter-dot-service-animal-NPRM#_ftn3) In addition, if the person traveling with a service animal is blind, visually impaired, or has diminished use of their extremities, then the task of filling out these forms becomes even more burdensome and time-consuming. The costs also do not factor in the time and costs associated with obtaining accessible transportation to veterinary clinics to complete the form, as well as the cost of a veterinary visit. With all of the above factors placed into consideration, NCD believes the $3 million in costs per year is underestimating the economic burden these forms place on people with disabilities.
If you wish to discuss these issues with me directly I would be delighted to do that at your convenience. However, if a member of your team would prefer to discuss this letter with NCD staff attorneys or other members of my team, please have them contact Lisa Grubb, Executive Director (lgrubb@ncd.gov), Joan Durocher, NCD General Counsel and Director of Policy (jdurocher@ncd.gov), and Amy Nicholas, Attorney Advisor (anicholas@ncd.gov). We appreciate the work that DOT does to ensure accessible travel for people with disabilities and hope we can work with you to ensure accessible travel for people with disabilities who use service animals and ESAs, as well.
Respectfully,
Neil Romano
Chairman
[[1]](https://ncd.gov/publications/2020/ncd-letter-dot-service-animal-NPRM#_ftnref1) Traveling by Air with Service Animals, 2020-01546, Fed. Reg., 6448, (proposed Feb. 5, 2020).
[[2]](https://ncd.gov/publications/2020/ncd-letter-dot-service-animal-NPRM#_ftnref2) ”Why Breed Specific Legislation Is Not the Answer”,https://www.avma.org/resources/pet-owners/why-breed-specific-legislation-not-answer American Veterinary Medical Association, (Apr. 3, 2020)
[[3]](https://ncd.gov/publications/2020/ncd-letter-dot-service-animal-NPRM#_ftnref3) National Council on Disability, 2016, National Disability Policy: A Progress Report-October 2016, Washington DC, National Council on Disability, accessed April 3, 2020, </assets/uploads/docs/ncd-progressreport-508-0.pdf>