ComplianceOnline

Nondiscrimination on the Basis of Disability in Air Travel

  • Date: December 11, 2009
  • Source: www.regulations.gov

Nondiscrimination on the Basis of Disability in Air Travel

AGENCY: Office of the Secretary (OST), DOT.

ACTION: Request for comments on petition for rulemaking.

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SUMMARY: An advocacy group representing users of psychiatric service
dogs has petitioned the Department to eliminate a provision of the
Department of Transportation's Air Carrier Access regulation. The
provision in question permits air carriers to require documentation and
48 hours' advance notice for users of psychiatric service animals. In
this document, the Department is seeking comment on the group's
petition and related questions. This document is not a notice of
proposed rulemaking. The Department has not decided whether to grant
the petition by initiating rulemaking action or to deny the petition
and retain the provisions without change. The Department will publish a
document in

[[Page 47903]]

the Federal Register regarding the determination of the petition.

DATES: Comments in response to this request must be received by
December 17, 2009.

ADDRESSES: You may submit comments (identified by the agency name and
DOT Docket ID Number OST-2009-0093) by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov and follow the online instructions for submitting
comments.
     Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001
     Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
     Fax: 202-493-2251
    Instructions: You must include the agency name (Office of the
Secretary, DOT) and Docket number (OST-2009-0093) for this notice at
the beginning of your comments. You should submit two copies of your
comments if you submit them by mail or courier. Note that all comments
received will be posted without change to http://www.regulations.gov
including any personal information provided and will be available to
internet users. You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477) or you
may visit http://www.DocketsInfo.dot.gov.
    Docket: For internet access to the docket to read background
documents and comments received, go to http://www.regulations.gov.
Background documents and comments received may also be viewed at the
U.S. Department of Transportation, 1200 New Jersey Ave., SE., Docket
Operations, M-30, West Building Ground Floor, Room W12-140, Washington,
DC 20590-0001, between 9:00 a.m. and 5:00 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001,
Room W94-302, 202-366-9310, bob.ashby@dot.gov.

SUPPLEMENTARY INFORMATION:

The Current Rule

    On May 13, 2008, the Department of Transportation (the Department;
DOT) issued a revision to its Air Carrier Access Act (ACAA) regulation
(14 CFR Part 382). The regulation went into effect on May 13, 2009,
replacing the previous version of Part 382 on that date.
    Section 382.117(e) of the revised Part 382, concerning service
animals, states: If a passenger seeks to travel with an animal that is
used as an emotional support or psychiatric service animal, the airline
is not required to accept the animal for transportation in the cabin
unless the passenger provides the airline current documentation (i.e.,
no older than one year from the date of the passenger's scheduled
initial flight) on the letterhead of a licensed mental health
professional (e.g., psychiatrist, psychologist, licensed clinical
social worker, including a medical doctor specifically treating the
passenger's mental or emotional disability). The documentation must
state the following: (1) The passenger has a mental or emotional
disability recognized in the Diagnostic and Statistical Manual of
Mental Disorders--Fourth Edition (DSM IV); (2) the passenger needs the
emotional support or psychiatric service animal as an accommodation for
air travel and/or for activity at the passenger's destination; (3) the
individual providing the assessment is a licensed mental health
professional, and the passenger is under his or her professional care;
and (4) the date and type of the mental health professional's license
and the state or other jurisdiction in which it was issued. In
addition, section 382.27(c)(8) provides that airlines may require a
passenger using a PSA or ESA to give up to 48 hours' advance notice and
check in one hour before the check-in time for the general public, in
order to permit the carrier to review and verify the documentation.
    The entire purpose of the ACAA, and the Department's rules
implementing it, are to ensure nondiscriminatory air travel
opportunities are available to people with disabilities. The service
animal sections of the rule were drafted to carry out that purpose. In
the preamble to the rule, the Department discussed issues concerning
ESAs and PSAs two places. In the general discussion of service animal
issues, the Department made the following statements:

    Another important issue that a number of commenters raised
concerned ``emotional support animals.'' Unlike other service
animals, emotional support animals are often not trained to perform
a specific active function, such as path finding, picking up
objects, carrying things, providing additional stability, responding
to sounds, etc. This has led some service animal advocacy groups to
question their status as service animals and has led to concerns by
carriers that permitting emotional support animals to travel in the
cabin would open the door to abuse by passengers wanting to travel
with their pets. The Department believes that there can be some
circumstances in which a passenger may legitimately travel with an
emotional support animal. However, we have added safeguards to
reduce the likelihood of abuse. The final rule limits use of
emotional support animals to persons with a diagnosed mental or
emotional disorder, and the rule permits carriers to insist on
recent documentation from a licensed mental health professional to
support the passenger's desire to travel with such an animal. In
order to permit the assessment of the passenger's documentation, the
rule permits carriers to require 48 hours' advance notice of a
passenger's wish to travel with an emotional support animal. Of
course, like any service animal that a passenger wishes to bring
into the cabin, an emotional support animal must be trained to
behave properly in a public setting. (73 FR 27614; May 13, 2008)

    In the preamble's discussion of section 382.117, the Department
added the following:

    There are new, more detailed procedures for the carriage of
emotional support and psychiatric service animals. The carrier may
require the passenger to provide current documentation from a mental
health professional (e.g., a medical doctor that is treating the
passenger's mental or emotional disability or a licensed clinical
social worker) caring for the passenger that the passenger has a
specific, recognized mental or emotional disability and that the
passenger needs to be accompanied by the specific emotional support
or psychiatric service animal in question, either on the flight or
at the passenger's destination * * * [C]arriers can properly apply
the same policies to ``psychiatric service animals'' as they do for
emotional support animals. This is because carriers and the
Department have encountered instances of attempted abuse of service
animal transportation policies by persons traveling with animals in
both categories [e.g., in communications among carriers, passengers,
and the Department's aviation consumer protection staff]. Should the
Department encounter a pattern of abuse concerning service animals
in other categories, we can consider additional safeguards with
respect to those categories as well. (Id. at 27655)

    The ACAA final rule also included a guidance document concerning
service animals, which made the following statements concerning
emotional support animals (ESAs) and psychiatric support animals
(PSAs):

    With respect to an animal used for emotional support (which need
not have specific training for that function but must be trained to
behave appropriately in a public setting), airline personnel may
require current documentation (i.e., not more than one year old) on
letterhead from a licensed mental health professional, including a

[[Page 47904]]

medical doctor that is treating the passenger's mental or emotional
disability or a licensed clinical social worker, stating (1) that
the passenger has a mental health-related disability listed in the
Diagnostic and Statistical Manual of Mental Disorders (DSM IV); (2)
that having the animal accompany the passenger is necessary to the
passenger's mental health or treatment; (3) that the individual
providing the assessment of the passenger is a licensed mental
health professional and the passenger is under his or her
professional care; and (4) the date and type of the mental health
professional's license and the state or other jurisdiction in which
it was issued. Airline personnel may require this documentation as a
condition of permitting the animal to accompany the passenger in the
cabin. The purpose of this provision is to prevent abuse by
passengers that do not have a medical need for an emotional support
animal and to ensure that passengers who have a legitimate need for
emotional support animals are permitted to travel with their service
animals on the aircraft. Airlines are not permitted to require the
documentation to specify the type of mental health disability, e.g.,
panic attacks.
    There is a separate category of service animals generally known
as ``psychiatric service animals.'' These animals may be trained by
their owners, sometimes with the assistance of a professional
trainer, to perform tasks such as fetching medications, reminding
the user to take medications, helping people with balance problems
caused by medications or an underlying condition, bringing a phone
to the user in an emergency or activating a specially equipped
emergency phone, or acting as a buffer against other people crowding
too close). As with emotional support animals, it is possible for
this category of animals to be a source of abuse by persons
attempting to circumvent carrier rules concerning transportation of
pets. Consequently, it is appropriate for airlines to apply the same
advance notice and documentation requirements to psychiatric service
animals as they do to emotional support animals. (Id. at 27659).

The PSDS Petition

    The Psychiatric Service Dog Society (PSDS) is an Arlington,
Virginia, based organization that describes itself as a service and
advocacy organization focused exclusively on the use of psychiatric
service dogs by persons living with mental health disabilities. At the
Department's June 3, 2008, consumer forum concerning the revised ACAA
rule, a PSDS representative expressed the organization's objections to
section 382.117(e). DOT staff responded that the organization could
file a petition for rulemaking concerning the section, and the PSDS
representative indicated that the organization would do so.
    Under the Department's regulatory procedures, any person may file a
petition to issue, amend, or repeal a rule (49 CFR 5.11(a)). The PSDS
petition, dated April 13, 2009, has now been received by the
Department. Interested persons can read the entire petition at DOT-OST-
2009-0093. It consists of a three-page letter from PSDS and 32 pages of
letters or e-mails from constituents or supporters of the organization.
In its petition, which meets the procedural requirements of section
5.11, PSDS requests that section 382.117(e) be repealed. While the
petition does not specifically refer to section 382.27(c)(8), we
understand the petition to seek its repeal as well.
    The Department can take one of two actions with respect to the
petition: It can grant the petition by initiating rulemaking action
(e.g., publishing a notice of proposed rulemaking to repeal or modify
the provisions in question) or it can deny the petition and retain the
provisions without change. When the Department denies a petition, we
send a denial letter to the petitioner explaining our reasons for the
decision.
    In order to assist the Department in deciding which course to
follow, we are, in this document, seeking comment on the issues PSDS
raises in its petition. We note that taking action at this time to
change the regulatory provisions in question would constitute a
substantive amendment requiring us to issue a notice of proposed
rulemaking for public comment. Because PSDS waited as long as it did to
file its petition, the Department did not have time to take action
before the May 13, 2009 effective date for the revised Part 382. Nor
does the Department believe that immediate action to change the final
rule would be prudent prior to an opportunity to review comments on
issues concerning which a wide variety of parties may have an interest
in.
    The main arguments that PSDS and its supporters cite as a basis for
the repeal of section 382.117(e) are the following:
     In terms of applicable procedures, the Department's final
rule does not draw distinctions between the two categories of animal.
The PSDS petition appears to support drawing a sharp distinction
between PSAs and ESAs. The former must be trained for public access and
have basic obedience training as well as handler-specific behaviors to
ameliorate or mitigate the effects of a mental health-related
disability. The latter are rarely more than pets, requiring little or
no training. Therefore, it is improper for the rule to apply the same
procedural provisions to both categories of assistance animal.
     By imposing additional procedural requirements on users of
PSAs, which are not imposed on service animals used by individuals with
other disabilities, the rule discriminates against and stigmatizes
individuals with mental health-related disabilities who use PSAs. If
DOT thinks it appropriate to impose these requirements on PSA users,
then DOT should be amenable to imposing similar requirements on people
with other disabilities who use service animals.
     It would be easy for someone with a PSA to cheat, simply
by claiming that his or her dog was a service animal for another
disability, such as epilepsy, heart disease, diabetes, dementia etc.
     Many people with mental health-related disabilities use
general practitioners rather than specialists in mental health matters,
and the Department's rule appears not to allow for letters from general
practitioners.
     The rule violates the medical privacy of PSA users by
requiring confidential medical information to be provided to airline
personnel. Moreover, the rule makes no provision for the confidential
treatment of this information once it gets into the airline's hands,
and fails to answer questions concerning the security, storage, or use
of the information. PSDS expresses the concern that the Transportation
Security Administration could gain access to the information and
require additional security measures (e.g., secondary screening) for
persons identified as having mental health-related disabilities.
     It may be difficult or impossible for persons who do not
have medical insurance or otherwise lack access to affordable medical
care to obtain the medical documentation the rule allows airlines to
require. In addition, the requirement that the documentation be no more
than a year old could work an additional financial hardship on PSA
users, because they would have to pay annually for the required
documentation. This could result in the denial of air transportation to
people in this situation.
     The 48 hours' advance notice provision would make it very
difficult for PSA users to fly in the case of short-term situation
(e.g., a family or medical emergency) that did not permit them to
provide 48 hours' advance notice.
     DOT does not have adequate evidence that there is a
problem with people trying to sneak pets aboard aircraft, so as to
justify imposing the procedural requirements on PSA users.
     Under the Americans with Disabilities Act (ADA) and other
laws concerning nondiscrimination on the basis of disability, users of
service animals (including PSAs) do not have to comply with
requirements like those in section 382.117(e).

[[Page 47905]]

     Some letters from supporters of the PSDS petition
suggested that other provisions of Part 382, such as those concerning
``direct threat,'' ``fundamental alteration,'' and general language
concerning identification of service animals would be sufficient with
respect to PSAs and ESAs, without including language like that of
section 382.117(e).

Information and Questions Concerning the PSDS Petition

    To help highlight issues raised by the petition for commenters, the
Department presents the following information and questions:

Differences Between PSAs and ESAs

    The letters of support for PSDS' petition mention that PSAs are
trained for public access and obedience (which a number of letters
assume or say is not true of ESAs). In fact, are ESAs trained to behave
properly in public settings? Note that, under the ACAA rules, airlines
are never required to carry in the cabin an animal--even one that is
assisting a person with a disability--that is not behaving
appropriately in a public setting.
    The letters of support for PSDS' petition state that PSAs are
trained to provide medically necessary, therapeutic, or other services
for their users. However, the letters do not specify what any of these
services are. What are these services, and how, if at all, are they
relevant to the use of a PSA during the user's air travel or activities
at the user's destination? With respect to travel on an aircraft, how
do these services differ from those that would be provided by an ESA
during a flight or at the passenger's destination? How, if at all,
would any such differences justify treating ESAs and their users
differently from PSAs and their owners in the context of air
transportation? What, if any, distinctions have airlines drawn or
attempted to draw between the two categories of animals, and what is
the basis for any such distinctions?
    It appears from some material in the supporting letters that PSAs
do, in fact, provide services related to emotional support. For
example, one letter from a PSA user related the following about her
dog:

* * * [H]e gives me unconditional love no matter what I look or feel
like that day. He is there right by my side even when I don't ask
him to, lying at my feet because he knows that helps me. He helps me
when no nothing or no one else will. He is very reliable. I never
have to worry if he is going to be ``busy'' that night like I would
friends or family. He is never angry if I talk too much or pet him
too much * * *. He gives me better hugs than my husband * * *.

Another letter, from a therapist, said that an assistance animal
enabled her clients to ``get out of the house and go places without the
fear and panic they had before. It is so helpful for them to have their
dog with them in all environments to reduce dissociation, panic, and
anxiety.'' Do these obviously significant functions that dogs called
PSAs perform for their owners differ from those that would be performed
for their owners by dogs called ESAs in a way that would support
different treatment for the two groups in airline travel? We note that
over the years, many individuals who travel with ESAs have stated that
their service animals, in addition to being trained to behave properly
in public settings and providing needed emotional/mental health support
without which they cannot travel, do in fact perform specific physical
tasks related, for example, helping lessen anxiety in stressful
situations.

Need for Procedural Requirements

    We seek comments from airlines and other interested persons about
their experience with passengers attempting to pass off pets as service
animals, especially as it may relate to ESAs and PSAs. Are there
problems that air carriers have encountered in distinguishing pets from
animals that provide services to passengers with disabilities? What
procedures do airlines use to draw this distinction, and how well do
these procedures work? How pervasive are any such problems? What, if
any, experience do airlines have with people attempting to bring pets
on board on the basis of claims that the animals are service animals
for disabilities that are not readily apparent other than mental
health-related conditions, such as seizure disorders, heart conditions,
diabetes, etc? What, if any, problems are created for airlines when
people have attempted to bring or have succeeded in bringing pets into
the cabin under the guise of being service animals? Do airlines have
any statistics or compilations of experience with people attempting to
pass off their pets as service animals that they could share with the
Department?
    Do the procedural provisions of section 382.117(e)--and the
previous provisions of DOT guidance concerning ESAs--help airlines
distinguish between service animals and pets? If, as the petition
requests, paragraph (e) were deleted, would airlines have sufficient
other, arguably less burdensome, means of making these determinations?
What would be the effect, if any, on the ability of airlines to make
reasonable determinations in these matters if the provisions of
paragraph (e) remained in effect for users of ESAs but not users of
PSAs? Are there problems that airlines have encountered in the past
with passengers initially claiming that their animal is an ESA and
later characterizing that same animal as a PSA? If so, please describe
such problems. The Department's rule is now in effect: Have passengers
or airlines encountered any actual problems concerning the
implementation of the provisions in question in this context?
    The Department, the service animal community (e.g., handlers,
organizations), and the airlines all share the goal of stopping the
abuse of service animal access rights by passengers who fraudulently
assert that their pets are service animals. The Department is
interested in identifying effective alternative methods to prevent such
fraud. We, therefore, invite members of the public, and in particular
members of the service animal community, to propose methods for
preventing/detecting fraud that they believe are feasible alternatives
to the current medical documentation requirements.

Medical Privacy

    With respect to the medical information provided to airlines under
paragraph (e) and other provisions of Part 382 concerning medical
documentation, the Department has issued the following guidance:

    Q. What should carriers do to safeguard the personal medical
information (e.g., physician's statements, medical certificates and
documentation from licensed mental health professionals for
emotional support and psychiatric service animals) that they require
of passengers in order to provide certain accommodations?
    A. When a carrier requires a passenger to provide personal
medical information as a condition for obtaining disability
accommodations, we recommend that the carrier take steps to
safeguard this information, such as maintaining it in a separate
confidential file for the same period of time it retains that
passenger's reservation record for the flights involved.

Does this guidance sufficiently address medical privacy concerns
arising from the operation of paragraph (e)? If not, should the
Department amend its regulations to provide additional protections? If
so, what should such amendments provide? Should there be additional
language concerning such matters as how confidentiality is maintained,
who has access to records and for how long, how are records disposed
of, or whether a particular record retention period should be stated in
the rule or guidance?

[[Page 47906]]

Family and Medical Emergencies

    Part 382 provides that, when a passenger does not provide advance
notice for accommodations to which a carrier may apply an advance
notice requirement, the carrier must provide the accommodation if it
can do so by making reasonable efforts, without delaying the flights
(see section 382.27(g)). The Department's rule is now in effect: Have
passengers or airlines encountered any actual problems concerning the
implementation of the provisions in question in this context?
    The Department has issued the following FAQ discussing this
principle in the context of the procedural steps of section 382.117(e):

    Q. When must a carrier accommodate a passenger accompanied by an
emotional support or psychiatric service animal who has not provided
48 hours' advance notice?
    A. Carriers must accommodate a passenger accompanied by an
emotional support or psychiatric service animal who has not provided
48 hours' advance notice if the carrier can do so by making
reasonable efforts, without delaying a flight. The carrier, at its
discretion, may waive its 48 hours' advance notice requirement in
order to expedite the emergency air travel of a passenger
accompanied by an emotional support or psychiatric service animal.

Does this guidance adequately handle the situation of ESA or PSA users
with a family or medical emergency requiring short-notice travel?
Should air carriers be able to require documentation of the emergency
from someone seeking to travel with a PSA or ESA who cannot provide 48
hours' notice? Are there additional regulatory or guidance statements
the Department should make on this matter, such as criteria for when
and on what basis the 48 hours' advance notice period should be waived?

Lack of Medical Insurance or a Mental Health Care Provider

    In the absence of recent documentation from a mental health
professional, how is an air carrier to determine whether a passenger
has a current need for an ESA or PSA? Would anyone using a PSA or ESA
have had a medical recommendation for the use of such an animal at some
time in the past that could be documented? If not, what information
could establish a basis for the individual's claim that he or she needs
a service animal? The Department has issued the following FAQ
discussing this principle in the context of the procedural steps of
section 382.117(e):

    Q. May a carrier accept documentation from a licensed mental
health professional concerning his or her need for a psychiatric or
emotional support animal if the documentation is more than one year
old?
    A. Carriers may, at their discretion, accept from the passenger
documentation from his or her licensed mental health professional
that is more than one year old. We encourage carriers to consider
accepting ``outdated'' documentation in situations where a passenger
with a disability provides a letter or notice of cancellation or
other written communication indicating the cessation of health
insurance coverage, and his/her inability to afford treatment for
his or her mental or emotional disability.

Does this guidance successfully address the situation of persons with
mental health-related disabilities who may currently lack medical
insurance? What is the experience of airlines and passengers with the
existing rule and guidance, which are now in effect? Should the
guidance or underlying regulatory provisions be changed (e.g., to
eliminate the requirement, change the period of one year to something
else, require airlines to include alternate documentation in some
cases)?

Use of General Practitioners

    The Department has clarified in the regulatory text of section
382.117(e), quoted above under ``The Current Regulation,'' that among
the individuals authorized to provide documentation concerning the need
for ESAs or PSAs include medical doctors who are specifically treating
a passenger's mental or emotional disability. Does this clarification
successfully address the concern about the types of doctors who can
provide the documentation that the rule now requires? If not, what
additional provisions would commenters recommend?

Americans With Disabilities Act (ADA) Analogy

    The Department notes that the ACAA is a separate statute from the
ADA. The ACAA is a specialized statute dealing only with transportation
by air, in an environment in which a large number of people are
confined within a limited space for what may be a prolonged period of
time. The Department has long taken the position that accommodations
for persons with disabilities, and DOT requirements for them, may
justifiably differ between the air travel context and other contexts,
such as places of public accommodation regulated by the Department of
Justice under its ADA regulations. We seek comment on the application
of this principle in the matter of PSAs and ESAs.

Alternatives for Consideration

    After reviewing comments on this notice, the Department could make
a number of different decisions with respect to the issues involved.
The following are examples of actions the Department could take:
    1. Leave the rule unchanged.
    2. Leave the basic provisions of the rule (i.e., concerning
documentation and advance notice) unchanged, but add provisions
relating to specific concerns about the implementation of these
provisions (e.g., with respect to medical privacy or other matters now
addressed by FAQs).
    3. Eliminate documentation and advance notice provisions for all
types of animals assisting passengers with disabilities.
    4. Eliminate the documentation and advance notice provisions for
PSAs, but leave the provisions in effect for ESAs.
    5. Leave the existing documentation and advance notice provisions
for passengers with disabilities who wish to bring service animals on
board an aircraft but whose types of disabilities are not readily
apparent.
    6. Leave the existing documentation and advance notice provisions
in effect for ESAs and PSAs, but add parallel provisions for all
passengers with disabilities who wish to bring service animals on board
an aircraft.
    7. Substitute an alternative method of preventing ``cheating'' that
would allow airlines to distinguish service animals from pets but that
did not involve the current documentation and/or advance notice
provisions.
    The fact that an idea is on this list does not mean that the
Department necessarily supports it or believes that it would be good
policy; the list merely sets out a range of possible approaches to the
issues raised by the PSDS petition. Nor is the list exhaustive; the
Department solicits other ideas for addressing these issues as well.

    Issued this 27th day of August 2009, at Washington, DC.
Christa Fornarotto,
Acting Assistant Secretary for Aviation and International Affairs.
[FR Doc. E9-21351 Filed 9-17-09; 8:45 am]

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