The Department of Transportation has taken the somewhat unusual step of publicizing some criticisms that have been raised concerning its 2008 revision of the air carrier access rules (73 Fed. Reg. 27614, May 13, 2008). The criticisms come from the Psychiatric Service Dog Society (PSDS), which criticized 14 CFR 382.117(e), which reads as follows:
(e) If a passenger seeks to travel with an animal that is used as an emotional support or psychiatric service animal, you are not required to accept the animal for transportation in the cabin unless the passenger provides you 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) stating 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.
The Department of Transportation notes that PSDS criticizes that failure of the regulations to distinguish psychiatric service dogs from emotional support animals. This is a valid objection in my opinion, but in the interest of full disclosure it is appropriate that I acknowledge that I have co-authored with Dr. Joan Esnayra, founder of PSDS, a letter to Treasury and the IRS regarding the deductibility of service dog expenses (published in Tax Notes, August 24, 2009; contact me at firstname.lastname@example.org for a copy). PSDS argues that by classifying PSAs with ESAs, DOT is effectively distinguishing PSAs from other service animals and imposing additional requirements on handlers of PSAs that it does not impose on handlers of service animals for the physically disabled. PSDS notes that this will encourage users of PSAs to claim physical disabilities in order to avoid the additional requirements of the regulations.
Many people with mental health-related disabilities use general practitioners and do not receive treatment from licensed mental health professionals on a regular basis. The rule lists only psychiatrists, psychologists, and licensed clinical social workers as examples of licensed mental health professionals. Obtaining a letter from a mental health professional would be particularly burdensome for individuals who do not have medical insurance or access to affordable medical care. Providing an airline 48 hours advance notice (14 CFR 382.27(c)(8)) of a passenger’s intention to fly with a PSA is also difficult or impossible in certain short-term situations such as family or medical emergencies, and would exacerbate the mental health professional documentation issue. .
DOT paraphrases one PSDS position as follows:
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.
DOT responds that it does “recommend that the carrier take steps to safeguard this information, such as maintaining it in a separate confidential file for the same time it retains the passenger’s reservation record for the flights involved.” DOT specifically asks for comments about this issue, and seems amenable to a more restrictive policy. This should not be a difficult modification, since DOT could require airlines to provide such safeguards as would assure that records are not available for other purposes than to verify a passenger’s status, and not available to staff beyond those needing to access such information.
The release indicates that DOT “has not decided whether to grant the petition by initiating rulemaking action or deny the petition and retain the provisions without change.” Nevertheless, the release concludes with a number of options that the agency might consider, including targeted modification of certain provisions. The issues raised by PSDS are significant. It is to be hoped that DOT will consider some modifications to the final rules. Comments may be submitted online, by mail, fax, or courier. Instructions are contained in the Federal Register, 74 Fed. Reg. 47903, left column. Online is easiest: just go to http://www.regulations.gov and follow instructions using DOT Docket ID # OST-2009-0093. Comments must be received by December 17, 2009.