Airlines Get More Tools to Stop Bogus Service Animals from Flying in Cabins

Additional Notes: In the Federal Register of Monday, December 7, 2015, the Department of Transportation published a notice of intent, indicating that it "is exploring the feasibility of conducting a negotiated rulemaking (Reg Neg) concerning accommodations for air travelers with disabilities addressing ... service animals."  Among other interested parties that DOT wants to hear from are "service animal training organizations."

The release notes that both "airlines and disability organizations have raised concerns with the Department of passengers falsely claiming that their pets are service animals." The difference between the Department of Justice definition of "service animal" and DOT's definition has been brought to the DOT's attention, and DOT may, in the "Reg Neg," determine the appropriate definition of service animal...."  Additional safeguards may be instituted "to reduce the likelihood that passengers wishing to travel with their pets will be able to falsely claim that their pets are service animals...."

DOT also notes that bulkhead seating is sometimes not available to individuals with service animals because "bulkhead seats are now primarily located in what has been designated by airlines as the premium economy section."  Comments on these issues may, according to the release, be submitted on the www.regulations.gov website by typing in DOT-OST-2015-0246.  Department of Transportation, RIN 2105-AE12, Nondiscrimination on the Basis of Disability in Air Travel; Consideration of Negotiated Rulemaking Process.  80 Fed. Reg. 75953 (December 7, 2015).

Regulations issued in August 2015 by the Department of Veterans Affairs regarding animal access to VA facilities will affect letters that psychologists and mental health professionals may be asked to write for veterans with service dogs. As those regulations apply to visitors to and employees of VA facilities who may not themselves be veterans, people in these categories may also ask that letters be written on their behalf.  

The article I wrote with Dr. Thomas, which discusses letters that may be requested by airlines, landlords and others appears in the March 2013 issue of the Journal of Forensic Psychology Practice is substantially more comprehensive than the following treatment.  

Writing Letters about Service Dogs 

Dr. J. Lawrence Thomas and I have submitted comments to the Department of Transportation regarding the Draft Technical Assistance Manual. The American Psychiatric Association and Anne Wicklund have also submitted insightful comments. To view comments online go to the regulations.gov website for this item and click on the box left of "Public Submission" below Document Type on the left. 

The Department of Transportation is updating its Technical Assistance Manual, What Airline Employees, Airline Contractors, and Air Travelers With Disabilities Need To Know About Access to Air Travel for Persons With Disabilities. The Manual, which is a guide to the Air Carrier Access Act, is being revised to cover changes that have been made to ACAA regulations since 2005, when the previous edition of the Manual was released.  The 2012 revision follows the pattern of the 2005 Manual in breaking down a trip from the point a person with a disability makes a reservation through the completion of travel. 

Although there is little new in the revised Manual, it is important that individuals traveling with service animals—particularly those traveling with emotional support or psychiatric service animals—be familiar with its contents since airline personnel will refer to it, rather than the regulations, in trying to resolve disputes involving passengers who are insisting on bringing animals aboard planes.

Letters from Mental Health Professionals 

Psychologists, other mental health professionals, and medical doctors should also be aware that the Manual contains requirements regarding letters that they may provide to patients who have service animals.  A support letter must now be on the professional’s office stationery and must provide information about the professional’s license.  DOT is clearly concerned that medical professionals are signing letters written for them by patients without really knowing anything about the supposed service animal or its benefits for a patient.  Also, veterinarians should be aware that they are likely to be asked to write letters saying an animal will not need to relieve itself for eight hours.

DOT is issuing the Manual in draft form in order that those affected or interested may have a chance to comment on the revision.  Comments must be sent to DOT by October 3, 2012, though late submission will be considered “to the extent practicable.”  As the 2005 Manual was covered extensively in Service and Therapy Animals in American Society, I will focus here primarily on how DOT plans to change the Manual.

Comments on the draft Manual may be submitted at www.regulations.gov, which is a user friendly website hosted by the federal government.  In the search box on the first page I typed in “airline disability service animal,” and the first hit was the one about which I am writing here. To submit a comment, just hit the “Comment Now” box in the upper right, and a comment box with submitter information appears.  Comments submitted will be available on the site to the general public.   

Definition of Service Animal

In 2005, the Manual’s initial description of a service animal was: “Any animal that is individually trained or able to provide assistance to a qualified person with a disability or any animal shown by documentation to be necessary for the emotional wellbeing of a passenger.”

The proposed revision (77 Fed. Reg. 39800, July 5, 2012) would state that a service animal is: “Any animal that is individually trained or able to provide assistance to a qualified person with a disability or any animal shown by documentation to be necessary to support a passenger with an emotional or mental disability.” The difference is significant in that the earlier definition implied that a person without an emotional or mental disability could have a service animal for his or her emotional wellbeing.

How Service Animals May Assist

The 2005 Manual provided that a service animal may assist “persons with mobility impairments with balance.”  The revision is more specific, stating that a service animal may assist “persons with mobility impairments to open and close doors, retrieve objects, transfer from one seat to another, and maintain balance.”  This more correctly describes some of the tasks a mobility impairment animal may perform. People with mobility impairment dogs that perform other tasks for them, but not one of the listed ones, should consider letting DOT know in the comment period.  DOT will probably not resist expanding such a list. 

The revision would add a new task to the assistance list: “Carrying items a passenger cannot readily carry while using his or her wheelchair.” 

Consistent with the change in the basic definition of “service animal” in the preceding section, the revision says that a service animal may provide “support for persons with emotional or mental disabilities.”  In 2005, the Manual had stated that a service animal may provide “emotional support for persons with disabilities.”  Again, the change effectively states that a person with a physical but not a mental or emotional disability cannot have a dog only for his or her emotional wellbeing.

Advance Notice of Intent to Fly with Service Animal

The 2012 revision states that an air carrier my require up to 48 hours’ advance notice from a passenger who will travel with an emotional support or psychiatric service animal in the cabin, or with “any service animal on a flight segment scheduled to take 8 hours or more.”

Further, the revision states that for a flight scheduled for eight hours or more, “you may require documentation that the service animal will not need to relieve itself on the flight or can do so in a way that will not create a health or sanitation issue on the flight.”  Veterinarians can expect to be asked to write some rather silly letters because of this provision.  Presumably a letter could state something like the following:

“If Passenger A is able to take his Service Dog a relief area before a flight, and if Service Dog B relieves himself [herself] at that time, Service Dog B would ordinarily be able to make an 8 hour flight (including time at the gate and on the tarmac) without relieving himself [herself].  If a flight has several segments and Passenger A can take Service Dog B to relief areas at intermediary airports, Service Dog B would ordinarily be able to make a multi-stage flight without relieving himself [herself] in flight. These statements assume that Service Dog B does not become sick before or during a flight and does not eat food not standardly provided to him [her]."

A source advises me that one airline was actually considering a requirement that users of service animals carry doggy diapers.  From what I saw on a recent trip to Ireland, airlines might better spend their energy requiring that some passengers wear diapers, if not HAZMAT suits. 

Verification of Psychiatric Service or Emotional Support Animal Status

A carrier’s ability to check service animal status has changed from the prior Manual.  For passengers traveling with emotional support or psychiatric service animals, carriers may require documentation, not less than a year old, on the letterhead of a licensed mental health profession or medical doctor who is treating the passenger’s mental or emotional disability, stating:

1. The passenger has a recognized mental or emotional disability (under DSM IV); 
2. The passenger needs the service animal as an accommodation for air travel and/or activity at the passenger’s destination; 
3. The provider of the letter is a licensed mental health professional, or a licensed medical professional treating the individual for the recognized mental or emotional disability, and the passenger is under the individual’s professional care; and 
4. The date and type of mental health professional’s license and the state or other jurisdiction in which the license was issued.

The specific DSM condition need not be stated.  The letter may be written by a psychologist, psychiatrist, licensed clinical social worker, including a medical doctor specifically treating the passenger’s mental or emotional disability.  The items are cumulative and can all be required.  The italicized language contains new elements of what a carrier may require. 

Previously there was no mention of the documentation being on the professional’s letterhead (except in regulations).  Presumably this is a way of avoiding passengers asking their doctors to sign boiler plate documents downloaded and printed from websites.  The date and type of professional license is also a new requirement that will assure that professionals realize that airlines may want to contact them or their professional licensing boards. 

When an airline might contact a licensing board is not clear.  If a psychologist recommends that a patient obtain a service animal, it is not the psychologist’s fault if the animal obtained is not actually a service animal.  If, on the other hand, the psychologist says things about the animal that are inconsistent with what airline personnel observe, the airline may wonder if the psychologist is acting professionally or really wrote the letter.  Also, if the airline keeps records about professionals who recommend service animals, the airline may notice that a particular medical professional is recommending a great number of service animals.  The airline might contact the licensing authority to ask if this is typical of members of the profession they license. 

Determination that an Animal is Not a Service Animal

The revised Manual states that if a carrier decides not to accept an animal as a service animal, it must explain the reason to the passenger and document its decision in writing.  A copy of the explanation is to be provided to the passenger at the airport, or within ten calendar days of the event. 

Changing Seats if a Service Animal Does Not Fit

The 2005 Manual said that switching seats in the same class of service must be explored as an alternative before requiring that the service animal travel in the cargo compartment.” The revision gives more detailed advice to flight personnel:

“You should speak with other passengers to find a passenger—(1) Seated in an adjacent seat who is willing to share foot space with the animal, or (2) Who is willing to exchange seats with the passenger accompanying the service animal and is seated in a seat adjacent to—(a) A location where the service animal can be accommodated (for example, in the space behind the last row of seats) or (b) An empty seat. You must not deny a passenger with a disability transportation on the basis that the service animal may offend or annoy persons traveling on the aircraft.”

The italicized language is particularly important and reflects the fact that fines have been levied against airlines that have excluded legitimate service animals because airline gate personnel or flight attendants became overly accommodating to passengers with cultural or religious biases against animals.  There is an entire appendix to the Manual concerning placement of service animals in airline cabins. 

Relief Areas

The 2005 Manual made no mention of relief areas for service animals.  The revised Manual summarizes requirements on carriers with regard to relief areas.  This has been summarized in a prior blog. 

Conclusion

The Manual in general reflects an increasing recognition that people wanting to fly with their pets are trying to create evidence that those pets are psychiatric service or emotional support animals, getting bogus documents from online sites that sell paraphernalia purporting to establish a dog as a bona fide service animal.  Also, psychologists and doctors must pay more attention to the letters they put on their stationery regarding their patients’ animals, since DOT may actually complain to licensing authorities when animals turn out to be out-of-control house pets that passengers just don’t want to put in steerage.  Professionals should be able to back up what they are signing for their patients.

Users of psychiatric service animals have argued to DOT officials that psychiatric service animals should be treated the same as other service animals, and distinguished from emotional support animals, but DOT has not accepted this argument.  The distinction is an important one in Department of Justice regulations, but DOT feels that the advance notice requirement should apply to both psychiatric service and emotional support animals.  The airlines should at least have enough advance notice that they can advise passengers who will be bringing psychiatric service animals on flights of the documentation they should have when they get to the gate.