Last week, I had the opportunity to attend the Olmstead at 20 conference held at Georgia State law school here in Atlanta Georgia. Hats off to Susan Goico who led the organization of the conference. It brought together leading people from all over the country who are doing the work of disability inclusion. It was absolutely fabulous, and I met a lot of great people. Some of whom I had already knew and had been in touch with, but had never met. Congratulations again for a great conference.

With respect to how I go about finding something to blog on, sometimes my pipeline runs really low. Sometimes, I get a whole bunch of things in my pipeline at once, and then I have to figure out which one to blog on. Today’s blog entry is one of those situations where a whole bunch of things wound up in my pipeline at once. After reviewing my pipeline and seeing what the legal blogosphere is up to, I felt I had no choice but to blog on the final statement of enforcement priorities regarding service animals issued by the Department of Transportation last week. My colleague, Richard Hunt, has already done a blog on this here. His blog entries are always provocative. He does go over what the rules say, and so much of what I say in this blog entry will overlap. Of course, my perspective is always very different. So here goes. My thoughts are contained throughout. That said, ¶ ¶ 20-22 contain entirely my thoughts.

  1. The guidelines are voluntary. Well, not really. That is, this an enforcement guidance. So, it telegraphs to the airlines exactly how the Department of Transportation will proceed if it gets a complaint. Therefore, airlines would be wise to adjust accordingly, and DOT says as much in the guidance document. The voluntary part of it comes from understanding this blog entry, where we discussed Kisor v. Wilkie. As discussed there, Auer deference is barely hanging on. Since this document is a guidance and not formal rulemaking, it is anybody’s guess as to what kind of authority this document will be given. As such, compliance with this document is voluntary. Of course, failure to comply with the document will expose that particular airline to enforcement action. If the airline chooses to fight that despite having notice at to what the Department of Transportation is going to do, it will be up to the airline to convince a court that Auer deference is not warranted in this situation.
  2. The guidance still makes what I feel is an arbitrary distinction between service animals for those with physical disabilities and service animals for those with psychiatric disabilities. The DOT responded to that by saying it would have to take rulemaking (a plan to issue a notice of proposed rulemaking will be forthcoming at some point), to change that since the regulations themselves have that distinction. In the meantime, I do believe DOT regulations making a distinction between psychiatric service animals and service animals for those with physical disabilities are arbitrary and in violation of the Administrative Procedure Act. I do understand why the DOT felt constrained not to change the distinction in this guidance. It is pretty clear from our blog entry discussing the current state of Auer deference that the DOT could not make such a change in a guidance. Rather, such a change will have to come from rulemaking. I do understand why a rational distinction could be made between a psychiatric service animal, a service animal for those with physical disabilities v. an emotional support animal. That said, putting together in one category psychiatric service animals, which go through an incredible amount of training, and an emotional support animal, which may have little or no training at all, makes little sense and to my mind and is completely arbitrary. Viewing the regulations in a historical context, I suppose I can see how the distinction evolved. However, we know a lot more about psychiatric service animals and service animals assisting people with disabilities than we did back then. The distinction between psychiatric service animals and service animals for those with physical disabilities is simply untenable.
  3. The guidance uses the terminology of service animal, ESA (emotional support animal), and PSA (psychiatric service animal). However, while most of the time in the guidance DOT uses “service animal,” to cover a situation of a service animal for a person with physical disabilities, at other times it uses the term “service animal,” as a catchall category for service animals, ESA’s and PSA’s. That doesn’t help anything. It just really makes things confusing.
  4. What wound up being this document received 94 comments, mainly from disability rights advocates and the airlines.
  5. DOT will prioritize ensuring that the most commonly recognized service animals (dogs, cats, and miniature horses) are accepted for transport. Airlines will not be subject to enforcement action if they continue to deny transport to snakes, other reptiles, ferrets, rodents, and spiders. However, categorical refusal to transport other animals or species will subject airline to potential enforcement action. The emphasis here is, “categorical.” DOT also notes that an animal regardless of its kind it is can be barred from a flight depending on a variety of factors, two large; to heavy; poses a direct threat to the health or safety of others; or would cause a significant disruption in cabin service.
  6. A single individual can travel with up to a total of three animals. The animals can be a combination of one emotional support animal and then a psychiatric service animal and/or what DOT calls a service animal. Airlines cannot put a limit on the total number of service animals/ESA on any flight.
  7. Airlines cannot limit the number of passengers with a disability on a particular flight.
  8. DOT will focus its resources on ensuring that airline do not require advanced notice for passengers with physical disabilities traveling with service animals unless the flight segment is for eight hours or more. The current regulations allow for advanced notice to be required with respect to emotional support animals and psychiatric service animals. DOT admits that the current regulations discriminate against passengers with psychiatric disabilities, but reserves that issue for future rulemaking.
  9. Airlines can continue to seek credible verbal assurance that the passenger is an individual with a disability and that the animal is a service animal by asking a variety of questions. Those questions include question directed to the passenger’s need for service animal. For example, one question could be, “how does your animal assist you with your disability?” This sounds good in theory, but I have trouble understanding how this gets carried out as a practical matter, especially in the context of an animal flying on a plane.
  10. Verification of the animal as an emotional support animal or psychiatric service animal in the lobby is perfectly okay but not for service animals assisting people with physical disabilities. DOT regulations require ESA and PSA users to check in one hour before the check-in time for the general public. DOT does say they intend to take action against airlines requiring passengers with physical disabilities using a service animal to check in at the lobby of an airport.
  11. DOT does not intend to take action against an airline asking service animal user to present documentation relating to a service animal’s vaccination, training, or behavior, so long as it is reasonable to believe that the documentation will assist the airline in determining whether an animal poses a direct threat to the health or safety of others. That said, DOT admits that the regulations are unclear as to whether the regulations are violated if an airline requires additional documentation to determine whether a service animal poses a direct threat. Not helpful is that direct threat isn’t defined. In ADA parlance, we know what a direct threat is, and we have discussed that many times, such as here. However, when you are dealing with an individual traveling with an animal on an airplane in a highly stressful situation, trying to figure out whether that animal might be a direct threat has to be an extremely difficult endeavor.
  12. DOT does not intend to take action against airlines asking ESA or PSA service animal users to present such documentation of vaccination, training, or behavior up to 48 hours before his or her flight. That said, airlines need to be careful that the documentation requirements are not being used to prevent passengers with disabilities from traveling with their service animals. That is, another way to think about it, is that DOT will be watching to see whether such policies screen out people with disabilities.
  13. With respect to controlling a service animal for those with physical disabilities, an ESA, or a PSA on the plane, tethering and similar means of controlling an animal permitted by the ADA are one reasonable means of controlling service animals in the aircraft cabin. Other thing to be thinking about with respect to reasonableness include: the size and species of the animal; the rights of other passengers to enjoy their own foot space; and the continued ability of the animal to provide emotional support or perform a task while being restrained if kept in a pet carrier.
  14. Breed restrictions are out. That is, Delta Air Lines recently put in a policy saying pit bull type dogs cannot fly on flights. DOT says airlines can’t do that as evidence doesn’t exist that an animal poses a direct threat simply because of the kind of breed it is. DOT continues to stand by its June 22, 2018 public statement from its enforcement office that a limitation based exclusively on breed of the service animal is not allowed under the Air Carrier Access Act and such restrictions are inconsistent with current regulations. On the ADA side, we already know from this blog entry, that breed restrictions are out.
  15. Airlines are perfectly within their rights to ban the transport of service animals for those with physical disabilities, ESA’s, and PSA’s that are younger than four months as the training service animals have to go through takes time.
  16. Refusal of an airline to accept ESA’s or PSA’s over 65 pounds won’t wash and is prohibited by the regulations. DOT notes that airlines have other means of ensuring safety for large animals aside from banning them outright. For example, DOT regulations already allow an animal to be excluded if it is too large or too heavy to be accommodated in the specific aircraft at issue. Even so, a categorical ban is out.
  17. DOT regulations clearly prohibit a policy of not accepting PSA’s on flights lasting eight hours or more. That said, airlines can require 48 hours advance notice and check-in one hour before the check-in time for the general public in order to accommodate any service animal on a flight scheduled to last eight hours or more.
  18. Requiring that medical forms found on the airlines own website be the only forms that can be accepted for purposes of approving an ESA or PSA is out. That is, airlines may ask or encourage a passenger to request that a licensed mental health profession or treating the passenger fill out the airline’s own proprietary medical forms. However, if a different form is submitted meeting the requirements set forth in the regulations, airlines cannot reject the request for a PSA or an ESA.
  19. DOT regulations are violated where an airline requires an owner of a service animal for a person with a physical disability to present documentation related to that animal’s vaccination, training, or behavior before the check-in time for the general public. Such conduct violates the advanced notice provisions of the DOT regulations and DOT will seek enforcement action.
  20. Seems to me that this enforcement guidance tries to have it every which way. As a result, it just confuses the issue. It doesn’t help that DOT uses the term “service animal,” in two different ways throughout the document. The guidance is helpful in some respects and not helpful at all in other respects. As a practical matter, it is going to make the jobs of airlines much more difficult. It also continues the entirely unsupportable distinction between psychiatric service animals and service animals for those with physical disabilities. I understand why DOT thought that it could not erase that distinction because a guidance is not formal rulemaking, but nevertheless, the distinction is entirely arbitrary and simply not supportable.
  21. It isn’t a cure-all to say that the DOT by regulation should only allow psychiatric service animals and service animal for those with physical disabilities to fly on airplanes and completely eliminate emotional support animals. Even there, how would such a system be put in place to ensure that the animal was a service animal? For example, one would have to be careful that such a system would not eliminate the ability of an individual to train the animal to be a service animal.
  22. While we are comfortable with the concept of direct threat in terms of ADA matters, figuring that out for an animal about to fly on an airplane would have to be an extraordinarily difficult thing to do. It is entirely possible that an animal may never be a direct threat outside of flying on an airplane, but could be on the airplane itself because flying on an airplane is such an unusual and stressful situation. In fact, it is entirely possible that the owner of the animal itself, particularly where an ESA is involved, wouldn’t even know. That said, I do know places training service animals to assist those with physical or psychiatric disabilities will, oftentimes if not invariably, as part of their training, have the animals fly on airplanes. I don’t know if every place that does training for psychiatric service animals or service animals for those with physical disabilities take that step with respect to training their animals, but I do know that many, if not all, do.
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William Goren

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.