DOT enforcement policy for “service animals” still doesn’t get it.

On August 9 the Department of Transportation issued its “Final Statement of Enforcement Priorities Regarding Service Animals” based on the Air Carrier Access Act and existing regulations. New regulations are on the way, but probably not any time soon,* so this Final Statement, which replaces an Interim Statement issued in May of 2018, is the most authoritative pronouncement on how DOT interprets its existing regulations. The method is a little roundabout. Instead of just saying “this regulation means such and such” DOT basically says that it will or won’t “use available resources” to enforce the regulations in certain instances. This does let airlines know what they should and shouldn’t do, which is beneficial. Unfortunately, the “Final Statement” does almost nothing to address the fundamental problems with the existing ACAA regulations.

The first problem with existing DOT regulations is that they do not define “service animal.” It is clear from the regulations that “service animal” is not limited to dogs and miniature horses as in the ADA regulations, but beyond that the phrase means almost nothing. Many of the problems businesses of all kinds face with animals stem from the fact that DOT, FHA and DOJ do not agree on what kinds of animals should be permitted where when they are associated with a disabled person.  There is really no excuse for this inconsistency, especially as between DOJ and DOT, both of whom deal with animals and disabilities in the same kinds of public space. Airlines suggested that DOT could define “service animal” to match the ADA definition, but DOT declined, saying that this was more appropriate for the rule making process that is probably years away from completion. We’ve talked a lot about Auer deference to an agency’s interpretation of its own regulations. This is a case where DOT could easily step in and add some clarity but decided, presumably for political or ideological reasons not to.

A more serious problem with DOT regulations is that they continue to embrace “emotional support animals” as a kind of animal that should be entitled to protection. There is almost no scientific evidence that ESAs provide support to disabled individuals that is different from the comfort animals provide to non-disabled individuals. Animals make almost everyone feel better, but there is nothing more than anecdotal evidence emotional support animals fulfill any special function related to disability. This is certainly part of the reason Department of Justice regulations under the ADA do not require that public accommodations admit ESAs. The dangers of untrained dogs or other animals in public outweigh the largely unproven benefits. This should be an even greater concern in the crowded confines of an aircraft, and there have been at least two recent cases in which dogs caused serious injuries to other passengers. DOT has a golden opportunity to throw out the wishful thinking and junk science advanced by pet advocacy groups. All it needs to do is interpret “service animal” to mean only specially trained dogs and miniature horses, something that would make air travel safer and the regulations far easier to administer.

DOT does distinguish between emotional support animals and psychiatric service animals (“PSA”s)s on hand and ADA style service animals by permitting airlines to require advance notice, examination of the animal at the check-in desk instead of the gate, and additional documentation.  However, DOT’s position on the documentation that can be required continues to encourage fraud and abuse by ignoring DOT’s own regulatory definition of disability. As with the ADA and FHA the ACAA regulations define a disability as a mental or physical impairment that substantially limits a major life activity. (14 CFR §382.5). However, in listing the things an airline can require as proof of disability DOT permits documentation that: “The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM IV)” (14 CFR §38.117(e)(1)). The ignorance is palpable. DSM IV is not a list of disabilities; it is a list of mental impairments that may or may not be disabilities depending on the severity of the impairment. By equating a DSM IV diagnosis with a disability DOT permits a meaningless diagnoses of “anxiety disorder” or “depression” to be stand in for a real diagnosis of a real disability. This in turn has made the business if fraudulent ESA certificates possible. DOT (and HUD) should require that a disability diagnosis be made only by a medical professional qualified to diagnose a mental impairment so severe that it substantially limits one or more major life activities, and include in the diagnosis the specific life activities claimed to be substantially limited. That kind of sensible requirement would do a lot to eliminate internet fraud and get fake ESA’s off the airlines.

There are, of course, other typical regulatory stupidities. DOT refuses to expand its list of animals that can be prima facie excluded as “unusual service animals” beyond “snakes, other reptiles, ferrets, rodents, and spiders.” Why snakes and other reptiles but not frogs and other amphibians? Why spiders but not cockroaches and other arthropods? Why ferrets but not bears? This list was clearly created in response to the most common problematic animals being taken on planes, but if DOT can create such a partial list of “unusual service animals” it could certainly interpret “unusual service animals” to exclude a wide array of other problematic creatures. Given the lack of evidence that even dogs and cats provide emotional support required by various mental disabilities it would not be too much to simply exclude other kinds of ESA’s or claimed service animals entirely.

DOT also continues to require that airlines recognize “identification cards, other written documentation, presence of harnesses, tags, or the credible verbal assurances of a qualified individual with a disability using the animal” as evidence that the animal is indeed a “service animal” under DOT’s definition. All of these things, including a letter from a licensed medical professional of some kind, can be easily purchased online for far less than the cost of paying to transport a pet by air. None of them have any value as evidence of a real disability or a real need for an animal of any kind, and requiring that they be accepted simply promotes fraud.

Those are the most significant, but not the only problems. Here is a list of the new DOT do’s and don’ts taken from its enforcement priorities, with my comments.

• DOT will not permit breed restrictions for dogs at all. This is in keeping with ADA and FHA regulations.
• DOT will not require airlines to allow snakes, reptiles, ferrets, rodents and spiders, but with those exceptions will not permit airlines to categorically forbid any other kind of animal. Too bad about that “no grizzly bear” rule – it won’t fly with DOT.
• Airlines can limit ESA’s to one per passenger and “service animals” to three per passenger. Note the language problem – under DOT regulations ESA’s are service animals. DOT itself has trouble with its terminology.
• Airlines cannot limit the total number of animals on a flight.
• Airlines cannot impose a categorical weight restriction on service animals; this is just one factor to consider. Too bad about the “nothing over a half ton” rule – DOT will consider this on a case by case basis.
• Airlines do not have to accept puppies, kittens and other animals that are “clearly too young” to behave in public. How young is “clearly too young?” Four months for sure, but otherwise airlines just have to guess what DOT will do in any particular case.
• Airlines cannot categorically refuse animals on flights of 8 hours or more but can ask for 48 hours’ advance notice, early check-in, and “documentation that the animal will not need to relieve itself on the flight or can do so in a way that does not create a health or sanitation issue.” I’m trying to imagine what this documentation might be, but I promise there is already someone selling documents to this effect on the internet, probably with an official looking seal and name.
• Airlines can ask “limited questions” to determine if an animal is a service animal for non-obvious disabilities. Because no one would ever lie in order to avoid animal transport fees.
• Airlines can ask for vaccination, training and behavior documentation for service animals (which in this context means real service animals as well as ESA’s) but can’t require use of their own forms.
• Airlines can require that ESA’s and PSA’s present documentation in the lobby rather than at the gate.
• Airlines can require ESA’s and PSA’s to give up to 48 hours advance notice and appear in the lobby an hour before flight time.
• Airlines can, or maybe can’t, require that animals be leashed or otherwise contained. DOT will decide these on a case by case basis.

DOT cannot get rid of its old regulations overnight, but it has missed an opportunity to take advantage of its ability to interpret those old regulations in a way that would eliminate fraud and abuse without creating any significant burden on those with real disabilities who really do need a service animal and who are now more likely to be victims than beneficiaries of DOT’s rules.

*   DOT issued an Advance Notice of Public Rule Making whose comment period ended a year ago. The next step, a Notice of Public Rulemaking will not be taken until DOT finishes reading the comments from the NPRM. They are apparently slow readers since in the year since the comment period closed they still haven’t finished. Your tax dollars in action.