Changes to the ACAA

From Service Dog Training

The Air Carrier Access Act and Service Dogs

Changes to the Air Carrier Access Act (ACAA) came into effect on May 13th, 2009. One of the revisions made involved the use of service animals in the cabins of aircraft. Most of these changes were minor; however one in particular has caused some concern in the service dog community, mostly in the psychiatric service dog community.

Some Background

Prior to the May 2009 revisions, there were basically two classes of animals that could be taken into aircraft cabins. These were service animals and emotional support animals. The ACAA stated that as proof of a service dog’s status, airlines should “… accept as evidence that an animal is a service animal identification cards, other written documentation, presence of harnesses or markings on harnesses, tags, or the credible verbal assurances of the qualified individual with a disability using the animal.” This applied to all service animals. For emotional support animals, airlines could require documentation from the dog user’s mental health provider stating the dog was needed during the flight. Information on emotional support animals is not contained in the original ACAA, but is covered in various guidance documents put out to address the increase in the use of these animals. A service animal, for the purpose of the earlier version of the ACAA, was basically defined as an animal that performed a task to assist a person with a disability, and an ESA was any other animal brought along to provide comfort.

Due to concerns about people passing off ESAs as psychiatric service dogs to avoid providing the documentation required by the airlines to take an ESA on a flight, the Department of Transportation made some changes to the classification of animals that are taken on a flight in their May 2009 revision. The two new classes are service dogs with the exclusion of psychiatric service dogs, and ESAs and psychiatric service dogs. Under the new rule, psychiatric service dogs are required to meet the same documentation guidelines as emotional support animals. The discussion of the new regulations states that psychiatric service animals are a “separate category” of service animals. The new rules allow airlines to require 48 hours notice and documentation from the handler’s mental health provider for both emotional support animals and psychiatric service animals.

Not surprisingly, this change has met with significant resistance from the psychiatric service dog community. Psychiatric service dog users argue that their dogs are task trained and not fundamentally different from other service dogs in that they provide an active trained task that mitigates a disability. Assuming this is the case, singling out psychiatric service animal users and requiring them to meet the same documentation guidelines as emotional support animals would appear to be discriminatory. Because of these concerns, the Psychiatric Service Dog Society has filed a petition with the DOT asking that this new requirement for psychiatric service dog users be removed. In response, the DOT has issued a request for comments on the petition to determine if they should initiate rulemaking action. They will accept comments on this issue until December 17th.

My Thoughts

The DOT’s thought process behind these new regulations is understandable. Of all the types of service animals, a psychiatric service animal is probably one of the easier ones to fake, and given the reports of absurd ESA use that occasionally make the news, it is not a huge leap of reason to think that people insistent on taking their pets on flights would use the psychiatric service animal label to avoid having to obtain documentation for an ESA. With that said, I have yet to see any figures from the airlines showing the misuse of ESAs or psychiatric service animals to be a problem. The only proof of this being an issue at all is the occasional anecdote that makes the news (such as the well-known pig issue). While I suspect the issue of illegitimate psychiatric service animals is greater than the occasional news story shows, in this case, the DOT seems to have made a rule based on speculation, not on facts and data, and that concerns me.

My other concern is the creation of a separate class for psychiatric service animals, and that this could become a slippery slope leading to the creation of separate classes for any number of other types of service animals. The reality is that there is no way for airline personnel to definitively tell if a particular animal is a service animal of a particular type or not. If psychiatric service animals and ESAs are required to provide documentation, I suspect we will see an increase in animals being passed off as other types of service animals for invisible disabilities such as medical alert animals. If the DOT responded to this with the creation of yet another distinct class of service animals with its own documentation requirements, the fraudulent users will simply move to another. In the end, most of the people the documentation requirements affect are those that are already using (or believe they are using) legitimate service animals. What are the airlines to do then? Despite the lack of data currently available on this issue, fraudulent psychiatric service animals probably are a problem and will likely continue to be a problem. How are the airlines to tell if a particular animal is a service animal or an emotional support animal? The answer to this is remarkably simple...they should ask about task training. Under the ADA, task training has been upheld time and time again as the definition of a service animal (see my post on Debby Rose from last week, the summaries of Baugher vs. the City of Ellensburg and Thompson vs. Dover Downs).

The ACAA allows airlines to ask about task training, but the impression I have received from both my own experiences flying with a service animal and in many conversations with airline staff about the issue is that questions about task training are rarely, if ever, asked. While the concern has been raised at times by the service animal community that airline personnel (like public accommodation staff) are not qualified to determine if a task qualifies or not, the reality is that a good number of fraudulent users will not be able to describe any task whatsoever, or will only say that the dog comforts them or keeps them calm. In situations like that, the animal can be assumed to be an emotional support animal and subject to the documentation requirements established in the ACAA.

In short, I think the ACAA’s creation of a separate class for psychiatric service animals is a dangerous precedent that has the potential to lead towards increased documentation requirements for many or all service animal users who use commercial airlines. In addition, I do not think these new requirements will work as they are intended and actually prevent fraudulent service animal use. I also think the DOT and the airlines have overlooked the most reasonable and effective method of reducing fraud, which is asking what tasks the purported service animal has been trained to perform.

For those who would like to read the full version of the request for comments, it can be found here, along with instructions on how to leave comments.

--Tiffany Huggard-Lee 10:41, 28 November 2009 (CST)

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