TETE-A-TETE: SERVICE ANIMALS, PETS AND CARRIERS SQUARE OFF IN FEDERAL REGISTER

Gary C. Norman, Esq. [FNa1]

People with disabilities, partnered or not partnered with service animals, encounter unique challenges during air travel that are beyond paying for a soda. This article aims to extensively, but not inclusively, discuss the regulatory update for the Air Carrier Access Act of 1986. The final rule at Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed. Reg. 27614 (May 13, 2008) will take effect in May 2009.

Accommodating Large Dogs

A debate flourished between advocates and the Department of Transportation in recent years: advocates claimed that a prior notice of proposed rulemaking sought to either charge handlers of service animals for floor space, or, alternatively, stow them in the cargo hold, all of which the Department of Transportation disputed.

According to the DOT, charging to stow a service animal in the cargo hold violates Part 382. Carriers must first move a handler and the service animal within the same class of service in addressing any space constraints posed by large service animals. Only after that can a carrier discuss a "less desirable option," such as rebooking a handler on a later flight.

Emotional Support Animals

Some animals, such as dog guides, deserve to receive the appellation of service animal, because they have received individualized training and specifically aide the disabled. Others are, however, just pets. This divergence necessitates carrier personnel to differentiate between, on the one hand, pet-toting and rule-shirking fliers -- who albeit may be suffering with mild depression -- and, on the other, travelers with legitimate medical needs.

The final rule seeks to address this quandary by restricting the access of emotional support animals on flights to persons with a diagnosed mental disorder (as defined in the Diagnostic and Statistical Manual of Mental Disorders), and by allowing carriers to insist on recent documentation from a licensed mental health professional to support that a particular animal comprises a service animal. Carriers may require 48 hour advance notice that a person with a disability and their soothing pug, Charlie, will be coming aboard.

The Department of Justice has concomitantly issued a notice of proposed rulemaking to revise the Title II and III regulations. Expressing that regulatory parameters must be imposed respecting service animals, the DOJ proposes to revise the provision at 28 C.F.R. §36.104 to exclude animals who facilitate emotional support and well-being and include animals for other kinds of disabilities, such as psychiatric ones for which an animal mitigates the disability by furnishing task-based assistance. Alerting handlers to administer medication, according to the DOJ, equals one of the myriad specific tasks this broader class of service animals provides the disabled.

In some circumstances, the provisions of the ADA and Air Carrier Access Act may conflict; whereas a concession at an airport (a place of public accommodation under the ADA) might be within its rights to deny access to an emotional support animal, a carrier might have to allow access to the same animal. Cooperation is consequently urged. Carriers never need to accommodate some animals, such as reptiles. Others, such as miniature horses, can be determined on a case-by-case basis.

Where To Relieve My Dog Guide?

Service animals, unlike their handlers, often endure long flights without any chance for a break. The final rule imposes an additional component to the accessibility requirements of inter-terminal and intra-terminal transportation services and facilities owned, leased or controlled by carriers by requiring the creation of, escort to and training about service animal relief areas.

With its broad scope, the language does not furnish guidance on such issues related to relief areas as security screening. To address the interplay of relief areas and screening measures, the International Association of Assistance Dog Partners advocates that such areas be located within the potected perimeter of the airport so passengers with disabilities will not need to re-enter the terminal and repeat the security clearance process. It is noteworthy that, with regard to flights expected to last eight hours or more, the final rule enables carriers to request documentation of service animal handlers that their furry partners can withstand such travel without the need to relieve themselves.

Allergies

Tracking the language of a legal opinion issued for public safety in Cincinnati, Ohio, the final rule indicates that, as a general course, the alleged allergies and cultural or religious tenants of travelers must sublimate to the needs of handlers. Carriers can move any such traveler, who claims the aforesaid, to a different seat within the same class of service. Should an allergy arise to the level of a disability, carriers should endeavor to meet the needs of both parties to the fullest extent possible. The final rule indicates that carriers should ostensibly balance the equities of the parties in such situations, by, for example, rebooking one of the two parties, depending on who reserved a seat first.

Foreign Travel

The final rule, in relation to foreign travel, basically requires foreign carriers, inclusive of carriers who are partnered with a U.S. airline but that are part of a full length trip that stops in a foreign destination, to abide by the Air Carrier Access Act provisions. Foreign carriers may, however, apply for a waiver to such compliance.

Web Site Access

While acknowledging that the Internet constitutes an increasing medium for information about and reservations for flights, the final rule does not proceed so far as to impose affirmative obligations on carriers to ensure accessible Web sites. To address implementation concerns, inclusive of the allegations of carriers that Web site accessibility will result in burdensome cost, the DOT plans to issue a supplemental notice of proposed rulemaking. Carriers, however, cannot charge fees for phone-based reservations or fail to furnish Web-based discounts.

Per the sentiments of President Lincoln on tea and coffee, which expressed that life often exists within a paradox, this article renders qualitative evaluation of the final rule to the reader.

FNa1. Partnered with an eight year old dog guide, Langer, Gary C. Norman, Esq., is an American Marshall Memorial Fellow, the 2008 recipient of the Maryland State Bar Foundation Edward F. Shea Award and will be the founding principle in Public Access and Resolution Consultants, PC, a firm he desires to establish.

The opinions expressed in this article are the author's own and do not necessarily reflect those of the Guide.