Edited January 22 11:33 a.m. ET: Minor elaboration to draw out the contrast between the scope of the ADA and ACAA.
FOR IMMEDIATE RELEASE, January 19, 2018—
On January 19th, 2018, Delta Air Lines announced its plan to implement new, striking requirements for all service animal users.
In order to travel on Delta, service animal users (who must have a disability, by definition) will soon be required to obtain and carry paperwork from professionals who have no expertise in service animals. More so than before, there will be additional burdens for those who use service animals to mitigate their mental health disabilities.
Leading advocacy group Psychiatric Service Dog Partners (PSDP) is urging Delta to reconsider whether its newfound interpretation of the law could better incorporate human rights principles and practical reasoning, while still addressing Delta’s safety concerns. The manner in which Delta has interpreted current regulations (14 CFR §382.117(f)) would allow Delta to require any number of invasive certifications that don’t clearly connect with the real issues in play.
Delta consulted its 15-member Advisory Board on Disability to produce its new service animal policies.
Jay Stiteley is the only one currently listed on Delta’s Advisory Board on Disability who has had any apparent connection to working in the service animal world. He was a good man, but he passed away in July of 2016.
PSDP spoke today with Jenine Stanley, who knew Stiteley. Stanley is a long-time guide dog user and advocate employed by America’s VetDogs and the Guide Dog Foundation for the Blind. She told PSDP that “Jay Stiteley would have never let this pass.”
A member of Delta’s advisory board cordially reached out to PSDP today to discuss the announcement. Fortunately, Delta’s advisory board does have another member who is a service dog user. Understandably, though, service animal advocates prefer to have a greater voice than one in 15 when an important service animal policy is being constructed. Their community and perspectives display a surprising diversity.
Delta deserves respect for being a trailblazer in the industry, both historically and in the present case. It is clear that Delta does not have bad intentions. PSDP says it finds fault with the execution, not the intent.
All airlines want their passengers to have an assurance of safety. With safety as its stated goal, Delta is the only airline that plans to systematically require all service animal users to obtain and carry paperwork with them.
Since this is such a big change, many service animal users had assumed it was an illegal move and are now asking, “How could this happen?”.
How could this happen?
The US Department of Transportation (DOT) creates regulations and guidance to implement the Air Carrier Access Act (ACAA), which is a simple piece of legislation prohibiting discrimination by airlines on the basis of disability. The Americans with Disabilities Act (ADA), under the Department of Justice, does not cover flying. There is vague language in DOT regulation 14 CFR §382.117(f) about airlines needing to determine “whether the animal would pose a direct threat to the health or safety of others”.
In the past, airlines have interpreted DOT’s regulation in a straightforward way that makes sense across flying and non-flying contexts. If someone shows up to the airport with a snarling, lunging dog or a dog with a flow of fleas jumping off left and right, that would obviously be a direct threat to the health or safety of others. The airline would not be obligated to let such dogs fly in the cabin.
Delta’s planned policies put an interesting twist on the regulation, now reaching into disabled people’s lives to have a veterinarian verify something that does not seem to touch on the stated safety concerns. By requiring a vaccination certification, Delta is signaling that the problem is not lack of training, but disease. It is not clear whether Delta has had any rabies problem on its flights that warrants the requirement.
Since the CDC has advised there’s not a significant risk of zoonotic diseases from service dogs, it’s hard to see how Delta could justify the veterinary confirmation they plan to require from all service animal users.
The issue is not just whether one would prefer that service dogs be vaccinated. One can be required to use adequate veterinary care, as per local laws, without being required to obtain, present, and carry paperwork from one’s veterinarian.
It may not be obvious, but PSDP believes the new policy illustrates the difference between trusting people with disabilities to be self-empowered vs. paternalistically requiring them to check in with an official before being able to do what non-disabled people can do freely on their own.
Beyond the new policy about veterinary paperwork, Delta plans to require only those with mental health disabilities to attest to the training of their service animal.
Apart from leaning on the “reprehensible history of discrimination against people with mental health disabilities”, PSDP says, PSDP also sees no justification for requiring extra exercises from a carved-out section of the service-animal-using disability community. They persuasively report that having a non-mental health disability does not preclude someone from having an inadequately trained animal.
PSDP wholeheartedly supports Delta in its efforts to educate consumers by verifying they know what it means to claim an animal is a service animal. What appears to need serious tweaking is applying this education or self-verification in a way that does not clearly discriminate on the basis of disability type.
In what kind of culture do we want to live?
Like Delta, advocates are certainly concerned about safety—both of other passengers, and of their own service animals, who are more likely to be attacked by an untrained dog. But advocates’ overarching concern in balancing the need for safety is whether we’re using the human rights approach to disability, or the medical model of disability where people with disabilities must get the okay from others to live their lives with their assistive devices. PSDP believes we can adopt the human rights approach while having a practical respect for safety concerns.
Advocates have consistently pressed this issue, asking: “As a society, do we want to require historically oppressed groups to carry paperwork because we don’t trust them?” They say there’s good reason the Department of Justice forbids this under the ADA, but air travel falls under the Department of Transportation and the Air Carrier Access Act (ACAA).
This kind of requirement makes many citizens in the disability community think of yellow stars in Germany. To be clear, in relaying this PSDP is not at all saying that America in 2018 is Nazi Germany. What they say we must realize, though, is that when we consent to violating the human rights of disadvantaged populations in various small ways, this puts us on the path toward sacrificing the basic liberties of everyone for the illusion of our security.
If we are apt to consider it, that is a slippery path most of us probably want to avoid.
PSDP is absolutely fine with educating people about the requirements by just having them verify they understand what’s expected. PSDP advocated for this in its 47-page USAUSA coalition report to DOT. (USAUSA stands for “United Service Animal Users, Supporters, and Advocates.)
Delta, ever independent-minded, broke rank with its industry peers in 2016 and signed onto much of USAUSA’s report, along with several disability rights organizations, service animal schools and advocates, and flight attendant and consumer groups.
PSDP is a proponent of cutting down on the real safety problems by educating people, because they report there is massive ignorance about what is expected of service animals (or emotional support animals, in particular—note that ESAs are distinct from psychiatric service animals).
However, PSDP is not okay with treating disabled people as if they are guilty until proven innocent. That’s the principle they are afraid Delta policies could elevate, and that is part of how Delta could run afoul of human rights principles.
Advocates say they’re always fighting kneejerk reactions from the public, where they too often assume that either a hidden disability or an atypical dog breed means someone’s cheating the system. They plainly admit there is always going to be a baseline of both “fakers” and people with legitimate needs who are ignorant about what is expected. What they strive for is balancing both the drives to minimize faking and other bad behavior (stemming from ignorance) with not infringing on more important fundamentals of human rights.
The issues are complicated, and that is why they merit careful consideration and consultation. “Nothing about us without us” is a common refrain in the disability community. It sounds like Delta might benefit from better employing this principle when it comes to the service animal community—and PSDP looks quite happy to help.
What does the future hold?
Fortunately, DOT plans to update the service animal regulations for flying with a long-awaited notice of proposed rulemaking (NPRM) in July of 2018. Advocates expect—and sincerely hope—DOT will prohibit the human rights violations currently allowed and even encouraged under present regulations.
The current system has been especially disheartening for those service animal users with mental health disabilities. For years, they feel they have suffered under DOT’s implicit premise that it is okay to treat them with less respect and more burdens than those with other kinds of disabilities.
They have to jump through hoops to verify their disability that others don’t have to, and they say it looks like DOT still doesn’t understand the difference between a (trained) psychiatric service dog that goes in public all the time, and an (untrained) ESA that is often dangerously unaccustomed to no-pets places out in the world.
One of PSDP’s DOT contacts provided the following information about their plan to update the service animal flight regulations:
The Department intends to draft an advance notice of proposed rulemaking in July 2018 that would solicit comment, among other things, on the appropriate definition of a service animal and how to reduce the likelihood that passengers wishing to travel with their pets on aircraft will be able to falsely claim that their pets are service animals. See https://www.reginfo.gov/ public/do/eAgendaViewRule? pubId=201710&RIN=2105-AE63.
Further, a DOT spokesperson said this to PSDP today about Delta’s policy announcement:
The Department is aware of the new Delta Air Lines policy regarding service animals. Air travel should be safe for passengers and airline employees and accessible for all passengers. We will monitor Delta’s policy to ensure that it preserves and respects the rights of individuals with disabilities who travel with service animals. Under DOT’s current rules implementing the Air Carrier Access Act, airlines are required to accommodate passengers with disabilities who depend on the assistance of service animals within limits. Airlines are not required to accommodate unusual service animals, such as snakes, reptiles, ferrets, rodents, and spiders. Also, an airline may refuse to carry other animals if the airline determines there are factors precluding the animal from traveling in the cabin of the aircraft, such as the size or weight of the animal, whether the animal would pose a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin service, and whether the law of a foreign country that is the destination of the flight would prohibit entry of the animal. In enforcing the requirements of Federal law, the Department is committed to ensuring that our air transportation system is safe and accessible for everyone.
PSDP is optimistic with a heavy dose of realism. These advocates say they remain eager for well-considered approaches that respect all parties, and especially that respect the human rights of people with disabilities. It seems the service animal community has been waiting a long time for this, and is more than ready to help Delta and DOT create a praiseworthy balance.
Apart from its advisory board member, Delta officials could not be reached for comment at the time this article was published.
PSDP’s previous, related press release, “Service dog advocates react to Delta dog bite”:
If you represent a group interested in expressing general support for PSDP’s positions in this press release, please help the cause by emailing our USAUSA coalition ( usausa [at] psych [dot] dog ) so we can note your support on PSDP’s website.
Organizational support (beyond PSDP)
Sarah Grady, Service Dog Society
Laurie Gawelko, Service Dog Express