As we stay home and practice physical distancing, there is something we can do to help protect our ability to fly with our dogs in the future. The U.S. Department of Transportation has proposed adding new restrictions for service dogs traveling on airplanes, chipping away at the freedoms advocates fought for decades to protect. My comments below are based on those from The Seeing Eye. You’re welcome to use them as you prepare your own comments. The deadline is April 6, and here’s the link to submit your comment to the U.S. Department of Transportation: Federal Register: Traveling by Air With Service Animals.

To: The U.S. Department of Transportation
From: Haben Girma
Date: April 5th, 2020
Re: Docket No. DOT-OST-2018-0068, RIN No. 2105-AE63 – Traveling by Air with Service Animals, Notice of Proposed Rulemaking (NPRM)

I am blind and have been traveling with a guide dog since 2009. My German Shepherd guide dog trained extensively at The Seeing Eye, and I spent nearly a month training with him at the guide dog school. As a disability advocate, public speaker, and author I fly frequently. When I’m in the air, Mylo sleeps curled up by my feet. He’s a superb traveler, earning the admiration of flight attendants from coast to coast. The proposed changes to 14 C.F.R. 382 outlined below will make it more difficult for us to fly together, more difficult for me to do my job, and more difficult for me to serve my community. This letter reflects my concerns as well as comments made by The Seeing Eye. Disability advocates from around the country, including a former senior advisor for the USDOT, asked me to add their names at the end of this letter to show their support.

1. Airlines should make an effort to accommodate large service dogs on full flights

The proposed rule would categorically deny passage to service dogs that are too large to fit on the handler’s lap or within the foot space of the handler unless the handler can be reseated next to an empty seat where the dog can be accommodated; otherwise, the handler would be offered the opportunity to travel on a later flight (6461). Unfortunately, the likelihood that a commercial aircraft will be booked to capacity continues to increase, while the size of airline seats and the amount of foot space afforded to passengers continues to decrease. These conditions have significantly diminished the likelihood that airline personnel will have the flexibility to reseat a service dog handler with a large dog next to an empty seat. Thus, handlers with larger dogs could be, more often than not, faced with choosing between traveling at a later time that may not meet their needs or placing their service dog in cargo. Placing a service dog in cargo is fraught with problems, among which are the handler’s separation from the dog and the inherent risks to the dog’s safety.

In proposing this change to the rule, DOT seems to be relying on sparse anecdotal data provided by airlines about passengers feeling pressured to share foot space with service animals. In the NPRM, DOT indicates that the current guidance does not require passengers to share foot space with an animal if they do not wish to do so (6461). What is more, most legitimate service dogs are trained to curl up at the feet of the handler in the space allotted to them even if they are large breeds. The Seeing Eye, which matches people with German Shepherds, Labrador Retrievers, and Golden Retrievers, is troubled by a rule that would allow airlines to place more restrictions on the space allotted to these dogs. A more effective solution would be to better educate airline personnel about how to accommodate people with service dogs.

I travel with a German Shepherd, which is a large breed. Due to my dog’s training he is able to curl up in the space under the seat in front of me — my allotted foot space. Most of the time, though, the passengers next to me encourage me to let my dog stretch out because they want to share their foot space with him. If the proposed change is implemented, whenever a flight is full airline staff might look at my large dog and decide to kick me off the plane, causing me to miss meetings and suffer financial losses.

A more equitable and just solution would be for airlines to reseat a passenger who does not want to sit next to a dog. In my experience many passengers feel lucky to sit next to a sweet, well-behaved service dog. Some disabled travelers might already be planning to sit next to a friend or family member who wants to share foot space with their service dog. The airline should give dog-loving passengers an opportunity to sit next to a service dog on a full flight rather than removing a disabled traveler from that flight.

Also, consider the lack of clarity around the concept of passenger foot space. The boundaries between one passenger’s foot space and that of another can be very hard to determine, for example, on smaller aircrafts or in bulkhead seating. That said, the proposed changes to the rule appear to focus more on accommodating the hypothetical uncomfortable passenger adjacent to a service dog than on providing equal access to people with disabilities as these regulations are intended to do.

The current rule is sufficient to safeguard against larger dogs encroaching on the foot space of other passengers who do not wish to share space with a service dog. The current rule states that a service animal must be permitted to accompany a passenger with a disability “at any seat in which the passenger sits, unless the animal obstructs an aisle or other area that must remain unobstructed to facilitate an emergency evacuation” (14 C.F.R. § 382.117(b)). If a service dog cannot be accommodated at the passenger’s seat, the airline is required to “offer the passenger the opportunity to move with the animal to another seat location, if present on the aircraft, where the animal can be accommodated” (14 C.F.R. § 382.117(c)). The Preamble to the rule states that if a service animal cannot be accommodated at the passenger’s seat or at another seat in the passenger’s class of service where the animal will not obstruct an aisle or emergency exit, “the carrier should first talk with other passengers to find a seat location in the cabin where the service animal and its user can be agreeably accommodated (e.g., by finding a passenger who is willing to share foot space with the animal). Only if no other alternative is available should the carrier discuss less desirable options concerning the transportation of the service animal…” (73 Fed. Reg. No. 93, 27661 (May 2008)). The fact that a service dog may need to use adjacent foot space should not automatically give the airlines grounds to remove a service dog from the cabin.

2. Requiring disabled passengers with service dogs to check-in at the airport an hour before general check-in and report to an animal documentation area violates the nondiscrimination mandates of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973

The Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 prohibit airlines from denying services at their airport facilities to people because of a disability. The proposed changes would require airlines to deny key services to disabled passengers who rely on a service dog. Airlines encourage their passengers to take advantage of online check in, airport kiosks, and other services allowing passengers to quickly and efficiently move through the airport. By contrast, the proposed changes would force disabled passengers to lose valuable time and productivity. They would have to arrive an hour before general check in, which means arriving three hours before a domestic flight instead of just two hours. They would have to locate the check-in counter for passengers with service dogs, whereas nondisabled travelers could check-in online and bypass all check-in counters entirely. Disabled passengers with service dogs would be denied access to airline services allowing passengers to skip airline counters and reduce time spent waiting in lines.

The proposal states that airlines would be allowed to impose this requirement “so long as the airline similarly requires advance check-in for passengers traveling with their pets in the cabin” (6471). Airlines’ requirements for pets are irrelevant because service dogs are not pets. Service dogs are highly trained, well-behaved, and working to assist their human partner with a disability related task. Furthermore, people with service dogs are protected under the ADA, passengers with pets are not. Imposing the same restrictions on passengers with disabilities who need to travel with service dogs as those imposed on people who wish to travel with their pets is inconsistent with the letter and spirit of these laws.

The NPRM is not clear about whether passengers with service dogs would be required to check-in at the same designated location as people traveling with their pets. If that is the case, people with task-trained animals such as guide dogs would have to wait for processing in close quarters with animals that may ultimately not pass muster under the DOT’s definition of service animal because of their behavior or lack of training. Service dog teams are already experiencing increased interference from poorly managed pets in airports. This interference can compromise a service dog’s ability to do its work, put it at risk of physical harm, and potentially end a partnership forever if such harm occurs. Forcing service dog handlers to wait in an area specifically designated for screening animals to determine whether their training and behavior is acceptable for travel in the cabin is an invitation for this type of interference.

DOT should also consider the burden imposed on the service dogs that will be required to refrain from relieving themselves for an increased period of time as a result of the early check-in requirements.

3. The proposed changes will cause significant economic hardships for disabled travelers

Many of us have jobs that require us to travel frequently for work. In February 2020 alone my guide dog and I flew ten times. If the proposed change was in place I would have lost ten hours just in one month. Over a year the change could potentially cost one hundred plus hours of lost time, missed meetings, and lost job opportunities. There have been times when a flight cancellation or extreme delay required me to hop on a plane with a different airline. But a requirement that I report to the service dog documentation area an hour before general check-in would make changing plane tickets at the last minute impossible, leaving us stranded at airports. These proposed changes will be devastating for disabled passengers who travel for work.

4. The costs to disabled travelers exceeds any anticipated benefits

The proposed changes are exceedingly burdensome to honest disabled travelers while doing very little to stop fraud. People determined to misrepresent their pets as service dogs will not be deterred by requirements to complete a service dog form, arrive an hour early, and check-in at a special animal counter at the airport. Misrepresenting a dog as a service dog is a crime in nineteen states, yet countless residents of those states continue to falsely claim their dog is a service dog. If the fact that their activity amounts to a crime in nineteen states doesn’t scare them, then the proposed changes won’t scare them, either. We all want a solution to this problem, especially honest disabled people with service dogs who want a discrimination-free travel experience.

The proposal would allow airlines to require a “DOT Air Transportation Service Animal Behavior and Training Attestation Form.” This form would be completed by the passenger and would provide assurances that the animal “has been individually trained to do work or perform tasks for the benefit of the passenger with a disability and has been trained to behave properly in public, and that the user is aware that the service animal must be under his or her control at all times” (NPRM, 6471). A passenger could complete and submit the form knowing full well that their animal is not trained to behave appropriately in an airport setting and may be undeterred by the fact that they are falsifying a federal form. As a practical matter, the animal’s potential misbehavior in the airport or on the aircraft would occur well before any action could be taken against the passenger for falsifying a federal form. Meanwhile, a law-abiding passenger with a task-trained service dog who flies frequently and on multiple airlines would be required to shoulder the burden of completing the form multiple times.

Another proposed form is a Service Animal Health Form, which would need to be completed by a veterinarian describing the animal; confirming that the rabies vaccination is up to date and whether the animal has any diseases; and stating whether the veterinarian is aware of any aggressive behavior by the animal. Travelers would have to spend time and money renewing the form each year. The burden it would impose on service animal handlers far outweighs the value it would have for airlines attempting to assess whether a service animal poses a threat. Any service dog handler flying after the proposed regulations take effect would either have to anticipate the possibility of air travel and ask their veterinarian to complete the form at an already-scheduled office visit, or incur the cost of an additional office visit so the form could be completed. A service dog handler who must fly on short notice due to an emergency, professional engagement, or any other reason for that matter, would be unable to fly if they could not have the form completed beforehand. Even if the form is standardized and can be used for multiple airlines, the handler would have to physically provide or upload the form each time they fly with an airline for the first time during the year the form is valid and may have to provide it again for every trip unless the airline is required to retain the records. Furthermore, many veterinarians may be unwilling to make any assertions about whether they have observed aggressive behavior by the animal for fear of either exposing themselves to liability or providing an answer that would jeopardize their client’s ability to fly with the animal, especially given the fact that dogs are often stressed in veterinary offices.

The health form would also not be effective in protecting passengers from injury or ensuring that they would not contract rabies if bitten. “According to the Center for Disease Control and Prevention (CDC), any dog that bites an individual should be assessed and monitored by a local or state health department over a 10-day period irrespective of whether there is proof that the animal has been vaccinated” (NPRM, 6464). In addition, the CDC characterizes the possibility of a healthy appearing dog being sick with rabies as “remote.” Mandatory health forms are unlikely to effect treatment after a bite or reduce service dog fraud given the number of people misrepresenting their pets. Service dog teams are already bound by state and local laws requiring vaccination, and creating a new rule that requires service dog handlers to present vaccination documentation to airlines and wait for airline staff to review the documents each time they fly is arbitrary and burdensome.

5. Conclusion

Airlines should ensure their fast and efficient check-in services, allowing passengers to skip airline counters and reduce time spent in lines, are readily available and accessible to disabled passengers with service dogs. The proposal to require disabled passengers with service dogs to arrive an hour earlier than the general public and report to a special animal counter would violate the ADA. Nondisabled people regularly complain about the exhaustion and stress of air travel. Disabled travelers experience all the same stresses, and now face the threat of shouldering these additional burdens: scheduling and paying for a vet visit to complete the health form annually, arriving three hours early for a domestic flight instead of two, waiting in the animal observation and documentation line, completing a service dog training form multiple times, automatically being removed from full flights if you have a large service dog, and all the associated loss of time and money. These proposed changes will increase barriers and economic hardships for disabled people while doing very little to reduce fraud.

Thank you for the opportunity to comment on this NPRM. Please feel free to contact me for any additional questions.

Haben Girma, JD
Disability Rights Lawyer, Speaker & Author

Supported By:

Marc Brenman
Former Executive Director, Washington State Human Rights Commission; Former Senior Policy Advisor for Civil Rights, USDOT

Paul Grossman, JD
Chief Regional Civil Rights Attorney, U.S. Department of Education Office for Civil Rights, retired; recurring Professor of Disability Law, Hasting College of Law, UC, retired

Rosemarie Garland-Thomson
Professor of English and Bioethics, Emory University

Stephan J. Smith
Executive Director, The Association on Higher Education And Disability (AHEAD)

Jane E. Jarrow, Ph.D.
President, Disability Access Information and Support (DAIS); Former Executive Director of the Association on Higher Education and Disability (AHEAD)

Mary Lee Vance, Ph.D.
Director, Services for Students with Disabilities, CSU Sacramento

Iris Giamo
Director, Disabilities Resource Office, Saint Mary’s College

Donna Musel
Director, Center for Academic Excellence, Buena Vista University

Sarah Alag, LCPC
Assistant Director of ARC-Disability Student Services, University of St. Francis

Dr. Chip Studwell, Ed.D., LPC
Director of Academic Support and Disability Services, Bridgewater College

Kaitlyn Martin, M.Ed.
Program Coordinator for Student Accommodations, University of the Sciences

Tom L Thompson
TMLS Consulting

Lisa Yoder, LBSW
Former Director of Disability Services, Cairn University

Bonni Alpert, Ed.D
Educational Consultant

Mariella L. Pechero, JD, M.Ed
Disability Services Coordinator, Southern Adventist University

Marcie W. Pospichal, Ph.D.
Associate Vice President for Student Support, Florida Southern College

Diane Schowalter, Ph.D.
Director of Learning Accessibility Services, Carthage College

Marcus Engel, MS, CPXP, CSP
Adjunct Professor, University of Notre Dame

Margaret Giuliano
Director of Special Services, Dominican College

Dana Jones
Assistant Dean of Students/ Director of Disability Access Services, Aims Community College

Amy Wilms, MEd
Assistant Dean of Academic Success & Disability Services, University of Redlands

Alyss Zohar
Accommodations Coordinator, Mount Carmel College of Nursing

Julia Rosser Timmons
Director of the Center for Accessibility and Disability Resources, University of Lynchburg

Jean Altshuler
Director of Accessibility and Academic Support, Bard College at Simon’s Rock

Angi Olesen
Director of Learning Enrichment and Disability Services, Beloit College

Dr. Victoria Slocum
Director of Academic Accessibility, Asbury University