[GDUI-Announce] An Update on the Department of Transportations’ RegNeg Process from Jenine Stanley

[GDUI-Announce] An Update on the Department of Transportations’ RegNeg Process from Jenine Stanley

Hi Campbell’s world visitors! I am courage! You, to read! I know I say this about many posts. This however needs our immediate attention. Whether you are cited, blind, mentally ill, or, some other type of disability, or no disability at all. You need to read this. Please? Share it wherever you can!

Dear GDUI Members and Friends, The information included in Jenine
Stanley’s update below will be interesting to everyone who travels via
U. S. air carriers with their guide dogs. I thank Jenine Stanley for
sharing this update with our members. It will also be included in the
upcoming PawTracks issue. Please don’t hesitate to contact Jenine, or
me, or Tony Stephens with any concerns or suggestions that you may
have. We’re closing in on the date of the final committee meetings, by
which time we will either succeed in improving the regulations that
guarantee our civil rights when we fly or the RegNeg process will end
in a stalemate. I hope that the disability community succeeds in
improving the regulations which implement the Air Carrier Access Act.
Making the kind of progress that will diminish the number of
encounters with untrained pets we may have to endure while traveling
through airports and flying is especially important to those of us who
depend on our guide dogs and service animals to improve our safety and
comfort in all environments, whether on the ground or in the air.

[BEGINNING OF ARTICLE]
An Update Regarding the Air Carrier Access Act Regulations-Negotiations Process
Jenine Stanley

[GDUI President’s Introduction: Early in 2016, the U. S. Department of
Transportation announced and convened a formal process for negotiating
changes in the regulations which implement the Air Carrier Access Act
(ACAA), the law that guarantees certain civil rights protections to
people with disabilities who wish to fly on American air carriers, and
allows people with disabilities to acquire the accommodations they
need in order to fly safely. Although GDUI applied for membership – as
a stakeholder – on the formal committee which is negotiating changes
in ACAA regulations, the Department did not grant our request to
participate as members of the formal committee. Fortunately, Anthony
Stephens, Director of Advocacy and Legislation for the American
Council of the Blind, and Jenine Stanley, a former president of GDUI
and an employee of the Guide Dog Foundation, have been representing
our needs and our positions admirably at formal committee meetings and
during the negotiations process. I have been participating as a member
of the Service Animals Working Group, which meets via conference call
in-between formal committee meetings and which serves to advise
committee members.

The first formal ACAA RegNeg Committee meeting was held in early May,
and the Committee has been meeting for several days each month since
then. The U. S. Department of Transportation  ruled, from the very
beginning, that all negotiations would be completed in October. The
next, and final  committee meeting will take place on October 12-14.

Below is Jenine’s summary of the negotiation process that has taken
place thus far. GDUI appreciates hers and Tony’s active participation
and advocacy on our behalf. By the time you read this article, the
negotiation process will have ended, and hopefully, we will be able to
anticipate changes in the regulations regarding Service Dogs,
Psychiatric Service Animals, and Emotional Support Animals that will
make flying safer and more comfortable for us and for our guide dogs.
Below you will find Jenine’s update. I encourage you to contact me or
Tony Stephens or Jenine, or the U. S. Department of Transportation,
with any concerns that you may have about the negotiations or their
outcome. Thank you, Jenine, for your hard work on our behalf and for
providing this update for PawTracks readers.]

 Several people have asked about the meetings I’m participating in
regarding the Air Carrier Access Act changes. Here’s the long and
short of this process which began in May.

The Department of Transportation (DOT) put out a call for
representatives of the disability community, organizations and
airlines to take part in a Negotiated Regulation process called,
strangely enough, a “Reg-Neg process.” This system is designed to pull
together experts in the subject matter to craft proposed regulatory
language for the DOT to review and use in its Notice of Proposed Rule
Making (NPRM) for given issues. This particular Reg-Neg is unusual in
that there are 3 separate issues being discussed, access to In-Flight
Entertainment (IFE), provision of accessible lavatories on
single-aisle aircraft (Lav) and definition of Service Animals (SA).
The reason I’m using abbreviations here is that this is how we refer
to the 3 groups.

In this Reg-Neg, 25 people have been convened to form the ACCESS
Committee. I represent the Guide Dog Foundation and America’s VetDogs
and in essence, the organized service animal training community. Other
representatives include American Council of the Blind, National
Federation of the Blind, Psychiatric Service Dog partners and National
Alliance on Mental Illness, among a host of others from the airline
industry. If any one would like a link to the site established for
this committee, let me know privately. I do not think I have the
authority to post it here.

In the beginning of this process we assembled based on several
factors. DOT recognizes that the system of defining service animals
under the ACAA is not working in practice. As a result, safety
concerns regarding service animal handlers, fraud by members of the
public who either do not have qualifying disabilities or just want to
fly their pets at no cost, and the erosion of civil rights for people
with disabilities who work with service animals are rampant.

Our goal on the 19-member Service Animal Working Group (that’s 19
voting members) is to come up with a proposal that changes the
definition of service animal in ways that eliminate as much risk of
fraud, while minimizing damage to our animals and our civil rights.
The Working Group (SAWG) is made up of voting members of the ACCESS
Committee and many others from the service animal community. The list
of SAWG members is available. There are 5 people serving as co-chairs
of this committee from the “Advocate” side, me among them. The groups
represented besides mine are: Paralyzed Veterans of America,
Psychiatric Service Dog Partners, National Alliance of Mental Illness
and Independent Association of Canine Professionals. (We’ve been
working from a list of around 15 points involving this definition for
the past 5 months now. Below, I will try to explain the key, or tent
pole issues of this list and why it’s taking so long to do something
you’d think was not rocket science.

Before we get started, let’s get one thing clear. The ADA does not
apply in any way, other than for comparison, to what we will discuss.
The Air Carrier Access Act is the set of regulations to which we
refer. OK, got that? Got it.

So, why is the ACAA service animal definition broken you ask? Right
now it allows for animals of a wide variety of species to be
recognized as service animals. This means turkeys, birds and yes, even
pigs, fly…free…as service animals, if the passenger says they are
service animals.

That’s at least true for the majority of animals trained to do work or
perform tasks to help with someone’s disability. This training also
includes public exposure or access training so the animal not only
does things for us but also is accustom to behaving properly in public
places and chaotic environments like airports and airplane cabins.

There are 2 subcategories of the broad definition of service animal
that some people may not understand. Each of these has different
requirements.

Psychiatric Service Animals (PSAs) are exactly like my guide dog in
that they have been trained to do work and perform tasks to help
someone with a psychiatric disability. They have also had public
access/exposure training as part of their ability to be with their
handlers in public places. Nowhere else in civil rights access law are
people who work with dogs that perform such functions forced to
provide the proof they are under the ACAA. PSA handlers must provide
the airline with a letter, on the letterhead of a mental health
professional, which includes a stated diagnosis from the Diagnostic
and Statistical Manual of Mental Disorders-V (DSm5) as a justification
for the animal.

This same letter must be provided if someone has the last category of
animal, and Emotional Support Animal or ESA. ESAs have no formal
training to do work or tasks and though some may have degrees of
public access/exposure training, not all do. ESAs do though help their
users through their presence, keeping the person calm, grounded, etc.,
during the stressful time of flying or during activities at their
destination.

Given those definitions, you can see how confusing this is already.
Add to that a growing industry of on-line providers of vests,
certificates, medical letters and more to be able to get your pet
deemed a PSA or ESA or even a standard service animal, to avoid the
$150 and up fees for bringing pets aboard air carriers, and you have a
recipe for disaster.

There is also very little ability to enforce control over animals that
misbehave either at the airport or on the plane due to fear of social
media reprisal against the airlines.

We’ve identified 3 tent pole issues in this situation. A tent pole
issue is one that is critical to continuing the process, i.e., we
can’t go to sleep until we put up the tent and we can’t put up the
tent until we find and work together to erect the tent poles. Hope
that makes sense because many people aren’t familiar with that term in
a process like this apparently.

Our 3 issues are: Species limitations, whether or not to even include
ESAs, and what type of documentation/verification/justification people
would provide to claim their accommodation of having an animal travel
with them.

Species limitations sounds like a simple thing on which to agree. Not
so. There have been several proposals put forward by both airlines and
advocates. Both industry and advocate groups agreed initially that
Psychiatric Service Dogs (PSAs) should be melted into the general
definition of service animal without documentation requirement. Both
sides also agreed that there should be 2 distinct and separate
definitions, one for “service animal” and one for Emotional Support
Animal (ESA). This would allow for different treatment of each type of
animal and lessen the confusion and stigma associated for ESA and PSA
users. DOT also provided us with “springboard language” from which to
work. Unfortunately, DOT did not see our distinction of separating the
definitions but does say that if this is something both sides support,
it can’t be ignored.

All of these proposals limit the types of animals to dogs. Some
proposals add cats as there seem to be some advocates who can cite
examples of service cats.

The side that opposes adding cats does ask for a specific timeline for
DOT to review the use of other species. DOT can review aspects of
regulations any time it wants but by making a specific request to do
so within a time period, it’s more likely to happen.

I’m on the no cats for now side and base my logic on the 2010 update
to species in the ADA. The Department of Justice chose dogs for a
number of reasons.

I can say with a fair amount of certainty that most service dog
training programs agree with this view.

We have also given handlers of miniature horses some access similar to
what is done under the ADA definition, because it has been done. We
included Capuchin Monkeys as having similar limited access so they may
fly with their handlers. Such monkeys are professionally trained to
provide disability mitigation in a person’s home. The monkey *must*
remain in its carrier throughout the flight though as they do not have
public access/exposure training.

OK, that’s issue 1. We all seem to agree on service animals having the
ADA type definition, doing work and performing tasks and having public
access/exposure training, and also being at the very least, dogs,
miniature horses and Capuchin monkeys.

Emotional Support Animals, should they be included and if so, what
species should be allowed?
The species question is, in part, key to the initial question, should
there still be a category of ESA?

Early in this process we asked the airlines to show us the scope, from
their data, of problems or incidents involving any type of “service
animal”. We learned several things from this information. 1. Airlines
do not keep records of incidents involving service animals of any
stripe. They need to tease this information out of all incident
reports in many cases, which is why we don’t call it data.

2. Airlines often don’t distinguish or even know the difference
between an ESA, a PSA and a service animal. They specifically have
difficulty between the first two types of animals as they both require
the same level of documentation, something the gate and flight crews
rarely see.

3. The number and severity of incidents involving “ESAs” was
significantly higher than it was for traditional service animals.
Incidents primarily involved arguments about proper documentation but
also involved animal misbehavior, including biting flight crews and
other passengers. People with traditional service animals report
having their animals growled at, lunged at and yes, attacked by
animals whose owners claim they are ESAs.

This would tell many people that ESAs are a bad idea and should be
removed from consideration. Many airlines and advocacy groups have
this view, based on the fraud or lack of education of ESA owners.

The SAWG though wants to be sure not to penalize those who truly do
need an ESA and handle their animals responsibly. We are including
them but under a separate definition.

In our first straw pole on the issue, it appeared the airlines agree
with this point.

Where we all disagree is in the number of species represented and the
restrictions placed upon ESAs that are not placed upon traditional
service animals. Remember, we’ve pretty much agreed that Psychiatric
Service Animals are now included in the traditional service animal
definition.

There are several positions among the Advocates about species and
containment of ESAs. I’ll outline them here with the designation AP1,
etc., as they are in our materials.

AP1. ESAs are dogs, cats and rabbits. All ESAs must fit into
FAA-approved pet carriers and must be in those carriers unless
providing disability mitigation. When doing so, they must be on the
person’s lap and connected to the person by a leash or tether. If the
animal is not behaving according to the behavior standards laid out in
the ACAA (which are already there by the way, the flight crew can
require that the animal be put back into the pet carrier for the
remainder of the flight.

AP2. ESAs are dogs, cats and rabbits. Cats and rabbits must be in
FAA-approved pet carriers but can come out for disability mitigation.
They also can be required by the flight crew to be put back into the
carriers if misbehaving. Dogs have no size limitation but if they are
well-behaved, they can enter the aircraft and remain outside a
carrier. If they are knowingly not well behaved, they must remain in
the carrier, with the same rules as for cats and rabbits.

AP3. Only dogs that can fit into FAA-approved carriers are ESAs. ESAs
cannot be removed from carriers.

The DOT has a position in its “springboard document” similar to AP3
but dogs have no size limitation and no carrier restriction.

All animals, service or ESA, must be under the control of their owners
and must have leashes or tethers unless providing disability
mitigation that prohibits them, such as distance retrieves. (This is
taken almost directly from the 2010 ADA wording on control, by the
way.)

Now, guess which position I hold? Yes, AP1. It makes little sense not
to allow animals whose purpose is to assist through their presence,
i.e., being able to hold and pet them. The rules for pet carriers are
the same as those for baggage that goes under the seats, so the
animals would not be available during the most stressful parts of the
flight. Requiring them to remain in carriers defeats their purpose and
stigmatizes them as “pets who fly free” or “fakes”.

AP1 also allows for the animal to be returned to the carrier if it is
not providing a service to the person. Since most incidents we’ve
heard involve ESAs, we want a means of controlling them and removing
them from other service animals, passengers and flight crew. This
cannot be done for larger dogs if allowed.

Honestly, this particular aspect of the regulation definition has
split the Advocates in several directions. I’d urge anyone considering
commenting to remember why this Reg-Neg was convened. Safety for
service animal teams was one of the paramount concerns expressed by
advocates. Given that fraud, either intentional or through lack of
education, is also an issue, particularly with ESAs, we regret that
AP1 limits access for those with larger dogs as ESAs, but something
has to give to achieve the goals here. We do appreciate your support
for AP1.

Documentation/Verification/Attestation
This is by far the most controversial part of the entire definition.
The current state of play is that if you have a traditional service
animal, you are not required to do anything, other than possibly
answer the two questions allowed under the ADA as well as the ACAA,
which are:
“Is that a service animal required because of a disability?”
“How does that animal assist you with your disability?”
These two questions can be asked by airline staff. They cannot ask,
however, anything specific, such as “What is your disability?”, “Can
you demonstrate the dog’s work?”, “What’s the dog’s breed, weight,
size, training provider,…

If you have a PSA or ESA, you must provide a letter, 48 hours in
advance of your flight, stating your diagnosis and that the animal is
necessary. This letter must be on the letterhead of a licensed mental
health professional and must include their name, address and license
number. The letter is good for 1 year.

In theory this sounds good enough to prevent fraud. In practice, it’s
just the opposite. Many reading this post can show lots of examples of
where to get credentials for your pet on line to transform it into
either and ESA, with a real doctor’s note, or a traditional service
animal.

AP1. Since the airlines feel more secure with some type of assurance
that we are who we say we are and that our animals are what we claim,
traditional service animals or ESAs, we have come up with a decision
tree concept. This is a form that goes something like this:

I am traveling with an animal. Yes/No

If yes: My animal is a(n( Pet/ESA/Service Animal

If Service Animal, then some language would appear that says you
attest to the fact that you do have a qualifying disability, not what
that disability is, but that you have one, and you require this animal
to assist with said disability.

You will also attest to the fact that the animal has been trained and
will remain under your control, and that you are responsible for
damages caused by the animal.

This short data form would be filled out as soon after your ticket
purchase has been confirmed as possible. Just how that will happen is
not yet clear but suggestions include the form being part of the
ticket reservation process on an airline’s web site or 3rd party
ticket seller’s site, an email being sent with the confirmation of
ticket purchase with a link to the form on the airline’s entry site,
etc.

This data form would need to be completed by anyone traveling with a
service animals or ESA no less than 12 hours prior to the flight. If
you don’t get it done prior to the flight, you may be required to do
so at the airport, may be asked for additional documentation or may be
asked to take another flight, giving you time to complete the form.

If you have done so ahead of time though the airline cannot ask you
anything else about your animal (dog in most cases). This does not
apply to any other type of assistance requested or offered by the
airline involving your disability, such as meet and assist. It just
means you won’t get questions about your dog from the airline staff.

Arguments on this point are quite vehement. People with traditional
service animals have not been asked to do anything extra to gain
access to flights with their animals. Many people feel that this is
discriminatory and that identifying themselves ahead of time to the
airlines as a person with a disability primes the staff for
inappropriate and often infantilizing treatment.

I can’t argue that. It happens.

Unfortunately we are at the point though where the regulations
involving animals on flights have come to a tipping point of safety.
Cabin space is at a premium. In order to secure our rights, sadly, we
are going to have to start notifying the airline of a need for the
accommodation of having our service animals with us.

The airlines would rather we *all* got a 3rd party to verify that we
have disabilities and that we need our animals for said disability
mitigation.

What do we get by checking boxes on this form? Good question.

We, not a 3rd party, are responsible for the accommodation request.
The airlines can deal with us directly if there is any question about
our animals. Completing the form holds someone who is fraudulently
representing themselves or their animals to a legal standard for which
they can be punished by law if found guilty. For many people that
threat is enough to stop them from completing the form and taking
their pet, who has never been out of their yard, on an airplane.

The airlines do truly want to stop people who *are not disabled* from
claiming accommodations designed for those who are. Yes, there’s a
financial component on their side but the people we deal with on the
ACCESS Committee and SAWG are very angry that people would disrespect
people with disabilities and the work that goes into maintaining the
training of a service dog, just to get something free. They see much
more of this rampant fraud than we do directly.

 My final word on this is that we need to realize, unfortunate as the
“group slap” mentality is, that we are going to have to justify our
need for our animals in some form, across the board. People who use
other assistive devices have to do so as well under certain
conditions. No, a national registry of “legitimate service dogs” will
not work.

The airlines are looking into ways of voluntarily keeping your
information about your animal in some type of passenger profile, be it
your frequent flyer account or other information so you don’t have to
check every box, every time. They are also looking at how you would
deal with canceled flights or stand-by situations, even switching
airlines during a trip. Trust me, thanks to discussing this with many
different people, we’ve tried to think of everything.

 Finally, if we don’t agree to this concept in some form, it will be
forced upon us by DOT. That’s not necessarily a threat. It’s just a
reality.

I appreciate any
questions regarding this process. the final meetings for this Reg-Neg
will take place October 12 – 14 in Washington, DC. The public is
welcome to attend.

Jenine Stanley
<Jeninems@icloud.com>
 NG
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