[NAGDU] {Spam?} ACAA proposal

[Tami Jarvis]

I read what I thought was an official proposal for new ACAA rules, but 
went back to find it and discovered it's a proposal by an organization 
for psychiatric service dog users. It's well thought out and rasies some 
interesting points, so I'll go ahead and paste the text, even though 
it's really long. When I was thinking it was an official rule change 
proposal, I planned to read it again, and I might anyway. It might give 
an idea of what some service dog organizations are trying to get into 
the rules.

The link is 
http://www.psychdogpartners.org/board-of-directors/board-activities/advocacy/acaa-design-challenges-solutions#sdfootnote20sym

Now here's the article:

Design Challenges and Solutions for Service Animal Access under the 
ACAA: A Justificatory Guide for Regulators and Stakeholders

by Bradley W. Morris, MA, CPhil,
based on PSDP’s ACAA Committee discussions and collaborations through 
early March 2016

The Department of Justice’s (DOJ’s) Americans with Disabilities Act 
(ADA) regulations and guidance on service animal access have been 
refined through years of testing, wise consideration, and response to 
stakeholder input—they are the gold standard. So when other federal and 
state agencies are increasingly bringing their regs in line with DOJ’s, 
why should the Department of Transportation (DOT) do anything different 
with service animals and air travel?

The answer is they should only differ when it’s justified by the special 
nature of air travel. We’ll be navigating how and to what extent that 
special nature comes into play to untangle the unique design 
challenges—and practicable solutions—for a system of service animal 
access under the Air Carrier Access Act (ACAA). The stakeholders in this 
system are most clearly service animal users, trainers, prospective 
service animal users, air travel industries, and industry personnel, but 
also include all fellow air travelers that may find their journeys 
joined by a service animal team.

§1: The current state of things

What makes air travel access distinct from general public access for 
service animals includes these three considerations for air travel:

(1) some pets are allowed on board when people pay fees

(2) the environments of airports and cabins of airplanes in flight are 
more challenging than average for an animal (humans, too!)—including in 
terms of airport activity and stress, and airplane crowding and confinement

(3) gatekeepers (employees) are more in the position of actively 
verifying an animal’s status

The current system has some additional features that’ve fallen out of 
these considerations. While certain pets are allowed when people pay 
more, charging service animal users extra fees would be discriminatory. 
Because of this, people have a distinct financial incentive to claim 
their non-service animals as service animals—and this happens both 
intentionally or unintentionally.

In an unsuccessful attempt to discourage this abuse of reasonable 
accommodations, DOT allows extra, discriminatory requirements for people 
with mental health disabilities. These extra barriers—including 
paperwork-carrying1 and 48-hour prior disclosure2, which DOT admits is 
discriminatory3—certainly make it harder for those with psychiatric 
service dogs. Even worse, they provide a clear and well-traveled path 
for unsavory online business accomplices, whose m.o. is to sell medical 
certifications in a healthcare vacuum. This is not about assigning 
blame; we just have to face the ugly, messy state of things to 
understand what’s needed to improve.

If we’re speaking plainly about the online businesses, these 
rubber-stamping paperwork factories have created an air travel access 
pipeline for pet owners. Owners just have to be willing to tick a few 
boxes from the comfort of their home, lying to a faceless and 
unaccountable “healthcare provider” with whom they have no prior or 
subsequent relationship. The more frugal fakers may realize they can 
simply claim to have one of a number of non-psychiatric invisible 
disabilities, thus avoiding the cost of obtaining the paperwork.

Even some legitimate service animal users have been pushed by the 
current system to subsidize this kind of business. This often happens 
because many individuals’ genuine doctors are reluctant to sign anything 
at all they perceive as increasing their own liability. I have 
personally had such doctors and consequently been prevented from 
benefits I was owed from an insurance system I paid into.

So not only is the current service animal access system discriminatory, 
but it falls gravely short even on the goals it was specifically 
designed to achieve. If we want to come up with a smarter solution for 
air travel access, we should identify the particular design challenges. 
But we can’t proceed with unity and conviction until we map out some 
overall goals all stakeholders should agree on.

§2: Overall goals, including parity

It looks like the main goals that come into play for the various 
stakeholders are:

• Public safety through reasonable measures

• Fair and just disability access (mental health parity + no undue 
burden on disabled)

• Privacy of specific medical information

• Discouraging intentional and unintentional fraud

• Clarity and systematic ease of use for all parties

• Respect and liability reduction for airline and airport personnel as 
non-experts in disability access, animal behavior, and legal affairs

Many of these goals go hand in hand, which is promising if we want a 
system that fairly ties together everyone’s needs. When we recognize 
that hierarchical thinking about disability types isn’t just 
misdirected, but is unhelpful, we can see a fair system that discourages 
fraud will give every person with a disability the same privileges (and 
burdens) across the board.

If we’re going to treat people with disabilities the same, we either 
have to expand the paperwork and prior notification burdens to service 
animal users with non-psychiatric disabilities, or eliminate those 
burdens (possibly replacing them with something that makes more sense). 
As DOJ and other agencies have recognized, forcing those with 
disabilities to carry paperwork to access goods and services others can 
access without paperwork is discriminatory.4 The same reasoning applies 
to giving advanced notice.5 If there isn’t enough reason for those with 
non-psychiatric disabilities to give notice, there isn’t enough reason 
to require early notice from service animal users with mental health 
disabilities.

Since mental health parity was supposed to be gained last century, it 
looks like all disabilities should be treated the same for service 
animal access, now that we’re over a decade into this century. This 
makes it our overdue duty to eliminate the paperwork-carrying and prior 
notification requirements. On its own, this would leave us with 
something much more similar to the DOJ regs and guidance, wherein 
gatekeepers can only ask (1) whether it’s a service animal required for 
a disability, and (2) what work or tasks the animal’s trained to do (to 
assist with the disability).6

§3: Anti-fraud design challenges

But the burdens in the current system were enacted to prevent fraud. 
This was perceived as a problem so significant and perverse that DOT was 
willing to discriminate against those with certain disabilities in a 
misguided attempt to address it. What else can we do to discourage fraud 
and try to ensure public safety—while still avoiding undue burdens on 
people with disabilities?

We’ll get to that, but wait, there’s more! Another consideration here is 
that we cannot expect airline and airport employees to be experts in 
making all the determinations about whether it’s a service animal. 
Employees may have some training, but any system has to be easy for 
non-experts to implement. In the absence of obvious misbehavior, the 
burden should be on the handlers as to whether their animals meet the 
criteria for service animals, rather than on airline employees. 
“Credible verbal assurances”7 leaves a lot of room for interpretation.

Other important considerations here involve both intentional fraud and 
unintended misunderstandings. Some people will lie, cheat, and steal to 
get whatever they want, no matter the risk. The best we can do, then, is 
give the system enough teeth and clear enforcement paths so that it’s 
simply not worth the risk to the majority of prospective “fakers”. That 
way the punishment is large on the back end and only for violators, 
rather than small and for everyone up front.

But some well-meaning people simply don’t understand that their animals 
don’t qualify as service animals, whether it’s because they don’t have a 
disability or their animal isn’t sufficiently trained. Consequently, we 
can’t rely on jargon, but must use descriptive terms in plain language 
so there’s minimal confusion about what handlers are being asked to 
verify. We need to minimize the chances of unintentional violations.

So in our system for discouraging fraud, we want to:

• Avoid undue burdens on people with disabilities, such as 
paperwork-carrying or notification requirements

• Relieve some of the burden from airline employees, not requiring them 
to be expert assessors

• Allow obvious, ongoing misbehavior of an animal to overrule any 
initial handler verifications

• Give the system teeth to make lying not worth it

• Use descriptive terms rather than jargon to avoid misunderstandings 
(hint: avoid “Is that a service animal?”)

§4: Anti-fraud solution

One way to meet these anti-fraud goals is for airline ticket counters 
and gate/boarding desks to stock and use a form. The form would be for 
handlers representing their animals as service animals; they would 
complete and turn in the form for flight access/accommodations with the 
animal. Airlines would then have a record they could file (signed by the 
handler and the form-accepting employee), and people with disabilities 
would not have to carry the completed form for access. The form would 
state the steep penalties for knowingly telling falsehoods on it, and 
handlers would simply have to check the boxes next to the jargonless 
descriptions that apply to them and their animals.

This is not a free pass. This is a special application of the DOJ 
questioning system for this unique context. Handlers would not be asked 
to reveal any private medical information, such as whether they have a 
mental illness. In essence, they are just asked whether they have a 
service animal through the component aspects of what that means, but 
they’re “on the record” rather than just answering verbally. They also 
can’t shift any blame onto anyone else for their black and white 
answers—and airline employees don’t have to rely on personal judgment 
about anyone’s verbal answers.

Just like with the DOJ system for public access, blatantly disruptive 
behavior removes the accommodation, regardless of whether the animal is 
a well-behaved service animal in other contexts. Depending on the 
particular situation, the consequences can vary from being charged the 
pet fee for that flight (and any up to a month later) to much more 
serious and formal repercussions for fraudulently filling out the form.

§5: Species restrictions

Here it’s appropriate to bring up what species are suitable as service 
animals in the sky. Again, the DOJ reasoning is the respected authority 
with plenty of transparently argued guidance, so the only reason to 
depart from it is when the special context gives us reason to.

The latest DOJ rules have restricted service animals to dogs, with some 
special exceptions for miniature horses. This DOJ restriction (from 
allowing most domesticated animals) arose because there were 
consequences DOJ didn’t anticipate with the earlier phrasing, but then 
wanted to prevent once problems developed. There were safety concerns 
with some species, such as capuchin monkeys, but overall the problem was 
that people were taking out untrained pets of all species as service 
animals. The restriction mainly to dogs was designed to ratchet down the 
intentional and unintentional “faking” that was especially prevalent 
among handlers of these other species, making the whole service animal 
community subject to ridicule.

It looks like the same reasons DOJ had for increased species 
restrictions have only been magnified in the context of air travel. The 
collection of “colorful stories” has continued to grow.8 This means it’s 
high time for DOT to restrict these other species from being considered 
service animals for airline access, which fences the field down to dogs 
and miniature horses.

Conversations with our horse-owning leaders and research into guide 
horses reveal that some miniature horses are able to be trained to 
signal a short time before they need to eliminate, which means they are 
able to ride in taxis, busses, and subways without incident. However, 
they are not able to go for long periods of time without eliminating, 
and you can’t maintain their health while withholding/restricting water 
and food from them before traveling, as handlers often do for long 
flights with service dogs.

Consequently, we have not lassoed miniature horses as an acceptable 
service animal species in this context, leaving dogs as the only animals 
that qualify as service animals for air travel. Of course, airlines 
would remain free and encouraged to make their own exceptions on a 
case-by-case basis, allowing for those reasonable accommodations too 
specific to detail in regulations.

§6: Training standards

This leads us to another salient question: what is the training standard 
for service animals (dogs)? This splits into two types of training: 
public access training and disability mitigation (assistance) training.

Public access training is training the dog in various environments to 
the point at which the dog is reliably safe, non-disruptive, and 
well-behaved in novel situations. We certainly assume this includes 
housetraining, for its absence would be disruptive.

A common initial thought is that requiring certification would solve all 
the problems, but as DOJ has found, specific certifications or 
registrations do not demonstrate that the dog is or will be well-behaved 
in the environment.9 Additionally, requiring handlers to acquire and 
carry such paperwork would present undue burdens on those with 
disabilities.10,11 The best overall approach seems to consist of 
striving for clarity on the form (and an accompanying guidance brief) as 
to the level of expected training.

This does not involve getting government bureaucracy into the business 
of dog training. Instead, the handler is asked outright on the form to 
attest that the dog has undergone training in various environments so 
it’s reasonable to expect the dog to behave at the airport and on the 
airplane. The handler is directly responsible for the reliability of the 
dog’s training, and not anyone else.

Of course, some people may be willing to interpret whatever question is 
asked about public access training in a much looser way than is desired. 
There is another layer to this cake that both aligns the requirements 
more with DOJ’s and conveys that the bar for service dog access is not 
so low that a barely trained pet would qualify.

This other aspect follows the standard DOJ recipe in requiring that 
service dogs be trained to do work or tasks to mitigate the person’s 
disability. This means the dog has to actually recognize and respond 
reliably to a command, or to a change in the person or environment, in a 
way that helps relieve symptoms or negative effects of their 
disability—it cannot be that the mere untrained presence of the dog 
makes the person feel better. This is another blindspot that has been 
exploited in the current system. When people don’t have to take 
disability-mitigation training seriously, as a practical matter it seems 
they also do not take public access training seriously.

§7: Emotional support animals unsupported

One consequence of this proposed disability-mitigation training 
requirement is that emotional support animals (ESAs) would no longer be 
allowed. This is in contrast with psychiatric service dogs, which do 
perform disability-mitigating work or tasks for psychiatric disabilities 
and are public access trained. We believe it’s an accident that ESAs 
were given ACAA access in the first place. This accident seems to have 
resulted from DOT co-opting a HUD term and confusingly giving it a 
significantly different meaning—in a way no one noticed.

Historically, ESAs were created in FHAct regulations as part of the 
protected general class of “assistance animals” with access rights in 
no-pet housing.12 They did not need to be trained for public access 
because they only had housing access rights, unlike service animals that 
accompany their disabled users in public.13 There are other, mildly 
arcane considerations, but as long as their mere presence helps someone 
with a disability, they’re basically covered for housing.

Later—and clearly with good intentions—DOT allowed access for what 
sounded an awful lot like HUD’s ESAs (without using that full name), but 
DOT oddly assumed these animals would be public access trained.14 Some 
years following this, DOT started using the terms others were using: 
ESAs and psychiatric service dogs/animals. Confusingly, DOT continued to 
assume that the animals they were now calling ESAs (like HUD) were 
public access trained (unlike with HUD).15

DOT further added to the frustration of advocates in this arena. In 
spite of DOT itself at least having distinguished between psychiatric 
service dogs and ESAs on the basis of ESAs not being work or task 
trained, DOT remained reluctant to treat the categories differently from 
one another. This did not stop DOT from treating access for their 
handlers differently from that of non-psychiatric service animals’ 
handlers. Advocates even petitioned DOT regarding this in 2009, but the 
education efforts and pleas went nowhere at the time.16

We believe DOT is practically the only party aware that “DOT-ESAs” are 
expected to be public access trained, unlike “HUD-ESAs”. We do not 
believe this pervasive ignorance is likely to change, nor do we imagine 
it would be helpful to even try to start bifurcating this term in the 
public consciousness into two technical meanings. When this difference 
is brought to light among experts, it does seem strange to expect 
animals to be public access trained if their only experiences in no-pet 
places are in the advanced environments of airports and airplanes. 
Contrast this with the intense and lengthy public access training and 
everyday outings of service dogs!

Eliminating ESA access in flights would resolve the longstanding 
confusion, leaving untrained ESA access to housing only. Then it would 
be only users of trained service dogs that have mandated access to 
spaces that appropriately require public access training. Just like 
mixing up established jargon, a contrary system just doesn’t work out in 
practice!

§8: Reasonable and valuable accommodation extensions: deliveries and SDITs

While untrained ESAs don’t merit public access rights, there are two 
exceptional other categories where it is reasonable to grant access 
rights. In each case, the dog is public access trained to the point at 
which it’s expected to behave in airports and aircraft, and access would 
be an indirect—albeit reasonable—accommodation for a person with a 
disability.

Since service dog training programs are often hundreds or even thousands 
of miles from the recipients, it is occasionally optimal for a trainer 
to fly with a trained dog for both delivery to and local training with 
the recipient. Accommodating such a dog trainer/trained dog pair for one 
trip is a reasonable and valuable extension of the accommodations given 
directly to those with disabilities.

The other exceptional category involves advanced service dogs in 
training. Service dog public access training must increase incrementally 
if the dog is to graduate as a service dog. A dog may not yet be ready 
to graduate either due to the need for more public access training that 
does not bear on the dog behaving during air travel, or due simply to 
the fact that the service dog in training is still being trained to 
perform work or tasks.

If either of these is the case and the dog is expected to behave in the 
air travel environments, this is another reasonable and valuable 
extension of the usual accommodations. This allows advanced dogs to 
train specifically to airport and airplane conditions, rather than just 
training in similar environments, graduating, and then being thrown into 
such an environment and possibly (and avoidably) becoming an unexpected 
washout after great investment and expectations.

§9: Airport access (vs. airplane access)

One final design challenge pertains to what’s needed for airport 
access,17 as opposed to flight access.

Airlines would be strongly encouraged to note “service dog” on the 
person’s tickets to signify when the access form has been successfully 
completed and filed, and to prevent agents from iteratively requiring 
form completion on multiple legs of the same flight. As we covered 
above, handlers cannot be expected to carry paperwork for access, and 
some may even use an automated check-in, bypassing the first opportunity 
to complete the form. So if we can’t rely on paperwork for access and 
accommodations outside of the airplane, how should access work in these 
places?

This is where DOJ-style questions are appropriate. However, with the 
nuances we’ve justified above, those exact questions don’t include the 
variety of teams that would have airport access. Instead, when it is not 
clear to an employee whether the person and dog constitute a service dog 
team (or some acceptable extension), the employee may ask two questions:

(1) Is this dog trained to behave in airports?

(2) Is this dog trained or training to assist with an individual’s 
disability?

These are a short mashup of the questions on the form, constructed 
specifically for airport access. They get to the heart of the matter, 
and just like with the form, clear and ongoing misbehavior are grounds 
for revoking accommodations in a way proportional to the situation.

§10: Terms of success

While not especially short, this article is still a mere distillation of 
many hours of intense discussion within PSDP’s ACAA committee and 
through collaboration with other stakeholder groups. Here we’ve covered 
a breadth of the main design challenges for service animal access in air 
travel, and outlined a system we hope meets these unique challenges and 
the universal stakeholder goals in the best way practicable. We don’t 
believe everyone will be happy with each aspect of our proposal, but 
we’ll count success in terms of the degree to which others see our 
system as the best-justified way to construct the puzzle using all the 
roughly contoured pieces on the table.

To see the system practically fleshed out, please consult our three-page 
proposal; the latest updates will be reflected in the version on our 
website. The proposal currently consists of a one-page form and a 
two-page guidance brief.

ADDENDUM

—3/18/16—

After consulting with several national disability advocacy groups, we 
learned of some key (non-supportive) positions individuals could take in 
response to the proposed form. This is not to say that each position has 
an actual supporter!

This addendum is an attempt to prevent or fix potential 
misunderstandings, and to respond to those positions that may otherwise 
have unhappy results. Here’s an index as a heads-up:

§A1: Ounce of prevention

§A2: Addressing fraud denial

§A3: Eliminating ESA access is not discriminatory

§A4: Where “losing” is winning for service dog users

§A5: No technical loss for the disability community

§A6: This is not a zero-sum game

§A1: Ounce of prevention

First we’ll look at a worrisome way of thinking we encountered. This way 
of thinking isn’t so bad for normal public access situations, but is not 
so great for the captive audience of airplane passengers.

Some seem to think that the current system of enforcement is fine 
(excluding the non-discriminatory bits). In this way of thinking, it 
would be okay just to have the DOJ-style questions and allow ESAs.18 It 
would thus be okay not to actively discourage handlers of inadequately 
trained animals and “fakers” from boarding a plane, because there are 
remedies if an animal bites someone or causes some other severe disturbance.

In an everyday store on the ground, there’s at least the possibility of 
having the dog leave if things are starting to go badly. Doggie 
parachutes are not an analogous option for misbehavior on aircraft, though!

This is part of why we believe that in the special context of flying, an 
ounce of prevention is worth a pound of cure. You may agree with this 
reasoning or not, but you don’t have to be part of the service dog 
community to think of it. In contrast, an experienced service dog 
handler might have some frightening “insider information”, enabling the 
sober realizations that follow.

When a service animal is attacked or its training is otherwise ruined by 
another animal, it may have to retire early. This happened to the second 
service dog of one of our board members. Her investment in years of 
training and thousands of dollars was ruined when he was attacked 
multiple times by an untrained pet.

Allowing this egregious irresponsibility can rob people with 
disabilities of their independence and integration in society. It can 
take years and financial strain to get another service dog unexpectedly. 
This is not something we want to risk to allow an increasing number of 
people to fly openly with their pet/ESA, when they apparently don’t need 
the pet in the rest of their public life.

We are certainly not opposed to individuals choosing to mitigate their 
disabilities—that is not independently in question. The fact remains, 
though, that this must be done in a reasonable manner.

A gas-powered wheelchair may help a mobility-impaired person get around, 
but that doesn’t automatically make it a reasonable accommodation 
indoors. In a similar vein, “Segway”-style devices may be excellent 
mobility aids for some—but if it isn’t needed for a disability, a 
business has no ethical or legal obligation to accommodate. We also 
think it’s likely there are safe, reasonable medical remedies available 
to the flying-phobic other than their untrained pets.

If our form can institute and clarify the requirements and penalties19, 
it may significantly lower the chances of traumatic incidents that would 
cause a service dog to retire early. Yes, the form is a small burden. So 
is ever having to answer the DOJ-style questions. But filling out the 
form is merely a focused version of answering those questions for the 
flying context, and it’s in black and white to suit this context. So 
it’s a burden, but not an undue burden.

As we’ve said, an ounce of prevention is worth a pound of cure. Maybe 
it’s because of this that 95.5% of our community mostly or completely 
supports our proposal. Whatever the reason, it looks like there is 
overwhelming support within a subset of the disability community to whom 
the proposal directly applies. If the form appears to 
non-service-dog-users like a burden we wouldn’t want, I hope a closer 
look—and certainly the voices of those affected—would relieve them of 
that impression.

§A2: Addressing fraud denial

Our access form was designed primarily as a replacement for the current, 
discriminatory system DOT put in place to prevent fraud. In the absence 
of this form, our proposal would be very similar to just having a DOJ 
style of questioning.

We found several disability advocacy groups highly suspicious that fraud 
exists to a degree justifying a counter-measure. So these groups tended 
to want a DOJ-style questioning, with no special 48-hour notice, 
doctor’s letter, or our form. The reasoning below in this section is 
intended to address this permissive approach, as we believe it does not 
respect the practical reality of the situation.20

Either there is significant fraud that merits a deterrent, or there isn’t.

If there is (or would be) significant fraud that calls for a deterrent, 
we need something to replace the current deterrent system. Our access 
form is a prime candidate.

If there isn’t, then a DOJ questioning system might be alright. However, 
this assumes that having just a DOJ questioning system itself would not 
lead to significant fraud. This assumption deserves inspection, but I’ll 
leave that to the reader.

Now for the practical reality, for those who deny there’s significant 
fraud. If anyone wants to try to convince DOT and industry groups that 
there wouldn’t be fraud with a DOJ questioning system, I wish you thick 
skin and safe travels! Not only am I not sure how you would substantiate 
this view,21 but from the Reg Neg objectives22 and their historical 
trajectory, they seem absolutely determined to do something to address 
the actual or perceived fraud.

That’s why we (PSDP) must persist in making available the best something 
to meet the design challenges, respecting everyone’s interests as much 
as we can.

We don’t believe we have “a solution in search of a problem”. We have 
ourselves seen and heard of harmful fraud, which is more likely to be 
harmful and so noticed when our community members are present with their 
canine partners (seeing another dog brings a pet’s/ESA’s lack of 
training to the surface). We strive to be proactive here because in a 
vacuum, we know not what devilish system might replace the current one.

§A3: Eliminating ESA access is not discriminatory

It was difficult for me to discern exactly whether any individuals 
believed that eliminating ESA access would be discriminatory, but there 
were indications in our discussions that this is another avenue for 
misunderstanding.

I must assume no one objects to thinking that public access training is 
a reasonable requirement for public access in no-pet places. This is 
training that makes good behavior reliable and obscenely bad behavior 
out of the question. DOT has explicitly assumed this requirement (see §7 
above), and without this assumption, it is quite difficult to reach 
common ground. Since ESAs aren’t public access trained as a practical 
matter, we struggle to understand the desire to preserve ESA access.

Some individuals may be under the impression that eliminating ESA access 
would discriminate against one type of disability. We did not anticipate 
this impression, because—being fundamentally wrong in our view—this 
notion is foreign to us. I’ll explain why it’s not true.

Imagine there were a type of service dog for every type of disability. 
Eliminating ESA access would not eliminate access for any such type of 
service dog. So there is no disability against which ESA access 
elimination would discriminate.

People with psychiatric service dogs in training often obtain housing 
access for their dog as an ESA. Our community tends to think of it as:

ESA + public access training + disability mitigation training = 
psychiatric service dog

If you switch this formula around, an ESA is a psychiatric service dog 
without training.23 Some members of the psychiatric service dog 
community have actually viewed ESA access as 
psychiatric-service-dog-in-training access for owner-trainers. This 
means that the lack of access for other types of service dogs in 
training would appear to discriminate against those whose disabilities 
cannot be mitigated by ESAs. This turns the situation on its head, but 
we’d wander too far to pursue this further here.

So under our proposal, people (with or without disabilities) would not 
have unfettered public access with their untrained animals. However, if 
someone’s disability is so severe that they need the services of a 
service dog, if they engage in public access training and disability 
mitigation training like those with service dogs, they can have one.

This means that type of disability has nothing to do with eliminating 
ESA access. It’s primarily about public safety, and secondarily about 
fraud prevention. DOJ has clarified that ESAs don’t have public access 
rights elsewhere, and as I detail in §7 above, it’s largely an 
historical accident that people think their untrained housing-access 
ESAs are also flying-access ESAs.

§A4: Where “losing” is winning for service dog users

Many general disability advocacy groups—those not specifically tuned to 
the needs and desires of service dog users—are under the distinct 
impression that any “loss” of part of the disability-related system is 
worse for the side of disability rights. This mindset doesn’t mesh with 
the mild complexity of the situation

If we dare to speak on behalf of responsible service dog users, the 
access “rights” involving animals of various species that are not public 
access trained are access “wrongs”. This tends to be the case with 
emotional support animals, which cannot be expected to have been 
extensively trained in no-pets places when they don’t even have access 
rights outside of housing and flying. When these animals poorly behave 
and their use grows, it negatively affects the reputation and level of 
safety for respectable service dog teams. The permissiveness of the 
current system is disrespectful to those who value the safety and 
unhindered access of well-trained teams.

Jefferson memorial quotation, in footnote 24So this is a case where 
cutting out part of the current ACAA system tied to disability rights 
would improve the situation. To see this, we must take care not to 
fasten ourselves to the past. We must not insist on general principle 
that a former (apparent) gain for disability rights must not be 
lost—even when we learn it was not a gain after all.24 This approach 
would railroad our thinking. We’d miss the fact that ESA access on 
planes wasn’t a gain overall in the first place for the disability 
community, and in particular for service animal users.

We can sum it up for the general disability rights advocates like this. 
If the reaper comes for ESA ACAA access, don’t fear the reaper. And if 
you’re worried about negotiating in a traditional, zero-sum game manner 
(see §A6 below) for the disability rights “side”, feel free to treat 
losing this access as a loss the other side can then be pushed to offset 
elsewhere. Perhaps this is a means by which you can join us in arguing 
for mandated access for trained service dog delivery and advanced 
service dog in training development. If you can’t join us on these 
points, at least don’t rise up to oppose us when we service dog groups 
self-advocate and fight against access wrongs!

§A5: No technical loss for the disability community

We’ve seen that eliminating ESA access isn’t discriminatory (§A3) and is 
better for service animal users (§A4), and that our proposal would 
valuably increase access for other categories (§8). But you might think 
it’s still an overall loss for the disability community, in virtue of 
thinking that there are ESA teams that now have access that would not 
have access under our proposal. We’re not even sure that’s the case!

What our proposal technically does is eliminate access for the elusive 
“DOT-ESA”, which is somehow public access trained (see §7 above). 
Untrained “HUD-ESAs” never technically had access in the first place. 
Any attempt to expand mandated access to HUD-ESAs would qualify as 
trying to increase access, rather than defending existing 
rights—regardless of whether individuals are currently acting as if 
their HUD-ESAs already have access rights.

It seems highly unlikely that DOT-ESAs exist. That is, that there are 
animals whose mere presence is the only disability-mitigating factor, 
but who have been extensively public access trained in various 
environments. It would be strange to think they would be public access 
trained, because DOJ doesn’t grant them access rights in any no-pets 
places. If DOT-ESAs do not exist, then there is no actual ESA team that 
technically has access now that would not have access under our proposal.

If the mythical DOT-ESA does exist, then we believe the training efforts 
and knowledge that went into the animal’s extensive public access 
training could be easily channeled into teaching the animal a simple, 
disability-mitigating work or task item. That is the salient threshold 
between a DOT-ESA and a (DOJ) service animal, and it is not a 
particularly onerous step, as the public access training is the hard part.

Our proposal also contains a restriction of the species given access: 
dogs only. There are independent justifications in §5, but we also find 
justification in light of the issues we’re discussing here, as follows. 
Miniature horses are exceptional and covered in §5.

Non-canine ESAs are highly unlikely to be public access trained, both 
because of the limitations of many species, and because DOJ does not 
grant them public access. An animal that is not allowed public access in 
normal circumstances cannot be expected to be reliably trained to behave 
in public environments that are more challenging than normal.

All of this means that eliminating DOT-ESA access is not likely to 
eliminate access for any team that previously had access. Of course, the 
practical reality is that HUD-ESAs are wrongly being granted access 
under the current system, due to misunderstandings. We believe there 
should be no room for this kind of misunderstanding in the future.

§A6: This is not a zero-sum game

A “zero-sum game” is a situation in which there’s a discrete amount of 
something, and the more someone else in the game gets, the less you get 
(and vice versa). Real life situations are rarely like a zero-sum game 
overall. Even when it seems like they are, we can see other approaches 
if we are able to think creatively.

It helps to realize that one party’s benefit is not necessarily the 
detriment of another. This is why limiting your thinking in terms of 
zero-sum games can be destructive: if you only think in terms of “us vs. 
them”, you can miss opportunities to create systems that bring interests 
together to benefit everyone.

Our proposal is justified by both disability-based stakeholder 
considerations and industry-based ones, and that is on purpose. As it 
turns out though, even if you ignore all industry-based considerations, 
the others are independently enough to justify our proposal with 
practical reasoning. We did not need to compromise or otherwise give 
concessions to accommodate industry needs, because like most situations, 
this is not a zero-sum game!

ADDENDUM 2

—5/1/16—

Our proposal expands access for advanced service dogs in training and 
for the delivery of service dogs. However, we have encountered some 
resistance when it comes to our proposition that ESA flight access 
should be eliminated.

We’ve argued for our position and addressed some specific concerns in 
the guide to our proposal and its first addendum, but there remains a 
particularly heartfelt objection. A couple of people who use psychiatric 
service dogs, not ESAs, have enthusiastically voiced that flying is 
especially challenging for some people, and that it is unjust to deprive 
these people of their ESAs if those animals provide comfort to them.

Our hearts have always been sympathetic to this sentiment. Let’s honor 
it by giving the argument its most distilled form. This way we can 
address the strongest possible version of this objection to ESA access 
elimination.

§A2.1: Considerations beyond disability mitigation

We’ll focus on the kind of situation in which people have a disabling 
psychiatric condition—one that significantly limits one or more major 
life functions, not just one where someone experiences mild discomfort. 
Add to this that the mere presence of a pet mitigates the disabling 
psychiatric condition, enabling them to fly without chance of a 
significant medical incident.

At first glance, it might seem like anything that helps people engage in 
the world despite their disabilities would be a good thing, and 
following this, that ESA access should be mandated for flights because 
flying is a particularly challenging and stressful situation for some 
people. However, there are considerations that exist outside of whether 
an individual’s disability is mitigated. For instance, we would not 
allow someone to fly with a gun just because it made them feel safe and 
kept flashbacks at bay!

§A2.2: Training for health and safety

We have pushed for two types of training requirements to address the 
health and safety of the public and the dog. This training includes 
extensive public access training in various environments that ESAs don’t 
have access to, and disability mitigation training as a threshold 
indicator for the seriousness of the public access training. Details are 
in §6, where we’ve noted that “When people don’t have to take 
disability-mitigation training seriously, as a practical matter it seems 
they also do not take public access training seriously.”

We aren’t creating this on our own from nothing: the Department of 
Justice expects this training in service animals. We are simply 
following their lead and agreeing with the authority’s reasoning.

§A2.3: Parity of reasoning: untoward consequences

So what would be the consequences if we follow the contrary reasoning of 
those who object to our proposal’s ESA flight access elimination?

Let’s imagine we believed that the need for the dog to be trained for 
public access—to respect the dog’s and public’s health and safety—were 
outweighed whenever the situation were particularly challenging or 
stressful. To be consistent, this pattern of reasoning would obligate us 
to want ESA access in many other situations.

For instance, some people have panic attacks or dissociate when in large 
crowds or around loud sounds or music. For these people, these 
situations are particularly challenging or stressful, so by parity of 
reasoning, they should be allowed to take their untrained ESAs with them 
into such no-pet places.

 From our perspective, these situations that are more likely to be 
difficult for people are more likely to be difficult for dogs. These are 
situations with an even greater need for public access training! If the 
person is more stressed, they are also less likely to be able to control 
an untrained dog, which makes the training even more necessary.

§A2.4: Ensuring safety and respect without luck

It is unfair to the dog for it to be thrown into a stressful situation 
without extensive prep work. Service dogs undergo 1–3 years of public 
access training to incrementally build up to handling unexpected and 
otherwise very stressful situations. This ensures the dog has 
psychological shock absorbers and can stably do its job while remaining 
healthy and safe. Many dog owners are not even familiar with the signs 
of stress in a dog, and must be educated about this to accurately read 
their dogs’ reactions.

Similarly, it is disrespectful to the public to take a dog into 
stressful situations without the extensive, purposive-driven training 
needed to create these psychological shock absorbers. Dogs are more 
likely to misbehave—or even present an aggression-based danger—when 
stressed.

Dogs without "shock absorbers" may be lucky…but reasonable accommodation 
isn't about being lucky.Dogs without “shock absorbers” may be lucky and 
not encounter any “bumpy roads” that would cause a problem, but 
reasonable accommodation isn’t about being lucky. Reasonable 
accommodation is about disability mitigation with an assurance of public 
safety and respect, even if you’re not so lucky.

This is why the Department of Justice doesn’t mandate access for 
untrained ESAs in no-pets places. Just as it isn’t reasonable to mandate 
access for someone with an untrained dog at an indoor rock concert just 
because the situation would otherwise aggravate the person’s disability, 
it doesn’t make sense to require ESA access for flying.

§A2.5: On public access training and HUD-ESAs vs. DOT-ESAs

As noted in §§7 and A5, the Department of Transportation expects what we 
call “DOT-ESAs” to be public access trained, even though “HUD-ESAs” 
predate them25 and are not expected to be public access trained. We 
earlier elaborated why it is not reasonable to expect DOT-ESAs to be 
public access trained. In addition to the terminological discrepancy 
between agencies, this includes especially that they don’t have access 
to any no-pets places in which to undergo the extensive training needed 
for reliable public access behavior. See the previous sections for more 
details.

1 
https://www.federalregister.gov/articles/2008/05/13/08-1228/nondiscrimination-on-the-basis-of-disability-in-air-travel#h-90

2 
https://www.federalregister.gov/articles/2008/05/13/08-1228/nondiscrimination-on-the-basis-of-disability-in-air-travel#h-57

3 “While it is always a good idea for passengers and carriers to 
communicate about accommodations as early as possible, the Department’s 
ACAA regulations and nondiscrimination policies have discouraged advance 
notice policies as an undue limitation of the ability of passengers with 
disabilities to travel freely and without discrimination.” 
https://www.federalregister.gov/articles/2008/05/13/08-1228/nondiscrimination-on-the-basis-of-disability-in-air-travel#h-24

4 See “Inquiries about services animals.” 
http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=1fcb95e0991fa49ff719bbe362cdddc1&ty=HTML&h=L&r=APPENDIX&n=28y1.0.1.1.36.7.32.3.11

5 See footnote 3 to reference DOT claiming prior notice requirements are 
discriminatory.

6 See Q7. http://www.ada.gov/regs2010/service_animal_qa.pdf

7 “These five steps can help one determine whether an animal is a 
service animal or a pet: 1. Obtain credible verbal assurances[…]” 
https://www.federalregister.gov/articles/2008/05/13/08-1228/nondiscrimination-on-the-basis-of-disability-in-air-travel#h-109

8 DOT downplayed this in 2008, when the problem may be been smaller: 
“Because they make for colorful stories, accounts of unusual service 
animals have received publicity wholly disproportionate to their 
frequency or importance. Some (e.g., tales of service snakes, which grow 
larger with each retelling) have become the stuff of urban legends.” 
https://www.federalregister.gov/articles/2008/05/13/08-1228/nondiscrimination-on-the-basis-of-disability-in-air-travel#h-36

9 See Q17 http://www.ada.gov/regs2010/service_animal_qa.pdf and 
“Training requirement.” 
http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=1fcb95e0991fa49ff719bbe362cdddc1&ty=HTML&h=L&r=APPENDIX&n=28y1.0.1.1.36.7.32.3.11

10 See “Inquiries about services animals.” 
http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=1fcb95e0991fa49ff719bbe362cdddc1&ty=HTML&h=L&r=APPENDIX&n=28y1.0.1.1.36.7.32.3.11

11 As DOT notes, “Under U.S. law (the ADA as well as the ACAA), it is 
generally not permissible to insist on written credentials for an animal 
as a condition for treating it as a service animal.” 
https://www.federalregister.gov/articles/2008/05/13/08-1228/nondiscrimination-on-the-basis-of-disability-in-air-travel#h-36

12 “The Fair Housing Act and HUD’s Section 504 regulations govern the 
use of animals needed as a reasonable accommodation in housing. HUD’s 
regulations and policies pertaining to reasonable accommodation were 
constructed specifically to address housing and, furthermore, were 
enacted prior to the development and implementation of the ADA 
regulations. Thus, the requirements for assistance/service animals must 
be evaluated in the appropriate context of housing, and are independent 
of the ADA regulations that were formulated to meet the needs of persons 
with disabilities in a different context and were adopted subsequent to 
HUD’s regulations.” 
https://www.federalregister.gov/articles/2008/10/27/E8-25474/pet-ownership-for-the-elderly-and-persons-with-disabilities

13 “There is a valid distinction between the functions animals provide 
to persons with disabilities in the public arena, i.e., performing tasks 
enabling individuals to use public services and public accommodations, 
as compared to how an assistance animal might be used in the home. For 
example, emotional support animals provide very private functions for 
persons with mental and emotional disabilities. Specifically, emotional 
support animals by their very nature, and without training, may relieve 
depression and anxiety, and help reduce stress-induced pain in persons 
with certain medical conditions affected by stress. Conversely, persons 
with disabilities who use emotional support animals may not need to take 
them into public spaces covered by the ADA.” (ibid.)

14 In 1996, DOT mandated access (with restrictions) for animals that (1) 
provided emotional support to a person with a disability, (2) were not 
necessarily trained to do work or tasks, and (3) were trained for public 
access. DOT did not call them “emotional support animals” (ESAs) at the 
time. See p. 56421 of this federal register entry: 
https://www.federalregister.gov/articles/2008/05/13/08-1228/nondiscrimination-on-the-basis-of-disability-in-air-travel#h-10

By 2003, DOT had begun calling these animals ESAs.

15 “Of course, like any service animal that a passenger wishes to bring 
into the cabin, an emotional support animal must be trained to behave 
properly in a public setting.” 
https://www.federalregister.gov/articles/2008/05/13/08-1228/nondiscrimination-on-the-basis-of-disability-in-air-travel#h-36

16 Our predecessor, Psychiatric Service Dog Society, filed a petition in 
2009 in an attempt to end the discriminatory regulations. Rather than 
relying on the articulations of the experts, DOT dithered by seizing on 
the less articulate personal comments of some individual advocates. 
https://www.federalregister.gov/articles/2009/09/18/E9-21351/nondiscrimination-on-the-basis-of-disability-in-air-travel

17 The question of which laws govern accessibility in airports has a 
complicated answer. See p. 56417–8 of the federal register entry linked 
below for a start. For our purposes, we will assume the simple view that 
ACAA regulations can govern all airport accessibility for service animal 
handlers. 
https://www.federalregister.gov/articles/2008/05/13/08-1228/nondiscrimination-on-the-basis-of-disability-in-air-travel#h-10

18 When we talk about ESA access or service dog access, this is 
shorthand. It is the person with the disability that has access with the 
animal (or doesn’t). The animal does not have access on its own, or with 
someone else (generally).

19 In case it isn’t clear, we are not committed to specific penalties, 
nor are we suggesting that the slightest misbehavior of a legitimate 
service dog is grounds for a penalty. We are largely concerned that the 
penalties are scary enough to discourage most people from lying, and 
that the repercussions are clearly advertised so that they will in fact 
do that discouraging. Some worry the penalties will be incorrectly 
applied to a service dog that’s just having a bad day. Employees tend to 
be excessively permissive when it comes to service dogs, so we do not 
share this worry. The sort of behavior that merits action is the sort of 
behavior that a well-trained service dog would be expected never to 
engage in—even on a bad day.

20 I assume here that since the current deterrent system—48-hour notice 
and a doctor’s letter—violates mental health parity, we have to get rid 
of it.

21 Don’t expect there to be survey data wherein you get a realistic feel 
for how much fraud there is!

22 “Specifically, the Department is exploring a Reg Neg to…Establish 
safeguards to reduce the likelihood that passengers wishing to travel 
with their pets will be able to falsely claim that their pets are 
service animals” 
http://www.regulations.gov/#!documentDetail;D=DOT-OST-2015-0246-0001

23 Technically—interpreting the exact HUD wording—an ESA could be for a 
non-psychiatric disability. For example, the emotional support of an ESA 
could lower the blood pressure of someone with a disabling heart 
condition, or could keep non-disabling depression at bay for a disabled 
cancer patient. “An assistance animal is…an animal that works, provides 
assistance, or performs tasks for the benefit of a person with a 
disability, or provides emotional support that alleviates one or more 
identified symptoms or effects of a person’s disability.” 
https://www.animallaw.info/sites/default/files/FHEO_notice_assistance_animals2013.pdf

24 This sentiment is explained through a quotation chiseled into the 
Jefferson Memorial in Washington, DC (pictured above):

I am not an advocate for frequent changes in laws and constitutions. But 
laws and institutions must go hand in hand with the progress of the 
human mind. As that becomes more developed, more enlightened, as new 
discoveries are made, new truths discovered and manners and opinions 
change, with the change of circumstances, institutions must advance also 
to keep pace with the times. We might as well require a man to wear 
still the coat which fitted him when a boy as civilized society to 
remain ever under the regimen of their barbarous ancestors.

25 Case law regarding ESAs in housing under Section 504 of the 
Rehabilitation Act dates back at least to 1981, with Majors v. Housing 
Authority of the County of DeKalb Georgia (652 F.2d 454, under the 5th 
Circuit US Court of Appeals). 
https://www.animallaw.info/case/majors-v-housing-authority-county-dekalb-georgia

End of pasted text

Tami