August 3, 2018
Ms. Blane Workie
Assistant General Counsel, Office of Aviation Enforcement and Proceedings
U.S. Department of Transportation
1200 New Jersey Ave, SE
Washington, DC 20590
Re: Interim Statement of Enforcement Priorities, Nondiscrimination on the Basis of
Disability in Air Travel
Dear Counsel Workie:
I write on behalf of the National Council on Disability (NCD) – an independent, nonpartisan federal agency charged with providing advice to the President, Congress and federal agencies on matters affecting the lives of people with disabilities – to convey NCD’s concerns regarding the Department of Transportation’s (DOT) plan to indefinitely suspend enforcement of certain disability discrimination claims regarding psychiatric service animals (PSAs) and emotional support animals (ESAs).
In the Interim Statement of Enforcement Priorities (Interim Statement), DOT states that since the topic of service animals is the topic of an open rulemaking, it plans to suspend enforcement actions against airlines for requiring proof of vaccinations, training or behavior for PSAs or ESAs for an undetermined period– despite the fact Congress did not give DOT discretion to refuse to enforce an entire class of complaints. Further, the additional proof insisted upon by airlines is not legal under the ACAA regulation.
DOT asserts in the Interim Statement that it “has the authority to pursue or not to pursue enforcement action against airlines for not complying with the ACAA or the Department’s implementing regulation.” This is incorrect. The plain language of the ACAA mandates that DOT investigate each complaint of a violation alleging disability discrimination when a reasonable ground appears for investigation. If that investigation reveals a violation of the ACAA, DOT “shall issue an order to compel compliance.”
The ACAA regulation currently permits airlines to impose proof requirements on persons traveling with PSAs and ESAs that are not imposed on the owners of other service animals. Namely, airlines may require recent documentation by a licensed mental health professional stating that the passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders IV (DSM–IV) and that the passenger needs the animal for air travel or activity at the passenger’s destination. Airlines may also require 48 hours advance notice that a passenger will be travelling with a PSA or ESA, and require check-in one hour before the check-in time for the general public as a condition for travel. These regulatory requirements were developed as a way for airlines to assess documents to determine whether an animal is, in fact, a PSA or ESA. Airlines cannot impose additional requirements – including proof of vaccination, training, or behavior - on people with disabilities traveling with a PSA or ESA without violating the ACAA regulation.
DOT’s proposal to allow airlines to require documentation that is unallowable under the existing regulation, and to deny complainants with psychiatric disabilities the right to DOT enforcement of legitimate claims gives airlines both permission to violate the law with impunity, and to impose significant burdens on persons with psychiatric disabilities. DOT has acknowledged that allowing airlines to require advance proof of vaccination, training, or behavior will have significant negative impacts on persons with disabilities. Advance notice requirements “prevent passengers from traveling in the event of an emergency,” such as a funeral, accident, or sudden illness.”
Moreover, since the ACAA provides no private right of action, DOT’s administrative enforcement process is the sole remedy available for violations of the law. If the proposed enforcement priorities are adopted, persons with psychiatric disabilities will have no recourse for violations of the ACAA.
NCD is also concerned that the Interim Statement does not explain what will happen to complaints filed regarding PSAs and ESAs during the non-enforcement period. Since the ACAA regulation “remains in effect under its own terms or until superseded,” complaints filed remain valid, even if DOT has suspended enforcement of them for an undetermined period. Will DOT toll the statute of limitations for filing to preserve complainant’s rights until the suspended enforcement period ends? DOT should provide details to the public on how complaints filed during this period will be handled.
NCD urges DOT not abandon its plan to implement these enforcement priorities. The action is not defensible under the ACAA and implementing regulation; will remove the only avenue available for persons with psychiatric disabilities to enforce their rights under the ACAA; and will allow airlines to impose increased and discriminatory burdens on persons with psychiatric disabilities.