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New federal rule is not really helpful for disabled air travelers

I recently rewatched the movie “Meet the Fockers,” reflecting upon the protagonist’s mishaps with airline travel. As Americans, including those with disabilities, who pay taxes, we recently subsidized the survival of the airlines as these private-public entities because of the pandemic. One should easily understand his struggle, if he had been a person, who works with a service animal, wanting to fly and enjoy snacks at thirty thousand feet.

The U.S. Department of Transportation promulgated a final rule in December 2020 that has its pros but many more cons for independent travel by service animal handlers. The final rule arguably does not address the longstanding inaccessibility or biased situations encountered by people with disabilities — or a  nondisabled person with some sort of temporary medical problem — who have dealt with rude, unhelpful, TSA agents.

The final rule aligns the definition of a service animal that can board an aircraft with the amended U.S. Department of Justice ADA regulations of 2010. The final rule defines service animals as including only dogs individually trained to perform tasks for the benefit of a person with a disability. This excludes all nontasked animals, including, service animals in training. Therefore, emotional support dogs will no longer receive the same kind of access they once did.

When transitioning from my second to third guide dog, I encountered a plethora of random dog-related distractions at airports because of emotional support dogs flying on airlines. The final rule prohibits airlines from refusing to transport a service animal solely on the basis of its breed.

The U.S. Department of Transportation has implemented a new PDF form, not unsurprisingly punting the ultimate usability of the form over to the airlines. As a dog handler, I may be required to complete a form 48 hours in advance of my flight attesting as to behavior and training of my furry sidekick.

Allegedly, under the final rule, there is a “grace period” if I need to book a flight before this time frame. Yet the incorporation of this new form seems to differ across airlines, requiring a uniform, but accessible and usable approach that does not now exist.

Problems with new form

Airlines may be inclined simply to claim that a form is accessible by whatever standard they are told they meet without actually having a form blind or visually impaired people can complete. That is the difference between accessibility and usability.

The PDF form purportedly meets international standards for web accessibility. Yet even an engineer who invented electronic books and who happens to be blind struggled with the inane paperwork. Making the PDF form more accessible or usable will be the role of airlines, who are not equipped to deal with this issue uniformly. Our policymakers should not negatively disadvantage private-public sector entities, such as airlines, in a way that widens disparities in our society.

Does a mishap with a dog mean I am banished to airline “jail” if I suffer a stomach problem or if Bowie somehow falls ill due to no fault of his own or training? One may easily forecast what will happen if a service animal team encounters an unhappy airline worker who felt empowered under this final rule. Specifically, travelers with service animals must acknowledge – without choice — that if the animal demonstrates behavior showing it “has not been properly trained to behave in public” it will be treated as a pet and subject to fees and other pet requirements.

A service animal handler must also attest that his or her sidekick can sustain a flight that is more than eight hours without having an accident. Then again, if one has ever tried to utilize the toilet on an aircraft, how many of us can “hold it” on flights longer than eight hours?

I have encountered more than my proportional share of discriminatory behavior by members at various levels of the air industry. Once, when my wife and I awaited on a connecting flight, my second guide dog vomited at the airport gate. While we cleaned up this accident, one can imagine how an empowered gate officer now might react. Certainly, the final rule provides no due process or other forms of appeals for the handler of service animals.

This final rule serves as a cautionary tale as to the regulatory process and individual rights. Language may exist deep within regulatory promulgations requiring members of the public to be vigilant in their reading. For instance:

Reasonable: A reasonable statement in the final rule indicated that a passenger, including a person with a disability and a “large service animal,” is only entitled to that space they purchase.

Troubling: A service animal handler could always choose the option of purchasing an additional seat for a  “large service animal” when booking a flight.

In sum, take heed. Turbulence in the air travel of service animal handlers will be ahead for that basic freedom so many nondisabled Americans enjoy.

Gary C. Norman, Esq. LL.M. serves as the chair of the Maryland Commission on Civil Rights. He can be reached at prometheusgroup16@hotmail.com.