IAADP and DOT: David and Goliath!
by Ed Eames, President and Joan Froling, Chairperson, International Association of Assistance Dog Partners
Will the year and a half-long campaign by assistance-dog users bear fruit when final rules are published by the U.S.Dept. of Transportation next year?
People who use assistance dogs and who fly on U..S. airlines were more than a little upset when they learned over a year ago that the Dept. of Transportation had seemingly decided to enshrine its controversial guidelines on how air carriers were to handle assistance dogs into hidebound rules.
The guidelines -- although they are only advisory -- now permit airlines to charge for a second seat, have the service animal shipped in cargo or have the team take a later flight if the service animal can not fit into the space provided in front of the disabled passenger.
Airlines have, so far as assistance-animal advocates know, never implemented these guidelines. But nothing said they couldn't. And now, with DOT planning to elevate them to the status of a regulation, people with service dogs were worried.
The International Association of Assistance Dog Partners, or IAADP, began to take action. This article takes a look at the issues, the organizing and the outcome to date.
The Warning Bell
On November 4, 2004, the U. S. Department of Transportation published its long-awaited recommendations to update and implement the 1986 Air Carrier Access Act rules. The ACAA was designed to make air travel accessible for people with disabilities. The updated rules and regulations were supposed to further open the skies to the disability community. Unfortunately, the inclusion of Appendix A, Guidance Concerning Service Animals -- initially drafted as a mere guideline in 2003 -- would have exactly the opposite effect on those of us who travel with guide, hearing and service dogs.
When the service animal material was published as part of the proposed rule, it threatened to elevate what had been mere suggestions into a DOT-sanctioned rule. It would permit airlines to charge for a second seat, have the service animal shipped in cargo or have the team take a later flight if the service animal could not fit into the space provided in front of the disabled passenger.
Since much of the subsequent controversy focused on charges of misinterpretation and misinformation, it is important to provide the actual language contained in the NPRM.
Three sections in the NPRM deal with the issue of large service animals in the cabin. These are:
Part 382 does not require carriers to make modifications that would constitute an undue burden or would fundamentally alter their programs (382.7(c)). Therefore, the following are not required in providing accommodations for users of service animals and are examples of what might realistically be viewed as creating an undue burden: Asking another passenger to give up the space in front of his or her seat to accommodate a service animal; Denying transportation to any individual on a flight in order to provide an accommodation to a passenger with a service animal; Furnishing more than one seat per ticket; and Providing a seat in a class of service other than the one the passenger has purchased.
However, airlines are not required to ask other passengers to relinquish space that they would normally use in order to accommodate a service animal (e.g., space under the seat in front of the non-disabled passenger).
What if the service animal is too large to fit under the seat in front of the customer? If the service animal does not fit in the assigned location, you should relocate the passenger and the service animal to some other place in the cabin in the same class of service where the animal will fit under the seat in front of the passenger and not create an obstruction, such as the bulkhead. If no single seat in the cabin will accommodate the animal and passenger without causing an obstruction, you may offer the option of purchasing a second seat, traveling on a later flight or having the service animal travel in the cargo hold. As indicated above, airlines may not charge passengers with disabilities for services required by part 382, including transporting their oversized service animals in the cargo compartment.
Although airlines have not implemented these guidelines put forth in 2003, the fear of the IAADP board was that in raising these suggestions to the level of a rule, they could be readily implemented by the airline industry and create a major barrier to air travel by assistance dog partners.
The IAADP is a consumer advocacy organization of more than 2,000 people with disabilities working with guide, hearing and service dogs.
Although many guide, hearing and service dogs are able to fit into the constrained space on the floor in front of a disabled passenger, some do not because of their size or the need to wear backpacks containing equipment essential to their work.
Having to pay for an extra ticket would make air travel prohibitively expensive for all but the wealthiest disabled passenger with a large assistance dog. The idea that we would be willing to ship our canine assistants in cargo disregards the bond between us and undercuts the concept that our dogs provide greater independence, mobility and safety. And making us take a later flight demonstrates a view toward disabled people indicating we do not have to get to places on time to meet work and social commitments.
All three options were unconscionable.
IAADP became committed to changing the language. However, the question remained as to whether a relatively small organization could marshal enough resources to obtain the desired goal.
Realizing it would further the cause to provide substitute language for flight crews, the following was proposed by the IAADP board:
"You may offer the passenger sitting in a seat adjacent to the disabled passenger traveling with a large service animal a seat in the same class of service in another part of the cabin. If no seats are available in that class of service, you may ask for a volunteer willing to occupy the seat next to the disabled passenger requiring sharing of leg room. If no volunteer is forthcoming and seats are available in another class of service in another part of the cabin, you may ask the adjacent passenger or the disabled passenger to occupy a seat in that other class of service."
This language incorporated current airline procedures when all seats in economy class were occupied and the large assistance dog spilled over into the neighboring passenger's leg space.
After posting comments to the DOT website, IAADP went on an organized campaign to flood the DOT with responses from all sectors of the assistance dog movement. In addition to guide, hearing and service dog handlers, a number of puppy raisers, assistance dog training programs and many members of the general community posted comments or sent letters to the DOT. An appeal by guide dog user and author, Steve Kuusisto, published on the website of Ragged Edge, contributed to the influx of comments in the final weeks. By the time the public comment period expired in March 2005, more than 1100 of the 1200 comments appearing on the DOT website dealt with the large service animal in the cabin issue. IAADP was overwhelmed by the support it had generated.
The question was whether the DOT would be impressed and agree to the recommended changes.
Atlantic Southeast Airlines, a subsidiary of Delta Airlines, also submitted a public comment. Its comment read, "ASA supports the department's position that, if no single seat in the cabin will accommodate the service animal and passenger without causing an obstruction, the carrier may offer the option of purchasing a second seat, traveling on a later flight or having the service animal travel in the cargo hold. Bulkhead space on regional aircraft is limited and providing additional seating at no charge would result in a significant revenue loss." The comment reinforced IAADP's interpretation of the language in the proposed rule:. It seemed clear that if the proposed rule, as now written, were finalized, airlines would feel free to exercise these options. Atlantic Southeast's comment strengthened the group's commitment to ensuring the language in the proposed rule was changed.
In an article in the Sunday, April 10, 2005 Columbus Dispatch ("Service dogs might become baggage," no longer available online), reporter Tim Doulin detailed the concerns of Steve Kuusisto and several other assistance dog handlers, then noted that "the Transportation Department says it issued identical guidelines to airlines two years ago":
'The rules just make it a little more formal and put it into the code of federal regulations for everyone to see,' said Bill Mosley, a spokesman for the department. 'We have regarded those guidelines as binding on the carriers. We could be enforcing it now.'
That DOT statement added to IAADP's growing suspicion that the DOT was not going to budge from its position, in spite of the eleven hundred public comments asking for reconsideration.
When another month went by with no word from DOT to allay its concerns, IAADP's board decided to pursue the political route. The IAADP newsletter and the Emergency Action Call on the IAADP website urged people to contact their federal legislators and ask them to recommend the IAADP language change.
More than 50 senators and congressional representatives interceded on behalf of their constituents and received fairly uniform responses from DOT stating there was no proposed change in the NPRM concerning the transportation of large service animals in the cabin. The Justice for All website posted a notice about the problem and many list members added their voices to the effort.
Last July at their conventions, both the American Council of the Blind and the National Federation of the Blind passed resolutions condemning the DOT proposed rules and suggested substituting the IAADP language. Both resolutions were transmitted to DOT. The Department did not respond to either group, though, about their resolution.
As representatives of IAADP and the assistance dog partner community, we both approached Robert Ashby, the DOT civil rights division member responsible for producing the final rules. Ashby acknowledged the huge outpouring of comments indicating concern with our central issue but would not commit to making any changes. We felt the concerns of the community were being brushed aside.
In December 2005, we were contacted by Mary Harris, a producer at KNBC TV in Los Angeles, who wanted to do a story about the problem . She had visited the DOT website and read many of the comments -- online at http://dms.dot.gov/search/searchResultsSimple.cfm?numberValue=19482&searchType=docket . Arrangements were made for Harris to come to San Diego in January to interview Ed Eames and others attending the IAADP annual conference there. Accompanied by a camera and sound man, she interviewed more than a dozen attendees. She also arranged to take a plane trip with Michael Osborn and his large guide dog Hastings to see how they fared.
On February 22, 2006 the segment appeared on the evening news. It was subsequently shown on NBC affiliates throughout the country, including Washington, DC, and for the next week the telephone lines at DOT were inundated with calls from viewers, according to CA. Sen. Barbara Boxer's office. Reporters seeking comment from IAADP told us that they'd been trying but could not get through to the DOT phone lines for a comment.
About that time as well, a major article appeared in the Oakland Michigan Dispatch featuring a representative of Leader Dogs for the Blind who decried the impact the proposed rule would have on their graduates. Also featured were comments from Joan Froling indicating the problems IAADP assistance dog partner members perceived in future air travel.
DOT on the Attack
Within a week of the NBC broadcast, DOT was on the attack! Ollie Cantos, Special Assistant to the Assistant Attorney General at the Department of Justice, widely circulated the answer he received from the DOT when he contacted the Office of the Secretary of Transportation about the concerns raised by IAADP and others in the media.
The February 28 post states:
"Thanks for sending this e-mail to DOT. There is some major misinformation that is being circulated with respect to a proposed rule that would require air passengers that are using assistant dogs to pay for the cost of additional seat. This is not being proposed by DOT and no such proposal exists." John Benison (202)366-5714
DOJ's Ollie Cantos went on to say, "In order to expedite this hoax being put to rest, I am taking the liberty of sending this email to everyone else on your distribution list to whom you sent out the original email. As soon as I receive the NPRM's as John has described, I will forward that to you as well. I appreciate your telling me about all of this, because it now gives me an opportunity to help allay concerns that are not even founded or warranted. Thanks so much, and you take good care." --Ollie
The condemnation by both the Department of Justice and the Department of Transportation inserted a wedge within the assistance dog partner community. Being accused of spreading misinformation and perpetrating a hoax on the disability community were harsh criticisms of IAADP. Could it be that the other 1100 responders all misread the material in the NPRM? The accusation by Benison takes a dim view of members of the disability community's ability to read and understand the language in an official document set forth by the federal government.
Furthermore, Benison's statement that DOT was not requiring the airlines to charge for a second seat is disingenuous and a cunning misrepresentation of the IAADP position. We never stated the DOT would require the implementation of this policy, but pointed out it would authorize airlines to charge for a second seat, have the dog shipped in cargo or have the team take a later flight.
Within a few days, Robert Ashby of DOT entered the fray with a post to Ginger Bennett Kutsch of The Seeing Eye Advocacy Council.
"We got 1100 or so comments protesting the paragraphs of the service animal guidance concerning options for handling situations in which a large animal impinges on a space that must remain open. In my view, these comments (and subsequent letters and statements to the media along the same line) were largely based on a misunderstanding of the nature of the guidance and the wording of the language itself. We were not proposing a rule change to impose new restrictions, costs, or burdens on service animal users, and the language does not, in my view, have that effect. That said, I think there are probably some clarifications of the language of the guidance that we can make to avoid the kinds of misunderstandings that have arisen, and as we work toward a final rule, I will be suggesting some wordsmithing changes to this effect."
Goliath was finally responding to the slingshots unleashed by David!
Where We Are Now
Sen. Boxer's office says Sen. Boxer has received assurances from DOT Secretary Norman Mineta that the language contained in the final rule will be changed to reflect the concerns made apparent in the year and a half campaign. Unfortunately, the publication of that final rule will not be available until 2007. We in the assistance dog community will be carefully scrutinizing the final result!
Will David have cause to celebrate? We'll have to wait and see!