Guidance Questions and Answers Concerning 49 CFR Part 39, ADA Rules Concerning Passenger Vessels

39.21(b)

QUESTION: SHOULD PVOs MODIFY POLICIES TO ACCOMMODATE REQUESTS BY PEOPLE WITH DISABILITIES TO TRAVEL WITH ANIMALS THAT DO NOT MEET THE DEFINITION OF SERVICE ANIMALS?

ANSWER:

*Section 39.21 of the rule provides that a PVO must make reasonable modifications to policies, practices, or procedures to avoid discrimination (public entities) or to afford goods, services, facilities, advantages, and accommodations to individuals with disabilities (private entities), unless doing so would fundamentally alter the PVO’s services, programs, or activities (public entities) or the PVO’s goods, services, facilities, privileges, or advantages (private entities).

* On some occasions, a passenger with a disability may ask to travel with an animal that does not meet the definition of a service animal, for the purpose of helping the passenger deal with the effects of her or her disability.

*If transporting such an animal would be inconsistent with the PVO’s policies concerning the transportation of animals other than service animals (e.g., a “no pets” policy), the PVO should determine whether (1) it can make a reasonable modification these policies to permit the animal to accompany the passenger, or (2) whether doing so would create a fundamental alteration.

* This is a case-by-case determination. If in the facts of the specific situation, the PVO can determine that it is able make the requested modification of its policies, practices, and procedures to allow the animal to accompany the passenger, without creating a fundamental alteration, the PVO should make the requested modification. If transporting the animal would result in a fundamental alteration in the situation, the PVO need not modify its policies.

*The PVO may also, in order to determine whether a reasonable modification of its policies is appropriate, ask questions and seek information or documentation about the animal, its training, and the function it performs for the passenger that go beyond what is appropriate in the case of a service animal.

• For example, the PVO could require the passenger to provide evidence or documentation that the passenger has a disability requiring assistance from the animal.

1. In the case of someone requesting the accommodation of an emotional support animal, this could include obtaining recent current documentation (i.e., no older than one year from the date of the passenger's scheduled initial flight) on the letterhead of a licensed mental health professional (e.g., psychiatrist, psychologist, licensed clinical social worker, including a medical doctor specifically treating the passenger's mental or emotional disability) stating the following:(1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM IV);

2. The passenger needs the emotional support animal as an accommodation for the voyage;

3. The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and

4. The date and type of the mental health professional’s license and the state or other jurisdiction in which it was issued.

*A PVO also may require a passenger with a disability seeking to travel with an animal that does not fall within the definition of service animals to provide sufficient advance notice to allow the PVO to determine whether a reasonable modification the PVO’s policies is appropriate.

• The requested advance notice is intended to give the PVO adequate time to check any documentation requested by the passenger and to make the determination of whether granting the request would create a fundamental alteration of the PVO’s services.

*The Department believes that carrying certain kinds of animals (e.g., snakes, other reptiles, ferrets, rodents, and spiders) would create a fundamental alteration of a PVO’s services.

*In determining whether accommodating other animals that do not fall within the definition of service animal (e.g., miniature horses, monkeys) would create a fundamental alteration, a PVO may consider factors such as the type, size, and weight of the animal and whether the vessel can accommodate an animal with those characteristics; whether the passenger has sufficient control of the animal; whether the animal is housebroken or its elimination needs can otherwise be met without causing health or sanitation problems; and whether the animal’s presence would compromise legitimate health and safety requirements that are necessary for safe operation of the vessel.

*If reasonable conditions on the passenger’s use of the animal (e.g., the animal could be in the passenger’s room but could not accompany the passenger to the dining hall) can mitigate circumstances that would otherwise result in the exclusion of the animal on the basis of fundamental alteration, the PVO should make a modification subject to those conditions.