Air Carrier Access Act

Seyfarth Synopsis: The Department of Transportation says that an airline’s provision of an accessible alternative website violates the Air Carrier Access Act (ACAA), so are such websites an acceptable means of providing access under the ADA?

In response to the onslaught of website accessibility lawsuits against public accommodations covered by Title III of the ADA, some website accessibility consulting companies have been promoting solutions that involve the use of an alternative version of a business’ primary website that conforms to the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA).  The alternative version is typically accessed through a link on the website and, unlike the bare bones “text-only” websites of the past, looks very much like the non-accessible website. While not cheap, this solution is appealing to many businesses because it requires no coding changes to the primary website, no substantial commitment of internal company resources because it is implemented by the third party consultant, and can be implemented fairly quickly to provide immediate access for users with disabilities.

In a recent consent order against airline SAS, the Department of Transportation (DOT) made clear that these alternative websites do not meet the Air Carrier Access Act (“ACAA”) requirement that all airlines make all web pages on their primary websites accessible by December 12, 2016.  The DOT said SAS violated the ACAA’s website rules when it when it “created a separate Web site for individuals with disabilities instead of ensuring that its primary Web site met the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA standard.”   To avoid an enforcement action, SAS entered into a consent order which requires SAS to pay $100,000 in immediate penalties, and other $100,000 in penalties if it later violates the Consent Order.

The airline had engaged a well-known website accessibility consulting company to create an “assistive version” of its primary website which had a separate url from the airline’s primary website url, and could be accessed from a link on the top right of the primary website homepage.  The airline stated that it had in good faith employed this solution to meet the compliance deadline while it was building a new global primary website that would be (and is now) accessible.  It also argued that it met the undue burden exception to the website rule, which, when met, allows use of an alternate conforming website.  DOT responded that the ACAA permits air carriers to use a WCAG Level AA conforming alternate version only when conforming the primary web page to all WCAG 2.0 AA success criteria would constitute an undue burden or fundamentally alter the information or functionality provided by the primary webpage, and that SAS could not meet either exception.  The DOT cited the ACAA’s explanation for its prohibition on separate accessible websites, as “likely [to] perpetuate the problem of unequal access as carriers allot fewer resources than needed over time to properly maintain the secondary site.”  However, the Consent Order did not state that the alternative website failed to comply with the WCAG 2.0 AA in any way.  The DOT also rejected SAS’s argument that it was only using the alternative website to meet the deadline while its entirely new accessible primary website was under development.  We assume that SAS, like many other businesses, did not want to spend money remediating an old website that would soon be retired.

The DOT Consent Order raises the obvious question of whether an alternative accessible version of an inaccessible website can be used to provide access under Title III of the ADA.  We do not think the DOT Consent Order is dispositive because, unlike the ACAA which explicitly says the primary websites of airline carriers must comply with WCAG 2.0 AA, the ADA does not specify any accessibility standard for public accommodations websites.  In fact, the Department of Justice (DOJ) which is responsible for enforcing the ADA recently stated in a letter to Congress that “absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication.”  That said, the Consent Order certainly raises concerns about the use of alternative accessible websites, and public accommodations should carefully examine their options before signing up for this type of solution.

Seyfarth Synopsis:  Is it a service animal or an emotional support animal?  Do I have to allow both?  How to tell one from the other, and the rules that apply.

We get a lot of questions about service and emotional support animals.  It’s obvious that there is a lot of confusion out there.  Here is how to tell one from the other, and the rules that apply to both.

Public Accommodations.  Under Title III of the federal Americans with Disabilities Act (ADA) and virtually all state laws, a service animal is an animal that has been trained to perform work or tasks for the benefit of a person with a disability.  Emotional support animals—also called therapy or comfort animals—have not been trained to perform work or tasks.  Instead, they provide a benefit just by being present.  Public accommodations (e.g. restaurants, theatres, stores, health care facilities), are allowed to ask only two questions to determine if an animal is a service animal:  (1) Do you need the animal because of a disability? and (2) What work or tasks has this animal been trained to perform?  The second question is the key:  If the person is unable to identify the work or tasks that the animal has been trained to perform, then the animal is not a service animal.

Under the ADA, only a dog or miniature horse (no, we are not joking) can serve as service animals.  The ADA requires public accommodations to allow service animals to accompany their owners anywhere the owners can go, although the Department of Justice made clear a few years ago that they can be prohibited from swimming pools (in the water) as well as shopping carts.  The ADA provides no protection for emotional support animals in public accommodations.  The Department of Justice has a very helpful FAQ about service animals, and the Washington Post recently published a story that is also useful.

When developing policies, public accommodations must comply with both federal and state law, and some states provide greater protections.  For example, in some states, any type of animal (not limited to dogs and miniature horses) can be a service animal provided it has been trained to perform work or tasks.  Some states may provide protection for emotional support animals as well.  Virtually all states protect service animals in training, which are not addressed by the ADA.  Thus, public accommodations must tailor their policies to account for state requirements, or adopt a policy that will comport with the broadest of all state laws nationwide.

Housing.  The federal Fair Housing Act (FHA) applies to residential facilities and provides protection for emotional support animals in addition to service animals.  Thus, property managers, condo associations, co-op boards, and homeowners associations need to keep this in mind when dealing with requests from homeowners and tenants relating to these types of animals.  The Department of Housing and Urban Development’s most recent guidance on this topic is here.

Airplanes.  The Air Carrier Access Act (ACAA), not the ADA, governs accommodations for people with disabilities on airplanes.  The Department of Transportation (DOT) is responsible for enforcing the ACAA rules.  Historically, the rules have required accommodations for emotional support animals, but recent abuses of the rules by passengers seeking to bring all manner of animals such as peacocks and pigs onto planes has caused the DOT to revisit this issue in a pending rulemaking.

Compliance Strategy.  All businesses should have a written policy concerning service and emotional support animals that takes into account federal law, state law, the nature of the business, and the ability of employees to make decisions about whether an animal should be allowed onto the premises.  Having a written policy and training employees on the policy is key to ensuring that they know how to respond when one of these animals shows up on the premises.

Seyfarth Synopsis: New Affordable Care Act and Medicaid Regulations will require covered entities providing health care programs and services have accessible electronic information technology, including accessible websites.

While we continue to wait for new regulations for the websites of state and local governments, federal agencies and public accommodations, two new regulations from the Department of Health and Human Services (HHS) strongly suggest that health care provider websites must conform to the Web Content Accessibility Guidelines (WCAG) 2.0 AA to meet their non-discrimination obligations.

Effective July 18, 2016, a new “Meaningful Access” rule interpreting the Affordable Care Act’s (ACA) Section 1557 Anti-Discrimination requirements will require providers of health care programs and services that receive federal financial assistance comply with new requirements for effective communication (EIT) (including accessible electronic information technology), and physical accessibility.  Because most health care providers do receive federal funds through Medicare reimbursements, this rule has broad coverage.  Effective July 1, 2017, new Medicaid rules will require managed care programs to have (EIT) that complies with “modern accessibility standards,” and impose other effective-communication requirements such as large print and other alternative formats.

Section 1557 of the ACA requires covered entities to ensure that health programs and services provided through EIT be accessible to individuals with disabilities unless doing so would result in undue financial and administrative burdens (in which case the entity must provide the information in an equally accessible alternative format) or a fundamental alteration in the nature of the health program or activity.   HHS did not specify a website accessibility standard in the new rule.   However, the agency said that compliance with accessibility requirements would be “difficult” for covered entities that do not adhere “to standards such as the WCAG 2.0 AA standards or the Section 508 standards,” and “encourages compliance” with these standards. Moreover, recipients of federal funding and State-based Marketplaces” must ensure that their health programs and activities provided through websites comply with the requirements of Title II of the ADA — requirements that are the subject of a pending rulemaking at the Department of Justice.  The Rule also requires providers to give “primary consideration” to the patient or customer’s auxiliary aid or service for communication.

The new Medicaid Rule will require that entities providing managed care programs provide information in a format that is “readily accessible”, which it defines to mean “electronic information and services which comply with modern accessibility standards such as section 508 guidelines, section 504 of the Rehabilitation Act, and W3C’s Web Content Accessibility Guidelines (WCAG) 2.0 AA and successor versions.”  The agency intends this definition to be more clear, reflect technology advances, and align with the requirements of Section 504, and recommends entities consult the latest section 508 guidelines or WCAG 2.0 AA.

While both rules make reference to the Section 508 standards for accessible websites which has been the standard for federal agency sites for many years, all indicators point to WCAG 2.0 AA as the standard to use when working to improve the accessibility of a website.  The federal government has issued a proposed rule to replace the existing Section 508 standards with WCAG 2.0 AA.  Most experts we deal with consider the Section 508 standards outdated.  WCAG 2.0 AA was developed by a private consortium of experts called the Worldwide Web Consortium (W3C), and is the website access “standard” in all U.S. Department of Justice (DOJ) settlement agreements. It is also the legal standard for all airline websites covered by the Air Carrier Access Act.  Moreover, DOJ has indicated in its Supplemental Advanced Notice of Proposed Rulemaking for state and local government websites that WCAG 2.0 AA should be the legal standard for such websites.

By Christie Jackson

USA Today recently reported that the number of passengers traveling on airplanes with service animals is increasing.  The article explores possible reasons for this increase.  Perhaps – innocently and legitimately – there are more individuals with disabilities flying the friendly skies with their service animals than ever before.  Or, as USA Today suspects, not all are legitimate service animals.  Ferreting out service animal fraud is an ongoing issue, which we have previously covered.

What could be motivating these air passengers’ fraud?  Well, money is always an issue.  According to the article, airlines charge as much as $549 for non-service animals, while there is no charge for service animals.  Or, consistent with the increasing trend of animals in strollers, purses, and just about everywhere their owners go, pet lovers just cannot bear the idea of leaving Fido in the cargo hold of the plane.

What law governs this?  The Air Carrier Access Act (ACA) governs the rights of passengers with disabilities traveling on planes.  The protections the ACA provides for individuals who have service or emotional support animals are broader than the Americans with Disabilities Act (ADA).  Under the ACA, virtually any type of animal can be a service animal.  The ACA also protects emotional support animals for recognized psychiatric conditions with documentation from a licensed mental health professional.  The ACA requires that airlines allow these animals on planes with their owners and prohibits airlines from charging a fee for the animals.  In contrast, the ADA only provides protection for dogs and miniature horses that are actually trained to perform work or tasks for a person with a disability. Unlike airlines covered by the ACA, public accommodations covered by the ADA do not have to allow onto their premises emotional support animals that merely make their owners feel better by their presence–even if the owners have a recognized psychiatric condition.

Passengers traveling with service or emotional support animals should note, however, that some destinations such as Hawaii and the UK may have additional rules concerning animals entering those areas.

Regardless of whether the animals on planes are legitimate service or emotional support animals, expect to see more furry friends on your next flight.

Edited by Minh Vu and Kristina Launey

By Kristina M. Launey

The U.S. Department of Transportation (DOT) enforces the Air Carrier Access Act (ACAA), which prohibits discrimination based on disability in air travel.  The DOT recently issued a proposed updated version of its technical assistance manual (TAM).  The TAM, which provides guidance to airlines and passengers with disabilities on their rights and responsibilities under the ACAA, was first issued in 2005.  The updated TAM incorporates 2009 changes to the Air Carrier Access Act implementing regulations, which, among other things, add new provisions concerning accommodations for passengers who are deaf, hard of hearing, and deaf-blind. Comments on the updated TAM may be submitted until October 3 at regulations.gov.

By Kristina M. Launey

So held U.S. District Court Judge Morrison England, in the Eastern District of California, last week in a suit filed by Robert Segalman, who is blind and requires use of a wheelchair. Segalman alleged that Southwest Airlines’ improper stowage and transport of his power wheelchair caused him injury, in violation of the Air Carrier Access Act of 1986 (ACAA) and California’s Unruh and Disabled Persons Act. A year after filing his original Complaint, Segalman asked the Court for leave to file a second amended complaint that removes the ACAA claim and adds an ADA claim.

The Court rejected as premature Southwest’s arguments that the state law claims are preempted by the ACAA and that airlines are excluded from the ADA’s reach. The Court allowed the amendment, reasoning that Southwest would suffer no prejudice from the amendment and that the plaintiff’s claims are of “great import to the public.”

We will keep you posted as this case progresses.