When the Regs Are Violated

It’s not that the regulations don’t go far enough, but that carriers continue to violate the regulations.

Many well-informed people believe the Americans with Disabilities Act (ADA) prohibits airlines from discriminating against people with disabilities. Well, think again!

 The protection against discrimination for airlines actually predated ADA and is provided by the Air Carrier Access Act (ACAA) of 1986. The Paralyzed Veterans of America (PVA) played a pivotal role in ACAA’s enactment.

In the early 1980s, PVA members and people with all types of disabilities faced huge barriers to air travel. PVA sued the United States Department of Transportation (DOT) for discrimination, arguing that DOT’s continuing financial assistance to the airports serving the airlines violated Section504 of the Rehabilitation Act. In 1986, the case ended up before the United States Supreme Court, where PVA lost.

That loss, however, spurred PVA and Congress into pressing for legislation that culminated just six months later when President Ronald Reagan signed ACAA into law. The new law was just one paragraph long and prohibited discrimination against qualified individuals with disabilities in the provision of air transportation.

ACAA delegated to DOT the task of defining unlawful discrimination, writing regulations, and enforcing the law. In1990, DOT issued its regulations covering the full range of issues affecting flyers with disabilities. From the physical accessibility of airplanes to the reservation process, the regs were very comprehensive. In subsequent years they have been revised to specify seating requirements, to extend coverage to foreign air carriers, and to require the use of lifts to board smaller commuter planes not served by Jetways.

Circumstances have definitely improved, but 20 years later, the air carriers’ training procedures and lack of enforcement options still permit discrimination to occur without consequence. The primary issue for disability advocates has never been that the regulations didn’t go far enough, but that carriers continued to violate those regulations. DOT’s enforcement process generally tracks complaints and slaps the hand of the airline. Though DOT has reached settlements with some airlines through a “formal” complaint process, it has never initiated a federal lawsuit.

Not Handled with Care

One frequently recurring issue is the handling of wheelchairs, which must be treated with a level of care not always accorded regular baggage. For the most part, air carriers seem to understand that taking a few moments to correctly handle and stow a wheelchair could save thousands of dollars in damages and its passengers tremendous anxiety and inconvenience. Yet passengers who use mobility equipment continue to see problems associated with the handling and stowing of battery-powered and manual wheelchairs.

Users of manual collapsible wheelchairs are still refused onboard stowage of their personal wheelchairs even in situations that clearly warrant and compel it. Onboard stowage is ideal because everyone knows where the wheelchair and all its parts are located. When wheelchairs must be carried in baggage, they are subject to damage unless secured and protected. Seemingly minor damage—such as bent push rims, foot pedals, or brakes—causes serious problems for the passenger who uses a manual chair.

Power-chair users continue to be plagued by unlawful and unnecessary disconnection and removal of batteries, incorrect wire connections, and dents and bent or missing parts, all of which can render a power chair useless. Since these passengers are generally unable to push a manual chair, their entire life is changed until the chair is repaired and returned or replaced.

Advocates also fear the need for heightened security has set back any progress made in training baggage handlers not to needlessly dismantle mobility equipment. One source of this fear is a concern that the placement of the Transportation Security Administration (TSA) in the Department of Homeland Security may impede communication between TSA and DOT that regulates civil rights compliance.

Seating Issues

Another frequent problem is the inability to reserve appropriate seats. Seating had not been addressed in the original regulations, and PVA advocated for customers’ ability to reserve a seat with a moveable armrest, to avoid being lifted and possibly injured. When DOT issued its final rule, we had what we had argued for (if the personnel know where those seats are and how to operate the armrest). But the only customers specifically able to reserve bulkhead seats (which never have moveable armrests) are those with “fused or immobilized legs” or those with service animals.

So, an airline’s refusal to allow a person who uses a wheelchair to reserve bulkhead seats is within the law—but highly inconvenient to passengers who would be able to easily transfer to that seat from their own wheelchair. An airline may (but is not required to) permit you to reserve the bulkhead simply because you use a wheelchair.

PVA has been asked several times about the ability to use a wheelchair as an airline seat. We investigated this possibility many years ago and became convinced it is not feasible. Though it would be tremendously easier on passengers and airline personnel, it would require radical design changes to planes and wheelchairs.

One problem is the width of the plane aisle—very few chairs can fit down it—so several seats would have to be removed. Also, airplane seating must undergo rigorous testing by the Federal Aviation Administration (FAA) to be deemed “airworthy.” It must be able to withstand maximum load tests under extreme circumstances without breaking or shifting. A wheelchair and its securement (of the chair to plane floor) would have to pass these tests to be certified by FAA, and considering the modifications people make to their wheelchairs, most likely FAA would have to test each individual wheelchair.

Lack of Training

Disability advocates generally acknowledge that these problems are not as widespread as they once were. They believe, however, that persistent problems indicates a lack of good and repetitive training for carrier personnel and contractors, e.g., baggage handlers. Training programs must be effective to achieve the intent of the law; this may require frequent trainings, even when staff turnover is high. Advocates believe that when training fails and a wheelchair is damaged, a system of locating rental and repair services must be in place.

Report It!

Passengers with disabilities who encounter problems at any point in the process, reservations through luggage retrieval, should always request to speak to a complaints resolution officer (CRO). CROs should be familiar with ACAA regulations and authorized to resolve problems on the spot.

Another way to deal with problems as they occur is to call DOT’s toll-free hotline to assist passengers with disabilities. Air travelers who experience disability-related air travel service problems may call the hotline at 800-778-4838 from 9:00a.m. to 5:00 p.m. Eastern time, Monday through Friday except federal holidays. A call to this line may help you at the actual time of the event, whether reserving an accessible seat or retrieving your wheelchair at the end of the flight.

Despite limited investigation/enforcement, PVA still encourages flyers with disabilities to file a complaint with the Aviation Consumer Protection Division. Only by reporting incidents will DOT have an overall picture of the industry’s compliance efforts and problem areas.

The Web site with information on filing a complaint, online or by mail, is: http://airconsumer.ost.dot.gov/ACAAcomplaint.htm.

Contact Bob Herman, PVA’s Advocacy attorney (bobhn@pva.org), if you’d like assistance filing a complaint or with any issues regarding accessible air travel.

 

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