8 e edmonds air carrier access act update

Disability Rights New JerseyNew Jersey's designated protection and advocacy system for people with disabilities

Air Carrier Access Act Update

Curtis Edmonds

National ADA Symposium

San Antonio, Texas

May 15, 2013

About The Presenter

• Curtis Edmonds– J.D., University of Texas

• Program Manager, Richard West Assistive Technology Advocacy Center at Disability Rights New Jersey– [email protected] – https://www.facebook.com/atacofdrnj


mailto:[email protected]

https://www.facebook.com/atacofdrnj

About DRNJ

• Disability Rights New Jersey is the state Protection & Advocacy agency for New Jersey.– http://www.drnj.org/

• Each state has its own P&A agency:– http://www.ndrn.org/en/ndrn-member-agenci

es.html


http://www.drnj.org/

http://www.ndrn.org/en/ndrn-member-agencies.html

http://www.ndrn.org/en/ndrn-member-agencies.html

About the AT Act Programs

• The Richard West Assistive Technology Center is the state AT Act program for New Jersey.– http://www.drnj.org/atac

• Each state has its own AT Act program.– http://resnaprojects.org/allcontacts/statewide

contacts.html


http://www.drnj.org/atac

http://resnaprojects.org/allcontacts/statewidecontacts.html

http://resnaprojects.org/allcontacts/statewidecontacts.html

A Brief History of the ACAA

• The ACAA was passed in 1986 to overturn the result of a Supreme Court case, Paralyzed Veterans of America v. Department of Transportation, which found that Section 504 did not apply to the airlines.



• The ACAA was signed by President Reagan, nine days before he met with Soviet Premier Gorbachev in Iceland.



• The #1 song in the country on October 2, 1986 was “Stuck With You,” by Huey Lewis and the News.



• Bill Buckner committed a famous ninth-inning error as the New York Mets came back to defeat the Boston Red Sox in the World Series.



• The number-one movie at the box office was “Crocodile Dundee.”



• And you could fly all of these airlines:


http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&docid=kQFG0lLNFOuQ9M&tbnid=Ls7guDfmVjWupM:&ved=0CAUQjRw&url=http://www.aviationexplorer.com/allegheny_airlines.html&ei=vqhQUYHTIM_x0wHSyoHYDw&bvm=bv.44158598,d.dmg&psig=AFQjCNGEXJl11keaMb2B_MiFp2Xsm6861Q&ust=1364326932109107

http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&docid=l05sjdYMq4qHRM&tbnid=XVT3EhFKPuaE6M:&ved=0CAUQjRw&url=http://webdesignledger.com/inspiration/15-logos-with-hidden-messages&ei=RqlQUeifOcOB0AHC54GgAw&bvm=bv.44158598,d.dmg&psig=AFQjCNH8dwNZ8mwycZoR4nBbF3Os6NJWkg&ust=1364327098198648

ACAA Timeline


ACAA Basics

• The ACAA was passed in the “nondiscrimination phase” of disability law, before the ADA ushered in the “accommodations phase.”

• The ACAA simply provides that airlines may not discriminate against passengers with disabilities.


ACAA Basics

• 49 U.S.C. § 41705(a)– (a) In General.— In providing air

transportation, an air carrier, including (subject to section 40105(b)) any foreign air carrier, may not discriminate against an otherwise qualified individual on the following grounds:


ACAA Basics

• 49 U.S.C. § 41705(a)– (1) the individual has a physical or mental

impairment that substantially limits one or more major life activities.

– (2) the individual has a record of such an impairment.

– (3) the individual is regarded as having such an impairment.


ACAA Basics

• The ACAA is similar to Section 504 in that it sets forth a simple, basic nondiscrimination law and requires a federal agency to develop regulations to put the discrimination policy into practice.

• Unlike the ADA, there is not an affirmative duty to accommodate anyone.


ACAA Basics

• The ACAA specifically applies to air carriers.

• It does not apply to the various other entities responsible for airport construction, airport services, and airport maintenance.



ACAA Regulations

• The U.S. Department of Transportation, Federal Aviation Administration (FAA) is responsible for:– Maintaining and updating the ACAA

regulations (14 C.F.R. Part 382)– Taking and investigating passenger

complaints


ACAA Regulations

• The ACAA regulations spell out:– Modifications of air carrier policies - 14

C.F.R. § 382.13– Limitation of passengers with disabilities on

flights – 14 C.F.R. § 382.17– Procedures on passengers with

communicable diseases - 14 C.F.R. § 382.21


ACAA Regulations

• The ACAA regulations spell out:– Requirement to provide notice - 14 C.F.R. §

382.25-27– When a passenger with a disability needs an

attendant - 14 C.F.R. § 382.29– Service charges not allowed - 14 C.F.R. §

382.31


ACAA Regulations

• The ACAA regulations spell out:– How information is provided to passengers -

14 C.F.R. § 382.41-5– Accessibility of airline facilities - 14 C.F.R. §

382.51-7– Accessibility of aircraft - - 14 C.F.R. § 382.61-

71


ACAA Regulations

• The ACAA regulations spell out:– Boarding assistance - 14 C.F.R. § 382.91-

105– In-flight services - 14 C.F.R. § 382.111– Service animal requirements - 14 C.F.R. §

382.117


ACAA Regulations

• The ACAA regulations spell out:– Wheelchair stowage - 14 C.F.R. § 382.121-133– How air carriers must train employees - 14

C.F.R. § 382.141– How air carriers handle complaints – 14 C.F.R.

151-9


ACAA Update

• In this presentation, we will focus on:– Recent changes to the ACAA regulations– Proposed upcoming changes to the ACAA

regulations– Recent court cases involving the ACAA


New ACAA Regulations

• In the past 13 years, there have been multiple revisions to the ACAA regulations.

• The FAA periodically issues draft rules, requests public comment, and then publishes “final rules” which then update the regulations.



• In 2000, the ACAA was amended to include foreign carriers providing service to American airports.

• The FAA published draft rulemaking in November 2004 to apply the existing regulations to foreign carriers.



• The FAA published draft rulemaking in September 2005 on the issue of medical oxygen aboard airplanes.

• The FAA published draft rulemaking in February 2006 on accommodations for passengers who are deaf, hard of hearing, or deaf-blind.



• The “final rule” for all of these three proposals was published by the FAA in May 2008, and went into effect in May 2009.



• Why do regulations change?– Regulations change because technology

changes.– Regulations change because of history.– Regulations change because the law

changes.– Regulations change because of new

experiences.


May 2009 FAA Revisions

• The May 2009 revisions made several major changes to the ACAA regulations, including:– Making new provisions for assistive

technology devices, Segways, and CPAP machines.

– Updates security screening section to include TSA.



• Foreign carriers:– ACAA regulations apply to any flight between

a US airport and a foreign airport.– ACAA regulations do not apply on flights

between foreign airports unless it’s a layover on a connecting flight with the same flight number (i.e., DFW to Heathrow to Cairo).



• Refusal to provide services– The FAA imported “direct threat” language

from the ADA into the regulations. – A refusal to provide services must be safety-

related and the passenger must pose a “direct threat” that cannot be accommodated.

– “Direct threat” includes communicable diseases (like SARS) that are not disabilities.



• Airport accessibility– New requirement for relief areas for service

animals– New requirement that TVs in gate areas

must have captioning.– Obligation for accessibility at foreign airports.



• Captioning– New requirement that videos or DVDs played

on flight must be captioned.



• Service Animals– Air carriers can ask for your plan to let the

animal relieve itself on flights lasting more than 8 hours.

– Air carriers must accept ID, harnesses, paperwork, or “credible verbal assurance” that an animal is a service animal.



• Service Animals– “Emotional support animals” require a letter

from a doctor, psychiatrist or psychologist or LCSW.

– No “unusual” animals allowed – snakes, reptiles, ferrets, rodents, and spiders.



• Service Animals– Miniature horses, pigs and monkeys are OK

unless they cause a direct threat.– Only dogs allowed on foreign flights.



• Wheelchair stowage– Requires space for cabin storage of at least

one folding manual wheelchair– Wheelchairs must be “among the first” items

unloaded from baggage (prior rules called for “prompt” return).



• Oxygen– Passengers allowed to use (with notice) a

ventilator, respirator, CPAP, or oxygen concentrator, subject to the device meeting FAA safety requirements.

– Passengers must bring adequate batteries.– The FAA did not require airlines to provide

oxygen.


2011 NPRMs

• In 2011, the FAA issued two new notices of proposed rulemaking for the ACAA regulations.

• The FAA has not issued final rules on either of these NPRMs.


2011 NPRM

• June 2011 – Seat-Strapping– “Seat-strapping” is when an airline uses a

seatbelt to strap a manual, folding wheelchair to an empty seat in order to stow it in an aircraft cabin.


2011 NPRM

• June 2011 – Seat-Strapping– Some commenters were concerned that this

could stigmatize passengers who use wheelchairs.

– Some commenters were concerned that this could cause fellow passengers to lose seats on full flights.


2011 NPRM

• June 2011 – Seat-Strapping– Some commenters were concerned that

seat-strapping could cause damage to wheelchairs, especially if flight attendants were not trained in how to do this.

– Badly-strapped wheelchairs could become projectiles on a turbulent flight.


2011 NPRM

• September 2011 – Web Sites and Kiosks– The FAA discussed whether air carriers

should have to make their websites and electronic kiosks more accessible for people with disabilities.


2011 NPRM

• September 2011 – Web Sites and Kiosks– Should smaller air carriers (like charter

carriers) be included?– What about travel agents and online booking

sites that sell airline tickets?– How should the FAA coordinate with future

DOJ regulations on website accessibility?


2011 NPRM

• September 2011 – Web Sites and Kiosks– Should the FAA use WCAG or Section 508

compliance rules?– Should there be an objective or a subjective

criteria for whether a website is accessible or not?

– What about mobile websites?– Must the whole website be accessible?


2011 NPRM

• September 2011 – Web Sites and Kiosks– How much is converting websites to

accessibility really going to cost?– How fast can any accessibility criteria be

implemented?– How do you handle compliance and

enforcement issues?


2011 NPRM

• September 2011 – Web Sites and Kiosks– What standards should be used to make

kiosks accessible?– Does every kiosk have to be accessible?– Should accessible kiosks be phased in over

time?– Can existing kiosks be retrofitted?


2011 NPRM

• September 2011 – Web Sites and Kiosks– How much is all of this going to cost?– Is there a real benefit for travelers with

disabilities to make kiosks accessible?– Can kiosks be made to be interoperable with

other AT?– What about biometrics?


2012 TAM

• In 2012, the FAA put out a new “Technical Assistance Manual” for airline employees on the new rules.


New ACAA Cases

• Lopez v. Jet Blue Airways, 662 F.3d 593 (2d Cir. 2011)


Lopez v. JetBlue Airways

• The plaintiff in Lopez was a person with reflex sympathetic dystrophy who requested wheelchair assistance to get to her plane on a flight from New York JFK to Puerto Rico.

• A delay in providing a wheelchair almost caused her to miss her flight.



• The plaintiff alleged that she experienced anxiety and nightmares due to the delay.

• She filed a complaint with the FAA, but they found no evidence that JetBlue had violated any regulation.

• The plaintiff filed pro se in 2010, alleging an ACAA violation.



• “We agree with the Tenth and Eleventh Circuits that the text and structure of the ACAA manifests no congressional intent to create a private right of action in a federal district court.”



• “The statute does not expressly provide a right to sue the air carrier, and that right should not be implied because the statute provides an administrative enforcement scheme designed to vindicate fully the rights of [passengers with disabilities].”



• “Accordingly, public transportation terminals, depots, or stations used primarily to facilitate air transportation are not ‘public accommodation[s]’ for purposes of Title III of the ADA.”


New ACAA Cases

• Two other federal circuit courts have similarly ruled that there is no right to sue an airline for an ACAA violation:– Boswell v. Skywest Airlines, Inc., 361 F.3d

1263, 1269–71 (10th Cir.2004).– Love v. Delta Air Lines, 310 F.3d 1347,

1354–59 (11th Cir.2002).


New ACAA Cases

• The challenge for attorneys is to come up with other ways, outside of the ACAA, to sue airlines in cases where an airline has discriminated against an individual with a disability.


New ACAA Cases

• The Lopez court suggested that one approach could be to request judicial review from a federal circuit court of cases where the FAA has found no wrongdoing by the airline.


New ACAA Cases

• Gilstrap v. United Air Lines, Inc., 709 F.3d 995 (9th Cir. 2013)


Gilstrap v. United Air Lines, Inc.

• The plaintiff in this case had knee and back injuries that made it difficult for her to walk.

• She requested wheelchair assistance from United on several flights, including a flight to Canada.



• She alleged that on several flights, United refused to provide her with a wheelchair – causing her to experience pain in walking to the gate.

• She alleged that United employees yelled at her and stated that she was not disabled and did not need a wheelchair.



• She sued under Title III of the ADA, as well as California state-law tort claims:– Negligence– Negligent misrepresentation– Breach of duty of a common carrier– Intentional infliction of emotional distress– Negligent infliction of emotional distress



• The plaintiff did not sue under the ACAA.• Instead, she claimed that United’s alleged

failure to follow the FAA regulations under the FAA was negligence per se.



• The federal district court in California ruled that the ACAA preempted plaintiff’s California state-law tort claims.

• Preemption occurs whenever a federal regulation or legal mandate takes over all state jurisdiction.



• For example, federal drug law preempts all state action in terms of testing and approving new prescription drugs.

• Federal laws preempt state actions in regulating some employer-provided health insurance.



• Combining preemption with cases where there is no right of access to sue would have resulted in a Catch-22, whereby plaintiffs could not sue in either federal court under the ACAA or in state court under state-law claims.



• “In sum, we hold, first, that the ACAA and its implementing regulations preempt state and territorial standards of care with respect to the circumstances under which airlines must provide assistance to passengers with disabilities in moving through the airport.”



• “The ACAA does not, however, preempt any state remedies that may be available when airlines violate those standards.”

• “Tort plaintiffs may incorporate the ACAA regulations as describing the duty element of negligence, and rely on state law for the other negligence elements.”



• The Ninth Circuit dismissed the plaintiff’s ADA complaint.

• The Gilstrap case was remanded back to the district court for determination of whether the plaintiff had actually experienced damages under California state tort law.


New ACAA Cases

• Compass Airlines, LLC v. Montana Dept. of Labor and Industry, Hearings Bureau, --- F.Supp.2d ----, 2012 WL 6726428 (D. Mont., 2012).


Compass v. MT Dep’t of Labor

• Dustin Hankinson was appointed by the Governor of Montana to serve on the Montana Human Rights Commission, which is under the Montana Department of Labor.

• The Montana Department of Labor investigates state civil rights complaints.



• Mr. Hankinson was denied boarding on a flight from Missoula to Minneapolis with his ventilator.

• The flight attendant was unaware of the rules regarding boarding with a ventilator.

• A CRO intervened, and Mr. Hankinson was allowed to board, but he refused.



• Mr. Hankinson filed a complaint with the FAA.– He got an apology and a flight voucher from

Compass.– Two flight attendants lost their job.– The pilot was suspended.– All Compass flight attendants had to undergo

retraining.



• The FAA investigated, released its findings to Compass, and issued a letter of warning.

• Mr. Hankinson filed a complaint with the Montana Human Rights Bureau.



• Compass then sought a federal injunction against the Montana Human Rights Board to stop their investigation on the grounds that the ACAA had preempted state law claims.



• “The substantial regulations promulgated by the DOT regarding the use of electronic respiratory devices by passengers of commercial air carriers are detailed, unambiguous, and expansive.”



• “Nevertheless, the ultimate goal of Congress of discouraging disability discrimination in commercial air transportation has been furthered by the retraining of the Compass Airlines flight staff and pilots.”



• The court granted the preliminary injunction against the state agency, enjoining their investigation and hearings process.


New ACAA Cases

• Edick v. Allegiant Air, LLC, 2012 WL 1463580 (D. Nev., 2012).


Edick v. Allegiant Air

• The plaintiff in Edick was the wife of an individual with a brain tumor.

• The plaintiff’s husband died before the case was resolved.

• The couple was flying from McCarran Airport in Las Vegas to Eugene, Oregon.



• The husband experienced a fall in the parking garage at McCarran.

• The wife found a bench for him to sit on in the garage, and then took the baggage to the terminal.

• At the ticket counter, the airline refused to check in the bags.



• The airline also refused to send a wheelchair to the parking garage for the husband.

• The airline also refused to let the wife leave the bags at the counter.

• The wife tried to get the husband to walk to the ticket counter, but he fell again.



• The court found that since the airline did not control the parking garage, there was no responsibility under the ACAA to provide wheelchair service.

• The court found that the airline did not break its baggage policy.

• Plaintiff’s claims were preempted.


New ACAA Cases

• Mikerina v. Delta Air Lines, Inc., 834 F.Supp.2d 54 (D. Mass., 2011)


Mikerina v. Delta Air Lines

• The plaintiff in this case was a person with a chronic neurological condition who fainted on a flight from Moscow to New York.

• Although she explained the situation, Delta diverted the flight to Warsaw, Poland.



• The plaintiff and her family were allegedly forced off the plane and had to spend a week in Poland because of a 2010 volcanic explosion that caused air traffic delays across Europe.



• The court dismissed the plaintiff’s ACAA claim because it was preempted by the Warsaw Convention, an international treaty regarding losses experienced by passengers aboard international flights.


New ACAA Cases

• Foley v. Jetblue Airways, 2011 WL 3359730 (N.D. Cal., 2011)– Plaintiff’s state-law claim that websites and

kiosks were not accessible preempted by ACAA


New ACAA Cases

• Glass v. Northwest Airlines, Inc., 798 F.Supp.2d 902 (W.D. Tenn., 2011).– Airline did not violate ACAA regulations in

wrongful death of passenger who fell down escalator by making him wait ten minutes for wheelchair assistance in Memphis airport.


Discussion


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8 e edmonds air carrier access act update