8 e edmonds air carrier access act update

Disability Rights New Jersey
New 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
– cedmonds@drnj.org
– 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-
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

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:

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
– 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
– 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
– 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
– 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.

September 2005 on the issue of medical
oxygen aboard airplanes.
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
– 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
– 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
– 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
– 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
– 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
– 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
– 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.

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8 e edmonds air carrier access act update

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