DOT Proposed Regulation on Ensuring Safe Accommodations for Air Travelers with Disabilities Using Wheelchairs

Today’s blog entry is a discussion of the Department of Transportation rule published on March 12, 2024 entitled, “ensuring safe accommodation for air travelers with disabilities using wheelchairs,” here. As usual, the blog entry is divided into categories and they are: the DOT summary of regulatory provisions; and thoughts/takeaways and particular concerns. The blog entry is pretty short, so the reader probably will want to read all of it.

I

DOT Summary of Regulatory Provisions

Table 1—Summary of NPRM Proposals
Subject	Proposal
Safe and Dignified Assistance	Clarifies that safe and dignified assistance to individuals with disabilities is required when providing required accommodations.
Prompt Enplaning, Deplaning, and Connecting Assistance	Clarifies that prompt enplaning, deplaning, and connecting assistance is required, including moving within the airport terminal. Prompt is determined based on the totality of circumstances, except when physical assistance is needed to disembark the aircraft, in which case prompt means that: (1) personnel and boarding wheelchair must be available to deplane the passenger when the last passenger who did not request deplaning assistance departs the aircraft; and (2) the passenger’s personal wheelchair must be available as close as possible to the door of the aircraft to the maximum extent possible, except: (a) where this practice would be inconsistent with Federal regulations governing transportation security or the transportation of hazardous materials, (b) or when the passenger requests the wheelchair be returned at a location other than the door of the aircraft. If the passenger requests the wheelchair be returned at a location other than the door of the aircraft, an airport wheelchair must be available for the passenger’s use.
Mishandling of Wheelchairs and Assistive Devices as Per Se Violation	Defines mishandled to mean lost, delayed, damaged, or pilfered ( i.e., stolen). Specifies that any mishandling of wheelchairs and assistive devices by airlines is a per se regulatory violation subject to administrative penalties. In the event of any mishandling of a wheelchair or scooter, requires airlines to immediately notify impacted passengers of their rights: (1) to file a claim with the airline, (2) to receive a loaner wheelchair from the airline with certain customizations, (3) to choose a preferred vendor, if desired, for device repairs or replacement, and (4) to have a Complaints Resolution Official (CRO) available and be provided information on how to contact the CRO.
Passenger Notifications After Wheelchair Is Loaded on and Unloaded from Aircraft	Requires airlines to timely notify passengers when their wheelchairs or scooters have been loaded to and unloaded from the cargo compartment of their flights. Requires airlines to notify passengers immediately upon learning that the passenger’s wheelchair or scooter does not fit on the plane.
Prompt Return of Delayed Wheelchairs or Scooters	Requires airlines to transport a delayed wheelchair or scooter to the passenger’s final destination within 24 hours of the passenger’s arrival by whatever means possible. Requires airlines to provide the passenger a choice between picking up the wheelchair or scooter at his or her destination airport or having the wheelchair delivered to another location based on a reasonable request by the passenger, such as the passenger’s home or hotel. Depending on the passenger’s choice, the Department would consider the wheelchair or scooter to be provided to the passenger (1) when the wheelchair or scooter is transported to a location requested by the passenger if the passenger chooses to have it delivered, regardless of whether the passenger is present to take possession of the wheelchair or scooter; or (2) when the wheelchair or scooter has arrived at the destination airport, is available for pickup, and the carrier has provided notice to the passenger of the location and availability of the wheelchair or scooter for pickup if the passenger chooses to pick it up.
Prompt Repair or Replacement of Damaged Wheelchairs or Scooters	Following a mishandling, requires airlines to provide passengers the option of: (1) the carrier handling the repair or replacement of the device , with a device of equivalent or greater function and safety, within a reasonable timeframe and paying the associated costs; or (2) the passenger arranging for the repair or replacement of the device, with a device of equivalent or greater function and safety, through his or her preferred vendor with the carrier having the responsibility to transport the device to the preferred vendor and pay the vendor directly for the repairs or replacement.
Loaner Wheelchair Accommodations	Requires airlines to provide loaner wheelchairs while individuals with disabilities are waiting on repairs or replacement of a mishandled device. Requires airlines to consult with the individual receiving the loaner wheelchair to ensure that the loaner wheelchair fits the passenger’s functional needs, as much as possible, and safety-related needs.
Enhanced Training for Certain Airline Personnel and Contractors	Requires annual training, including hands-on training, of airline employees and contractors who physically assist passengers with mobility disabilities or handle passengers’ wheelchairs or scooters.
New Improved Standards for On-Board Wheelchairs (OBW)	Requires new improved performance standards for OBWs on twin-aisle aircraft and aircraft with 60 or more seats, consistent with standards for OBWs on single-aisle aircraft with 125 or more seats.
Size Standard for Lavatories on Twin-Aisle Aircraft	Seeks comments regarding whether to specify that one lavatory needs to be of sufficient size: (1) to permit both a passenger with a disability and an attendant to enter and maneuver within the lavatory; and (2) to set a 95th percentile male standard for the individual with a disability and the attendant in place of the non-specific standard currently set forth for twin-aisle aircraft lavatories.
Reimbursement of Fare Difference	Seeks comments regarding whether U.S. and foreign air carriers should be required to reimburse the difference between the fare on a flight a wheelchair user took and the fare on a flight that the wheelchair or scooter user would have taken if his or her wheelchair or scooter had been able to fit in the cabin or cargo compartment of the aircraft.

 

 

II

Thoughts/Takeaways and Particular Concerns

 

1. Comments are due May 13, 2024.
2. 382.11(b) mandates that a carrier or an indirect carrier’s assistance must be performed in a safe and dignified manner. What is safe and dignified may vary considerably from person to person who has a disability. It also might vary depending upon the disability. Finally, the title of the regulation specifically pertains to wheelchair users, but this language appears to go beyond just wheelchair users. DOT anticipated my concern about “safe and dignified,” by specifically calling for comments discussing whether the terms “safe and dignified,” is something easily understood by carriers and the public. They also want to know whether the term should be defined and whether there are any specific practices or procedures that should be required or prohibited to safeguard the dignity and safety for passengers with disabilities.
3. 382.141(a)(2) provides that an air carrier must ensure employees and contractors are trained to recognize requests for communication accommodations from individuals whose hearing or vision is impaired and to use the most common methods for communicating with these individuals that are readily available, such as writing notes or taking care to enunciate clearly. Training in sign language is not required. Employees must also be trained to recognize requests for communication accommodation from deaf-blind passengers and to use establish means of communicating with these passengers when they are available, such as passing out braille cards if you have them, reading and information sheets that a passenger provides, or communicating with the passenger through an interpreter, for example. There are numerous problems with this particular section. First, “hearing impaired,” is offensive to many of us in the hearing loss community. Second, for the Deaf (culturally deaf), writing notes and enunciating clearly are not likely to be effective means of communication. Third, no obligation to provide a sign language interpreter is present. Clearly, the standard suggested in this regulation for many in the hearing loss community falls far below the standard of what would be called effective communication per title II or III of the ADA, such as what we discussed in this blog entry. Fourth, it has been true for several decades that only 10% of the blind/visually impaired knows braille.
4. With respect to training, §382.141(a)(5) requires consulting with organizations representing individuals with disabilities when developing training programs and policies and procedures. If such organizations are not available, the carrier can consult with individuals with disabilities and/or international organizations representing individuals with disabilities. My concern is that this section is too narrow because it is a restricted to organizations representing persons with disabilities, whatever that might mean. For example, must the organization be a nonprofit only? So, persons with disabilities in the business of doing training regarding the rights of people with disabilities would not seem to be able to provide this kind of training, which makes absolutely no sense to me. Also, what does “representing persons with disabilities,” mean?  It does make sense to require, as these proposed regulations do, that the training be hands-on and be more than a one-off. Another issue is that persons with disabilities silo. So, it isn’t necessarily true that an organization representing people with certain kinds of disabilities would necessarily understand the kind of issues faced by other disabilities. With respect to training, DOT seeks out comments for several different questions raised by the proposed regulation.
5. Is there enough time to finalize the regulations before the November 2024 elections, assuming Pres. Biden does not win? Very open question as to whether a second Trump administration would continue with the kinds of regulations.
6. How much deference will those regulations get once they are finalized is another question that we are waiting on the Supreme Court to tell us in two cases already argued and currently pending before them. See this blog entry.
7. DOT specifically requested comments on a variety of different issues.
8. The proposed regulations clarify that all boarding, deplaning, and connecting assistance be provided in a prompt manner using a totality of the circumstances test. DOT calls for comments regarding what it means to be prompt and what totality of the circumstances might mean.
9. The regulations propose that any mishandling of the passenger’s checked wheelchair or other assistive device is a violation of the Air Carrier Access Act and makes the mishandling of a wheelchair or other assistive device a per se violation. Regarding this, DOT calls for comments on a variety of questions that this proposed regulation would raise.
10. A variety of questions sought to be answered with respect to what happens when a wheelchair user has their wheelchair damaged in transit and the options an air carrier gives the person when that happens. Also, lots of questions about how the person using a wheelchair will get a similar wheelchair or the same kind of wheelchair back to them and how that process will occur.
11. The thoughts/takeaways and the particular concerns section discussed here is not exclusive. Particularly if the reader is a wheelchair user, an in depth reading of the proposed regulations would be a good idea.
12. For persons with disabilities and particularly for wheelchair users and people with mobility impairments, the time is now to get your comments in. Several sections of the proposed regulations strongly suggest that the disability community has not been particularly engaged with respect to these rules as of yet. The time to affect regulations is in the commenting period. Doing anything once the regulations are finalize is very difficult.

 

Good luck on your NCAA brackets for both women and the men. I read a Wall Street Journal article this week that they are expecting big ratings on the women’s side, perhaps even bigger than on the men’s side. If you have not seen Caitlin Clark play yet, you really should, and she isn’t the only phenomenal player in the tourney. My daughter’s school won both the men and women’s conference tournaments (both had fantastic regular seasons as well), so they are in the NCAA men’s and women’s tournaments. I will be glued to my TV set this week for those games.