NATIONAL COUNCIL ON DISABILITY

February 26, 1999

National Council on Disability
1331 F Street, NW, Suite 1050
Washington, DC 20004-1107

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This report is also available in braille and large print, on diskette and audiocassette, and on the Internet at the National Council on Disability's award-winning website (www.ncd.gov).

The views contained in this report do not necessarily represent those of the administration, as this document has not been subjected to the A-19 Executive Branch review process.

LETTER OF TRANSMITTAL

February 26, 1999

The President
The White House
Washington, D.C. 20500

Dear Mr. President:

On behalf of the National Council on Disability (NCD), I am pleased to submit a report entitled Enforcing the Civil Rights of Air Travelers with Disabilities: Recommendations for the Department of Transportation and Congress.

This report is the first in a series on enforcement of federal laws protecting the civil rights of children and adults with disabilities. Title IV of the Rehabilitation Act requires NCD to gather information about the implementation, effectiveness, and impact of the Americans with Disabilities Act (ADA), among other duties. NCD was encouraged to monitor and evaluate federal enforcement efforts of ADA and other civil rights laws when we convened a diverse group of more than 300 leaders from the disability community for a policy summit in 1996. In response, we initiated the Disability Civil Rights Monitoring Project. In addition to this study of enforcement of the Air Carrier Access Act (ACAA), NCD will in the coming months issue reports evaluating enforcement of the Americans with Disabilities Act, the Fair Housing Act, and the Individuals with Disabilities Education Act.

As you know, air travel is an essential component of many jobs in the global economy. For people with disabilities to be part of that economy, participate in the world community, and compete effectively for jobs requiring air travel, air carriers and federal oversight officials must ensure that their right to travel with appropriate accommodations is taken seriously and honored. Unfortunately, NCD has found that although things have improved since ACAA was passed in 1986, people with disabilities continue to encounter frequent, significant violations of the statute and regulations. When they complain, they encounter an enforcement effort that is both inconsistent and limited in scope.

NCD stands ready to work with you and stakeholders outside the government to address the problems identified in this report and to advance the civil rights of all Americans with disabilities and their families.

Sincerely,

Marca Bristo
Chairperson

(This same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker of the House of Representatives.)

NATIONAL COUNCIL ON DISABILITY
MEMBERS AND STAFF

Members
Marca Bristo, Chairperson
Kate Pew Wolters, First Vice Chairperson
Hughey Walker, Second Vice Chairperson
Yerker Andersson, Ph.D.
Dave N. Brown
John D. Kemp
Audrey McCrimon
Gina McDonald
Bonnie O'Day, Ph.D.
Lilliam Rangel-Diaz
Debra Robinson
Shirley W. Ryan
Michael B. Unhjem
Rae E. Unzicker
Ela Yazzie-King

Staff
Ethel D. Briggs, Executive Director
Andrew J. Imparato, General Counsel and Director of Policy
Mark S. Quigley, Public Affairs Specialist
Jamal Mazrui, Program Specialist
Kathleen A. Blank, Attorney/Program Specialist
Lois T. Keck, Research Specialist
Janice Mack, Administrative Officer
Brenda Bratton, Executive Secretary
Stacey S. Brown, Staff Assistant

PREFACE

This report on federal enforcement of the Air Carrier Access Act (ACAA) is the first in a series on enforcement of federal laws protecting the civil rights of children and adults with disabilities. When the National Council on Disability (NCD) brought together a diverse group of disability community leaders from around the country in 1996, one of the strongest themes to emerge from three days of policy development in 11 different areas was the need for stronger and more consistent enforcement of federal civil rights laws for people with disabilities. In fact, the first overarching recommendation from the summit was that existing civil rights laws should be more vigorously enforced. In its role as an independent federal agency, NCD was encouraged by disability community leaders to monitor and evaluate federal enforcement efforts. Moreover, NCD is required by Title IV of the Rehabilitation Act to gather information on the implementation, effectiveness and impact of the Americans with Disabilities Act (ADA).

After NCD published the recommendations that emerged from the 1996 Disability Policy Summit in Achieving Independence, it began to study four key civil rights statutes for people with disabilities as part of the Disability Civil Rights Monitoring Project. The statutes selected were ACAA, Part B of the Individuals with Disabilities Education Act (IDEA), ADA, and the Fair Housing Act. This report is the first in a series of four that will evaluate the effectiveness of federal enforcement of disability civil rights laws.

Next year, the United States will celebrate the 10th anniversary of the passage of ADA and the 25th anniversary of the passage of IDEA. These milestones present an opportunity to retool and reinvigorate federal enforcement of disability civil rights laws so that more Americans with disabilities and their families can enjoy equal access to the American dream. Too many children and adults with disabilities and their families are unaware of their right under federal law to be free from discrimination and are often unable to enforce that right. The Disability Civil Rights Monitoring Project will assess federal civil rights enforcement in the past and evaluate how these important laws can be translated into real equality of opportunity for all Americans.

This report focuses on federal enforcement of ACAA. As the economy becomes increasingly global, the ability of employees with disabilities to travel by air is critical to their success and upward mobility. As the President has recognized, the employment rate of working- age adults with disabilities is approximately 30 percent, and this is unacceptable. NCD commends the President for creating a Presidential Task Force on Employment of Adults with Disabilities to bring together cabinet leaders and agency heads to work on improving employment outcomes for this population. NCD supports the work of the task force and sees this report on ACAA implementation as an important call to action for members of the task force, including the secretary of transportation.

This report, like the others that will follow, is grounded in the real world experiences of people with disabilities who have endured countless violations of their rights as air travelers under ACAA. More accommodations are available for air travelers with disabilities today than ever before, but the availability of accommodations is inconsistent, and discriminatory treatment continues. It is important to recognize that the negative experiences of disabled travelers go beyond the typical hassles to which frequent travelers are accustomed. Notwithstanding the fact that ACAA has been the law for more than 12 years, people who use wheelchairs continue to encounter regular problems, from not being given a bulkhead seat to being mishandled and occasionally dropped by poorly trained or insensitive staff. Flight crews continue to refuse to stow adaptive equipment such as walkers and folding wheelchairs in the aircraft cabin. Travelers with disabilities who are accompanied by able-bodied friends, colleagues, or relatives often find that airline personnel have a tendency to direct questions and instructions to their travel partners rather than address them directly. In short, air travelers with disabilities frequently find air travel unnecessarily humiliating and upsetting. Many problems stem from the unwillingness of some airline staff to recognize that a request for an accommodation in air travel invokes civil rights protections. ACAA is a rights law, but it has been largely implemented with the consistency of a customer service policy.

NCD urges the President, Congress, the federal enforcement agencies, and covered entities to work together to address the inadequacies described in this report and the three reports to follow. For laws like ACAA to achieve the desired effect, they must be taken seriously and owned by government and industry. The ultimate test of any civil rights law is the extent to which people in the protected class can count on the law for real protection.

CONTENTS

ACKNOWLEDGMENTS

EXECUTIVE SUMMARY

INTRODUCTION

Background
Purpose of this Report
Scope of the Report
Research Approach
Research Activities
Report Structure

PART I. THE LAW, THE REGULATION, AND THE CONTEXT

1.0 The Law: The Air Carrier Access Act of 1986

1.1 Why the Air Carrier Access Act?
1.2 ACAA Impact: Progress but Persistent Problems
1.3 Background on the Air Carrier Access Act of 1986

2.0 The Implementing Regulation: 14 CFR Part 382--Nondiscrimination on the Basis of Disability in Air Travel

2.1 Definitions
2.1.1 Who is an "Individual with a Disability"?
2.1.2 Who is a "Qualified Individual with a Disability"?
2.1.3 Nondiscrimination: What It Means

2.2 Implementation Requirements
2.2.1 Implementation Issues
2.2.2 Airline Administrative Responsibilities
2.2.3 Department of Transportation Administrative Responsibilities

3.0 Recently Approved Changes to the Regulation and Proposed Changes to the Law

3.1 Final Rule Amending Part 382, Issued March 4, 1998
3.1.1 Clarification of the Definition of Nondiscrimination
3.1.2 Procedures for Providing Seating Accommodations
3.1.3 In-Cabin Stowage of Collapsible Electric Wheelchairs
3.1.4 Issues Not Addressed by the Final Rule

3.2 Proposed Amendments to the Air Carrier Access Act
3.2.1 Draft Miller Amendment
3.2.2 Inclusion of Code-Sharing Foreign Carriers

PART II. THE ROLE OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION (DOT)

4.0 Background on DOT Enforcement Philosophy and Operations

4.1 Regulation of the Aviation Industry and Consumer Protection
4.2 The Transition to Industry Deregulation
4.3 Impact on the DOT Organization
4.4 Consumer Protection in a Postregulation Environment
4.5 Civil Rights Enforcement as a Function of Consumer Protection

5.0 DOT Organizational Components Involved in ACAA Enforcement

5.1 Office of General Counsel
5.2 Regulation and Enforcement
5.3 Aviation Enforcement and Proceedings
5.4 Office of Environment, Energy, and Safety
5.5 Departmental Office of Civil Rights
5.6 Analysis and Recommendations

6.0 Implementation and Enforcement Functions

6.1 Consumer Information Explaining the Law
6.1.1 Public Information: Print Material
6.1.2 Website Information
6.1.3 Available Formats
6.1.4 Methods of Dissemination
6.1.5 Analysis and Recommendations

6.2 General Guidance to the Aviation Industry
6.2.1 Letters to the Airline Industry
6.2.2 Consumer Complaint Review Meetings
6.2.3 General Compliance Review Meetings
6.2.4 DOT Presentations at Industrywide Conferences
6.2.5 Analysis and Recommendations

6.3 Technical Assistance to the Aviation Industry
6.3.1 Aircraft Accessibility Federal Advisory Committee
6.3.2 Analysis and Recommendations

6.4 Informal Complaints Alleging Potential Violations of 14 CFR Part 382
6.4.1 The Informal Consumer Complaint Process
6.4.2 Characteristics of Informal Complaints Received by DOT
6.4.3 Complaint Data from the Airlines: A Different Picture
6.4.4 Analysis and Recommendations

6.5 Formal Complaints and Enforcement Actions
6.5.1 Filing a Formal Complaint
6.5.2 The Formal Complaint Process
6.5.3 Informal Enforcement Strategy
6.5.4 Enforcement Orders
6.5.5 Formal Enforcement Proceedings
6.5.6 Amicus Briefs
6.5.7 Analysis and Recommendations

6.6 Compliance Monitoring
6.6.1 Review of Airline Compliance and Personnel Training Plans
6.6.2 Analysis and Recommendations

6.7 ACAA Rulemaking--14 CFR Part 382 and Modifications
6.7.1 The Rulemaking Process
6.7.2 Analysis and Recommendations
6.7.3 The Regulatory Negotiation Process
6.7.4 Analysis and Recommendations

6.8 Monitoring the Law

PART III. STAKEHOLDER VIEWS ON ACAA ENFORCEMENT

7.0 Aviation Industry Perspectives

8.0 Perspectives of Air Travelers with Disabilities

8.1 Accessibility of Air Travel--A Customer Perspective
8.2 Industry Compliance with ACAA and DOT Enforcement of ACAA: A Sample of Customer Complaints
8.3 Analysis

PART IV. CONCLUSIONS

9.0 Summary of Recommendations

9.1 Recommendations for Organizational Changes
9.2 Recommendations for Process Changes
9.3 Recommendations for Statutory Changes and Increased Appropriations

ENDNOTES

APPENDICES

Appendix A -- 14 CFR Part 382 Requirements Summary
Appendix B -- Summaries of Complaints Filed Directly with a Major Air Carrier
Appendix C -- Summarized Selected Complaints from the Consumer Protection Division
Appendix D -- Glossary of Acronyms
Appendix E -- 14 CFR 302.3 Filing of Documents
Appendix F -- List of Interviews and Consultations

LIST OF FIGURES

Figure 1 -- U.S. Department of Transportation Air Carrier Access Act Implementation and Enforcement Functions

Figure 2 -- U.S. Department Of Transportation Organizational Chart

Table 1 -- Summary of ACAA Informal Consumer Complaints--April 5, 1990-October 23, 1997

Table 2 -- ACAA Informal Complaints against Major U.S. Carriers Received by DOT Aviation Consumer Protection Division

Table 3 -- Informal ACAA Complaints: Disability Categories

Table 4 -- ACAA Informal Complaints: Types of Disability Complaints Received

Table 5 -- Complaints Filed Directly with a Major Air Carrier--January 1993-November 1996

Table 6 -- Complaints Filed Directly with a Major Air Carrier--January 1993-through November 1996--Rank Ordering of Recurring Complaint

ACKNOWLEDGMENTS

All research, data collection, and analysis for this study were conducted under contract for the National Council on Disability's (NCD) Disability Civil Rights Monitoring Project by the Disability Rights Education and Defense Fund (DREDF). Kathleen Blank, J.D., was the principal researcher and lead author for this report before she joined the NCD staff in the spring of 1998. Nancy Mudrick, Ph.D., senior data and methodological consultant; Mary Lou Breslin, project director; and Jane West, Ph.D., research director, were co-authors. Statistical analysis of complaint data was performed under the direction of Nancy Mudrick. Jennifer Thau and Anne Marie Sullivan, social work graduate students at Syracuse University, provided research assistance.

We wish to acknowledge the many individuals, including members of the support staff, at the U.S. Department of Transportation (DOT) who helped the researchers with this study. With few exceptions, DOT staff cooperated fully in providing information, recommending valuable alternative sources of information and facilitating internal access to key DOT personnel. We particularly appreciate the candor of the DOT interviewees and the opportunity to speak candidly with them about the Air Carriers Access Act (ACAA) enforcement from a disability community perspective. The thorough review and valuable comments on the final draft provided by the Office of General Counsel contributed significantly to the quality of this report.

Finally, we wish to thank the many stakeholder group representatives, from both the aviation industry and the disability community, who generously gave their time and expertise to provide information to our researchers. Their input helped to clarify where change is most critically needed and alternative strategies for achieving enforcement goals. In particular, we acknowledge the many members and representatives of the disability community who shared their firsthand knowledge and experience of ACAA implementation and enforcement. Their observations added a real-world perspective to our research.

EXECUTIVE SUMMARY

The Air Carrier Access Act (ACAA) became law in 1986, prohibiting discrimination against passengers with disabilities by air carriers in providing air transportation services.¹ Congress charged the Secretary of Transportation with promulgating the implementing regulations within 120 days of the statute's enactment. Following deadlocked regulatory negotiations and a notice of proposed rulemaking that produced more than 300 stakeholder comments, 14 CFR Part 382 went into effect on April 5, 1990, with many issues still unresolved.² These unresolved issues, coupled with a regulatory environment dating back to the Reagan administration that encourages voluntary compliance and minimizes federal oversight, have contributed to an enforcement effort that is both inconsistent and limited in scope.

The findings of this study show that the Department of Transportation (DOT) model for ACAA enforcement relies heavily on monitoring of complaints and voluntary compliance by air carriers. This approach does not emphasize traditional investigation and prosecution of complaints similar to other federal civil rights enforcement agencies. Accordingly, the National Council on Disability (NCD) believes that DOT's approach is critically lacking in the key areas of compliance monitoring, complaint handling, and leadership by the Department of Transportation. Despite DOT's stated commitment to ACAA enforcement, there is no regular monitoring program to ensure compliance in day-to-day airline operations. DOT's informal complaint-handling process serves more as a tool for monitoring general compliance across the industry than as a system for resolving individual discrimination claims. Even the formal complaint process focuses only on issues of broad public interest, so that individual complainants have no reliable administrative means to obtain satisfaction unless the airline voluntarily cooperates. Research data show that a long-standing lack of resources has substantially limited DOT's leadership in addressing difficult compliance problems (i.e., providing lifts and other boarding devices, providing regular training of airline personnel, and ensuring that new aircraft meet accessibility standards).

The problems of ACAA enforcement arise from inadequacies not only in DOT's enforcement mechanism but in the law itself. Unlike some other civil rights laws, the ACAA does not establish a private right of action and contains no provisions for attorneys' fees and damages. Neither does the law extend the nondiscrimination mandate to foreign air carriers operating in the United States, including code-sharing partners of domestic airlines. The law's general language invites contradictory interpretations. In lieu of an adequate budget and specific enforcement provisions in the law, DOT has adopted a minimalist approach that has delayed full compliance and consistent implementation across the industry.

Although the regulations mandate clear requirements for services such as boarding assistance, teletypes in airports, and other accommodations to make air travel accessible for passengers with disabilities, widespread implementation and compliance problems persist 12 years after ACAA became law. Obtaining service accommodations continues to be a major challenge at airports, ticketing offices, and travel services across the nation. When they fly, people with disabilities still face uncertainty about whether air carriers will provide accommodations such as effective communication of flight information, accessible seats, appropriate boarding assistance, and careful handling and stowage of their wheelchairs and other assistive devices.

This study examines federal ACAA enforcement efforts and the impact of these efforts on the civil rights of persons with disabilities.

Key Findings

The key findings indicate that ACAA implementation and enforcement efforts over the past 12 years have been so lacking in several essential areas as to constitute nonenforcement. A significant part of the problem is an extreme lack of resources that has affected DOT's capacity to develop and maintain a credible enforcement program or to adequately support ACAA implementation.

• DOT's budget and staff for ACAA enforcement are drastically inadequate.
  
  The impact of changing political and fiscal priorities on ACAA enforcement cannot be underestimated. Since the 1970s, Congress has steadily cut the budget of the Office of the Secretary within DOT. As a result, the staff required for a credible ACAA enforcement program is simply not there. The Consumer Protection Division, where most ACAA-related activity originates, has less than one full-time equivalent assigned to ACAA enforcement.
  
  
• Most informal ACAA complaints are not individually investigated as are discrimination complaints filed with other federal agencies.
  
  
• DOT enforcement of ACAA is not within the purview of a civil rights office.
  
  The Office for Aviation Enforcement and Proceedings and the Aviation Consumer Protection Division are primarily responsible for ACAA enforcement, using an approach that combines customer service, consumer protection, and civil rights enforcement perspectives. Informal ACAA complaints are classified as "Category C" (Reservations/Ticketing/Boarding) consumer complaints and are reported monthly in DOT's Air Travel Consumer Report as an aggregate figure. Although ACAA complaints are subject to a higher standard of review (based on Part 382) than other consumer complaints, the vast majority are not individually investigated, like discrimination complaints filed with most other federal agencies.
  
  
• DOT has taken little initiative to educate the public in general, and people with disabilities in particular, about their rights under the law.
  
  Most of the ACAA public information materials provided during October 1997 were sparse, giving only a general overview of ACAA provisions. New Horizons, the most detailed DOT consumer publication on ACAA, was still awaiting incorporation of new information resulting from the November 1996 amendment to Part 382. DOT staff reported that New Horizons was usually sent only on request and not routinely to ACAA complainants with their acknowledgment letters. Now it is available on DOT's website. On the other hand, DOT publishes and disseminates its monthly Air Travel Consumer Report to many aviation industry and consumer constituencies. The report provides performance rating information (i.e., on-time flights and consumer complaint statistics) for each of the major and national air carriers. Disability-related complaints, however, are reported in a single aggregate figure, precluding any comparisons among carriers.
  
  
• DOT's informal complaint-handling system functions primarily to track, not investigate, complaints.
  
  Between April 1990 and October 1997, DOT received 1,831 disability-related complaints. DOT did not investigate the majority of these complaints, even though Part 382 directs complainants to contact DOT for assistance. The recorded message on DOT's customer assistance line tells callers that DOT is not staffed to return phone calls or mediate individual complaints but will register their complaints in the database and send an acknowledgment letter for any complaints made in writing. In addition, DOT sends a letter of notification to the airline(s) cited in the written complaint instructing them to respond to the complainant and forward a copy of their response to DOT within thirty days. DOT personnel record the airline response in the complaint record, and followup with the airline if no response has been made within the 30-day time frame. However, DOT follow-up does not always occur, and a response by the airline does not mean that any resolution was reached from the complainant's point of view. Once the airline response is recorded in the complaint record, the complaint is typically closed, regardless of the result. Only complaints determined to involve an airline's established policy or procedure that is out of compliance with the ACAA receive additio nal follow-up. The majority of complaints are determined not to be matters of established policy or procedure.
  
  
• DOT rarely evaluates the ACAA complaints passengers send directly to airlines.
  
  Under Part 382, passengers alleging an ACAA violation are first required to seek resolution directly with the airlines involved. Airlines are then required to take the necessary steps to correct the problem and inform complainants about their right to elevate their complaints to DOT. Our research showed conclusively that DOT receives only a fraction of the ACAA complaints actually registered with airlines. Despite its authority under the law to request any reports it requires to enforce DOT regulations,³ DOT does not request even summary data on the complaints received directly by an airline, unless investigating in connection with a potential enforcement action. An independent analysis of one major airline's complaint data conducted by our researchers showed a ratio of 36 to 1 for airline v. DOT complaints. By DOT's own account, an airline receives about 100 ACAA complaints for every 1 DOT receives. Furthermore, the yearly number of ACAA complaints received for the past eight years has either increased or remained constant each year. From a consumer perspective, these numbers would indicate marginal improvement in compliance.
  
  
• The ACAA provides no private remedy for individuals alleging civil rights violations.
  
  The ACAA statute does not provide a private right of action, but Part 382 directs any consumer wishing to file a formal complaint to do so in accordance with 14 CFR Part 302. Part 302 sets forth an administrative enforcement process adopted during the 1950s for complaints alleging violations of federal aviation statutes and DOT rules or orders. Like the administrative enforcement mechanisms for adjudicating complaints brought under the Americans with Disabilities Act, the Rehabilitation Act (Section 504), and other disability civil rights laws, DOT cannot assess damages on behalf of successful complainants. DOT can only require air carriers to take prompt action to change policies and procedures not in compliance with ACAA and assess civil penalties. The private right of action established through ACAA case law should be codified to ensure the individual plaintiff's right of redress.
  
  
• DOT has yet to file a single amicus brief on an ACAA case.
  
  DOT is not authorized under ACAA to file amicus briefs in cases alleging ACAA violations but can petition the Department of Justice (DOJ) for permission to do so. DOT also reports that it has been asked only once to participate as an amicus. In this case, DOT intervened through private correspondence with both the plaintiff and defendant, resulting in the defendant agreeing to modify its policies and procedures to comply with the rule. DOT chose not to petition DOJ to file an amicus brief after the defendant failed to appeal the court's verdict of liability.
  
  It should be noted that agencies with responsibility for enforcing civil rights statutes routinely request permission to file amicus briefs, and DOJ typically approves these requests. By not filing amicus briefs, DOT takes no initiative to influence the development of case law as it applies to ACAA enforcement. DOT's failure to take a position on the litigated issues has slowed the development of a positive and consistent body of case law.
  
  
• DOT's ACAA compliance monitoring is infrequent, inconsistent, and largely ineffective.
  
  Under Part 382, DOT was required to review the ACAA compliance programs and training plans by December 1990. By 1992, DOT had reviewed the compliance and training plans of between 30 and 40 air carriers, and had required changes to any plans found out of compliance with Part 382. Since then, DOT has conducted no regular monitoring to ensure airline implementation of their ACAA compliance and training plans.
  
  Part 382 requires airlines to train all new personnel and conduct periodic refresher training for all personnel with job duties affected by ACAA requirements. Initially, researchers were told that DOT typically does not review ACAA training programs or records, the complaint handling process, or complaint records when conducting routine on-site reviews with airlines, unless complaints received by DOT indicate a problem. Later, researchers were told that these on-site visits did include such reviews. Despite the request of researchers for reports documenting the scope and findings of these on-site reviews, none were provided.
  
  
• DOT has not satisfactorily addressed significant gaps in the application of ACAA.
  
  Foreign air carriers operating in the United States are presently not bound either by the ACAA or by U.S. aviation safety laws and regulations. Although a general nondiscrimination provision of the Federal Aviation (FA) Act has applied to foreign carriers since the 1950s,⁴ DOT has generally invoked it in connection with rate or fare issues. As of the date of this report, DOT has based only two formal enforcement actions on this provision for discrimination on the basis of disability.⁵ Although consumers generally benefit from the competition resulting from the globalization of air travel networks, Americans with disabilities continue to encounter discrimination during international air travel. As the executive agency primarily responsible for international air transportation policy, DOT negotiates the terms of international agreements under which foreign carriers must operate in the United States. Foreign air carriers enjoying access to the U.S. airport facilities and air travel market, especially through code-sharing arrangements with U.S. carriers, must conform to the requirements of the same civil rights laws that bind U.S. carriers.
  
  
• Part 382 lacks provisions requiring DOT to undertake implementation activities such as public education and to engage in enforcement activities regularly such as compliance monitoring and investigation of informal complaints.
  
  Other than the provisions to review airline compliance programs and training plans and ensure that they conform to the requirements of the regulation, Part 382 has no provisions requiring DOT to engage in implementation and regular compliance-monitoring activities to ensure airline follow-through. Without authorizing DOT to engage in proactive monitoring of airline compliance, the mandate to enforce ACAA carries little substance.
  
  

Below are key recommendations addressing organizational, process, and statutory changes needed to address and correct the deficiencies in ACAA enforcement.

Key Recommendations

DOT must make substantive organizational and process changes if ACAA enforcement is to become effective. It must

• Establish a discrete unit for ACAA civil rights enforcement that is independent of the Consumer Protection Division, within either the Departmental Office on Civil Rights or the Office of General Counsel.
  
  
• Request that Congress appropriate the funds necessary for adequate staff and resources to effectively run an enforcement office, including a line item for an aggressive public education initiative.
  
  
• Develop and carry out strategic ACAA education campaigns geared to persons with disabilities and to the general public.
  
  
• Further articulate and consistently apply the assessment criteria for determining when an ACAA violation has occurred and when enforcement action is appropriate.
  
  
• As for other civil rights laws, any ACAA complaint alleging a prima facie violation, including an informal complaint, should have standing. DOT should investigate all prima facie violations to determine whether a violation has likely occurred and take appropriate corrective action.
  
  
• Expand enforcement action for ACAA complaints beyond the Part 302 administrative process to allow remedies for individual plaintiffs. Administrative action under Part 302 was never intended as a means for redressing individual civil rights complaints.
  
  
• Redesign DOT's database dedicated to complaint processing and compliance monitoring to maintain the data necessary for an accurate picture of ACAA compliance.
  
  
• Require air carriers to submit to DOT at regular intervals their Part 382 complaint data in a standardized summary format that tracks and compares the numbers and types of complaints, as well as trends in their complaint data. Publish the results of the summarized complaint data for all major airlines in the DOT Air Travel Consumer Report.
  
  
• Undertake more extensive investigation and analyses of the causes of Part 382 noncompliance among air carriers and airports.
  
  
• Expand compliance monitoring and enforcement activities and commit more resources (both staff and funds) to them. Regularly analyze the summaries prepared by air carriers of their Part 382 complaint data to identify noncompliance areas and to monitor potential "pattern and practice" trends.
  
  
• Review noncompliance areas identified in the airline complaint data summaries with airline representatives at quarterly intervals and require airlines to submit correction plans, including objective measures of success and a time frame for achieving compliance.
  
  
• Provide more training and targeted technical assistance to the aviation industry in all aspects of ACAA implementation and compliance.
  
  
• Exercise leadership in facilitating resolution of the remaining technical issues impeding ACAA compliance as well as ongoing disagreements concerning appropriate accommodations.

The weaknesses of Part 382 and DOT's current enforcement mechanism make an effective private right of action especially important. DOT's efforts to create the necessary incentives for ACAA compliance have been grossly inadequate. If ACAA's nondiscrimination mandate is to be realized, the disability community will have to use private right of action to create effective incentives. For this reason, a private right of action must be made more accessible through the same statutory right to attorneys' fees and damages as plaintiffs under Title VII and the Americans with Disabilities Act. Such statutory rights have a common goal: to minimize the cost of litigation to plaintiffs and maximize the incentive of potential defendants to stop discriminatory policies and practices.

In light of the above, we recommend that Congress

• Amend the ACAA to establish
  
  
• a statutory private right of action;
• the award of plaintiffs' attorney's fees; and
• the award of compensatory and punitive damages to successful litigants.
  
  
• Amend the ACAA to authorize the Access Board to develop standards in consultation with the Federal Aviation Administration (FAA) for accessible cabin interiors and for any equipment related to air travel access, including boarding assistance equipment.
  
  
• Amend ACAA to expand DOT's authority to:
  
  
• conduct public education activities geared to consumers with disabilities and the general public;
• conduct regular ACAA compliance monitoring with the airlines; and
• levy fines when the finding of an individual informal complaint investigation indicates a violation has occurred, and impose civil penalties for findings of pattern and practice violations.
  
  
• Amend ACAA to include foreign air carriers operating in the U.S. travel market and using U.S. airport facilities within the scope of the law and its implementing regulation.

While the FA Act prohibits unreasonable discrimination by foreign air carriers in providing foreign air transportation, it has been applied only twice in cases of disability discrimination. In both cases, the foreign carrier disputed that their treatment of the passengers was discriminatory and challenged the statute's applicability on this and other grounds. The ACAA mandate of nondiscrimination, on the other hand, is clear in its legislative history: "to provide equal access to air transportation,"⁶ ensuring that people with disabilities are "treated equally when they [use] commercial air carriers"⁷ and not as "second class citizens when it comes to air travel."⁸ This mandate should apply equally to domestic and foreign air transportation service providers operating regularly within the U.S. air travel market.

This report candidly assesses current federal enforcement of the ACAA and recommends changes necessary to fully realize its mandate.

Background

The Disability Civil Rights Monitoring Project is a policy initiative of the National Council on Disability (NCD) to research, evaluate, and report to Congress on federal implementation and enforcement of disability civil rights laws. The impetus for this project was the 1996 National Summit on Disability Policy, at which a diverse group of disability community leaders from across the country recommended that NCD

• work with the responsible federal agencies to develop strategies for greater enforcement of existing disability civil rights laws "consistent with the philosophy of...ADA (Americans with Disabilities Act)" ;⁹
  
  
• continue working "toward elimination of contradictory laws, regulations and programs"; and
  
  
• "promote coordination and commonality of goals across agencies."¹⁰

NCD responded to these directives with a request for proposals to assess the Federal Government's compliance, enforcement, and public information efforts for ADA, Part B of the Individuals with Disabilities Education Act (IDEA), the Fair Housing Act with 1988 Amendments, and the Air Carrier Access Act (ACAA).¹¹ NCD selected the Disability Rights Education and Defense Fund to assess and report on federal enforcement of each of the four laws and on the cumulative impact of federal enforcement of all four laws.

Purpose of this Report

This first report evaluates the effectiveness of the Department of Transportation (DOT) in implementing and enforcing ACAA. Areas of assessment include

• responsiveness of the regulation and approved modifications in addressing key areas of discriminatory practice;
  
  
• clarity of the provisions;
  
  
• timeliness in issuing and implementing the regulation;
  
  
• quality and availability of public information to consumers on the provisions of ACAA;
  
  
• quality and timeliness of guidance to the aviation industry in implementing the provisions of ACAA;
  
  
• effectiveness of compliance and enforcement activities in identifying and eliminating patterns of discriminatory practice, reducing the overall frequency of incidents of alleged violations, and creating equal access to quality air transportation service for persons with disabilities;
  
  
• overall effectiveness of the agency in orchestrating interdepartmental (intermodal) collaboration and coordination of resources to achieve industry compliance; and
  
  
• effectiveness of agency leadership in helping to resolve obstacles to the elimination of discriminatory practices and access barriers.

Scope of the Report

Although this report addresses federal enforcement of the ACAA carried out by DOT, it does not cover several significant aspects of implementation or enforcement. Specifically, it does not address private litigation or the activities of the federally funded protection and advocacy system. Nor does this report advocate specific solutions to the many unresolved ACAA implementation issues. Finally, the report does not attempt to evaluate DOT enforcement procedures in relation to the Administrative Procedures Act.

Research Approach

ACAA federal enforcement activities are assessed from two perspectives. The "whole agency" approach examines the effectiveness of DOT internal coordination and collaboration in achieving all enforcement objectives for which it is responsible. The "whole law" approach examines the overall effectiveness of external coordination and collaboration (i.e., interagency and with the private sector) in achieving all the enforcement objectives of the law.

Research Activities

The research activities for this study included the following:

• identifying the functions and organizational components of the overall federal ACAA enforcement mechanism;
  
  
• identifying, collecting, and analyzing data on ACAA implementation, compliance monitoring, and enforcement activities of the agency;
  
  
• identifying, collecting, and analyzing data on ACAA public information activities of the agency and its contractors;
  
  
• conducting interviews with the responsible agency staff to validate understanding of the day-to-day operation of ACAA enforcement functions;
  
  
• analyzing interactions and interrelationship of enforcement functions and their net impact in addressing noncompliance;
  
  
• reviewing and evaluating overall enforcement operations in light of the requirements, legislative history, and judicial interpretations of the regulation;
  
  
• identifying issues and areas for improvement in the enforcement mechanism and operations (i.e., gaps, duplication, overlaps, inconsistencies);
  
  
• conducting a literature review to add dimension and perspective to research findings on identified issues, including model practices for enhancing compliance; and
  
  
• deriving conclusions and developing preliminary recommendations from the entire analysis.

Report Structure

The report is presented in four parts. Part I provides background on the enactment of ACAA, as well as a brief overview of the current law, regulation, and proposed amendments. An overview of DOT's role in implementing and enforcing ACAA is presented in Part II. This part includes research findings, analysis, conclusions, and recommendations with respect to each of the major ACAA enforcement functions. Part III presents feedback from representatives of the primary ACAA stakeholder groups (the aviation industry and the disability community) on DOT's role in implementing and enforcing ACAA. Part IV summarizes NCD's recommendations for strengthening federal ACAA enforcement.

1.0 The Law: The Air Carrier Access Act (ACAA) of 1986

1.1 Why the Air Carrier Access Act?

Historically, air travel for people with disabilities has not been for the faint of heart. Often, people with certain disabilities either chose not to fly or traveled by air knowing they would probably face prejudice, hostility, disability stereotyping, as well as architectural and other physical barriers; sometimes they faced an outright denial of their right to travel.

Before enactment of ACAA, airlines commonly refused to transport motorized wheelchairs, alleging that the wet cell batteries were hazardous. Airline workers frequently either drained the acid from the batteries before loading the chair or left the batteries behind without notifying the passengers, who then were stranded when they arrived at their destination. Often travelers were required to sign liability waivers to protect the airlines from responsibility for damaging wheelchairs, scooters, and other assistive devices. Because aircraft lacked accessible lavatories, some people with mobility disabilities would limit fluid intake hours before and often during their flight to avoid needing to use the bathroom, especially for long flights. Assistance with boarding and deplaning the aircraft for people with mobility disabilities was often unavailable. When available, it was often unpredictable and even dangerous because of the lack of personnel training and uniform policies on boarding assistance.

Last-minute denials and capricious and arbitrary requirements were commonplace. A passenger told by a customer service representative that a guide dog would be allowed in the passenger cabin would be told at the airport that the dog must travel in the baggage compartment. Travelers with certain disabilities were commonly told they could fly only if accompanied by a person who did not have a disability, whether or not they needed or wanted assistance. Passengers were told on the phone that they could travel unaccompanied, only to learn at the airport that they would not be allowed to fly alone. People perceived as having HIV/AIDS were denied the right to board flights because of fears and misperceptions about their illness.

In the terminal and on the aircraft, deaf and hearing-impaired passengers had little or no access to publicly announced flight information and safety instructions. Access to information about flight delays or changes in departure gates and times often depended on the willingness of an airline worker or fellow traveler to pass on the necessary information. Telephone communication from an airport for a passenger with a hearing disability was virtually impossible.

Although passage of the Federal Aviation Act of 1958 (FA Act)¹² created a legal duty of nondiscrimination for air carriers, the will to implement and enforce both the spirit and letter of this provision concretely on behalf of persons with disabilities did not exist until much more recently. Airlines and airports did little or nothing to accommodate persons with disabilities. The inconsistency with which the same airline provided the meager accommodations available resulted in a denial of access to many disabled travelers.

The intent of Congress in legislating the ACAA was to mandate nondiscrimination by requiring the accommodations necessary for travelers with disabilities to have equal access to air travel and related services.¹³ Despite some significant improvements over the past 10 years, most of the scenarios described above could well have taken place in many airports around the country during the past six months. The remaining challenge is to remove the barriers to full implementation of ACAA's mandate of nondiscrimination.

1.2 ACAA Impact: Progress but Persistent Problems

More accommodations are available for air travelers with disabilities today than at any time in history. Yet the availability of accommodations is inconsistent, and discriminatory treatment continues. The following recent experiences of air travelers with disabilities were reported by several technical assistance organizations serving individuals with disabilities.

Wheelchair Delivery: "It's against our policy"

A woman with muscular dystrophy who uses a motorized wheelchair fractured her leg shortly before traveling from New Zealand to Los Angeles. She was experiencing much pain when she boarded her flight. A frequent traveler, she requested that a tag be placed on her wheelchair instructing the Los Angeles ground crew to deliver it to the arrival gate immediately after the flight landed. Upon arriving, she was told by airline officials that airline policy prevented them from delivering wheelchairs to the gate. She would have to transfer into an airport chair and be pushed to the baggage claim area to retrieve her own chair. She refused, telling the officials she was in great pain and could not endure being lifted unnecessarily. The officials insisted their policy was valid and in force, and that she must deplane. She refused, citing the ACAA and drawing attention to the extenuating circumstances created by her recently fractured leg. An hour passed before the airline officials relented and arranged to have her chair delivered to the plane.

Following the incident, she wrote a letter to the airline complaining about her treatment citing ACAA violations. In a telephone interview, the complainant said, "I have never been so humiliated and embarrassed. They treated me with such hostility. At one point I broke down and cried, I was so frustrated and in pain."

"We do not provide escort service"

The parent of a 12-year-old child with a cognitive impairment made an advance request for airline personnel assistance to help her child travel between gates to make a connecting flight. The child had flown several times before, but on direct flights. On this occasion, there were no direct flights to the child's destination city. In various communications, including letters, airline agents repeatedly told the child's parent that they do not provide "escort service" (i.e., supervision to ensure that the passenger does not wander off) or "custodial assistance" for children. The parent had requested neither; she had simply requested that someone help her child travel from one gate to another to wait for her connecting flight.

"Sorry, no refunds for unused oxygen"

A woman with severe arthritis and heart problems was charged $300 for six canisters of medical oxygen for in-flight use. According to FAA safety regulations, passengers may not bring their own oxygen on board and must pay for oxygen canisters provided by the airline. Two canisters of oxygen were unused at the conclusion of her trip. When she requested a refund, the airline said it was not their policy to issue refunds for unused oxygen. Another passenger who requested a refund for unused oxygen from a different airline complained that the price of oxygen canisters had tripled (from $50 to $150) between 1995 and 1997. This passenger received a modest refund for several unused canisters and assurances that the airline was working to reduce the cost.

"Sorry, we don't have time to board you"

A man who uses a manual wheelchair was en route from Houston to Billings with a plane change in Denver. He had notified the airline that he would require a boarding chair and boarding assistance for each leg of the trip. Upon arriving in Denver he reminded the gate agent for the departing flight that he required a boarding chair. The gate agent told him a boarding chair was not available and the airline did not have time to board him. He objected, informing the agent that he had provided advance notice that he required a boarding chair. The passenger missed his flight and was forced to spend the night in Denver. He elected not to file a complaint because he felt it would not result in any significant change in the system.

"Please deplane immediately"

A man and his wife, both of whom have Tourette syndrome, had boarded a flight from New York bound for San Francisco. Tourette syndrome is a condition characterized by involuntary vocalizations exacerbated by stress. Upon learning of their presence on the plane, the captain asked them to deplane because he believed they would be disruptive. They provided literature on Tourette syndrome to the captain, explaining that their vocalizations were involuntary and would subside when the stress of the moment had passed. The pilot refused to allow the passengers to remain on the flight. The couple filed a lawsuit against the airline.

Each of the incidents above describes a potential ACAA violation. The following section gives a brief history of the ACAA and explains the intent of Congress to remedy discrimination against air travelers with disabilities.

1.3 Background on the Air Carrier Access Act of 1986

The ACAA was enacted after an extended and unsuccessful struggle to establish through case law the illegality of discriminatory practices against air travelers with disabilities.¹⁴ The legal obligation of nondiscrimination created by the FA Act in 1958 was based on two provisions addressing air carriers' service. Section 404(a) required air carriers to provide "safe and adequate" service.¹⁵ Section 404(b), as originally written, prohibited "undue or unreasonable preference or advantage to any particular person, port, locality, or description of traffic."¹⁶

Gradually, the legal meaning of these two provisions became linked and any kind of unjustified discrimination toward air travelers was understood to be a violation of the air carriers' duty to provide adequate air transportation service. The Civil Aeronautics Board (CAB),¹⁷ however, generally invoked the provision in connection with rate or fare issues. While acknowledging section 404's potential application to cases of noneconomic discrimination that directly affected the provision of air transportation, CAB never applied it to any specific case involving alleged discrimination on the basis of disability, race, gender, or ethnicity.¹⁸ Consequently, these provisions had little actual impact on improving access to air transportation for persons with disabilities. Airline and airport policies, as a rule, remained unresponsive to the unique service requirements of persons with disabilities, justified on the basis of safety, economics, and the convenience of other passengers.¹⁹

Fifteen years after the FA Act was enacted, discrimination on the basis of disability was specifically prohibited by law with the passage of the Rehabilitation Act of 1973.²⁰ Section 504, as amended, prohibits discrimination on the basis of disability in any federally assisted program.²¹ This provision, along with the provisions of sections 404(a) and (b) of the FA Act, formed the legal basis for the original nondiscrimination regulation (old Part 382).²² Subpart A contained a general prohibition against discrimination on the basis of disability in providing air transportation; subpart B contained specific requirements for service to disabled passengers; and subpart C outlined record-keeping, reporting, and enforcement responsibilities. The general prohibition contained in subpart A was based on section 404 of the FA Act and applied to all certificated air carriers. The specific requirements of subparts B and C, based on the Section 504 provisions, applied only to certificated carriers receiving direct federal subsidies under the Essential Air Service program.²³

The Paralyzed Veterans of America (PVA) challenged the limited application of subparts B and C in court, arguing that all carriers benefit from federal assistance in the form of Federal Aviation Administration (FAA) air traffic control services and federal grants for improving airport facilities. Therefore, PVA argued, Part 382 should be applied in its entirety to all air carriers, in accordance with section 504. Although the U.S. District Court agreed with PVA's reasoning,²⁴ the Supreme Court did not, holding that unsubsidized carriers were not recipients of federal assistance and thus outside the scope of section 504.²⁵ The Supreme Court's decision exempted most air carriers from the duty to make specific accommodations in providing services to passengers with disabilities.

In response to this decision, Congress enacted and President Reagan signed into law the Air Carrier Access Act of 1986.²⁶ Codified as section 404_ of the FA Act, the amendment prohibits discrimination on the basis of disability by all air carriers, and authorizes DOT to issue regulations "to ensure nondiscriminatory treatment of qualified handicapped individuals consistent with safe carriage of all passengers on air carriers."

Congress's multiple objectives are clear in the statute's legislative history. First, all air carriers were to be bound by affirmative responsibilities similar to those set forth in subparts B and C of the existing regulation. Second, the statute was specifically intended to remedy "discriminatory, inconsistent and unpredictable treatment" of air travelers with disabilities. Finally, the statute affirmed that rules for accommodation were to be consistent with safety regulations, and that restrictions not based on safety and applied solely to passengers with disabilities were to be eliminated.

The new ACAA rule, replacing the old Part 382, took more than four years to develop. Stakeholders in the aviation industry and the disability community provided significant input to the final rule through a regulatory negotiation process. In promulgating the final rule, the Department of Transportation (DOT) clarified five core issues:

First, DOT applied the section 504 "undue burden" principle to strike a balance between requiring accommodations sufficient to enable equal access while containing the costs to the aviation industry in making those accommodations.²⁷

Second, DOT clarified that air carrier discretion in imposing additional requirements or restrictions on air travelers with disabilities is limited to what is required by FAA safety rules.²⁸

Third, DOT emphasized that the new Part 382 resulted from a regulatory negotiation requested by the parties.²⁹ DOT used much of the information generated through the process to develop the new, more detailed regulation to supersede the old Part 382.

Fourth, DOT declared that Part 382 should preempt state regulations protecting persons with disabilities in the area of air transportation services but should be applied on a case-by-case basis.³⁰

Finally, DOT declared its responsibility to implement the ACAA by prohibiting discriminatory practices. Given the continued prevalence of many discriminatory practices under the old Part 382, the new rule required greater clarity in establishing standards to ensure consistent practices by the airlines.³¹

The following section provides a summary of key Part 382 implementation provisions, as well as an overview of ongoing and unresolved ACAA implementation issues.

2.0 The Implementing Regulation: 14 CFR Part 382--Nondiscrimination on the Basis of Disability in Air Travel

The purpose of Part 382 is to implement the ACAA nondiscrimination mandate: "[N]o air carrier may discriminate against any otherwise qualified individual with a disability, by reason of such disability, in the provision of air transportation."³² Part 382 details the actions necessary for compliance. Although clear in many respects, the regulation's areas of uncertainty and stalemate continue to hamper its effectiveness. And clarity notwithstanding, many of the basic Part 382 requirements are poorly understood and not consistently implemented.

2.1 Definitions

2.1.1 Who is an "Individual with a Disability?"

Any individual who

• has physical or mental impairment that on a permanent or temporary basis substantially limits one or more major life activities;
  
  
• has a record of such impairment; or
  
  
• is regarded as having such impairment.

It should be noted that a person with a substantially limiting temporary impairment (e.g., broken limb, acute allergic reaction) is within the scope of the nondiscrimination provision.

2.1.2 Who is a "Qualified Individual with a Disability"?

Any individual with a disability who

• with respect to using airport terminal facilities and ground transportation or obtaining information, acts to avail himself or herself of facilities or services offered by an air carrier to the general public, with reasonable accommodations provided by the air carrier, as needed;
  
  
• with respect to obtaining an airline ticket, offers or makes a good faith attempt to offer to buy, or otherwise validly obtain, an airline ticket; and
  
  
• with respect to obtaining air transportation or other services or accommodations required by Part 382, possesses a valid ticket, presents himself or herself for travel at the airport for the ticketed flight, and meets reasonable, nondiscriminatory contract of carriage³³ requirements applicable to all passengers.³⁴

2.1.3 Nondiscrimination: What It Means

Air carriers are prohibited from

• excluding or denying passengers with disabilities the benefit of any air transportation or related services available to other persons, even if separate or different services are provided, except when specifically permitted by the regulation;³⁵
  
  
• requiring individuals with disabilities to accept special services they did not request;³⁶
  
  
• restricting the movement of passengers with disabilities in terminals or requiring them to remain in a special holding area in order to receive assistance, or mandating any other separate treatment, unless permitted or required by Part 382;³⁷
  
  
• requiring passengers with disabilities to sit on blankets;³⁸
  
  
• imposing charges on persons with disabilities for providing the facilities, equipment, or services required by Part 382;³⁹ or
  
  
• taking adverse action against an individual who asserts rights protected by the ACAA, whether on his or her own behalf, or through or on behalf of someone else.⁴⁰

Air carriers shall also ensure that their contractors who provide services to passengers are bound contractually by a nondiscrimination provision to

• perform their activities on behalf of the air carriers consistent with Part 382; and
  
  
• comply with directives issued by the air carriers' complaint resolution officers (CROs).⁴¹

2.2.1 Implementation Issues

Detailed descriptions of the Part 382 nondiscrimination requirements are in Appendix A, organized under headings corresponding to those in the regulation. For many of these requirements, compliance has been uneven. In some instances, requirements are being challenged or disregarded by airline policies that effectively circumvent the intent of certain provisions and prevent their implementation. A brief commentary on some of the unresolved implementation issues follows.

Accessible Cabin Interiors

DOT has no design inspection program to ensure that all aircraft ordered after August 5, 1990, conform to the Part 382 accessibility requirements. It is difficult to imagine how compliance can otherwise be ensured. In 1997, 187 new aircraft were scheduled for delivery to Air Transport Association member airlines, which are mostly U.S. air carriers.⁴² By 2002, another 457 new aircraft will be delivered.⁴³ Most of these deliveries will be commercial passenger aircraft. If these new aircraft are not designed and built in compliance, retrofitting will be the only viable remedy. Because the cost will far exceed building the aircraft to correct specification, retrofitting will likely be viewed as an "undue burden" inconsistent with the legal standard for reasonable accommodation. The result will be further delays in access to service for air travelers with disabilities.

Lifting and Carrying Passengers

Lifting and carrying is an issue involving the safety and dignity of passengers, as well as air carrier personnel.⁴⁴ Although assistance from air carrier personnel in using ground wheelchairs, boarding wheelchairs, on-board chairs, ramps, and mechanical lifts is within the intended scope of the regulation, "hand-carrying" passengers onto small aircraft (fewer than 30 seats) is not. The reason is that in-door stairs, by which passengers enter aircraft not accessible by a mechanical lift, can safely accommodate only one person at a time.⁴⁵

In other circumstances, lifting and carrying assistance is required where such assistance is reasonable. The problem in implementing the "lifting and carrying" provisions is one of differing interpretations of what is required. Some air carrier personnel will help with transfers that involve lifting, and others will not. On the other hand, some personnel will refuse to allow even friends, family, or personal attendants to lift the passenger with a disability, insisting that air carrier personnel do the lifting. The unfortunate results have sometimes been injuries from being dropped or otherwise mishandled by personnel not well trained in lifting techniques, or refusals to provide needed assistance.

Inconsistencies in policy and practice add to the frustration and unpredictability encountered by air travelers with mobility impairments. More work is needed to define appropriate guidelines for limited physical assistance that minimizes the risk of injury to either passengers or air carrier personnel.

Traveling with an Attendant

Given the inconsistencies among airlines in their lifting/carrying policies, traveling with an attendant is the only way for persons with mobility disabilities to ensure such assistance while traveling. Many passengers with disabilities traveling with an attendant have experienced two major problems. First, persons whose health is unpredictable because of severe disabilities may not always be able to travel on the date they are scheduled to fly. Unless they have purchased full-priced tickets, they typically lose anywhere from $150 ($75 for each ticket to change their travel date) to the entire cost of two tickets upon canceling their trip. Exceptions are rarely made to allow the customer to reschedule, even with restrictions. More flexible ticketing policies are needed to accommodate passengers when circumstances related to their disabilities arise, impairing their ability to travel at the scheduled departure time.

A similar problem results when a person traveling with an attendant is notified at the last minute that a different attendant will accompany him or her. Because airline tickets are nontransferable, the passenger must purchase another ticket, usually at full price, for the new attendant. The cost of air travel, already far more expensive for the person who must travel with an attendant, becomes prohibitive without accommodations in airline ticketing practices for these special needs and circumstances.

Seat Assignments

In November 1996, DOT issued a notice of proposed rulemaking requesting comment on a number of issues, including seating accommodations. On March 4, 1998, DOT issued the final rule containing modifications responsive to the comments received from stakeholders. Effective as of April 3, 1998, the final rule details the requirements as well as the methods airlines can use to accommodate any individual who self-identifies to an airline as having a disability.⁴⁶

The final rule is a clear improvement over the very limited accommodation provided for in the NPRM. Yet the rule is complicated, requiring an automated tracking mechanism and personnel training to implement it effectively. As with other provisions of Part 382, successful implementation depends greatly on the initiative taken by air carriers in quickly issuing procedures explaining the new requirements and ensuring timely training of their personnel.

Preboarding

Under Part 382, passengers who wish to stow assistive devices in the aircraft cabin must preboard in order to have priority access to closet space. In the past several years, airlines have increasingly eliminated preboarding procedures. Ostensibly, this was a result of overuse of preboarding by passengers who simply wish to board the plane ahead of everyone else. Because several accommodations under the regulation are contingent upon the passenger with a disability preboarding the aircraft, without preboarding, this passenger must rely on the goodwill of flight attendants and other passengers to make already occupied storage space or an appropriate seat available. Preboarding is the mechanism by which people with disabilities can ensure that the priority access they are entitled to as an accommodation is in fact given.

Cost and Availability of Oxygen

Under the regulation, passengers who must travel with oxygen need give only 48 hours advance notice and 1 hour advance check-in when the carrier provides oxygen service. A significant number of problems have been reported concerning both the price and availability of oxygen. The cost of oxygen canisters, which must be supplied by the air carrier to comply with safety regulations, varies significantly depending on the carrier, the airport, and even the flight. (Prices are reported to vary from $50 to $250 per canister.) Some carriers do not permit passengers to return unused canisters for which they have paid a premium price. Other complaints document the failure of personnel to ensure that oxygen requested in advance is available at the gate for use while awaiting a connecting flight.

Inaccessible Websites

An issue that has received little attention is the accessibility of websites and other online means of communication between consumers and airline reservation systems. Airlines frequently offer incentives for making online reservations at websites, which often are inaccessible to consumers with visual and other impairments. Offering incentives without offering consumers with disabilities an alternative means to take advantage of them does not meet the regulation's program accessibility standard. Both consumers and airlines could benefit from a fully accessible web-based reservation system that allowed consumers to enter their own special needs information to their reservation at the point of sale.

2.2.2 Airline Administrative Responsibilities

Training

Under 14 CFR Part 382.61, air carriers are required to:

• provide training to all personnel dealing with the traveling public on the requirements of Part 382 pertinent to their duties, if the carrier operates aircraft having more than 19 seats.⁴⁷
  
  
• ensure that employees are proficient and knowledgeable concerning
  
  
• Requirements of Part 382 and other DOT and FAA regulations affecting air transportation service to persons with disabilities and
  
  
• The carrier's own procedures implementing these regulations, including the safe and proper operation of equipment used to accommodate persons with disabilities.⁴⁸
  
  
• train their employees in
  
  
• Awareness of the different kinds of disabilities, including physical, sensory, mental, and emotional;
  
  
• responding appropriately to persons with disabilities; and
  
  
• Distinguishing among the differing abilities of persons with disabilities.⁴⁹
  
  
• consult with organizations representing persons with disabilities to develop programs for training employees in the policies and procedures for implementing federal requirements.⁵⁰
  
  
• ensure that the initial training of employees takes place as follows:
  
  
• All crew members subject to training under 14 CFR Part 121 or 135 and employed on the date the air carrier's program is established shall receive training as part of their next scheduled recurrent training.⁵¹
  
  
• All other personnel employed on the date the air carrier's program is established shall receive training within 180 days of that date.
  
  
• All crew members subject to training under 14 CFR Part 121 or 135 and employed subsequent to the date the air carrier's program is established shall receive training before they assume their duties.
  
  
• All other personnel employed subsequent to the date the air carrier's program is established shall receive training within 60 days after they begin employment.⁵²
  
  
• ensure that
  
  
• all employees receive refresher training as needed to maintain proficiency regarding the requirements of Part 382 pertaining to their duties.⁵³
  
  
• training, in accordance with the above requirements, is provided to every contractor employee who deals directly with the traveling public at airports.⁵⁴
  
  
• employees who are designated CROs receive training on the requirements of Part 382 and CRO responsibilities by June 5, 1990 (within 60 days of the regulation's effective date). Employees subsequently designated as CROs must receive training before assuming their duties. All employees performing CRO functions must receive annual refresher training.⁵⁵
  
  
• training is provided to flight crew members and other appropriate personnel to ensure their familiarity and compliance with the requirements of Part 382, if the carrier operates aircraft having 19 or fewer seats.⁵⁶

Compliance Programs

Under 14 CFR Part 382.63, air carriers are required to

• establish and implement a written program for carrying out the requirements of Part 382 by December 4, 1990, if the carrier operates aircraft having more than 19 seats.⁵⁷
  
  
• comply with Part 382 requirements before their programs are established.⁵⁸
  
  
• include a schedule for training personnel implementing Part 382 requirements on policies and procedures.⁵⁹
  
  
• submit their programs for review by December 4, 1990, and implement them immediately upon submission to DOT, if the carrier is a major or national carrier or shares a designator code with a major or national carrier.⁶⁰
  
  
• maintain their programs on file, make them available to DOT upon request, and incorporate changes into their programs as directed by DOT.⁶¹
  
  
• establish and maintain a complaint resolution mechanism that includes the availability of one or more CROs at each airport the carrier serves.⁶²
  
  
• make a CRO available to any person who complains of an alleged violation of Part 382 during all times the carrier is operating at the airport. If the CRO is not present in person at the airport at the time of the complaint, the air carrier shall make the CRO available via telephone or via teletype service for the hearing impaired at no cost to the customer.⁶³
  
  
• ensure that the CRO is thoroughly familiar with the requirements of Part 382.⁶⁴
  
  
• ensure that the CRO has authority to make dispositive resolution of complaints on behalf of the carrier⁶⁵ as follows:
  
  
• If a complaint is made before an action has resulted in a violation, the CRO will take action or direct other carrier personnel to take the action necessary to ensure compliance. If the refusal to comply is based on safety, the CRO may not countermand a decision of the pilot in command of an aircraft.
  
  
• If a complaint is based on an alleged violation that has already occurred and the CRO agrees that a violation has occurred, the CRO shall provide to the complainant a written summary of the facts and the steps the carrier proposes to take, if any, in response to the violation.
  
  
• If the CRO determines that no violation has occurred, the CRO shall provide to the complainant a written summary of the facts and the reasons, under Part 382, for the determination.
  
  
• The CRO's summary will inform the complainant of the right to pursue DOT enforcement action. The summary will be provided to the complainant at the airport or forwarded to him or her within 10 calendar days of the complaint.⁶⁶
  
  
• establish the following procedures for resolving written complaints alleging violations of Part 382:⁶⁷
  
  
• Complaints postmarked more than 45 days after the alleged violation do not require a response.⁶⁸
  
  
• Written complaints shall state whether the complainant has contacted a CRO, and shall include the CRO's name, date of contact, and any written summary or response received from the CRO.⁶⁹
  
  
• Written complaints alleging violations shall receive a dispositive written response within 30 days of receipt⁷⁰ as follows:
  
  
• If the carrier agrees that a violation has occurred, the carrier shall provide a written statement setting forth the summary of the facts and the steps the carrier proposes to take, if any, in response to the violation.
  
  
• If the carrier denies that a violation has occurred, the response shall include a written summary of the facts and the reasons, under Part 382, for the determination.
  
  
• The written response shall inform the complainant of his or her right to pursue DOT enforcement action.⁷¹

Under 14 CFR Part 382.65, air carriers are obliged to inform complainants of their right to pursue DOT enforcement action.⁷²

2.2.3 Department of Transportation Administrative Responsibilities

Under 14 CFR Part 382.63, DOT is required to review the implementation plan of each air carrier and direct them to amend their plans as needed to comply with the requirements of Part 382.⁷³

Under 14 CFR Part 382.65, consumers with a complaint about an ACAA violation may contact the DOT Office of Consumer Affairs for assistance. Consumers may also file formal complaints for DOT administrative review in accordance with 14 CFR Part 302.⁷⁴

Since 1986, no ACAA amendments have been passed, but Part 382 has been modified several times. Section 3.0 summarizes recent changes and proposed amendments.

3.1.1 Clarification of the Definition of Nondiscrimination

In the final rule issued on March 4, 1998, to the November 1996 NPRM, DOT establishes the nondiscrimination standard set forth in the Rehabilitation Act, Section 504, as amended, as the applicable standard for ACAA implementation and enforcement. This standard requires that air carriers, in addition to meeting the specific requirements of Part 382, to modify policies, practices, or facilities as needed to ensure nondiscrimination, unless making the modifications would constitute "an undue burden or fundamentally alter their program."⁷⁵

DOT's purpose in adding the Section 504 standard to Part 382.7 was to clarify that air carriers have a duty to proactively implement modifications in accordance with the general principle of nondiscrimination, and not limit accommodations to those enumerated in Part 382.⁷⁶

3.1.2 Procedures for Providing Seating Accommodations

Under the new amendment to the regulation, air carriers are required to make the following accommodations

• Any person who self-identifies to the carrier as having a disability and who cannot readily transfer over a fixed armrest from an aisle chair must be seated in a row with a moveable armrest.⁷⁷
  
  
• Personal assistants performing functions for a passenger that airline personnel are not required to perform shall be seated next to the person they are assisting.⁷⁸
  
  
• Air carriers shall provide either a bulkhead seat or another seat as requested by passengers traveling with service animals or passengers having a fused or immobilized leg;⁷⁹
  
  
• Air carriers that provide advance seat assignments shall use either a "seat blocking," a "designated priority seating," or some other mechanism approved by DOT to comply with seating accommodation requirements.⁸⁰

3.1.3 In-Cabin Stowage of Collapsible Electric Wheelchairs

Air carriers are required to accept a passenger's battery-powered wheelchair as checked baggage, subject to requirements such as timely check-in and proper labeling, securement and packaging.⁸¹ Air carriers shall not drain wheelchair batteries.⁸² Upon passenger request, collapsible wheelchairs shall be stowed in the cabin stowage area, subject to the Part 382 stowage guidelines.⁸³ Passengers also may provide written directions to airline personnel for disassembly and reassembly of their wheelchairs.⁸⁴

3.1.4 Issues Not Addressed by the Final Rule

In the 1996 NPRM, DOT also sought comment on additional accommodations for persons with hearing impairments and the provision of a smoke-free accessible path through airports for persons with respiratory disabilities. DOT deferred decisions on whether to propose rules on both of these matters until after further consideration.⁸⁵

3.2.1 Draft Miller Amendment

Case law has established that a plaintiff has a private right of action for ACAA violations. However, guidelines regarding damages and legal fees have not been established. Sharon G. Miller, lead attorney in a recent ACAA case,⁸⁶ has proposed the following amendments to codify plaintiffs' standing and the terms of a private right of action:

• persons filing lawsuits pursuant to ACAA violations should have the same private right of action and private remedies as persons filing lawsuits regarding any other civil rights statutes;
  
  
• public remedies pursuant to violations of the ACAA should be assessed in the same amounts as violations of other civil rights statutes ($50,000 for first violation and $100,000 each for subsequent violations, with each discriminatory act counted as a violation);
  
  
• each airline should be required to forward copies of written complaints and its written summaries of oral complaints relating to disability to DOT within 30 days of receipt; and
  
  
• DOT should be required to investigate individual complaints against airlines, determine whether a violation has occurred, and penalize the airlines for each occurrence of an ACAA violation.⁸⁷

3.2.2 Inclusion of Code-Sharing Foreign Air Carriers

The number of Americans with disabilities who travel internationally is increasing. Because ACAA applies only to U.S. domestic carriers, passengers on international flights of foreign air carriers operating within the United States often experience discrimination in the form of inaccessible facilities and lack of reasonable accommodations such as wheelchair assistance. Although a general prohibition against discrimination applies to foreign carriers under the FA Act, DOT has applied it to only two cases of discrimination involving a disability issue.⁸⁸ The economic advantages to foreign carriers operating in the U.S. market and using U.S. airport and air traffic control facilities are clear. Those advantages are further enhanced when foreign carriers enter into code-sharing arrangements with U.S. domestic carriers whose flight networks they share. Foreign carriers operating in the U.S. market must be required to comply with the same laws as U.S. domestic carriers in providing air travel services to the American public. The ACAA should be amended to include foreign carriers within its scope, and the necessary international agreements should be developed or revised to reflect these legal obligations.

In light of this background on ACAA's history and the continuing problems in realizing its goals, Part II begins the analysis of federal enforcement with a description of its organizational and functional components at the U.S. Department of Transportation.

4.0 Background on DOT Enforcement Philosophy and Operations

4.1 Regulation of the Aviation Industry and Consumer Protection

Some history on the federal aviation enforcement function will aid in understanding the Air Carriers Access Act (ACAA) enforcement today. Informal complaints alleging ACAA violations are handled by the Consumer Protection Division within DOT's Office of General Counsel (OGC). Aviation consumer protection, initially established by the Civil Aeronautics Board (CAB) during the 1950s, was originally linked to the economic regulation of the airline industry.

CAB's mission as the agency for the regulation of aviation industry economic issues, including consumer protection, grew for two decades. At its peak, the CAB regulatory enforcement mechanism consisted of more than 100 enforcement and legal staff in Washington, DC,⁸⁹ in addition to a national network of field office auditors.⁹⁰ By the late 1970s, changes in the national political climate and fiscal priorities led to the phase-out of CAB and most of its organizational structure.

4.2 The Transition to Industry Deregulation

The Airline Deregulation Act of 1978 abolished CAB by calling for the gradual lapsing of its powers to set airline rates and routes and to exercise antitrust functions by 1984.⁹¹ The Deregulation Act also called for the elimination of all requirements of section 404(a), except the provision for "safe and adequate service" and the general nondiscrimination provision of section 404(b) as applied to domestic, but not foreign, air transportation by 1982. By the end of the sunset period in 1984, CAB had been entirely dissolved except for a few components transferred to DOT. Initially excluded from those organizations scheduled for transfer to DOT, the Aviation Consumer Protection Division was transferred into DOT's Office of Intergovernmental Affairs in 1985, as a result of the Civil Aeronautics Board Sunset Act of 1984.⁹² The Sunset Act amended and clarified the provisions of the Deregulation Act regarding the transfer of certain functions to DOT, including the consumer protection function. The legislation was a reprieve, saving the entire division from the fate of its parent organization.⁹³

Although the Federal Aviation Act of 1958 (FA Act) mandated nondiscrimination in air travel,⁹⁴ the standard was interpreted in conjunction with the "safe and adequate" service provision of section 404 (a).⁹⁵ Nondiscrimination was understood more as a matter of fair and consistent commercial practices (e.g., ticketing, pricing) than of equal access to air travel. Enforcement of this provision did not extend to the protection of civil rights, though CAB affirmed that instances of race or age discrimination might come within the scope of section 404 if the alleged discrimination directly affected the provision of air transportation.⁹⁶