[nabs-l] Air Travel Law

[Dennis Clark]

Hello everyone,

Given the lively discussion during the past few days on the list concerning airline travel and questions as to what conduct is permited by the airlines and what is not, I am posting an excellent summary of the Air Carrier Access Act below. This wonderful exerpt is taken from a document titled DISABILITY LAW HANDBOOK written by Jacquie Brennan and Published by the DBTAC Southwest ADA Center. The document from which this is taken discusses many aspects of disability law and if you would like the complete document visit www.southwestADA.org where it can be downloaded for free. 



The title page states the following:

This book is printed courtesy of the National Network of ADA Centers. There are a number of

national training, technical assistance and resource development initiatives provided by the

DBTACs. Additional information about these is available in the National DBTAC Initiatives

section of this booklet.

Copyright © 2009. All rights reserved.

The information in this book is intended solely as informal guidance and is neither a

determination of your legal rights or responsibilities under the Americans with Disabilities Act

or other laws, nor binding on any agency with enforcement responsibility under the ADA and

other disability-related laws.



The following exerpt on the Air Carrier Access Act begins on page 43.



Air Travel

What disability law applies to air carriers?

The Air Carrier Access Act.

Is this a new law?

Not really. It was passed by Congress in 1986. In 1990, the Department of Transportation

published implementing regulations. The Air Carrier Access Act (ACAA) is supposed to

minimize the special problems that travelers with disabilities face as they navigate through the

complex air travel system.

Does this law cover all kinds of disabilities or only mobility impairments?

It does cover all kinds of disabilities. Under the ACAA, an individual with a disability is a

person who has a physical or mental impairment that, on a permanent or temporary basis,

substantially limits one or more major life activities, has a record of such an impairment, or is

regarded as having such an impairment. If you are familiar with the Americans with

Disabilities Act (ADA), then you may notice that the ACAA definition of an individual with a

disability is almost identical to the ADA definition. There is one important difference, though.

The ACAA covers even temporary disabilities, like broken bones.

So airlines have to let people with disabilities on flights?

Yes. Airlines cannot refuse a passenger just because that passenger has a disability. Also,

airlines cannot limit the number of people with disabilities on a particular flight. Any

information that other passengers get must also be provided to people with disabilities. The

only exceptions are if the individual with a disability would endanger the health or safety of

other passengers or violate an FAA safety rule, or if the plane has fewer than 30 seats and there

are no lifts or boarding chairs available that can adapt to the space limitations of such a small

plane.

Can the air carrier require me to provide proof of my disability?

An air carrier must not require any kind of proof as a condition for the provision of

transportation, except in some very limited circumstances. If a person is traveling in a stretcher

or incubator, needs medical oxygen during a flight, or if there is reasonable doubt that the

person can complete the flight safely, without requiring extraordinary medical assistance

during the flight, then the air carrier may require a written statement from a physician saying

that the passenger is capable of completing the flight without requiring extraordinary

assistance during the flight. It must be dated within ten days of the initial departing flight. The

air carrier may also require such a written statement if the passenger has a communicable

disease that could pose a direct threat to the health or safety to others on the flight. In that case,

the physician statement should say that the disease or infection would not, under present

conditions in the patient's case, be communicable to other people during the normal course of a

flight. It should also state what precautions should be taken to prevent transmission and it must

be written within ten days of the flight for which it is presented.

Do I have to give the airline advance notice that I will be on a flight, if I have a disability?

Maybe. A carrier must not require a passenger with a disability to give advance notice that s/he

will be traveling on a flight. However, if the passenger with a disability will require certain

specific services, then advance notice must be provided.

An air carrier may require that a passenger with a disability who requires carrier-supplied

inflight medical oxygen give up to 72 hours' advance notice on international flights and 48

hours' advance notice on domestic flights, and check in one hour before the check-in time for

the general public. And 48 hours' advance notice and check-in one hour before the check-in

time for the general public is required to use a ventilator, respirator, continuous positive airway

pressure (CPAP) machine or portable oxygen container (POC).

An air carrier does not have to allow an incubator or a person who must travel on a stretcher on

the plane, but if it chooses to do so, it can require 48 hours' advance notice and check in one

hour before the check-in time for the general public. Also, an air carrier does not have to

provide a hook-up for a respirator, ventilator, CPAP machine or POC to the aircraft electrical

power supply, but if it chooses to do so, it can require 48 hours' advance notice and check in

one hours before the check-in time for the general public.

Air carriers can also require 48 hours' advance notice and check in one hour before the check-

in time for the general public in order to receive any of the following:

. transportation for an electric wheelchair on an aircraft with fewer than 60 seats;

. provision of hazardous materials packaging for batteries or other assistive devices that

are required to have such packaging;

. accommodation for a group of ten or more individuals with a disability who make

reservations and travel as a group;

. provision of an on-board wheelchair on an aircraft with more than 60 seats that does not

have an accessible lavatory;

. transportation of an emotional support or psychiatric service animal in the cabin;

. transportation of a service animal on a flight segment scheduled to take 8 hours or more;

and

. accommodation of a passenger who has both severe vision and hearing impairments.

It is up to the air carrier to provide the service or accommodation if the advance notice is

given, and to make sure that reservations and other administrative services ensure that, when

the advance notice is given, the notice is communicated, clearly and on time, to the people who

will be responsible for providing the service or accommodation.Even if the passenger does not meet advance notice or check-in requirements, the air carrier

must still provide the service or accommodation if it can do so by making reasonable efforts,

without delaying the flight.

Can the airline require me to travel with an assistant just because I have a disability?

Air carriers may not generally require that a passenger with a disability travel with another

person as a condition of being able to have the air transportation. However, passengers who

fall into certain categories may be required to travel with a safety assistant if the air carrier

determines that it is essential for safety. The categories are:

. a passenger traveling in a stretcher or incubator;

. a passenger who, because of mental disabilities, is unable to comprehend or respond

appropriately to safety instructions from carrier personnel;

. a passenger with a mobility impairment so severe that the person is unable to physically

assist in his or her own evacuation of the aircraft; and

. a passenger who has both severe hearing and severe vision impairments, if the passenger

cannot establish some means of communication with personnel that is adequate to

communicate safety instructions and enable the passenger to assist in his or her own

evacuation of the aircraft.

If the passenger with a disability believes that s/he can travel independently, but the air carrier

disagrees, then the air carrier must not charge for the safety assistant's transportation. The air

carrier is not required to find or provide the safety assistant. If the passenger voluntarily

chooses to travel with a personal care attendant or safety assistant that the air carrier does not

require, the air carrier may charge for the transportation of that person.

Concern that a passenger with a disability might need help with personal care, like using the

lavatory or eating, is not the basis for requiring the person to travel with a safety attendant. Air

carriers have to make sure that personnel are trained about this. The air carrier is allowed to tell

passengers that air carrier personnel are not required to provide those kinds of services.

Can the airline charge a surcharge to me for providing accommodations?

Air carriers are not allowed to impose charges for providing facilities, equipment, or services

that the ACAA requires the air carriers to provide to passengers with a disability. However, if a

passenger must use more than one seat because of the passenger's size or condition (like the

use of a stretcher), then the carrier may charge for the extra seat(s). This is not considered a

special charge.

If the air carrier has a website for reservations and ticket purchase that is not accessible to

people with certain disabilities, then it must allow people with disabilities to make reservations

and purchase tickets in another way (such as by phone) without imposing additional charges.

And if there is a price discount that is available only for online purchases, it must provide the

same discount to people with disabilities who cannot access the inaccessible website.How can I find out in advance if the plane I will be on is accessible?

Air carriers must provide the following kinds of information about the accessibility of the

aircraft expected to make a particular flight:

. the specific locations of seats with movable armrests (by row and seat number);

. the specific location of seats that the air carrier does not make available to passengers

with a disability (such as exit row seats);

. any aircraft-related limitations on the ability to accommodate passengers with a

disability, including limitations on the availability of level-entry boarding to the aircraft

at any airport involved with the flight;

. any limitations on the availability of storage facilities in the cabin or bay;

. whether the aircraft has an accessible lavatory; and

. the kinds of service to passengers with disabilities that are, or are not, available on the

flight.

Information and services must be available to people who use text telephone, whether through

the carrier's TTY, voice relay, or other technology. Air carriers must provide access to TTY

users during the same hours that telephone service is available to the general public. There can

be no extra charges for TTY users. Carriers must list their TTY number any place they list their

phone number. If the carrier does not have a TTY, then it must state how TTY users can reach

reservation and ticketing services, such as through a voice relay service.

Does the airport itself have to be accessible?

Airports must be accessible to, and usable by, individuals with disabilities. Air carriers are

responsible for accessibility for all airport facilities that are owned, leased, or controlled by the

air carrier. Airport facilities have the same accessibility standards as do places of public

accommodation under Title III of the ADA, including the implementing regulations

promulgated by the U.S. Department of Justice.

Air carriers must ensure that transportation systems within terminals, and between the terminal

and other destinations, including moving sidewalks, shuttle vehicles, and people movers,

comply with the accessibility requirements of the U.S. Department of Transportation's ADA

rules.

Animal relief areas must be available for service animals that accompany passengers

departing, connecting, or arriving at an airport.

Captioning must be enabled at all times on all televisions and other audiovisual displays that

are capable of displaying captions and are located in any part of the terminal where passengers

can go. New or replacement televisions or audiovisual displays must have high-contrast

captioning capability.

Air carriers are required to provide assistance when requested by a passenger with a disabilityto transport the passenger between gates to a connecting flight, as well as from the terminal

entrance, or vehicle drop-off point, through the airport to the gate for a departing flight, and

from the gate to the terminal exit or a vehicle pick-up point. This includes providing assistance

in accessing key functional areas of the terminal, like ticket counters and baggage claim. It also

includes a brief stop, at the passenger's request, at the entrance to a rest room on the route.

Carriers at U.S. airports must, if requested, in cooperation with the airport operator, escort a

passenger with a service animal to an animal relief area at the airport.

When providing assistance to move through the terminal, carriers must assist passengers who

are unable to carry luggage, with transporting both checked and carry-on luggage. The carrier

may ask the passenger for credible verbal assurance that s/he cannot carry the luggage in

question. If credible verbal assurance is not provided, the carrier may require documentation.

Do individuals with disabilities have to go through the same security screenings as other

passengers?

All passengers, including passengers with disabilities, are subject to TSA security screening in

U.S. airports. Likewise, at foreign airports, passengers, including passengers with disabilities,

are subject to the security screening measures required by law in the country where the airport

is located.

If the air carrier imposes security measures that go beyond those mandated by TSA or a foreign

security screening, then it must use the same criteria for passengers with disabilities as for

other passengers. Passengers who use a mobility or other assistive device should not be subject

to special screening just because of the device unless the device activates a security system or

security personnel make a judgment that the device might conceal a weapon or other

prohibited item. Air carriers may not require searches of individuals with disabilities to a

greater extent, or for different reasons, than for other passengers.

If a passenger with a disability requests a private screening, then it must be provided in time

for the passenger to catch the plane. But if, with the use of technology, an appropriate

screening of a passenger can be performed without necessitating a physical search of the

person, then a private screening is not required.

What services do the air carriers have to provide to passengers with disabilities on the

plane?

Air carrier personnel must provide the following assistance, when requested, for a person with

a disability:

. Assistance in moving to and from seats, as part of enplaning and deplaning;

. Assistance in preparation for eating, such as opening packages and identifying food;

. Assistance with the use of the on-board wheelchair, when there is one on the plane, to

enable the person to move to and from a lavatory;

. Assistance to a semi-ambulatory person in moving to and from the lavatory, not

involving lifting or carrying the person; . Assistance in stowing and retrieving carry-on items, including mobility aids and other

assistive devices stowed in the cabin;

. Effective communication with passengers who have vision impairments and/or who are

deaf or hard-of-hearing, so that these passengers have timely access to information the

carrier provides to other passengers (info such as weather, on-board services, flight

delays, and connecting gates).

Air carrier personnel are not required to provide extensive special assistance, including

assistance in actual eating, assistance within the restroom; assistance at the passenger's seat

with elimination functions; and provision of medical services.

I use a portable oxygen concentrator (POC) and when I tried to take it on a plane a few

years ago, the airline would not allow it. Is it lawful for them to do that?

Carriers, except for on-demand air taxi operators, who conduct passenger services must allow,

on all aircraft with a capacity of more than 19 seats, any passenger with a disability to use a

ventilator, respirator, continuous positive airway pressure machine (CPAP), or an FAA-

approved portable oxygen concentrator (POC), unless either the device does not meet FAA

requirements for medical portable electronic devices and does not display a manufacturer's

label that indicates the device meets those FAA requirements or the device cannot be stowed

and used in the passenger cabin consistent with TSA, FAA, and PHMSA regulations.

What does an airline not have to provide under the ACAA?

The airline is not required to actually provide the medical oxygen for use on the plane, the

ability to carry an incubator, hook-up for a respirator to the plane's electrical system, or

accommodations for a passenger who has to travel on a stretcher. If the airline chooses to

provide any of these services, it may charge a reasonable fee and require 48-hour advance

notice and 1-hour advance check-in.


Are service animals covered by the ACAA?

The ACAA definition of service animals includes guide dogs, signal dogs, psychiatric service

animals, and emotional support animals. Airlines are required to allow service animals

traveling with persons with disabilities to sit with them in the cabin of the aircraft. Persons

traveling with pets, as opposed to service animals or emotional support animals, do not have

any rights under the ACAA. To determine whether a qualified individual with a disability is

entitled to travel with a service animal, airline personnel may ask questions and request

documentation in certain circumstances. The questions that may be asked, and the level of

documentation that may be required, will vary depending on the individual's disability and the

type of service animal. The reason for the variation in requirements is because: 1) many people

with disabilities who travel do not have obvious disabilities and the need for a service animal is

not apparent; and 2) even for some individuals with obvious disabilities, the reason they need

the service animal may not be apparent.If an individual has an obvious disability and: 1) the service animal is wearing a harness, tags,

vests, or backpack; or 2) the person provides identification cards or other written

documentation; or 3) credible verbal assurances that the animal is a service animal, then the

airline should permit the animal to accompany the individual with a disability on the plane.

If airline personnel are not certain of the animal's status, even after being told that an animal is

a service animal, additional questions may be asked, including: "What tasks or functions does

your animal perform for you?," "What has the animal been trained to do for you?," and

"Would you describe how the animal performs this task or function for you?''

For emotional support or psychiatric service animals, airlines may request very specific

diagnostic documentation 48 hours in advance of a flight. The documentation must: 1) be

current (not be more than one year old); 2) be on letterhead from a licensed mental health

professional; 3) state that the person has a mental or emotional disability recognized in the

Diagnostic and Statistical Manual of Mental Disorders (DSM IV); and 4) state that the animal

is needed as an accommodation for air travel or for activity at the individual's destination. The

documentation should also state that the health professional is treating the individual and

include the date and type of the mental health professional's license and the state or other

jurisdiction in which it was issued. It does not need to state the individual's diagnosis.

Unusual animals such as miniature horses, pigs, and monkeys may be allowed to travel as

service animals. To determine whether the animal will be allowed in the cabin the airline may

take into account the animal's size, weight, and whether the animal would pose a direct threat

to the health or safety of others, or cause a significant disruption in cabin service. If the animal

would pose or cause any of these things, the animal may have to travel in the cargo hold. In

addition, if there are restrictions on any of these animals at the final destination point of travel,

the animal may not be allowed to fly the friendly skies at all. Other unusual animals such as

snakes, other reptiles, ferrets, rodents, and spiders will be denied boarding the plane at all, as

they may pose other safety and public health concerns. Foreign carriers are required to

transport only dogs as service animals.

Any service animal may be denied boarding privileges if the animal barks, growls, jumps on

people or misbehaves in ways that indicate the animal has not been trained to behave properly

in public settings, poses a direct threat to the health and safety of others, or poses a significant

risk of disruption in airline service.

Service animals cannot be denied passage because other passengers are annoyed by, or afraid

of, animals. Airlines will make the accommodations needed to assure that other passengers are

comfortable.A person traveling with a service animal may ask to pre-board and request a bulkhead seat or

another seat that better suits their needs. People with disabilities can sit in any seat with their

service animal unless they block an aisle or an area designated for emergency evacuation. If

they cannot be accommodated in a requested seat, then they must be given the opportunity to

move to another seat within the same class of service.

Airlines are not required to make modifications that would constitute an undue burden or

would fundamentally alter their programs. In order to accommodate a service animal, an

airline does not have to ask another passenger to give up all or most of the space in front of

their seats. Airline personnel may try to find someone willing to share their foot space. Airlines

can voluntarily reseat a person traveling with a service animal to a business or first-class seat

to accommodate a service animal, but are not required to do so. In-flight services and facilities

do not have to be provided to service animals. Individuals traveling with the animals must

provide for the animal's food, care, and supervision. However, in the terminal, airlines must

provide animal relief areas and provide escort service to individuals traveling with service

animals to these areas, upon request.

What if I have a complaint under the ACAA?

There are two options. All airlines are required to have a Complaint Resolution Official (CRO)

immediately available to resolve disagreements between passengers with disabilities and the

airline. A CRO must be designated by any carrier providing scheduled service, as well as a

carrier providing nonscheduled service using aircraft with 19 or more passenger seats. A CRO

must be available at each airport the carrier serves at all times when the carrier operates at the

airport. The CRO may be available in person or by telephone. If a telephone link to the CRO is

used, then TTY or similarly effective technology must be available for person with hearing

impairments. CRO services must be available in the language(s) in which the carrier makes

services available to the general public.

Carriers must make passengers aware of the CRO's availability and contact info any time a

person complains or raises a concern with carrier personnel or contractors about

discrimination, accommodations, or services for passengers with a disability, that is not

immediately resolved by carrier personnel. This includes issues at the airport, as well as when

contacting reservation agents and accessing websites.

The CRO must be completely familiar with the requirements of the ACAA and its implementing

regulations, as well as the carrier's procedures with respect to passengers with disabilities.

The CRO should be the carrier's expert in compliance with the ACAA. The carrier must make

sure that each CRO has the authority to resolve complaints on the behalf of the carrier. The

CRO must have the power to overrule the decision of other personnel, except that the CRO

does not have to be given authority to countermand a decision of the pilot-in-command of an

aircraft when the decision is based on safety considerations.

If an individual believes that an air carrier has violated any provision of the ACAA and its

implementing regulations, the individual may either seek assistance or file an informal

complaint with the DOT no later than 6 months after the date of the incident by either:

. Going to the Department's Aviation Consumer Protection Division at

airco sumer.ost.dot.gov and selecting "Air Travel Problems and Complaints," or

. Writing to DOT, Aviation Consumer Protection Division (C-75),

1200 New Jersey

Avenue, SE, Washington DC 20590.