More Questions Than Answers in DOT NPRM on Accessible Air Travel

When the Department of Transportation invited a select group of disability advocates to the White House last month to announce a Notice of Proposed Rule Making (NPRM) regarding accessibility in air travel, many of my friends reached out to share their excitement. “Finally,” one fierce advocate texted, “Secretary Pete is going to put some meat on those [regulatory] bones!”

Based on the reactions shared on social media from many of those who were in attendance (I was not invited and watched the live stream instead), you’d have thought something monumental was announced. But, as has been typical under this and previous administrations, the proposed rules were pedestrian and promise little to advance accessibility. The proposal was, perhaps as another advocate put it, “basically a nothing burger.”

Let’s take a look at each of the proposed regulations, what’s new and what isn’t — and how we can still work to make the proposed rules mean something:

Passengers’ right to “safe and dignified assistance”

The DOT seeks to mandate that all assistance provided by airline personnel or contractors be done in a “safe and dignified manner.”

What this means, the department doesn’t specify, but it asks for public comment on the following questions:

1. Are the terms “safe” and “dignified” easily understood by carriers and by the public?
2. Should the Department include definitions for “safe” and “dignified” in Part 382? If so, what should the Department consider when drafting definitions for those terms?
3. Are there any other specific practices or procedures that the Department should require or prohibit to safeguard dignity and safety for passengers with disabilities?

What does safe and dignified mean to you? For me, privacy is a key factor — there shouldn’t be a line of passengers standing in the jet bridge, making exasperated grunts and groans, as I transfer from my own wheelchair into an aisle chair.

Passengers’ right to prompt emplaning, deplaning and connecting assistance

The DOT will codify its long-held interpretation of the ACAA to state that, for passengers deplaning via an aisle chair, “personnel and boarding chairs must be available to deplane the passenger no later than as soon as other passengers have left the aircraft.” It also plans to state that “the passenger’s personal wheelchair must be ready and available as close as possible to the door of the aircraft, to the maximum extent possible.”

Neither of these regulations are new and, as proposed, are not likely to alter the behavior of air carriers. The DOT asks for additional comment on these questions in preparing a final rule:

1. Should the Department continue to consider the totality of circumstances to determine whether assistance with enplaning, deplaning, and moving within the airport (e.g., moving from the terminal entrance through the airport to the gate for a departing flight, or from the gate to the terminal entrance, or moving between gates to make a connection) is provided promptly?
2. With respect to deplaning assistance that requires the use of aisle chairs, should “promptly” continue to mean that personnel and boarding chairs must be available to deplane the passenger no later than as soon as other passengers have left the aircraft?
3. For prearranged deplaning assistance that does not require the use of aisle chairs (i.e., a passenger with a disability is able to walk short distances), should “prompt” be based on the totality of circumstances or mean that personnel and an airport wheelchair must be available to assist the passenger with moving from the gate to the terminal entrance (or moving between gates to make a connection) by the time that all other passengers have left the aircraft?  Alternatively, should “prompt” mean that personnel and an airport wheelchair are ready and waiting for the passenger at the gate by the time the aircraft doors open and passengers begin to deplane?  Should the fact that the individual is able to deplane the aircraft on his or her own factor into when the assistance is available?
4. Is there another standard that the Department should use to define “prompt?”

It will be important to specify what the prompt return of a disabled traveler’s mobility device to the aircraft door actually means — without a clear standard, airlines will continue to deny that violations have occurred, even when passengers are forced to wait in excess of 30 minutes.

DOT to make mishandling of wheelchairs a per se violation of the Air Carrier Access Act

The DOT admits that damaged wheelchairs are a critical problem, with carriers demonstrating no improvement since data began being collected in 2019. It noted public comments “emphasizing that wheelchair mishandlings can lead to a multitude of problems for individuals, including fear of flying; lost wages; loss of independence; physical injury; and expensive and lengthy device repairs and/or replacements.”

Though the DOT has long held that airline’s negligence in the handling of wheelchairs amounts to an ACAA violation, it will clarify that “any checked wheelchair or other assistive device that is lost, delayed, damaged, or pilfered (i.e., stolen) while under the custody and control of an airline would be considered a violation of the ACAA and Part 382 regardless of the circumstances surrounding the event.”

This means that, if your wheelchair is returned in a condition different from the way you handed it over — if it has scratches, a bent frame, missing component, or a squeaky wheel that did not exist previously — there is no litigation or debate, a regulatory violation has automatically occurred and will be logged as such.

The Department has invited comments on the following questions:

1. Is it reasonable to consider any mishandling of a wheelchair or other assistive device a per se violation of the ACAA? Why or why not?
2. Is the proposed definition for “mishandled” appropriate? Why or why not?
3. What, if anything, do airlines currently tell passengers when checked wheelchairs and scooters are mishandled?

The elephant in the room, of course, is how will the DOT exercise its enforcement authority? The Department has a long history of not taking the violation of disabled airline passengers’ civil rights seriously, with enforcement authority rarely exercised. That has not changed under Secretary Buttigieg, despite disability complaints being at an all-time high.

Requirement for airline to inform passenger when mobility device has been loaded or unloaded

The Department seeks to eliminate instances of a wheelchair being left behind by requiring airlines to provide “timely and accurate notifications about their checked wheelchairs and scooters during the loading and unloading process, including notification when a device cannot fit on a flight.”

Some carriers already do this through their smartphone applications, where passengers can see when a wheelchair’s luggage tag has been scanned as “loaded” or “unloaded” from a particular aircraft/flight. While not foolproof, it does provided a bit of transparency to the loading process.

No particular means of notification is prescribed by the Department, however it does note that existing digital technologies utilized by carriers such as American Airlines may satisfy the requirement.

Passengers’ right to prompt return of mobility device that was delayed following a flight

Should a passenger’s wheelchair fail to make their flight, airlines will be required to “transport the device to the passenger’s final destination within twenty-four (24) hours of the passenger’s arrival at that destination by whatever means possible.” The phrase “by whatever means possible” is envisioned by the DOT to “include the carrier seeking out other commercial passenger flights or freight flights that could accommodate the device and other ground shipping options that would result in prompt delivery to the passenger.”

The Department invites public comment on the following questions:

1. Should the Department consider requiring airlines to provide other status updates to passengers about their checked wheelchairs and scooters (e.g., stowage location of the passenger’s wheelchair or scooter on the flight)?  Should the requirement to provide status updates extend to other assistive devises that are checked in cargo or be limited to wheelchairs and scooters?
2. Are there any other concerns or factors that the Department should consider when a passenger’s wheelchair or scooter does not fit in the cargo compartment?  Because learning at the airport that a wheelchair or scooter does not fit in the cargo compartment can disrupt travel plans of passengers, should carriers be required to provide the dimensions of their cargo compartments prior to travel to any passenger who shares that he or she will be traveling with a personal wheelchair or scooter?
3. In situations where the wheelchair of a passenger with disabilities is delayed or damaged and the passenger is waiting for his/her wheelchair or a loaner wheelchair at the airport, should airlines be required to provide safe and adequate seating options that will accommodate the passenger?  What types of seat options would accommodate passengers with disabilities while they wait in the airport for their wheelchairs and what are the costs and logistics associated with having these options available at the airports?
4. If an individual with a disability incurs additional, associated costs because a wheelchair or scooter is delayed, should the airline be responsible for reimbursing the individual for those costs?  What are these potential costs?  What documentation should individuals provide to airlines to substantiate these costs?  Should there be a limit to the airlines’ liability?

If a wheelchair is left behind and disconnected from its owner, a serious failure has occurred. By prioritizing the installation of a wheelchair space on airplanes, many of these issues could be avoided.

Passengers’ right to choose repair technician after a wheelchair is damaged

Existing regulations state that airlines are liable for damage to wheelchairs and other mobility equipment up to the “original purchase price of the device.” In the NPRM, there DOT states that revisions are necessary “to ensure that passengers impacted by mishandlings are not further plagued by unnecessary delays, undesirable repair and replacement processes, and additional resulting costs.”

In my view, passengers have always had a right to collect a lump sum payment for the cost of repair or replacements just as they would for any other lost or damage luggage, though some airlines have illegally refused such requests.

The DOT proposes to specifically require airlines to provide the following options to passengers inconvenienced by a mishandled wheelchair:

• The passenger can elect for the carrier to handle the repair or replacement of the device — the carrier must repair or replace the device, depending on the severity of the damage; return the device within a reasonable timeframe; and pay the cost of the repairs or replacement.
• The passenger can elect to use the passenger’s preferred vendor to repair or replace the device — the carrier would be required to promptly transport the wheelchair or scooter to the passenger’s preferred vendor, unless the passenger has indicated that he or she will arrange for the transport themselves.  The carrier would be required to cover the cost of this transport.  The carrier would also be required to pay the wheelchair vendor directly for the cost of repairs or replacement within a reasonable timeframe.  To ease the burden on the passenger and expedite the process, the Department is proposing that the billing for the repairs or replacement go directly to the airline so the passenger is not forced to front the costs.

The Department of Transportation has asked for public comments in response to the following questions:

1. Are there sufficient vendors available to repair or replace passengers’ personal wheelchairs or scooters?  What is the average turnaround time once the vendor has the passenger’s wheelchair in its possession?
2. What are airlines’ current policies and procedures related to replacing, repairing, and/or reimbursing passengers for damaged wheelchair and scooters, including how costs are determined?  Do disputes arise between passengers and airlines over the costs to repair or replace damaged wheelchairs and scooters?  If they do, how are these disputes resolved?
3. Should the Department consider stricter and detailed timelines rather than using a reasonableness standard to which airlines must adhere when handling wheelchair and scooter repairs and replacement?
4. Are certain types of wheelchairs and scooters no longer repairable or replaceable?
5. Do disputes arise between passengers and airlines over whether a repair or a full wheelchair or scooter replacement is necessary based on the level of damage to the wheelchair or scooter?  If they do, who should be responsible for ultimately determining whether a wheelchair or scooter is “fixable”?  If the carrier (or the carrier’s chosen vendor) makes the determination, should the passenger then be given an opportunity to independently review their determination and carry out their own assessment?
6. Does travel insurance cover wheelchairs or scooters if lost or damaged during a trip?  If so, how much of the cost to replace wheelchairs or scooters can be recouped?  Should the airline’s cost be limited to whatever is not paid by the travel insurance, or is baggage/wheelchair travel insurance often secondary (i.e., consumer must first file a claim with airline before filing a travel insurance claim)?
7. Do airlines currently provide passengers the opportunity to test a repaired wheelchair or scooter to confirm whether the repairs are adequate?  Should the NPRM’s first option include a “testing period”?  If so, how long should the passenger have to carry out this review and determine whether additional repairs by the airline are necessary?

Cost disagreements and a failure to pay within a reasonable time frame led my preferred wheelchair repair shop to refuse to do business with Global Repair Group, the third-party contractor representing carriers like Alaska Airlines, American Airlines and JetBlue Airways. The repair shop told me they were constantly haggling on price, demanding significantly below-market rates, and had failed to pay in a timely manner. As such, I have since been forced to seek out repairs through airline-approved vendors, which has led to incidents like these: After 100+ Days, American Airlines Still Hasn’t Repaired My Wheelchair. Now a year later and that wheelchair still hasn’t been fully repaired!

No matter how the DOT ultimately rules, I will not be able to return to my preferred repair shop unless airlines are required to pay within a set time frame or face penalties — my shop doesn’t trust Global Repair Group and, based on my experiences, they’re not partners I would willingly choose to do business with.

Passengers’ right to receive a loaner wheelchair while awaiting repair or replacement of damaged wheelchair

Carriers have long provided loaner wheelchairs when necessary, but those devices often fail to meet the needs of individual users. Not once have I received a loaner wheelchair equivalent to my own device. Once, I was given a three-wheeled scooter in place of my severely damaged Permobil with elevate, tilt, and recline features.

The DOT now seeks to mandate loaner wheelchairs, and says that “airlines would be required to provide, upon request, functional and safety-related customizations (e.g., changing cushions; adding lumbar support seat attachment; adjusting the headrest, armrest, or footrest) on loaner wheelchairs, to the extent possible, to ensure passengers can safely use them.” Without a clearer mandate for the types of devices airlines must stock, how will the passenger experience improve? What adjustments could be made to a three-wheel scooter to replicate a full-size power wheelchair?

The Department needs to take this point more seriously, and has asked for responses to the following questions:

1. What types of customizations should be required under this proposal, how much such customizations generally cost, and how quickly such customizations can be completed?
2. Can the loaner wheelchair requirements be easily implemented by airlines and do they meet the needs of individuals with disabilities who experience wheelchair mishandlings?
3. If an individual with a disability incurs additional, associated costs because the loaner wheelchair provided by the airline restricts his or her mobility or independence, should the airline be responsible for reimbursing the individual for those costs? What are these potential costs? What documentation should individuals provide to airlines to substantiate these costs? Should there be a limit to the airlines’ liability?

The third question is interesting, as it opens the door to additional compensation for one’s loss of freedom and independence when a loaner wheelchair is insufficient.

Requirement for airlines to provide annual recurrent training to staff who “touch” disabled passengers and/or mobility equipment

The Department seeks to introduce new training requirements that would impact “airline employees and contractors who physically assist passengers with mobility disabilities or handle passengers’ wheelchairs or scooters.” The NPRM states that “inadequate training of these employees and contractors could result in harm to passengers with disabilities and costly damages to passengers’ wheelchairs,” with proposed rules designed to alleviate these concerns.

Previously, staff were required to receive training within 60 days of assuming their role, however the new requirement will mandate that staff receive training before assisting passengers with disabilities or handling their mobility equipment. Additionally, the frequency of refresher training will be increased from once every three years to once every 12 months. The Department would also set standards for hands-on training, defining it as “training that is received by an employee or contractor where the employee or contractor performs a task, function, or procedure that would be part of his or her normal duties in a controlled/simulated environment and with the use of a suitable life-sized model or equipment, as appropriate.” The “suitable life-sized model” could be a person, but the Department will also permit the use of a full-body mannequin.

Members of the community are invited to provide responses to the following questions:

1. Are the proposed amendments to the training requirements in Part 382 sufficient to address concerns and inadequacies with current training practices?
2. Should the Department impose more specific training requirements rather than identifying the topics that airlines must cover as part of the training? For example, the Department is aware of existing standards for caregivers to provide safe patient assistance involving lifting and transferring. Would it be more beneficial to require training standards such as these? And if so, which ones should be considered and what are the associated costs of the training?
3. Are the proposed topics to be covered when training personnel and contractors who handle passengers’ wheelchairs sufficient (i.e., common types of wheelchairs and other mobility aids and their features; airport and airline equipment used to load and unload wheelchairs and other mobility aids; and methods for safely moving and stowing wheelchairs, including lifting techniques, wheelchair disassembly, reconfiguration, and reassembly, and securement in the cargo compartment of the aircraft)? If not, what additional topics should the Department consider requiring?
4. Are the proposed topics to be covered when training personnel and contractors who provide physical assistance to passengers with disabilities sufficient (i.e., safe and dignified physical assistance, including transfers to and from personal or airport wheelchairs, aisle chairs, and aircraft seats; proper lifting techniques to safeguard passengers; how to troubleshoot common challenges when providing physical assistance; and proper use of equipment used to physically assist passengers with disabilities)? If not, what additional topics should the Department consider requiring?
5. Is the Department’s proposed definition of hand-on training reasonable? What other factors, if any, should the Department consider when defining hand-on training?
6. Is the proposed frequency of recurrent training (at least once every 12 months) reasonable? Should the Department require more frequent training (e.g., once every six months) or less frequent training (e.g., once every 18 months or once every 24 months)?
7. Should other types of airline employees and contractors be subject to the enhanced training requirements set forth in this proposal? For example, reservation agents gather information about consumers’ travel needs and ticket counter agents handle consumer inquires, including disability related accommodation requests. Also, while managers may not directly assist individuals with disabilities or handle wheelchairs, they are often responsible for overseeing the airlines’ processes and personnel. Is the existing requirement that individuals who deal with the traveling public be trained as appropriate to their duties sufficient?

Training provided by airlines and third-party businesses has long been insufficient, so the DOT should focus some effort on the quality of training, not just its frequency.

Application of new onboard wheelchair requirements to all aircraft types with 60+ seats

The Department previously proposed a new onboard wheelchair (OBW) standard for single-aisle aircraft, and now seeks to apply that standard to larger twin-aisle aircraft. It also proposes that all OBWs be updated to the new standard no later than October 2, 2031.

Members of the public are invited to respond to the following question:

1. The Department has proposed that any aircraft with 60 or more passenger seats and an accessible lavatory delivered after October 2, 2026, be equipped with the improved OBW. The Department already requires that large single aisle aircraft delivered after this same date have improved OBWs. Is the date selected reasonable? Why or why not?  The Department also proposes a date certain, five years after October 2, 2026, when all OBWs must meet the improved performance standard. Is this date reasonable?

Despite multiple rounds of regulation over the past several years, the Department has still failed to demand a truly accessible lavatory onboard aircraft of any size — not even on the double-decker Airbus A380. When will we get an accessible family bathroom onboard airplanes?

The public comment period is now open — How you can make your voices heard

On its face, the proposal is not as strong as many of us would like — but this NPRM is only a proposal, and not the final rule, which will be adopted following a public comment period that ends on May 13, 2024.

The public comment period is an opportunity for disability organizations and members of the community (that’s you!) to share your thoughts on the proposed rules and how they should be crafted to better meet the needs of the disability community. Your comments are critically important and will serve to counter those submitted by airlines and their trade groups (Airlines for America, International Air Transport Association, etc.). While the airline industry will seek to limit the scope of these rules, we can advise that they be further expanded.

To submit a comment, visit the Proposed Rule for Ensuring Safe Accommodations for Air Travelers with Disabilities Using Wheelchairs in the Federal Docket.

The most effective public comments will focus on the questions the DOT is asking, be succinct, suggest alternatives, and offer evidence to support recommendations whenever possible. Personal experiences can be valuable, but commenters should note that any information submitted is entered into the public record and will not be redacted.

Join me for a conversation about these air travel changes — and how we can work together as a community to improve them

There is a lot to unpack in this NPRM, and it may be the last opportunity we have to see regulation of accessibility in air travel for quite some time. We should not pass up the opportunity to have our voices heard!

On Thursday, March 28 at 8:00 p.m. ET (New York time), I will host an Accessible Travel Chat to discuss the DOT’s Proposed Air Travel Rules — It’s an opportunity to ask questions and talk about ways to improve air travel for disabled people. I would to hear what you have to say about the barriers to air travel, so please Register for the Accessible Travel Chat on Zoom.