HOWARD L. CHABNER, J. D.
hlchabner@jps.net
(415) 221-2351
Fax: (415) 221-2301

December 19, 2007

Via US mail and e-mail

Blane A. Workie, Esq., Chief, Aviation Civil Rights Compliance Branch

Office of the Assistant General Counsel for Aviation Enforcement and Proceeding

Daeleen Chesley, Esq., Trial Attorney

US Department of Transportation

400 Seventh Street, S. W.

Washington, DC 20590

                                                Re:  Wheelchair Disaster with American Airlines

Dear Ms. Workie and Ms. Chesley:

            Thank you for your letter of October 11, 2007 describing DOT’s investigation of my disability discrimination complaint against American Airlines (AA) as detailed in my letter of June 29, 2007.  I ask DOT to please reconsider its decision to issue only a warning to AA.  This letter will follow up on the AA incident and discuss other serious ongoing problems with air carrier access.  I strongly believe there is an urgent need to address air travel access barriers by a broader and more holistic interpretation of existing regulations, more aggressive enforcement and amending the regulations.  I would welcome the opportunity to have an ongoing dialogue with you and your colleagues at DOT about these issues.

This letter is long; there is a lot to digest.  I would greatly appreciate an acknowledgment of receipt and a rough estimate of when you believe that DOT will be able to respond substantively.  My most immediate concern is that DOT reconsider its initial decision only to issue AA a warning.  I’ve tried to show that AA’s violations have far-reaching implications and that only warning AA is unlikely to prevent their recurrence.

            There truly is an urgent need to remove discriminatory access barriers faced in air travel by people who use wheelchairs, especially those who use wheelchairs full-time and/or use electric wheelchairs.  Of the discriminatory barriers I face as someone who uses an electric wheelchair, those around flying are by far the worst.  I know several people who use electric wheelchairs who never or almost never fly because of these barriers; if and when they do, they fly only on short flights and with great trepidation.  From time to time my wife and I go to Los Angeles; since the incident described in Section I. A., below, we’ve always driven because a seven-hour drive is much less difficult physically and fraught with far fewer problems and risks than a one-hour flight.  Although the extent to which discriminatory barriers discourage and prevent wheelchair users from flying is difficult to quantify, it is real and significant.  So when DOT reviews statistics about air travel by disabled people and complaints of discrimination on the basis of disability, it’s important to consider that the number of flights taken by wheelchair users, especially those who use electric wheelchairs, is much smaller than it would be absent discriminatory barriers.  Creating an environment that discourages air travel by people who use wheelchairs is itself discrimination.

While every act of discrimination against disabled people by an air carrier is wrong, not all violations are equally serious or damaging.  It’s a lot easier to replace a cane or walker than a wheelchair.  It’s far simpler to repair or replace a manual wheelchair than an electric one.  Providing a substandard manual wheelchair as a loaner to someone who uses a manual wheelchair, while significantly harmful, may not be as damaging as providing a manual wheelchair as a loaner to someone who uses an electric wheelchair.  Moreover, some people who use wheelchairs (even electric wheelchairs) are able to walk short distances in the right conditions, while others cannot walk at all.  The harm caused by damaging, delaying or losing a wheelchair, and the physical difficulties of flying in general (such as not being able to use the bathroom on an airplane), are far greater for someone who cannot walk at all than for someone who can walk a bit.  (I know this firsthand, because for the first six years I used a wheelchair, I used an electric wheelchair most of the time but was still able to walk short distances indoors under ideal conditions.)

The Disability Complaint Reporting Form, Appendix A to the Air Carrier Access Act (ACCA) regulations, doesn’t distinguish among types of “assistive devices” - canes and walkers are in the same category as wheelchairs, and manual wheelchairs are categorized with electric wheelchairs.  In order to provide a more accurate picture of the violations, operational problems and damage caused, reporting should distinguish among types of assistive device and separately track severity of damage, complete loss of assistive devices and duration of delay in returning assistive devices to passengers.  The form has a category of “storage and delay of assistive device;” however, because failure to load an assistive device and failure to return it on a timely basis are separate violations (see I. A., below), they should be separate categories. 

It’s critical to recognize that the number of complaints DOT receives from wheelchair users almost certainly understates the problems because many people who’ve had a bad experience flying just want to forget it and not relive it by filing a complaint.  Many believe that filing a complaint isn’t effective because the remedies under the ACCA are weak and because they believe that the airline industry’s recurrent financial woes make it sympathetic in the eyes of the regulators.  For example, my June 29 complaint about AA was my first formal complaint to DOT against an airline, and only my second written complaint directly to an airline, in 17 years of using an electric wheelchair, despite my having experienced many violations.  In contrast, I haven’t been at all reluctant to write complaint letters and, as a last resort, bring lawsuits about unlawful discrimination in public accommodations.

In furtherance of the “private attorney general” doctrine so central to enforcing America’s civil rights laws, the ADA and California disability rights laws provide powerful remedies for successful plaintiffs in private actions, such as attorneys’ fees.  But because attorneys’ fees aren’t recoverable under the ACCA no matter how meritorious the claim, egregious the violation and far reaching its impact, few private cases have been brought under that statute.  (Public interest attorneys have to eat like everyone else!)  It is, therefore, especially critical that DOT aggressively enforce the ACCA and its regulations.

Over the years I’ve flown primarily on United and American, and much less frequently on Delta, Continental, Lufthansa and other airlines.  All the situations and incidents described in this letter, regardless of whether the airline and flight number are identified, involved airplanes with more than 60 seats; almost all involved airplanes with more than 100 seats.  We flew economy class almost all the time.  All domestic flights, and almost all flights abroad, have been between major airports in major cities.  Please keep this in mind when considering the descriptions of access barriers I’ve encountered. 

I.          AMERICAN AIRLINES INCIDENT - DOT INVESTIGATION

In response to my complaint against AA, on July 27, 2007 I received an email dated July 26, 2007 from Kimi Higbee, an AA customer relations employee.  (A copy is enclosed.)  Her response is evasive, abounding in platitudes and simplistic generalities and avoiding any meaningful, serious discussion of the issues; therefore, I haven’t responded directly to AA. 

As an aside, it’s interesting that AA didn’t reimburse me for the toiletries for which its Paris employees had authorized reimbursement.  One would expect that providing documentation in a letter addressed to the CEO of the airline would have been sufficient, but Ms. Higbee has asked me to send the documentation (plus a copy of my ticket receipt and baggage claim form, even though AA acknowledges that I was on the flight and that it authorized reimbursement) to another office and wait 10 to 12 weeks for reimbursement.  This is an insult, and I haven’t bothered to re-submit the documentation.  Full disclosure: AA sent me a $500 travel voucher, non-transferable and valid for one year; I’m unlikely to use it.  In fact, primarily because of our disaster with AA, my wife and I canceled tickets that we had had on AA from San Francisco to London for August/September 2007.

I. A.     AA’s Multiple, Egregious Violations of 14 CFR Section 382.41(f)(3)

DOT has determined that AA violated 14 CFR Section 382.41(f)(3) of the ACCA implementing regulations because it failed to load my wheelchair on the flight to Paris.  (Henceforth I will refer only to section numbers and won’t repeat “14 CFR.”)  However, DOT’s only action, at least at this time, is issuing a warning.  I urge DOT to pursue enforcement action - issuing a cease and desist order, and assessing the maximum civil penalties - because, even though this is a single incident, the violation was egregious and multiple, severe harm was caused and AA utterly failed to mitigate the situation.  The issues in this incident are of great impact, going far beyond a single passenger on a single itinerary.  It’s important that DOT send AA a powerful message that spurs AA to adopt appropriate safeguards and backup systems to ensure that similar incidents don’t happen again.  In response to a mere warning, AA may well avoid taking any concrete, systematic measures, preferring to continue rolling the dice at the expense of passengers who use wheelchairs.

When we landed in Paris I was dry, which is generally the case on long flights.  Because it’s impossible or nearly so to use the bathroom on an airplane, I always eat fairly little and drink even less before I fly and during the flight.  (See III. F., below, regarding bathroom barriers on airplanes.)  It is imperative for me to drink a lot and have substantial nourishment as soon as possible after a flight, especially a long flight or series of flights.  This process was delayed significantly because of not having an appropriate, safe and usable wheelchair until 27 hours after I landed in Paris.  I won’t repeat all the details - please see my previous letter.  Because of the 27 hour delay in getting my own wheelchair and the lack of an appropriate loaner, my system was thrown off for a long time.

For me as, I believe, for many wheelchair users, by far the most immobile time is during airplane flights.  It is imperative, therefore, to get into an appropriate wheelchair as soon as possible after landing, both for safe, healthy seating and for the ability to move, stretch and improve my circulation.  Because of the 27 hour delay in getting my own wheelchair and because the loaner wheelchair was horribly inappropriate and unsafe (see my previous letter), I was in pain, sore and stiff.  As detailed in my June 29 letter, I was in bed almost all the time from arrival at our hotel until my wheelchair was delivered.

The bottom line is that because of AA’s actions, I felt exhausted, weak, hungry, stressed and unwell; and my wife, likewise, was exhausted, stressed and unwell.  We never felt fully ourselves for the rest of our trip.

Section 382.41(f)(3) requires not only that the wheelchair be loaded on the airplane, but also its “timely return” to the passenger.  27 hours after arrival is not timely return, especially for an electric wheelchair for a passenger who cannot walk at all, cannot push a manual wheelchair and relies entirely on an electric wheelchair.  As described in my previous letter, I requested AA to send my own wheelchair on the next flight from JFK to Paris regardless of which airline operated that flight, including sending it via a connecting flight if doing so would get it to Paris sooner, but they refused.  This can only be due to a desire to save money or egregious indifference. 

In determining what is timely, consider that section 382.41(f)(3) requires that when other passengers’ baggage is bumped in order to make room for a wheelchair, the carrier shall “make its best efforts to ensure that the other baggage [arrives]... within four hours of the scheduled arrival time of the flight.”  If four hours is the standard of timeliness for ordinary baggage, it’s indisputable that 27 hours is extremely untimely for a wheelchair, especially an electric one.  (Because our flight arrived in Paris an hour late, my wheelchair was actually delivered 28 hours after the scheduled arrival time.)  And unlike the standard of diligence for ordinary baggage, which requires best efforts (itself a high standard), the requirement for return of a wheelchair is absolute and demands results, not merely best efforts.

The failure to load the wheelchair and the failure to return it timely are two separate violations.  It is certainly possible for an air carrier to fail to load a wheelchair on the same flight as a disabled passenger, recognize its mistake quickly and put the wheelchair on another flight that arrives an hour later; in such a situation, the carrier would have violated its obligation to load the wheelchair but not its obligation to return it on a timely basis.  Note that Section 41705(b) of the ACCA provides that for the penalties assessable, each individual act of discrimination constitutes a separate violation.  Moreover, if failure to load a wheelchair and failure to return it timely were considered only a single violation, that would reduce the airlines’ incentive to return wheelchairs as quickly as possible.

After we landed in Paris it took quite a while even to learn that my wheelchair had missed the flight, because we had to wait in the regular lost baggage line.  A wheelchair is not ordinary baggage - an AA employee with authority and judgment should have met me at the airplane and explained what had happened and what AA was doing about it.  After all, AA employees in New York had plenty of time and opportunity to have discovered that the wheelchair was not on the flight; they should have informed the flight crew and Paris ground personnel immediately.  Doing this might well have enabled AA to return my wheelchair to me sooner than it did, and would have increased the chances that the Paris employees would have been able to locate a suitable loaner wheelchair.

My experience on Delta flight 94 from JFK to Barcelona on April 27, 2004 contrasts markedly with AA’s refusal to return my wheelchair on a timely basis.  This was a connecting flight; our trip began in San Francisco.  Although the layover time was sufficient, and although the arriving flight from San Francisco and the departing flight to Barcelona were only a few gates apart, Delta left my wheelchair and another passenger’s electric scooter at JFK.  Upon my arrival in Barcelona, an experienced Delta employee met me in the airplane, explained what had happened and told me that she would look into connecting flights to get my wheelchair to Barcelona as soon as possible.  The wheelchair arrived in around nine hours.  Not having my wheelchair for nine hours certainly was a hardship, but nowhere near the disaster of not having it for 27.  

The fact that the recent incident with AA and the one with Delta both involved connecting flights through JFK may be important - JFK seems to do a particularly bad job handling wheelchairs.  Does DOT keep statistics about lost, delayed and damaged wheelchairs by airport, as well as by carrier?  I never complained to DOT or Delta about the delayed wheelchair on the Delta flight.  Are the carriers required to all report lost, delayed and damaged wheelchairs, or do incidents only make it into DOT records if a complaint is filed with the carrier or DOT?

Having violated the regulations once by failing to load my wheelchair and again by refusing to deliver it on a timely basis, AA compounded its violations by failing to provide an appropriate loaner.  Although the regulations may not explicitly require an appropriate loaner wheelchair, such a requirement must surely be implied.  General legal principles require someone causing harm to mitigate it, and the duty to mitigate is proportionate to the severity of the harm.  It is certainly foreseeable that from time to time a wheelchair may miss a flight, and beyond doubt that a wheelchair user suffers great harm when his wheelchair is delayed, damaged or lost; therefore, airlines are required to provide an appropriate replacement.  The wheelchair I was given was completely inappropriate.  (See my previous letter for more details.)  I’m not suggesting there is a duty to provide an exact loaner, but a safe, appropriate one.  A manual wheelchair isn’t an appropriate replacement for an electric wheelchair; a wheelchair without any seat cushion isn’t an appropriate replacement for one with a seat cushion; and a wheelchair without a seatbelt isn’t an appropriate replacement for one with a seatbelt.

AA was utterly unprepared for the possibility that a passenger’s wheelchair wouldn’t arrive with the passenger.  AA had no wheelchairs of its own at CDG/Paris and no standing arrangements to borrow one.  The wheelchair I was put in was the property of the third-party assistance provider, not AA, and we had to wait quite a while to get permission from that company to take its wheelchair out of the airport; we left the airport around two hours after landing.  (See my previous letter for details.)  A mere warning from DOT is unlikely to spur AA to ensure it is adequately prepared the next time it fails to get a passenger’s wheelchair on a flight.

There is an implied requirement in the existing regulations that airlines provide an appropriate loaner wheelchair.  In addition, to make it harder for airlines to shirk their obligations, the regulations should be amended to provide an explicit, detailed requirement.

In 1999 or 2000 I took an evening flight on United from San Francisco to Los Angeles for the closing of an important transaction.  Although my batteries are dry cell, non-spillable, safe and capable of being disconnected, United insisted on physically separating them from my wheelchair.  (The batteries are in fiberglass/plastic cases that are removable from the wheelchair.)  When we arrived the batteries were nowhere to be found; we waited at LAX around two hours while United employees searched for them.  United told us they would provide replacement batteries or a loaner electric wheelchair by the following morning; they had standing arrangements with a local wheelchair dealer for emergencies such as this.  We left the airport rather late.  Time that I should have spent preparing for the transaction was wasted at the airport.  The situation was stressful and tiring.  My wife had to push me in my disconnected electric wheelchair for every movement in the hotel room.  (Even had I had sufficient arm strength, my wheelchair, like most electric wheelchairs, has smaller drive wheels than manual wheelchairs and isn’t designed to be self-propelled by the user when the electricity is disconnected.)  Energy that I should have spent thinking about the transaction was wasted worrying about whether the replacement actually would arrive.  Fortunately, a loaner electric wheelchair arrived in the morning as promised – not a perfect substitute, but an appropriate, safe one.

Without the batteries or a loaner electric wheelchair, I would have required someone to push me in my electric wheelchair.  No colleagues from my law firm were with me, so I would have had to rely on my wife (which would have compromised client confidentiality), or my client (whom I had never met before in person and who had enough on his hands dealing with the sale of his company), or someone from the law firm representing the other side of the transaction.  Please ask yourselves as lawyers what you would have done in such a situation.  Luckily, I didn’t have to face it because United had appropriate arrangements in place.  It was United’s fault that the batteries were lost; they should have stayed with the wheelchair.  I certainly suffered harm, but at least United mitigated it.  In stark contrast, consider what would have happened in the AA incident if my trip to Paris had been for business instead of pleasure.

Turning again to the AA incident, I strongly believe that an enforcement action is warranted because of the multiple violations of the regulations, the lack of extenuating circumstances, AA’s failure to mitigate the harm, the severity of the harm and the far-reaching implications.  As part of that enforcement I request that DOT investigate exactly what happened in this instance and what procedures AA has in place to ensure compliance with Section 382.41. 

Airlines are required to stow wheelchairs in the baggage compartment with priority over other cargo and baggage, and wheelchairs are required to be among the first items retrieved from the baggage compartment.  (Section 382.41(f)(3) and (2).)  In my previous letter I made several suggestions that would help airlines meet their obligations regarding passenger wheelchairs:  1) installing a tracking system for passengers’ wheelchairs different from the tracking system for ordinary baggage, perhaps including an electrical tag that would enable airline personnel to know the location of passengers’ wheelchairs at all times; 2) designing aircraft cargo compartments to have a separate compartment for wheelchairs that would make it easy to load and unload wheelchairs quickly and at the last minute (this compartment could be used for ordinary baggage on flights where there is no wheelchair stowed in it); and 3) making it the co-pilot’s responsibility to ensure that the flight doesn’t depart without a passenger’s wheelchair (except in extreme circumstances, and assuming the passenger arrived at the airport within the time reasonably required by the airline).  I urge DOT actively to engage AA in particular and the airline industry regarding these and other specific operational improvements that would reduce the chances of wheelchairs being lost, delayed and damaged. 

I. B.     AA’s Failure to Stow my Wheelchair in the Cabin

DOT is certainly correct that because I didn’t request AA to stow my wheelchair in the cabin, in this instance AA didn’t violate its obligation under section 382.41(e)(2) to stow a passenger’s wheelchair in the cabin upon request.  In my previous letter I mentioned that over the years AA and other airlines have violated the law by strongly resisting my request to stow my folding electric wheelchair in the cabin.  I mentioned this both to provide context for the AA Paris flight incident and to make DOT aware that this refusal is a significant, ongoing problem.  (Ms. Higby’s email mentions the legal conditions and limitations on an airline’s obligation to stow wheelchairs; please be assured that in all the refusals to which I’m referring, I met the required conditions and there were no other wheelchairs already stowed on board.)  AA is no worse than the other airlines in this regard - it’s a problem generally. 

I. C.     AA’s Refusal to Give Me Priority at Chec-in

DOT’s Investigation Summary Sheet concludes that AA’s failure to give me priority during the check-in process doesn’t violate the ACCA because passengers with disabilities are not entitled to priority treatment over other passengers during check-in.  I agree that there isn’t an explicit, blanket requirement for priority treatment at check-in; by describing the check-in situation, I wasn’t suggesting that AA’s failure to give me priority was a violation per se, but that (i) it led to the violation of AA’s obligations regarding my wheelchair, and (ii) prioritizing passengers who arrived later than me is a violation. 

Giving my wife and me priority would have greatly increased the chances that my wheelchair would have made the flight.  Airlines are required to do what is reasonably necessary in order to ensure that passengers’ wheelchairs are loaded on the airplane and returned to them in a timely manner.  In some situations, including this one, giving priority at the check-in counter is necessary.  But not only was I not given priority, I was de-prioritized in favor of passengers who arrived later and were behind me in line.  Given the circumstances, this is certainly a violation of the ACCA regulations.

We arrived at the airport more than two hours in advance, as required by AA, but because there were so few AA agents, we had to wait well over an hour to check in.  Initially, and later as time dragged on while we waited in line, I explained to the AA employee that it would take me longer to pass through security and to board, and that AA asks wheelchair passengers to arrive at the gate early in order to pre-board.  I requested priority, but he refused and even gave priority to some people far behind us whose departure times were only 10 or 15 minutes earlier than ours.  So although airlines require wheelchair users to board early, we ended up having to scramble to board.  Other passengers were already seated on the airplane when I was taken in the aisle wheelchair to my seat, which made it more difficult for me to board, interrupted other passengers and compromised my dignity.  (See III. C., D. and E., below, for a discussion of problems in the boarding process generally.)

Giving priority to people far behind us in the line, who arrived at the airport much later, merely because their departure times were only 10 or 15 minutes earlier than mine, was a violation of the regulations.  It’s quite obvious that it takes much more than 10 or 15 minutes extra for a person in a wheelchair to pass security and take all the steps necessary to board the airplane.  Preboarding wheelchair passengers is good for both the passenger and the airline.  It’s simply inconsistent and wrong for the airline to insist on preboarding wheelchair passengers yet fail to take simple steps that will enable this to happen.  Had I been given priority in the line, and even had I merely been given parity rather than being de-prioritized in favor of people who arrived later, AA would have had more time to deal with my wheelchair and the chances of it missing the connecting flight would have been reduced.

Regardless of how DOT views AA’s refusal to give me priority and its prioritization of other passengers who arrived later, I urge DOT to adopt a regulation requiring that passengers in wheelchairs who arrive at the airport within the time reasonably required by the airlines be given priority at check-in and at the security checkpoint.  (See II. A., below, about security checkpoints.)  This would make things easier for airport and airline personnel, reduce the risk of wheelchairs being lost, delayed or damaged, and reduce the risk of flights being delayed because of the extra time needed to check in passengers in wheelchairs, get them through security, tag their wheelchairs at the gate, and board them on the airplane.  Together with other measures, it would enable airlines to fulfill their legal obligation to deliver passengers’ wheelchairs timely.

              People who use wheelchairs want to remain in them until the airplane door, not check them at the front of the airport.  Waiting in a long line at the check-in counter at the front of the airport, and often again at the security checkpoint, means that a wheelchair passenger may arrive at the gate without much (if any) time to spare; this allows far less time for the gate agent, who is often busy and harried, to tag the wheelchair and call the assistance personnel far enough in advance for them to arrive at the gate when needed.

Several times over the years flights I’ve been on have been delayed because of the extra time required for me to check in, pass through security and board the airplane; each time this would have been avoided had I been able to go to the head of the line at check-in.  (In each of these situations, I arrived at the airport for the initial flight within the time required by the airline.)  Factors contributing to the delays include time spent waiting: in the check-in line; for the third-party company personnel who help disabled people board the airplane; and for an aisle wheelchair.  Passing through security is also an important factor.  Although airlines don’t control TSA, they organize the line and do have the ability to give priority to wheelchair users before the point at which TSA personnel take over (as airlines do for first and business class passengers).  Each of these steps contributes to delay in boarding and increases the risk of a passenger’s wheelchair being lost, delayed or damaged.  Ultimately, prioritization at check-in would benefit all passengers because it would reduce the chances of flights being delayed in order to board passengers who use wheelchairs, and to load their wheelchairs.

Prioritizing wheelchair passengers isn’t only efficient - it’s fair.  Because of the great physical and logistical difficulties of flying for wheelchair users and their able-bodied companions, it is simply fair to be able to wait in a seating area near the gate rather than in a crowded line (often with carry-on baggage that the wheelchair passenger is unable to carry himself), be able to use the bathroom at the airport, and not have to scramble to make the flight when one has arrived at the airport well before the departure time.  Because it’s impossible or nearly so for wheelchair users to use the bathroom on an airplane, having extra time (or even, in many cases, any time at all) to use the bathroom at the airport is essential.

Priority at check-in shouldn’t be considered unfair special treatment, any more than disabled parking spaces or other reasonable accommodations.  It would merely be a sensible  recognition of the unique, particular circumstances.  Airlines ask wheelchair passengers to arrive earlier than others because of the extra time required to process, check-in and board them.  This isn’t unfair discrimination - it’s merely an appropriate way of dealing with the unique logistical challenges.

Similarly, the fact that wheelchair passengers are always the last to leave the airplane isn’t unfair discrimination.  Because of the time required to retrieve my wheelchair from the cargo compartment, bring it to the airplane door, and wait for the assistance team, I typically exit the airplane around 20 minutes (and sometimes much more) after the last able-bodied passenger leaves, and even later than that relative to the other people in my row.  Reasonable passengers who use wheelchairs recognize that it would make no sense to require all the passengers in the rows behind us to wait on the airplane for the assistance personnel to transfer us, even though all the other passengers typically exit the airplane in order of their rows.  If airlines insist on checking in passengers strictly on a first-come first-served basis, without dealing appropriately with the unique situation of passengers who use wheelchairs, why don’t they insist on strict row order when exiting planes?  Because doing so would be mechanical and absurd.

Restaurant seating is analogous.  In restaurants where only a relatively small minority of the tables are suitable for customers in wheelchairs, in terms of safety and logistics for waitstaff and other customers, and comfort for customers in wheelchairs, it often happens that customers are seated out of the order in which they arrived (or not strictly in order of reservation time).  Sometimes this results in a wheelchair customer being seated before earlier-arriving customers because one of the only suitable tables becomes available first, but more frequently it results in a wheelchair customer being seated after later-arriving customers because unsuitable tables open up first.  Reasonable customers, both those in wheelchairs and able-bodied ones, recognize that this is fair, not discriminatory (as long as the restaurant is trying its best to ensure that nobody waits too long and that it has a sufficient number of tables suitable for customers in wheelchairs).

Checking in at an airport is just the first step in a long, complex process that is especially arduous, risky and physically demanding for wheelchair users.  A check-in line at an airport is not like a line at a store, bank or office, where there is no justification for departing from the principle of first-come, first-served.  At an airport, prioritizing passengers who use wheelchairs is fair and, ultimately, more efficient for everyone.

II.        AMERICAN AIRLINES INCIDENT – BARRIERS NOT ADDRESSED IN DOT INVESTIGATION

II. A.   Priority and Assistance at the Security Checkpoint

Getting through TSA security in a wheelchair is complicated and time-consuming, which contributes to overall delays.  In the SFO/JFK leg of our trip to Paris on AA, after waiting for a while in line to enter the TSA security area, I had to wait in the security area another 10 to 15 minutes for a male TSA employee with sufficient training and authority to become available to do a patdown search.  This is in addition to the time it took to do the search.   This lengthy process added to the delay in getting to the boarding gate.

I’m always willing to undergo a more extensive personal search than able-bodied passengers because my wheelchair would set off a metal detector and because dangerous items can be hidden in a wheelchair, and I believe that most wheelchair users are as well.  But it takes more time for a person in a wheelchair to pass through security than for an able-bodied person, even if one doesn’t have to wait for a TSA employee to become available to do the search.  It takes more time to remove the person’s shoes and jacket, do a patdown search, search the wheelchair, swab the wheelchair, run the swab through a diagnostic machine, run the additional carry-on items (which often include medical equipment and wheelchair parts and tools) through the x-ray machine, and put the person’s shoes and jacket back on.  (On a positive note, TSA personnel have always been respectful while doing the patdown search - they always describe what they are going to do, ask whether it’s okay and take care to avoid embarrassing or physically hurting me.)   

Giving wheelchair users priority at the security checkpoint line would be fair and efficient for reasons very similar to those for prioritizing passengers in wheelchairs at the check-in counter.  Regulations should be adopted that would include two components.  The first would require airlines to give priority in line to wheelchair users before the point at which TSA personnel take over (as airlines do for first and business class passengers).  The second would require TSA personnel to give priority to wheelchair users.  (I recognize that the Department of Homeland Security has authority to adopt the second regulation and encourage you to distribute this letter to your counterparts at DHS.)  Such priority ultimately would be more efficient for the airlines, which would benefit all passengers. 

These measures would be a realistic recognition of the different circumstances and more difficult logistics required for people who use wheelchairs to pass through security.  In exiting an airplane, it’s fair and logical for all able-bodied passengers to be able to exit before passengers in wheelchairs, even though this departs from strict row order, because it takes much more time for wheelchair passengers to exit.  Similarly, no reasonable person would suggest that able-bodied passengers behind someone in a wheelchair in the security line should have to wait for that person to be searched before they can proceed through the line.  In both cases, strict order gives way to common sense logistical considerations that take into account the extra time necessary to serve people in wheelchairs.

There should be another regulation requiring TSA or airline personnel to assist wheelchair users with their carry-on baggage in the security checkpoint and, to the extent consistent with security, permitting a companion to be close to the person in a wheelchair.  Like many wheelchair users and their traveling companions, my wife and I bring many essential medical and mobility items as carry-on baggage.  (See my previous letter for details.)  My wife has to carry them through security.  We usually get separated in the security checkpoint.  Passengers aren’t permitted to bring carts into (or beyond) the security checkpoint, and usually there is no one available to help (despite the regulations’ vague requirement that airlines assist disabled passengers), so she has to carry everything without any assistance.   When we get separated, it’s difficult to keep track of everything, especially since we may not be able to see each other.  Because I’m seated and the area is crowded with inspection equipment and people standing, it’s difficult for me to see my wife and our carry-on items, and for her to see me.  In considering this proposed regulation, it’s important to recognize that the medical and mobility items disabled people carry on are more critical than other carry-on baggage:  bringing them is a matter of necessity, not choice.

TSA and DOT also should explore a system of voluntary, advance registration for wheelchair users similar to the voluntary system for passengers generally available at some airports.  A wheelchair passenger who is registered would be able to pass through security on an expedited basis, although given the nature of wheelchairs, the expedited inspection would probably still need to be more thorough than for able-bodied passengers.  A reasonable registration fee would be charged.

Certainly airport security is a matter of life and death.  The security imperative has greatly increased since September 11, 2001, and will remain so for the foreseeable future.  It is possible that terrorists may use wheelchairs to hide their weapons or that suicide bombers may sit in wheelchairs.  And there has been more than one terrorist who actually needed a wheelchair for mobility.  But in designing security regulations and procedures, the Department of Homeland Security and DOT have taken into account important interests besides security, such as efficiency and convenience for airlines and passengers.  The regulations proposed here could be designed and implemented in a way that wouldn’t compromise security.

II. B.  Price Discrimination

Section 382.57 prohibits airlines from charging disabled customers for facilities, equipment or services that the regulations require airlines to provide them.  It is indisputable that it would be illegal for airlines to impose a surcharge for handling a wheelchair or for the assistance required in boarding and de-planing passengers who use wheelchairs.  Given (i) the preceding, (ii) the requirement that airlines transport a wheelchair on the same airplane as the passenger and deliver it to him on a timely basis, and (iii) the simple fact that getting passengers in wheelchairs off the first flight of a multi-segment itinerary, through the airport and on the next flight takes longer than for able-bodied passengers; it is, therefore, unlawful price discrimination for airlines to require passengers who use wheelchairs to choose between an itinerary with a lower fare but insufficient time for the passenger and his wheelchair to make the connecting flight, and a more expensive itinerary with sufficient time.  In effect, the airline would be charging a wheelchair passenger a higher fare to arrive at the same ultimate destination if the passenger were unwilling to take an unreasonably high risk of missing his connection or having his wheelchair delayed, lost or damaged.

Our scheduled itinerary on AA called for only a 1 hour and 35 minute layover at JFK en route to Paris.  We chose it because each ticket was at least $200 less than the next cheapest San Francisco to Paris roundtrip itinerary on AA and other airlines; the itineraries with longer layovers were more expensive.  When I purchased the tickets directly from AA, I explained that I use an electric wheelchair and was concerned about whether my wife and I, and my wheelchair, would make the New York/Paris flight.  The AA ticket agent assured me there would be sufficient time.  The flight from San Francisco to JFK arrived late.  The short layover and late arrival were major reasons why my wheelchair was not on board.  (See my previous letter for more details.) 

There is a further wrinkle.  Wheelchair passengers have the right to remain in their own wheelchairs as close to the airplane door as possible when boarding, and to have their own wheelchairs brought up close to the airplane door after landing.  (See Section 382.41(f), which recognizes the importance of being able to remain in one’s own wheelchair as much as possible.)  See my previous letter and III. B., below, for a discussion of why it’s critical for people in wheelchairs to have appropriate, healthy seating.  The previous letter also explains why, when I’m able to be in my own wheelchair during a layover, it’s less difficult for my wife to carry our carry-on items, most of which are mobility and medically related, through the airport.  Finally, for someone who is unable to push himself in a manual wheelchair, it’s impossible to use the airport bathroom during a layover without being in one’s own wheelchair.

It is, therefore, also unlawful discrimination for an airline, in effect, to require a passenger to choose between giving up his right to remain in his wheelchair during a layover in order to get a cheaper fare, or taking a more expensive itinerary that has sufficient time for his wheelchair to be brought up during the layover.  When I bought my ticket, AA strongly suggested that, because the layover was short, I check my wheelchair directly from San Francisco all the way to Paris instead of having it brought up to the gate at JFK.  I agreed.  Before the flight I received a call from the AA medical desk; in response to their questions, I confirmed that I would check my wheelchair straight through to Paris, which I did.

Had I chosen the next most expensive itinerary, which had a longer layover, there is far less chance that the wheelchair would have been delayed, and also I would have been able to be in my own wheelchair during the layover.  I recognize that it would be difficult for me to provide evidence of the other itineraries and prices that were available when I made the reservation.  Also, because I did choose the cheapest itinerary, my damages wouldn’t consist of a price differential, but rather would be the damages I incurred because of the delay in getting my wheelchair, compounded greatly by AA’s failure to provide a suitable loaner.

Although it might seem counterintuitive to consider that price discrimination occurs when a customer pays the same fare as other customers who purchase a ticket at the same time via the same sales channel for the same flights, price discrimination does occur because the two customers are getting something different.  The wheelchair passenger who purchases a ticket for an itinerary with an unreasonably short layover because the only alternative is a more expensive ticket is taking an unreasonably high risk that he cannot legally be required to take, and also is being asked to give up his right to be in his wheelchair during the layover.  An analogy would be if two customers buy the same computer for the same dollar amount at the same store on the same day, but one is given a three year warranty and the other no warranty at all.  (In this example, the price differential might or might not be unlawful, depending on the circumstances, but it certainly is a price differential.) 

While I believe that AA’s actions violated existing regulations, in my experience AA is no worse in this regard than other airlines.  Many times over the years I’ve taken a more expensive itinerary, or foregone the opportunity to use frequent flyer miles, or used more frequent flyer miles, because the cheaper itinerary or frequent flyer ticket had too short a layover. 

I urge DOT to examine airline pricing and ticketing practices with regard to passengers who use wheelchairs in light of the existing regulation prohibiting price discrimination.  I also urge DOT to adopt a regulation explicitly requiring that if the desired itinerary has a layover too short for an airline to get the passenger and his wheelchair on and off the flights in a timely, safe and dignified manner (including the passenger being able to remain in his wheelchair up to the airplane door and having it returned to him there), the passenger should be able to book flights with a sufficiently long layover at the cheaper fare, or to use frequent flyer miles even though frequent flyer seats may not generally be available. 

In order to provide clarity and to prevent airlines from fudging and disabled passengers from gaming the system, the regulations would need to specify what constitutes a short layover.  The accommodation would have to be based on the fares and itineraries available on the day the reservation is made.  Of course there would have to be rigorous verification in advance that the passenger uses a wheelchair, including letters from two doctors.  It would be reasonable for an airline to establish a permanent passenger profile system for this information, with appropriate privacy protections.

The new DOT regulation also would require a reasonable accommodation regarding the number of flight segments in an itinerary.  Because each flight segment entails a risk of damage, delay and loss of a wheelchair, the total amount of “wheelchair risk” increases significantly with the number of segments in an itinerary.  Often the cheapest fares and the itineraries most available for frequent flyer miles are those with the most layovers.  It is discriminatory for an airline to require a wheelchair passenger to choose between a cheaper fare (or a frequent flyer ticket) with many flight segments and a consequent significantly higher risk of damage, delay and loss to the wheelchair, or paying a higher fare (or forgoing a frequent flyer ticket or using more miles) in order to have an itinerary with significantly less wheelchair risk.  Many times I’ve declined cheap fares and flights using frequent flyer miles because the flights offered had three or even four segments - the wheelchair risk was just too great.

The pricing of theater tickets and hotel rooms is analogous.  If the only wheelchair accessible spaces a theater has are physically located in a more expensive seating category, patrons in wheelchairs (and a companion) are entitled to purchase tickets at the price for the cheaper seats.  This accommodation is provided because wheelchair users are entitled to a range of seating choices comparable to those for members of the general public.  Because there is no choice, a pricing accommodation is provided.  Similarly, hotels are required to provide disabled guests a range of room options equivalent to those provided to other guests; in a hotel where the only accessible room is in a more expensive category, a disabled person is charged the rate for the cheaper room category.  These accommodations are based on generally accepted interpretations of the ADA.  (See ADA Title III Technical Assistance Manual III-4.4600 regarding theater seating; and ADAAG section 9.1.4 regarding hotel rooms.) 

Van accessible parking spaces provide another analogy.  The ADA and California law require that parking lots and garages have a certain number of disabled parking spaces large enough for wheelchair accessible vans.  These spaces are larger than ordinary spaces, but disabled customers cannot be charged extra for them.

III.       OTHER BARRIERS

III. A.  Information Barriers

In order to qualify for an accommodation based on a disability, it’s important that a passenger who claims to have a disability, actually has it.  Passengers and the airline industry alike have a strong interest in ensuring that nobody obtains an accommodation fraudulently.  At the same time, disabled passengers are entitled to appropriate accommodations without hassles, complications or needless delays.  It’s an aggravating waste of time to have to reinvent the wheel each time one makes a reservation. 

My wife and I are in the frequent flyer programs on American and United.  We get plenty of junk mail and email from these airlines, and undoubtedly they maintain a lot of detailed customer information about us, but every time I make a reservation I have to repeat the same details and answer the same questions about my disability and the accommodations I need.  AA even asks for the same information twice - when I make a reservation and again by a phone call from its “medical desk” (the phone number of which is unlisted and which cannot be contacted via the automated prompt menu in AA’s general customer phone system) a week or two before the flight.  This is pointless.  Airlines should be required to have more detailed, uniform and useful fields in their reservations systems for type of disability and accommodations needed, and their reservation agents should be better trained to record and use this information, and to apply it consistently.

In addition, airlines should be encouraged, although not required, to establish a system in which disabled passengers can voluntarily provide information about, and verify, their disabilities and the accommodations they need.  Privacy protection would be required, but it shouldn’t be any more technically difficult to keep this information confidential than other customer information.  Information would be valid for a specified period, and updated verification would be required periodically.  Such a system would ultimately save time for airlines and customers.  Each time a disabled customer made a reservation, the agent or web-based reservation system would simply describe the disability accommodation information the airline has on file and ask whether there are any changes. 

III. B.  Refusal to Provide Seating Accommodations

For me as, I believe, for many wheelchair users, airplane flights are by far the most confining, immobile and physically demanding time.  This may seem strange - it may seem that someone sitting in a wheelchair isn’t very mobile anyway.  But in one’s own wheelchair, to the extent one is physically capable of moving (for example, I’m not paralyzed), one can move one’s arms and/or legs, stretch, lean, change position, shift weight and, of course, move through space in the wheelchair.  In great contrast, airplane seats are completely confining, and the bigger and taller one is, the more confining they are. (I’m six feet tall.) 

Wheelchair seat cushions are complex, sophisticated medical equipment designed to be sat in continuously for long periods; airplane seat cushions are of lesser quality and are designed for people who can get up occasionally.  A person who uses a wheelchair full time has a seat cushion appropriate to his or her needs that’s designed to achieve proper positioning, reduce strain and minimize the risk of pressure ulcers. 

Because of this, it’s important to be able to get a seat with as much legroom as possible.  I make reservations as far in advance as possible, typically two months or more.  I always explain that I use an electric wheelchair, can’t walk, need assistance transferring and need extra legroom.  My wife assists me during the flight, so I request seats together.  I request bulkhead seats or other seats with extra legroom.  (Disabled people aren’t allowed to sit in exit rows if they are unable to evacuate quickly without assistance and operate the emergency door; this is eminently reasonable and I never ask for a seat in an exit row.  But some bulkhead rows are not exit rows.)   I’m often told that the bulkhead seats or other rows with extra legroom aren’t assigned until the day of the flight and can only be assigned at the airport.  But when I’m at the airport, they’ve already been assigned.   Sometimes I get lucky and do get a bulkhead seat or another seat with extra legroom, but it’s completely hit or miss, and it’s become much rarer in recent years.  Often tall able-bodied people have been assigned these seats.

Here’s an example of the difficulty in getting seats with extra legroom.  Nearly six months in advance I made a reservation on United for a September 2006 flight from San Francisco to Newark.  We were assigned seats in row 13, which was in Economy Plus and had extra legroom.  A few weeks before the flight, United informed us that the flight was being rescheduled for around 2½ hours later and would arrive around 10 p.m.  The wheelchair accessible minivan we were renting wouldn’t have been deliverable that late, nor was other accessible transportation available that late, so we changed to an earlier flight.  (Even this took some doing:  it required several conversations with United ticket agents and supervisors to persuade them not to charge a change fee.)  I was told that United couldn’t assign us any seats in advance for the new flight, and that a row with extra legroom was reserved for special needs passengers and would be assigned at the airport. 

We went to the airport early and I explained what I had been told by the reservation agent, but the United gate agent said there were no seats available in that row because there already were four wheelchair passengers assigned to it.  (This seemed highly implausible - there wasn’t anyone else in a wheelchair at the boarding area, and flights with that many passengers in wheelchairs are rare indeed.  As it turned out, there weren’t any other wheelchair passengers in that row; there were tall, able-bodied young men.)  I asked to be seated in another row with extra legroom (the airplane had several rows of Economy Plus seats, which have extra legroom), but the ground agent refused because she said they had already been assigned.  She put us in a row further back; I believe it was in the 20’s.  There was very little legroom, especially for a coast-to-coast flight.

There are many compelling reasons why passengers who use wheelchairs and cannot walk should be assigned seats with extra legroom if they so request.  First, although all passengers are at risk for blood clots, wheelchair users are at greater risk because they are unable to get up during the flight, are limited in the amount they can drink and are more immobile on airplanes than when in their own wheelchairs.  (Before flying I take an anticoagulant medication.)  (Courts have begun to recognize that airlines have at least some duty to take reasonable steps to mitigate the risk of blood clots.  Several lawsuits by (apparently, able-bodied) passengers alleging airline liability for injuries due to blood clots contributed to by cramped seating have withstood motions to dismiss and are proceeding to trial in federal court in San Francisco.)  Second, it’s difficult to transfer and be assisted from a narrow aisle wheelchair to and from an airplane seat.  This process is difficult for both the passenger and the assistance personnel, and the more difficult the transfer, the greater the risk of injury to the assistance personnel and the passenger.  I’ve been bruised many times during these transfers.  Transferring to/from a seat with extra legroom is far less difficult.  Third, as described above, the difficulties of immobility and confinement in airplane seats are especially great for people who use wheelchairs.  Fourth, it would be much easier to evacuate a wheelchair passenger in an emergency if he were in a seat with extra legroom.  Fifth, other passengers in the same row must climb over the wheelchair passenger in order to get to and from their seats, including at boarding and landing (since the wheelchair passenger is usually the first one on the airplane and always the last one off), and during the flight.  It’s easier for fellow passengers when there is more legroom.  Sixth, when the person in the seat in front of a wheelchair passenger reclines his seat, the space becomes even more confining.  (Given this, the absence of a row of seats immediately in front of the bulkhead row makes bulkhead seats especially desirable for many passengers in wheelchairs, although, as discussed in III. C., below, there are trade-offs.)

It’s also important to be able to sit in a row near the exit row instead of further back.  (I’m certainly not suggesting that wheelchair users should be seated in exit rows.)  Aisles are narrow, aisle wheelchairs are narrow and have design limitations, and the process of boarding and exiting is difficult.  The further back one sits, the more difficult the process.  (See III. D., below, for a description of the problems in boarding.)  During this process my legs often get banged or pinched against the armrests of the aisle seats; the fewer rows I have to pass through to reach my own seat, the less this happens.  For similar reasons, it’s much easier and faster for the assistance team to help a passenger seated closer to the exit row.  Also, although the ideal is to pre-board, this doesn’t always happen, and when other passengers are already seated, it’s difficult to avoid brushing against them, which is awkward and unpleasant for both parties and compromises one’s dignity.  Having to pass through fewer rows in the aisle wheelchair reduces this.

Section 382.38(a)(4) requires that bulkhead seats or other seats with greater legroom be assigned to passengers whose legs are fused or immobilized if they so request in advance.  Section 382.38(c) provides a lesser degree of priority to disabled people who state that they need a seat assignment accommodation in order to “readily access and use the carrier’s air transportation services.”  The airline isn’t required to offer the disabled passenger one of the seats blocked for passengers whose legs are fused or immobilized or seats blocked for passengers traveling with service animals (or seats blocked for passengers with other specified disabilities who don’t require extra legroom and which are irrelevant in this context), but is required to assign him or her any seat, not already assigned to another passenger, that accommodates his or her needs, even if that seat is not available for assignment to the general passenger population at the time of request.

  With few if any exceptions, whenever an airline has refused my request for extra legroom, it hasn’t been in order to accommodate passengers with fused or immobilized legs or passengers with service animals.  I can’t remember ever being on a flight with a passenger with a service animal; and I’ve been on very few flights with passengers whose legs were immobilized by a cast, and on those rare occasions only one seat with extra legroom (and certainly not an entire row) was occupied by someone whose leg was in a cast.  On many occasions, able-bodied people have been seated in bulkhead seats that were not exit rows, and in other rows with extra legroom, while I was seated in a seat with standard legroom.  In addition, no airline has ever explained its refusal on the grounds that it disputes my need for a seat with extra legroom in order to “readily access and use the carrier’s air transportation services” as specified by the regulation. 

Given how far in advance I make reservations and how many rows there are with extra legroom in economy class on many planes, the most likely explanation for the airlines’ refusals is disorganization and a practice of saving the more desirable seats for preferred passengers.  The regulations don’t require airlines to provide a disabled passenger seats in a class of service other than the one the passenger has purchased.  (Section 382.38(i).)  That’s as it should be.  But what seems to have happened in recent years is that some airlines, such as United, often reserve the economy class seats with greater legroom (in United’s case, Economy Plus) for passengers in elite frequent flyer categories or who’ve paid a higher fare, even though those seats are in the same class - economy.  Failure to assign those seats to passengers in wheelchairs upon request when they are available (that is, not all of them have been assigned to the general passenger population) at the time of request, violates the regulations.

DOT should remedy the situation.  First, DOT should more aggressively enforce the existing regulation and make clear to the airline industry that it interprets section 382.38(c) to mean that passengers who use wheelchairs and cannot walk are entitled to seats with extra legroom.  Because of the difficulty of transferring and being assisted from the aisle wheelchair to the airplane seat, and for the other reasons above, passengers who use wheelchairs and cannot walk require seats with more legroom in order to “readily access and use the carrier’s air transportation services,” and therefore meet the requirement of the existing regulation.  DOT should also make clear that Economy Plus and similar categories of seats with extra legroom in the economy parts of the cabin are still economy class seats under the regulation.  I recognize enforcement will be a challenge because it’s difficult to prove, at the time the wheelchair passenger makes his reservation, which seats have been assigned, which are blocked for “first priority” passengers with disabilities, etc.  Despite the challenge, more aggressive enforcement is critical. 

Second, the regulation should be amended to provide explicitly that passengers who use wheelchairs and cannot walk are entitled to seats with extra legroom (provided they meet reasonable advance request requirements).  This amendment would eliminate any argument to the contrary.   Their priority would remain after those of passengers with fused/immobilized legs and passengers traveling with service animals. 

The amendment also would include a requirement, similar to that for passengers with fused/immobilized legs (but second to them in priority), to block some seats with extra legroom for passengers who use wheelchairs and cannot walk but whose legs are not fused or immobilized.  Similarly, passengers in the general passenger population who are assigned seats with extra legroom would be subject to reassignment in favor of passengers who use wheelchairs and cannot walk, as is the case with reassignment in favor of “first priority” disabled passengers.  That way, a wheelchair passenger would have priority over other passengers in the same service class who don’t need extra legroom because of a disability, while passengers with fused/immobilized legs and passengers with service animals would continue to have the highest priority for seats with extra legroom. 

Finally, the amendment would also include a requirement that, upon request, passengers who use wheelchairs be seated as close as possible to the boarding/exit row.

      III. C.  Not Enough Movable Aisle Armrests

Movable armrests in aisle seats are important in enabling wheelchair passengers to transfer from an aisle wheelchair to an airplane seat and back again.  Seats without movable armrests are far more difficult to get in and out of, whether one transfers independently or with assistance.  This is important not only for the safety and comfort of passengers in wheelchairs, but also for assistance personnel:  movable armrests make transferring and lifting passengers safer and less difficult.  Assistance is usually provided by third-party companies, so injuries to assistance personnel may not directly impact airlines’ bottom lines, but airlines should do right by the assistance people; and even considering only self-interest, occasionally it is airline employees who provide assistance. 

Movable aisle armrests aren’t only important in transferring; when seated, one can raise the armrest from time to time in order to make the airplane seat somewhat less confining.

Section 382.21(a)(1) requires airplanes to have movable aisle armrests on at least one-half of passenger aisle seats, but not on aisle seats on which they aren’t feasible.  But we’ve never seen movable armrests on bulkhead seats in economy or on any seats in business and first class.  For the reasons above, it’s important for passengers who use wheelchairs to have the opportunity to be assigned bulkhead seats (if the bulkhead row isn’t an exit row).  Also, some flights that have a single class of service have business class type seating in the rows with extra legroom.   I rarely fly business or first class, but I’ve been upgraded occasionally, and surely some passengers who use wheelchairs fly business or first class, or would if those seats had movable armrests.  A wheelchair passenger who wants to fly business or first class shouldn’t be discouraged from doing so because all of those seats lack movable armrests; that is discrimination. 

As currently configured, bulkhead seats involve a difficult trade-off.  They have more legroom, which is important for passengers who use wheelchairs, especially tall passengers, and they have the great additional advantage of an absence of passenger seats immediately in front of them.  But because they lack movable aisle armrests, it is more difficult to transfer to and from them.

Airplane designers have been impressively creative in designing armrests with a myriad of gadgets, controls and sophisticated electronics.  It should be feasible to design movable aisle armrests in bulkhead, business and first class seats, and to rearrange the tray and audiovisual equipment.

Has DOT ever investigated this issue?  Is it DOT’s position that it’s never feasible to have movable aisle armrests on bulkhead, business and first class seats?

Over the years, more seats in economy class (except those in bulkhead rows) have movable aisle armrests, although sometimes I’m still assigned a seat with a fixed armrest.  Sometimes this assignment has been changed at the airport; other times it hasn’t.  Given the relative scarcity of rows with extra legroom, the regulations should be amended to require airlines to provide movable aisle armrests on all rows of economy class seats with extra legroom.

      III. D.  Problems with Assistance in Boarding and Transferring

The assistance personnel who help wheelchair passengers board and exit the airplane differ greatly in their competence, training, physical fitness, motivation and English proficiency.  The situation varies widely from one airport to another; it depends upon the third-party provider at a particular airport.  (Typically a single provider serves all the airlines at an airport.)  Often the assistance people who help me from my wheelchair to the aisle chair and from the aisle chair to the airplane seat, and the reverse, are poorly trained and are too short, weak and old for the job.  Some don’t speak English well enough to understand instructions and communicate vital information.  I’ve been mishandled many times over the years.  

Most people who do this job want to do a good job, take pride in their work and are empathetic, but many are poorly trained, insufficiently skilled and/or physically unqualified.   The work is important and physically demanding but poorly rewarded.  When I first began using a wheelchair, this job was performed by airline employees, who were better trained and better motivated.  But over the years US airlines have almost entirely outsourced this function; in fact, it was one of the first functions to be outsourced.  Once in a while I get lucky and an airline employee does the job because there are no third-party employees available.  Sometimes an airline employee takes over because he can see that the third-party employee isn’t doing the job correctly. 

A related problem is that sometimes my wife and I arrive at the gate early, the gate agent tags my wheelchair and calls for the assistance team, but they are occupied elsewhere and arrive late.  This causes delays in boarding me, which sometimes contributes to overall delays; it also makes the gate agent’s job harder.

            Sometimes there is no aisle wheelchair available when the assistance team arrives at the gate, so they wait for one with me and my wife.  Again, this causes delays.  This problem could easily be remedied by having an aisle chair at each gate at all times.  In the long run the cost of the equipment would be less than the cost of the delays.

I’m not necessarily suggesting that the regulations need to be amended to address these problems, but it’s important for DOT to be aware of them and address them with the airline industry.

      III. E.  Problems with Aisle Wheelchairs

      The design of aisle wheelchairs has improved in recent years, but considering how abominably designed the earlier ones were, this is hardly a compliment.  I recognize that aisle wheelchair design is constrained by the narrowness of airplane aisles and the tight spaces available for turning.  For example, if aisle wheelchairs were made any wider, they literally wouldn’t fit in the aisles.  Also, improving some elements may involve trade-offs.  But major problems remain and it appears feasible to change some elements. 

The seats aren’t deep enough and the “footrests” are far too short.  A deeper seat would be less uncomfortable, would make transfers and assistance somewhat safer and less difficult, and would reduce the likelihood of the passenger sitting too far forward on the aisle wheelchair.  Even two inches deeper would make a big difference.  The “footrests” typically consist of a round metal rod parallel to the passenger’s foot, rather than a flat plate common in real wheelchairs.  The “footrests” are extendable by a few inches, but not enough for many people.  I’m six feet tall and have relatively long legs; my feet always fall off the “footrests,” which is a problem for me and the assistance personnel.  Often the assistance personnel repeatedly try to force my legs onto the short “footrests.”  The “footrests” should be redesigned to consist of a flat plate and should be extendable further.

The regulations concerning aisle wheelchairs, like those for accessible onboard bathrooms, aren’t very detailed.  Section 382.21(a)(4)(iii) states the requirements for aisle wheelchairs in general terms.  Given the wide variety of airplane sizes and interior configurations, it may not be practical for the regulations to specify exact dimensions, but aisle wheelchairs must be improved.  I urge DOT to look into this issue, including consulting with experts outside the airline industry such as occupational therapists and companies that design and manufacture real wheelchairs.

III. F.  Inaccessible Bathrooms on Airplanes

Section 382.21(a)(3) requires twin-aisle airplanes delivered since 1992 to have an accessible bathroom.  Its definition of an accessible bathroom is weak, and even this minimal requirement often isn’t followed.  (It’s difficult as a passenger to ascertain the age of an airplane, so I can’t be certain whether the airplanes I’ve been on have been delivered since 1992, but many of them appear new enough to have been delivered since that time.) 

My wife has looked at the designated “accessible” bathrooms on airplanes that have them, and they are not really accessible.  In fact, it’s not much of an exaggeration to say that the greatest similarity between an “accessible” bathroom on an airplane and a real accessible bathroom is the wheelchair logo on the door!  The only time I’ve ever used one was on a United flight from Frankfurt to San Francisco in 2005.  It bore little resemblance to a real accessible bathroom.  The flight crew was helpful and strong, but even then, it was almost impossible to use the bathroom.  Among other things, contrary to the regulations, it didn’t afford privacy equivalent to that afforded ambulatory users - it was essentially a standard bathroom that could be made “accessible” by having a door extended from the adjacent galley area or adjacent standard bathroom to create a double door, but there was a gap between the two doors.  Many other features weren’t accessible, even under the regulation’s weak standards. 

The regulation requires that the bathroom shall permit a disabled person to enter, maneuver within as necessary and exit by means of the aircraft’s onboard wheelchair.  But the onboard wheelchairs (the aisle wheelchairs) are not designed to be propelled by the occupant; they must be pushed by another person.  Therefore, in order to accommodate a person in a wheelchair and someone to push him, almost as much space is required as in accessible bathrooms in public accommodations on the ground; but the “accessible” bathrooms on airplanes are far smaller.

The regulation prescribing the physical requirements for accessible bathrooms is only a few sentences and doesn’t specify dimensions or contain any diagrams, in contrast with the Americans with Disabilities Act Access Guidelines (ADAAG), which provide rich detail on accessible bathrooms in public accommodations, including dimensions and diagrams.  I searched the DOT website for standards for the design of accessible airplane bathrooms; the only thing I could find was a set of “Suggested Guidelines” dated February 5, 1992, prepared by an ad hoc working group.  One would have expected updates, especially in light of the fact that ADAAG, which provides meaningful detail on accessible bathrooms and is the product of accessible design experts, advocacy groups and extensive public comment, was not yet final at that time.  Anyway, these are only nonbinding guidelines; the regulation remains woefully inadequate.

During the past several years, many coast-to-coast domestic flights that previously would have been on twin-aisle airplanes are now on single-aisle airplanes.  Short and mid-length domestic flights are almost always on single-aisle airplanes.  I’m not necessarily suggesting that accessible bathrooms should be required on single-aisle airplanes, but the opportunity for wheelchair users to use even minimally “accessible” bathrooms on domestic flights has been reduced to the point where it’s almost nonexistent. 

As described above and in my previous letter, because it’s impossible or nearly so to use the bathroom on an airplane, I always eat fairly little and drink even less before I fly and during the flight.  Other people I know who use wheelchairs do the same.  Obviously, this is problematic, especially on international and long domestic flights.

Because wheelchair users are always the last to exit the airplane, the time until they can use a bathroom is further prolonged.  The accessible stalls in airport bathrooms are often occupied.  (See III. G., below.)  One often has to wait a long time for accessible ground transportation.  There is also a risk of hotel access being poor, or of finding that, when one arrives at a hotel, the accessible room one has reserved isn’t available.  (Fortunately, the hotel access situation in many major American cities has improved significantly in recent years.)  Each of these things makes the lack of bathroom access on airplanes even more problematic.

The absence of effective bathroom access on airplanes is one important reason why the process of checking in and passing through security at airports should be streamlined for people who use wheelchairs.  Streamlining the process would afford (more) time to use the bathroom at the airport.

The absence of effective bathroom access on airplanes also makes it critical for wheelchair users, especially those who use electric wheelchairs, to be able to sit in their own wheelchairs during layovers so they can use the bathroom at the airport.

Lest anyone doubt the critical importance of bathrooms on airplanes, imagine the ferocious uproar that would ensue if the airlines decided to eliminate bathrooms altogether.  Or consider how much of a discount on air fare a typical passenger would require to give up his opportunity to use the bathroom on a long flight.  I urge DOT to revise the regulations to require truly wheelchair accessible bathrooms on airplanes, at least on airplanes with more than one aisle.

            III. G.  Not Enough Accessible Toilet Stalls at Airports

In almost every American airport I’ve ever been in, there aren’t nearly enough accessible toilet stalls.  The majority of the time, the one or two accessible stalls is occupied by an able-bodied person who has a lot of luggage and, understandably, wants to use a large stall; and quite often, several regular stalls are vacant.  Quite often I have had to go to two or sometimes three different bathrooms to find a vacant accessible stall.  Not being able to use the bathroom at an airport because the only accessible stall is occupied is incomparably worse than a similar situation in a restaurant, store or other public accommodation.  Among other things, if a restaurant or store bathroom is occupied for a long time or out of order, often one can use the bathroom in the establishment next door.   

Sections 382.23(b) and (e) require airports to be accessible to the standards of Title III of the ADA (public accommodations), and they adopt ADAAG as the accessibility standard.  Generally the ADAAG specifications, dimensions and features for accessible toilet stalls are appropriate for airports.  However, ADAAG requires only a small number of accessible stalls in large bathrooms; this is okay for restaurants, stores and other public accommodations, but is woefully insufficient for airports.  (The number of accessible stalls required doesn’t increase proportionately with the overall number of stalls.)  Disabled people have a critical need for accessible bathrooms readily available at airports.  Unlike most other public accommodations, an airport is merely one step in a long, complex, uncertain journey, and is only one part of a complex system.  Moreover, it is understandable and foreseeable that many able-bodied people use accessible stalls at airports because they want more space for their luggage.

Bathrooms at airports are heavily used, and there is a trade-off between the size and number of stalls.  But even at busy times, often some stalls are vacant at airport bathrooms with many stalls.  I urge DOT to amend the regulation to require a higher percentage of accessible stalls in airport bathrooms. 

In addition to a reasonable number of accessible stalls in multi-stall bathrooms, airports should be required to provide large, single-user, lockable accessible bathrooms for disabled people who require assistance.  We saw a bathroom of this type at Boston Logan Airport in May 2007.

IV.  FRANKFURT AIRPORT - WHAT A LAYOVER SHOULD BE LIKE

My wife and I have changed planes at Frankfurt airport several times during the past five years.  What a superb experience we’ve had each time!  The people who help me on and off the airplane are skilled, well-trained, strong and professional.  Most of them even speak English better than some of the assistance personnel in major American airports!  (I’m not exaggerating.)  If we don’t land near a boarding gate, or if the boarding gate has stairs, we are taken to the terminal in an accessible bus-like vehicle.  There we are escorted to a lounge for passengers with special needs, including wheelchair users, frail elderly people and passengers with small children.  The lounge is pleasant, spacious, quiet, clean and well lit; most important of all, it has a large, well-designed, lockable, clean, accessible bathroom.  When the time comes for the next flight, we’re escorted to the gate or the vehicle.  Everyone is unfailingly courteous and appears genuinely to enjoy his or her job.  Except for the people who help me on and off the airplane, the personnel appear to be Lufthansa employees.  Throughout, we are assisted with our carry-on baggage, and if we have to pass through security, we are assisted there and usually don’t have to wait in line.  This wasn’t business or first class treatment - we were on economy class tickets each time.

Getting through American airports is often a nightmare.

            V.  THE BEST SOLUTION

            By far the best solution would be to permit passengers who use wheelchairs to remain in their own wheelchairs on airplanes, except on small airplanes.  Remaining in one’s own wheelchair on buses, light rail, intercity rail, boats and ships has been routine and universal throughout America for many years.  Doing the same on airplanes would completely eliminate many of the access barriers and physical difficulties people who use wheelchairs face in flying, and would greatly mitigate most of the o