Many major carriers today do not provide respiratory services, which means people suffering from respiratory disabilities such as emphysema, chronic bronchitis, asthma, sarcoidosis, and other lung diseases are effectively proscribed from flying with those carriers. The carriers that provide services do so at greatly varying cost to the passenger (anywhere between $0 and $1500 per flight), at varying oxygen flow-rate capabilities, and at varying requirements of notice of intent to use oxygen services (anywhere between 48 hours and one month).1
Under the current state of affairs, if a person who requires a respiratory device wants to fly on a commercial airline, that person must 1) find an airline that provides oxygen service, 2) research the amount of advance notice required by the airline and what flow-rates the airline provides, 3) make the arrangements with the airline, 4) pay for the service, 5) arrange to leave their personal oxygen device at their departure airport with a friend or private respiratory service provider, 6) arrange for a private respiratory service provider to assist them during any layovers and connections, and 7) arrange for oxygen assistance from a friend or private respiratory service provider once they arrive at their destination.
Seem like a lot of trouble? The Department of Transportation thought so, and proposed an amendment to the Air Carrier Access Act of 1986 (ACAA). DOT’s goal is to relieve the difficulties of air travel for those who require a respiratory device and assure them greater access to air travel.
A notice of proposed rulemaking (NPRM) was issued Sept. 7, 2005. The law as it stands now does not require carriers to provide respiratory services on their aircraft. Passengers are also not allowed to bring their personal oxygen devices onboard (except for two models that, as of July 2005, carriers are allowed, but not required, to permit passengers to carry onboard—the Air Sep Lifestyle and the Inogen One). The amendment will attempt to regulate and standardize what passenger-owned devices are allowed onboard and what oxygen services are provided by the airlines.
These new and improved services will all come at zero cost to the passenger. The cost for the airlines, however, will be great indeed. The airline industry (both foreign and domestic carriers) may be forced to take significant measures to comply with the new requirements.
New Requirements for Carriers
This amendment applies to carriers that conduct passenger-carrying service on at least five round trips per week on at least one route between two or more points according to its published flight schedules that specify the times and places between which those flights are performed. There are basically two new requirements for these carriers: 1) they must conduct electromagnetic interference (EMI) testing on devices and then allow those devices that pass the tests to be brought onboard by passengers, and 2) they must provide oxygen service to passengers.
All U.S. carriers and all foreign carriers operating to and from the United States must conduct EMI testing on oxygen assistive devices (ventilators, respirators, continuous positive airway pressure (CPAP) machines, portable oxygen concentrators) before the devices can be allowed onboard. When a device manufacturer or a user of a device requests a carrier to allow the device onboard, the amendment will require the carrier to conduct the testing on each of its planes, during each phase of flight. If the device passes the EMI tests, then the carrier will have to allow that device onboard each plane on which it passed and allow its use for every phase of the flight it passed (e.g., take-off, ascent, cruising altitude, descent, landing).
The framework for testing already exists for portable electronic devices. Therefore, U.S. carriers must first determine whether the devices are ‘‘portable electronic devices’’ as de- fined by existing regulations. Then, they must test the devices and determine whether they will interfere with the plane’s navigation or communication systems. Foreign carriers will have to comply with the EMI testing requirements from their respective governments.
Testing/evaluation of the devices must be completed 90 days from the date requested. Once testing is completed and the devices are approved, the carriers must permit the approved devices onboard within 30 days. This should allow a manufacturer or user to plan on being able to use (or not being able to use) their device within 120 days from their initial request.
All carriers who operate at least one aircraft with a seating capacity over 60 passengers must provide oxygen assistive services on both their large and small aircraft (both over 60 passengers and under 60 passengers). As the law stands now, carriers are allowed to provide this service, but the amendment will make the service mandatory. Carriers will have to provide oxygen in either a canister or from an oxygen concentrator with a sufficient flow-rate for any disability. Yet they will only need to provide it on the plane, and not in the airport before or after flight or during layovers. Carriers will have six months from the date of the final rule on the amendment to provide the oxygen to passengers.
Oxygen provision is to be treated like any other disability-related service, meaning the carrier cannot charge for accommodating the use of respiratory assistive devices. Under the language of the proposed amendment, carriers cannot charge for the EMI testing, or for allowing passengers’ devices onboard, or for providing oxygen, or for maintenance of the devices, or for the devices being excess baggage. The only thing carriers may charge for is an additional seat if the equipment actually takes up another seat.
Practical Effect on Carriers
What does all this mean for the airlines? Mostly, it means considerable time and expense.
Personnel to test the devices on all the different aircraft and different phases of flight may have to be hired and/or trained. Customer service representatives may have to be trained to inform prospective passengers which models are allowed and which are not, and what phases of the flight and on which planes the devices are approved. They may need to be able to inform the passengers of the availability of electric outlets and the advance notice requirements for using the outlets. With respect to carrier-provided oxygen services, customer service representatives may have to be trained to inform passengers of exactly what services are provided on which flights, of applicable notice requirements of the intent to use carrier-provided oxygen (48 hours), and of the necessity of a doctor’s note before services can be provided that specifies the quantity of oxygen per hour and maximum flow-rate corresponding to cabin pressure at altitude.
Flight attendants may need to be trained to recognize the approved devices, check for doctors’ notes, and to assist with operation of the devices. Carriers that do not already own the devices may have to either purchase the devices new or perform hydrostatic testing on used devices. They should keep the devices available and in good repair. Carriers should make sure that electric outlets are available and functional and also keep back-up batteries for the different approved models where outlets are not available. Carriers may also have to allow passengers to stow extra equipment (e.g., extra canisters, extra battery packs) for long flights. According to the language of the proposed amendment, carriers must bear all the expense for the results of this amendment. DOT purports to have conducted a cost-benefit analysis regarding the implementation of the proposed amendment and boasts results indicating that the amendment will be cost-beneficial to both U.S. and foreign carriers. The analysis contends that the revenues received from the purchase of tickets by people who did not fly before, but will be able and willing to fly once the amendment is passed, will outweigh all of the combined costs the airlines will incur in complying with the changes.
This is probably the most ripe grounds for attack of this NPRM by the airlines. It is hard to fathom how airlines, which are already not realizing profit from current sales, can incur even more operation costs and end up benefiting from the change. Rising operation costs mean rising ticket prices (even though carriers may not be able to charge the disabled passengers for the oxygen service, the general ticket price may be increased to compensate for the expense). Rising ticket prices mean more people will choose not to fly. Will increases in ticket sales from the oxygen-using passengers be enough to offset the costs?
Effect on Carrier Liability
This new regulatory backdrop will place new duties on carriers’ in-flight staff, as well as reservation staff and training staff. The new regulations and accompanying duties may change what staff actions are ‘‘reasonable’’ and change the reasonable expectations of passengers. These changes may expose the carriers to further liabilities under state, federal, and international law.
Depending on where suit is brought, there may or may not be a private right of action under the Air Carrier Access Act. The federal circuit courts are split as to whether the ACAA creates a private right of action by which a plaintiff can sue a carrier in federal district court. The Fifth and Eighth Circuits have held that a private right of action does exist under the ACAA, but more recently the Tenth and Eleventh Circuits have held that no private right of action exists. These later cases have based their decision on a swing in the U.S. Supreme Court in how it construes legislation as creating a private right of action. Therefore, while this precedent exists, plaintiffs in the Fifth and Eighth Circuits may bring suit in federal district court under the ACAA, but plaintiffs in the Tenth and Eleventh Circuits need to petition the Department of Transportation for review and then appeal to the federal circuit courts.
Damages sustained during international flights are recoverable under the Warsaw Convention. Whether damages are recoverable turns on whether the event that caused the damages was an accident. A recent U.S. Supreme Court case found an ‘‘accident’’ to have occurred where an asthmatic passenger requested to be moved away from the smoking section and the flight attendant refused.2 The passenger died and the airline was held liable. The attendant’s behavior was considered an ‘‘unexpected or unusual’’ event in light of the relevant industry standard and the carrier’s own company policy. Following the same reasoning of the court, it is likely that the proposed amendment would make the failure to assist a passenger with oxygen constitute an ‘‘accident’’ within the contemplation of the Warsaw Convention. The proposed amendment will create new duties for carriers and carrier personnel so that behavior of carrier personnel may now constitute an ‘‘accident’’ when it did not before because now the behavior would be considered ‘‘unexpected or unusual.’’
The materials accompanying the proposed amendment to ACAA specifically state that it does not preempt state law. The law of preemption is a quagmire, but similar acts have been held to not preempt state law tort claims.3 The new regulations and accompanying duties placed on carriers by the amendment may change what staff actions are ‘‘reasonable’’ and change the reasonable expectations of passengers, thereby possibly increasing the negligence liability of the carriers.
DOT has invited comments regarding the proposed amendment. The deadline for submission of those comments has been extended to Jan. 30, 2006 at which point DOT will consider the comments and issue a final rule.
1 Figures from a 1997 study published in CHEST, the Cardiopulmonary and Critical Care Journal.
2 Olympic Airways v. Husain, 540 U.S. 644 (2004).
3 See Stone v. Frontier Airlines, Inc., 256 F. Supp. 2d 28 (D. Mass. 2002) (holding the Airline Deregulation Act did not preempt state law tort claims).