When Larry Dodson travels, he doesn’t bother with planes anymore—as a quadriplegic who relies on a $30,000 custom wheelchair for his mobility and health, he can’t afford the risk of picking the wrong airline. The last time the 70-year old Vietnam veteran took a flight, airline employees lost his wheelchair, leaving him stranded in an uncomfortable airport wheelchair, in the middle of a public terminal area while they searched for it. The lengthy ordeal, which involved moving from one uncomfortable temporary chair to another, led to pressure sores on his skin that his wheelchair would have prevented, says Dodson. He had to spend three days recovering in bed.
“My chair is 350 pounds and it’s rather hard to lose, but it got lost, and we went through the whole thing of getting me transferred from an aisle chair to a wheelchair,” he says.
Dodson’s story seems to be fairly common. His chair has also been repeatedly broken by airlines, and as the national secretary of Paralyzed Veterans of America, he hears about airlines breaking or losing wheelchairs on a regular basis. Still, no one knows just how common it is or which airlines are the worst offenders. There is literally no transparency when it comes to how airlines handle wheelchairs—they are not required to keep or publicly release data on the chairs and motorized scooters they carry.
A new federal rule written by the Obama administration was supposed to change that. Beginning on January 1, 2018, the rule would have required airlines to track, and report on a monthly basis, how many wheelchairs and motorized scooters each airline carries and how many they break or mishandle. That would allow disabled travelers to easily assess which airlines to use and which to avoid.
But then Donald Trump’s administration stepped in. Just weeks after Trump took office, the Department of Transportation bowed to pressure from airline industry lobbyists and abruptly delayed the new rule—with no input from the public.
The decision, which has prompted a lawsuit from Dodson’s organization, illustrates the close ties between regulators in the Trump administration and the industries they are supposed to oversee—and it suggests that the president who pledged to “drain the swamp” in Washington has so far only made it deeper.
A Stunning Reversal
When chairs are broken, airlines will eventually pay for repairs, but it’s not a simple process. In Dodson’s experience, it requires documenting the damage, submitting claims, and haggling with airline representatives over costs. Being stranded in a distant city with no way of knowing when your chair will be fixed is demoralizing—and the health risks of being out of the chair for so long are terrifying. Dodson points out that Superman actor Christopher Reeve died of complications from a pressure sore.
“They repair the wheelchair, but what do they do to repair your dignity, to repair your skin breakdowns, where you have to lie in bed for days at a time, and you lose your productivity?” says Dodson. “You lose your opportunities to do things, to go places…If you’re on vacation, you lose your chance to actually participate in your vacation.”
Dodson says that airlines damaging or losing wheelchairs or scooters is so common that when Paralyzed Veterans of America hold their annual National Veterans Wheelchair Games, the group makes sure wheelchair repair technicians are on hand with as many spare-parts as possible to deal with the inevitable problems. Similar steps are taken when the group holds board of directors meetings.
The Department of Transportation first proposed requiring airlines to track wheelchair data back in 2011. For five years, airlines and their lobbyists pushed back, citing the costs and technical hurdles they argued the rule would create. In a 2011 public comment, a lobbyist for a powerful industry group called the Air Transport Association noted that when wheelchairs are checked, they are not marked any differently from any other piece of checked baggage. Keeping track of wheelchairs would require coming up with new procedures, and there would have to be new staff training and tweaking of computer systems, the lobbyist argued. Over the years, the industry also questioned whether the public would really be able to make use of detailed information on the mishandling of wheelchairs.
On November 2, 2016, just days before the election, the agency finally issued its new rule requiring the disclosures. The wheelchair rule was slated to take effect in December 2016, but in response to continued industry pushback, the DOT declared the rule would not be implemented until January 2018—a full 13 months later—to ensure airlines had time to set up systems to track the numbers.
The issue, it would seem, was closed. Relief for disabled travellers, many of whom say they no longer trust airlines at all, was on its way.
But on March 2, just six weeks into the Trump administration, the DOT reversed itself, declaring that the rule would be put on ice once again, this time until at least January 2019. The department has said virtually nothing about the decision-making process surrounding the newest delay, leaving disability advocates furious.
“My opinion was that it was a finalized deal,” Dodson says. “And then they just changed that to, ‘We’re going to let the airlines skate on it this time, and we’re going to give them extra time to do so.'”
In July, Paralyzed Veterans of America filed a lawsuit against the DOT and the agency’s head, Elaine Chao, arguing that delay was illegal. Dodson is also named as a plaintiff. The DOT has responded to the lawsuit, saying it was improperly filed and disputing the idea that Dodson would suffer “irreparable harm” from a delay. A department spokeswoman declined to answer any questions relating to the rule’s delay, citing the lawsuit.
How the Airlines Got Their Way
It’s not clear precisely how the rule got iced, but the few clues that exist suggest that it was done at the urging of the airline industry—and that it took little convincing.
Airlines are a powerful force in Washington, and Airlines for America (as the Air Transport Association is now known) is the driving engine. Since 2011, the group’s PAC and top executives have donated more than $1.6 million to federal candidates, and over the six years the wheelchair rule was under consideration, the group spent $38.1 million on federal lobbying. This year it is on track to spend $7.5 million if it continues on the current pace of spending.
According to the public docket—an official file detailing important communications in the rulemaking process—on January 27, David Berg, a lobbyist for Airlines for America, wrote to the DOT to request that a slew of new rules, including the wheelchair rule, be delayed. Berg cited a letter issued by Trump’s then chief-of-staff, Reince Priebus, announcing the administration would put a freeze on new rules. Berg didn’t provide any other reasoning for why implementation of the wheelchair rule should be halted. Within days, a DOT official responded that the agency would delay the implementation of several rules but did not mention the wheelchair rule. On February 27, in a friendly follow up email to DOT official Blane Workie, another Airlines for America lobbyist, Doug Mullen, inquired about delaying the wheelchair rule.
Just three days later, Mullen sent another email asking for news on whether the wheelchair rule and another rule about mishandled baggage would be delayed. This time, the lobbyist finally explained why the industry wanted a delay.
“Industry is facing some real challenges with both parts of this regulation and will need more time to implement it,” Mullen wrote. “We will be in touch with more information in the near future.”
The very same day, the DOT complied. The agency’s deputy counsel, Judith Kaleta, issued a notice that the wheelchair rule would now be delayed until January 2019.
There had been no public comment, no notice given to any of the stakeholders who had participated in the five-year rulemaking process, and only limited explanation of why the rule had been delayed.
“A4A states that industry is facing challenges with parts of this regulation and needs more time to implement it,” Kaleta wrote, apparently referring to Mullen’s email from earlier that day. “After carefully considering the requests, we have decided to grant an extension of the compliance date for the final rule on reporting of mishandled baggage and wheelchairs until January 1, 2019.”
If Airlines for America ever offered more information on what “challenges” it faces in implementing the wheelchair rule, they are not in the public record. And the entire deliberative process appears to have taken 35 days, with less than 24 hours separating the industry’s first effort to offer a justification and the agency’s decision to halt the rule. It was a sharp contrast to the five years it took to develop the original rule.
There were also several inconsistencies in Kaleta’s announcement that raise questions about how thoroughly the department considered the delay. According to Kaleta’s notice, requests had been made by Airlines for America and Delta Airlines (which isn’t a member of the industry group) that the rule should delayed. But this wasn’t entirely true. Mullen, the Airlines for America lobbyist, submitted several inquiries, but the lone Delta communication in the public docket inquired about whether Priebus’ memo on delaying regulation would apply to a handful of other specifically cited regulations. The wheelchair rule was not one of them.
Another oddity about Kaleta’s announcement was its citation of Priebus’ letter on freezing regulations. Airlines for America had asked for the delay “in the spirit of the Memo,” Kaleta wrote. The word “spirit” is key, since the actual text of the memo applied only to rules from the previous administration that had been published in the Federal Register “but have not taken effect.” The wheelchair rule had technically been put into effect in December 2016; it just hadn’t been implemented—an inside-the-Beltway distinction if there ever was one, but a distinction nonetheless.
Airlines for America declined to answer questions about its role in the process, but in an emailed statement, Vaughn Jennings, the group’s managing director of government and regulatory communications, touted the airline industry’s desire to work with the DOT to improve travel conditions for disabled passengers. “We appreciate DOT’s efforts to ensure carriers have adequate time to plan, coordinate and implement this operationally challenging rule to report data not currently collected, and airlines will continue to work collaboratively with DOT to ensure the rule is properly implemented,” Jennings wrote.
The Revolving Door
Whatever the explanation for the DOT’s reversal, it’s clear that the industry has sympathetic ears at the department. On Trump’s first day in office, the White House ordered each agency to name a “regulatory reform officer,” who would then oversee a “regulatory reform task force” to begin combing through rules looking for opportunities to cut. The DOT didn’t name a regulatory reform officer until May—after the wheelchair rule had been delayed. The department ultimately chose Jeffrey Rosen, a longtime DC lawyer who had previously worked in the Bush administration and had then returned to private practice at the firm Kirkland & Ellis, where he did legal work for Airlines for America, according to McClatchy.
There are other connections as well. According to an investigation by Pro Publica and the New York Times, one of the members of Rosen’s regulatory reform task force is Dan Elwell, a former Airlines for America lawyer and American Airlines lobbyist. From 2013 to 2015, Elwell was a senior vice president at the industry group, where, among other things, he served “as a liaison on safety, security and operations issues with governmental agencies, including the Departments of Transportation and Homeland Security, FAA and Transportation Security Administration.” In his time at Airlines for America, Elwell also served as chairman of a board of outside experts who offered advice to the Department of Transportation and Federal Aviation Administration on rulemaking.
It’s unclear if Elwell, who referred a request for comment to a DOT spokesperson, ever worked on the wheelchair rule specifically, but his tenure at Airlines for America included the era when the group was submitting comments to the DOT objecting to the rule’s creation. In June, Elwell was appointed as the deputy administrator of the FAA, and his biography on the agency website lists his most recent job as a senior aviation adviser to Chao.
“An Eminently Reasonable Request”
In April, Sen. Tammy Duckworth (D-Ill.), a veteran whose legs were amputated after her helicopter was shot down in Iraq in 2004, sent a letter to the DOT complaining about the process behind the wheelchair rule delay. “If an airline loses a passenger’s baggage, it is a serious inconvenience,” Duckworth wrote. “If a wheelchair or motorized scooter is damaged or lost, it represents a complete loss of mobility and independence for that passenger.”
Duckworth added that she knew all too well about the issue.
“In the past year, I have had my personal wheelchair mishandled and damaged several times,” she wrote. “I have spent hours filling out paperwork and working with the carrier to replace damaged parts. On a recent trip, I retrieved my wheelchair at the end of the jet bridge, but a titanium rod had been damaged during the flight and my chair literally broke apart while I was sitting in it. The airline was apologetic, but I was left without my primary wheelchair for over five days.”
According to her staff, the day after sending the letter, Duckworth had another wheelchair damaged while flying. Chao, the DOT head, didn’t respond to Duckworth until June.
At a hearing in May, Duckworth confronted Sharon Pinkerton, an Airlines for America lobbyist, over the group’s stance on the issue. Pinkerton said the delay was “an eminently reasonable request” and insisted that airlines had worked hard to improve crew training. When Duckworth complained she has had two wheelchairs broken by airlines in recent years, Pinkerton apologized and assured the senator that “we do want to fix that.” The response seemed to anger Duckworth.
“It doesn’t appear that way,” Duckworth said. “Because it appears to me that you are trying to delay something as basic as collecting data and making it transparent to the public.”
Dodson puts it in starker terms. “They’re playing a game with people’s lives at stake,” he says.