Policy Round Table Notes

Presented at

Neurology in the Third Millennium: From Disability to Social Reinsertion

Milan, Italy

April 18, 2009

Scott Rains, srains@oco.net

There are two productive ways to enter this topic of governmental policies that facilitate travel by people experiencing disabilities. One way is to look at the most comprehensive policies. The other way is to look at the most highly regarded policies or “best practices.” We will do both – and take quick glances sideways to understand what impact they are having around the globe.

Let me suggest first that the very best resource I have found on this subject is a book by travel writer Candy Harrington. Her book, Barrier-Free Travel: A Nuts & Bolts Guide for. Wheelers & Slow Walkers” is an excellent English-language resource on travel under US policies for those with mobility impairments. I am reviewing the third edition prior to publication and will quote from it later in my comments.

The United Nations has produced the most comprehensive policy. Best practices are generally found in the policies of the EU and the United States. We will look at one UN document and a set of relevant US policies. I focus on US policy because I am better qualified to speak with authority on them than on European policy. I expect that my colleagues will be better suited to reporting the EU situation.

If we were to also examine business policies we would discover that these are underdeveloped. They react to governmental policy so we must understand government policy first. Business policy in the travel industry, with few exceptions, is still driven by fear of the cost of non-compliance to government enforcement. Development of mature business policies requires a complete reversal of assumptions by the industry. The market value of customers who experience disabilities must be recognized. Then business can innovate with policy based on its own internal logic of producing sustainably profitable product rather than grudgingly enacted compliance. As I suggested yesterday this means systemic design thinking where those who experience disabilities are imagined as vital customers long before products, policies, or places are built.

Concentrating our comments on governmental policies then, let’s begin with the most comprehensive perspective. This comes from looking at the United Nations Convention

on the Rights of Persons with Disabilities (CRPD). Within the CRPD Article 30 establishes policy on leisure travel. Article 30 is entitled, “Participation in Cultural Life, Recreation, Leisure, and Sport.”

The United Nations Convention on the Rights of Persons with Disabilities or CRPD is an assertion, at the level of international law, of the human rights of all persons with disabilities. It is unique in that it addresses all aspects of travel: the right to travel freely, accessibility of the means of travel and of destinations, and t he right to full participation in society – cultural inclusion. It is also a legal framework for evaluating the sufficiency of existing national legislation on these topics.

A Comparative Analysis of Disability Laws in the United States to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) has been done by the United States National Council of Disabilities.

Here is a quote from the document’s comparison of Article 30 of the CRPD to US Law:

Article 30 - Participation in Cultural Life, Recreation, Leisure, and Sport

The United States’ approach to participation in cultural life, recreation, leisure, and sport is based almost entirely on an antidiscrimination model. This means that to the extent that such opportunities exist for the general population, the federal government provides a legal right to people with disabilities to participate in such activities without discrimination.

In terms of enforcement, the Department of Justice has made accessibility of cultural and recreation facilities a priority.

But the larger project envisioned by Article 30, including enabling persons with disabilities to develop and utilize creative and artistic potential, establishing support and recognition of specific cultural and linguistic identities, and encouraging mainstreaming of sporting opportunities, is largely left to private actors and advocacy organizations.

Accordingly, a gap exists between U.S. law and CRPD protection, albeit one that could be filled with aggressive implementation and/or additional Congressional action.

Let me make one of those side notes I promised. It is about Asia. It illustrates the dynamics at work in this policy gap. The dynamic there is being repeated around the world in different forms.

I consult with government, industry, and advocacy groups around the world on travel and disability. I observe that developed nations generally place more responsibility on government while less developed nations rely on the actions of business. This has led us

in the advocacy sector in Asia to hold an international conference every two years asserting a rights-based approach to tourism and disability.

The purpose is to bridge gaps between the laws in Asian nations and the CRPD vision. It also allows us to influence business practice. I traditionally give the opening keynotes which I can provide to anyone who would like copies to research this in more depth.

Our first conference was held in Taipei in 2005, our second conference, hosted by the United Nations, took place in Bangkok in 2007, and our current conference, partially funded by the sister of the king of Thailand, is about to occur in Singapore. The conferences arose from the United Nations’ Biwako documents and the Millennium Plan [ ] In other words, this initiative for Inclusive Tourism by the advocacy sector represents a continent shifting toward comprehensive government policy as tool for the economic development of nations and specifically as a tool for the socio-economic inclusion of persons experiencing disability.

I feel that the historic significance of our gathering here sponsored by the Carlo Besta Institute holds the promise of bringing a fourth informed voice to policy development – the medical community – as well as a deepened commitment by Italy which is already well-respected globally for its economic development and disability projects. Hopefully this side note will stir some creative thinking about how and where you can become involved in policy development.

Now to return to analyzing the US situation.

The legal situation in the United States is somewhat confused. There are two main pieces of legislation impacting the process of travel for those who experience disability. These laws are the Americans with Disabilities Act (ADA) and the Air Carriers Access Act (ACAA). Two other laws are also important. These are relevant during travel but also before travel during the planning, decision-making, and reservation process. The first law is known as the Telecommunications Act of 1996. It deals with telephone and television accessibility. The second law is referred to as “Section 508” although the full title is Section 508 of the Vocational rehabilitation Act. It deals with online communication.

The ADA

Part of the confusion in the US over the ADA and the ACAA (besides the fact that it all sounds like alphabet soup) is that not even the experts in charge of enforcement know where enforcement of one stops and the other begins. In general the ADA protects you on the ground and the ACAA once you are in the airplane.

Another area of confusion exists because laws become more or less powerful through amendments, judicial action, or further policy decisions.

A quote from the United States National Council of Disabilities about what the ADA (the Americans with Disabilities Act) covers is helpful:

Coverage of United States Law

United States domestic law has several provisions that prevent discrimination against people with disabilities in cultural life, recreation, leisure, and sport. Many such activities take place at privately owned places of public accommodation – that is, privately owned businesses or establishments that open themselves up to the public – and are covered by Title III of the ADA. As such, the owners and operators cannot discriminate in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations.

Title III’s reach has therefore extended significantly into recreation and cultural opportunities for people with disabilities. The organizers of sports and recreation activities must make reasonable accommodations unless such accommodation would fundamentally alter the nature of the goods or services being provided. Thus, for example, the Professional Golf Association had to provide a golf cart as a reasonable accommodation to a professional golfer to allow him to participate in tournament play. A requested accommodation also does not have to made if it causes a direct threat to the health or safety of others. Title III has been applied to sports leagues; i.e., its coverage is not limited to actual locations.

Similarly, as with any Title III covered entity, facilities that house cultural and recreational opportunities have accessibility obligations. Facilities that predate the ADA must be accessible to the extent that doing so is “readily achievable,” and new facilities (and modifications to existing facilities) must be more fully accessible to people with disabilities in accordance with the [US building code known as] ADAAG standards. The accessibility of entertainment venues (sports stadiums and movie theatres) has been a heavily litigated area. In particular, there have been several “line of sight” cases, involving the issue of whether people who used wheelchairs are entitled to seats where they can see over people who stand in the rows in front of them. Another frequently litigated issue is whether wheelchair seating in stadium-style movie theaters must offer choices of position within the theater, and to what extent wheelchair seating must be integrated into the stadium seating section of the theater.

Telecommunications Act & Section 508

In the interest of time I will comment only briefly that the Telecommunications Act of 1996 directed the US Federal Communications Commission to adopt rules requiring closed captioning of most, though not all, television programming. It protects the right to alternative phone networks for the deaf which are the technological backbone for the videophones you will now find at O’Hare Airport and drives some of the manufacturer interest in Universal Design in cell phones.

Also briefly let me note that section 508 is the US manifestation of what you may experience in Europe more directly through the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C). Section 508 is the mandate to use Universal Design online that guarantees, for example, applications to read text aloud for blind or visually impaired users.

Although I pass over these things briefly today I observe an unresolved problem everywhere I travel and research. The need for quality information appropriate to those with limited or different functionality presented and presented I accessible formats is simply not being met. Perhaps that should teach me that I must spend more time on the subject!

The ACAA

Let me close with one example from the Air Carriers Access Act (ACAA). It is a quote from one of my favorite books on travel and disability, Candy Harrington’s “Barrier-Free Travel: A Nuts & Bolts Guide for. Wheelers & Slow Walkers.”. :

Generally speaking, the ACAA outlines procedures that airlines must follow regarding to passengers with disabilities. Among other things, the ACAA mandates that people with a disability cannot be denied boarding, solely because of their disability. It also forbids airlines from assessing surcharges for the services mandated by the ACAA.

The ACAA applies to all U.S. airlines and to all commercial flights to and from the United States, including those operated by non-U.S. carriers…

Although many people take the basic non-discrimination rights in the ACAA for granted, it’s something that’s not guaranteed worldwide. Here are some examples of what can and does happen in places that don’t have this kind of legal protection:

• Virgin Blue denied passage to unaccompanied wheelchair users, whohappened to be paralympians.

• A woman with cerebral palsy was refused passage on a South AfricanExpress flight, because she could not get in and out of her wheelchairwithout assistance.

• Air Asia prohibited disabled passengers from traveling unaccompanied.

• Tiger Airways, a no-frills Singapore-based carrier, denied passage to a 24-year-old wheelchair user, even though she was accompanied by her family.

• Air Sahara denied passage to an unaccompanied passenger with cerebral palsy, on the grounds that he needed an escort or a “fitness to fly” certificate.

• Cebu Pacific denied boarding to an unaccompanied disabled passengerwith a “neurological disorder.”

• Disabled passengers who wish to fly on Aeroflot must be cleared by thecompany medical department immediately prior to boarding.

An incident she didn’t mention was wheelchair user Sminu Jindahl being refused service on Christmas Day 2007 by Jet Airlines. Sminu’s net worth is $1 billion dollars.

By the way, the Air Sahara incident Candy mentioned was Rajiv Rajan last May on his way to do his job testifying to the Indian government in New Dehli about the current status of discrimination toward people with neurological ad other impairments while traveling.

Any questions about why I would like to recruit you to help us improve policy?