By BART JANSEN, USA TODAY
Thomas Wheaton Jr. has waited during the 30 years since he was paralyzed for the Transportation Department to require single-aisle airliners to have lavatories accessible for the disabled.
On Tuesday, Wheaton and the advocacy group Paralyzed Veterans of America filed a lawsuit at the 10th U.S. Circuit Court of Appeals to force the department to develop regulations envisioned under the 1986 Air Carrier Access Act. He plans extensively for trips to avoid needing a restroom for hours at a time, but it’s still harrowing.
“It’s a horrific feeling. In my 30 years of being disabled, I feel the most paralyzed and the most limited in those settings,” said Wheaton, 52, of Golden, Colorado, who was paralyzed after being struck by a drunken driver in Australia while serving in the Navy. “It’s kind of the opposite of the independence that we all seek.”
The 1986 law called for regulations within 180 days to ensure handicapped individuals could fly on airlines. The department has made several attempts at developing regulations.
In adopting initial regulations in 1990, the department noted that accessible lavatories are clearly important for passengers and required them on wide-body planes with two aisles. But the department deferred action for narrower planes.
The proposals are contentious because space is tight on these single-aisle airliners.
The latest attempt at rulemaking began in 2014. In 2016, the department hosted negotiations aimed at reaching a compromise between advocates for the disabled, airlines and plane manufacturers.
The consensus report in November 2016 didn’t require rebuilding lavatories on existing planes. But three years after the adoption of regulations, the agreement called for planes with at least 125 seats to have onboard wheelchairs and lavatories with handles and controls for the disabled.
The trade group Airlines for America, which represents most of the largest carriers, said airlines already meet or exceed all requirements the department sets for safe, comfortable and affordable travel. Airlines agreed lavatories should be made more accessible despite the costs of losing space in the cabin, the group said.
“We remain committed to offering a high level of customer service and routinely go above and beyond to provide a pleasant flight experience for all of our passengers, especially those in need of additional assistance,” said Alison McAfee, a spokeswoman for the airline group.
The department was scheduled to propose regulations under those guidelines by July 2017. But the Trump administration halted new rulemaking in January 2017 in order to review Obama administration proposals. The deadline passed without a new one set.
Lavatories can be cramped and difficult to reach, even if the plane has a narrow, on-board wheelchair designed for the plane. Some thresholds have bumps. Doors face each other across the aisle, leaving little room to maneuver in privacy.
About two-thirds of the 931 disabled people surveyed for the department in July 2016 told the Paralyzed Veterans of America that inability to use the lavatory is reason enough to avoid flying.
But airlines have resisted requiring the larger restrooms because that means losing three to six seats or galley space. Airlines estimated during the negotiations that losing three seats per flight on four flights per day would cost the industry an estimated $33 billion over the next 25 years.
Karianne Jones, a lawyer at the Democracy Forward Foundation, which is representing Paralyzed Veterans of America, filed the lawsuit urging the court to force the department to adopt regulations on single-aisle planes. The court will weigh the time spent on the regulation and its priority in terms of health and safety, she said.
“Essentially, the lawsuit is based on this notion that the agencies need to be acting with reasonable diligence and moving forward and not needlessly stalling them,” Jones said.
Wheaton flies about once a month, often for his job as treasurer for Paralyzed Veterans of America. Trips require him to plan fluids and foods to avoid needing a restroom for a three- or four-hour flight, plus the half-hour to board before and the half-hour to deplane afterward.
“We’re kind of stuck in one seat regardless of whether we have bowel or bladder issues,” Wheaton said. “If there’s any issue that comes up, I can tell you now that I’m in my 50s, sometimes I have to wear special devices to make sure I don’t embarrass myself in front of 300 people.”
Wheaton also travels for sports, including the National Veterans Wheelchair Games for 600 athletes that he’s attending this week in Orlando, Florida. Softball is Wheaton’s favorite, but he also tries his hand at table tennis and billiards.
“There’s no pity,” he said with a chuckle.