Air Ambulances Services and Preemption

Since the enactment of the Airline Deregulation Act of 1978 (ADA), an issue that continues to receive close legal scrutiny is the extent to which states may regulate the activities of air ambulance services.  This issue has been the subject of numerous federal and state court decisions, U.S. DOT legal opinions, state attorneys general opinions, and was also addressed in a broader U.S. Government Accountability Office report (Air Ambulance: Effects of Industry Changes on Services are Unclear, (September 2010)).  Recently, this issue was also ruled upon in federal district court and state appeals court opinions.

Although the precise contours and scope of federal preemption of state(and local) laws, regulations, or other standards have been the subject of a vast amount of judicial analysis and legal commentary, its origins are straightforward;  under the  Supremacy Clause of the U.S. Constitution, Article VI, Clause 2, under federal law is deemed “the supreme law of the land … anything in the Constitution or laws of any State notwithstanding.”  Given this provision, federal statutes and regulations can preempt state or local actions. The ADA is one such enactment where the Congress has expressly stated its intent to preempt state law.

The specific ADA preemption provision (49 U.S.C. § 41713(b)) states:

Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart. (emphasis supplied)

(Note: “[T]his subpart” in the statute refers to title 49 of the United States Code, subtitle VII (Aviation Programs), Part A (Air Commerce and Safety), subpart II (Economic Regulation)).

In numerous U.S. Supreme Court decisions and other cases, courts have pointed to the “broad preemptive purpose” of the ADA.  See, e.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) (preempting states from regulating deceptive airline fare advertisements); Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422 (2014) (preempting a frequent flyer member’s state law claim for breach of an implied covenant of good faith and fair dealing for the carrier’s termination of his membership).

Preemption cases involving air ambulances have addressed challenges to states’ efforts to regulate reimbursement rates for transporting employee patients covered by state workers’ compensation insurance or public employee insurance programs. Courts that have addressed the issue have overwhelmingly determined that air ambulances are air carriers under the ADA and that state attempts to regulate air ambulance companies’ rates are preempted.  Two recent cases provide similar rulings.

  • In a January 2018, Texas Court of Appeals decision, PHI Air Medical v. Texas Mutual Insurance Co., et al., the court reversed the trial court’s judgment in favor of eight insurance companies and the Texas Department of Insurance. The appellate court held that the Texas statutes and regulations attempting to regulate the reimbursements obtained by the air ambulance operator are preempted by the ADA.
  • In an October 2017, decision of the U.S. District Court for the Southern District of West Virginia, Air Evac EMS v. Cheatham, et al., the court granted the air ambulance operator’s motion for summary judgment on its claim that the state’s statute setting reimbursement caps on payments to air ambulance providers for patients covered by the state’s public employees insurance and workers’ compensation insurance programs is preempted by the ADA.

In November 2017, the State of West Virginia filed a notice of appeal of the district court’s decision and submitted its brief in January 2018. Plaintiff’s/appellee’s reply brief is due in early March. No date has been set for oral argument.

Plane-ly Spoken readers who are interested in reading further on the scope and limitations of state regulatory authority and oversight of air ambulance service providers should review the US DOT’s April 2015 Guidelines for the Use and Availability of Helicopter Emergency Medical Transport (HEMS).  Also, US DOT Office of General Counsel opinion letters on ADA preemption of state and local aviation requirements are available at https://www.transportation.gov/mission/administrations/general-counsel/elibrary

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The Aviation Symposium Webinar Series Presents:

Social Media and the Aviation Industry: Moving at the Speed of Light!

In this unique edition of the of the Aviation Symposium Webinar Series, the Aviation team focuses on the risks, rewards, upsides, and downsides of social media and how it is affecting the aviation industry. 

CONTINUE READING . . .

Christa Hinckley Joins the LeClairRyan Aviation Team

Plane-ly Spoken is pleased to report that Christa Hinckley has joined LeClairRyan as a partner on the firm’s aviation and transportation industry team.  Her practice focuses on matters related to aviation, aviation insurance, and emergency response and crisis preparedness in the transportation industry.  Christa will be resident in the firm’s Houston office.

Christa has extensive experience representing flight departments of international corporations, in addition to advising charter operators, management companies, and scheduled air carriers.  She brings to her position a wealth of legal and management experience in issues affecting the aviation industry, including mergers and acquisitions, aviation treaties, regulatory compliance, aircraft and engine purchases and sales, leasing and hangaring, and risk and insurance.  Earlier in her career, Christa served as the managing director of insurance and risk for American Airlines and its affiliates.  In that role, she responded to four fatal accidents and the September 11 attacks.  She also served as one of the initial managing directors of the airline’s customer assistance response effort, which became one of the templates for the family assistance programs developed by other commercial airlines.

We are pleased to welcome Christa to our team, and look forward to her contributions to Plane-ly Spoken!

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#Goodjobs and #Airportfails: U.S. Airports are Getting Their Wings on Smart Use of Social Media

When the power failed at Hartsfield-Jackson Atlanta International Airport this past December, the response by the world’s busiest airport included a relatively new tactic for airports — talking about it on Twitter.

Hartsfield’s communications team used the social media platform to convey information that made a real difference for frustrated travelers. The tweets included a list of hotels that still had available rooms (some for free for those who were stranded), real-time updates from the FAA, Georgia Power, Delta Airlines and the mayor, and even an uplifting article detailing acts of heroism carried out by everyday folks during the outage. The team capped the event with the following tweet: “A massive thank you to our employees and passengers alike for their acts of kindness during this experience. We know it’s been a challenging few days in #ATL, but your patience and humanity have eased the task of getting the airport back to normal.”

The outage stranded thousands of passengers, forced the cancellation of about 1,400 flights and made national news. By using social media to communicate with the public proactively, Hartsfield avoided looking uncaring and out of touch. #goodjob.

But here’s the rub: At the time of the outage, the airport had a grand total of about 63,000 Twitter followers. That might sound like a lot, but roughly 280,000 people pass through Hartsfield every day. Viewed through that lens, Hartsfield’s Twitter following is on the paltry side, with enormous room for growth.

We point this out, not to pick on Hartsfield, but instead to make the broader point that U.S. airports could do more to leverage social media. Consider the potential advantages:

  • Social media platforms can reach enormous numbers of people, unmediated by news organizations. (Consider that Facebook has about 2.2 billion users worldwide, or that President Trump has more than 40 million followers on Twitter alone).
  • The communications are instant—no small consideration in an industry in which timeliness is critical.
  • Skillful use of social media can demonstrate an airport’s immediate concern, compassion and hands-on involvement. Perceived lack of forthrightness and engagement on the part of airlines and airports is among travelers’ biggest gripes. Clearly, in our information-driven society, saying “no comment” or otherwise failing to engage on difficult issues and events runs contrary to the business goals of maintaining customer loyalty and building a strong brand.

But of course, there is another side to this story. If the Hartsfield power outage illustrates the upside of social media, the false alarm that gripped Hawaii this past January highlights the risks. In the false alarm, an employee sent the following emergency alert to mobile phones across the state: “Ballistic missile threat inbound to Hawaii. Seek emergency shelter. This is not a drill.” About 40 minutes of panic ensued.

Without proper social media safeguards, airports that ramp up their social media activity potentially run the risk of causing a similar panic in a crisis situation. Statistically speaking, a higher volume of posts on the likes of Twitter, Facebook or Instagram translates into more opportunity to make mistakes. In situations involving crisis or potential crisis, airports must carefully vet every post before hitting send. A single employee’s mistake caused the Hawaii false alarm. Airports need to make sure their social media posts are subject to the informed consensus of team review. Depending on the subject matter, this could involve experts in airport operations, emergency management safety protocols, legal liability, public relations and marketing, and/or government relations. The goal should be to preserve speed to the greatest extent possible, without sacrificing accuracy or prudence. Team members need to be “on call,” so to speak, and able to respond to pressing communications-related questions at a moment’s notice.

While smaller, regional airports tend to have fewer personnel resources, they can nonetheless create systems of safeguards to prevent the dissemination of inaccurate, indecipherable or inappropriate social media posts. We have all seen headlines about local government officials going rogue on social media and spewing forth with ill-advised statements. Airports cannot allow this to happen via their social media channels. That means developing a thick skin about pushback from followers. Social media users can be cruel to airports, as even a glance at #airportfails on Twitter will confirm. Having equanimity about criticisms and being politely responsive (again with team review) where warranted is part of the game here.

Consistency, too, should also be a goal. Frequency of posting as well as tone and content should be consistent. Avoid scenarios in which multiple employees are logging into the institutional account and creating and sending posts on the same subject—especially in the midst of a crisis. Rather, the publication process should resemble that of a newspaper or magazine: The “draft” content goes through multiple edits before taking final, pre-publication form.

Toward that end, the team needs to sit down and establish strong safeguards and procedures. Social media should be part of the airport’s emergency response drills and training. How would you handle a power outage or aircraft accident? Will you create prepared, pre-cleared statements for use in the event of such occurrences? Once key questions are answered and procedures established, they should be disseminated to the appropriate parties, integrated into routine training and retraining and periodically revisited for improvement.

While airports are still learning to optimize social media, the progress thus far is heartening. Moving forward, airports would do well to consider more robust advertising and promotion of their social media presences. This could be everything from billboards, to terminal signage, to ad campaigns on social media platforms themselves. Already, some airports use social media to alert people about available parking spaces. These platforms can and should be used to improve the customer experience in other ways as well.

Like virtually everything else in life, use of social media is a risk-benefit analysis. While the potential benefits for airports are substantial, so, too, are the risks. Fortunately, with careful planning and skilled execution those risks can be managed to good effect.

 

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2017: The Year of Much Ado…But Nothing!

In terms of major UAS rulemaking efforts, 2017 could best be described as “the year that wasn’t”.  While the FAA had big plans to push forward the new rules for flight over people and finalize the Interpretation of the Special Rules for Model Aircraft, neither of those initiatives saw the light of day.

Now, however, it appears that the FAA is gearing up the rulemaking process for 2018.  It is reported that in a recent speech at the Singapore Airshow, FAA Acting Deputy Administrator Carl Burleson announced that the UAS remote identification regulations would be out this year. 

CONTINUE READING . . .

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GAO Questions FAA’s Methodology for Determining Shared Industry-Liability Risks for Commercial Space Launch Accidents

For the second time in 10 months, the U.S. Government Accountability Office (GAO) has questioned the FAA’s calculations in determining the proper balancing of risk between the federal government and the commercial space launch industry.

This risk sharing regime was initially established in the Commercial Space Launch Amendments of 1988 (section 5). Under this regime, space launch companies purchase insurance against claims by third parties and for loss or damage to federal property and personnel as a result of a launch or reentry accident, unless companies otherwise demonstrate sufficient financial responsibility to cover the same calculated damages. The amount of insurance required is based on FAA’s calculation of the maximum loss that can be reasonably expected (referred to in the statute as “maximum probable loss” (MPL).  The federal government is potentially liable for damages above the MPL, up to an estimated 2017 cap of $3.1 billion. In 2016, the FAA issued 5 commercial space launch licenses with third-party MPL amounts ranging from $10 million to $99 million. 

CONTINUE READING . . .

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Christopher Hart – Safety Advocate, Deep Thinker, Gentleman

Christopher Hart, National Transportation Safety Board (NTSB) Board Member, and former NTSB Vice Chairman and Chairman, announced he will be leaving the agency on January 31.  He has been an outstanding leader and advocate to enhance safety in all modes of transportation. We both have known Chris for many years and worked with — and David working for — Chris and salute his long and distinguished career at the NTSB, FAA, the National Highway Traffic Safety Administration (NHTSA), and the Department of Transportation’s General Counsel Office.

Chris initially served as an NTSB Board Member from 1990 to 1993. He then served as NHTSA’s Deputy Administrator and Acting Administrator (1993-1995) and then FAA’s Assistant Administrator for System Safety and Deputy Director for Air Traffic Safety Oversight (1995-2009). He was again sworn in as an NTSB Board Member in August 2009, and designated by the President for a 2-year term as NTSB Vice Chairman of the Board. In August 2013, President Obama nominated him for a second term as Board Member and after Senate confirmation of his nomination, the President, in October 2013, designated him for a third term as Vice Chairman. He served as Acting NTSB Chairman from April, 2014 until March 2015 and was confirmed by the Senate (by a unanimous vote of 97 yeas) in March 2015, as Chairman of the NTSB. Senator Cory Booker, in expressing his strong support for Chris’s nomination and confirmation as NTSB Chairman, noted the following in the Congressional Record on February 26, 2015:

Mr. Hart continues the tradition of his great uncle James Herman Banning, the first African American to receive a pilot’s license issued by the U.S. Government in 1926. As a pilot himself, and a true public servant, Mr. Hart will help the NTSB continue making a substantial positive impact on American public safety.

His professional credentials are particularly noteworthy. He received his J.D. degree from Harvard University and master’s and bachelor’s degrees in aerospace engineering from Princeton University. Also, he is a licensed pilot with commercial, multi engine and instrument ratings.

To better appreciate the breadth of Chris’s knowledge of the various transportation industries and the depth of his critical thinking on safety issues, we encourage Plane-ly Spoken readers to sample his speeches and Congressional testimony statements on the NTSB website . In particular, he has offered penetrating analysis on the risks and benefits of automation in transportation and the criminalization of transportation accidents.

While we all will miss Chris’s expertise as an NTSB Board Member, Acting Chairman, and Chairman, we look forward to his continued activities in improving transportation safety.

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Only One Week To Go….

Time is running out to register for the LeClairRyan 2018 Aviation Symposium “An Airplane Is Down . . . .!”: First Responders, Family Assistance, Emergency Response and More..

Where else can you…

  • Hear from the Malaysia Airlines emergency response team handling MH 370 and MH 17
  • Listen to a panel on dealing with disruptive passengers
  • Hear about what corporate flight departments can learn from the airlines and vice versa
  • Hear from the chairman of the NTSB and the acting administrator of the FAA
  • Learn about responding to emergencies such as hurricanes, active shooters and cyber threats
  • Hear about how to work with first responders

CONTINUE READING . . .

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Privacy is None of the FAA’s Business

While most people agree that unmanned aircraft raise unique privacy issues, the question remains who is in the best position to deal with those concerns.  The FAA has repeatedly indicated that it does not have the resources, expertise, or inclination to be the nation’s drone privacy watchdog.  As a result, privacy issues continue to be worked out at the state and local levels.

The Electronic Privacy Information Center (EPIC) disagrees with this approach, and has spent years attempting to force the FAA to conduct a comprehensive rulemaking on drone privacy and enforcement.  After several false starts, the United States Court of Appeals for the District of Columbia Circuit finally heard argument on EPIC’s claim that the FAA is required by Congress to regulate drone privacy.  Unfortunately for EPIC, the argument did not go very well.

CONTINUE READING . . .

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An Inside Look at the NTSB – An Aviation Symposium Series Webinar

Thank you for the amazing turnout yesterday during our 90 minute webinar on the inside workings of the National Transportation Safety Board.  David Tochen, former NTSB General Counsel, Mark Dombroff and Mark McKinnon discuss background information, recent investigations such as the sinking of the S.S. El Faro, and so much more.

If you would like to listen and follow along with the PowerPoint, please follow this link to the LeClairRyan event’s page.

 

 

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