The elimination of coverage of air medical services under the Airline Deregulation Act’s preemption provision is a significant change to current law and an unnecessary reform to forty years of existing legislation.  Air medical exemption from the ADA would establish “borders in the sky” [1] that would impede the interstate and intrastate operations of life-saving air medical services.  Air medical exemption would permit state and local regulation of air medical transports, and state and local governments have a proven track record of attempting to impose borders in the sky by establishing geographic restrictions on operators.

Individual states already regulate the medical aspects of the air ambulance industry. 

States currently have the authority, consistent with the Airline Deregulation Act’s preemption provision [2], to establish standards for medical care provided within an air medical fixed wing aircraft or rotorcraft.  The Government Accountability Office (GAO) described the respective authorities of the Federal government and the states in a 2010 report [3], explaining that states can regulate such items as “Adequacy of medical equipment”; “Medical personnel qualifications”; and “Requirements for maintenance of sanitary conditions.”  The GAO also noted that the Airline Deregulation Act prohibits states from regulating items that include: “Certificates of need, public necessity, and convenience”; “Rates”; “Passenger/third party flight accident liability insurance requirements”; “Advertising”; and “Bonding requirements.”  The GAO noted that “over the past two decades, federal and state courts, and [the U.S. Department of Transportation], through opinion letters issued by its Office of General Counsel, have affirmed these authorities and have determined the specific issues that states can and cannot regulate.”

Air medical exemption from the ADA would end this well-established and well-understood division of regulatory authority by declaring that the ADA’s preemption provision does not apply to the “non-air transportation services of air ambulance operators and prices.”  The distinction between “non-air transportation services” and “air transportation services” is meaningless because an air medical transport will not operate without providing the “non-air transportation services.”  Such a radical change in current law would open the door to 50 states regulating the rates and services of air medical transports. Furthermore, ending coverage of the ADA’s preemption provision could also allow conflicting regulations by local governments.

If individual states already effectively regulate the medical aspects of the air ambulance industry, unprecedented and far-reaching changes to current ADA law are completely unnecessary, and could likely result in a significant number of lawsuits trying to redefine forty years of well established law and opinion.

Impeding air medical ability to cross state lines

Air medical transports have significant operational differences from ground transports. Over 30 percent of air medical transports cross state lines, making it an inherently interstate activity that is appropriately regulated at the federal level pursuant to the Airline Deregulation Act’s preemption provision.  A helicopter air ambulance based in Washington, D.C., for example, can transport patients from Delaware, Maryland, Pennsylvania, Virginia, and West Virginia, as well as the District itself.  Fixed wing air medical transports can cross any number of state lines.

Any comparison to regulation of ground ambulances ignores the regulatory uncertainty and confusion that would ensue following the overturning of decades of judicial and regulatory law that clearly defined the contours of the existing preemption provision.  A record of regulation under current law, and applied to short-distance ground transports, does not preclude the significant unintended consequences of upending nearly forty years of proven policy.

Further, ADA exemption does not limit the grant of new state and local authority over air transportation to state EMS offices.  Air medical transports will be subject to regulation of rates and services by any state or local agency.  This would open the door to, among other restrictions, Certificates of Need (CON), such as those imposed to bar out-of-state transports by North Carolina.  A federal court found the North Carolina CON requirement – a literal border in the sky – violated the preemption provision. [4]

Local governments have also attempted to establish borders in the sky.  In 2016, the U.S. Department of Transportation addressed San Bernardino County’s effort to require permits for air medical operators to provide service.  The Department noted that under the County’s regulations, an operator “can only provide its services within the service area described in the permit.” [5]

Finally, individual state rationing and allocation of air medical services to determine “the proper distribution of air ambulances” [6] can result in another unintended consequence: the need for a complex system of interstate compacts to allow for transports across the newly-imposed borders in the sky.  The need for “mutual aid compacts and other mechanisms that would ensure appropriate movement of patients across state lines…”[7] would entail the time-consuming ratification of a multitude of compacts, even as years of litigation and regulatory interpretation begin to interpret the new regime created by air medical exemption from the ADA.

[1] National Association of State EMS Officials, NASEMSO Responds to Ambulance “Borders in the Sky”, August 3, 2018.

[2] 49 U.S. Code 41713 (2016).

[3] U.S. Government Accountability Office, Air Ambulance: Effects of Industry Changes on Services Are Unclear, GAO-10-907, (Washington, DC, 2015), 23.

[4] Med-Trans Corporation v. Benton, 581 F. Supp. 2d 721 (E.D.N.C. 2008).

[5] Letter from Ronald Jackson, Assistant General Counsel for Operations, U.S. Department of Transportation, to Thomas A.A. Cook, Vice President & General Counsel, REACH Air Medical Services, LLC, dated February 25, 2016.

[6] Association for Critical Care Transport, ACCT Supports Patient Protection and Oversight for Air Ambulance Services (July 26, 2018).

[7] Ibid.