Colorado Law Blog

The Transportation Department has adopted new regulations today that order airlines to let passengers stuck in stranded airplanes get off the plane after three hours. No longer will airlines be able to hold travelers hostage to delayed flights. From January to June this year, 613 planes were delayed on tarmacs for more than three hours, their passengers kept on board.

The Air Transport Association, a trade group that represents U.S. airlines, said in a statement that carriers would comply with the new rule even though the group contends it will lead to canceled flights and greater passenger inconvenience.

Under the new regulations, airlines operating domestic flights will only keep passengers on board for three hours before they must be allowed to disembark a delayed flight. The regulation provides exceptions only for safety or security or if air traffic control advises the pilot in command that returning to the terminal would disrupt airport operations. Under the new regulations, airlines would be fined $27,500 per passenger for each violation of the three-hour limit.

U.S. carriers operating international flights departing from or arriving in the United States must specify, in advance, their own time limits for deplaning passengers. Foreign carriers are not covered by the rules.

Airlines will be required to provide food and water for passengers within two hours of a plane being delayed on a tarmac, and to maintain operable lavatories. They must also provide passengers with medical attention when necessary.

Airlines will also be prohibited from scheduling chronically delayed flights. Carriers who fail to comply could face government enforcement action for using unfair or deceptive trade practices. The new regulations, which were published today in the Federal Register, go into effect in 120 days.

Airlines have strongly opposed a hard time limit on tarmac strandings. They argue that forcing planes to return to gates so that passengers can get off could cause more problems than it cures. They predict more flights will be canceled, further delaying passengers from reaching their destinations.

Consumer advocates have been pressing the department and Congress for at least a decade to do something extended tarmac delays. However, past efforts to address the problem have fizzled in the face of industry opposition and promises to reform.

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Colorado Democratic Sen. Mark Udall introduced a plan Thursday to tweak rules for malpractice trials. The plan is an amendment to the health care bill pending in the Senate. The amendment aims to reduce the cost of malpractice trials by streamlining pretrial court procedures. It does not cap jury awards.

U.S. Sen. Mark Udall yesterday filed the amendment, seeking $10 million to go to studies nationwide aimed at changing court rules to streamline processing of malpractice cases. The Colorado Democrat's amendment, which is supported by the Institute for the Advancement of the American Legal System at the University of Denver, would establish federal grants for pilot programs administered by nonprofit organizations to streamline the legal process in medical malpractice cases.

The amendment would change the rules regarding the use of expert witnesses in medical malpractice trials to expedite the process. While he did not provide statistics on how much money could be saved by implementing the programs, Udall has said that "significant savings" could be realized through such pilot projects. But the savings would depend on how states tweak their legal system.

The first-term Democrat's amendment would be a tiny addition to the increasingly complex and costly package that's at the center of hot debate in the Senate where hopes are fading for a pre-Christmas health-care bill compromise. He says the amendment will save doctors on their malpractice insurance premiums and save consumers cash when they sue their physicians.

The theory behind Udall's measure is that malpractice cases are overly complicated and, because they can take years to wind their way through the courts, take too much money out of the pockets of doctors, patients and insurance companies. That cash adds up to higher health care bills.

An aide for Udall said the first-term senator will push the bill on its own if it isn't incorporated through the larger health care bill, which is still awaiting a final vote in the Senate.

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The U.S. Consumer Product Safety Commission (CPSC) and the Window Covering Safety Council (WCSC) are announcing today a voluntary recall to repair all Roman shades and roll-up blinds to prevent the risk of strangulation to young children. This recall involves millions of Roman and roll-up blinds. About five million Roman shades and about three million roll-up blinds are sold each year.

CPSC has received reports of five deaths and 16 near strangulations, since 2006, in Roman shades and three deaths, since 2001, in roll-up blinds. Strangulations in Roman shades can occur when a child places his/her neck between the exposed inner cord and the fabric on the backside of the blind or when a child pulls the cord out and wraps it around his/her neck. Strangulations in roll-up blinds can occur if the lifting loop slides off the side of the blind and a child's neck becomes entangled on the free-standing loop or if a child places his/her neck between the lifting loop and the roll-up blind material.

Over the years, CPSC has been investigating deaths associated with different types of window coverings and has worked with the WCSC to address the hazards posed by them. In 1994 and in 2000, CPSC and WCSC announced recalls to repair horizontal blinds to prevent strangulation hazards posed by pull cord and inner cord loops. As a result of CPSC investigations, the industry has modified its products and provides free repair kits for existing horizontal blinds and other window coverings. In October 2009, CPSC issued a new safety alert to warn parents about the dangers associated with window coverings.

To help prevent child strangulation in window coverings, CPSC and the WCSC urge parents and caregivers to follow these guidelines:

• Examine all shades and blinds in the home. Make sure there are no accessible cords on the front, side, or back of the product. CPSC and the WCSC recommend the use of cordless window coverings in all homes where children live or visit.
• Do not place cribs, beds, and furniture close to the windows because children can climb on them and gain access to the cords.
• Make loose cords inaccessible.
• If the window shade has looped bead chains or nylon cords, install tension devices to keep the cord taut.

Consumers that have Roman or roll-up shades in their homes should contact the WCSC immediately at www.windowcoverings.org or by calling (800) 506-4636 anytime to receive a free repair kit. CPSC is still interested in receiving incident or injury reports that are either directly related to this product recall or involve a different hazard with the same product, contact it by visiting https://www.cpsc.gov/cgibin/incident.aspx.

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Auto dealers won't be covered under a new consumer regulatory agency after a vote in the House Financial Services Committee exempting them, despite the major role they play in financing car loans.

Among those supporting the Republican amendment that passed last week, by a vote of 47-21, was Rep. Ed Perlmutter, D-Golden, whose suburban Denver district is populated with some of the metro area's largest dealerships. The amendment had been blasted by consumer advocates, who claim that dealers are both responsible for originating the majority of new car loans and regularly bilk customers by offering them higher interest loans than their credit histories would otherwise allow.

Thirty-eight consumer organizations signed on to a letter sent to the Financial Services Committee, criticizing the amendment. The letter complains that car dealers offer financing to their customers to buy new cars, often selling those loans almost immediately to third-party auto finance companies. Those dealers profit on the loans through fees that are partly based on the interest rate, the higher the interest rate, the higher the fees. The sales managers tell car buyers they shopped around and found them the best interest rates they could get, when they actually qualified for lower rates. It's exactly the kind of scam that the new agency is supposed to prevent, but the vote for the amendment means it is unlikely to change anytime soon, according to critics.

Perlmutter told The Denver Post Thursday, the exemption was justified because dealers will still be subject to existing state and federal regulations. "It is important to enact responsible regulatory reforms that do not have unintended consequences of drying up the availability of affordable and stable credit to consumers," he said.

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A Colorado initiative allowing wine and full-strength beer sales in grocery stores has cleared its first hurdle. The initiative, filed last month, was tweaked and prodded by legislative council and now awaits a hearing with the secretary of state's office.

Author Blake Harrison, a Denver deputy district attorney, wants to allow grocery and convenience stores to dedicate 5 percent of their floor space to wine and full strength beer. Both are now limited to selling only lower- alcohol beer. If nothing else, he wants to prompt the legislature to take action, he said to The Denver Post.

The new vendors would have to stock 25 percent of their beer and wine from smaller producers. The initiative would also allow liquor-store owners to operate three shops, instead of the one they're now limited to. And it would allow liquor stores to sell some food items.

Neither supermarkets nor convenience stores are backing the proposal. And the liquor stores, which have opposed expanded sales the last two times the issue arose in the legislature, are also against the initiativ

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The pharmaceutical companies that make prescription drugs are looking over your doctor's shoulder to keep track of how many prescriptions for each drug the physician is writing. By obtaining data from pharmacies and health insurers, the drug companies analyze the prescribing habits of thousands of doctors. That information has become a powerful sales and marketing tool for the pharmaceutical industry.

The identity of patients is not disclosed in such data, but knowing in detail what individual doctors are prescribing enables drug makers to target their messages when sales reps call on doctors. They can lobby for use of an alternative drug made by their own company, for instance, bolstering the pitch with specially selected research data or free samples.

The concern obviously is that targeted sales tactics to an individual doctor's prescribing preferences -- known as data mining -- may distort decision-making and fuel prescribing of new, high-cost drugs. The result, according to critics of the practice, is increased prescribing of the newest and costliest, though not necessarily more effective, drugs.

Legislation limiting or outlawing the practice has been passed in three states, has been considered in at least 20 others in recent years and has even been floated by federal lawmakers. Many doctors have trouble finding time to examine a plethora of studies and weigh the results carefully, say critics of data mining, making them especially easy targets for drug reps armed with seemingly solid studies. And, given the rising concern over drug costs, free samples or other inducements could similarly influence decisions for non-medical reasons.

Data miners say they're actually helping to contain costs and improve quality by quickly providing doctors with information on which treatments work best.

Legislation requiring drug makers and other health product providers to disclose gifts, travel, entertainment and other items given to physicians has been folded into both the House and Senate versions of the healthcare overhaul bill.

On the state level, New Hampshire in 2006 and Vermont in 2007, along with Maine the same year, have passed laws against the use of prescriber data in drug marketing. Depending on state laws, the bans can also apply to prescribing by nurse practitioners and dentists.

The issue is far from settled even in those states. A district court overturned Maine's ban on the grounds that it violated drug companies' 1st Amendment commercial speech rights, and the state is currently appealing that decision. Data firms, meanwhile, are appealing an adverse ruling in their suit against the Vermont law, and in June, the U.S. Supreme Court declined to hear an appeal of a ruling upholding New Hampshire's ban.

The American Medical Association collected $47.6 million in 2008 by licensing its data, making the AMA's involvement in data mining is controversial. An unspecified portion of the revenue comes from the sale of information from a master database of nearly all physicians in the U.S. to IMS and other data miners. The file contains the names of more than 800,000 physicians, including about 250,000 AMA members.

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Gov. Bill Ritter helped mark the start of a statewide ban on texting while driving by honoring Colorado Springs-area students who helped design public awareness announcements to publicize the new law. He also held a news conference in Denver to discuss the ban.

Starting today it will be illegal for drivers to send text messages, e-mail or tweet while driving. The new law also bars those under 18 from talking on their cell phones while driving. Violators risk a $50 fine and repeat offenders could get a $100 ticket.

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