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ADA Accessible Transportation Phone Conference by FTA Experts

NATIONAL EASTER SEALS SOCIETY

Open Mic
What's on Your Mind – A General Session on the ADA
November 9, 2005

Cheryl Hershey
David Knight
Karen Wolf-Branigin


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CHORUSCALL:

Good afternoon and welcome to the Easter Seals' Open Mic – What's on Your Mind – A General Session on the ADA conference call.

All participants will be in a listen-only mode and there will be an opportunity for you to ask questions at the end of today's presentation if there is time following the presentation. The Operator will give you instructions on how to ask questions at the appropriate time. If you should need assistance during today's conference, you may signal an Operator by pressing star and then zero using a touch-tone phone.

This conference is being digitally recorded as well as transcribed. If you do have any objections, please let us know by pressing star and then zero now.

And, in hearing no objections, I would like to turn the conference call over to Ms. Karen Wolf-Branigin.

Ma'am, you may now begin.

 

KAREN WOLF-BRANIGIN:

Thank you very much, Jamey.

Well, welcome, everybody.

We are absolutely delighted at Easter Seals' Project ACTION to bring this conference call to you. We are very pleased to have Cheryl Hershey and David Knight join us from the Federal Transit Administration [FTA] Office of Civil Rights.

What we're going to do is – let me tell you a little bit about David and Cheryl first and we're pretty – we were actually overwhelmed with the number of questions we received prior to this event. We received about 60 questions so Cheryl and David have been very busy going through all those questions and organizing them in such a way that they can get to as many as possible.

David is an attorney by trade with an educational background in civil rights law. He joined FTA's Office of Civil Rights in 2003 and is an equal opportunity specialist and a member of the ADA team. In that capacity, he works to ensure compliance with DOT's ADA regulations through technical assistance to grantees, administering paratransit and fixed route compliance reviews and complaint processing.

Cheryl Hershey is the Americans with Disabilities Act Team Leader in the Office of Civil Rights, Federal Transit Administration. She works to ensure that persons with disabilities have access to mass transit service in the nation's transit systems and that transit properties understand and fulfill their obligations to the implementation and compliance of the ADA.

She oversees the ADA complaint process, the ADA fixed route and ADA complimentary paratransit and compliance assessments, and the provision of technical assistance. Cheryl provides direction and guidance to ADA team members, including headquarters and regional Civil Rights officers. She works with individuals and groups in and outside the Department to promote adherence to the principals in the ADA.

And that's our introduction of Cheryl and David.

What we are going to do is – if you're on this call and you have additional questions, please use the e-mail address distancelearning@easterseals.com to bring those questions to our attention. That address will be available through Friday, the end of this week, and what we'll do is our best to get information on your questions to you via e-mail.

We'll also ask – as our Operator, Jamey said, at this point, we're not sure that we're going to have time to get questions from the floor. If we do, then we'll make sure to make that happen. If not, you're going to get a great overview of a lot of information on a variety of topics regarding the ADA.

And with that, I'm going to turn it over to Cheryl Hershey.

 

CHERYL HERSHEY:

Good afternoon. Really excited that everybody was able to call in today.

David Knight made a good effort on trying to organize the questions, and, essentially, we're going to try to address as many as possible, but the large categories will be paratransit, reasonable modification of policy and practices, common wheelchair, and the recently-released departmental bulletins – and that'll be the general areas.

I want to talk a few minutes just broad based about civil rights and our office, our mission, and how we move forward to accomplish it.

As you all know, or I hope you know, and if you don't take anything else away from today but this, transportation and access to it is a civil right. Our Secretary, Secretary Minetta has said that, he's on record saying that, and advancing that accessibility to transportation is a Civil Right.

It's important to understand that – because we have received some questions about finances. While we recognize that finances are something that you need to wrestle with, it can't come into play when it's a civil right – so this has to be provided; no price tag can be attached.

Our Office of Civil Rights moves forward to accomplish these goals in several areas. We do complaint investigations, we do compliance reviews, we provide technical assistance, and we also do outreach. Technical assistance – let me provide you this information now is: the ADA assistance e-mail address and that's ada.assistance@fta.dot.gov, and we have a toll free number for ADA advice at 1-888-446-4511.

We've gotten our backlog of complaints down from 300 to 40. Someone recently asked us how long it takes. Unfortunately, it took longer than we wanted, and now we have a time period that we're trying to follow of about 180 days from beginning to end to issue the complaint. I think we'll realistically be able to accomplish that better now that our caseload is more manageable.

Our approach is to work with people with disabilities, and the transit property – is what we're doing now; it's voluntary, it's cooperative, it's technical assistance. However, sometimes in working with the transit properties, (if we have non-responsive or an uncooperative transit property, and that does not usually happen) we must consider other enforcement options. Such as conditioning a grant, putting a hold on a grant, stopping the flow of funds, and/or referring to the Department of Justice. We don't usually resort to that because we don't usually have to, but those are mechanisms in place that we can use. As I said, this is a Civil Right.

We did receive a question on the ADAAG [the ADA Accessibility Guidelines] and what's going on with that and when it would become final. You need to understand that the ADAAG is not an FTA rule. That the Department of Transportation, the Department itself has to adopt it, and it is pending final approval. I cannot predict when it will be approved.

So I'd like to, at this point – I'll turn it over to David Knight to address a few of the questions.

 

DAVID KNIGHT:

Sure.

Well, let me jump in also. Again, this is David. Good afternoon, everyone. Good morning, West Coast.

In response to the question about our coordination with the Department of Justice, I do want to make it clear to everyone that we are working very closely with them with the cooperation of the Federal Transit Administration. Just last Thursday the Department settled a lawsuit against the Detroit Department of Transportation. In that case, it was alleging that they were discriminating under the ADA because they were running buses with broken lifts and failing to maintain and repair them properly. Since the lawsuit was entered into by the Department of Justice in March, Detroit has worked to remedy those situations. The settlement agreement has them making additional efforts under that same system, as well as training their repair and maintenance staff.

So we do have a cooperative relationship with DOJ and are working forward on that. But, of course, the first step is always to bring a complaint to our office and let us work with you.

We had a few questions that we thought maybe were best answered by Easter Seals. Cheryl outlined what FTA does. FTA conducts outreach, and also relies on Easter Seals Project ACTION, who receives an FTA grant for this activity, to provide technical assistance and outreach to transit and person with disabilities. If I can turn it over to Karen I think just to answer those two.

 

KAREN WOLF-BRANIGIN:

Sure.

One of the questions was on asking for some information in best practices on advocacy efforts on a local basis and they're also interested in how people can get grassroots involved in supporting transportation for people with disabilities. And we are fortunate to have Easter Seals Project ACTION’s Donna Smith, who's going to give you some information on that.

 

DONNA SMITH:

Good afternoon. This is Donna.

This is one of our favorite questions here at Project ACTION. Certainly, we believe that effective advocacy at the local level is one of the best mechanisms for moving things forward in terms of getting more accessible transportation available at any given community. We'd be glad to share those resources with you and to talk to you about your particular efforts in your community if you want to call us here directly at Project ACTION at 800-659-6428.

I'd also like to recommend a Web site that has quite a lot of information about effective advocacy and that Web site is www.empowermentzone.com – empowermentzone.com. It's a very text-intensive Web site, but if you just search on the word "advocacy", you'll turn up a lot of tools that hit advocacy issues at a lot of different levels and about how to be effective.

And again, what we promote here at Project Action is a collaborative effort at the local level between the disability community and the transit property and any other advocate, such as older adults or parents with young children who might be interested in transportation issues as well.

 

KAREN WOLF-BRANIGIN:

Thanks, Donna.

The second question we got – we received was can you identify some accessible Web sites and e-mail newsletters from which information, including the latest developments and available training can be obtained. We'd like people who are interested in this topic to e-mail us at distancelearning@easterseals.com so you can give a little bit more information about what you're looking at.

We can recommend the ACB Web site, which is www.acb.org. There's a lot of information on accessibility there as well as topical information. And, of course, Easter Seals’ Web site has a lot of information on accessibility issues regarding transportation. But if you're interested in additional information, additional ways to get resources, different Web sites, give us a – you know, send us that e-mail at either distancelearning@easterseals.com or just call Project ACTION directly and we'd be glad to help you out.

 

DAVID KNIGHT:

Thank you, both.

While we're throwing out so many Web sites and other resources, let me answer one or two more questions we had along that line.

FTA's Web site has a variety of ADA information and resources about what we've been doing. For everyone, it's simply www.fta – Federal Transit Administration – .dot – Department of Transportation – .gov. [www.fta.dot.gov] On that main page there's now a link that says Civil Rights and Accessibility. Someone noticed that that's changed recently. We've been doing a lot. If you look at FTA's Web site, we are constantly trying to make sure we're providing the most up-to-date and accurate information to the public and to our grantees so you'll see things continue to change as we work to improve that. There's now not only ADA information under Civil Rights but also information about Title VI [of the Civil Rights Act of 1964] and DBE [Disadvantaged Business Enterprise], two other program areas we work on. And like I said, we'll continue to update that as relevant information is available so check back.

Finally, there were a number of questions that seem to misunderstand what Cheryl and my role is at the FTA. Unfortunately, we only do the Americans with Disabilities Act as it relates to public transportation. So calls that regarded employment issues, or private transportation, Medicare, et cetera, unfortunately fall under other agencies.

For a start, I suggest you go to ada.gov. That is the Department of Justice Web site – a rather comprehensive location for all the information you might want to find as to which agency does which part of the ADA. And we're going to limit our call today and in the future to issues of public transportation accessibility.

 

CHERYL HERSHEY:

Are we done that part? OK.

One of the areas that has been percolating for a while and was the subject of a lawsuit in Melton vs. DART [Dallas Area Rapid Transit] is the concept of reasonable modification of policies and practices. There seems to be, you know, some interest and/or confusion, if you will, depending upon who you're talking to, about this area. David's going to share with you a little bit right now about that particular area of reasonable modification. It's an important one and hopefully we'll be able to share a little bit about our feelings on that issue.

 

DAVID KNIGHT:

"Reasonable modification" is a Department of Justice regulation that places an obligation on transit systems to modify their policies and practices to accommodate the needs of persons with disabilities, unless those modifications would result in an undue burden or a fundamental alteration of the program.

Now, it's the Department of Transportation's opinion that this applies to all transit systems. It was in Melton vs. DART in the Fifth Circuit that ruled this was not the case. Our Deputy Assistant General Council for Regulation and Enforcement, that's Robert Ashby, has gone on record saying that he believes Melton was decided wrongly. For the time being, however, that is the law in the Fifth Circuit – but it is not controlling in the other [eleven] circuits across the country. Furthermore, the Department of Transportation is still taking the position that reasonable modification is an important, integral part of public transit accessibility and we expect all of our grantees to continue abiding by that guidance.

To give a simple example, you might have a transit system that says you cannot have food on the public bus or on the rail system, but if someone were diabetic and needed it because of their disability, then it would seem reasonable to allow that individual to take food with them. You can find a number of other examples if you think about it. Again, follow up with us if you have questions about a specific instance.

 

CHERYL HERSHEY:

And the only clarifying thing I'd like to add is I think it's the Department's position, even as to that particular circuit, too. It's just that the Court in that particular limited factual scenario decided differently.

 

DAVID KNIGHT:

Good point.

There were also some questions about evacuation and issues of emergency situations that's coming to light given what happened in New Orleans recently. FTA has put together some guidance for grantees generally about what to do in such emergency situations and it's on our main Web site. Again, www.fta.dot.gov, right on the main page. You'll see the first link under what's new information for grantees. So I suggest people look there first and then follow up with the various members either locally or on the national level that are listed in that document.

[Also, please see the Department of Transportation’s Web site on Emergency Preparedness and Individuals with Disabilities, at http://www.dotcr.ost.dot.gov/asp/emergencyprep.asp.]

 

CHERYL HERSHEY:

I think we're ready to go into some general questions on the paratransit service area, and we had quite a few. There are probably 20 questions here. So we'll just try to, if we can jump around a little bit, try to address the underlying questions rather than each specific one individually.

But we did receive an inquiry – following up a topic on our last call. We talked about transit’s responsiveness and the negotiation of the pick-up time. There was a little confusion over that area and let me clarify that.

When you – when you call to schedule a ride – say I want to go the mall and I call and I say I want to be picked up at 11:00. Well, they have the right – the transit property has the right – they have an hour window to schedule. They could schedule me anywhere between 10:00 AM and noon because I asked for 11:00. And as long as they do that, I've gotten the ride, it's not a denial, and everything's fine.

There's another concept that's different but also used by the transit property and that's called the pick-up window – so when they come to get me, they may say, for example, we have 20 minutes before and zero minutes afterwards – that's our pick-up window. So if they tell me they're coming to get me at 11:00 to go the mall and that's their pick-up window, I need to be ready from 20 of 11:00 and that's when they could show up to get me. So those are two different concepts.

In addition, we introduced a third concept. Out of the Rochester Compliance Review that we conducted, an issue arose that we decided and that was that even where you have the scheduling one-hour window, if someone calls and says I have to be at a job interview at 2:00. Let's do this one instead – I get off work at 5:00, can you pick me up at 5:00.

Now, normally, the scheduling window would say anytime between 4:00 and 6:00, but it doesn't make sense when someone has to work a workday to earn a living until 5:00 to make them an offer to come at 4:00. It's not responsive. It's not a reasonable offer. And what we said in the Rochester Compliance Review was that there's a word in 37.131(b), I believe it is, and it talks about "negotiate," and "negotiate" contemplates that it is a conversation. It is not just a one-way street, it is not just a one offer take-it-or-leave-it thing, and that is what we are talking about in that particular question.

There's one other thing that was inquired about and that is does a specific seat need to be made available on paratransit if a person needs it because of a particular kind of disability. If you couple that with the topic David just talked about, the reasonable modification of policy and practice approach, well, yes, you would want to work with the person to try to assure them a seat that they can use to get where they need to go. Do you have to send a dedicated van for that one person only? No. No. Do you have to – if a person sits in the back and they get back pains because they're in the back do you – do you move them to the front. Yes, you do. Common sense, reason, the whole underlying theme is let's get people on public transit, let's get people included in the world, out to work, out to shop, out to the doctors, engaged.

 

DAVID KNIGHT:

Another question we have was about scheduling in paratransit. In this case, the individuals who wrote in thought that they had scheduled a time and they were given a confirmation by the reservationist, and then later that time was changed without prior notification. Under that same discussion of a negotiation of a pick-up time, once the pick-up time is set, unless something is communicated back to the rider, we would say that should remain the pick-up time.

Now if, as part of your software, you shift the estimated actual pick-up five or 10 minutes in your system for operational reasons, and as long as you [keep and] record when the negotiated pick-up time was, then that is different. You need to make sure you arrive within the pick-up window that you've communicated to the rider. If it becomes the case that you actually need to move their pick-up window, then there would need to be a transit system's call and contact back to rider to renegotiate because at the point you have already communicated and there is an expectation on the part of the rider.

 

CHERYL HERSHEY:

Done that one.

OK, we got a call – a question came in from out West and the question was what's meant by zero-percent capacity denials and how are paratransit agencies to come into compliance, and what is next-day service, is it 24 hours before? And 24 hours before is not next-day service. You have to be able to call the day before for a ride anytime the next day. So that means you don't have to call – help me here, David – what's a good example? I always get lost on this.

 

DAVID KNIGHT:

If you want a trip at 1:00 P.M. tomorrow, you can call at 5:00 P.M. tonight [or as late as the reservation line is open.]

 

CHERYL HERSHEY:

Right.

So it's not 24 hours; it specifically says that in the regulations and I think it's in the appendix. [Appendix D to Part 37 – Construction and Interpretation of Provisions of 49 CFR Part 37, at 37.131, under "Response Time."]

Now what is meant by zero percent capacity denials? What is meant by that is that the Department's position says you have to plan, schedule, and provide for 100 percent. It recognizes that in some cases the unanticipated occurs and that you can't meet every single one. The bus breaks down, you're late, you have a snowstorm, unexpected things, but what it asks of you is to look at what you can expect. And if you expect it this year and then it happens next year, it happens the next year at the same time, that becomes predictable and then it's on you to plan for it.

So – and the best example is the Rochester letter to the court, when the Department of Justice, and the Department of Transportation joined together and explained the answer to that in about a 15-page document. We can provide that to you if you want to e-mail the distancelearning@easterseals.com location and I don't think that – actually, that's posted on the Disability Rights Education Defense Fund (DREDF) Web site [http://dredf.org/DOTBrief.html], or it used to be, but we'll get it for you.

 

DAVID KNIGHT:

Just check with us.

But in layman's terms, if someone calls and requests a trip and the system says I'm sorry we don't have a van for that, then that's a capacity denial because they don't have the capacity for it and there should be scheduling to avoid that scenario.

Another question came from a rural transit system that has a general dial-a-ride so their paratransit service is mixed in with a service available to the general public. It seems it doesn't operate on Sunday and the inquirer is wondering if the reservation's line should be available on Sunday for Monday trips. We would say yes in this case. Not for the general public but at least for those who would be ADA eligible who, because of their disability, cannot take the fixed-route system, they need to be able to schedule a next-day trip. That is, call Sunday during what would be comparable business hours for a Monday morning trip.

We had another question on fare increases. It wasn't very clear so if people have questions, you could follow up with us, but it seems that you were wondering where that process should take place. Well, we ensure that the fare is not more than double what the fixed route equivalent is. The actual fare setting needs to happen at the local level. Preferably, through public participation but identifying with your community feedback and setting a fare that's within the minimum that – or the maximum that we set, which is double, but what works at your level.

 

CHERYL HERSHEY:

And the Federal Transit Act specifically prohibits us from getting involved in local operations. So we can't – if you are upset and you call us and you say they cut my route or they increased my fare, we're prohibited from calling up and saying put that route back, put that fare down. We can't do that but we can do what David said, which is to ensure that it's not, in an ADA paratransit setting, more than two times the price of the fixed route. [As described in 49 CFR 37.131(c).]

There's a question on infants and car seats and the question said are infant car seats required on paratransit, who should provide the seat, and what if the passenger refuses to use a car seat.

Basically, you want to look to your state law on whether a child safety seat is required – and a lot of times they are. The DOT ADA regulations do not require the transit provider to provide child safety seats – it's not addressed in the regulations. But – I have talked to some transit properties, one on the West Coast, they got into a situation where they worked with different, large department stores and discount stores and they provided child safety seats free to the transit provider. Then if you needed one, you'd call and they'd make arrangements and have one onboard.

And practically speaking, if you're a person with a disability and, for example, you use a wheelchair and you have a toddler and a three-year-old and a five-year-old, you've got your hands full. If you need multiple child safety seats, currently, absent any arrangement, it's on you to bring them if there's a state law requiring them.

We did recently – well, not that recently now – about two or three years ago issue a letter to an East Coast provider. This particular mother of the child had a disability and she could bring the child safety seat and the child but she couldn't get the child safely secured. We told them that the driver did have to assist in the securement but did not have to lift or handle the child. That's my memory of that particular complaint.

 

DAVID KNIGHT:

A couple of questions came in about what age would be appropriate for someone to be eligible for paratransit service.

The first thing we'd suggest is looking at the comparability standard with the fixed route. Now, if your system doesn't have a policy for what age someone can travel unattended on the fixed route adopting one would be a good start. Presuming that, for example, you have a policy allowing everyone five and above to travel independently on a fixed route then you would assess them independently for paratransit and see which is more appropriate.

Now if someone, for example, is a four-year-old, and could not travel on the fixed route without an adult under such a policy, then it would be reasonable to assess them for paratransit with an adult with them and, therefore, while they might on their own, probably because of their age, not be able to take the fixed route, they might in this instance be able to with an adult. Now that's not going to be every situation so you still would need to do a full assessment of their functional ability with that adult – and then make sure your revisit their eligibility as soon as they hit the appropriate age to travel alone, five-years-old in this case.

And one final thing. In one scenario that came in, it seemed that there were a number of young students being taken to a local, public school program, and their eligibility was being questioned. It's probably appropriate in a situation like this to reach out to the public school and have a dialogue about what exactly paratransit is and isn't and see if maybe the transit system can offer a different, more program-specific service to them outside of merely putting these children on paratransit.

 

CHERYL HERSHEY:

We had an inquiry from out West again and the issue there was an individual who was complaining regarding differences between two transit properties. One was a city transit property and one was a suburban transit property – a smaller community transit property. According to the person who wrote, one apparently does a really good job, and the other one does a much less service-oriented job. The one provides door-to-door, the other one provides curb-to-curb. The individual writing us was blind or visually impaired. And the one had a transfer station that picked people up at, like a particular store at a big shopping mall, and he could wait inside and would tell him when they arrived. The other one would come and not even let them know he was there, and leave. This person wanted to know if they could do anything about that.

And as I was just talking about the transit act, a lot of these issues are local operational procedures that we really can't interfere with. The regulation does allow you to elect whether you want to do curb-to-curb or door-to-door service. So that was perfectly within their right. I think that, from what was described, that one should do a better job in working with someone who's blind in terms of letting them know they're there – there needs to be better coordination piece. But a lot of what you described were issues that really are addressed just by how they manage things and not by the ADA regulation. [For additional discussion on origin-to-destination service, as might be required in the example of the visually impaired rider, see the dialogue later in the audio conference, and also the DOT Disability Law Guidance, posted at http://www.fta.dot.gov/ada.]

 

DAVID KNIGHT:

The next question that came in was about the maximum amount of time a person can be a passenger on a paratransit trip one-way.

Here again, we're going to look at a comparability standard and how long the trip would take on a fixed route, remembering that paratransit is a shared ride, and while a taxi ride from origin-to-destination might be 20 minutes, if the fixed route requires a few transfers and a waiting time, it could be significantly longer. So you're going to want to take the actual addresses start and finish, look at what buses you would take, and how long that would take [including time to transfer and wait times], and then compare it to paratransit and that's the standard that we use when we do assessments of systems.

One more on the same idea of comparability: someone asks if you can refuse or deny an individual who does not pay their fare. This is another thing where we should look at a system-wide policy. Do you have a policy like that for the fixed route? I'm assuming if someone doesn't pay a fare they're put off of the public bus. The same could go for paratransit and vice versa. If you're not putting people off on one, you probably shouldn't be putting people off on the other.

 

CHERYL HERSHEY:

Right, David.

We also had a question again – this one from Texas about PCAs (question 35). The person asked, what can they do in a situation where an individual really needs a personal care attendant but they don't have one, and, it appears they may not have anybody in their life that could fill that bill, and the transit property feels there’s some threat of him hurting himself on their vehicles. Can they require a PCA? You can’t require a PCA. You can not – that's the general rule. I know David's ready to – that's a general rule.

[49 CFR 37.5(e) reads: "An entity shall not require that an individual with disabilities be accompanied by an attendant."]

Now you can inquire as to the applicant’s needs in your eligibility application. You can say: are you going to need a PCA? You can get that information. You can plan for it. You can't require somebody to have the same PCA. They can elect to have different PCAs. Most people don't have the same PCA all the time. But – so the answer is: no, you can't require a PCA. The exception is, I believe it's at section 37.5 [of the DOT ADA regulations]. Its at the end of 37.[5] – it's illegal or hostile or there's a couple of categories that you can be put off for, and it applies to both fixed route and to ADA paratransit.

[49 CFR 37.5(h) reads: It is not discrimination under this part for an entity to refuse to provide service to an individual with disabilities because that individual engages in violent, seriously disruptive, or illegal conduct. However, an entity shall not refuse to provide service to an individual with disabilities solely because the individual’s disability results in appearance or involuntary behavior that may offend, annoy, or inconvenience employees of the entity or other persons.

Appendix D, under 37.5, adds: e.g., assistance in toileting, feeding, dressing), etc."

"This provision must also be considered in light of the fact that an entity may refuse service to someone who engages in violent, seriously disruptive, or illegal conduct. If an entity may legitimately refuse service to someone, it may condition service to him on actions that would mitigate the problem. The entity could require an attendant as a condition of providing service it otherwise had the right to refuse."]

And if the transit property has kind of told you that you're acting out and you – I think it's disruptive – disruptive service – and they put you on notice, they've given you an opportunity for a hearing, and, in fact, they've reached the point with due process being provided that they're within their rights to put you off, only in that setting can they condition it with a PCA. That is the one time that you can.

And so I think a lot of practical considerations come in. If you see something like this – see if there isn't someone you can talk to – a social worker or someone from a Department of Social Services or anyone you can connect them up with who, you know is in their life, a significant other, or to try to relate to them the need, and see if that gap can be filled. But in terms of – there's one other side consideration. The e-mail kind of explained that the person could fall down and hurt themselves, and if you feel that the person being on the system and riding is a threat to another, not to themselves, then under direct threat, you can place them off the system.

 

DAVID KNIGHT:

And I think that goes to one of the ideas behind the passage of the ADA, which was not being paternalistic, that the disabled community was not interested in transit systems deciding what was best for them. Each of us when we take public transit, and with everything else we do in our lives, are making our own decisions and that needs to be the same for someone who decides they want to travel without a PCA.

There was one more question from that same person asking about whether or not "old age" can be used when assessing someone's eligibility for paratransit. Paratransit eligibility really should be a functional assessment. While age may play a factor, you need to be looking at whether or not the person can engage in the functions necessary to take fixed route or not. So there could be a very spry 90-year-old woman who would not be eligible and someone much younger who would be. We really would encourage you to look at the functions itself and not the age or anything more superficial.

 

CHERYL HERSHEY:

Yes, and the only way that it can play a part at all – is that it doesn’t. I mean, deciding just purely on the basis of age would be age discrimination. So the only way age comes into play at all is that as we get older, oftentimes, perhaps, we may develop different disabilities and it's a side effect. What you're looking at is the disability, not the age.

 

DAVID KNIGHT:

I think there was a question about the definition of a no-show and a missed trip.

A no-show would be – I want to say it right so I don't confuse anyone.

 

CHERYL HERSHEY:

OK.

Let's see, we have no-shows and missed trips. Let's do missed trips.

A missed trip is when you're waiting for your ride to come and the transit property never shows up, that is a missed trip. You're waiting for your ride and the transit property shows up outside of the pick-up window and you're still there and you take it – that is a [late trip]. You're been waiting for a ride, it is now outside of the pick-up window and they come but you've already left, that is a missed trip. So I think I've captured that correctly.

The no-show is more from the point of view of you, the rider, and your actions, not the transit property's. The no-show is when you call – you schedule the ride and then you don't show up. And another way that a no-show comes into play is under no-show policies and one of the things they've incorporated into that is when somebody cancels late and when someone cancels late but – help me, David – close in time is considered to be the functional equivalent and is considered a no-show.

 

DAVID KNIGHT:

Right. So we...

 

CHERYL HERSHEY:

But not...

 

DAVID KNIGHT:

We wouldn't suspend – we wouldn't look towards upsetting someone's service for canceling unless the cancellation is so close that it's a functional equivalent of a no-show and that needs to be a reasonable period of time – and we'd be happy to work with transit systems in identifying what that would be.

 

CHERYL HERSHEY:

But, roughly, more like two or three hours [before the scheduled pick up time], not 5:00 P.M. the day before.

 

DAVID KNIGHT:

I think we probably should move on to the next category because we've only hit one of the four big ones and we're more than halfway through. So let's talk about wheelchairs.

The first question asks how we were addressing the issue of transporting oversized wheelchairs and scooters. At this point, the definition of a wheelchair is set in the regulations, both the size and also the combined weight, including the passenger, of 600 pounds. We have not taken the position of requiring a system to transport anyone that goes above and beyond the common wheelchair definition. We understand that there's, you know, continuing to be new types of chairs and the designs that come out that don't meet that, but for the time being, that was set as part of a public participation process when the ADA and DOT ADA regulations were passed.

[49 CFR 37.3 states: Wheelchair means a mobility aid belonging to any class of three or four-wheeled devices, usable indoors, designed for and used by individuals with mobility impairments, whether operated manually or powered. A "common wheelchair" is such a device with does not exceed 30 inches in width and 48 inches in length measured two inches above the ground, and does not weigh more than 600 pounds when occupied.]

 

CHERYL HERSHEY:

One of the questions involved when the vehicle has both wheelchair locations occupied, and a person – another person in a wheelchair needs to get on, what do you do – the bus is full. If a person uses a wheelchair they need to be in a securement location. It's up to the transit property regarding whether they have a mandatory securement policy or not, but you need to be in a securement location. So if there's two and they're both filled – the bus is filled.

The same person asks, well, what about people that don't use wheelchairs – are they allowed to get on? Yes, if there's space they are. This occasionally comes up in terms of waiting in line, and you just have to apply things in a non-discriminatory fashion.

Say, for example, you're operating your bus and you decide to board the person in the wheelchair last and there's 20 people waiting in line that don't use wheelchairs in front of them and gee, at person 15, all of a sudden the bus is filled up and there's no room for you, the person in the wheelchair who actually should have been first in line [if they were first to the bus stop]. Well, that's a problem if you're boarding people in a discriminatory fashion. But besides that, the bus is full for a lot of us some days and that's just the way it is.

We had a question about a rolling walker. It was called a Hugo rolling walker – no endorsement here of any particular type of product – and the individual was from the middle part of the United States and they wanted to know about how – it sounded like it was from a transit property – they wanted to know what to do.

The person used the walker. It almost looked like a common wheelchair and the question was did he have to stay with it, did he have to be secured, and essentially, we would suggest the following: ask him, but don't require him, to transfer to a chair – to a seat in the bus and then secure his walker – without the rider in it – the walker to a securement location. There were some concerns about the walker being damaged, and everything. And that would be one option. If he doesn't want to transfer, secure his walker with him seated in it. It was a walker that had a seat, I believe – is that right, with the Hugo walker – and then you could transport him in that fashion.

And then the other question came up again about if it's filled up could anybody else get there and no, that person's there and nobody else can get there.

 

DAVID KNIGHT:

And there were questions about what to do when you can't secure a wheelchair. There are all kinds of brands of scooters and electric wheelchairs out there and sometimes securement can be difficult.

You do need to provide service to anyone in a common wheelchair, whether or not you can secure it. We recognize that you need to be flexible and we know it's difficult to secure some types, but they need to be transported. You can have a policy that requires someone to be secured, that's fine, but if you're unable to secure them because your securements don't work with their scooter, you would still need to transport those individuals [if it is within the common wheelchair definition].

 

CHERYL HERSHEY:

We have a question about somebody who's riding on a scooter and having trouble getting by the fare box. That's question 26 I think. We've had this question come to us a couple of different ways, but essentially, you need to have one accessible route onto a bus or a vehicle.

We had one question out in California I think where they had low-floor buses and the individual used a walker and couldn't get by, when boarding up the front steps, by the fare box. But in that case after checking with the Access Board, we found out that, in fact, because he could board [an accessible alternate entrance (in this case, a side low floor entry)], that was all that was required. But the fare box provision, Part 38, does require those fare boxes be placed – I forget the exact wording – but in a manner to provide access. So if you are telling me that this situation completely prevents you from boarding – then it probably might be a problem for this transit property that needs to be addressed.

 

DAVID KNIGHT:

And we'd be happy to follow up with you.

 

CHERYL HERSHEY:

Right.

 

DAVID KNIGHT:

So...

 

CHERYL HERSHEY:

So if you give us a call.

 

DAVID KNIGHT:

Let's see. Again there is another question – just to clarify, there has not been a change to the definition of common wheelchair and our understanding is you would measure that from two inches above ground. So not the size of the seat itself, but the envelope is measured two inches off the ground.

 

CHERYL HERSHEY:

Are there many more?

 

DAVID KNIGHT:

One more. It talks about – again this is a question about a wheelchair that is above and beyond the envelope or the weight.

While we have pointed out that we're not requiring systems to transport [chairs larger or heavier than the common wheelchair definition], we would definitely encourage that where they can. A lot of times, you might not be aware and we wouldn't weigh someone who's coming on the fixed route necessarily and most lifts are built to carry something heavier, or we have wider spaces, so we do encourage you to let someone on if you know you're able to. Now, of course, we wouldn't say to send a designated vehicle to an individual, so we're not asking you to alter your program, but definitely encourage creativity and flexibility out there.

 

CHERYL HERSHEY:

We'll transist to another subject area that we identified earlier in the call and that is the Department recently, September 1st, 2005, released three new bulletins and they are posted under disability law, coordinating council on our Web site. Is that right? [Editorial note: There is a fourth, entitled: Full-Length, Level-Boarding Platforms in New Commuter and Intercity Rail Stations]

The first one that I want to – well, before I even begin talking about the bulletins, we did get a number of questions about what effect these bulletins and, you know, what are these bulletins. Do we have to follow these bulletins? Are they law? Are they guidance? What's guidance? And essentially this is the deal: if you wanted to technically say, in and of itself, that this was not independently a new legal obligation, you'd be right. That's not what we have here.

What we have is a department who's been authorized by Congress to create their own regulations, and we have an existing Department of Transportation, Americans With Disabilities Act regulation, and the regulation is law, it is legally binding, and it is controlling. Now the Secretary's Office, through the Disability Law Coordinating Council, has put these out as formal guidance. That formal guidance is an interpretation of what those legally binding regulations mean.

As a result, when we, FTA go out to visit you on a compliance review, or when we do a complaint investigation, what standard are we going to apply? We're going to apply what the Secretary's Office tells us those regulations, that we're required to enforce, mean.

The best comparison is we wrote a letter at the court's request in Anderson v. Rochester. The Department of Transportation joined with the Department of Justice and told the court what our regulations meant on the denial issue and the court accepted that. [Available at: http://dredf.org/DOTBrief.html] That's an example of the type of guidance what we're talking about.

OK, first piece is Origin-to-Destination and that's the one that seems to have raised the most questions. Now, because this has only been passed September 1st, and because a lot of the questions that we received getting ready for this call were operational, I'm not going to have answers for a lot of your questions.

Any kind of operational policy guidance like I know we did in the DBE area, we posted questions and answers on the Secretary's Web site that had been thoroughly vetted and that vetting occurred through the Federal Transit Administration, Office of Chief Council and Office of Civil Rights, and the Secretary's Office. So today, I'll begin – be glad to share with you my understanding of where we are with the Origin-to-Destination bulletin.

As you know, the DOT ADA regulations at 37.129 and 37.131(a) require origin-to-destination service. The bulletin says that it's required, but it also confirms your right as a transit provider to go through public participation and make a decision as to whether you want to institute curb-to-curb or door-to-door service. That hasn't changed. And the main thing to understand about this and what hasn't changed is this is the rule and what this origin-to-destination piece I think people are reacting to is the exception.

All we're saying is in the exceptional case when a person, for example because of a disability that changes from time to time and the condition becomes extremely worse on any given day, or because a construction pit has sprung up overnight and they can't get around it by themselves to get to the door – all we're saying in those kind of cases is the whole concept is to get the person to their destination. [However, a fluctuation condition is not required. Some individuals might always require service beyond curb-to-curb.] You do have a right as a transit provider to establish a policy or a process with regards to this. You can say I want everybody to call me in advance and to make it a rule that you have to call in advance. You can do that. But in saying that, you need to realize there's still going to be times that you need to be flexible and you can't just say we can't do it because you didn't call yesterday.

What if it's a debilitating disease and the person wakes up that morning – and they just have a much more severe physical situation that they have to deal with and they couldn't plan for that. So go ahead and make the policy. It'll help things move more smoothly. You'll be able to deliver a better service, you'll be able to anticipate your needs, but you need to still be flexible and provide for that instance that comes up, and that can't be planned for.

It does put a burden on you of exercising independent judgment and applying things on a case-by-case basis and we recognize that's not an easy task. It does do that. We recognize that. There is a time that you are not required to do this, yes there is. That rule applies and that is if this is a direct threat. So if what is needed to do – if there's a big construction pit that you would fall into trying to get the person around and it's a direct threat to yourself [meaning the driver] or others, then you don't have to do it. [Under "direct threat," threat must be to others, not to the individual with the disability.]

And it does not require scheduling of a dedicated vehicle. The quote that I latched onto as being significant was on an individual case-by-case basis, paratransit providers are obligated to provide an enhancement to service when it is needed and appropriate to meet the origin-to-destination service requirement.

I know that doesn't help much but you're going to have to make some judgments. Maybe your policy can address it, what's needed and what's appropriate, and you're going to have train your people in that. And if you have any specific questions, I'll be glad to receive them at my e-mail, cheryl.hershey@fta.dot.gov, and your questions, in and of themselves, will help us see where the holes are that we need to address to help you in applying this. That is origin-to-destination.

 

DAVID KNIGHT:

I think maybe we can hit one or two of the questions that are probably clear enough – clear enough to answer at the moment.

One, for example, talks about taking someone not only to the main door of the building but inside there are complicated series of hallways and elevators to their doctor's office, for example. I think it's safe to say that would be beyond the destination and that getting someone to the lobby of the building would be the only thing that this guidance would suggest. So I want to be clear on that.

And second, there was a question about whether or not this would pose a requirement to assist someone through snow. I think it very much was intended to address situations like weather that could be hindering someone's access to their destination or from their origin. So that very much is what was being thought of when this was issued.

 

CHERYL HERSHEY:

The second bulletin I'm going to briefly mention is on the Segway – and the Segway is a mobility device. It's used by – is often used by an individual with a mobility related disability and what this bulletin tells you is when a person with a mobility related disability is using it to assist them with transit, that you need to permit them with the Segway on public transit.

The – I don't know if people – David, you were on a Segway. Do you want to describe what it's like because I'm not sure everybody knows what a Segway is and physically just describe what we're talking about here.

 

DAVID KNIGHT:

Sure.

It's a two-wheel, gyroscopically stabilized, battery-powered, personal transportation device and it specifically in the guidance defines it as a mobility aid. It recognizes that it's not a common wheelchair and that it was not designed primarily for use by individuals without disabilities, but we found that a number of individuals with disabilities and mobility impairments find increased mobility with one. And recognizing this concept of mobility aid in the regulations, the guidance suggests that where you can transport an individual [with a mobility impairment using a Segway], you need to do so.

 

CHERYL HERSHEY:

And questions did come in. You know, how will we know whether the person has a mobility-related impairment if it's limited to people with mobility related impairments? And the answer is these are some of the questions that we really don't have firm policy on, but it occurs to me that you could develop a policy. It occurs to me that you could have a discussion and start talking about what types of questions could clarify that issue and that the things to think about would be the privacy and tact and non-intrusiveness, and that consider developing a non-mandatory administrative process to help promote the ease of access to public transit.

Again, those are my own personal thoughts and not FTA policy.

We have one more – one more bulletin. There's a bulletin on §5311 and what that is, is a funding mechanism. Essentially what that bulletin says is where you have fixed route, you have to have ADA paratransit. And for the longest time when money was passed through the State Department of Transportations to various non-profits, it just seemed to be treated as an exception and we're here today to tell you it's no exception, that it doesn't matter if it's contract or other financial arrangement where money just passes through, you're still accountable to comply with the ADA and you must deliver. You have fixed route, you have to have ADA paratransit.

That's pretty much the bulletins for today.

 

DAVID KNIGHT:

We have a few more questions. We have about 10 more minutes.

Good questions came in about stop announcements on the fixed route. There's, of course, a general requirement that you make stop announcements at reasonable intervals, both internally as to where a vehicle is, and externally if more than one bus is running along the same route, so that a blind or a visual-impaired rider would know which bus to board. [See 49 CFR 37.167(b) and (c)] And as I'm sure – I hope many of you are aware it's not always easy to identify who a blind rider is so this is a blanket requirement regardless of what the driver perceives to be the disability of someone boarding.

In looking at what a good stop announcement policy is, I'd like to suggest, both to the transit systems and to the riders, that the key is oversight. You need to make sure that there is either a stop enunciator installed that cannot be overridden by the drivers, or if it can be or if you have drivers making stop announcements themselves that you have the sort of system to ensure that they truly are making stop announcements. This might involve a responsive complaint process where you truly do follow up on complaints from the riding community. It could involve having a third party, either a volunteer group or contractor riding along, preferably undercover or as a secret riders, to see if drivers are making stop announcements or not.

After that, you need to make sure that there is a progressive disciplinary system for drivers, that there actually is some sort of negative response if they – and positive hopefully, too – if they are or are not making stop announcements and you need to actually impose discipline.

A question came in about unions. While we recognize that there is the union issue that management might need to negotiate with, the unions can't override the federal responsibility and that FTA's going to continue to hold the transit system responsible for complying with the stop announcement requirement.

If you want any help or input, feel free to check in because we do have some other ideas for how you can do this and we can give you some suggestions for what's worked with other systems. But this is something we're paying increased attention to. We've started doing compliance reviews of stop announcements again. We've done a few and we have more coming so please recognize that this is an important element of compliance.

 

CHERYL HERSHEY:

And I know we got a question about what's the magic number that we feel you're doing OK. There is no magic number. We strive for 100 percent. You have to recognize that if you're blind or you have a cognitive impairment, or otherwise, and if it's absolutely necessary for you to know what stop it is, for it to be called is the same as someone in a wheelchair having a lift or not. It's vital. It has to be done. And it's really important to realize that it's not limited to blind; it's also cognitive and other impairments and you can't just go by visual observation. You just can't say a person has a cane, I'll call the stop now.

 

DAVID KNIGHT:

Next there was a question about demand responsive and what requirements there would be as to how accessible the fleet is.

Probably draw the persons' attention to [49 CFR] 37.77, which talks about purchase or lease of new vehicles for a demand responsive system. Feel free to follow up with us to learn that a system needs to be accessible to a person with a disability who calls in for a ride as it is to someone without a disability.

Similarly, though, there are route deviation systems out there – and someone wrote and said they were thinking of devising a deviated fixed route where certain vehicles would deviate from that fixed route. Paratransit is not required where there is route deviation, but that is only along that element with the route deviation. So if portions of your service has fixed route you need to have complementary paratransit running along that element. And if you'd like input as well on how to establish fares and so forth and be within the guidelines, I suggest you follow up with us.

 

CHERYL HERSHEY:

Well, I think we've discussed the PCA questions. There was a service animal question. I believe a question about what proof is needed.

There's no official United States school that you have to go through with your service animal to be certified. There's no certification to bring a service animal onboard. The Department of Transportation, Federal Transit Administration, follows the Department of Justice guidance. Someone asked where is that written. I know that we responded through the Office of Public Affairs to that effect, so that is our official position.

And there are two bulletins put out by the Department of Justice. One is commonly-asked questions on service animals [available at http://ada.gov/qasrvc.htm] and one is a business brief [available at http://www.usdoj.gov/crt/ada/svcanimb.htm] saying that you can ask the person with the disability what task the service animal has been trained to perform.

And if you have any other specific questions regarding that, feel free to follow up. You do not need to have the service animal have any particular leash, collar, any kind of a particular item that the service animal has on it and you don't have to have a process – you cannot have a process that requires pre-certification to bring a service animal on.

 

KAREN WOLF-BRANIGIN:

OK, well, we've used up our time. We just have a couple more minutes left.

I know you're all on mute but if you want, I know you'd give a rousing hand of applause to Cheryl and David. They did a phenomenal job of researching and spending a lot of time pulling information together so they could present the questions to you.

As I mentioned before, I think we had over 60 questions submitted to us, so we're absolutely delighted with the interest in this conference call. So I'd like to thank again Cheryl and David for their hard work. I'd also like to thank everybody who is on the call and listening, as well as people who submitted questions and that obviously gave us our agenda for today.

If you have additional questions that you weren't able to get into the queue, you can use our distancelearning@easterseals.com through Friday to get those questions into us and then we'll make sure that the FTA staff has a chance to take a look at those and get back with people on information.

We mentioned before that if you are interested in getting an audio copy of this conference, or an electronic word copy, or a Braille copy, or a large print of the transcript, please e-mail. You can use the distancelearning@easterseals.com, or you can just call Easter Seals at 1-800-659-6428 and ask for Karen Wolf-Branigin – that's me – and we will be happy to collect your address and get those materials out to you once we have the transcripts available.

Do we have any last comments by Cheryl or David?

 

CHERYL HERSHEY:

No. It was great talking to everybody today.

 

DAVID KNIGHT:

All right. I do appreciate everyone calling in and we thank Easter Seals and Karen especially for organizing this and look forward to talking with some of you again off line.

 

KAREN WOLF-BRANIGIN:

And we also thank the folks at ChorusCall who have helped us with this call.

For those of you on the first call, you know it took us about 45 minutes to get it together and I think we haven't heard any crises and no one's run to the office here to tell us if there's a problem so we're assuming that you've all heard us, and again thank you very, very much for your participation.

END

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