USDOT Notice of Proposed Rulemaking, ADA

DREDF supports adding this regulatory provision.

DOT Proposal:

DOT is proposing to add to its regulation a provision requiring ADA transportation providers to make reasonable modifications to policies, practices, and procedures when necessary to avoid discrimination on the basis of disability, unless the transit agency can show that the modifications would fundamentally alter the nature of the service or activity, or would result in undue administrative or financial burdens or a direct threat to the health and safety of others.

As DOT notes, this requirement is not new. It is a fundamental tenet of disability rights law, and has been included in various regulations by the US Department of Transportation (DOT) and the US Department of Justice (DOJ) under the ADA, Section 504 of the Rehabilitation Act, and the Air Carrier Access Act. In a transportation context, the provision addresses situations such as the following:

• If there is a no-eating policy on the subway train, the transit agency must allow a modification of the policy in the case of a woman with diabetes who needs to eat on a particular schedule.
• On the bus, if there is a policy that bus drivers may stop only at designated bus stops, there may occasionally be a barrier at a bus stop (e.g. construction, snow drifts) that blocks use by passengers with disabilities. In such a case, where it would not be unduly burdensome or dangerous, it would be appropriate for the bus to move a short distance from the stop to pick up a passenger using a wheelchair at a place where the passenger could readily board.
• On the bus, if there is a policy that bus drivers may not touch bus fare money, the policy must be modified in the case of an man with a disability who is unable to physically deposit his fare into the fare box and requests assistance from the driver to help deposit the money. Were the transit agency to refuse to modify the policy and subsequently deny transportation to the man because he couldn’t physically deposit his bus fare, this would be a violation of the “modification of policy” requirement.

This provision did not appear in the original DOT ADA regulation because DOT expected transit agencies funded by the Federal Transit Administration (FTA) to recognize they were covered by a similar provision in the DOJ regulation for Title II of the ADA, since the structure of the ADA makes transit agencies subject to that regulation as well, and since DOT’s 504 regulation explicitly requires it.^[i] Until recently, only one appellate court had addressed the issue, and it appeared to share DOT’s view.^[ii] DOJ submitted a brief in that case offering its agreement as well. However, in the wake of another court decision that disagreed,^[iii] DOT is proposing to adopt the provision into its own regulation in order to clarify that it covers publicly funded transit agencies.^[iv] (Privately funded transportation providers are already covered by the same provision in the Department of Justice ADA Title III regulation.)

DOT notes that the requirement is not absolute — if modifying the policy or practice would result in an undue burden or fundamental alteration of transit agency services, the modification need not be made, and the head of the agency can make a written determination to that effect (though the agency would be required to make an alternative modification of policy, practice, or procedure that would not result in an undue burden, fundamental alteration, or direct threat).

DOT also emphasizes that it is adding this provision in the context of its financial assistance relationship with transit agencies. DOT notes that there is language in the FTA Master Agreement that requires recipients to acknowledge the possibility of new federal regulations even after the execution of the Agreement.

DOT’s proposal discusses how its recent ADA paratransit guidance on “Origin-to-Destination Service,” posted at http://www.fta.dot.gov/14531_17514_ENG_HTML.htm in September 2005, is an example of the modification of policy requirement. That guidance stated that an agency providing ADA paratransit under a “curb-to-curb” policy – that is, under a policy that paratransit drivers will wait at the curb for passengers rather than going to the door to assist them – may occasionally need to provide service beyond that point, if necessary to ensure that the individual can reach his or her destination. Examples include:

• If a physical barrier such as sidewalk construction or snow prevents a passenger from getting to the vehicle, the service provider must offer assistance beyond the curb – not necessarily to all passengers, but to this particular passenger.
• A rider who uses oxygen, who wishes to stay on his main oxygen supply until the last moment so he doesn’t use up his portable supply while waiting at the curb, and who doesn’t have a window in his apartment making it possible to see the vehicle arrive, may need the driver to come to the door.

But DOT emphasizes that such assistance would not need to be provided if it creates an undue burden, fundamental alteration, or direct threat. For example, transit providers would not be required to:

• Provide personal [attendant] services
• Go beyond the doorway to assist a passenger
• Leave vehicles unattended for lengthy periods of time
• Lose the ability to keep their vehicles under visual observation
• Take any actions that would present a direct threat to safety

Such activities would, according to DOT, “come under the heading of ‘fundamental alteration’ or ‘undue burden.’”

DREDF Response:

DREDF strongly supports adding this provision. Most transit providers have misunderstood their coverage by the DOJ regulation, and have disregarded the provision in their 504 regulation clearly mandating coverage by the DOJ regulation. It should be made clear that this requirement applies to transit agencies. Adding it to the DOT regulation would achieve that end.

In DREDF’s view, the impact on transit agencies would not be significant, if it is properly understood. For example, in the area of origin-to-destination paratransit service, many systems, possibly as many as 50%, have door-to-door policies at the current time, with no record of safety or insurance problems. Such agencies have worked out the operational issues involved and come to the conclusion that door-to-door service is not operationally burdensome.

It should also be noted that some individuals with disabilities cannot use ADA paratransit service without minimal assistance beyond the vehicle. These individuals, who also cannot use the fixed route service, are exactly those whom ADA paratransit is intended to serve.

Further, virtually all transit agencies have general liability insurance in addition to their automobile (vehicle) liability policy, and that general policy covers the driver beyond the curb. Thus, following DOT’s guidance will not increase insurance costs.

Moreover, the vast majority of drivers in curb-to-curb paratransit systems say they provide door-to-door assistance when it is needed, out of basic decency and also for practical reasons. Transit agencies with curb-to-curb policies are probably at more risk now by having practices that differ from their policies and by not having policies on issues such as when the driver can leave the vehicle, can the driver lose sight of the vehicle, and what does effective control of the vehicle mean. Arguably, agencies are more at risk for something to go wrong if they maintain the pretense of a curb-to-curb policy when many drivers are actually performing a modified door-to-door service. Furthermore, general effectiveness is not increased if drivers must wait until a rider notices that the vehicle has arrived or watch someone struggle rather than assist the person. Transit agencies as well as their passengers would be better served by explicitly including the occasional additional needed service.

We also note that in most ADA paratransit eligibility applications, there’s a question about whether or not the applicant can wait 10 or 15 minutes for a fixed route bus without a bench or a shelter. If applicants can not, they are deemed paratransit eligible. It is inconsistent to say that this condition confers eligibility and then to require the same individuals to wait 30 minutes at the curb during the on-time window that is usually applied in ADA paratransit for a vehicle to arrive.

Similarly, we do not expect other areas of transit agency operations to be unduly burdened by the addition of a modification of policy requirement. All other organizations covered by the ADA – employers, state and local governments, public accommodations, and private transportation providers – are covered by this requirement or a comparable one in every service, program, and activity that they engage in. We see no reason why public transit agencies should be exempt from this basic tenet of disability rights law.

Response To Comments Already Submitted To The Docket

According to comments that have already been submitted to the docket, the transit industry is strongly resisting this proposal. The resistance appears to be based on some misunderstandings. First, if modifications of policies and practices would result in great expense or the endangerment of drivers or other passengers, the modifications are clearly not required by the Dot proposal. Some transit agency comments misunderstand the proposal as a requirement to customize every paratransit trip according to rider preference. This is an exaggeration of the actual proposal, which would only require transit agencies to modify policies and practices when needed to avoid discrimination on the basis of disability, with clear strong limitations. And as stated above, every other covered entity under the Ada, whether a privately funded transportation provider, public accommodation, state or local government, or employer, is under the same or a very similar requirement, and for none of them has it meant highly customized services subject to the whim of individuals with disabilities, as appears to be the perception of some industry commenters.

Beyond the ADA Regulation

Another significant and disturbing misunderstanding by transportation providers is reflected in some of the comments. For example, the comment by a coalition of transit agencies from various locations in Colorado, Texas, California, New York, Missouri, Washington State, and Utah, stated “Neither DOT nor FTA had, prior to last year, indicated that transit properties had any transportation obligations beyond those incorporated in the [DOT ADA] regulations, and for paratransit, what was incorporated in their FTA-approved paratransit plans.” Elsewhere, it stated:

DOT’s view of the requirements of §504 of the Rehabilitation Act has changed aswell.. Before the ADA was passed, the author of the current NPRM expressly stated that “special accommodations” (the equivalent of “reasonable modification”) for persons with mental, visual or hearing impairments were not required under 504 as interpreted by DOT regulations and concluded that to impose such a requirement would require an amendment to the regulations (52 FR 30803 (DOT Docket 45162) (1987)). We are unaware of any such amendment ever being made.

It is truly unfortunate that such a broad cross-section of transit agencies in the U.S. is unaware that, in fact, the DOT Section 504 regulation has changed. When the DOT ADA regulation was published in 1991, a revision to DOT’s Section 504 regulation, reflecting the new ADA mandates by Congress, was also published. It is 49 C.F.R. §27.19 (commonly called Part 27), and it was contained in the same hard copy of the Federal Register as is Part 37, the DOT ADA regulation. This Section 504 regulation is also posted on the FTA ADA website at www.fta.dot.gov/ada, and transit agencies can retrieve it by clicking on the title “Nondiscrimination on the Basis of Disability in Programs and Activities Receiving or Benefitting From Federal Financial Assistance (Part 27).” This not-so-new Section 504 regulation clearly states:

Sec. 27.19 Compliance with Americans with Disabilities Act requirements and FTA policy.

(a) Recipients subject to this part (whether public or private entities, as defined in 49 CFR part 37) shall comply with all applicable requirements of the Americans with Disabilities Act (ADA) of 1990 (42 U.S.C. 12101-12213) including the Department’s ADA regulations (49 CFR parts 37 and 38), the regulations of the Department of Justice implementing titles II and III of the ADA (28 CFR parts 35 and 36), and the regulations of the Equal Employment Opportunity Commission (EEOC) implementing title I of the ADA (29 CFR part 1630). Compliance with the EEOC title I regulations is required as a condition of compliance with section 504 for DOT recipients even for organizations which, because they have fewer than 25 or 15 employees, would not be subject to the EEOC regulation in its own right. Compliance with all these regulations is a condition of receiving Federal financial assistance from the Department of Transportation. Any recipient not in compliance with this requirement shall be subject to enforcement action under subpart F of this part. (emphasis added)

Thus, Section 504 of the Rehabilitation Act of 1973 has required transit agencies to comply with the Department of Justice ADA Title II regulation, which includes a requirement to modify policies, practices, and procedures when necessary to avoid discrimination on the basis of disability, since 1991. This requirement under Section 504 is independent of any ADA requirement. DREDF strongly encourages all transit agencies to familiarize themselves with their current Section 504 regulation. The fact that so many large transit agencies are unaware of this existing obligation also argues in favor of the proposed change so that requirements will be consistent and clear across all of DOT’s regulations.

Even if the “modification of policy” framework was never required before (though DREDF’s legal analysis is much to the contrary, as just stated), FTA has applied the “modification of policy” principle regularly in its complaint investigations on a number of publicized occasions.[v] And in responding to requests from the transit industry, the same logic has been used, such as when FTA decided that transit personnel must assist riders with fares, and that transit can refuse riders’ requests for sedans instead of vans. The current DOT proposal is not a sudden, dramatic whim, as portrayed in industry comments, but was triggered by the Melton case, necessitating that DOT take the framework it has used to consider these questions and insert it explicitly into the regulation. The provision’s logic can continue to be used by transit agencies to decide the appropriate answers to any questions and requests raised by riders into the future.

The transit agency coalition comment also referred to a provision in the DOJ regulation, §28 CFR 35.102(b), arguing that it exempts public transit from coverage of the DOJ rule. But the Department of Justice explained in its amicus brief in the Burkhart case in the DC Circuit that this provision means that transit providers are exempt only to the extent that Subtitle B of Title II of the ADA (implemented by the DOT ADA regulation) imposes specific transportation requirements. In DOJ’s view, matters not explicitly covered by Subtitle B, such as reasonable modifications of policies, practices, and procedures, and the provision of auxiliary aids and services, are covered by its own rule.

Lack of Data

Regarding how the proposed change would affect levels of paratransit assistance (door-to-door assistance on at least some occasions), which the above-mentioned DOT guidance already requires, the same coalition of transit agencies alleged that the DOT proposal would increase dwell time and costs. But it offered no data to support the allegation. The comment also expressed dire safety concerns, but again, no data was provided. The coalition only offered allegations of increased risk, supported by a couple of non-specific anecdotes from among their 13 million rides as evidence of the claimed problem. But, as noted above, a significant percentage of transit systems have policies to provide door-to-door service already, and we are not aware of any documentation of lower productivity, higher insurance costs, higher operating costs, or documented safety issues. In fact, some experts in the field feel that door-to-door service may actually lower dwell times by more immediately alerting riders that vehicles have arrived and avoiding situations where drivers wait for passengers at the curb when the rider does not know the vehicle is there. Experts we consulted have also indicated that door-to-door service likely helps reduce no-shows, which the industry has noted are costly and unproductive.

Ongoing Evolution of the ADA

In general, many of the transit industry’s comments basically state or imply that if the original DOT regulatory requirements for ADA paratransit, written more than 15 years ago, were not able to foresee the need for a particular provision, then it should not be added, unless it is voluntary for the transit industry to provide. But realistically, it is not possible that the people who shaped the ADA statute and regulations could anticipate every provision that would ever be needed. As time goes by, the ADA’s legal provisions may be in need of further shaping as conditions change. New policies and new procedural issues will arise, and there must be some approach in the law through which to evaluate them. DOT’s proposal offers just such an approach, and it could hardly be more flexible.

Understanding How the “Modification of Policy” Provision Works

The transit coalition comment also presented a long list of examples of rider requests for various service modifications that have been received by transit agencies. The list actually made a very different point than the one the transit agencies are putting forward. It showed how many issues not originally thought of at the time the regulation was written, have come up in actual practice. It is important that there be a way to evaluate and act on these requests. Formal incorporation into the DOT regulation of the DOJ provisions on modification of policies and practices should help transit agencies address present and future requests in a consistent and legally sound way. The coalition’s list is, in and of itself, evidence that transit agencies must already make decisions about individual requests all the time. They must already have procedures for doing so. To argue that the regulatory change will, for example, cause drivers/operators to be put into the position of having to make tough decisions on the street, ignores the fact that this is already the case. The proposed incorporation of reasonable modification principles gives transit agencies a more formal, legally sound, consistent way to address the requests they are already getting.

Many industry objections show a lack of understanding of this. For example, some comments argue that paratransit operators (drivers) are not able to decide on the spot if a request is a fundamental alteration. Why can’t they radio in to the dispatch/control center and pose the question? If no answer is available at the time, or if the answer is that the request is not consistent with current policy, the operators can simply be directed to follow their standard procedures, and tell the rider to make the request for a modification of policy to the agency for the next ride, so the matter can be considered. This is probably what is already being done across the industry. In another example, the coalition comment argued that, if the modification of policy provision is incorporated into the DOT regulation, service will vary greatly from system to system, with an inconsistency that is to the detriment of riders with disabilities. Yet riders using more than one system already face this very inconsistency, because currently there is no uniform approach by transit agencies for making decisions about such requests. Each agency is deciding for itself whether to grant typical service modifications. If anything, adding the provision will result in greater consistency, by providing a legally consistent approach to be used from system to system.

The coalition of transit agencies also objected to having a legal obligation for making decisions about requested modifications, preferring that such decisions be made locally, outside of any legal framework, and suggested that transit agencies today are already making these decisions in a non-discriminatory manner. However, riders with disabilities deserve better – and are accorded better by the ADA – than to simply trust their transit agencies to do the right thing. This suggestion by transit agency commenters is completely inconsistent with the implementation of nondiscrimination regulations. When making decisions about the rights of riders, a sound legal basis and process is essential.

One other interesting comment was submitted by Richard DeRock of Link Transit in Washington State. It presents in-depth examples of various service modification requests Link Transit has received from riders with disabilities, and explains which ones Link accommodates, and why. The comment’s stated purpose in presenting the examples is to illustrate the potential impacts of adding many variables to service, which, it states, will reduce reliability and predictability in service delivery to a very deleterious extent.

DREDF’s main response to Link Transit’s examples is that this comment, generally speaking, shows exactly the type of careful analysis that the “modification of policy” proposal would require. In most of the examples, the comment explains how Link provides the accommodations to some degree, because Link can do so without extensive changes – in other words, the accommodations are not a fundamental alteration of Link’s services, and/or do not pose undue burdens or a direct threat. The comment also explains why Link does not provide 100% of the requested accommodations, using perfectly appropriate reasoning which shows that to provide them would result in such a significant impact on service that it would be a fundamental alteration, an undue administrative or financial burden, or a direct threat. Thus, in one way, the Link Transit comment falls prey to a common misunderstanding by transit agencies of the DOT proposal, by incorrectly assuming that every requested modification must be provided. Yet in another way, the Link Transit comment is a perfect example of what compliance with the DOT proposal might look like – an analysis of when the modifications are acceptable, versus when they cannot be provided without running afoul of the very exceptions that DOT is offering transit agencies as a way to mitigate the proposal’s impact.

For example, under the heading “Stop Locations,” the Link Transit comment says that picking up a person at other than a defined stop location is fraught with serious safety and reliability issues, such as drivers not seeing the passengers, creating conflict on the bus between drivers and passengers, increasing radio and dispatch time, and requiring bus operators to make significant off-the-cuff safety decisions. But the comment states that Link drivers “will (if it is safe) re-position the vehicle to avoid parked cars, snow banks and construction.” Yet this is exactly what the DOT proposal states would be a reasonable modification of policy. DOT is not saying that passengers with disabilities must be picked up anywhere along a route they wish, but merely that, if bus drivers can’t board someone at a stop because the area is temporarily inaccessible, they should attempt to move to a location in the immediate vicinity (not halfway down the block) that works. Many commenters reacted vigorously in opposition to this DOT example, in each case blowing it out of proportion.

In another example, the Link Transit comment states that periodically, it receives requests to provide paper tickets because tokens and coins are difficult for some persons with disabilities to handle. Link does not do so, because the cost of processing paper tickets is substantially higher than that of tokens; a figure of $25,000 per year is cited. This is an example of a modification that would pose undue financial burdens, and is therefore not required by the DOT proposal.

The Link Transit comment also addresses a rider who, due to diabetes, must eat frequently, including, according to the rider, just before paratransit rides, causing delays of up to 20 minutes. Other riders have requested for the vehicle to wait until they use the restroom just before the ride, posing delays for other passengers over 20 minutes long. This accommodation is so frequently requested that the cumulative impact would be very extensive. This is an example of undue financial and administrative burdens, so the accommodation could be legally refused. In another example, the comment describes how one fixed route was replaced with a route deviated service. There was one frail elderly woman who lived on the route and took paratransit before the mode change. The paratransit operators had been pulling into her steep driveway, which she does not have the strength to walk up. The paratransit vehicles were mini-vans that could navigate the driveway (thus providing a reasonable modification of policy), but the route-deviated bus, a much larger vehicle, could not. The rider asked that Link restore paratransit service to her, but since her home is 40 miles from the nearest Link paratransit service, the cost would be $100,000 annually, an undue burden.

The Link comment states there would be a very high cost to making written determinations of undue burden, fundamental alteration, and direct threat. But it appears to DREDF that Link and other transit agency commenters are exaggerating the impact of the documentation requirement. Any system needs to be prepared to defend its decisions in response to rider requests. Not all requests would need unique, separate documentation. Once a single request related to a particular issue is documented, all other similar requests could be answered by this precedent-setting documented decision. DREDF believes that transit agencies will not be overwhelmed with requests that will each require unique documentation. Experiences from other covered entities already subject to the proposed provision indicate that only occasional documented decisions are necessary.

One last point on the Link Transit comment is about the comment’s section on Door to Door Service. Link provides universal modified door-to-door service with certain limitations. The door must be within the line of sight of the vehicle; drivers cannot go through doors but may open public doors and announce their presence; and there are certain other restrictions. The comment makes the point that prior to adopting universal door-to-door service, Link provided door-to-door service upon the passenger’s request. Having the service be variable (some passengers got door-to-door, others got curb-to-curb) caused reliability problems. Passengers expecting one type of service would miss the vehicle if the driver expected another, resulting in missed trips and no-shows. Universal door-to-door service resolved the problems. Interestingly, Link Transit does not cite extra costs accompanying this change. It is true that a consistent approach will avoid problems, and the Link Transit experience appears to show that door-to-door service is not the costly addition that some other comments have claimed – even though DOT has not proposed requiring universal door-to-door service to all passengers.

At the time of the writing of these comments, DREDF has been hearing a few reports of what is possibly a recent, unfortunate trend. Some transit agencies that have formal curb-to-curb policies but whose drivers have, in the past, tended to offer more assistance to those individuals who need it, have recently been telling drivers not to provide such assistance. In at least one large city, riders are in an uproar about the issue, because some of them have been successfully using the system and now cannot, or are encountering great difficulties doing so. It appears that these transit agencies are ignoring the recent ADA paratransit guidance on “Origin-to-Destination Service” (posted at http://www.fta.dot.gov/14531_17514_ENG_HTML.htm). It is important for DOT to know if this reaction by transit agencies is widespread. It would be a very sad result of DOT’s proposed rule change if the effect is the entrenchment of inflexible curb-to-curb policies, contrary to recent DOT guidance, even in those instances when a small number of individuals with disabilities need a little more assistance, and had been receiving it successfully before this proposal was published.

DREDF recommends adding at least two other provisions.

The DOT proposal asks if there are other provisions in the DOJ regulations that may need incorporation into the DOT ADA rules. DREDF sees the need to add, at a minimum, a provision on general non-discrimination, and one requiring auxiliary aids and services.

Auxiliary Aids and Services

The ADA requires the provision of auxiliary aids and services, which are measures to provide communications accessibility, when needed to avoid discrimination on the basis of disability, unless providing the auxiliary aid or service would fundamentally alter the program or activity, or result in an undue burden. In a transit context, this requires, for example:

• If a transit agency distributes a bus or train schedule in print form, it must be provided in an alternate format usable by a person with a visual impairment, such as via the telephone or in a digital form, upon request as appropriate.
• If a transit agency holds a public hearing and an individual who is deaf requests a sign language interpreter, it must be provided, upon request as appropriate.

It is important that all transportation providers, whether public or private, be covered by this provision. If the presence of this requirement in the DOJ regulation is not sufficient to cover all transit agencies (e.g. in the Fifth Circuit, due to the Melton decision), the provision should be added to the DOT regulation.

General Non-Discrimination

DOT should also include general non-discrimination prohibitions in its regulation, such as the provisions found in the DOJ ADA regulation under Title II at 28 CFR §35.130. As the Department of Justice argued in its amicus brief in the Burkhart decision:

(The ADA’s Title II) Part B’s transportation-specific provisions are not intended to address all forms of disability-based discrimination that may occur in the transportation setting. In particular, they do not address the forms of discrimination that may occur in any public setting – – such as the outright denial of service or the failure to assure effective communications with people with disabilities. If Title II(A) and its implementing regulations did not apply in these circumstances, the ADA’s prohibition against the basic forms of discriminatory exclusion would not apply in the transportation setting. [emphasis added]

Or, as the brief argues compellingly in a later section:

…then the ADA would permit public transportation organizations wholly to exclude people with disabilities from the use of their services so long as their vehicles and facilities were physically accessible.

The original section continues:

The text of the ADA makes clear that Congress did not intend that absurd result. With respect to those forms of discrimination that are not addressed in Part B, Part A’s general rule of nondiscrimination applies, as do the Attorney General’s regulations implementing that rule.

But if the DOJ regulations implementing Title II Subpart A of the ADA might be considered inapplicable to publicly funded transit agencies (as DOT appears to be conceding is the case in the Fifth Circuit), then those general non-discrimination prohibitions are important to add into the DOT regulation.

DREDF agrees with DOT’s proposal

Summary of DOT Proposal:

DOT’s proposal would require level entry boarding at new commuter and intercity rail stations from a fully accessible high platform, with a ramp or bridgeplate if necessary, making it possible for everyone to board any accessible train car. The proposal would avoid, if at all possible, the use of mini-high platforms to provide disability access to the train on commuter rail, allowing mini-highs only as a very last resort.

DOT currently requires level entry boarding, with a vertical gap between the car entrance and the platform of no more than 5/8 inches, and a horizontal gap of no more than 3 inches. Where it is not operationally or structurally feasible to meet these gap requirements, alternate solutions are allowed, but level entry boarding is preferred, as it is the accessibility solution that provides service in the most integrated setting.

However, the Federal Railroad Administration (FRA) has established that, on intercity and commuter rail systems, these current gap requirements are unrealistic. DOT is thus proposing new platform design requirements for newly built commuter and intercity rail facilities. If the current gap requirements must be exceeded, there may be a horizontal gap up to 10 or 13 inches (depending on the type of railroad track) that would be accessed by a bridge plate or ramp to facilitate independent boarding by passengers with disabilities who cannot step across the platform gap. The wider gap will be needed, in some cases, to allow for necessary railroad clearances. Any vertical gap would need to be bridged by a bridge plate or ramp with a 1:8 slope or less, under a 50% passenger load. Bridge plates would need to connect the platform with each accessible car.

Only if the rail system determines (with the concurrence of the FRA and FTA) that meeting the above requirements is not operationally or structurally infeasible could the rail system use an approach other than level entry boarding, such as mini-high platforms or lifts. Even in such cases, the rail system would be required to ensure that access is provided to each accessible car on the train.

DOT is not proposing any change to its current requirements for rapid rail (e.g. subways) and light rail (e.g. streetcars), only for intercity and commuter rail.

DREDF response:

DREDF fully agrees with this approach. Mini-high platforms are a very poor form of access in a commuter rail context. They put a person with a disability out of the general public way, sometimes out in the rain or snow. Even worse, they necessitate that the train move in small increments to align its cars, one by one, with the mini-high platform (also known as double stopping), which is very difficult and time-consuming, and yet which must be done on a permanent basis if mini-high platforms are allowed. The only way to avoid double-stopping would confine people with disabilities to only one car on the train, although the ADA properly requires access to all accessible cars. Thus, the use of mini-high platforms would necessitate either the long-term operationally onerous practice of double-stopping, or would institutionalize a permanent segregated solution in which, no matter how many accessible cars are present, people who cannot walk up the steps would be limited to one car on the train.

Thus, high-level accessible platforms, with bridge plates if necessary, are the only proper solution, particularly in new construction. Bridge plates are acceptable, given the wider gaps that may often be unavoidable in commuter and intercity rail systems. Similarly, the 1:8 slope is probably the best possible solution for the vertical gap, given the context in commuter and intercity rail facilities where, even in newly constructed stations, the bridge plate must be readily portable and function with a variety of existing rail cars up to 30 years old with varying floor heights.

DOT has asked whether the requirements for alterations of pre-existing commuter and intercity rail facilities should meet the same standards as in new construction. DREDF’s view is that, like in other parts of the ADA, altered rail stations should meet the new construction standards to the maximum extent feasible. In the occasional case where the standards cannot be fully met, the alterations should be required to comply as closely as possible. As in the context of alterations to buildings, cost should not be a factor in determining maximum extent feasible.

DOT also mentions that sometimes, difficulties in providing level-entry boarding from a fully accessible high platform stems from disagreements between commuter rail authorities and freight railroads whose track the commuter railroads use. DOT has asked whether its current regulatory section requiring cooperation between commuter and intercity station owners and the parties attempting to implement the ADA will suffice to address this problem, or whether an addition is needed. In DREDF’s view, an addition is necessary. The existing provision addresses the owners of intercity and commuter rail stations, but what about the owner of the railroad itself, such as a freight railroad company like CSX or Union Pacific, which is not also the owner of an intercity or commuter rail station? This additional class of entities needs to be included in a requirement for cooperation.

According to comments that have already been submitted to the docket, many rail operators are presuming that DOT’s proposal would require retrofitting of existing stations, based on DOT’s new construction definition as applying to stations built after 1991. However, that is not an accurate interpretation of the meaning of new construction in the ADA. DOT’s proposal would only apply to stations that are built after the proposal becomes effective. This type of confusion often occurs with architectural barrier proposals. Commenters responding to proposals related to structural access in new facilities frequently misunderstand those proposals as requiring the changes in existing facilities; many commenters responding to every structural access rulemaking done by the U.S. Access Board have had a similar misunderstanding.

Another misinterpretation is the view of some rail providers that every single car at every single train stop would require bridgeplate deployment. At least one comment makes this presumption. The comment totals the dwell time that would be added, and it is considerable. However, bridgeplate deployment would only be necessary when there is an individual with a disability present who needs the bridgeplate. The exaggeration of the potential increase in dwell time is reminiscent of the exaggerated concerns of some bus operators when it was first being proposed that wheelchair users be accommodated on fixed route buses via lifts. The dire predictions of schedule havoc that would surely result if wheelchair users were allowed to board the bus never came to pass. Today, many transit agency managers would scoff at such an allegation in the bus context, because of their own positive experiences in accommodating people with disabilities on their fixed route systems. Yet some in the rail industry are expressing a similarly exaggerated fear about DOT’s level boarding proposal.

DREDF supports DOT’s codifying of the DLCC

Summary of DOT Proposal:

DOT proposes to add a provision to its regulation that DOT’s Disability Law Coordinating Council (DLCC) would coordinate DOT guidance and interpretations on disability-related matters. The DLCC is functioning currently under a 2003 memorandum from Secretary Norman Mineta. The DLCC ensures consistent interpretations among all of DOT’s modal administrations including FTA, FRA, etc.

DREDF Response:

DREDF supports the DLCC approach to guidance and interpretations of disability civil rights laws including the ADA, Section 504, and the Air Carrier Access Act. The presence of a department-wide coordination mechanism such as the DLCC ensures that knowledge and experience from all parts of the agency will be brought to bear on important questions of disability civil rights law. Historically, some of DOT’s offices have functioned more like banks dispensing government dollars to powerful friends than regulators ensuring the public good. Requiring interpretations of disability rights laws to go through the DLCC helps ensure that a consistent department-wide high standard is brought to bear on all-important questions of disability civil rights law guidance and interpretation.

DOT #2. Additions to Key Stations

DOT asks whether transit agencies should have the responsibility to identify additional key stations as circumstances change, such as when a station becomes a major destination point due to new development like the building of a stadium or convention center. The answer is yes – these and other changing conditions might necessitate the addition of key stations to the list made originally by a transit authority. As conditions change over time, the designation of key stations should be legally required to respond to these changes. Appropriate deadlines should be established, based on when the stations are added. This would need a regulation change.

DOT #3. Heritage Fleets

DOT asks if “heritage fleets” of vintage streetcars acquired in the global marketplace for use in revenue service are appropriately covered by the ADA regulation as it is today, and whether it is acceptable if the result is that these systems remain inaccessible (for example, if providing access would compromise the vehicles’ structural integrity). It is DREDF’s view that the regulation today covers these systems adequately. When used vehicles are acquired, the ADA requires making good faith efforts to find accessible vehicles. If vehicles are altered to the point of remanufacture, they are required to be accessible to the maximum extent feasible. These rules have successfully resulted in accessible heritage fleets. For example, New Orleans and Seattle both have accessible heritage trolleys. In the New Orleans example, the old cars were refurbished and there are raised wooden platforms and a small bridgeplate to facilitate access. The Seattle system has level boarding.

DOT #4. Non-Amtrak Intercity Rail

DOT asks if changes to the regulation are needed to provide access to intercity rail service provided by entities other than Amtrak. In DREDF’s view, it is important that DOT clarify in some way that non-Amtrak intercity rail systems are covered under the general ADA provisions for designated or specified transportation. We note that in Part 38, the vehicle guidelines, Subpart H states that requirements for any type of rail not already listed shall be determined by DOT in consultation with the U.S. Access Board. These other systems are not exempt.

DOT #5. Publicly Funded Demand Response Systems and Used Vehicles

DOT asks whether operators of publicly funded demand response systems should, like fixed route operators, be required to make good faith efforts to find accessible vehicles when acquiring used vehicles. The answer is definitely yes; the lack of some kind of control on the use of used vehicles has been a real problem, both in publicly funded demand response systems and also in privately funded systems, both fixed route and demand response. All these transportation systems make extensive use of used vehicles, and the lack of any control or requirement on the procurement of used vehicles has meant that many such systems provide no access when, in fact, many could provide partially or fully accessible service. For example, the many agencies and companies using used vans to provide social service transportation, taxi service, and airport shuttle service should be required to procure accessible vehicles if such are available, or to provide accessible service to some degree.

Furthermore, private companies that do not acquire vehicles but which, rather, work with a group of drivers who each own their own vehicles and function as independent contractors should also be required to provide some level of accessible service. The DOT regulation would probably classify this arrangement as leasing of used vehicles. With no controls on used vehicles, no accessible service whatsoever is provided, even by large, long-established companies.

There is no rationale for not covering used vehicles in some way. At this point, there is a large market for accessible vans, for example. Providers wishing to operate a transportation service should acquire, or make thorough good faith efforts to obtain, accessible vehicles, or provide an equivalent service via contract with another provider.

It is important that new regulatory text be developed to address these problems.

DOT #6. Changes in mobility devices; deviations from “common wheelchairs”

DOT asks about the use of wheelchairs and other devices that do not fit what the DOT ADA standards describe as a “common wheelchair” (a three- or four-wheeled mobility device that, when occupied, does not exceed 600 pounds or 30 inches in width by 48 inches in length, measured 2 inches above the ground). This is becoming a significant problem as, every year, more and more mobility devices fall outside this category – not only because they are larger but also because mobility devices are diverging from common, old-fashioned designs and becoming more and more diverse. Thus, it is no longer an unusual exception for a device to run afoul of these limits, and the ADA is in danger of no longer serving the overwhelming majority of people with disabilities in the U.S. that was its original intent. The ADA’s standards must keep pace with the evolution of mobility devices used by people with disabilities.

It should be noted that the ADA Accessibility Guidelines (ADAAG) common wheelchair specifications, developed by the U.S. Access Board, was never intended to be a screen for measuring individuals’ mobility devices. It was intended as a performance standard for lift manufacture. To quote Dennis Cannon, Senior Transportation/Facility Accessibility Specialist at the U.S. Access Board, “Part 38 only specifies the vehicle, not the passenger.”[vi] Yet it has been widely misapplied, and the situation is spiraling into a significant problem.

There are many facets to this problem. One aspect is devices which truly do not fit within the common wheelchair limits, and their users are denied transportation, even when the vehicle could accommodate them. A second aspect is what DREDF terms questionable exclusions. Some transit agencies, in an effort to cut costs, particularly on paratransit, are increasingly refusing to serve individuals because they interpret the individual’s mobility device as not fitting within the common wheelchair limits, even in cases where DOT would probably view the device as perfectly acceptable as a common wheelchair. Here are some examples:

• An individual uses a wheelchair which is capable of reclining. The individual never reclines the chair when using the lift or ramp to enter and exit the vehicle. During the ride, the individual reclines due to severe chronic back pain, and has done so for years; there has always been adequate space for this on the agency’s vehicles, even on shared rides. Yet, one day, she is told that, because she reclines during the paratransit ride, she will no longer be accepted for ADA paratransit because, in the reclining position, her wheelchair exceeds the common wheelchair length limit.
• An individual has a fused knee, and uses one elevated footrest to support it. In such a position, the wheelchair exceeds the length limit of the common wheelchair description. The person is denied transportation by the transit agency, though he has ridden with an elevated footrest for some time in the past.
• An individual uses a wheelchair which can recline but he never puts it into that position for any reason. During his ADA paratransit eligibility determination, the transit agency requires him to recline the chair and then measures it. Since in this position, it runs afoul of the common wheelchair envelope, he is denied eligibility. The individual does not file a complaint with FTA due to FTA’s announced approach of looking only at the eligibility determination process in complaints about denial of paratransit eligibility, rather than the factual reasons for particular denials.
• A woman is buying a scooter and, before purchasing it, she calls the paratransit provider to verify that the dimensions are OK. The Office Manager tells her he is sure something can be worked out. The woman purchases the scooter. Later it is discovered that the scooter is four inches too wide to fit the common wheelchair envelope. The Paratransit Director has now called the woman and told her the paratransit program can no longer transport her using this scooter.
• Individuals who have been riding on a transit agency’s vehicles for years are told that, because of the combined weight of themselves and their mobility devices, or because the length of their footrests is too long, they may no longer ride the system.
• A wheelchair is measured during a paratransit eligibility reassessment and the user is told he is approved “in a different chair” – even though he has always ridden the system using this same wheelchair.

DOT should require transit agencies to transport all mobility devices that their vehicles can accommodate, unless the individual would occupy space needed by another person with a disability. The transit provider should be obligated to show it has given thorough consideration to whether the person can be transported. If exclusions are permitted, DOT should clarify what exclusions are legal, given the variety of exclusionary practices occurring today, some of which are described above.

DOT Guidance could be sufficient to accomplish this, depending on what DOT decides to include.

Also, the U.S. Access Board should revise the ADA vehicle standards to apply the “common wheelchair” definition to as many wheelchair users as possible, because more and more users’ wheelchairs are being excluded from the ADA definition of common wheelchair as time goes on.

DOT #8. Counting of paratransit trips

DOT seeks comment on how providers of ADA paratransit should count missed or denied trips for statistical purposes. DOT’s view is that each individual leg of a journey should be counted as a trip, so that a round trip from home to work, if denied, would count as two denials. If the transit provider can provide the return trip but not the outbound, and the passenger, as a result, does not go at all, this would also count as two denials, because the outbound denial is the reason the individual cannot go. In the same example, if, by chance, the passenger is able to compensate for the unavailable outbound trip by taking a taxi or getting a ride with a family member and is then able to accept the return trip, then one trip has been taken and only one denied. DOT states that this approach recognizes that a shortage of capacity at one time of day can have a ripple effect that impacts the true availability of passenger service at other times. DOT also points out that treating paratransit trips this way will enable all providers to count successes and failures of service provision in a consistent manner.

DREDF agrees with DOT’s approach, in order to reflect the reality that, from the perspective of people with disabilities, if an outbound trip is denied, the return, most likely, cannot be taken either, because paratransit riders are generally dependent on their transit agency to provide the outbound trip in most cases. It would also benefit consistency in record keeping to count each leg of the journey as a separate trip. It is DREDF’s understanding that this is how the industry calculates trips.

[i] 49 C.F.R. § 27.19.

[ii] Burkhart v. Washington Metropolitan Area Transit Authority (WMATA), 112 F.3d 1207 (D.C. Cir. 1997).

[iii] Melton v. Dallas Area Rapid Transit (DART), 391 F.3d 669 (5^th Cir. 2004).

[iv] A more complete discussion of the DOJ rule and its coverage of transit agencies can be found in The Current State of Transportation for People with Disabilities in the U.S., published by the National Council on Disability, June 13, 2005, and retrievable at http://www.ncd.gov/newsroom/publications/2005/current_state.htm#DOJ at the June 13, 2005 publication date (retrieved on April 12, 2006).

[v] “In resolving two complaints, FTA told transit agencies that based on the Department of Justice’s ADA Title II regulation, ‘if a paratransit rider wants a certain seating location because of a particular disability, the transit agency operating the vehicle may have to try to accommodate the request.’ One of the two was a rider in Orlando who requested the front seat due to claustrophobia; the other was a rider in Jacksonville, Florida who complained of significant back pain due to a very rough ride in a vehicle in such poor repair—with bad shock absorbers – that it caused the rider to need pain shots in her spine. FTA directed the transit agency to ask other passengers at the front location to change seats and stated, ‘We ask that in the future you apply the Department of Justice regulatory requirements in providing public transit.’” Transit Access Report, “FTA Advises Transit Agencies to Act on Riders’ Seat Choices,” Pace Publications, April 10, 2003.

Also, in resolving a complaint in December 2002, FTA told an ADA paratransit provider to modify its policy to allow a woman to ride in the front seat of the paratransit vehicle because she has claustrophobia. The transit system had refused to displace another passenger, but the FTA Office of Civil Rights stated that the DOJ regulation requires asking the front-seat passenger to move. In a separate letter to the same rider, FTA OCR cited the same DOJ regulation in response to a complaint over trip duration, though in this case, FTA OCR deemed that the transit agency had modified its policy to an adequate degree. Transit Access Report, “Justice Department Regulation Cited in a Letter From the FTA,” January 27, 2003.

[vi] Dennis Cannon, Senior Transportation/Facility Accessibility Specialist, U.S. Access Board, Washington D.C., personal communication, May 8, 2006.