Americans with Disabilities Act and Demand Response Public Transportation

1
Americans with Disabilities Act and Demand
Response Public Transportation

• Presented by
• Robbie L. Sarles, President
• RLS Associates, Inc.
• December 3, 2009

2
If you have questions during the presentation,

• please email them to
• kim.white_at_dot.state.oh.us

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ADA Overview

• Definitions, ADA Amendment Acts, Public Transit
  Definitions

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THE AMERICANS WITH DISABILITIES ACT OF 1990

• Goal

• To assure that persons with disabilities have
  equal opportunity, a chance to full participate
  in society, are able to live independently, and
  can be economically self-sufficient.

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Impact of ADA

• Established a clear national goal
• Defines a specific and detailed course of action
• Requires much greater degree of affirmative
  action
• Provides accessibility standards for vehicles and
  facilities
• Elevates the importance of access and
  nondiscrimination
• Interrelated with Section 504
• Entities cannot discriminate against persons
  with disabilities as a condition of Federal
  funding

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Range of Issues

• Employment
• Provision of services
• Access to facilities and places of public
  accommodation
• Access to the nations telecommunication systems

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Accessibility Means

• Physical access to vehicles and buildings
• Proper training of personnel
• Proper maintenance of equipment
• Operating policies and procedures
• Public information and communication accessible

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Implementation Regulations

• Law sets goals, defines general types of
  discrimination, and creates a framework for
  addressing discrimination
• Implementing agency provides specific
  definitions, interpretations, and requirements in
  regulations
• Open to interpretation

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Five (5) Primary Provisions

• Title I Employment
• Title II Public Services (Transportation)
• Title III Public Accommodations and Services
  Operated by Private Entities
• Title IV Telecommunications
• Title V Miscellaneous Provisions

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Implementing Agencies

• Title I - employment
• Equal Employment Opportunity Commission
• Title II and Title III - public services and
  public accommodations excluding transportation
• Department of Justice
• Title II and Title III - public and private
  transportation
• Department of Transportation
• Title IV - telecommunications
• Federal Communications Commission

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Title II of the ADA

• Services and benefits provided by public entities
  must be offered in a way that does not
  discriminate against persons with disabilities
• Implementing Federal agencies define
• What constitutes discrimination
• What actions are required to ensure services are
  non-discriminatory

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Title II of the ADA

• Subtitle A - applies to all service provided by
  public entities except transportation
• Implementing agency is the USDOJ
• 49 CFR Part 35
• Reasonable modification
• ?

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Title II of the ADA

• Subtitle B - applies to transportation services
  provided by public entities
• Implementing agency is the USDOT
• 49 CFR Parts 27, 37, and 38

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USDOT Transportation Regulations

• Facility access
• Accessibility of vehicles
• Complementary paratransit services for
  fixed-route provider
• Operating policies and procedures

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ADA Provisions Apply to a Rangeof Covered
Entities, Including

• Government Agencies
• Public Entities
• Private, For-Profit Corporations
• Private, Non-Profit Organizations

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ADA Definitions Disability

• A Physical or Mental Impairment That
  Substantially Limits One or More Major Life
  Activities of Such Individual
• A Record Of Such An Impairment
• Being Regarded as Having Such An Impairment

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ADA DefinitionsPhysical or Mental Impairment

• Any Physiological Disorder or Condition, Cosmetic
  Disfigurement, or Anatomical Loss Affecting One
  or More of the Following Body Systems
• Neurological, Musculoskeletal, Special Sense
  Organs, Respiratory Including Speech Organs,
  Cardiovascular, Reproductive, Digestive,
  Genito-Urinary, Hemic and Lymphatic, Skin, and
  Endocrine
• Any Mental Or Psychological Disorder, Such As
  Mental Retardation, Organic Brain Syndrome,
  Emotional or Mental Illness, and Specific
  Learning Disabilities

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ADA DefinitionsPhysical or Mental Impairment

• The Term Physical Or Mental Impairment Includes,
  But Is Not Limited To, Such Contagious Or
  Non-Contagious Diseases and Conditions As
• Orthopedic, Visual, Speech, and Hearing
  Impairments Cerebral Palsy, Epilepsy, Muscular
  Dystrophy, Multiple Sclerosis, Cancer, Heart
  Disease, Diabetes, Mental Retardation, Emotional
  Illness, Specific Learning Disabilities, HIV
  Disease, Tuberculosis, Drug Addiction and
  Alcoholism
• The Phrase Physical or Mental Impairment Does Not
  Include Homosexuality or Bisexuality

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ADA DefinitionsMajor Life Activities

• Functions Such As Caring For One's Self,
  Performing Manual Tasks, Walking, Seeing,
  Hearing, Speaking, Breathing, Learning, and Work

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ADA DefinitionsA Record of Such An Impairment

• Has A History of, or Has Been Misclassified as
  Having, a Mental or Physical Impairment That
  Substantially Limits One or More Major Life
  Activities

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ADA DefinitionsRegarded as Having Such
Impairment

• Has a Physical or Mental Impairment That Does Not
  Substantially Limit Major Life Activities, But
  Which Is Treated By a Public or Private Entity as
  Constituting Such a Limitation
• Has A Physical or Mental Impairment That
  Substantially Limits a Major Life Activity Only
  as a Result of the Attitudes of Others Toward
  Such an Impairment
• Is Treated By a Public or Private Entity as
  Having Such an Impairment

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ADA Amendments Act of 2008

• Major Changes Made to Definition as a Result of
  the ADA Amendments Act of 2008 (ADAAA)
• Law Designed to Clarify Narrow Interpretations
  Taken by the Courts on the Definition of
  Disability
• Signed Into Law on September 25, 2008

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ADA Amendments Act of 2008

• No More Demanding Standards in the Performance
  of Major Life Activities
• Redefines Substantial Limits Language
• Expands the List of Major Life Activities
• Major Changes to the Regarded As Element

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ADA Amendments Act of 2008

• Change Basis of Court Interpretation of
  Performing Major Life Activities
• Supreme Court Decisions had Defined Disability
  as An Impairment that Prevents or Severely
  Restricts an Individual From Performing Major
  Life Activities
• Congress Sought to Expand, but Did Not Legislate
  Left to EEOC

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ADA Amendments Act of 2008

• ADAAA Expressly Rejects the Courts Notion that a
  Disability Can be Mitigated and Thus Not Subject
  to ADA Coverage
• Various Court Decisions Were Making it Difficult
  for Individuals to Seek Judicial Remedy
• Amendment Now States Determination is Made
  Without Regard to the Ameliorative Effects of
  Mitigating Measures

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ADA DefinitionsMode of Transportation Service

• Fixed Route Service
• "...System of Transporting Individuals...On Which
  a Vehicles Operating Along a Prescribed Route
  According to a Fixed Schedule"
• Demand Response Service
• "...System of Transporting Individuals...Which is
  Not a Fixed Route System"

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Acquisition of Accessible Vehicles
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Applicability

• Guidance for Coverage Issued by USDOT
• Enforcement Split Between USDOT (Public) and
  USDOJ (Private)
• Concept of "Equivalency" Used in Many Procurements

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Requirements

• Public Entities Demand ResponsePurchase or
  Lease of New Vehicles
• Public Entities Must Acquire Accessible Vehicles
  for Solicitations Made after August 25, 1990
• Unless, the System, When Viewed in its Entirety,
  Provides a Level of Service To Individuals With
  Disabilities, Including Individuals Who Use
  Wheelchairs, Equivalent To The Level Of Service
  It Provides To Individuals Without Disabilities

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Equivalent Services

• Services must be provided in the most integrated
  setting possible
• Response time
• Trip request procedures and timelines must be the
  same
• Same access to the services

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Fares

• Cannot charge more for accommodating
  accessibility aids
• Fare distinctions that do not adversely impact
  persons with disabilities are permissible as long
  as they are then available to riders with and
  without disabilities

32
Service Area

• Geographic service area throughout which
  transportation is provided must be the same
• If a contracted service is based on its own
  defined service area, all clients must have the
  same access to the defined service area

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Hours and Days of Service

• Accessible service must be offered during the
  same days and hours as the remainder of the
  transportation services

34
Trip Purpose Restrictions or Priorities

• Trip priorities or restrictions must apply
  equally to all

35
Access to Information

• Information on how to register for and obtain
  services must be available in alternative
  accessible formats
• Document describing the program should be
  provided in accessible formats upon request
• TTY/TDD or relay

36
Capacity Constraints

• Trips must be provided on the same basis
• Measures of capacity constraint
• Trip denials
• Excessively long trip time
• Excessively long wait time
• Missed trips

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Nondiscrimination Provisions

• General Provisions

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Nondiscrimination on Basis of Disability

• Discrimination Prohibited
• Covered Entities Shall Not Deny Service to Those
  Who Can Use System
• Covered Entities Cannot Require Person to Use
  Designated Priority Seats
• Covered Entities Cannot Impose Special Charges

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Nondiscrimination on Basis of Disability

• Discrimination Prohibited (Cont.)
• Covered Entities Cannot Require an Attendant
• Cannot Refuse Service Due to Insurance Coverage
  or Limitations

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Nondiscrimination on Basis of Disability

• Discrimination Prohibited (Cont.)
• Can Refuse Service to Persons that Exhibit
• Violent Behavior
• Seriously Disruptive Behavior
• Illegal Conduct

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General Service Provisions
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Maintenance of Accessible Features

• All Entities Must Maintain in Operative Condition
  Those Features of Facilities and Vehicles That
  Are Required to Make the Vehicles and Facilities
  Readily Accessible To and Usable By Individuals
  With Disabilities

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Maintenance of Accessible Features

• Accessibility Features Shall Be Repaired Promptly
  If They Are Damaged or Out of Order
• When an Accessibility Feature is Out of Order,
  the Entity Shall Take Reasonable Steps to
  Accommodate Individuals With Disabilities

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Additional Requirements Public Entities

• The Entity Shall Establish a System of Regular
  and Frequent Maintenance Checks of Lifts
  Sufficient to Determine If They are Operative
• When a Lift Is Discovered to be Inoperative, The
  Entity Must Take the Vehicle Out of Service
  Before the Beginning of the Vehicle's Next
  Service Day

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Additional Requirements Public Entities

• Vehicle With Inoperable Lifts and No Spare (e.g.,
  Removal of Vehicle Would Reduce Service)
• Urbanized Areas
• Vehicle May Operate No More Than Three (3) Days
• Nonurbanized Areas
• Vehicle May Operate No More Than Five (5) Days

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Lift and Securement Use

• All Common Wheelchairs Must be Transported
• 30 x 48 When Measured 2 Off the Ground
• Combined Weight of Chair and Passenger is 600
  lbs. or Less
• Should accommodate larger wheelchair if capable

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Lift and Securement Use

• Must Use The Securement System To Secure
  Wheelchairs
• May Require That an Individual Permit His or Her
  Wheelchair to be Secured
• May Not Deny Transportation on the Grounds That
  the Device Cannot be Secured or Restrained
  Satisfactorily by the Vehicle's Securement System

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Lift and Securement Use

• Transit System May Recommend to a User of a
  Wheelchair That the Individual Transfer to a
  Vehicle Seat, But Cannot Require the Passenger to
  Transfer
• Where Necessary or Upon Request, Transit System
  Operators Must Assist the Passenger with the
  Securement of the Wheelchair

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Lift and Securement Use

• Must Permit Individuals With Disabilities Who Do
  Not Use Wheelchairs, Including Standees, to Use a
  Vehicle's Lift or Ramp to Enter the Vehicle
• May Request, But Cannot Require, that the
  Passenger Restraint System Be Used, Unless the
  Authority Has a Policy that All Passengers Must
  be Similarly Secured

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Personal Care Attendants

• A Personal Care Attendant (PCA) Must Always be
  Allowed to Ride With an Eligible Individual
• A PCA is Someone Specifically Designated or
  Employed by the Disabled Person and is Required
  by the Person in Order to Complete the Trip OR
  the Trip Purpose
• The Entity May Not Charge a Fare for a PCA

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Service Animals

• The Entity Must Permit Service Animals to
  Accompany Individuals With Disabilities in
  Vehicles And Facilities

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Service Animals

• Riders must be permitted to travel with service
  animals that are trained to assist them
• May ask if pet
• May ask what services the animal has been trained
  to perform
• May not ask about disability
• May not ask for proof of certification or other
  documentation

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Required Use of a Vehicles Accessibility Features

• The Entity Must Ensure That Vehicle Operators And
  Other Personnel Make Use Of Accessibility-Related
  Equipment or Features Required by 49 CFR part 38

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Provision of Adequate Information on Services

• The Entity Must Make Available Adequate
  Information Concerning Transportation Services to
  Persons with Disabilities
• This Obligation Includes Making Adequate
  Communications Capacity Available, Through
  Accessible Formats And Technology, to Enable
  Users to Obtain Information and Schedule Service

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Provision of Adequate Information on Services

• Access to information - all print materials must
  be available in accessible formats
• Accessible material must be available upon
  request and in a form that the person can use
• Access to communication - provide access to
  information provided by telephone (TTY/TDD/Relay
  services)
• Public hearing must be held in accessible
  location

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Provision of Adequate Information on Services

• Employee training - personnel must be trained to
  proficiency, as appropriate to their duties, so
  that they may operate vehicles and equipment
  safely and properly and treat individuals with
  disabilities in a respectful and courteous way

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Requirement to Deploy Lifts

• The Entity Must Not Refuse to Permit a Passenger
  Who Uses a Lift to Disembark From a Vehicle At
  Any Designated Stop, Unless
• The Lift Cannot Be Deployed
• The Lift Will Be Damaged If It Is Deployed
• Temporary Conditions at the Stop, Not Under the
  Control of the Entity, Preclude the Safe Use of
  the Stop By All Passengers

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Portable Oxygen

• The Entity Must Not Prohibit an Individual With a
  Disability From Traveling With a Respirator or
  Portable Oxygen Supply (Consistent With DOT Rules
  On The Transportation Of Hazardous Materials)

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Adequate Time to Board and Disembark

• The Entity Must Ensure That Adequate Time Is
  Provided to Allow Individuals With Disabilities
  to Complete Boarding or Disembarking From the
  Vehicle

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Training Requirements

• The Entity Must Ensure That Personnel Are Trained
  to Proficiency, as Appropriate to Their Duties,
  So That They Operate Vehicles and Equipment
  Safely and Properly Assist and Treat Individuals
  With Disabilities Who Use the Service in a
  Respectful and Courteous Way

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Current Issues
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Current Issues

• Disability Law Guidance
• FTA Bulletins
• NPRM 49 CFR part 37
• Draft Revisions to 49 CFR part 38

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Disability Law Guidance

• A Consultative Process Conducted in Cooperation
  with DOJ That Represents Official View of USDOT
• Four Issues
• Origin-to-Destination Service
• Paratransit Requirements for Nonprofit Section
  5311 Funded Systems Operating Fixed Route
  Services
• Use of Segways on Public Transit
• Full-Length, Level-Boarding Platforms in New
  Commuter and Intercity Rail Stations

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Disability Law Guidance

• Origin-to-Destination Service
• Many in Industry Believe that Only Curb-to-Curb
  Service Required
• Regulation, However, Refers to Origin-to-Destinati
  on Service

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Disability Law Guidance

• Origin-to-Destination Service
• Where the Local Planning Process Establishes
  Curb-to-Curb Service as the Basic Paratransit
  Service Mode, Provision Should Still Be Made to
  Ensure That the Service Available To Each
  Passenger Actually Gets The Passenger From His or
  Her Point of Origin to His or Her Destination
  Point
• To Meet This Origin To Destination Requirement,
  Service May Need to Be Provided to Some
  Individuals, or at Some Locations, in a Way That
  Goes Beyond Curb-to-Curb Service

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Disability Law Guidance

• Section 5311 Funded Nonprofits Operating Fixed
  Route Service
• FTA Views States as Primary Grantee
• If A State Provides 5311 Funding To A Private
  Entity Via A Contract or Grant, Which Then
  Provides Fixed Route Service, Eligible
  Passengers Must Have ADA Complementary
  Paratransit Service Available

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Disability Law Guidance

• Segways as a Mobility Device on Public Transit
• The Departments ADA RULE (49 CFR part 37.3)
  Defines a Wheelchair As a Mobility Aid
  Belonging to Any Class of Three or Four-wheeled
  Vehicles, Designed for and Used By Individuals
  With Mobility Impairments
• By Definition, a Segway, a Two-Wheeled Device, is
  Excluded

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Disability Law Guidance

• Segways as a Mobility Device on Public Transit
• 49 CFR Part 37.165(g) Requires Transit Providers
  to Permit Individuals With Disabilities Who Do
  Not Use Wheelchairs to Use a Vehicles Lift or
  Ramp to Enter the Vehicle
• Individuals Who Do Not Use Wheelchairs Commonly
  Use the Lift Together With Their Non-Wheelchair
  Mobility Devices, Such as Canes, Crutches or
  Walkers
• An Individual With a Disability Who Uses a Segway
  As a Mobility Device Must Be Permitted to Use The
  Lift

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Disability Law Guidance

• Segways as a Mobility Device on Public Transit
• Transportation Provider Is Not Required To Permit
  Anyone, Including a Person With a Disability, to
  Bring A Device Onto A Vehicle That Is Too Big Or
  That is Determined to Pose a Direct Threat to the
  Safety of Others
• In Summary, if the System Determines that a
  Segway Could Pose a Threat, Transport is Not
  Required

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FTA Bulletins

• Premium Charges for Paratransit
• Q As On Mobility Devices

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FTA Bulletins

• Q As On Mobility Devices
• This Bulletin Merely Re-Affirms Questions Already
  Address in the Rule (49 CFR part 37)

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Significant Issues

• Origin-to-Destination Service
• Most Systems Doing Only Curb-to-Curb Service
  Based on Language in Appendix D
• The Local Planning Process Should Decide
  Whether, or in What Circumstances, This Service
  is to Be Provided As Door-to-Door or
  Curb-to-Curb Service
• Disability Law Guidance Changed This
  Interpretation Based on Other Language in the
  Preamble

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Significant Issues

• NPRM
• Key Issues
• DOT Proposing That Public Entities, Even Those
  Subject to the Provision of Complementary
  Paratransit, Must Also Make Reasonable
  Modifications to Their Policies and Practices to
  Ensure Program Accessibility
• Rule Designed to Counteract a Court Decision
  Rendered in Melton v. DART

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Significant Issues

• NPRM
• Other Areas Where USDOT Requested Comments
• Acquisition of Used Vehicles by Public Entities
  Operating Demand Response Service
• Potential Inclusion/Expansion of Definition of a
  Common Wheelchair to Incorporate Newer Models

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Significant Issues

• NPRM
• Other Areas Where USDOT Requested Comments
• How to Count Missed or Denied Trips in Measuring
  Compliance in Complementary Paratransit With the
  Capacity Constraint Criterion

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Significant Issues

• ATBCB Draft Revisions to 49 CFR part 38
• The Architectural and Transportation Barriers
  Compliance Board (ATBCB) Has Prepared Draft
  Revisions to the Americans with Disabilities Act
  (ADA) Accessibility Guidelines for Transportation
  Vehicles
• The Guidelines Cover Buses, Vans, and Similar
  Vehicles

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For Further Information

• RLS Associates, Inc.
• 3131 S. Dixie Highway, Suite 545
• Dayton, OH 45439
• [phone]
• rsarles_at_rlsandassoc.com