April 20, 2012
Re: FTA Complaint Number 12-0054
Dear [name withheld]:
This letter responds to your complaint against Broward County Transit (BCT) alleging discrimination based on disability. The Federal Transit Administration (FTA) Office of Civil Rights is responsible for civil rights compliance and monitoring, which includes ensuring that providers of public transportation are in compliance with the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973, and the U.S. Department of Transportation’s (DOT) implementing regulations at 49 CFR Parts 27, 37, 38, and 39.
In the FTA complaint investigation process, we analyze allegations for possible ADA deficiencies by the transit provider. If FTA identifies what may be a violation, we first attempt to provide technical assistance to assist the public transit provider in complying with the ADA. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transit provider which may result in the termination of federal funds. FTA also may refer the matter to the U.S. Department of Justice for enforcement.
Each response is developed based on the specific facts and circumstances at issue. A determination resulting from a review of these facts is not intended to express an opinion as to the overall ADA compliance of that transit provider.
In your complaint, you alleged that BCT’s paratransit eligibility process imposes an unreasonable administrative burden on applicants in violation of the DOT ADA regulations. Specifically you stated that BRT is requesting hundreds of pages of documentation to support your application for paratransit services.
Relevant ADA Requirements
Under 49 CFR §37.125 of the DOT ADA regulations, each public entity that is required to provide complementary paratransit service must establish a process for determining ADA paratransit eligibility. The process must strictly limit ADA paratransit eligibility to individuals specified in §37.123. As explained in Appendix D to 49 CFR §37.125, “the [eligibility determination] process may not impose unreasonable administrative?burdens on applicants, and since it is part of the entity’s nondiscrimination obligations, may not involve ‘user fees’ or application fees to the applicant.” While it is important for transit agencies like BCT to be accurate and comprehensive when making eligibility determinations, the process must not be overly burdensome for applicants.
As Appendix D further states:
The [eligibility determination] process may include functional criteria related to the substantive eligibility criteria of §37.123 and, where appropriate, functional evaluation or testing of applicants. The substantive eligibility process is not aimed at making a medical or diagnostic determination. While evaluation by a physician (or professionals in rehabilitation or other relevant fields) may be used as part of the process, a diagnosis of a disability is not dispositive. What is needed is a determination of whether, as a practical matter, the individual can use fixed route transit in his or her own circumstances. That is a transportation decision primarily, not a medical decision.
The goal of the paratransit application process is to ensure that only people who meet the regulatory criteria, strictly applied, are regarded as ADA paratransit eligible. DOT recognizes that transit entities may wish to provide other service to other persons, which is not prohibited by the rule, but the eligibility process should clearly distinguish those persons who are provided service on other grounds from those who are ADA eligible.
The FTA Office of Civil Rights investigated your complaint after it was filed. The investigation included an information request to BCT. FTA received a response from BCT that described its paratransit eligibility process as one that includes a paper application form, an in-person functional assessment if needed, additional questions of the applicant, and possible independent investigation, as appropriate.
According to BCT, its records show that your application is still in an incomplete status. The information we have received from you and from BCT indicates that you filled out a complete application form and scheduled and attended the personal functional assessment evaluation on August 23, 2011. After your assessment, BCT stated that it was unclear as to your level of function, in part because it observed you drive yourself to the evaluation. BCT went on to state that it reviewed all of the available information in your application and observations at your assessment and confirmed you are an individual with a disability, but indicated that you possessed a number of skill sets that would make independent use of the fixed route bus system, either under all conditions or some conditions, a very real possibility for you. Therefore, in order to obtain clarification, a Notice of Incomplete Application Status and a “lifestyle questionnaire” were sent to you on August 26, 2011.
During this investigation, FTA obtained a copy of BCT’s questionnaire that was sent to you. A review of the questionnaire indicates that a significant amount of information is requested by BCT, which does impose an unreasonable administrative burden on applicants for complementary paratransit service. A sample of some of the requested items in the questionnaire includes:
- Complete medical records for up to 3 most recent years from all treating health care providers and facilities. These records need to include your diagnosis, treatment plan, prognosis, and copies of your complete medical chart/notes.
- Psychological/Psychiatric records, including psych therapy and hospitalizations
- Therapy (including, but not limited to Physical, Occupational and/or Speech)
- All Dr. and specialist records, including Cardiologist, Neurologist, Orthopedic, Oncologist, Respiratory, Surgical, etc.
- Medication history printout provided by your pharmacy
- Physiological reports documenting IQ and other information regarding cognitive functionality from all sources, such as schools, Vocational Rehab, and other similar sources
- All school records from all public/private schools attended or applied to, including, but not limited to ARC-Broward and FAU.
- Complete Case/Social Worker or Agency file
- If you have received Worker’s Compensation within the last 5 years, provide your W/C file
- Other. All your records from Henderson Mental Health.
- Other. All your records from the assessment of your ability to do work related activity and physical capacities Evaluation from your doctor dated 07/19/10.
- Other. Explain your transportation arrangements to/from FAU, any employment and testing.
BCT requests the applicant for ADA paratransit service provide all of the requested information within 30 days.
A review of BCT’s paratransit eligibility process indicates that much of the information requested is similar to that required for the for the Transportation Disadvantaged (TD) program, a separate, statewide program overseen by the Florida Commission for the Transportation Disadvantaged (FCTD). Many of the additional items requested on the Notice of Incomplete Application Status impose unreasonable administrative burdens on applicants for ADA complementary paratransit, such as yourself, and are irrelevant to determining whether an applicant meets the eligibility standards outlined in the DOT ADA regulations in §37.123. The only medical information that is needed by BCT in order to determine eligibility for ADA paratransit is that necessary to determine whether a specific impairment-related condition prevents the individual from independently boarding, riding, or disembarking from the regular, accessible fixed-route transit system, including traveling to a boarding location or from a disembarking location.
In addition, the potential cost associated with obtaining copies of three years’ worth of complete medical records from various health providers is potentially burdensome, because it may result in fees to the applicant for ADA complementary paratransit service. Furthermore, BCT’s observation that an applicant for paratransit service may be able to drive him- or herself to the functional assessment is not dispositive of whether or not that individual qualifies for ADA paratransit under §37.123 of the DOT ADA regulations.
Although BCT believes that the supporting documentation it requests is not unreasonably burdensome, the available evidence indicates otherwise. FTA has concluded that the requested information as a part of the ADA paratransit eligibility process violates §§37.123–37.125 of the DOT ADA regulations and likely prevents and/or discourages otherwise eligible persons from obtaining service. BCT must take corrective action to comply with the ADA. BCT will receive a separate letter from FTA concerning this issue.
This concludes our investigation of the issues raised in your complaint. While FTA’s decision in your case is administratively final, it does not prevent you from pursuing this matter privately in the appropriate court. If you have any questions regarding our determination, please contact me or Hyacinth Clarke at (202) 366-7142 or via e-mail at firstname.lastname@example.org. Any further correspondence should reference FTA Complaint No. 12-0054. Thank you for bringing your concerns to our attention, and we trust the above information is helpful.
John R. Day
ADA Team Leader
Office of Civil Rights
FTA Region 4
Letter to Transit Provider
April 20, 2012
Re: FTA Complaint No. 12-0054
Dear Mr. Roth:
Enclosed is a copy of the Federal Transit Administration (FTA) Office of Civil Rights’ disposition of a complaint filed against the Broward County Transit (BCT) alleging a violation of the Americans with Disabilities Act of 1990 (ADA). The complainant raised allegations pertaining to BCT’s paratransit eligibility application process.
We appreciate the thoroughness and promptness of your response to our information request during our investigation. As explained in the disposition letter, we have concerns that BCT’s paratransit eligibility process is not appropriately focused on the required eligibility standards and is unreasonably burdensome to applicants in violation of 49 CFR §§37.123–37.125 of the U.S. Department of Transportation (DOT) ADA regulations. Many of the questions and documents sought by BCT are not needed to determine if an applicant meets the requirements for eligibility for complementary paratransit under these regulations. Furthermore, many potential BCT paratransit customers may be subjected to various copying fees in order to obtain copies of three years of documentation from treating health care providers and facilities, as requested in the Notice of Incomplete Application Status letter and lifestyle questionnaire, which would represent a prohibited fee for application for paratransit service.
In addition to the current complaint, FTA’s Office of Civil Rights has been contacted by two other individuals regarding BCT’s paratransit eligibility process. FTA did not have permission to release those individuals’ identity and we were unable to move forward. However, through this investigation, as well as a review of the other individuals’ correspondence regarding this issue, FTA has concluded that the majority of the information requested by BCT is irrelevant to the paratransit eligibility process. The evidence provided indicates that BCT has not clearly distinguished persons who seek paratransit services operated as required under DOT ADA regulations with those seeking other transportation services it provides on other grounds, such as the Transportation Disadvantaged (TD) program.
In order to ensure that BCT’s process does not prevent otherwise eligible individuals from obtaining complementary paratransit as required under DOT ADA regulations, BCT must revise its paratransit application eligibility process so that it does not impose an unreasonable administrative burden on applicants by requesting extraneous information. BCT may find it helpful to separate the eligibility application processes for the TD program and the ADA paratransit system, something we highly recommend.
In conclusion, BCT must provide FTA with a status update on its progress in revising its application process, along with any other relevant information, to my attention within 30 days of the date of this letter. Include such documents as copies of any application material and revised policies. For items in progress, please describe their status and estimated timeline for completion. With your response, please also include a description of actions taken to reevaluate the complainant’s application for paratransit eligibility in light of the DOT ADA regulatory requirements.
We thank you for your help in resolving this complaint and for your continued assistance. If you have any questions, please contact me or Hyacinth Clarke at (202) 366-7142 or via e-mail at email@example.com. Further correspondence should reference FTA Complaint No. 12-0054.
John R. Day
ADA Team Leader
Office of Civil Rights
cc: FTA Region 4