March 25, 2016

Meinrad Tabengwa
Director
City of Gadsden Department of Transportation
1699 Chestnut Street
Gadsden, AL 35901-3875

Re: FTA Complaint No. 16-0093

Dear Mr. Tabengwa:

This letter is to notify you that the Federal Transit Administration (FTA) Office of Civil Rights has completed its investigation of the above-referenced Americans with Disabilities Act (ADA) filed against the City of Gadsden Department of Transportation (the City) and outlines the findings from our investigation and the corrective actions the City must take.

The FTA Office of Civil Rights is responsible for 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 deficiencies are identified, they are presented to the transit provider and assistance is offered to correct them within a predetermined timeframe. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, then formal enforcement proceedings may be initiated against the transit provider, which may result in the suspension or 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.

Allegations

In this case, the complainant, [name withheld], makes the following general allegations:

• She is blind and eligible for the City’s ADA complementary paratransit service, DART. However, the City told her that she “does not have the skills to ride alone” and is requiring her to be accompanied by a personal care attendant.

Analysis

As a part of our investigation, FTA sent an information request to the City. In our January 14, 2016 request, we highlighted the two provisions of the DOT ADA regulations that are relevant to the complainant’s allegations. First, 49 CFR §37.129(a) provides that, with few exceptions, “complementary paratransit service for ADA paratransit eligible persons shall be origin-to-destination service”; that is, it must get people from their origin to their destination. For some individuals, door-to-door assistance from the vehicle operator may be needed to use the service; for others, curb-to-curb service may suffice. Second, the regulations at 49 CFR §37.5(e) prohibit transit agencies from requiring that an individual with a disability be accompanied by an attendant, so long as the individual is capable of using the service independently or with the required assistance of the vehicle operator.

The City’s March 9 response, however, to a great extent confirmed the complainant’s allegations. The City stated, in part:

[The complainant] called the City’s paratransit service to inquire if she could have the driver assist her from the house to the bus because, “She really didn’t want an attendant all the time.” In response, the City’s representative told [the complainant] that she would need an attendant because the City provides curb-to-curb service. It is important to note that at no time did [the complainant] indicate a lack of service by an attendant. Rather, [the complainant] expressed desire to not bother her attendant at times for assistance to the curb. Importantly, [the complainant] did not state that her attendant was unavailable to assist her to the curb. Therefore, Mr. Payne’s response to [the complainant’s] inquiry was that she needed to continue to utilize the assistance of her attendant.

The City went on to explain that it does provide “further accommodations” to individuals who require service beyond the curb. In [the complainant’s] case, however, her accommodation was apparently denied because, according to the letter, she “did not convey to the City that she did not have, at times, the services of an attendant.”

The fact that the complainant may have access to her own attendant is irrelevant. The City is obligated to provide door-to-door assistance to paratransit-eligible riders consistent with the origin-to-destination requirement in 49 CFR §37.129(a). An agency cannot pass off its responsibilities to individual riders or those accompanying them. This situation would be analogous to an agency requiring a customer who uses a wheelchair to travel with an attendant to operate the bus lift or securement system; or requiring a blind customer to have his own attendant to announce stops on fixed route. The City’s actions not only violate the origin-to-destination requirement but also the basic nondiscrimination provision in 49 CFR §37.5(e) prohibiting an agency from requiring an individual with a disability to be accompanied by an attendant in order to use the service.

Conclusion

We find that the City violated the DOT ADA regulations in 49 CFR §§37.129(a) and 37.5(e) due to its failure to ensure the complainant has origin-to-destination service and its insistence that she use her own attendant to provide assistance beyond the curb. The City’s actions raise concerns specific to the complainant’s situation, but also larger concerns about the City’s origin-to-destination policy overall and whether it is similarly requiring other paratransit customers to use their own attendants to provide assistance that the City must provide. 

We therefore direct the City to promptly take the following actions:

1. Review and update accordingly the City’s origin-to-destination policy and procedures to ensure conformity with the DOT ADA regulations. We point you to 49 CFR §37.3 for the definition of origin-to-destination, 49 CFR §37.129(a) for the underlying requirement, and 49 CFR Part 37, Appendix E, for examples of the type of assistance required under origin-to-destination policies. You may also wish to review FTA’s ADA Circular for technical assistance, especially Sections 2.2.5, 2.10, and 8.3.The City’s revised policy provided to FTA lacks specificity as to how the City will determine whether door-to-door assistance will be provided to individuals. It also appears to require that riders give the City advance notice of the need for beyond-the-curb assistance, when in fact agencies must have procedures in place to assist riders who do not request assistance in advance. Riders may not know ahead of time what barriers exist at drop-off points. Moreover, the need for door-to-door assistance is often identified during the paratransit eligibility process and becomes part of the rider’s record.
2. Assess under what circumstances the complainant requires door-to-door assistance and then ensure vehicle operators provide the assistance consistent with the City’s policy and the regulatory requirements. We ask that you contact the complainant promptly to begin this process.
3. Review all paratransit customer records to identify whether any other riders have been directed to use their own attendants for services required to be performed by City personnel under the DOT ADA regulations. Take corrective action by removing the requirement for an attendant and notifying the affected rider.

As you know, FTA is conducting a Triennial Review of the City’s transit service in May 2016. As part of that regularly scheduled review, we will be doing an enhanced ADA paratransit review. Although the City must take the above-listed corrective actions, the City does not need to submit corrective action material to the Office of Civil Rights at this time. We will verify your implementation of the three actions above during the Triennial Review.

If you have any questions, I can be reached at (202) 366-0529 or via e-mail at dawn.sweet@dot.gov. Please include the FTA complaint number in any correspondence regarding this complaint. Thank you for your assistance.

Sincerely,

Dawn Sweet
Program Manager,
Complaints and Communications
Office of Civil Rights

cc:  
Complainant
FTA Region 4
U.S. Department of Justice