December 30, 2010
Re: FTA Complaint Number 11-0004
Dear [name withheld]:
This letter responds to your complaint against Grays Harbor Transit (GHT) filed on behalf of your client, [name withheld]. 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 Department of Transportation’s (DOT) implementing regulations at 49 CFR Parts 27, 37, and 38.
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.
Specifically, your complaint alleges the following:
On August 30, 2010, a GHT paratransit operator asked [name withheld] to transfer from her mobility scooter, an Amigo MC model, into a vehicle seat. You informed the operator that your client was unable to transfer. The operator then stated that her mobility device could not be secured—despite the fact that she appeared to have two securement straps—and contended that “three-wheeled scooters were illegal to transport.” When you resisted leaving the vehicle, the operator threatened to call the police and ultimately contacted a supervisor, who requested that you de-board, which you did. You called GHT on your cell phone to explain the situation. This GHT representative also stated that it was “illegal” to transport scooters and explained that the operator did not have enough securement straps on the vehicle.
After much discussion, GHT agreed to transport you on the 7:20 p.m. bus, resulting in a two-hour wait. While the second operator transported your client, she did not secure the scooter “correctly,” which “allowed movement” of the device. When you tried to aid her, the operator responded to the effect that “you shouldn’t tell her how to do her job.”
FTA investigated your allegations and sent an information request to GHT. We received a response from GHT that addressed your allegations and provided relevant information. Your allegations are addressed in detail below.
Relevant ADA Requirements
The DOT ADA regulations in 49 CFR §37.165(b) require transit agencies to transport all “common wheelchairs” in their vehicles. Section 37.3 defines a “common wheelchair” as a three or four-wheeled mobility device that does not exceed 30 inches in width and 48 inches in length measured two inches above the ground, and does not weigh more than 600 pounds when occupied. If an electric scooter or other mobility device meets the physical specifications of a common wheelchair as defined by the DOT’s ADA regulations, it must be treated as a common wheelchair and transported.
Section 38.23(d) requires all ADA-compliant vehicles to have a two-part securement system, one to secure the common wheelchair, and a seatbelt and shoulder harness for the wheelchair user. The securement system should limit the movement of an occupied wheelchair to no more than 2 inches in any direction under normal vehicle operating conditions.
While a transit agency may adopt a mandatory securement policy, it cannot deny transportation to a wheelchair or its user on the grounds that the device cannot be secured or restrained satisfactorily by the vehicle’s securement system (§37.165(d)). Transit personnel are to use their best efforts to secure any mobility device that meets the regulatory definition of a common wheelchair. In addition, under §37.173 transportation providers are required to train all employees to proficiency as appropriate under the ADA. This includes training personnel to use the accessibility equipment and to accommodate the different types of common wheelchairs.
Finally, §37.165(e) allows transit personnel to recommend that a wheelchair user transfer to a vehicle seat. Such a move is the rider’s decision and the transit operator cannot force a rider to transfer to a vehicle seat, although the transit operator may suggest a transfer in a non-coercive way.
In response to FTA’s information request, GHT provided a copy of the letter it sent you regarding the incident, along with documentation such as its securement policy, operator training materials related to securement, individual operator training records, and memos/newsletters to operators and other personnel regarding the transport of wheelchairs and securement.
As you mentioned to the FTA investigator, GHT’s Operation Manager sent you a letter of apology on September 29, 2010, and largely agrees with your characterization of what occurred on August 30. In its letter, which GHT provided to FTA, GHT acknowledges that the first operator and the supervisor you spoke with were under the false impression that GHT did not transport passengers while sitting in their three-wheeled scooters. This operator also reported that she did not have the required number of securement straps on board the vehicle. The second operator you encountered that day, according to the letter, said that she secured [name withheld]’s scooter in a manner consistent with the type of vehicle being used, which may have differed from vehicles [name withheld] traveled on in the past. She denied making the statement about not being told how to do her job.
GHT has taken several steps to help ensure incidents like the one you and [name withheld] experienced do not reoccur. As mentioned in its September 29 letter to you, GHT followed-up with the personnel involved in the incident and initiated a reeducation campaign. GHT committed to adding relevant material to its refresher and retraining classes, along with placing information in an upcoming newsletter to operators, which the Operation Manger issues periodically. On October 5, the Operation Manager sent a memo to all operators and supervisors regarding your complaint to clarify its existing policy. The memo, which GHT provided to FTA, states in part:
We do transport scooters! You may ask the customer if they would like to transfer to another seat but they are not required, by law, to transfer. You can’t refuse a scooter because of tie-down problems. You have to transport and do the best you can to secure the scooter.
The record shows that GHT has a securement program in place, but clearly a breakdown occurred on August 30 that resulted in a violation of the DOT ADA regulations. The first operator should have transported [name withheld] despite the fact that she could not transfer from the scooter and that the operator believed she could not sufficiently secure the device with the straps on board the vehicle. Alternatively, if some of the securement straps were missing from the vehicle and [name withheld] wanted a four-point securement, GHT should have promptly dispatched another vehicle with a working securement system to transport her. The record is inconclusive as to whether the second operator failed to follow ADA requirements.
GHT recognizes the breakdown on the first leg of your trip and has taken steps to help ensure that personnel are aware of the requirement to transport common wheelchairs and prevent similar incidents from reoccurring. We find that GHT has been responsive to your concerns and are therefore closing the complaint as of the date of this letter. If you have any questions, please contact me or Dawn Sweet of my staff at (202) 366-4018 or via e-mail at email@example.com. Any further correspondence should reference FTA Complaint No. 11-0004. Thank you for bringing this matter to our attention.
John R. Day
Acting ADA Team Leader
Office of Civil Rights
FTA Region 10