March 23, 2009
Re: FTA Complaint Number 08-0340
Dear [name withheld]:
This letter responds to your complaint against Jacksonville Transportation Authority (JTA) alleging discrimination on the basis of 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 comply with Title II of 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 of August 19, 2008 alleged that:
You were inappropriately denied eligibility for JTA’s ADA complementary paratransit service.
We apologize for the delay in our response. FTA investigated your allegations and sent an information request to JTA. We received a response from JTA that addressed your complaint and provided relevant information. Your allegations and JTA’s response will be addressed in detail below.
DOT’s ADA regulations at 49 CFR§37.125 require each public entity to establish a process for ADA paratransit eligibility. Appendix D to §37.125 further explains the nature of this process:
“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.”
DOT’s ADA regulations at 49 CFR §37.125(d) state that if a person is found to be ineligible for paratransit service, a transit entity must provide written notification of this determination. This notification must state the reasons for the finding of ineligibility. As noted in Appendix D to §37.125, simply indicating that a person is not ADA paratransit eligible because it has been determined that they "are able to use the fixed route system" is not sufficient.
FTA believes that the process of determining complementary paratransit eligibility is a local one. However, after reviewing JTA’s eligibility process, as well as JTA’s letter of notification indicating that you were ineligible for ADA paratransit service, FTA finds that JTA did not appropriately handle several stages of your application for paratransit eligibility.
JTA’s letter to you of July 15, 2008 stated that you were ineligible for paratransit service. The reason stated in this letter was as follows: “The professional documentation presented by your physician does not indicate that your capabilities prevent you from using the fixed route.” Your written determination did not focus on your functional ability to use fixed route service, but rather on the documentation provided by your physician. As noted above, a letter of notification must present a detailed explanation of why an individual in deemed ineligible; the eligibility determination process should focus on your functional ability to use fixed route service; a diagnosis made by a physician or other professional is not dispositive. FTA finds that JTA’s notification letter to you did not present sufficient detail or reasoning for its finding of ineligibility.
Furthermore, in reviewing the records from your eligibility determination, we are concerned that JTA failed to focus on the issue of functional ability when conducting its eligibility assessment. In the paratransit eligibility application which you submitted to JTA, you noted that the bus stop nearest your home is located at a distance of .7 miles from your home. During your eligibility determination appeal, Ms. Janell Damato, Eligibility Intake Lead and Facilitator of Appeals Hearing, noted that your eligibility assessment determined that you could walk up to ¾ of a mile. This is consistent with the notation made on your Physical Functional Abilities Assessment Form by Ms. Kimberly Shealy, the Assessor who conducted your eligibility assessment. However, according to Ms. Shealy’s notation, this determination was made based on a distance/endurance assessment in which you were asked to travel ¼ of a mile. According to Ms. Shealy’s notation, during this ¼ mile assessment, you took three to four standing rest breaks and one sitting rest break. You experienced shortness of breath, fatigue, pain in your legs, and medical side-effects throughout the entire ¼ mile route. FTA is concerned that making an affirmative determination of your functional ability to ambulate ¾ of a mile based on these results of your ¼ mile distance/endurance assessment does not adequately reflect your functional ability to use the fixed route bus stop closest to your home.
After reviewing all documents submitted by JTA, FTA finds that JTA did not appropriately handle several stages of your application for paratransit eligibility. By separate letter, we will ask JTA to reconsider your eligibility. We will also encourage them to provide on-going training to those employees tasked with conducting eligibility assessments to ensure that decisions are based on functional ability.
This concludes our investigation, and we are closing your complaint as of the date of this letter. If you have any questions regarding this determination, or if you do not hear from JTA, please contact me or Kim Zapfel of my staff at (202) 366-1713, or via email at email@example.com. Thank you for bringing your concerns to our attention.
John R. Day
Acting ADA Team Leader
Office of Civil Rights
Michael J. Blaylock, JTA Chief Executive Officer
Ken Middleton, JTA Contract Compliance Program Manager
Yvette G. Taylor, FTA Region IV Administrator
Frank Billue, FTA Region IV Civil Rights Officer
October 25, 2010
Re: FTA Complaint Number 08-0340 and 09-0131
Dear Mr. Blaylock:
This letter responds to your April 28, 2009, letter to my office regarding the disposition of a complaint filed by [name withheld] against the Jacksonville Transportation Authority (JTA) alleging discrimination under Title II of the Americans with Disabilities Act of 1990 (ADA). Specifically, [name withheld] alleged that she was inappropriately denied eligibility for ADA complementary paratransit service, an allegation corroborated by our investigation but disputed in your letter.
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 comply with Title II of the 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 cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transportation 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.
The FTA Office of Civil Rights is authorized under the DOT non-discrimination regulation, 49 CFR Part 27, Subpart C, Sections 27.121–123, to investigate discrimination complaints against providers of public transportation.
As you were informed in our letter of March 23, 2009, our investigation of [name withheld]’s complaint determined that JTA did not appropriately handle several stages of the complainant’s application for paratransit eligibility. While we consider the process of substantively determining complementary paratransit eligibility to be a local one, our review of the application material completed by [name withheld] and JTA pointed to procedural due process violations of §37.125, as detailed in the March 23 correspondence. JTA’s determination that [name withheld] was ineligible for full or conditional paratransit eligibility because she could walk to the nearest fixed route bus stop is simply not supported in the supplied documentation or by the DOT’s ADA regulation.
Based on our findings, we asked in our March 23 letter that JTA reconsider [name withheld]’s eligibility and respond within 30 days with an update on progress in contacting [name withheld] and reviewing her eligibility. JTA’s April 28 letter concluding that [name withheld]’s application “was properly processed” was insufficiently responsive. While we commend JTA for attempting to implement its in-person assessment after the Easter Seals Project ACTION process and for sending staff to training provided by the National Transit Institute, we find that JTA’s actual process did not appropriately assess [name withheld]’s functional ability to consistently and reasonably use fixed route transit independently.
The Basis for Conditional Paratransit Eligibility
Under 49 CFR §37.123(a) transit providers are required to “provide the [paratransit] service to the ADA paratransit eligible individuals described in paragraph (e) of this section.” Section 37.123(e)(3), more commonly known as “category 3,” confers eligibility to “any individual with a disability who has a specific impairment-related condition which prevents such individual from traveling to a boarding location or from a disembarking location on such a system.” The regulation goes on to clarify that a specific impairment-related condition must prevent the person from traveling to a boarding or disembarking location; a condition which merely makes it more difficult to travel to or from the location is not a basis for eligibility. Appendix D of the Part 37 regulation further explains that under §37.123, “A person may be ADA paratransit eligible for some trips but not others. Eligibility does not inhere in the individual or his or her disability, as such, but in meeting the functional criteria of inability to use the fixed route system established by the ADA. This inability is likely to change with differing circumstances. . . Inevitably, some judgment is required to distinguish between situations in which travel is prevented and situations in which it is merely made more difficult. In the Department’s view, a case of ‘prevented travel’ can be made not only where travel is literally impossible (e.g., someone cannot find the bus stop, someone cannot push a wheelchair through [a] foot of snow or up a steep hill) but also where the difficulties are so substantial that a reasonable person with the impairment-related condition in question would be deterred from making the trip.”
A person’s eligibility is based on his or her functional inability to use the regular fixed route system. Accordingly, in developing the eligibility criteria for paratransit contained in its ADA regulations, the Department acknowledged in Appendix D to 49 CFR §37.123 that “someone with a variable condition (e.g., multiple sclerosis, HIV disease, need for kidney dialysis)” would need to be eligible based on the underlying condition, which could change from day to day, and in practice require trip-by-trip assessments for strictly administered eligibility. Consequently, applicants for paratransit service must be evaluated according to all of their known functional limitations and their most limiting condition. The interaction of the most limiting conditions and reasonably foreseeable environmental conditions must be considered when making a determination that an applicant for paratransit service is ineligible or conditionally eligible for service.
Conditional eligibility and trip-by-trip eligibility form a two-stage process. First, in conditional eligibility, the transit agency assesses an individual’s functional ability to use the fixed route transit system. Second, in trip-by-trip eligibility (trip eligibility) the transit agency applies the individual’s conditions to his or her specific trips, based on the actual origin and destination. In doing trip eligibility, transit agencies consider environmental and other conditions, such as the path of travel to and from the bus stops, for every trip request, or for every request in certain categories, such as night trips or those trips that are prevented by the interaction of the rider’s disability and extreme temperatures. If the streets and physical and architectural barriers along the route of the trip request have not been assessed, the rider should be given presumptive eligibility for that route until the transit agency assesses that route.
JTA’s Eligibility and Appeals Processes
The documentation JTA provided underscores the following procedural flaws in its handling of initial paratransit eligibility determinations and appeals:
JTA’s position appears to be that it will not grant full or conditional eligibility to individuals who, through its ADA complementary paratransit eligibility process are determined to be able to access the bus stop closest to his or her home. JTA needs to recognize that the overall eligibility determination needs to consider the applicant’s ability to travel to any origins or destinations within the service area under all possible conditions and must be based on the applicant’s most limiting condition, including secondary disabling conditions which may make some individuals at least conditionally eligible for paratransit services. Secondary conditions such as disorientation, fatigue, and difficulties with balance which may change the applicant’s ability to travel at different times should be considered, as part of overall determinations.
To be considered able to travel certain distances, applicants must be able to travel the distance with reasonable effort and in a reasonable period of time. JTA assessors concluded that [name withheld] could walk a maximum reasonable distance of ¾ of a mile (without indicating their estimate of the time that it would actually take her to travel that distance), based on a distance/endurance assessment in which she may have been asked to ambulate only ¼ of a mile, which she arguably struggled accomplishing. Based on the information submitted to FTA, JTA assessors may have extrapolated the difference in distance up to ¾ of a mile without considering the degree to which [name withheld]’s functional ability was likely to decrease and/or the degree to which her level of effort and duress were likely to increase while traversing the greater distance. The assessors noted signs of distress along the entire route, without indicating whether these signs increased or remained the same during the assessment. It is impossible to tell from JTA’s documentation of the assessment the specifics that led JTA assessors to determine that she would be able to ambulate ¾ of a mile as her maximum reasonable travel distance on level ground
In addition, not all trips that an applicant might wish to make will begin at home, and the environmental conditions around each fixed route stop, whether at the trip origin or destination, that might interact with her disabilities to prevent fixed route use (existence of curb cuts, terrain, or accessibility of intersections, for example) are not necessarily identical to those around the stop that is closest to her home. Denying or limiting an applicant’s paratransit eligibility outright for all trips based on proximity to a particular bus stop is unreasonable as it does not take into account all the obstacles an applicant can expect to encounter when traveling throughout the JTA complementary paratransit service area during the entire term of his or her paratransit eligibility, since it denies eligibility to someone who could be eligible, for at least some of her or his trips. Even if it were the case that an applicant could travel reasonably and consistently from her home to the nearest bus stop, JTA should not deny or limit eligibility for paratransit service simply because she lives near a bus route and is able to get to it.
Furthermore, §37.125 of the DOT ADA regulations and Appendix D require that determinations of ineligibility shall be in writing and the reasons (for the denial) “must be specified. The reasons must specifically relate the evidence in the matter to the eligibility criteria of this rule and that of the entity’s process. A mere recital that the applicant can use fixed route transit is not sufficient.” Similarly, the appeals process shall include written notification of the decision and the reasons for it.
FTA finds that JTA’s letters lack the required specificity, as they constitute the mere recitals that the rule forbids and one is a mere repetition of the other. The denial letters are addressed only to “Dear Applicant” and state, “You were administered the physical functional assessment from the Easter Seals model consisting of such items as; a distance walk, going up and down curb cuts and curbs, crossing a mock street crossing, balance and boarding a fixed route bus. Your capabilities indicted that you can complete these tasks allowing you to use the fixed route bus system.”
JTA’s letters denying appeals are at least addressed to a specific individual but they also lack the required specificity:
- “All information reviewed including any additional supporting documentation does not support the appeal.”
- “In addition, during your eligibility process you were administered the Easter Seals model for mobility capabilities. The test consisted of walking, balance test, going up and down curbs and curb cuts, boarding and disembarking a mock fixed route bus, crossing a street crossing and waiting at a bus stop. Your capabilities indicted that you can use the fixed route bus system.”
In ADA complementary paratransit reviews, FTA has indicated that transit providers may require appeals to be requested in writing but may not require more detailed information why the applicant is appealing as this may dissuade an applicant from exercising his or her right to appeal. An appeal must be scheduled and heard based on a written request, provided that the request is received within 60 days of the letter denying or conditioning eligibility.
If JTA believes that an applicant is not eligible for all ADA paratransit trips, then JTA should begin implementing conditional eligibility in an appropriate way. Conditional eligibility would be the appropriate determination for the individual’s overall eligibility for those applicants who are able to use the fixed route system for some but not all trips. Once JTA determines the conditions under which an applicant needs paratransit, it can begin applying those conditions to individual trips. This is the appropriate use of conditional eligibility and trip eligibility. Specific trips for these riders would be eligible trips when the distance to or from a bus stop for a particular trip is greater than the number of blocks that the person can reasonably and consistently travel, as one example.
If JTA does not adopt a policy of granting conditional eligibility in an appropriate way, with the requisite specificity in the written eligibility determination letter to enable the rider to appeal the overall determination and any limitations or restrictions on eligibility, JTA must grant unconditional eligibility to such individuals, rather than deny them eligibility for any ADA paratransit service.
It appears that JTA misconstrued the instructions in our March 23 letter as an optional request which JTA could accept or reject, or it considered its conclusionary statement that [name withheld]’s application “was properly processed” as an appropriate response necessary to maintain separation of function in paratransit eligibility determinations. However, FTA finds this comment insufficiently responsive.
Under §27.123 of the DOT ADA regulations, if an investigation finds reasonable cause to believe there is a failure to comply, the matter is resolved by informal means whenever possible. We continue to work toward informal resolution and afford JTA another opportunity to respond specifically to our March 23 letter within 30 days by:
- Reconsidering [name withheld]’s overall eligibility for ADA complementary paratransit and reassessing her in a way that clearly reflects her functional ability to use fixed route service. Once a determination is made, documentation supporting the decision should be provided to [name withheld] and to this office.
- Revising letters denying eligibility and denying eligibility appeals to include the specific reasons for the decisions and providing samples to FTA.
- Discontinuing the requirement that applicants submit supporting documentation as a precondition of filing a notice to appeal.
- Reconsidering the overall eligibility and reassessing [name withheld] who filed a complaint raising similar allegations to those of [name withheld], during the pendency of this matter.
- Submitting a corrective action plan including timelines for the reconsideration of overall eligibility and reassessment of all similarly situated applicants who were previously denied on similar grounds.
- Modifying the eligibility process to correct the process flaws outlined in this letter on a going forward basis and documenting those changes in a written response to FTA.
If you have any questions, please contact me or John Day of my staff at (202) 366-4018 or via e-mail at firstname.lastname@example.org. Please include the FTA complaint number in any correspondence regarding this complaint.
Cheryl L. Hershey
Director, Office of Civil Rights
Ken Middleton, JTA Contract Compliance Program Manager
Yvette G. Taylor, FTA Region IV Administrator
Frank Billue, FTA Region IV Civil Rights Officer
Susan A. Clark, Equal Opportunity Specialist