February 25, 2009

Re: FTA Complaint Number 07-0025

Dear [name withheld]:

This letter responds to your complaint against the Lakeland Area Mass Transit District d.b.a. Citrus Connection (Citrus Connection), 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 June 27, 2006 alleged that:

1. After providing ADA complementary paratransit service to your son for three years, Citrus Connection notified you on May 9, 2006 that his transportation service would be discontinued on May 12, 2006.
2. Citrus Connection violated Section 37.125 of the ADA regulations by failing to provide written notice of the termination of service and adequate time to make other transportation arrangements.

We apologize for the delay in responding. FTA investigated your allegations and sent an information request to Citrus Connection. We received a response from Citrus Connection that addressed and provided relevant information on your allegations. Each allegation is addressed in detail below.

1. After providing ADA complementary paratransit service to your son for three years, Citrus Connection notified you on May 9, 2006 that his transportation service would be discontinued on May 12, 2006.

In its response, Citrus Connection included copies of extensive e-mail and other correspondence with you on the issue of the transit authority’s requiring your son to travel with a personal care attendant (PCA). We commend Citrus Connection for providing this information.

Under the broad non-discrimination provisions of the DOT ADA regulations at §37.5, an entity cannot require a customer to travel with a PCA and may refuse service in limited situations:

“.. a transit entity may refuse service to a customer who engages in violent, seriously disruptive, or illegal conduct and that it may it may condition service to him if that would mitigate the problem. The entity could require an attendant as a condition of providing service it otherwise had the right to refuse. Furthermore, an entity is not required to provide attendant services (e.g., assistance in toileting, feeding, dressing), etc.”

2. Citrus Connection violated Section 37.125 of the ADA regulations by failing to provide written notice of the termination of service and adequate time to make other transportation arrangements.

Citrus Connection provided a copy of your son’s paratransit application, his eligibility determination letter dated February 24, 2006 and a copy of his identification card approving his travel with a PCA in response to your request in his application that he “needs adult assistant/supervision at all times.” Granting your request that he be authorized to travel with an adult does not mean that Citrus Connection’s drivers are responsible for supervising him.

While we are sympathetic to your situation, we find your apparent expectation that Citrus Connection’s drivers would be responsible for supervising your son while he was using the service to be unreasonable. Paratransit drivers are required to provide assistance with the use of the accessibility features (lifts, ramps, securement devices, etc.) on the vehicle pursuant to the DOT ADA regulations at §37.165. As attendant service is clearly outside the scope of the assistance that paratransit drivers must provide, it is unrealistic to expect a driver to operate a vehicle safely and supervise children at the same time. Citrus Connection is not required to provide attendant services for your son, as that would constitute a fundamental alteration of the nature of the service, program, or activity being provided.[1]

Citrus Connection provided a copy of its June 23, 2006 letter to you indicating that transportation service would not be terminated provided that your son and the other children between the ages of three and six travel with a PCA.[2] The concern mentioned in Citrus’ June 5, 2006 e-mail to you was that “the operators are unable to care for a child that might have a medical need while on the bus” The anticipation of this need does not rise to the level of actual conduct that is violent, seriously disruptive or illegal which is the only situation under which a public transit provider may require a PCA in an effort to mitigate the behavior.[3]

With that said, requiring that a parent or guardian accompany a child below a certain age is not the same as requiring a PCA, since the issue is age not disability. It is reasonable for a transit authority to set policy that a child under a minimum age must be accompanied by a parent or guardian, as long as this policy is disability-neutral, meaning that the policy applies equally to children with and without disabilities. Traveling with a parent or guardian would be a requirement for any child below the minimum age to take either fixed route or paratransit, since ADA paratransit must be comparable to fixed route, just as the concern mentioned in Citrus’ June 5, 2006 e-mail that “the operators are unable to care for a child that might have a medical need while on the bus” underscores the need for a minimum age policy for children to use fixed route and paratransit, as this would be a concern in transporting any unescorted child, whether the child has a disability or not. The minimum age policy is one example of general system-wide rules that the transit authority needs to communicate to riders and/or their parents. The designation of the minimum age as two or seven or somewhere in between is a local decision.

Based on the information provided to FTA, Citrus Connection does not have a consistent minimum age policy for children to use fixed route or paratransit unaccompanied.

Citrus Connection provided a copy of its June 23, 2006 letter to you indicating that transportation service would not be terminated provided that your son and the other children between the ages of three and six travel with a PCA as well as a copy of e-mail correspondence dated March 21, 2006 from the Operations Supervisor indicating that Citrus would “not allow a two year old child to ride fixed route without an escort.” A member of our staff contacted the Executive Director of Citrus Connection in January, 2008 and he indicated at that time that Citrus had no minimum age policy, other than its policy that children under seven ride fixed route free of charge when accompanied by an adult and since proof of age is not required on fixed route, it is possible that children who look older than seven are riding fixed route without being accompanied by an adult.

If a transit authority does not have a minimum age policy below which children using the fixed-route system must be accompanied by a parent or guardian, then the ADA paratransit eligibility process would have to consider the child’s independent ability to use the fixed-route system (and it is likely the child would have at least conditional ADA paratransit eligibility). Your son’s February 24, 2006 eligibility determination letter granted him unconditional eligibility.

If, on the other hand, the policy for use of the fixed-route system is that an adult must accompany children under a minimum age, then the ADA paratransit eligibility process would consider whether a child under the minimum age, with the assistance of an adult, would be able to use the fixed-route system. It is possible that there may then still be some level of eligibility, but it is likely that the child with an adult would be able to use fixed-route service more often. The ADA paratransit eligibility process can consider the abilities of the “team” (child and accompanying adult) when determining eligibility because the child would also be required to be accompanied by an adult when using fixed-route service. Once the child with a disability reaches the minimum age, the child would be reassessed.

Section 37.125 of the ADA regulations states that for people granted eligibility, documentation of the decision shall include at least the following information: The individual's name, the name of the transit provider, the telephone number of the entity’s paratransit coordinator, an expiration date for eligibility, and conditions or limitations on the individual's eligibility, including the use of a personal care attendant. By copying Citrus Connection on this letter, we are directing the transit authority revise its eligibility determination letters to include the requisite information, as the copy provided to FTA did not contain all of the required elements.

After reviewing all documents submitted by Citrus Connection, FTA finds that the transit authority did not appropriately handle several aspects of the decision to terminate service to your son. We will place Citrus Connection in follow-up status as to the issues identified:

• Implementing and consistently applying a disability-neutral, comparable minimum age policy for children to use paratransit and fixed route service.
• Including the minimum age policy in the information provided to paratransit and fixed route customers along with a description of the level of assistance that the drivers will provide.
• Developing a policy to assess the age of children and including that policy in driver training.
• Revising its paratransit eligibility determination letters to include the requisite elements of §37.125 of the ADA regulations.
• Contacting you and the parents of other children who may have been similarly impacted by Citrus’ policy to inform them the minimum age policy, including but not limited to the other Achievement Academy students incorporated by reference in your complaint.

Based on the information you and Citrus Connection have provided to FTA, we understand that your son’s school is providing his transportation, and that portion of your complaint is moot.

As the investigation phase of this process has been completed, we are closing your complaint as of the date of this letter. This concludes our processing of this matter and no further action will be taken. If new information comes to your attention, please contact us. 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 Susan Clark, at (202) 493-0511 or via e-mail at sue.clark@dot.gov. Thank you for bringing your concerns to our attention.

Sincerely,

John R. Day
Acting ADA Team Leader
Office of Civil Rights                

cc:       
Danny Ours, Executive Director, Lakeland Area Mass Transit District
Yvette G. Taylor, FTA Region IV Administrator
Frank Billue, FTA Region IV Civil Rights Officer

[1] 28 CFR § 35.130(b)(7).

[2] Under the ADA, a personal care attendant is defined as someone designated or employed specifically to help the eligible individual meet his or her personal needs.

[3] Furthermore, when a customer indicates that he or she needs to travel with a PCA, the transit authority cannot require the customer to travel with an attendant on every trip. Except in the limited exception described above, the customer determines the need for the PCA.