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MBTA ADA Compliance Review - March 7, 2012

Location: Boston, MA
Date of Final Report: March 7, 2012 

Massachusetts Bay Transportation Authority (MBTA) Transmittal Letter 

March 7, 2012

Dear Mr. Davis:

Thank you for your response to the Federal Transit Administration's (FT A) Americans with Disabilities Act of 1990 (ADA) Complementary Paratransit Service Review of the Massachusetts Bay Transportation Authority (MBTA) which was performed from July 19-27, 2010. PTA would like to thank you and your staff for the cooperation provided during the review. At that time, you were informed that PTA would issue a draft report of the findings, on which MBTA would have an opportunity to provide comment, following which a final report would be released. MBTA's comments were to be included in the attachments to the final report.

Upon receiving MBTA's comments to the draft report on January 17, 2012, this report is now considered a Final Report. A copy so marked is enclosed for your records. As of the date of this letter, the Final Report became a public document and is subject to dissemination under the Freedom of lnformation Act of 197 4.

FTA recognizes that it has been over to a year and a half since our onsite review and that changes may have occurred in MBTA's transit program. We appreciate the cooperation and assistance that you and your staff have provided us during this review. A corrective action plan will be developed in consultation with MBTA, and PTA will work diligently with MBTA to ensure compliance with DOT ADA regulations.

Contained within this letter is a summary of the findings of noncompliance made in the report, as well as concerns raised. In order to expeditiously close-out your review and release MBTA from the corrective action phase, please inform FT A within 30 days of the corrective actions MBTA will undertake in response to the findings. When providing proposed corrective actions, include the planned and actual completion date of the corrective action, the current status and contact person for each corrective action, and all supporting documentation.

OPEN FINDINGS:

ADA Complementary Paratransit Service Criteria

  1. Section 37.131(a)(l) of the DOT ADA regulations requires transit systems operating fixed route bus service to provide ADA complementary paratransit service that covers at a minimum, all areas within 3/4-mile of all of its bus routes. The last stop of the META's contracted bus route (#716) is within 1/4-mile of the Town of Stoughton, which THE RIDE does not service. At a minimum, the MBTA must provide RIDE service in Stoughton within 3/4-mile of META's Route #716.
  2. THE RIDE service hours do not cover as broad a span of hours as the fixed route service, and this is not compliant with Section 37.13l(e) of the DOT ADA regulations. The MBTA must ensure that THE RIDE service is available during the same hours that comparable fixed route service is available.
    a. THE RIDE provides ADA complementary paratransit service 365 days a year, generally from 5 a.m. to 1 a.m. The MBTA has a number of fixed routes that begin service before 5 a.m. and end service after 1 a.m. on weekdays. On weekdays, the earliest MBTA bus leaves Mattapan Station in Boston at 3:20a.m., while the latest bus ends service at 1:46 a.m. in Lynn.
    b. Riders who want to travel in Avon and Brockton must transfer to Brockton Area Transit Authority's "dial-a-bat" paratransit service. MBTA bus routes 230 and 240, which travel into these municipalities, both begin service earlier than dial-abat and both end service later than dial-a-bat. As a result, RIDE riders who want to travel within 3/4-mile of either MBT A bus Routes 230 or 240 are not able to receive early morning or evening service, even though fixed route service is available.
  3. Section 37.13l(c) of the DOT ADA regulations requires that ADA complementary paratransit fares be no more than double the non-discounted fixed route fare for a comparable fixed route trip. The META's cash fare for fixed route bus service is $1.50 and the fare for subway service is $2. The RIDE fare is $2, which complies with DOT ADA regulations. However, in the case of a RIDE rider who travels between the RIDE service area and Brockton or Avon, the total one-way fare is $4 (dial-a-bat fare is $2). If the destination in Brockton or Avon is within 3/4-mile of MBTA bus Route 230 or Route 240, and the comparable fixed route trip would require riding only one bus, then the fixed route fare would be $1.50. For such RIDE trips, the fare is more than double the fare of the comparable fixed route trip and therefore is not in compliance with the regulations.
  4. Under DOT ADA regulations at Section 37.131(b), transit providers must provide next day response time for eligible riders. According to THE RIDE Guide, fares for The RIDE can only be paid via prepaid customer account. The processing time to add funds ranges from five business days for U.S. mail, to two business days for accounts processed by phone or online, to one hour or less at the Back Bay Station sales location. This lead time, together with the need to establish a prepaid account prior to reserving a trip, compromises the META's ability to meet the next-day response time for eligible riders as required under Section 37.131(b) of DOT ADA regulations. The only means by which an eligible rider would be able to establish the necessary prepaid account and reserve a trip for the next day would be to travel to the Back Bay Station sales location. However, the Back Bay Station is only open on weekdays, and riders may not be able to reach the Back Bay Station without first reserving a paratransit trip. In contrast, multiple fare-payment options (including cash) are available to MBTA fixed-route passengers, and passengers using the "CharlieCard" are able to add funds instantly at any station. This operational practice may violate DOT ADA regulations at Section 37.131([)(3), which prohibits 3 transit systems from engaging in any operational pattern or practice that significantly limits the availability of service to ADA paratransit eligible persons.
  5. THE RIDE Guide states that eligible passengers must maintain a minimum balance of $12 in their prepaid accounts in order to reserve a trip. ln contrast, there is no requirement that fixed-route passengers carry a minimum of $12 in their pockets in order to ride the bus. The minimum balance requirement may be inconsistent with the general requirement that complementary paratransit provide a level of service that is comparable to that provided by the fixed-route system and may constitute a capacity constraint. By establishing such requirements for paratransit service, the MBTA places additional conditions upon eligible persons' use of The RIDE, which may prevent or discourage eligible passengers from using the system. Under Section 37.13l(f)(3) of DOT ADA regulations, transit systems may not engage in any operational pattern or practice that significantly limits the availability of service to ADA paratransit eligible persons.

ADA Complementary Paratransit Eligibility Process

  1. To meet the requirements of Section 37.123(e)(3) of the DOT ADA regulations, the MBTA must revise its eligibility determination process to consider an applicant's ability to independently board, ride, and disembark from its fixed route vehicles, and travel independently to and from boarding and disembarking locations. The determination process must also consider the interaction of the applicant's disability with any architectural and/or environmental barriers such as distance, terrain, and weather that may prevent the applicant from independently traveling to or from a bus stop or rail station. Leaving out these conditions has the effect of inappropriately limiting eligibility for those applicants whose most limiting condition is this interaction. As part of the revision, the MBTA may find it necessary to revise its application form to request more information about issues related to getting to and from stops/stations and physical and environmental barriers that affect the travel of applicants and to conduct follow up with applicants and professionals named in the applications.
  2. To meet the requirements of Section 37.123(e), the MBTA must ensure that the portion of the form which medical professionals are required to complete clearly indicates whether the questions are designed to solicit information concerning cognitive abilities, physical abilities, or both. As mentioned in Finding #1, the eligibility process must consider physical and sensory skills and abilities, such as maximum walking distance and street crossing ability. Including the ability to respond with "sometimes" in addition to yes or no will help to clarify the information. Finally, providing a space for additional information will also help with application reviews, particularly if MBTA is imposing conditions on eligibility determinations.
  3. To meet the requirements of Section 37.121-123 of the DOT ADA regulations, the MBT A must ensure that its eligibility determinations consider whether rail stations are accessible or inaccessible.
  4. Section 37.125(c) of the DOT ADA regulations requires public entities to make a determination of ADA paratransit eligibility within 21 days of the receipt of a completed application, or treat the applicant as eligible and provide service on the 22nd and thereafter until the eligibility determination is made. Based on a sample of 26 eligibility determinations made in July 2010, the MBTA did not make any determinations within 21 days. To meet the requirements of Section 37.125(c) of the DOT ADA regulations, in those instances where eligibility determinations take more than 21 days after receipt of a complete application, the MBTA must treat applicants as eligible and provide service to them on the 22nd day and thereafter until and unless the application is denied. Developing a method for tracking application processing time is essential to granting presumptive eligibility in a timely mam1er. The MBTA is not permitted to wait until an applicant calls to check on the status of his or her application. Appendix D to the DOT ADA regulations explains "service may be terminated only if and when the entity denies the application."
  5. To meet the requirements of Section 37 .125(g), the MBTA will be required to develop a process and procedure for tracking eligibility appeals and appeal decisions. As of the time of the review, the MBT A had no information to provide to the review team on the number of appeals requested, decisions reversed, decisions upheld, and decisions remanded to MBTA for reconsideration. Tracking this information is important in the event that a complaint is filed with MARTA and or with FTA. At the time of the review, OT A staff stated that they could recall only two appeals in the last 17 years. At the same time, staff stated that appeals are received and that OTA follows up with the applicant or the named professional on the additional information and most frequently finds the applicant eligible. FT A is concerned that MBTA and OTA RTA may have made revisions to determinations on a case by case basis only, rather than also tracking the appeals to identify any patterns of decisions that are frequently revised to ascertain the information needed to enable staff to make more accurate determinations during the initial determination process.
  6. To meet the requirements of Section 37.125 of the DOT ADA regulations, the MBTA must ensure that its paratransit eligibility process does not pose unreasonable administrative burdens on applicants. The review team found two as described in this chapter. a. The practice of encouraging applicants to prepare a written response as a precursor to obtaining the required opportunity to be heard and to present arguments and information could dissuade applicants from exercising their appeal rights and could constitute an unreasonable administrative burden. However, the MBTA may require that applicants file a notice of intent to appeal. b. The MBTA's practice of returning applications with the letter containing the statement of ineligibility could dissuade people from submitting the additional information and may actually give some applicants the impression that they need to reapply for their applications to receive consideration.
  7. In the event the MBTA chooses to implement its suspension policy, to meet its obligations under Section 37.125(h) of the DOT's ADA regulations, the MBTA must specify the length of the suspension and must ensure that it is reasonable; the policy must be revised to reflect that only no-shows under the rider's control will be charged against riders and only if they fail to board after the 5 minute vehicle wait time or cancel at the door when the vehicle arrives within the pickup window, as trips missed by system error must not be counted against passenger. The MBT A may not count those instances where the vehicle arrives outside of the pickup window and the rider elects not to board. The policy must take frequency of use into account, as the intent of the regulation is to deter or deal with chronic no shows and that sanction can only be imposed for a pattern or practice of missing scheduled trips which involves intentional repeated or regular actions by both frequent and infrequent riders and not isolated accidental or singular incidents.
  8. FTA will require the MBT A to submit information clarifying whether its "met at both ends" eligibility is a type of assisted transfer or hand-to- hand transfer agreement or whether this is in fact a type of conditional eligibility, where the rider is eligible to use THE RIDE under certain conditions and is able to use the MBTA fixed route bus and rail under certain conditions.
  9. FTA will require the MBTA to submit information clarifying its eligibility determination requiring travel with an attendant. Review team conversations with OT A staff suggested that travel with an attendant is only authorized when applicants need a level of supervision on the vehicle that the paratransit driver cannot provide and that this decision is reached in consultation with the applicant's guardian. The review team's analysis of a sample of applications suggest that in at least two cases, OT A imposed this requirement based on speculation on the need for supervision in violation of Section 37.5(e) of the DOT ADA regulations.

Telephone Access

  1. Section 37.131(b)(2) of the DOT ADA regulations permits transit systems to negotiate pickup times with paratransit passengers but prohibits requiring the individual to schedule a trip to begin more than one hour before or after his or her desired departure time. Page five of THE RIDE Guide states, "After the close of reservations, trips for the following day are scheduled." Eligible individuals reserving a trip on The RIDE are not provided with a pickup time until the evening before the scheduled trip, and notification is via an automated call. In the event that the pickup time is incorrect- i.e., either more than an hour before or after the passenger's requested pickup time or completely inaccurate- the passenger has little opportunity to correct the error, or to negotiate a more acceptable pickup time within the 120-minute timeframe surrounding the passenger's original request. For example, if a passenger wishes to travel at 8:00 a.m., and the automated call informs the passenger that his or her pickup time will be 8:45 a.m., the passenger has no opportunity to negotiate for a 7: 15 pickup if that would better serve his or her travel needs. Under Section 37.131(b)(2), the MBTA must schedule and provide paratransit service to any ADA paratransit eligible person at any requested time on a particular day in response to a request for service made the previous day. Consequently, the passenger must be provided the opportunity to adjust their pickup time on the day before the requested service.

Service Performance

  1. MBTA must cease requiring paratransit passengers to use "body belts" as a condition of service. The DOT ADA regulations at 49 C.P.R.§ 37.165(c)(3) permits MBTA to require passengers to permit their wheelchair to be secured, but does not permit requirements for additional securement of their person. The requirement for wheelchair securement devices for buses and vans, found in 49 C.P.R. § 38.23(d), contain various performance standards for attachment points and forces that must be withstood, and also requires seat belts and shoulder harnesses for each securement location. However, there is no provision for separate trunk supports or "body belts," which would not be expected to be a component of the vehicle's securement system but of a passenger's wheelchair seating system if needed for positioning purposes. META's policy requiring paratransit drivers to secure wheelchair users with a "body belt" that wraps around the rider's torso and the backrest of his or her wheelchair is both dangerous and contrary to regulatory requirements established under DOT ADA implementation regulations.

Please provide your response within 30 days of this letter. Should you have any questions about the enclosed report or this letter, please contact Mr. Aaron Meyers of my staff at (202) 366-3055 or via email at aaron.meyers@dot.gov. Thank you.

Sincerely,

John Day
ADA Team Leader
FTA Office of Civil Rights

Enclosure
cc: Linda Ford, Acting Director, FTA Office of Civil Rights
Monica McCallum, Regional Operations Division Chief, FTA Office of Civil Rights
Mary Beth Mello, Regional Administrator, FTA Region 1
Peggy Griffin, Regional Civil Rights Officer, FTA Region 1
Frank Oglesby, Deputy Director of Paratransit Contract Operations, MBTA
Scott Darling, Deputy Chief of Staff, MBTA David Chia, Planners Collaborative

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