July 27, 2011

Re: FTA Complaint Number 08-0297

Dear [name withheld]:

This letter responds to your complaint against VIA Metropolitan Transit 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 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, 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.

In your complaint to DOT’s Departmental Office of Civil Rights (DOCR), you alleged broadly that half the bus stops served by VIA in the San Antonio area are inaccessible to wheelchair users. Your original and follow-up communications note that many bus stops lack connecting sidewalks. At other stops, you state there is no place to sufficiently deploy the bus ramp and note the steepness of the ramps when deployed at street level. DOCR referred your complaint to DOT’s Federal Highway Administration (FHWA) for appropriate action. FHWA accepted your complaint for processing but referred the portion involving bus stop pad requirements for ramp deployment to FTA for a response.

FTA staff have communicated with you on several occasions subsequent to filing your complaint. Through this letter, we will reiterate what we have told you informally. We recognize, as you have emphasized, that the accessibility of bus stops and sidewalks is an important link in the ultimate accessibility of a given transit system. A bus can be fully compliant with DOT ADA accessibility specifications in Part 38 of the regulations and still be unusable to a person who cannot reach or use a bus stop. Barriers in the pedestrian environment often force people who are otherwise capable of using the regular fixed route system onto ADA complementary paratransit. We cannot, however, take further action on your complaint for the following reasons.

FTA is responsible for ensuring that public transit providers comply with the DOT ADA regulations. Transit agencies, however, often have little or no control over conditions at bus stop locations, and typically have no jurisdiction over sidewalks. As Appendix D in Part 37 of the DOT ADA regulations notes, “the Access Board, as well as DOT, recognize that most physical improvements related to bus stops are out of the control of the transit provider.” VIA is not an exception. While VIA serves more than 7,000 bus stops, it reports that it owns only a few stops around its Park & Ride lots. The rest are sited on land owned by other entities such as the Texas Department of Transportation and the City of San Antonio, or on private property. It is in VIA’s interest to coordinate with the entities that control the bus stops and pedestrian connections, but there is no responsibility or expectation under the ADA for a transit agency to make improvements unilaterally to sites it does not own or control.

Although your complaint is broad, FHWA’s referral to FTA focused on the discrete portion involving bus stop pad requirements for vehicle ramp deployment. As explained to you over the telephone, the ADA Accessibility Guidelines (ADAAG) developed by the U.S. Access Board and adopted by DOT as standards set design specifications for bus boarding areas and other elements such as shelters, when such elements are constructed. If VIA were constructing bus stop pads or other bus stop elements, it would need to comply with the design specifications set forth in section 810 of the standards. Again, however, there is no requirement for VIA to undertake construction to enhance accessibility at existing stops owned by another entity.

Your concerns about ramp steepness, however, are understandable. VIA’s fixed route fleet includes low-floor, ramp-equipped buses, which can have advantages over lift-equipped buses in terms of reliability and speed of operation. One downside, however, is that ramps can be steep when deployed at non-curbed locations—a concern recognized by the Access Board in its draft accessibility guidelines for buses and vans. The 1991 guidelines, adopted by DOT in Part 38 and currently in effect, permit 1:4 maximum ramp slopes at bus stops without sidewalks. The U.S. Access Board’s proposed rule specifies less steep 1:6 maximum slopes for ramps deployed to bus stops with sidewalks and to bus stops without sidewalks.[1]

While the DOT ADA regulations acknowledge that transit providers commonly lack control over bus stops, Part 37 does contain several relevant service-related provisions for lift deployment. Under §37.167(g), for example, a transit agency cannot declare a stop off-limits to a rider with a disability unless the lift/ramp cannot be deployed or will be damaged if it is deployed, or temporary conditions at the stop preclude safe use of the stop by all passengers. Riders with disabilities have the right to determine whether they are capable of using a particular stop. Operators are required under §37.165(f) to assist individuals with the use of lifts/ramps. Appendix D in the regulations explains, “On a vehicle which uses a ramp for entry, the driver may have to assist in pushing a manual wheelchair up the ramp (particularly where the ramp slope is relatively steep).” This requirement, as you correctly noted, does not extend to power wheelchairs. A bus operator also would be expected to use any kneeler equipped on a vehicle to lower the bus and minimize the ramp slope, as needed.

We understand your desire to have the option of taking the fixed route bus in your community for all trips; the primary goal of the ADA is an accessible fixed route. However, the fail-safe in the ADA is complementary paratransit. Under the ADA, paratransit functions as a safety net for people whose disabilities prevent them from using the regular fixed route transit system; it is intended to provide the same level of service as the fixed route system. If architectural barriers such as a lack of curb ramps and sidewalks prevent a person with a disability from traveling to or from a bus stop, he or she would likely be eligible for VIA’s complementary paratransit for those trips if a reasonable alternative path is not available (see 49 CFR §37.123).

In this situation, the record does not support a finding that VIA has violated specific requirements of the DOT ADA regulations. We are therefore taking no further action and are closing your complaint as of the date of this letter. We recognize that this response may not be entirely satisfying as you champion fixed route use, but hope that the explanation of the ADA requirements and FTA’s scope is helpful. We also understand that you are still in communications with FHWA regarding your complaint. If you have any questions, please contact me or Dawn Sweet at (202) 366-0529 or via e-mail at dawn.sweet@dot.gov. Any further correspondence should reference FTA Complaint No. 08-0297. Thank you for bringing your concerns to our attention and for your patience.

Sincerely,

John R. Day
ADA Team Leader
Office of Civil Rights

cc:
VIA Metropolitan Transit
FTA Region 6
DOCR
FHWA

1 U.S. Access Board, “Americans with Disabilities Act (ADA) Accessibility Guidelines for Transportation Vehicles,” Notice of Proposed Rulemaking, July 26, 2010