April 29, 2010

Re: FTA Complaint Number 10-0172

Dear [name withheld]:

This letter responds to your complaint against the Niagara Frontier Transit Authority (NFTA) 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 alleged that:

• On February 26, 2010, you asked NFTA for a reasonable accommodation under the ADA. Specifically, you asked NFTA to have their drivers operate your power wheelchair on the ramp since you must board the lift separately because your wheelchair exceeds the 600lb design load required for a lift to accommodate a common wheelchair while occupied.

Relevant ADA Requirements

Under 49 CFR §37.165(b) of the DOT ADA regulations, all common wheelchairs and their users shall be transported in the entity’s vehicles or other conveyances. Section 37.3 of the same CFR defines a “common wheelchair” as a mobility aid 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. The design load of the lift of the entity’s vehicles or other conveyances shall be at least 600 pounds. 49 CFR § 38.23(b) The 600-pound specification is the minimum that a vehicle is required to accommodate; transit providers may decide to transport heavier devices if they have suitable equipment. If the transit provider’s fleet only allows the 600-pound ADA requirement to be accommodated, FTA suggests to transit providers that they allow people with disabilities to board separately from their mobility device (if the rider is able to board separately) to come in under the 600 pounds.

The DOT ADA regulations also require that each public or private entity ensure that personnel are trained to proficiency, as appropriate to their duties, so that they operate vehicles and equipment safely and properly assist and treat individuals with disabilities who use the service in a respectful and courteous way, with appropriate attention to the difference among individuals with disabilities. 49 CFR § 37.173. This includes training personnel to accommodate the different types of common wheelchairs.

The entity’s personnel shall also assist individuals with disabilities with the use of securement systems, ramps and lifts. 49 CFR § 37.165(f) “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).” 49 CFR § 37.165 App.D. The Interpretive Guidance found in Appendix D specifically addresses manual wheelchairs not power chairs. Moreover, attendant-type services (e.g., toileting, feeding, dressing, carrying passengers’ personal baggage or suitcases) are not required.  49 CFR § 37.5 App. D.

Conclusion

After reviewing all of the submitted materials, the information provided does not support a finding that NFTA violated the provisions of the DOT ADA regulations. First, the information you provided indicates that you were approved for ADA complementary paratransit service on or about May 13, 2009. By letter dated April 27, 2009, NFTA informed you that they would not be able to transport your wheelchair because it exceeded the 600lb design load required for a lift to accommodate a common wheelchair while occupied.

NFTA’s Eligibility Coordinator, Christine Farrow, did give you the option of traveling with a PCA, who can operate your wheelchair separately for you. Under 49 CFR 37.131(c)(3) a personal care attendant is not charged a fare for complementary paratransit service, so there would be no difference in cost to you for your trip. Providing assistance with a power wheelchair falls under the category of attendant-type services, which are not required under DOT regulations. Moreover, it would be unreasonable to expect a driver to know how to operate each rider’s powered mobility device. While placing a power wheelchair in freewheeling mode may not be difficult, controlling it is a different matter; not only does the weight make it difficult to maneuver, but disengaging the motors also disengages the brakes.

This concludes our processing of this matter and no further action will be taken. 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 me or Hyacinth Clarke of my staff at (202) 366-7142 or via e-mail at hyacinth.clarke@dot.gov. Any further correspondence should reference FTA Complaint No. 10-0172. Thank you for bringing your concerns to our attention.

Sincerely,

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

cc: Niagara Frontier Transit Authority