Location: Lakewood, WA
Date of Final Report: January 15, 2009   

Pierce Transit Transmittal Letter 

January 15, 2009 
Re: Compliance Review of Pierce Transit’s ADA Complementary Paratransit Service

Dear Ms. Griffith:

Thank you for your response to the Federal Transit Administration’s (FTA) letter and preliminary report of findings of the Americans with Disabilities Act of 1990 (ADA) Complementary Paratransit compliance review of the Pierce Transit ADA complementary paratransit service from November 13 to 16, 2007.  Enclosed is the Final Report.  As of the date of this letter the Final Report became a public document and is subject to dissemination under the Freedom of Information Act of 1974.

Also enclosed with this letter is an updated progress table listing FTA’s understanding of the corrective actions either planned or taken by Pierce Transit in response to the preliminary findings contained in the draft report.  If you feel that our summarization of corrective actions is inconsistent with your response, please inform us in writing as soon as possible.

Following most of the areas where findings were made, we have:

• Identified responses that adequately address the finding
• Requested documentation of results and outcomes
• Requested Pierce Transit to clarify specific corrective actions based on response to the report findings

Please continue to use the enclosed table as the format to report progress to FTA on the corrective actions that Pierce Transit has completed or intends to implement as a result of our findings.  Please identify each response by item number (e.g., 1.1, etc.).  The requested documentation, along with updates on the status of implementation of proposed corrective actions, should be provided in quarterly reports to FTA.  Each report should include the planned and actual completion date of the corrective action, the current status and contact person information for each corrective action, and specific reporting requests cited in this letter and on the enclosed table.  The first report will be due on February 13, 2009, and should include data for the months of September through December 2008, and any actions completed prior to that date that have not already been addressed.  Additional reports will be due by April 15, 2009 and July 15, 2009 and each calendar quarter thereafter until FTA releases Pierce Transit from this reporting requirement.

We recognize the progress that you have made in responding to the findings of the review as presented in your October 14, 2008 letter.  In addition to these efforts, we request that your first progress report more fully respond to the following findings.  The enclosed chart also includes additional findings where reporting or minor clarifications are also needed.

2.    Eligibility

• 5.   Finding: The review team’s analysis of sample determinations raised questions about how personal safety is considered when making ADA paratransit eligibility determinations.  Documentation related to one determination indicated that “personal choice and safety were not ADA issues.”  This position does not distinguish between safety issues that result directly from a person’s disability (e.g., poor decision-making resulting from a cognitive disability or mental illness) versus general safety concerns such as fear of possible crime that are not directly related to a disability.
  
  Corrective Action Proposed by Pierce Transit: Since the time of the FTA onsite review, Pierce Transit sought and received an expert opinion on this issue from Richard Wong from the FTA Office of the Chief Council in Washington D.C.   The scenario described by the review team was posed to Mr. Wong and his response was, “With regard to the rider with “bad judgment,” you need to determine her mental capacity to use the fixed route bus, including ‘navigating the system.’” He further stated, “ADA paratransit wouldn’t necessarily protect her from meeting the wrong type of people either, given that it is a shared ride system and you can’t control who rides the vehicle with her.”   This perspective is supported by 49 CFR Subpart F, which reads that “Someone with a cognitive disability may have learned to take the same bus route to a supported employment job every day.  This individual is able to navigate the system for work purposes and therefore would not be eligible for paratransit for work trips.”   Subpart F also defined the scope of cognitive considerations as “a lack of cognitive ability to remember and follow directions…” and the impact must be that this lack prevents the individual from traveling to or from a boarding location.  In summary, eligibility is based on the individual’s functional ability to use the bus system; disability related issues that do not impact system access or navigation are not issues that establish eligibility.
  
  Pierce Transit acknowledges that this was an area of lively discussion with the reviewer.  Although our manual is comprehensive, Pierce Transit is unable to provide written examples of how we interpret every situation.  The comment indicated that Pierce Transit does not make a distinction between “safety issues that result directly from a disability” versus general safety concerns such as fear of possible crime “that are not directly related to a disability.”  Pierce Transit respectfully disagrees with this contention.  Page 11 of the Pierce Transit’s eligibility manual speaks to this issue.  It clarifies that, “…personal safety (perceived vulnerability), or convenience alone do not qualify an individual for paratransit.  Page 17 of our manual directly addresses the concept of personal safety and draws the distinction between personal safety concerns related to potential for vulnerability to victimization versus functional system navigation concerns. The case discussed by the reviewer involved an individual with a cognitive impairment who was successfully travel trained for a work trip but has (potentially) disability-related social behavioral issues that involve seeking inappropriate social interactions with others when she is in a community setting.  This is an issue of perceived vulnerability.  Pierce Transit’s interpretation is inspired by the ADA Paratransit Manual which states “A person with a disability who prefers not to use fixed route due to possibility of crime would not be eligible.”  Much of our conversation with the reviewer focused on the potential for inappropriate social behavior, perhaps disability related, in the absence of impact on the individual’s functional ability to navigate the system.  Poor social judgment or behavior unrelated to system navigation is not mentioned anywhere in the ADA standards as a qualifying factor.  Pierce Transit believes there is no ADA related requirement to establish paratransit eligibility for an individual based on the potential that the individual may engage in dysfunctional non-travel related behaviors.  In fact, “purposely segregating” an individual by relegating them to paratransit use as a means of reducing the potential for contact with strangers could be a direct violation of the individual’s rights under the ADA.
  
  Clarification of Corrective Action:As requested, we have reviewed this finding, including discussing the issue with the FTA Office of the Chief Council.  We do not agree with Pierce’s contention that Subpart F defines and limits the scope of cognitive considerations to an ability to remember and follow directions.  This is cited in Appendix D to the regulations as one of four examples of a specific impairment related condition that would confer Category 3 eligibility.  The four examples presented in Appendix D are by no means meant to be an exhaustive list.  In fact, this same paragraph includes the statement “The Department does not believe it is appropriate, or even possible, to create an exhaustive list.”  While the ability to remember and follow directions certainly is important, there are many other tasks and related cognitive skills that are required to independently use fixed route service.  Orientation skills, problem-solving skills, coping skills, short and long-term memory, concentration, information processing, communicating needs, consistency, judgment, as well as other skills, are all needed to be able to independently get to and from fixed route stops, board, ride and disembark from the fixed route system, and independently navigate the system.  Any person who, as a result of a cognitive condition, is unable to consistently get to or from fixed route stops or stations is unable to independently use the fixed route service and must be granted eligibility under 49 CFR § 37.123(e).
  
  Exposure to unreasonable personal risks when attempting to use the fixed route system is also cited in Appendix D to the regulations as something that would confer eligibility.  The specific example that is provided is of a person with a disability-related temperature sensitivity that would make travel in extreme temperatures unreasonable.  Again, this is one example, and many other unreasonable risks resulting from impairment-related conditions are possible.  For someone with a cognitive disability, this might include issues of judgment, coping skills, and community safety skills.
  
  Pierce correctly notes that the ADA does not protect individuals from exposure to possible crime that might occur when traveling in the community.  However, an impairment-related condition in judgment or behavior that would interfere with the ability to properly shield oneself from the inherent risks of independent travel in the community could place a traveler with a disability at an unreasonable level of risk.
  
  We also disagree with Pierce’s notion of “perceived vulnerability” in the case cited.  An unsubstantiated fear of possible crime, not related to a disability, certainly would not be a consideration in eligibility.  However, if there is a documented disability-related impairment in judgment or behavior that would place a person at risk when traveling independently on fixed route service, this certainly would be a consideration in eligibility.  If there is evidence from guardians and professionals familiar with the individual that poor judgment has been observed and is likely, the vulnerability created is no longer “perceived,” but is real and is something that would place the individual at an unreasonable level of risk when traveling alone.
  
  In its October 14, 2008 response, Pierce Transit states that it believes there is no ADA requirement for establishing ADA paratransit eligibility based on “the potential that the individual may engage in dysfunctional non-travel related behaviors.”  In our view, judgment regarding personal safety when traveling alone in the community is related to travel.  Impaired judgment and behavior that would place a person at unreasonable risk could certainly prevent this person from getting to or from fixed route stops or completing a planned journey.
  
  As cited in your response, Appendix D to the DOT ADA regulations does indicate “Mobility training (e.g., of persons with mental or visual impairments) may help to improve the ability of persons to navigate the system or to get to a bus stop.  Someone who is successfully mobility trained to use the fixed route system for all or some trips need not be provided paratransit service for those trips.  The Department encourages entities to sponsor such training as a means of assisting individuals to use fixed route rather than paratransit.”  It is our understanding that mobility training of persons with cognitive disabilities includes an assessment of community safety skills.  We note that the Functional Assessment of Cognitive Transit Skills (FACTS) tool developed by Easter Seals Project ACTION, which is widely used to assess the functional abilities of travelers with cognitive disabilities, includes questions regarding community safety skills.  Furthermore, individuals are not considered successfully trained to use fixed route service (or even appropriate candidates for such training) if they do not possess adequate community safety skills and judgment.  Indeed, it would be inappropriate to expect someone to independently use the fixed route system if they did not have the cognitive skills to remain safe when traveling alone.
  
  In its October 14, 2008 response, Pierce Transit also said, “purposefully segregating an individual by relegating them to paratransit use as a means of reducing the potential for contact with strangers could be considered a direct violation of the individual’s rights under the ADA.”  We note that our finding is not suggesting that individuals be provided paratransit because of the “potential for contact with strangers.”  Nor is our finding requiring segregation – Pierce Transit’s interpretation to the contrary may indicate a significant misunderstanding of the finding.  Our finding says  that when contact with strangers occurs during independent travel, if individuals do not possess the abilities, because of their disability, to respond appropriately and make decisions that keep them from unreasonable risks, this is a factor that should be considered.
  
  Additional Reporting: We again ask Pierce Transit to indicate that it will consider issues of unreasonable personal risk, created by disability that would arise from independent use of fixed route service as factors in determinations of ADA paratransit eligibility.
• 8.   Finding:  Pierce Transit’s no-show policy provides for permanent suspensions if riders violate the no-show policy five times.  Section 37.125(h) of the DOT ADA regulations allow suspensions to be for “a reasonable period of time.”  FTA does not consider a permanent suspension to meet this regulatory requirement.
  
  Corrective Action Proposed by Pierce Transit:  Our No-Show Policy was revised to the following, as found beginning on page 48 of the SHUTTLE Handbook:
  
  When customers schedule trips and then fail to take them without proper notice, our efforts to maintain timely service and decrease costs are hampered. Therefore, the following No-Show Policy will be enforced beginning January 1, 2008. 
  
  “A no-show occurs when a SHUTTLE vehicle arrives within the designated pick up time, and the customer is either not there or no longer wants to take the scheduled trip. If you have requested a trip and cannot ride, it is your responsibility to call SHUTTLE Customer Services at (253) 581-8100 and cancel the scheduled trip. Customers must cancel their trip(s) by 5:00 p.m. the day before their scheduled trip(s). When you call to cancel a trip, please be sure to cancel all of the trips you will not be taking on that date. Failure to cancel at least one day before the scheduled trip results in a late cancellation. Three late cancellations within a continuous 30-day period are treated as one no-show.
  
  No-shows also include those incidents in which a customer does not de-board at their destination for any reason (e.g. facility is closed, no one to receive customer, etc.).  Customers who do not de-board will be allowed to remain in the vehicle while the operator receives instructions from the Communication Center. If the operator is instructed to move on, there is no time guarantee when you will be returned to your destination. Such incidents will be marked as no-shows.
  
  Customers who incur five no-shows in a continuous 30-day period will be suspended from service. Please be assured that each time a no-show occurs, our Customer Service staff will attempt to reach you via telephone to find out what happened before charging a no-show to your record. You will receive written notice of the violation, citing which trips were missed and the proposed date of suspension of service.
  
  The suspension will not take effect for a minimum of fourteen days from the date of notice. Suspensions are progressive and will be imposed as follows:
  
  First level of violation (5 occurrences), 7 days suspension
  
  Second level of violation (5 occurrences), 14 days suspension
  Third level of violation (5 occurrences), 21 days suspension 
  Fourth level of violation (5 occurrences), 28 days suspension
  Fifth level of violation (5 occurrences), extended suspension
  
  If more than two years elapse between any two stages of violations, the progression of suspensions will start again at the first step.
  
  We do realize that occasionally an operator may still arrive for the pickup though the trip has been cancelled. When you call to cancel the trip, write down the name of the Customer Service Representative that processes the request. If the operator arrives for the pick-up, tell the operator who you spoke with when the trip was cancelled, and you will not be counted for a no-show.”
  
  Clarification of Corrective Action:  We appreciate Pierce Transit’s willingness to revise its no-show policy.  However, the proposed new policy raises three issues that need to be addressed.  First, penalties for late cancellations should only be imposed as part of a no-show policy where the late cancellation is the operational equivalent of a no-show.  FTA does not consider cancellations made after 5 p.m. the day before the scheduled trip to be the operational equivalent of a no-show.  Many opportunities exist to use the slack time created when cancellations are made this far in advance.  In FTA’s experience, late cancellations made less than 1 or 2 hours before the time of the trip are more likely to be the operational equivalent of a no-show.
  
  Second, the language of the proposed new policy still considers “incidents in which customers do not de-board at their destination for any reason” as no-shows.  This issue was raised in Finding 5.1 and Pierce Transit’s response to that finding is that this will be considered “delays in service” and handled separate from the no-show policy.  Accordingly, please remove this language from the proposed new policy to be consistent with the response to that finding.
  
  Third, the proposed “extended suspension” for a fifth level of violation (5 occurrences) does not address our concern that suspensions could be for unreasonably long periods.  Please clearly define the suspension period for fifth level violations.

3.  Telephone Access                    

• 1.   Finding:  Based on an analysis of telephone hold time reports for the week of October 14-20, 2007, about 34 percent of all calls were recorded as having hold times in excess of 30 seconds.  This level of performance does not meet Pierce Transit’s stated goal to answer 95 percent of all calls within 30 seconds.  On the other hand, the goal is a very high standard, may not be achievable, and will not indicate poor hold time performance under the DOT ADA regulations if it is not achieved.  Thirty percent of calls represents a substantial number of calls; however, 30 seconds is not a significantly long time to be placed on hold.  Consequently, based on the current standard alone, it is unclear whether a substantial number of callers experience significantly long hold times.
  
  Corrective Action Proposed by Pierce Transit:  Pierce Transit’s goal is to answer 95% of all calls received in the queue. During the month of October 2007, 23,224 calls were received and 22,152 (95.38%) were answered.
  
  Pierce Transit’s goal is to have an on hold average of less than 30 seconds for the month.  Average answer delay for the month of October 2007 was 45 seconds.  Shortest Average Answer Delay: Saturday, October 13, 2007 = 18 seconds.  Longest average answer delay: Wednesday, October 31 2007 = 83 seconds.  Average answer delay for October 2007: 30 seconds or under, 6 days; 45 seconds or under, 15 days; 60 seconds or under, 6 days; over 60 seconds, 4 days.
  
  No corrective action required. 
  
  Clarification of Corrective Action:  The “Response to FTA Audit Enclosure #1” sent to the review team on October 22, 2007 in advance of the on-site review stated that “The goal for hold time and/or call pickup is to answer within thirty seconds for 95% of calls received.”  This is very different from the goal stated in this response to have an average hold time of less than 30 seconds for the month.
  
  Please note that the newly stated goal could allow for periods of time where holds are very low and periods of time where holds are very long.  A goal that measures average hold times over an extended period would not protect against a pattern of long holds during certain times of the day or week.  Indeed, the observations of the review team were that hold times exceeded 3 minutes 13 percent of the time and that there appeared to be a pattern of long holds in the morning (6:15 a.m. to 9:45 a.m.) and during the afternoon (3 p.m. to 4:15 p.m.)
  
  Please consider revising this newly stated goal to protect against patterns of long holds during certain hours of the day.
  
  The data submitted in the October 14, 2008 response also indicates that the newly stated hold time goal was not met in October 2007.  The information provided is that the average hold time for the month was 45 seconds while the stated goal was 30 seconds.  The data also indicates that the 30 second goal was not met for 25 of the 31 days in October 2007.
  
  Additional Reporting: Please indicate what actions have been taken by Pierce Transit to better meet its telephone hold time goal.
• 2.   Finding:  Telephone performance reports for the week of October 14 to 20, 2007, indicated that hold times of more than three minutes were recorded during about 13 percent of the 15-minute reporting periods.  These reports showed long hold times during the morning from 6:15 a.m. to 9:45 a.m., during the afternoon peak from 3 p.m. to 4:15 p.m., and occasionally during late evening hours.
  
  Corrective Action Proposed by Pierce Transit:  Reports at the 15 minute increment detail are not available after 90 days.  An audit of September 2008 calls reveals this issue has been minimized. Average answer delay between 6:15 a.m. and 9:45 a.m. is 40 seconds.  Average answer delay for September 2008 between 3 p.m. and 4:15 p.m. is 1 minute 15 seconds. On occasion, hold times are more than three minutes due to call volume.
  
  Corrective action: Changed Customer Service line recording to advise customers of peak call times.
  
  Clarification of Corrective Action:  The proposed corrective action to notify riders of peak call times would be useful to riders who have flexibility in the times that they call.  However, the proposed corrective action does not address issues faced by riders who are calling to check on a late ride during these hours.  Please consider other actions that can be taken to reduce hold times during these morning and afternoon hours and include these proposed actions in the next Quarterly Progress Report.
  
  Additional Reporting: Please provide information on the number and percentage of calls from 6:15 a.m. to 9:45 a.m. and 3 p.m. to 4:15 p.m. with hold times greater than 3 minutes in the next Quarterly Progress Report.  The data provided for September 2008 indicates that average hold times still exceed 30 seconds and maximum holds of more than three minutes still exist during these morning and afternoon hours.

5.  Service Performance                        

• 6.   Finding:  For trips with requested drop-off times, Pierce Transit’s standard is to perform at least 95 percent of SHUTTLE drop-offs “zero minutes late for the time passenger requests to arrive at a destination.”  Pierce Transit does not, however, use a “drop-off window,” establishing limits for how far in advance of appointment times passengers can be dropped off.  By extension, Pierce Transit does not monitor its performance against a standard for early drop-offs.
  
  Corrective Action Proposed by Pierce Transit:  We currently do not have a standard in place for early drop offs. However, if the customer cannot be left alone or would like the driver to wait, we will err on the side of safety and comfort. These are rare occasions and do not cause significant delays in the system.  Corrective action: Customer service representatives are inquiring of customers if facilities are open and are offering alternatives.  
  
  Clarification of Corrective Action: A significant number of drop-offs that are very early can be considered a type of capacity constraint.  It is important for Pierce Transit to monitor very early drop-offs as well as late drop-offs.  This is a key issue since the review found that 47.8 percent of SHUTTLE drop-offs were made more than 30 minutes before the stated appointment time.  To be able to monitor this potential capacity constraint, it would seem necessary to define what will be considered “too early.”  Please reconsider revising the current on-time performance standards to define when drop-offs are too early as well as when they are late.
• 9.   Finding:  Pierce Transit does not actively track SHUTTLE’s on-time performance for drop-offs.
  
  Corrective Action Proposed by Pierce Transit:  It has been our experience that we have no record of customer comments raising the issue of drop performance standards. If customer comments in the future indicate issues, we will begin tracking this information.
  
  Clarification of Corrective Action: The review team re-reviewed information collected about SHUTTLE rider complaints filed with Pierce Transit from January 2007 through October 2007.  For that period, there were 118 complaints about either “Late” or “Early” service (see Table 3.1 of the report).  A more detailed analysis of these complaints indicated that 33 of the 118 (28 percent) pertained to early or late drop-offs.  One of the six riders we contacted in advance of the review also indicated concerns about early and late drop-offs.  Furthermore, absence of customer complaints would not definitively determine that there were no problems with on-time drop-off performance.  Please reconsider the response provided to this finding. 
• 13. Finding:  One hundred and seventy eight trip records in the sample week had a no-show code indicating that the rider was at fault.  Twenty of these 178 trip records indicated that the vehicle arrived more than 30 minutes after the negotiated pickup time—beyond the pickup window, when the rider no longer had an obligation to wait for the vehicle.  Another four trip records indicated that the vehicle arrived at least 30 minutes before the negotiated pickup time.  There is a reasonable likelihood that the operator did not wait for at least 5 minutes into the pickup before leaving.
  
  Corrective Action Proposed by Pierce Transit:  SHUTTLE management recognizes no-show code errors. No customer was penalized for no-shows during 2007. During 2007, the no-show program was suspended due to software issues.
  
  Corrective action: A new program to address no-shows was devised and implemented as of January 2008 but no customer was penalized until March 2008.
  
  SHUTTLE management changed policy and trained all staff to ensure that drivers waited a minimum of 5 minutes into the performance window before no-showing the customer.
  
  Clarification of Corrective Action: Please note that the issue raised by the finding was not that vehicles were not waiting 5 minutes in the pickup window before no-showing riders, but that riders were being considered no-shows when vehicles arrived for pickups after the end of the 30 minute pickup window.  Please clarify that no-shows will not be charged to riders if vehicles arrive late for pickups (after the end of the 30 minute window) and trips are not taken (either because the rider is not there or the rider decides to not take the trip). 

We recognize the efforts that Pierce Transit has already taken to correct the deficiencies identified in the draft report, and we anticipate your continued endeavors to take further corrective actions as noted in this letter.  We appreciate the cooperation and assistance that you and your staff have provided us during this review.  If you have any questions about this matter, please contact me or Mr. Jonathan Klein, Program Manager for this review, at (202) 366‑0809 or at his e-mail address: jonathan.klein@dot.gov.

It would also be very helpful to us if you would provide electronic copies of all correspondence to this office to Ms. Rebecca Tanrath, at FTA’s Region VII Office, at her e-mail address: Rebecca.tanrath@dot.gov and Ms. Monica McCallum at FTA’s Region X Office, at her email address: monica.mccallum@dot.gov.

Sincerely,

Cheryl L. Hershey
Director, Office of Civil Rights

Enclosures

cc:   Rick Krochalis, FTA Region X Administrator
Monica McCallum, FTA Region X Civil Rights Officer
Ken Feldman
David Chia, Planners Collaborative, Inc.
Russell Thatcher, TranSystems Corp.