August 19, 2011

Re: FTA Complaint Number 11-0078

Dear [name withheld]:

This letter responds to your complaint against Roaring Fork Transportation Authority (RFTA) 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 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 and subsequent communications with FTA, you allege the following:

• You attempted to apply for RFTA’s ADA complementary paratransit service. In response, RFTA sent someone you characterize as a “bus driver” to your home to assess your level of disability and need for paratransit. Because you doubted this person’s qualifications to assess you—preferring a doctor or social worker—you declined to participate in the evaluation.
• You had difficulty finding information on the paratransit eligibility process.
• You were told that seniors using RFTA service receive priority over ADA complementary paratransit customers.

In response to your complaint, we contacted RFTA for more information. We received a response from RFTA that addressed your allegations and provided relevant information. Each of your allegations is addressed in detail below.

As background, RFTA explained the complex relationship between RFTA, the City of Glenwood Springs, the Traveler Senior Transportation Program (the Traveler), and other entities in the area and the various transportation service arrangements. The Traveler had been providing transportation services to senior citizens and people with disabilities within the City of Glenwood Springs for many years before the city implemented a fixed route bus system. With fixed route came the requirement under the DOT ADA regulations at 49 CFR §37.121 for the city to operate ADA complementary paratransit service for persons with disabilities who are unable to take the regular fixed route bus.

By statute, complementary paratransit must provide a level of service that is comparable to that provided by the fixed route system (Public Law 101-336, Section 223). This includes, for example, a requirement to provide complementary paratransit service within the same area served by the fixed route system, defined under 49 CFR §37.131(a) as a corridor ¾-mile wide on each side of a fixed bus route.

The city now contracts with RFTA to operate ADA complementary paratransit through an arrangement with the Traveler. The Traveler provides ADA complementary paratransit alongside its longstanding senior transportation. Everyone over 60 years of age is automatically eligible for the Traveler senior transportation regardless of their disability status.

Requirement for an In-Person Assessment for Paratransit Eligibility

In your complaint, you state that RFTA sent an employee to your home to assess your need for ADA complementary paratransit and question the employee’s qualifications to make such a determination.

The goal of the ADA is an accessible fixed route system, with ADA complementary paratransit being a safety net for people with disabilities who are unable to take fixed route bus or rail. Transit agencies, with input from the communities they serve, devise the specifics of their individual eligibility processes for ADA complementary paratransit. The DOT ADA regulations at 49 CFR §37.125 set only broad requirements that all agencies must incorporate, such as written notification of eligibility decisions and an opportunity for an appeal. Your complaint does not allege that RFTA failed to follow these requirements.

Disability alone does not determine paratransit eligibility; the decision is based on the applicant’s functional ability to use the fixed route and is not a medical decision. Appendix D to §37.125 of the DOT ADA regulations explains:

The substantive eligibility process is not aimed at making a medical or diagnostic determination. While evaluation by a physician (or professionals in rehabilitation or other relevant fields) may be used as part of the process, a diagnosis of a disability is not dispositive. What is needed is a determination of whether, as a practical matter, the individual can use fixed route transit in his or her own circumstances. That is a transportation decision primarily, not a medical decision.

In-person functional assessments are a standard part of many transit agencies’ eligibility programs. Because eligibility is a transportation decision, there is no requirement that those performing the assessments have medical degrees as you suggest.

According to RFTA, you first contacted the Traveler for transportation on September 7, 2010. In that telephone call, you were informed that [the Traveler Supervisor], would call you to schedule an appointment for an assessment that he would conduct. The next day, on September 8, [redacted] called you and you initially agreed to schedule the assessment at your home on September 14. On September 9, however, you called and canceled the appointment, indicating that Traveler did not have a right to perform an assessment. Call logs indicate that you contacted the Traveler on several subsequent occasions to ascertain [redacted] qualifications, and during those calls said you would not allow anyone other than a doctor or therapist to assess you. On October 19, RFTA sent you a certified letter stating that you were ineligible for its Traveler service due to the inability to arrange a time for the assessment; the letter also included a telephone number to call to schedule an assessment if you wanted to reapply in the future.

If you wish to be considered for ADA complementary paratransit eligibility, you must complete all the steps of the RFTA eligibility process, including the in-person assessment.

Lack of Information About the Paratransit Eligibility Process

In your communications with FTA, you said the only information you received about the RFTA paratransit eligibility process was from an employee handbook. In its response to FTA’s information request, RFTA acknowledges that the only written information you were sent about the eligibility process was from its “Traveler Driver’s Handbook and Standards of Operations”; however, you were informed about the process verbally on several occasions.

RFTA informed FTA that over the past several months, and prior to receiving notice of your complaint, it had started developing revised written guidelines explaining the process to apply and qualify for ADA complementary paratransit. RFTA also committed to reviewing and updating information describing the paratransit eligibility process in a variety of its materials, which include, for example, its written policies and procedures, bus schedules, and the RFTA and the Traveler websites. Updated information is expected to be ready for dissemination within 45 to 60 days.

While RFTA proactively undertook steps to revise its documents, we do believe more public information on the ADA complementary paratransit eligibility process was needed and commend the agency for taking the initiative.

Prioritization of Non-ADA Service

As mentioned above, the Traveler provides both ADA complementary paratransit and non-ADA service for seniors (those above 60 years of age) and people with disabilities. In your complaint, you state that in your first call to the Traveler to inquire about paratransit service, the agent asked your age. When you responded “49,” she replied that they “are very busy with seniors.” You also indicated that staff had told you that seniors using Traveler have priority over ADA complementary paratransit riders.

RFTA looked into this allegation and said that Traveler staff members indicated they had no knowledge of anyone telling you that seniors receive priority over ADA customers. The Traveler does, however, occasionally use volunteer dispatchers, so it possible that you were given inaccurate information. As of August 2011, the Traveler indicated it was discontinuing allowing volunteers to perform dispatching duties out of the Glenwood Springs office. Staff members fully understand that seniors cannot take priority over ADA customers, according to RFTA.

While we cannot corroborate your specific allegation, we do have concerns about the possibility that certain individuals, especially those over 60 years of age, are being directed into the non-ADA Traveler service when they may qualify for ADA complementary paratransit. In describing its process to FTA, RFTA stated, “When a potential client under 60 years of age contacts the Traveler requesting ADA complementary paratransit service within the City of Glenwood Springs, Traveler staff completes [the paratransit intake form].” It is reasonable to expect, however, that some of these older individuals have disabilities that prevent them from using fixed route service and would qualify for ADA complementary paratransit if given the opportunity to apply.

We believe that RFTA’s efforts to update its public information, as described above, will help clarify the different service options offered. We will also follow-up separately with RFTA and the City of Glenwood Springs to confirm that policies and procedures are in place to help ensure staff and current and potential customers fully understand the differences in the characteristics between the non-ADA and ADA complementary paratransit services and how to apply for paratransit, and that staff do not assume that older individuals will register for the non-ADA service.

It is important that people understand their transportation options in this case because the ADA complementary paratransit service has benefits over the non-ADA service. The ADA paratransit, for example, serves the City of Glenwood Springs and runs until 7:53 p.m. seven days a week—following the city’s fixed route schedule—while non-ADA Traveler service ends at 5:00 p.m. weekdays and does not operate on the weekends.

When delivering ADA complementary paratransit, a transit provider must also ensure all the service criteria are met in the DOT ADA regulations at 49 CFR §37.131. This includes, for example, providing eligible riders next-day service, scheduling rides within an hour of a rider’s desired pickup time, and refraining from a engaging in a pattern or practice of late pickups, trip denials, lengthy trips, and other operational practices. Non-ADA service is not subject to the requirements in 49 CFR §37.131.

Conclusion

Your complaint primarily involved RFTA’s requirement that you participate in an in-person assessment to determine whether you qualify for ADA complementary paratransit service. The information gathered does not support a finding that RFTA violated specific requirements of the DOT ADA regulations with regard to your application for ADA complementary paratransit. As explained, in-person functional assessments are a standard part of many transit agencies’ eligibility processes. The record shows that RFTA made several attempts to schedule your assessment. If you wish to be considered for paratransit eligibility, you must complete all the steps of the RFTA eligibility process, including the in-person assessment. In recent communications with FTA, RFTA again reiterated that it remains available to conduct the assessment if you would like to reinitiate the application process.

While we cannot verify the specifics of your telephone interactions with RFTA and/or Traveler and what information you received during those calls, we find that RFTA’s plan to enhance its public information materials relating to ADA complementary paratransit is responsive to your concerns. We will follow-up separately with RFTA and the City of Glenwood Springs, as explained, on their progress in ensuring the public is aware of the distinction between the ADA and non-ADA Traveler services and application process.

The investigative portion of this complaint has concluded. Accordingly, we are taking no further action and are closing your complaint as of the date of this letter. 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. 11-0078. Thank you for bringing your concerns to our attention, and we trust this letter is helpful.

Sincerely,

John R. Day
ADA Team Leader
Office of Civil Rights

cc:
RFTA
City of Glenwood Springs
FTA Region 8