July 14, 2011

Re: FTA Complaint Number 10-0371

Re: Complaint 10-0371

Dear Mr. Aesch:

Enclosed is a copy of the Federal Transit Administration (FTA) Office of Civil Rights’ disposition in response to a complaint filed against the Rochester Genesee Regional Transportation Authority (RGRTA) alleging discrimination under Title II of the Americans with Disabilities Act of 1990. The complainant alleged that he was wrongly suspended from Lift Line paratransit service after accumulating no-show violations that were outside his control.

The discrepancy between the complainant’s account and RGRTA’s prevented FTA from making a finding in this case. During our investigation, however, we identified a broader concern with RGRTA’s late cancellation policy that will require RGRTA to take corrective action. In response to our information request, RGRTA indicated that Lift Line customers must cancel by midnight the day before their rides or be charged a no-show violation. The Lift Line cancellation form on RGRTA’s website alternatively lists the cut-off as 5 p.m. the day before a trip. While RGRTA indicates it does not penalize riders for same-day cancellations outside their control, a policy of either 5 p.m. or midnight for standard cancellations is unreasonable.

The DOT ADA regulations at 49 CFR 37.125(h) allow a transit provider to establish an administrative process to suspend the provision of complementary paratransit service to ADA eligible individuals who establish a pattern or practice of missing scheduled trips. The regulations do not expressly permit any penalty for late cancellations. As an allowance to the industry, however, FTA has permitted transit agencies to count late cancellations in the same manner as a no-show but only when the late cancellations have the same effect on the system as a no-show. With this allowance comes the expectation that transit agencies will implement late cancellation policies that meet this threshold. In most cases, a transit provider should be able to absorb the capacity of a trip cancelled one or two hours before the scheduled pickup. An hour or two is typically sufficient notice for a transit provider to redirect a vehicle without any negative operational consequences. Transit agencies across the country with similar as well as smaller and larger paratransit ridership numbers as RGRTA have adopted late cancellation policies that are in line with FTA’s threshold.

By this letter, we are asking RGRTA to revise its policy so that late cancellations are treated as no-shows only when they are the operational equivalent of a no-show. Again, transit agencies can typically handle cancellations made one or two hours before the scheduled pickup. Please respond within 30 days of this letter with an update on actions taken to address our concerns.

If you have any questions, please contact me at (202) 366-4018 or via e-mail at john.day@dot.gov. Please reference FTA Complaint No. 10-0371 in future correspondence regarding this complaint.

Sincerely,

John R. Day
ADA Team Leader
Office of Civil Rights

Enclosure

cc:
Hal Carter, RGRTA
FTA Region 2

Enclosure: Letter to Complainant

Re: Complaint 10-0371

Dear [name withheld]:

This letter responds to your complaint against the Rochester Genesee Regional Transportation Authority (RGRTA) 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 compliance of that transit provider.

In your complaint, you allege that you were wrongly suspended from RGRTA’s Lift Line paratransit service for accumulating excessive no-shows. You contend that on July 10, 2010, you were advised by a Lift Line driver to decline your scheduled pickup because you were ill. He assured you this cancellation would not be considered a no-show. Your failure to travel was in fact counted as a no-show and resulted in a three-week suspension. You also mention that for over six months RGRTA has failed to provide necessary pre-day travel telephone confirmations. Additionally, you indicate that no-show “postcard warnings” received have been in small print and unsuitable to accommodate your visual disability. You had requested that RGRTA send all correspondence in large print.

Relevant ADA Requirements

Under 49 CFR §37.125 of the DOT ADA regulations, a transit provider “may establish an administrative process to suspend, for a reasonable period of time, the provision of complementary paratransit service to ADA eligible individuals who establish a pattern or practice of missing scheduled trips.” A pattern or practice involves intentional, repeated or regular actions, not isolated, accidental, or singular incidents. Transit agencies cannot base a suspension of service on any trips missed by a rider for reasons beyond his or her control, including trips missed due to illness, family emergency, or transit agency error or lateness. Before suspending service, a transit provider must notify the individual in writing, provide an opportunity for an appeal, and issue written notification of the decision and reasons for it.

Transit agencies must also provide certain information in accessible formats, upon request, for persons with disabilities. The regulations require that the entity make adequate information concerning transportation services to all to persons with disabilities available. “This obligation includes making adequate communications capacity available, through accessible formats and technology, to enable users to obtain information and schedule service.” (§37.167(f)).

RGRTA Response

In response to your complaint, we contacted RGRTA for more information. It provided a differing account of the July 10, 2010, incident. RGRTA maintains that on July 10 you boarded the Lift Line vehicle and later told the driver you wished to return home. According to RGRTA, you informed the driver that you did not want to go to the grocery store because you had gone to the store the day before and there was no need to go again. The driver called dispatch to get approval to transport you home. The dispatcher then notified the driver that you had additional rides scheduled later that day and asked if you wished to cancel them. You affirmed the cancellations and were transported back to your home. Within the hour, RGRTA notes that you contacted its scheduling department and asked to reinstate your other rides. When informed that you would incur same-day fare charges, you refused and instead scheduled rides for July 12 and July 13, 2010.

RGRTA states that you received a three-week suspension letter dated June 24, 2010, which you appealed. Pending the appeal you accumulated additional violations that warranted another three-week suspension. Even though you never formally appealed the second suspension, these violations were addressed during the appeal meeting. According to RGRTA, you provided no evidence of circumstances that would excuse your no-show violations and were thus suspended for six weeks.

RGRTA next states that it does not have a “call-back policy.” It provides travel confirmation when passengers make their initial reservation. Passengers may request a call-back to remind them of their scheduled pickup, but this service is only provided upon request. RGRTA contends that on January 20, 2010, you asked that your call-back reminder services be discontinued.

RGRTA confirms that on April 8, 2010, you requested warning and suspension letters be provided in large print. RGRTA acknowledged some issues in the past to ensure you received all correspondence in large print. RGRTA indicates that these issues were resolved and that you have received all Lift Line correspondence in large print since July 1, 2010.

Conclusion

We recognize the discrepancy between your and the transit provider’s account with regard to the no-show charges. We cannot confirm the specifics of your interactions or reconcile the differences in the accounts. The record indicates you were afforded opportunities to contest the charges and explain why the missed trips were out of your control. In the future, we encourage you to use RGRTA’s internal process to dispute any no-shows you believe were the fault of the transit provider or otherwise out of your control.

While we cannot address your experience specifically, we do have questions about RGRTA’s late cancellation policy. FTA has allowed transit agencies to count late cancellations in the same manner as a no-show but only when the late cancellations have the same effect on the system as a no-show. In most cases, a provider should be able to absorb the capacity of a trip cancelled one or two hours before the scheduled pickup. In response to your our information request on your complaint, RGRTA informed us that under its policy any cancellation made on the day of the ride is considered a violation unless that cancellation was outside the rider’s control. We are following up with RGRTA separately regarding its late cancellation policy.

The investigative portion of this complaint has concluded. 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 Dawn Sweet at (202) 366-4018 or via e-mail at dawn.sweet@dot.gov. Any further correspondence should reference FTA Complaint No. 10-0371. Thank you for bringing your concerns to our attention.

Sincerely,

John R. Day
ADA Team Leader
Office of Civil Rights

cc:
RGRTA
FTA Region 2