The following post was made to the Department of Transportation’s (DOT) Federal Transit Administration website, as a technical assistance note,  on April 13, 2011:

Technical Assistance Note
No Change to US DOT ADA Regulations for Service Animals and Mobility Devices

FTA has become aware of various inquiries from transit operators and members of the public concerning “new ADA regulations” that went into effect on March 15.  Of particular interest have been various provisions relating to service animals and how “wheelchair” is defined.

Please be advised that the U.S. Department of Transportation has issued no changes to its ADA regulations, which cover transportation provided by both the private and public sector.

The cause of any confusion has been a Final Rule issued several months ago by the U.S. Department of Justice (DOJ), which made a number of changes to their ADA regulations that went into effect on March 15, 2011.  While the purpose of DOJ’s revisions was to adopt the 2004 accessibility standards (which DOT did in 2006), they also contained language amending provisions for service animals and introduced a new distinction between “wheelchairs” and “other powered mobility devices” or OMPDs.

These changes to DOJ’s regs do not affect the DOT ADA regulations, which cover transportation (both public and privately-operated).  The DOJ regs do not compel transit operators to make any changes to their service animal policies or the manner in which they regard mobility devices, nor should transit operators elect to make any changes on this basis.  In fact, because the DOT and DOJ regulations now read differently in this regard, changes to accommodate DOJ regulations could result in a grantee being out of compliance with the DOT ADA regulations.

Any amendments to the DOT ADA regulations would be announced in the customary manner – through publication of rulemaking documents in the Federal Register, with an effective date.  Unless and until such documents are published, the DOT regulations remain unchanged.

The Department of Justice’s new definition (§ 35.104   Definitions) of service animal no longer identifies animals, domestic or wild, other than dogs as service animals. Miniature horses (§ 35.136   Service animals, (i)) must be allowed as a reasonable modification in policies of covered entities, subject to some exceptions and assessment factors.

As DOT’s definition allows a broader interpretation of civil rights for people with disabilities, it cannot be reduced by DOJ. DOT still recognizes any animal “individually trained to work or perform tasks for an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.” (§ 37.3   Definitions)

DOJ has also revised regulations defining mobility devices, specifically documenting other power-driven mobility devices. (§ 35.137   Mobility devices) DOT continues to use its common wheelchair definition. (§ 37.3   Definitions) The DOJ expansion of the definition of mobility devices allows larger, powered wheelchairs to go “in any areas open to pedestrian use” where they fit as a reasonable modification of policies, subject to some exceptions and assessment factors. DOT’s definition functions to describe the size and weight of a mobility device that at minimum must be able to board and maneuver to a securement location on a transit vehicle.

So what does all of this mean?

First, an individual with a disability who has a trained monkey that acts as a service animal, would be allowed – as a reasonable accommodation under the Fair Housing Act – to have the monkey in his residence and to board a transit bus for a trip to the library. However, upon reaching the library, presuming that the library, as a title II entity, limits the service animals that it permits to those defined by the DOJ’s part 35 regulations, the individual may be refused to have his monkey accompany him into the library.

Conversely, an individual with a disability who uses a Segway as his mobility device might be refused the right to board the transit bus, but would probably be admitted to the library  “unless the public entity can demonstrate that the class of other power-driven mobility devices cannot be operated in accordance with legitimate safety requirements that the public entity has adopted pursuant to §35.130(h).”

If you have questions about civil rights in transportation, provided by the ADA, please contact me or your regional ADA Center at 800.949.4232.

As always,  information, materials, and/or technical assistance provided here are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA.

I found this article in the Thousand Oaks Acorn, discussing changes to Dial-A-Ride paratransit services in Thousand Oaks, CA, to be informative and interesting. As an information specialist on all aspects of the Americans with Disabilities Act (ADA), I am particularly concerned about access to transportation for people with disabilities. The lack of transportation access contributes significantly to unemployment, isolation, and ongoing dependence for many people with disabilities.  For an informed understanding of no-show polices and best practices in the transit industry, I recommend reading “No-Shows In ADA Paratransit,” by Marilyn Golden at DREDF.

Bear in mind, that among the purposes of the ADA is the provision of equal access to integrated public services – such as public transportation – and that ADA complementary paratransit services were intended to provide a safety net for individuals who are unable to access fixed route transportation, until barriers preventing that access could be removed. Paratransit was never meant to be an entitlement or a special privilege for all people with disabilities. However, continuing difficulties with removing barriers in public rights-of-way, operation and maintenance of accessibility equipment, and procedural deficiencies (such as failure to announce stops on fixed route vehicles) have perpetuated, to a large degree, segregation and denial of access to fixed route transportation. Simultaneously, many people with disabilities have come to accept, for better or worse, that the stigma of “short bus” transportation is their lot in life.

In my experience, responding to requests for technical assistance, those who use paratransit service – which is demand-responsive by design – often find that the minimum requirement of paratransit – to schedule a next-day trip at a desired time (37.131(b)) – is problematic. Rides are reserved early – frequently before the need for them is confirmed – for fear that waiting till the last minute will not provide a workable trip time. Many view paratransit as a last resort – due to capacity constraints and other service deficiencies – and begin an immediate attempt to find another means of travel after making a paratransit reservation. Needless to say, this may have the unintended consequences of unmanageable numbers of late cancellations and no-shows. In response, many transit systems have developed policies to discourage late cancellations and no-shows, rather than addressing the root causes of this multitude of tentative and ill-fated reservations.

A better solution to this problem might be to find alternatives that offer more spontaneous, integrated access to public transit. Many systems across the country, have resorted to methods, such as travel training, analytical trip-by-trip eligibility, and flexible fixed route services, to convert trips from paratransit to fixed route systems. The creation of incentives and support services that encourage individuals with disabilities to use fixed route services have the dual advantage of reducing demand (and cost) for paratransit and providing a greater degree of spontaneous travel options for people with disabilities. And, incidentally, reduction in demand for paratransit service, by relieving capacity constraints, may result in better, more efficient delivery of service for those individuals and those trips that can only be served by special transportation.

If you have questions about civil rights in transportation, provided by the ADA, please contact me or your regional ADA Center at 800.949.4232.

As always,  information, materials, and/or technical assistance provided here are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA.

This article [by Eric Curl, 3 December 2010, Chatham County, Georgia] in the Savannah Morning News raises a number of interesting questions about ADA requirements regarding paratransit eligibility and the rights of individuals with disabilities.

Members of an advisory body for Chatham County’s residents with disabilities are fuming about some planned changes to Teleride – a van service provided by Chatham Area Transit that many rely on for transportation needs.

The FTA regulations explaining the requirements for transit providers and rights of paratransit customers, including eligibility criteria and no-show policies are stated in Code of Federal Regulations title 49, part 37. ADA Complementary Paratransit is meant to provide service comparable to fixed-route transit for individuals with disabilities who are unable to independently access fixed-route transit systems. Eligibility is based on functional ability to use (or not) fixed-route transit services (see 37.123), not on medical diagnoses. The regulations require that transit providers seek public input, including input from people with disabilities, when creating or making significant changes to their paratransit plans (see 37.137 & 37.139). Eligibility can be qualified under three categories (see 37.123(e)(1-3)) and may be unconditional, conditional (trip-by-trip eligibility), or temporary (see 37.123(b-c)). Paratransit service is specified as origin-to-destination and may be set by policy as either door-to-door or curb-to-curb, however, if an individual’s disability related limitations require door-to-door service, under some or all conditions, then door-to-door service must be provided under those conditions as a reasonable modification in policy (see 37.129). No-show suspensions are allowed by regulations (see 37.125(h)), but only when there is a pattern or practice of missed rides (for example, missing 3 trips of 50 -6%- scheduled in a month should not be viewed as a pattern or practice, while missing 3 of 10 -30%- trips probably is a pattern or practice)*.

Assistance with implementation and application of the transportation regulations of the Americans with Disabilities Act is available through your regional Disability & Business Technical Assistance Center (ADA Center) at 800-949-4232, or the FTA Office of Civil Rights at 888-446-4511, or Easter Seals Project ACTION at 800-659-6428.

See also DREDF documents for complete discussions of these topics, at:

ELIGIBILITY FOR ADA PARATRANSIT

ORIGIN TO DESTINATION SERVICE IN ADA PARATRANSIT

NO-SHOWS IN ADA PARATRANSIT

________________________

* See for comparison: Michael A. Winter, then Director, Federal Transit Administration Office of Civil Rights, letter to Richard White, Washington Metropolitan Area Transit Authority (WMATA), December 22, 2003.

The Digital Journal reports that a lawsuit filed on November 9, 2010, alleges that the New York City Taxi & Limousine Commission (TLC) discriminates against people who use wheelchairs. The suit was filed in U.S. Circuit Court for the Eastern District of New York by the United Spinal Association in response to the TLC practice of contracting group ride “van services” that provide public transportation.  United Spinal Association contends that these vans are not accessible to or usable by people with disabilities, including those who use wheelchairs.

The TLC’s failure to require that these ‘group ride’ vans  provide transportation for wheelchair users is symptomatic of a larger problem that continues to be ignored by New York City agencies at the expense of the city’s tax-payers; the increase in on-going, cost prohibitive paratransit services in lieu of providing basic transportation services that meet ADA requirements,” said Paul Tobin, President and CEO of United Spinal Association.

There are a number of sections of the Department of Justice’s part 35 regulations (covering state and local governments)  and Federal Transit Administration’s part 37 regulations (covering public and private entities that provide transportation services) implementing the Americans with Disabilities Act, that address the issues in this case. First, would be the requirement that:  “No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.” [§35.130(a)] The group ride “van services” provided under contract by the TLC are clearly the program, service, or activity of a public (title II) entity.

Next, “When a public entity enters into a contractual or other arrangement or relationship with a private entity to operate… demand responsive service, the public entity shall ensure that the private entity meets the requirements of [part 37]… that would apply to the public entity if the public entity itself provided the service.” [§37.23(a)] This means that even though private businesses are operating these vans, since they are contracted by the TLC, a public entity, the operators must “stand in the shoes” of the public entity with respect to title II of the ADA. However, “In the case of demand responsive service, a public entity is not required to buy an accessible vehicle if its demand responsive system, when viewed in its entirety, provides service to individuals with disabilities equivalent to its service to other persons.” [§37.23, Appendix D] A public entity is not always required to purchase new, accessible vehicles [§37.77(b)], but if their vehicles are not all accessible they must be able to provide equivalent service for people with disabilities, including those who use wheelchairs. A private business providing transportation services is not required to purchase accessible vehicles unless the vehicles are new vans with a capacity of eight or more; if the business purchases regular automobiles or vans with a capacity less than eight, the business must purchase accessible vehicles, “unless the system, when viewed in its entirety, meets the standard for equivalent service” [§37.103(c)]. This raises the question: What is equivalent service? A “demand responsive system, when viewed in its entirety, shall be deemed to provide equivalent service if the service available to individuals with disabilities, including individuals who use wheelchairs, is provided in the most integrated setting appropriate to the needs of the individual and is equivalent to the service provided other individuals with respect to the following service characteristics:

(a) Response time;

(b) Fares;

(c) Geographic area of service;

(d) Hours and days of service;

(e) Availability of information;

(f) Reservations capability;

(g) Any constraints on capacity or service availability;

(h) Restrictions priorities based on trip purpose.” [§37.105]

In summary, the private operators, depending on the capacity of their vans, and whether or not they were purchased new, may not be required to operate accessible vehicles. Neither would the TLC be required absolutely to purchase accessible vehicles. Nevertheless, private operators, contracting with the TLC, a public entity, share the public entity’s obligation to meet the equivalent service standard. Similarly, no qualified individual with a disability can be denied participation in or benefits of a public program, even if the program/service is operated by a private contractor.

Chapter 6 of the findings report of a July 2010, survey comparing gaps in quality of life between people with disabilities and people without disabilities includes responses about access to transportation. The report, published by The National Organization on Disability and the Kessler Foundation, based on a Harris Interactive phone survey of 1,001 people with disabilities and 788 people without disabilities states:

Accessible transportation is critical to the ability of people both with and without disabilities to participate in all aspects of society, including work, education, socializing, and religious, civic, and political activities. Accommodations made in each of these venues are essentially meaningless if people are unable to reach them.

Survey tables can be found on pages 117 – 120, of the report.

Commenting on a story in the Cleveland Plain Dealer, by Karen Farkas, June 28, 2010.

Use of fixed route transit systems allows independent, spontaneous travel for individuals with disabilities who depend on public transportation. By comparison to fixed route systems, ADA complementary paratransit does not typically offer real time access, freedom to change or add destinations to one’s trips, or the same sense of independence and self-reliance.

Chambers-Robinson and Schick acknowledge that some people with severe disabilities may not be able to walk to a bus stop or from the bus to their destination. But the travel trainers say many current dial-a-ride passengers could gain more freedom by riding a route bus instead of having to schedule their trips at least a day in advance.

Like the proverbial teaching to fish, travel trainers teach skills and foster confidence that will serve individuals with disabilities for the long-term. In addition to helping to establish greater independence and  spontaneity in travel options for people with disabilities, travel trainers are a wise investment for transit systems. People with disabilities who acquire the skills necessary to travel independently and can consequently eliminate or significantly  decrease the number of trips that require paratransit service are also reducing the operating costs of  transit systems. While the actual costs vary by location and system, typically, the cost of a passenger trip on paratransit is at least four or five times as much as the same trip provided by a fixed route vehicle. When travel training succeeds in converting paratransit trips to fixed route trips everyone benefits.

Reflecting on an article in The Boston Globe, by Eric Moskowitz, June 28, 2010

For many people with disabilities, access and opportunity promised by the Americans with Disabilities Act remain just out of reach. An employer must comply with Title I of the ADA,  which forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. State and local governments must comply with Title II of the ADA, and may not deny the benefits of their programs, activities, and services to individuals with disabilities because its facilities are inaccessible. Private businesses must comply with Title III of the ADA, allowing people with disabilities full and equal enjoyment of their “goods, services, facilities, privileges, advantages, or accommodations”. But, what if individuals with disabilities cannot travel to places of employment, private businesses, or state and local government offices?

Barriers that prevent individuals with disabilities from accessing public transportation in many instances also result in barriers to any of the rights promised by the Americans with Disabilities Act. While cars parked in bus stops may create an inconvenient circumstance for many who use public transit, for people with disabilities those cars may present an insurmountable barrier.

The  State of Massachusetts passed the Bus Stop Access Law last year, but:

…members of the MBTA’s Access Advisory Committee, which advocates for disabled commuters, and others say the law is being severely undercut by spotty enforcement.

It matters little if buses are accessible, if people cannot reach those buses. And the opportunities and rights denied to people with disabilities by those who park their cars at bus stops mean far more than a missed bus ride.

June 17, 2010

From Secretary of Transportation Ray LaHood’s  Fast Lane blog:

As the 20th anniversary of the Americans with Disabilities Act approaches–July 26–we are proud to announce today the first federal rule to specifically provide ADA protections to people with disabilities who travel on boats and ships.

This Administration is committed to protecting the rights of passengers with disabilities in all modes of transportation, and this new rule will extend that protection aboard maritime vessels.

It’s the right thing to do.