The Public Transit/Tourist Moblity Nexus

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The Disability Rights Education and Defense Fund (DREDF) is circulating the following announcement of proposed ADA regulations in the US. They are open for public comment.


From: Edit the contact: Justice For All Moderator Justice For All Moderator Date:Monday, June 26, 2006 7:33 AM
To: justice@jfanow.org
Subject: ALERT: DOT Proposes Changes in ADA Transportation Regulation
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ALERT! ALERT! ALERT!

From the Disability Rights Education and Defense Fund (DREDF)

Department of Transportation Proposes Changes
in ADA Transportation Regulation

YOUR COMMENTS NEEDED

* Has your transit agency cut back assistance to paratransit
riders recently?

* Could you or people you know successfully use the ADA
paratransit service, if there was no assistance beyond the
paratransit vehicle?

. . . . .

Your comments are needed by July 28, 2006 - this is a new
extended deadline -- on important proposed changes to the
Americans with Disabilities Act (ADA) transportation
regulations.

The U.S. Department of Transportation (DOT) is proposing
positive changes that are being very strongly resisted by most
public transportation providers. Disability advocates' support
is crucial to the outcome. DOT is also seeking comment on other
questions of importance to the disability community. Topics in
this rulemaking include:

* Should transit agencies be required to make reasonable
modifications of policies, practices, and procedures in order
to avoid discrimination, such as when providing ADA
paratransit to individuals who need assistance beyond the
vehicle to reach the facility door?

It appears that some transit agencies have responded to this
proposed change by ALREADY stopping service to paratransit
riders beyond the vehicle (that is, no assistance to or from
the building). If this is true where you live, submit a
comment to let DOT know.

Also tell DOT if you or people you know would be unable to
use the ADA paratransit service, if this type of assistance
was not available.

* Should rail systems provide full platform access?

* Should DOT use a Department-wide coordinated approach to
interpreting disability policy questions?

* Should transportation providers that acquire used vehicles be
required to make efforts to obtain accessible vehicles?

* Is there a problem with the exclusion of wheelchairs that
transportation providers say do not meet the "common
wheelchair" description?

Below are draft comments from the Disability Rights Education
and Defense Fund (DREDF) to help you write your comments. Please
DON'T send in this alert or the DREDF comments themselves.
Instead, WRITE YOUR OWN COMMENTS, borrowing ideas from the DREDF
draft if you wish, and adding your own experiences and concerns.

At a minimum, please submit a brief comment supporting DOT's
addition of a requirement for transit agencies to make
reasonable modifications of policies, practices, and procedures.

Your comments MUST include the docket number 2006-OST-23985 and
they are due by July 28. Comments may be submitted
electronically. Instructions for submitting comments, reprinted
from the DOT notice, appear below, and the DREDF draft comments
follow.

DOT's full Notice of Proposed Rulemaking can be found at
http://dmses.dot.gov/docimages/pdf95/387799_web.pdf.

* * * * *

>From DOT's instructions for submitting comments: You may submit
comments identified by the docket number [OST- 2006-23985] by
any of the following methods:

1. Federal eRulemaking Portal: http://www.regulations.gov
(follow the instructions for submitting comments);

2. Website: http://dms.dot.gov (follow the instructions for
submitting comments on the DOT electronic docket site);
[NOTE: DREDF found this the easier electronic option]

3. Fax: 1-202- 493-2251;

4. Mail: Docket Management System; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building,
Room PL-401, Washington, DC 20590-001.

Comments must be received by July 28, 2006. Comments received
after July 28, 2006 will be considered to the extent
practicable. You should include the agency name [Department of
Transportation] and docket number [OST-2006-23985] or the
Regulatory Identification Number (RIN) for this notice [RIN
2105-AD54] at the beginning of your comment. All comments
received will be posted without change to http://dms.dot.gov
including any personal information provided.

* * * * *

Disability Rights Education and Defense Fund (DREDF)

Draft Comments on U.S. Department of Transportation (DOT)
Notice of Proposed Rulemaking
Americans with Disabilities Act (ADA)

Docket No. 2006-OST-23985

Submitted by:
Marilyn Golden
Disability Rights Education and Defense Fund (DREDF)
mgolden@dredf.org

Issue: Modification of Policies and Practices:
DREDF supports adding this regulatory provision.

DOT Proposal:
DOT is proposing to add to its regulation a provision requiring
ADA transportation providers to make reasonable modifications to
policies, practices, and procedures when necessary to avoid
discrimination on the basis of disability, unless the transit
agency can show that the modifications would fundamentally alter
the nature of the service or activity, or would result in undue
administrative or financial burdens or a direct threat to the
health and safety of others.

As DOT notes, this requirement is not new. It is a fundamental
tenet of disability rights law, and has been included in various
regulations by the US Department of Transportation (DOT) and the
US Department of Justice (DOJ) under the ADA, Section 504 of the
Rehabilitation Act, and the Air Carrier Access Act. In a
transportation context, the provision addresses situations such
as the following:

* If there is a no-eating policy on the subway train, the
transit agency must allow a modification of the policy in the
case of a woman with diabetes who needs to eat on a
particular schedule.

* On the bus, if there is a policy that bus drivers may stop
only at designated bus stops, there may occasionally be a
barrier at a bus stop (e.g. construction, snow drifts) that
blocks use by passengers with disabilities. In such a case,
where it would not be unduly burdensome or dangerous, it
would be appropriate for the bus to move a short distance
from the stop to pick up a passenger using a wheelchair at a
place where the passenger could readily board.

* On the bus, if there is a policy that bus drivers may not
touch bus fare money, the policy must be modified in the case
of an man with a disability who is unable to physically
deposit his fare into the fare box and requests assistance
from the driver to help deposit the money. Were the transit
agency to refuse to modify the policy and subsequently deny
transportation to the man because he couldn't physically
deposit his bus fare, this would be a violation of the
"modification of policy" requirement.

This provision did not appear in the original DOT ADA regulation
because DOT expected transit agencies funded by the Federal
Transit Administration (FTA) to recognize they were covered by a
similar provision in the DOJ regulation for Title II of the ADA,
since the structure of the ADA makes transit agencies subject to
that regulation as well, and since DOT's 504 regulation
explicitly requires it. [ENDNOTE 1] Until recently, only one
appellate court had addressed the issue, and it appeared to
share DOT's view. [ENDNOTE 2] DOJ submitted a brief in that case
offering its agreement as well. However, in the wake of another
court decision that disagreed, [ENDNOTE 3] DOT is proposing to
adopt the provision into its own regulation in order to clarify
that it covers publicly funded transit agencies.[ENDNOTE 4]
(Privately funded transportation providers are already covered
by the same provision in the Department of Justice ADA Title III
regulation.)

DOT notes that the requirement is not absolute -- if modifying
the policy or practice would result in an undue burden or
fundamental alteration of transit agency services, the
modification need not be made, and the head of the agency can
make a written determination to that effect (though the agency
would be required to make an alternative modification of policy,
practice, or procedure that would not result in an undue burden,
fundamental alteration, or direct threat).

DOT also emphasizes that it is adding this provision in the
context of its financial assistance relationship with transit
agencies. DOT notes that there is language in the FTA Master
Agreement that requires recipients to acknowledge the
possibility of new federal regulations even after the execution
of the Agreement.

DOT's proposal discusses how its recent ADA paratransit guidance
on "Origin-to-Destination Service," posted at
www.fta.dot.gov/14531_17514_ENG_HTML.htm in September
2005, is an example of the modification of policy requirement.
That guidance stated that an agency providing ADA paratransit
under a "curb-to-curb" policy - that is, under a policy that
paratransit drivers will wait at the curb for passengers rather
than going to the door to assist them - may occasionally need to
provide service beyond that point, if necessary to ensure that
the individual can reach his or her destination. Examples
include:

* If a physical barrier such as sidewalk construction or snow
prevents a passenger from getting to the vehicle, the service
provider must offer assistance beyond the curb not
necessarily to all passengers, but to this particular
passenger.

* A rider who uses oxygen, who wishes to stay on his main
oxygen supply until the last moment so he doesn't use up his
portable supply while waiting at the curb, and who doesn't
have a window in his apartment making it possible to see the.
vehicle arrive, may need the driver to come to the door.

But DOT emphasizes that such assistance would not need to be
provided if it creates an undue burden, fundamental alteration,
or direct threat. For example, transit providers would not be
required to:

* Provide personal [attendant] services

* Go beyond the doorway to assist a passenger

* Leave vehicles unattended for lengthy periods of time

* Lose the ability to keep their vehicles under visual
observation.

* Take any actions that would present a direct threat to safety

Such activities would, according to DOT, "come under the heading
of 'fundamental alteration' or 'undue burden'."

DREDF Response:
DREDF strongly supports adding this provision. Most transit
providers have misunderstood their coverage by the DOJ
regulation, and have disregarded the provision in their 504
regulation clearly mandating coverage by the DOJ regulation. It
should be made clear that this requirement applies to transit
agencies. Adding it to the DOT regulation would achieve that
end.

In DREDF's view, the impact on transit agencies would not be
significant, if it is properly understood. For example, in the
area of origin-to-destination paratransit service, many systems,
possibly as many as 50%, have door-to-door policies at the
current time, with no record of safety or insurance problems.
Such agencies have worked out the operational issues involved
and come to the conclusion that door-to-door service is not
operationally burdensome.

It should also be noted that some individuals with disabilities
cannot use ADA paratransit service without minimal assistance
beyond the vehicle. These individuals, who also cannot use the
fixed route service, are exactly those whom ADA paratransit is
intended to serve.

Further, virtually all transit agencies have general liability
insurance in addition to their automobile (vehicle) liability
policy, and that general policy covers the driver beyond the
curb. Thus, following DOT's guidance will not increase insurance
costs.

Moreover, the vast majority of drivers in curb-to-curb
paratransit systems say they provide door-to-door assistance
when it is needed, out of basic decency and also for practical
reasons. Transit agencies with curb-to-curb policies are
probably at more risk now by having practices that differ from
their policies and by not having policies on issues such as when
the driver can leave the vehicle, can the driver lose sight of
the vehicle, and what does effective control of the vehicle
mean. Arguably, agencies are more at risk for something to go
wrong if they maintain the pretense of a curb-to-curb policy
when many drivers are actually performing a modified door-to-
door service. Furthermore, general effectiveness is not
increased if drivers must wait until a rider notices that the
vehicle has arrived or watch someone struggle rather than assist
the person. Transit agencies as well as their passengers would
be better served by explicitly including the occasional
additional needed service.

We also note that in most ADA paratransit eligibility
applications, there's a question about whether or not the
applicant can wait 10 or 15 minutes for a fixed route bus
without a bench or a shelter. If applicants can not, they are
deemed paratransit eligible. It is inconsistent to say that this
condition confers eligibility and then to require the same
individuals to wait 30 minutes at the curb during the on-time
window that is usually applied in ADA paratransit for a vehicle
to arrive.

Similarly, we do not expect other areas of transit agency
operations to be unduly burdened by the addition of a
modification of policy requirement. All other organizations
covered by the ADA - employers, state and local governments,
public accommodations, and private transportation providers -
are covered by this requirement or a comparable one in every
service, program, and activity that they engage in. We see no
reason why public transit agencies should be exempt from this
basic tenet of disability rights law.

RESPONSE TO COMMENTS ALREADY SUBMITTED TO THE DOCKET

According to comments that have already been submitted to the
docket, the transit industry is strongly resisting this
proposal. The resistance appears to be based on some
misunderstandings. First, if modifications of policies and
practices would result in great expense or the endangerment of
drivers or other passengers, the modifications are clearly not
required by the DOT proposal. Some transit agency comments
misunderstand the proposal as a requirement to customize every
paratransit trip according to rider preference. This is an
exaggeration of the actual proposal, which would only require
transit agencies to modify policies and practices when needed to
avoid discrimination on the basis of disability, with clear
strong limitations. And as stated above, every other covered
entity under the ADA, whether a privately funded transportation
provider, public accommodation, state or local government, or
employer, is under the same or a very similar requirement, and
for none of them has it meant highly customized services subject
to the whim of individuals with disabilities, as appears to be
the perception of some industry commenters.

Beyond the ADA Regulation

Another significant and disturbing misunderstanding by
transportation providers is reflected in some of the comments.
For example, the comment by a coalition of transit agencies from
various locations in Colorado, Texas, California, New York,
Missouri, Washington State, and Utah, stated "Neither DOT nor
FTA had, prior to last year, indicated that transit properties
had any transportation obligations beyond those incorporated in
the [DOT ADA] regulations, and for paratransit, what was
incorporated in their FTA-approved paratransit plans."
Elsewhere, it stated:

DOT's view of the requirements of '504 of the Rehabilitation Act
has changed as well. Before the ADA was passed, the author of
the current NPRM expressly stated that "special accommodations"
(the equivalent of "reasonable modification") for persons with
mental, visual or hearing impairments were not required under
504 as interpreted by DOT regulations and concluded that to
impose such a requirement would require an amendment to the
regulations (52 FR 30803 (DOT Docket 45162) (1987)). We are
unaware of any such amendment ever being made.

It is truly unfortunate that such a broad cross-section of
transit agencies in the U.S. is unaware that, in fact, the DOT
Section 504 regulation has changed. When the DOT ADA regulation
was published in 1991, a revision to DOT's Section 504
regulation, reflecting the new ADA mandates by Congress, was
also published. It is 49 C.F.R. '27.19 (commonly called Part
27), and it was contained in the same hard copy of the Federal
Register as is Part 37, the DOT ADA regulation. This Section 504
regulation is also posted on the FTA ADA website at
www.fta.dot.gov/ada, and transit agencies can retrieve it by
clicking on the title "Nondiscrimination on the Basis of
Disability in Programs and Activities Receiving or Benefitting
from Federal Financial Assistance (Part 27)." This not-so-new
Section 504 regulation clearly states:

Sec. 27.19 Compliance with Americans with Disabilities Act
requirements and FTA policy.

(a) Recipients subject to this part (whether public or private
entities, as defined in 49 CFR part 37) shall comply with all
applicable requirements of the Americans with Disabilities Act
(ADA) of 1990 (42 U.S.C. 12101-12213) including the Department's
ADA regulations (49 CFR parts 37 and 38), the regulations of the
Department of Justice implementing titles II and III of the ADA
(28 CFR parts 35 and 36), and the regulations of the Equal
Employment Opportunity Commission (EEOC) implementing title I of
the ADA (29 CFR part 1630). Compliance with the EEOC title I
regulations is required as a condition of compliance with
section 504 for DOT recipients even for organizations which,
because they have fewer than 25 or 15 employees, would not be
subject to the EEOC regulation in its own right. Compliance with
all these regulations is a condition of receiving Federal
financial assistance from the Department of Transportation. Any
recipient not in compliance with this requirement shall be
subject to enforcement action under subpart F of this part.
(emphasis added)

Thus, Section 504 of the Rehabilitation Act of 1973 has required
transit agencies to comply with the Department of Justice ADA
Title II regulation, which includes a requirement to modify
policies, practices, and procedures when necessary to avoid
discrimination on the basis of disability, since 1991. This
requirement under Section 504 is independent of any ADA
requirement. DREDF strongly encourages all transit agencies to
familiarize themselves with their current Section 504
regulation. The fact that so many large transit agencies are
unaware of this existing obligation also argues in favor of the
proposed change so that requirements will be consistent and
clear across all of DOT's regulations.

Even if the "modification of policy" framework was never
required before (though DREDF's legal analysis is much to the
contrary, as just stated), FTA has applied the "modification of
policy" principle regularly in its complaint investigations on a
number of publicized occasions.[ENDNOTE 5] And in responding to
requests from the transit industry, the same logic has been
used, such as when FTA decided that transit personnel must
assist riders with fares, and that transit can refuse riders'
requests for sedans instead of vans. The current DOT proposal is
not a sudden, dramatic whim, as portrayed in industry comments,
but was triggered by the Melton case, necessitating that DOT
take the framework it has used to consider these questions and
insert it explicitly into the regulation. The provision's logic
can continue to be used by transit agencies to decide the
appropriate answers to any questions and requests raised by
riders into the future.

The transit agency coalition comment also referred to a
provision in the DOJ regulation, '28 CFR 35.102(b), arguing that
it exempts public transit from coverage of the DOJ rule. But the
Department of Justice explained in its amicus brief in the
Burkhart case in the DC Circuit that this provision means that
transit providers are exempt only to the extent that Subtitle B
of Title II of the ADA (implemented by the DOT ADA regulation)
imposes specific transportation requirements. In DOJ's view,
matters not explicitly covered by Subtitle B, such as reasonable
modifications of policies, practices, and procedures, and the
provision of auxiliary aids and services, are covered by its own
rule.

Lack of Data
------------
Regarding how the proposed change would affect levels of
paratransit assistance (door-to-door assistance on at least some
occasions), which the above-mentioned DOT guidance already
requires, the same coalition of transit agencies alleged that
the DOT proposal would increase dwell time and costs. But it
offered no data to support the allegation. The comment also
expressed dire safety concerns, but again, no data was provided.
The coalition only offered allegations of increased risk,
supported by a couple of non-specific anecdotes from among their
13 million rides as evidence of the claimed problem. But, as
noted above, a significant percentage of transit systems have
policies to provide door-to-door service already, and we are not
aware of any documentation of lower productivity, higher
insurance costs, higher operating costs, or documented safety
issues. In fact, some experts in the field feel that door-to-
door service may actually lower dwell times by more immediately
alerting riders that vehicles have arrived and avoiding
situations where drivers wait for passengers at the curb when
the rider does not know the vehicle is there. Experts we
consulted have also indicated that door-to-door service likely
helps reduce no-shows, which the industry has noted are costly
and unproductive.

Ongoing Evolution of the ADA
----------------------------
In general, many of the transit industry's comments basically
state or imply that if the original DOT regulatory requirements
for ADA paratransit, written more than 15 years ago, were not
able to foresee the need for a particular provision, then it
should not be added, unless it is voluntary for the transit
industry to provide. But realistically, it is not possible that
the people who shaped the ADA statute and regulations could
anticipate every provision that would ever be needed. As time
goes by, the ADA's legal provisions may be in need of further
shaping as conditions change. New policies and new procedural
issues will arise, and there must be some approach in the law
through which to evaluate them. DOT's proposal offers just such
an approach, and it could hardly be more flexible.

Understanding How the "Modification of Policy" Provision Works

The transit coalition comment also presented a long list of
examples of rider requests for various service modifications
that have been received by transit agencies. The list actually
made a very different point than the one the transit agencies
are putting forward. It showed how many issues not originally
thought of at the time the regulation was written, have come up
in actual practice. It is important that there be a way to
evaluate and act on these requests. Formal incorporation into
the DOT regulation of the DOJ provisions on modification of
policies and practices should help transit agencies address
present and future requests in a consistent and legally sound
way. The coalition's list is, in and of itself, evidence that
transit agencies must already make decisions about individual
requests all the time. They must already have procedures for
doing so. To argue that the regulatory change will, for example,
cause drivers/operators to be put into the position of having to
make tough decisions on the street, ignores the fact that this
is already the case. The proposed incorporation of reasonable
modification principles gives transit agencies a more formal,
legally sound, consistent way to address the requests they are
already getting.

Many industry objections show a lack of understanding of this.
For example, some comments argue that paratransit operators
(drivers) are not able to decide on the spot if a request is a
fundamental alteration. Why can't they radio in to the
dispatch/control center and pose the question? If no answer is
available at the time, or if the answer is that the request is
not consistent with current policy, the operators can simply be
directed to follow their standard procedures, and tell the rider
to make the request for a modification of policy to the agency
for the next ride, so the matter can be considered. This is
probably what is already being done across the industry. In
another example, the coalition comment argued that, if the
modification of policy provision is incorporated into the DOT
regulation, service will vary greatly from system to system,
with an inconsistency that is to the detriment of riders with
disabilities. Yet riders using more than one system already face
this very inconsistency, because currently there is no uniform
approach by transit agencies for making decisions about such
requests. Each agency is deciding for itself whether to grant
typical service modifications. If anything, adding the provision
will result in greater consistency, by providing a legally
consistent approach to be used from system to system.

The coalition of transit agencies also objected to having a
legal obligation for making decisions about requested
modifications, preferring that such decisions be made locally,
outside of any legal framework, and suggested that transit
agencies today are already making these decisions in a non-
discriminatory manner. However, riders with disabilities deserve
better - and are accorded better by the ADA - than to simply
trust their transit agencies to do the right thing. This
suggestion by transit agency commenters is completely
inconsistent with the implementation of nondiscrimination
regulations. When making decisions about the rights of riders, a
sound legal basis and process is essential.

One other interesting comment was submitted by Richard DeRock of
Link Transit in Washington State. It presents in-depth examples
of various service modification requests Link Transit has
received from riders with disabilities, and explains which ones
Link accommodates, and why. The comment's stated purpose in
presenting the examples is to illustrate the potential impacts
of adding many variables to service, which, it states, will
reduce reliability and predictability in service delivery to a
very deleterious extent.

DREDF's main response to Link Transit's examples is that this
comment, generally speaking, shows exactly the type of careful
analysis that the "modification of policy" proposal would
require. In most of the examples, the comment explains how Link
provides the accommodations to some degree, because Link can do
so without extensive changes - in other words, the
accommodations are not a fundamental alteration of Link's
services, and/or do not pose undue burdens or a direct threat.
The comment also explains why Link does not provide 100% of the
requested accommodations, using perfectly appropriate reasoning
which shows that to provide them would result in such a
significant impact on service that it would be a fundamental
alteration, an undue administrative or financial burden, or a
direct threat. Thus, in one way, the Link Transit comment falls
prey to a common misunderstanding by transit agencies of the DOT
proposal, by incorrectly assuming that every requested
modification must be provided. Yet in another way, the Link
Transit comment is a perfect example of what compliance with the
DOT proposal might look like - an analysis of when the
modifications are acceptable, versus when they cannot be
provided without running afoul of the very exceptions that DOT
is offering transit agencies as a way to mitigate the proposal's
impact.

For example, under the heading "Stop Locations," the Link
Transit comment says that picking up a person at other than a
defined stop location is fraught with serious safety and
reliability issues, such as drivers not seeing the passengers,
creating conflict on the bus between drivers and passengers,
increasing radio and dispatch time, and requiring bus operators
to make significant off-the-cuff safety decisions. But the
comment states that Link drivers "will (if it is safe) re-
position the vehicle to avoid parked cars, snow banks and
construction." Yet this is exactly what the DOT proposal states
would be a reasonable modification of policy. DOT is not saying
that passengers with disabilities must be picked up anywhere
along a route they wish, but merely that, if bus drivers can't
board someone at a stop because the area is temporarily
inaccessible, they should attempt to move to a location in the
immediate vicinity (not halfway down the block) that works. Many
commenters reacted vigorously in opposition to this DOT example,
in each case blowing it out of proportion.

In another example, the Link Transit comment states that
periodically, it receives requests to provide paper tickets
because tokens and coins are difficult for some persons with
disabilities to handle. Link does not do so, because the cost of
processing paper tickets is substantially higher than that of
tokens; a figure of $25,000 per year is cited. This is an
example of a modification that would pose undue financial
burdens, and is therefore not required by the DOT proposal.

The Link Transit comment also addresses a rider who, due to
diabetes, must eat frequently, including, according to the
rider, just before paratransit rides, causing delays of up to 20
minutes. Other riders have requested for the vehicle to wait
until they use the restroom just before the ride, posing delays
for other passengers over 20 minutes long. This accommodation is
so frequently requested that the cumulative impact would be very
extensive. This is an example of undue financial and
administrative burdens, so the accommodation could be legally
refused. In another example, the comment describes how one fixed
route was replaced with a route deviated service. There was one
frail elderly woman who lived on the route and took paratransit
before the mode change. The paratransit operators had been
pulling into her steep driveway, which she does not have the
strength to walk up. The paratransit vehicles were mini-vans
that could navigate the driveway (thus providing a reasonable
modification of policy), but the route-deviated bus, a much
larger vehicle, could not. The rider asked that Link restore
paratransit service to her, but since her home is 40 miles from
the nearest Link paratransit service, the cost would be $100,000
annually, an undue burden.

The Link comment states there would be a very high cost to
making written determinations of undue burden, fundamental
alteration, and direct threat. But it appears to DREDF that Link
and other transit agency commenters are exaggerating the impact
of the documentation requirement. Any system needs to be
prepared to defend its decisions in response to rider requests.
Not all requests would need unique, separate documentation. Once
a single request related to a particular issue is documented,
all other similar requests could be answered by this precedent-
setting documented decision. DREDF believes that transit
agencies will not be overwhelmed with requests that will each
require unique documentation. Experiences from other covered
entities already subject to the proposed provision indicate that
only occasional documented decisions are necessary.

One last point on the Link Transit comment is about the
comment's section on Door to Door Service. Link provides
universal modified door-to-door service with certain
limitations. The door must be within the line of sight of the
vehicle; drivers cannot go through doors but may open public
doors and announce their presence; and there are certain other
restrictions. The comment makes the point that prior to adopting
universal door-to-door service, Link provided door-to-door
service upon the passenger's request. Having the service be
variable (some passengers got door-to-door, others got curb-to-
curb) caused reliability problems. Passengers expecting one type
of service would miss the vehicle if the driver expected
another, resulting in missed trips and no-shows. Universal door-
to-door service resolved the problems. Interestingly, Link
Transit does not cite extra costs accompanying this change. It
is true that a consistent approach will avoid problems, and the
Link Transit experience appears to show that door-to-door
service is not the costly addition that some other comments have
claimed - even though DOT has not proposed requiring universal
door-to-door service to all passengers.

At the time of the writing of these comments, DREDF has been
hearing a few reports of what is possibly a recent, unfortunate
trend. Some transit agencies that have formal curb-to-curb
policies but whose drivers have, in the past, tended to offer
more assistance to those individuals who need it, have recently
been telling drivers not to provide such assistance. In at least
one large city, riders are in an uproar about the issue, because
some of them have been successfully using the system and now
cannot, or are encountering great difficulties doing so. It
appears that these transit agencies are ignoring the recent ADA
paratransit guidance on "Origin-to-Destination Service" (posted
at
www.fta.dot.gov/14531_17514_ENG_HTML.htm). It is
important for DOT to know if this reaction by transit agencies
is widespread. It would be a very sad result of DOT's proposed
rule change if the effect is the entrenchment of inflexible
curb-to-curb policies, contrary to recent DOT guidance, even in
those instances when a small number of individuals with
disabilities need a little more assistance, and had been
receiving it successfully before this proposal was published.

Issue: Adding other provisions from DOJ regulation
DREDF recommends adding at least two other provisions.

The DOT proposal asks if there are other provisions in the DOJ
regulations that may need incorporation into the DOT ADA rules.
DREDF sees the need to add, at a minimum, a provision on general
non-discrimination, and one requiring auxiliary aids and
services.

Auxiliary Aids and Services
---------------------------
The ADA requires the provision of auxiliary aids and services,
which are measures to provide communications accessibility, when
needed to avoid discriminating on the basis of disability,
unless providing the auxiliary aid or service would
fundamentally alter the program or activity, or result in an
undue burden. In a transit context, this requires, for example:

* If a transit agency distributes a bus or train schedule in
print form, it must be provided in an alternate format usable
by a person with a visual impairment, such as via the
telephone or in a digital form, upon request as appropriate.

* If a transit agency holds a public hearing and an individual
who is deaf requests a sign language interpreter, it must be
provided, upon request as appropriate.

It is important that all transportation providers, whether
public or private, be covered by this provision. If the presence
of this requirement in the DOJ regulation is not sufficient to
cover all transit agencies (e.g. in the Fifth Circuit, due to
the Melton decision), the provision should be added to the DOT
regulation.

General Non-Discrimination
--------------------------
DOT should also include general non-discrimination prohibitions
in its regulation, such as the provisions found in the DOJ ADA
regulation under Title II at 28 CFR '35.130. As the Department
of Justice argued in its amicus brief in the Burkhart decision:

(The ADA's Title II) Part B's transportation-specific provisions
are not intended to address all forms of disability-based
discrimination that may occur in the transportation setting. In
particular, they do not address the forms of discrimination that
may occur in any public setting - - such as the outright denial
of service or the failure to assure effective communications
with people with disabilities. If Title II(A) and its
implementing regulations did not apply in these circumstances,
the ADA's prohibition against the basic forms of discriminatory
exclusion would not apply in the transportation setting.
[emphasis added]

Or, as the brief argues compellingly in a later section:

then the ADA would permit public transportation organizations
wholly to exclude people with disabilities from the use of their
services so long as their vehicles and facilities were
physically accessible.

The original section continues:

The text of the ADA makes clear that Congress did not intend
that absurd result. With respect to those forms of
discrimination that are not addressed in Part B, Part A's
general rule of nondiscrimination applies, as do the Attorney
General's regulations implementing that rule.

But if the DOJ regulations implementing Title II Subpart A of
the ADA might be considered inapplicable to publicly funded
transit agencies (as DOT appears to be conceding is the case in
the Fifth Circuit), then those general non-discrimination
prohibitions are important to add into the DOT regulation.

Issue: Commuter and Intercity Rail Station Platform
Accessibility:

DREDF agrees with DOT's proposal
--------------------------------
Summary of DOT Proposal:
DOT's proposal is structured to require level entry boarding at
new commuter and intercity rail stations from a fully accessible
high platform, with a ramp or bridgeplate if necessary, making
it possible for everyone to board any accessible train car. The
proposal would avoid, if at all possible, the use of mini-high
platforms to provide disability access to the train on commuter
rail, allowing mini-highs only as a very last resort.

DOT currently requires level entry boarding, with a vertical gap
between the car entrance and the platform of no more than 5/8
inches, and a horizontal gap of no more than 3 inches. Where it
is not operationally or structurally feasible to meet these gap
requirements, alternate solutions are allowed, but level entry
boarding is preferred, as it is the accessibility solution that
provides service in the most integrated setting.

However, the Federal Railroad Administration (FRA) has
established that, on intercity and commuter rail systems, these
current gap requirements are unrealistic. DOT is thus proposing
new platform design requirements for newly built commuter and
intercity rail facilities. If the current gap requirements must
be exceeded, there may be a horizontal gap up to 10 or 13 inches
(depending on the type of railroad track) that would be accessed
by a bridge plate or ramp to facilitate independent boarding by
passengers with disabilities who cannot step across the platform
gap. The wider gap will be needed, in some cases, to allow for
necessary railroad clearances. Any vertical gap would need to be
bridged by a bridge plate or ramp with a 1:8 slope or less,
under a 50% passenger load. Bridge plates would need to connect
the platform with each accessible car.

Only if the rail system determines (with the concurrence of the
FRA and FTA) that meeting the above requirements is not
operationally or structurally infeasible could the rail system
use an approach other than level entry boarding, such as mini-
high platforms or lifts. Even in such cases, the rail system
would be required to ensure that access is provided to each
accessible car on the train.

DOT is not proposing any change to its current requirements for
rapid rail (e.g. subways) and light rail (e.g. streetcars), only
for intercity and commuter rail.

DREDF response:
DREDF fully agrees with this approach. Mini-high platforms are a
very poor form of access in a commuter rail context. They put a
person with a disability out of the general public way,
sometimes out in the rain or snow. Even worse, they necessitate
that the train move in small increments to align its cars, one
by one, with the mini-high platform (also known as double
stopping), which is very difficult and time-consuming, and yet
which must be done on a permanent basis if mini-high platforms
are allowed. The only way to avoid double-stopping would confine
people with disabilities to only one car on the train, although
the ADA properly requires access to all accessible cars. Thus,
the use of mini-high platforms would necessitate either the
long-term operationally onerous practice of double-stopping, or
would institutionalize a permanent segregated solution in which,
no matter how many accessible cars are present, people who
cannot walk up the steps would be limited to one car on the
train.

Thus, high-level accessible platforms, with bridge plates if
necessary, are the only proper solution, particularly in new
construction. Bridge plates are acceptable, given the wider gaps
that may often be unavoidable in commuter and intercity rail
systems. Similarly, the 1:8 slope is probably the best possible
solution for the vertical gap, given the context in commuter and
intercity rail facilities where, even in newly constructed
stations, the bridge plate must be readily portable and function
with a variety of existing rail cars up to 30 years old with
varying floor heights.

DOT has asked whether the requirements for alterations of pre-
existing commuter and intercity rail facilities should meet the
same standards as in new construction. DREDF's view is that,
like in other parts of the ADA, altered rail stations should
meet the new construction standards to the maximum extent
feasible. In the occasional case where the standards cannot be
fully met, the alterations should be required to comply as
closely as possible. As in the context of alterations to
buildings, cost should not be a factor in determining maximum
extent feasible.

DOT also mentions that sometimes, difficulties in providing
level-entry boarding from a fully accessible high platform stems
from disagreements between commuter rail authorities and freight
railroads whose track the commuter railroads use. DOT has asked
whether its current regulatory section requiring cooperation
between commuter and intercity station owners and the parties
attempting to implement the ADA will suffice to address this
problem, or whether an addition is needed. In DREDF's view, an
addition is necessary. The existing provision addresses the
owners of intercity and commuter rail stations, but what about
the owner of the railroad itself, such as a freight railroad
company like CSX or Union Pacific, which is not also the owner
of an intercity or commuter rail station? This additional class
of entities needs to be included in a requirement for
cooperation.

According to comments that have already been submitted to the
docket, many rail operators are presuming that DOT's proposal
would require retrofitting of existing stations, based on DOT's
new construction definition as applying to stations built after
1991. However, that is not an accurate interpretation of the
meaning of new construction in the ADA. DOT's proposal would
only apply to stations that are built after the proposal becomes
effective. It should be added that commenters responding to
proposals related to structural access in new facilities are
often confused that those proposals would require the changes in
existing facilities; many commenters responding to every
structural access rulemaking done by the U.S. Access Board have
had a similar misunderstanding.

Another misinterpretation is the view of some rail providers
that every single car at every single train stop would require
bridgeplate deployment. At least one comment makes this
presumption. The comment totals the dwell time that would be
added, and it is considerable. However, bridgeplate deployment
would only be necessary when there is an individual with a
disability present who needs the bridgeplate. The exaggeration
of the potential increase in dwell time is reminiscent of the
exaggerated concerns of some bus operators when it was first
being proposed that wheelchair users be accommodated on fixed
route buses via lifts. The dire predictions of schedule havoc
that would surely result if wheelchair users were allowed to
board the bus never came to pass. Today, many transit agency
managers would scoff at such an allegation, because of their own
positive experiences in accommodating people with disabilities
on their fixed route systems. Yet some in the rail industry are
expressing a similarly exaggerated fear about DOT's level
boarding proposal.

Issue: Disability Law Coordinating Council (DLCC):
DREDF supports DOT's codifying of the DLCC

Summary of DOT Proposal:
DOT proposes to add a provision to its regulation that DOT's
Disability Law Coordinating Council (DLCC) would coordinate DOT
guidance and interpretations on disability-related matters. The
DLCC is functioning currently under a 2003 memorandum from
Secretary Norman Mineta. The DLCC ensures consistent
interpretations among all of DOT's modal administrations
including FTA, FRA, etc.

DREDF Response:
DREDF supports the DLCC approach to guidance and interpretations
of disability civil rights laws including the ADA, Section 504,
and the Air Carrier Access Act. The presence of a department-
wide coordination mechanism such as the DLCC ensures that
knowledge and experience from all parts of the agency will be
brought to bear on important questions of disability civil
rights law. Historically, some of DOT's offices have functioned
more like banks dispensing government dollars to powerful
friends than regulators ensuring the public good. Requiring
interpretations of disability rights laws to go through the DLCC
helps ensure that a consistent department-wide high standard is
brought to bear on all-important questions of disability civil
rights law guidance and interpretation.

DOT Request for Comment on Other Issues
---------------------------------------
DOT #2. Additions to Key Stations
DOT asks whether transit agencies should have the responsibility
to identify additional key stations as circumstances change,
such as when a station becomes a major destination point due to
new development like the building of a stadium or convention
center. The answer is yes - these and other changing conditions
might necessitate the addition of key stations to the list made
originally by a transit authority. As conditions change over
time, the designation of key stations should be legally required
to respond to these changes. Appropriate deadlines should be
established, based on when the stations are added. This would
need a regulation change.

DOT #3. Heritage Fleets
DOT asks if "heritage fleets" of vintage streetcars acquired in
the global marketplace for use in revenue service are
appropriately covered by the ADA regulation as it is today, and
whether it is acceptable if the result is that these systems
remain inaccessible (for example, if providing access would
compromise the vehicles' structural integrity). It is DREDF's
view that the regulation today covers these systems adequately.
When used vehicles are acquired, the ADA requires making good
faith efforts to find accessible vehicles. If vehicles are
altered to the point of remanufacture, they are required to be
accessible to the maximum extent feasible. These rules have
successfully resulted in some accessible heritage fleets. For
example, New Orleans and Seattle both have accessible heritage
trolleys. In the New Orleans example, the old cars were
refurbished and there are raised wooden platforms and a small
bridgeplate to facilitate access. The Seattle system has level
boarding.

DOT #4. Non-Amtrak Intercity Rail
DOT asks if changes to the regulation are needed to provide
access to intercity rail service provided by entities other than
Amtrak. In DREDF's view, it is important that DOT clarify in
some way that non-Amtrak intercity rail systems are covered
under the general ADA provisions for designated or specified
transportation. We note that in Part 38, the vehicle guidelines,
Subpart H states that requirements for any type of rail not
already listed shall be determined by DOT in consultation with
the U.S. Access Board. These other systems are not exempt.

DOT #5. Publicly Funded Demand Response Systems and Used
Vehicles
DOT asks whether operators of publicly funded demand response
systems should, like fixed route operators, be required to make
good faith efforts to find accessible vehicles when acquiring
used vehicles. The answer is definitely yes; the lack of some
kind of control on the use of used vehicles has been a real
problem, both in publicly funded demand response systems and
also in privately funded systems, both fixed route and demand
response. All these transportation systems make extensive use of
used vehicles, and the lack of any control or requirement on the
procurement of used vehicles has meant that many such systems
provide no access when, in fact, many could provide partially or
fully accessible service. For example, the many agencies and
companies using used vans to provide social service
transportation, taxi service, and airport shuttle service should
be required to procure accessible vehicles if such are
available, or to provide accessible service to some degree.

Furthermore, private companies that do not acquire vehicles but
which, rather, work with a group of drivers who each own their
own vehicles and function as independent contractors should also
be required to provide some level of accessible service. The DOT
regulation would probably classify this arrangement as leasing
of used vehicles. With no controls on used vehicles, no
accessible service whatsoever is provided, even by large, long-
established companies.

There is no rationale for not covering used vehicles in some
way. At this point, there is a large market for accessible vans,
for example. Providers wishing to operate a transportation
service should acquire, or make thorough good faith efforts to
obtain, accessible vehicles, or provide an equivalent service
via contract with another provider.

It is important that new regulatory text be developed to address
these problems.

DOT #6. Changes in mobility devices; deviations from "common
wheelchairs"
DOT asks about the use of wheelchairs and other devices that do
not fit what the DOT ADA standards describe as a "common
wheelchair" (a three- or four-wheeled mobility device that, when
occupied, does not exceed 600 pounds or 30 inches in width by 48
inches in length, measured 2 inches above the ground). This is
becoming a significant problem as, every year, more and more
mobility devices fall outside this category - not only because
they are larger but also because mobility devices are diverging
from common, old-fashioned designs and becoming more and more
diverse. Thus, it is no longer an unusual exception for a device
to run afoul of these limits, and the ADA is in danger of no
longer serving the overwhelming majority of people with
disabilities in the U.S. that was its original intent. The ADA's
standards must keep pace with the evolution of mobility devices
used by people with disabilities.

It should be noted that the ADA Accessibility Guidelines (ADAAG)
common wheelchair specifications, developed by the U.S. Access
Board, was never intended to be a screen for measuring
individuals' mobility devices. It was intended as a performance
standard for lift manufacture. To quote Dennis Cannon, Senior
Transportation/Facility Accessibility Specialist at the U.S.
Access Board, "Part 38 only specifies the vehicle, not the
passenger."[ENDNOTE 5] Yet it has been widely misapplied, and
the situation is spiraling into a significant problem.

There are many facets to this problem. One aspect is devices
which truly do not fit within the common wheelchair limits, and
their users are denied transportation, even when the vehicle
could accommodate them. A second aspect is what DREDF terms
questionable exclusions. Some transit agencies, in an effort to
cut costs, particularly on paratransit, are increasingly
refusing to serve individuals because they interpret the
individual's mobility device as not fitting within the common
wheelchair limits, even in cases where DOT would probably view
the device as perfectly acceptable as a common wheelchair. Here
are some examples:

* An individual uses a wheelchair which is capable of reclining.
The individual never reclines the chair when using the lift or
ramp to enter and exit the vehicle. During the ride, the
individual reclines due to severe chronic back pain, and has
done so for years; there has always been adequate space for
this on the agency's vehicles, even on shared rides. Yet, one
day, she is told that, because she reclines during the
paratransit ride, she will no longer be accepted for ADA
paratransit because, in the reclining position, her wheelchair
exceeds the common wheelchair length limit.

* An individual has a fused knee, and uses one elevated footrest
to support it. In such a position, the wheelchair exceeds the
length limit of the common wheelchair description. The person
is denied transportation by the transit agency, though he has
ridden with an elevated footrest for some time in the past.

* An individual uses a wheelchair which can recline but he never
puts it into that position for any reason. During his ADA
paratransit eligibility determination, the transit agency
requires him to recline the chair and then measures it. Since
in this position, it runs afoul of the common wheelchair
envelope, he is denied eligibility. The individual does not
file a complaint with FTA due to FTA's announced approach of
looking only at the eligibility determination process in
complaints about denial of paratransit eligibility, rather
than the factual reasons for particular denials.

* A woman is buying a scooter and, before purchasing it, she
calls the paratransit provider to verify that the dimensions
are OK. The Office Manager tells her he is sure something can
be worked out. The woman purchases the scooter. Later it is
discovered that the scooter is four inches too wide to fit the
common wheelchair envelope. The Paratransit Director has now
called the woman and told her the paratransit program can no
longer transport her using this scooter.

* Individuals who have been riding on a transit agency's
vehicles for years are told that, because of the combined
weight of themselves and their mobility devices, or because
the length of their footrests is too long, they may no longer
ride the system.

* A wheelchair is measured during a paratransit eligibility
reassessment and the user is told he is approved "in a
different chair" - even though he has always ridden the system
using this same wheelchair.

DOT should require transit agencies to transport all mobility
devices that their vehicles can accommodate, unless the
individual would occupy space needed by another person with a
disability. The transit provider should be obligated to show it
has given thorough consideration to whether the person can be
transported. If exclusions are permitted, DOT should clarify
what exclusions are legal, given the variety of exclusionary
practices occurring today, some of which are described above.

DOT Guidance could be sufficient to accomplish this, depending
on what DOT decides to include.

DOT #7. Counting of paratransit trips
DOT Question:
DOT seeks comment on how providers of ADA paratransit should
count missed or denied trips for statistical purposes. DOT's
view is that each individual leg of a journey should be counted
as a trip, so that a round trip from home to work, if denied,
would count as two denials. If the transit provider can provide
the return trip but not the outbound, and the passenger, as a
result, does not go at all, this would also count as two
denials, because the outbound denial is the reason the
individual cannot go. In the same example, if, by chance, the
passenger is able to compensate for the unavailable outbound
trip by taking a taxi or getting a ride with a family member and
is then able to accept the return trip, then one trip has been
taken and only one denied. DOT states that this approach
recognizes that a shortage of capacity at one time of day can
have a ripple effect that impacts the true availability of
passenger service at other times. DOT also points out that
treating paratransit trips this way will enable all providers
to count successes and failures of service provision in a
consistent manner.

DREDF Response:
DREDF agrees with DOT's approach, in order to reflect the
reality that, from the perspective of people with disabilities,
if an outbound trip is denied, the return, most likely, cannot
be taken either, because paratransit riders are generally
dependent on their transit agency to provide the outbound trip
in most cases. It would also benefit consistency in record
keeping to count each leg of the journey as a separate trip. It
is DREDF's understanding that this is how the industry
calculates trips.

---------------------------------------------------------------
ENDNOTES:
1. 49 C.F.R. ' 27.19.
2. Burkhart v. Washington Metropolitan Area Transit Authority
(WMATA), 112 F.3d 1207 (D.C. Cir. 1997).
3. Melton v. Dallas Area Rapid Transit (DART), 391 F.3d 669
(5th Cir. 2004).
4. A more complete discussion of the DOJ rule and its coverage
of transit agencies can be found in The Current State of
Transportation for People with Disabilities in the U.S.,
published by the National Council on Disability, June 13,
2005, and retrievable at
www.ncd.gov/newsroom/publications/2005/current_state.htm#DOJ
at the June 13, 2005 publication date (retrieved on
April 12, 2006).
5. In resolving two complaints, FTA told transit agencies that
based on the Department of Justice's ADA Title II regulation,
"if a paratransit rider wants a certain seating location
because of a particular disability, the transit agency
operating the vehicle may have to try to accommodate the
request." One of the two was a rider in Orlando who requested
the front seat due to claustrophobia; the other was a rider
in Jacksonville, Florida who complained of significant back
pain due to a very rough ride in a vehicle in such poor
repair-with bad shock absorbers - that it caused the rider to
need pain shots in her spine. FTA directed the transit agency
to ask other passengers at the front location to change seats
and stated, "We ask that in the future you apply the
Department of Justice regulatory requirements in providing
public transit." Transit Access Report, "FTA Advises Transit
Agencies to Act on Riders' Seat Choices," Pace Publications,
April 10, 2003.
6. Dennis Cannon, Senior Transportation/Facility Accessibility
Specialist, U.S. Access Board, Washington D.C., personal
communication, May 8, 2006.

--
Marilyn Golden
Policy Analyst
mgolden@dredf.org
Disability Rights Education and Defense Fund

______________________________________________________________

For more Transportation news issues, see:
www.aapd.com/News/transportation/indextrans.php

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