THE ADA AND TRANSPORTATION ADVOCACY Transportation Works March

THE ADA AND TRANSPORTATION ADVOCACY Transportation Works March 2, 2017 Brian East Disability Rights Texas 2222 W. Braker Lane Austin, Texas 78758 beast@drtx. org 512 -454 -4816

Scope— ADA Covers Discrimination In: • Employment (Title I) • Public (i. e. , governmental) entities (Title II, Division A) • Public accommodations (private businesses) (Title III ) • Telecommunications (Title IV) • Transportation (Title II Div. B, and parts of Title III)

Some Kinds of Transportation the ADA Addresses • Sidewalks • Taxis • Ride-Share • City Buses • Over-The-Road Buses • Trains

Air Travel? • The ADA only plays a limited role—basically it covers the parts of an airport (and the airport’s public transportation system) that are run by the government • The planes themselves, and private terminals, are covered by different laws, most notably the Air Carriers Access Act (ACAA) • ACAA remedies very limited

Sidewalks • Title II covers sidewalks • Sidewalks built or altered after 1/27/92 must have curb ramps and follow specs • For streets resurfaced or otherwise “altered” after 1//27/92, adjacent sidewalks must have curb ramps that follow technical specs • There is a “program access” standard for older streets & sidewalks, but it is more case-by-case • Statute of limitations is 2 years, & begins when the person encounters bad sidewalk • What if there are no sidewalks?

Taxis • Unless company offers “equivalent service, ” vehicles must be accessible if bought or leased: ▫ after 8/25/90, and can carry 8 or more (incl. driver) ▫ after 2/25/92, and is a van that can carry <8 • Accessibility specs are in 49 C. F. R. Part 38 (and include, e. g. , lifts, etc. ) • Sedans do not have to be accessible • “Equivalent service” looks at both integrated setting and equality of response time, fares, service area, hours, reservations, information access, service availability, and any limits on trip purpose

Ride-Share or “Transportation Network Companies” • Cases and DOJ say ride-share companies are covered by the transportation provisions (and perhaps others) in Title III • Cases so far include claims involving: ▫ Accepting service animals ▫ Accessibility of apps ▫ Offering assistance to blind riders ▫ Accepting wheelchairs & other mobility aids

Private Courtesy Shuttles • Re private company not primarily engaged in transportation, e. g. , airline, hotel, or rental-car courtesy shuttle service • Accessible vehicle if: ▫ Fixed-route and capacity > 16 ▫ Fixed-route and capacity 16 or fewer, unless system as a whole offers equivalent service per § 37. 105 ▫ Demand-responsive and > 16, unless system as a whole offers equivalent service per § 37. 105 • Demand-responsive and 16 or fewer, system as a whole must offer equivalent service per § 37. 105 • See above re “equivalent service”

Recap of Accessible-Vehicle Requirements • An accessible vehicle means a vehicle that complies with 49 C. F. R. § 37. 7 and Part 38 • Whether new vehicles must be accessible depends on whether service provider is: ▫ A private or a public entity ▫ Primarily engaged in the business of transportation or not ▫ Operating a demand-response or a fixedroute system

City Buses • Fixed-route (“mainline”) vs. paratransit • If bus system is public entity, or a private company contracting with a public entity, vehicles purchased or leased after 8/25/90 must be accessible (mainline & paratransit) • Stop announcements (live or recorded), per 49 C. F. R. § 37. 167 • DOT regs (incl. accessibility and service standards) are at 49 C. F. R. Parts 37 and 38 • What if no bus system at all?

City Buses—Fixed-Route • Can’t deny services, even if it: ▫ takes the individual longer or is more difficult ▫ supposedly offends, inconveniences, or annoys employees or others • Can’t force person into “priority” seats • Can’t charge more • Can’t require an attendant • Can’t use lack of insurance to deny service • Can’t use non-employees to assist (unless person with disability requests)

Maintenance of Accessibility Features • Prompt repairs of accessibility features req’d • Must offer accommodations if problems • Isolated or temporary interruptions for repairs/maintenance usually ≠discrimination • Pattern of interruptions or overly long interruptions could = discrimination • If lift or ramp is inoperative, vehicle generally goes out of service and another bus sent, or entity provides prompt alternative service

City Buses—Paratransit • If entity operates fixed-route (mainline) system, it must operate a complementary paratransit system. 49 C. F. R. § 37. 121(a) • Paratransit is for people who can’t use fixedroute bus or rail service • Service must be provided within ¾-mile of bus route or rail station • Must operate same hours and days • Fare can’t be > double that of fixed-route • Reservation service must be open same hours that administrative offices are open

Paratransit Issues • Eligibility and appeals • Companions—one may ride; others if space • Attendants—entity can’t force; rides free; does not count as companion; need not pre-register • Reservations—one-day notice enough; must give slot w/in 1 hour of requested slot • On-time performance—pickup window shouldn’t be > 30 mins; avoid very early and late pickups; may have max wait time but doesn’t begin until start of pickup “window”; drop-off not > 30 mins early; trip not too long (compared to mainline)

Paratransit Issues (cont’d) • Origin-to-destination service—door-to-door or curb-to curb, but entity’s choice can be modified • Procedures for suspending service to rider—for pattern of missed trips (w/in rider’s control), or violent or illegal conduct; right to a hearing • Public input into paratransit plan and policy changes

Reasonable Accommodations • Does the ADA require transit providers to consider policy modifications that a rider needs? • Courts originally said no—Melton v. Dallas Area Rapid Transit, 391 F. 3 d 669 (5 th Cir. 2004) • DOT changed regs in 2015 to require. 49 C. F. R. §§ 37. 5(i)(3) and 37. 169(c)(1)-(3), and App. E. • Examples: bus driver helping with fare collection or pulling slightly past obstructed bus stop; paratransit driver changing pickup locations, or assisting in extreme weather • Applies to policies/practices, not the regs; e. g. , can’t expand ¾-mile paratransit area

Defenses to Accommodations • Fundamental alteration of service (e. g. , requests for specific vehicle, exclusive rides, help carrying packages, operating outside of service hours) • Direct threat to the health or safety of others (exposing vehicle to hazards, leaving vehicle unattended for a long time) • Not needed by the requester to use the service (even without modification, rider is fully able to use services, e. g. , requesting a specific driver) • Undue financial/administrative burden (depends on details, burden of proof on entity, e. g. , asking not ride with particular passenger)

No Transportation Services At All? • Public transportation grants (e. g. , FTA’s Sec. 5307 Urbanized Area Formula Grants or Sec. 5311 Formula Grants for Rural Areas)? • Voucher Programs? • Other?

Intercity Buses (OTRB) • OTRB fixed-route vehicles must be accessible (incl. lift, tie-downs, etc. ) • Small companies (<$9. 6 million) must have accessible vehicles or equivalent service • Access to intermediate stops & rest stops • Greyhound settlement—maintaining accessibility features, providing boarding help, allowing exiting at rest stops; online reservations for people using wheelchairs

Light Rail & Trains • Transit facilities, intermodal centers, rail stations, and platforms must meet accessibility standards • Level boarding: train doorways and station platforms must be on same level, and gaps narrow enough for wheelchair user to roll across (or use short bridge plate) • AMTRAK station problems—DOJ Letter of Finding in 2015

State Laws? • Hum. Res. Code § 121. 002(5) defines “public facility” to include streets, sidewalks, and any public conveyance or mode of transportation • § 121. 003(a)—same right to full use and enjoyment • § 121. 003(b)—no public conveyance or mode of transportation may refuse to accept passenger because of disability, and can’t charge more because of service animal, wheelchair, crutches, or other device used to assist in travel • § 121. 003(c)—can’t be denied admittance to public facility because of disability or because of cane, assistance animal, wheelchair, crutches, or other device of assistance • § 121. 003(d)—discrimination includes failure to (1) comply with TAS, (2) make reasonable policy modifications, or (3) provide necessary auxiliary aids and services

Remedies—Sidewalks, Taxis, Ride-Share, Amtrak • Administrative complaints ▫ File with DOJ within 180 days ▫ Can be filed online, or via mail or fax ▫ Info about the Department of Justice’s complaint process: https: //www. ada. gov/filing_complaint. htm • Lawsuits ▫ File within 2 years of encountering barrier ▫ Remedies include court order, attorney fees, costs, and (in some cases) damages

Remedies—City Buses, Light Rail • Administrative Complaints ▫ File within 180 days with FTA via mail ▫ Info about the Federal Transit Administration’s complaint process is online at: https: //www. transit. dot. gov/regulations-andguidance/civil-rights-ada/file-complaint-fta • Lawsuits

Remedies—OTRBs • Administrative Complaints ▫ Online complaints through National Consumer Complaint Database, https: //nccdb. fmcsa. dot. gov/nccdb/Complaint. E ntry. aspx? choice=CONSUMER# ▫ Phone complaints: 888/368 -7238 (weekdays 9– 7 EST) • Lawsuits

Remedies—Air Travel • Administrative Complaints ▫ Most carriers must have Complaints Resolution Official (CRO) available at all times airline is operating at any airport (phone or in-person) ▫ DOT toll-free number: 800/778 -4838 (voice) or 800/455 -9880 (TTY) ▫ DOT complaint process (limited remedies): https: //www. transportation. gov/airconsumer/c omplaints-alleging-discriminatory-treatmentagainst-disabled-travelers • Lawsuits—may not be available

State Law Remedies • No administrative enforcement mechanism • Can bring private lawsuit for money damages, which are no less than $300. • Can also probably get injunctive relief (i. e. , an order from the court to fix the problem), but there is little case law • It is unclear whether you can sue a governmental entity under Hum. Res. Code Chapter 121 • Cannot recover attorney’s fees

Sample Resources • DRTX handout re paratransit eligibility: http: //www. disabilityrightstx. org/files/What-Is-Paratransit. Service-and-How-Can-I-Get-It_aug 2013. pdf • FTA Q&A re Wheelchairs and Bus and Rail Service: https: //www. transit. dot. gov/regulations-and-guidance/civilrights-ada/questions-and-answers-concerning-wheelchairsand-bus-and • Guide: Air Travelers with Developmental Disabilities— https: //cms. dot. gov/sites/dot. gov/files/docs/Developmental _Disabilities_Guide_0. pdf • Project Action’s Accessibility Checklist for Transportation and Mobility: http: //www. nadtc. org/wpcontent/uploads/NADTC-Checklist-for-Assessing-the. Accessibility-of-Transportation-and-Mobility. pdf

Brian East Disability Rights Texas 2222 West Braker Lane Austin, Texas 78758 512/454 -4816 beast@drtx. org