Port Authority of Allegheny County, Pittsburgh, PA, 2-28-01

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U.S. Department
of Transportation

    400 Seventh St. S.W.
    Washington, D.C. 20590

Federal Transit
Administration
February 28, 2001

 

Re: FTA Complaint Number 00-0322

Dear (Name Withheld):

This letter responds to your complaint on behalf (name withheld) against the Port Authority of Allegheny County, Pittsburgh, Pennsylvania (PAT), and potential noncompliance with Title II of the Americans with Disabilities Act of 1990 (ADA) and/or the Department of Transportation's (DOT) implementing regulations at 49 CFR Parts 27, 37, and 38. 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 properly implement the ADA, the DOT ADA regulations and Section 504 of the Rehabilitation Act of 1973.

In the FTA complaint investigation process, we analyze the complainant's allegations for possible ADA deficiencies by the transit provider. If we identify what may be a violation, we first attempt to provide technical assistance to address it by assisting the transit provider to comply 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 transportation 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.

Because of the limitation in resources a majority of complaint investigations are conducted by telephone and written inquiry. In a few circumstances, where time and resources permit, investigations may be complemented by other means, such as compliance reviews or other on-site action. A finding of no violation of a particular allegation should be understood to apply specifically to the facts and circumstances at issue. Such a determination is not intended

to express an opinion as to the overall ADA compliance of that transit property.

1.  Your son was wrongly denied eligibility for PAT's ADA Complementary Paratransit service.

2.  (Name withheld) was suspended from service with a hearing, and then later on in the day he was suspended and you had to pick him up.

We informed PAT of your allegations, requested information relating to your complaint and reviewed the information presented by PAT and you, and made a determination in relation to the DOT ADA regulations based on our analysis of the compiled information. We have restated your allegations followed by our determinations below:

1.  Your son was wrongly denied eligibility for PAT's ADA Complementary Paratransit service.

DOT ADA regulations at 49 CFR 37.123 state:

(e) The following individuals are ADA paratransit eligible:

  1. Any individual with a disability who is unable, as the result of a physical or mental impairment (including a vision impairment), and without the assistance of another individual (except the operator of a wheelchair lift or other boarding assistance device), to board, ride, or disembark from any vehicle on the system which is readily accessible to and usable individuals with disabilities.
    1. Any individual with a disability who needs the assistance of a wheelchair lift or other boarding assistance device and is able, with such assistance, to board, ride and disembark from any vehicle which is readily accessible to and usable by individuals with disabilities if the individual wants to travel on a route on the system during the hours of operation of the system at a time, or within a reasonable period of such time, when such a vehicle is not being used to provide designated public transportation on the route.

PAT provided a written response advising that your son was not denied eligibility, as he has been certified continously on ACCESS since November 1982 until March 31, 1999. (Name withheld) suspension of service on March 31, 1999, for two weeks, occurred due to several incidences when he kicked and hit drivers and passengers. On July 28, 1998, (name withheld) began hitting himself and a driver, to the point where the driver had to pull the van off the road. On March 16, 1999, (name withheld) began to kick and struggle so much, the driver had to return him to your house. On March 31, 1999, (name withheld) kicked another passenger twice. PAT provided incident reports on all the above incidents. The DOT ADA regulations at 49 CFR 37.5(h):

It is not discrimination under this part for an entity to refuse to provide service to an individual with disabilities because that individual engages in violent, seriously disruptive, or illegal conduct.

From the information received, it does not appear that PAT acted in any way that was a violation of DOT ADA regulations. Therefore, we will take no further action on this allegation.

2.  We are restating your allegation based on our investigation as follows:
You feel (name withheld) was denied due process in appealing his suspension of ADA Complementary Paratransit service.

The DOT ADA regulation outlines clearly what due requirements are as to "no shows" in section 37.125 and at the Appendix 37.125. Accessibilty is a civil right, and a decision striking at the heart of that access implicates due process requirements. Due process requirements are implicated whenever one’s eligibility status is called into question. The Appendix at section 37.125 describes the right to ride as a property right with the attendant features ascribed to such a right:

Once an entity has certified someone as eligible, the individual's eligibility takes on the coloration of a property right. (This is not merely a theoretical statement. If one depends on transportation one has been found eligible for to get to a job, and the eligibility is removed, one may lose the job. The same can be said for access to medical care or other important services.) Consequently, before eligibility may be removed "for cause" under this provision, the entity must provide administrative due process to the individual.

PAT reported that:

The (names withheld) requested an in-person meeting that was scheduled at their convenience on April 19, 1999. (Name withheld) parents were in attendance along with (name withheld) MR case manager, (name withheld) from Parent and Child Guidance Center. There was an agreement at this meeting that, in the future, if (name withheld) "acted up" in the morning, his parents would cancel his ACCESS ride and drive him to the program. If, in the judgment of the program manager, (name withheld) were acting appropriately, his return from the program would be provided by ACCESS. Any cancellations of (name withheld) trips for any reason, even with little advanced notice, would not be considered no shows or late cancellations.

(Name withheld) agreed to find an aide to ride with (name withheld) for 10 days, according to the ACCESS suspension policy, although he expressed concerns about finding staff for that number of days. The number of days to (name withheld) would be required to travel was an aide was subsequently reduced by 50% by ACCESS staff. The meeting concluded with the understanding that (name withheld) would find an aide to ride with (name withheld) for five days. If these trips were uneventful, (name withheld) ACCESS service would be immediately and fully reinstated.

In addition, PAT reported the following information:

On June 3, 1999, (name withheld) called ACCESS to explain that he was still working on trying to locate an aide that would travel with (name withheld). Janet Minsterman of the ACCESS staff repeated that the aide would only be required for five days, if there were no episodes during this time.

On June 15, 1999, (name withheld) called ACCESS to reinstate (name withheld) ACCESS service. He scheduled an a.m.trip for (name withheld) from his home to the program, accompanied by aide (name withheld). An ACCESS trip was scheduled to provide return service for (name withheld) and the aide back to the (name withheld) home. (name withheld) cancelled this trip on the morning of June 16th, with no explanation. This was the last time anyone calling on (name withheld) behalf have contacted ACCESS regarding his transportation.

PAT stated in its letter that (name withheld) ADA Complementary Paratransit service remains in effect. He may begin to use ACCESS at any time by scheduling his trips through the ACCESS office, accompanied for the first five days by an aide

Based on the aformentioned information we do not see any violations of the DOT ADA regulations by PAT.

If you have any questions regarding this decision, please contact Mary-Elizabeth Peters, on FTA toll free ADA Assistance Line at 1-888-446-4511, or at her electronic mail address: mary-elizabeth.peters@dot.gov. Please identify the FTA complaint number in any correspondence with this office.

 

Sincerely,
/signed/
Cheryl L. Hershey
ADA Group Leader
Office of Civil Rights