Southeastern Regional Transit Authority, New Bedford, MA, 8-30-10

U.S. Department
of Transportation
Headquarters East Building, 5th Floor - TCR
1200 New Jersey Ave., SE
Washington, DC 20590
Federal Transit
Administration
August 30, 2010

 

Re: FTA Complaint Number 09-0192

 

Dear [name withheld]:

This letter responds to your complaint against the Southeastern Regional Transit Authority (SRTA) alleging discrimination on the basis of disability. The Federal Transit Administration (FTA) Office of Civil Rights is responsible for civil rights compliance and monitoring, which includes ensuring that providers of public transportation are in compliance with the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973, and the Department of Transportation’s (DOT) implementing regulations at 49 CFR Parts 27, 37, and 38.

In the FTA complaint investigation process, we analyze allegations for possible ADA deficiencies by the transit provider. If FTA identifies what may be a violation, we first attempt to provide technical assistance to assist the public transit provider in complying with the ADA. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transit provider which may result in the termination of Federal funds. FTA also may refer the matter to the U.S. Department of Justice for enforcement. The ADA does not provide FTA authority to directly seek compensatory, punitive, or other types of relief on behalf of a complainant.

Each response is developed based on the specific facts and circumstances at issue. A determination resulting from a review of these facts is not intended to express an opinion as to the overall ADA compliance of that transit provider.

Specifically, your complaint alleges the following:

Correspondence attached to the complaint from SRTA’s contractor, Union Street Bus Company Inc., confirms that you were instructed to board facing backwards. The February 23, 2009, letter you received from the contractor states, “It is established Company policy that all wheelchair passengers back their wheelchair onto the lifts. This has been in effect for quite some time without incident. We are sorry that you prefer to drive straight onto the lift, however, the Company policy must pertain to all passengers.”

FTA contacted SRTA regarding your complaint and received a response to your concerns, as described below.

Relevant ADA Requirements

The DOT ADA regulations in 49 CFR Part 38 set accessibility specifications for lifts and other vehicle features. Section 38.23(b) prescribes the design loads, edge barriers and other requirements for lifts, stating in subsection (b)(11) that “the lift shall permit both inboard and outboard facing of wheelchair and mobility aid users.”

Part 37 of the regulations outlines service requirements. Section 37.165(f) states: “Where necessary or upon request, the entity’s personnel shall assist individuals with disabilities with the use of securement systems, ramps and lifts.” Appendix D to Part 37 specifically addresses the orientation of wheelchairs when entering a vehicle:

Wheelchair users—especially those using electric wheelchairs often have a preference for entering a lift platform and vehicle in a particular direction (e.g., backing on or going on frontwards). Except where the only way of successfully maneuvering a device onto a vehicle or into its securement area, or an overriding safety concern (i.e., a direct threat) requires one way of doing this or another, the transit provider should respect the passenger’s preference. We note that most electric wheelchairs are usually not equipped with rearview mirrors, and that many persons who use them are not able to rotate their heads sufficiently to see behind. When an electric wheelchair must back up a considerable distance, this can have unfortunate results for other people’s toes.

As explained in §37.23, a public entity such as SRTA that enters into a contractual arrangement with a private entity to operate fixed-route or demand-responsive service must ensure the contractor meets all applicable requirements.

SRTA’s Response

In response to our information request, SRTA reviewed the complaint allegations and contacted its contractor, Union Street Bus Company Inc. As a result, SRTA informed FTA through an August 2, 2010, letter that wheelchair users will be given a choice of entering a vehicle front-facing or rear-facing and that vehicle operators have been informed of this new policy. In a separate letter, the contractor commits to notifying operators of this change via driver bulletins and notices.

The contractor characterizes the practice of boarding a wheelchair user front-facing as “a serious safety issue for both the Company and the passenger” in its letter. However, the reasons behind the concern are not provided.

Conclusion

The record shows that SRTA was responsive to your complaint and has revised its policy to give wheelchair users a choice of entering the vehicle lift front-facing or rear-facing and has committed to ensuring operators are aware of this change. We therefore consider this matter resolved and will close your complaint as of the date of this letter.

The safety concern alleged by the contractor regarding front-facing wheelchair boarding is unsupported. Lifts that meet the specifications in 49 CFR §38.23 will accommodate wheelchair users facing either direction. By copying SRTA on this letter, we are reminding the agency that it is responsible for ensuring the vehicles used by its contractor are in compliance with Part 38. We are also reminding the agency that a “direct threat” is a clear-and-present danger to the health or safety of others, and is not based on speculation about perceived dangers or generalized concern about risk. Direct threat is the only context under which an “overriding safety concern” can override the requirement to accommodate passengers facing either direction on the lift.

This concludes the processing of your complaint. If you have any questions, please contact me or Dawn Sweet of my staff at (202) 366-4018 or via e-mail at dawn.sweet@dot.gov. Any further correspondence should reference FTA Complaint No. 09-0192. Thank you for bringing your concerns to our attention.
     
Sincerely,

 

John R. Day
Acting ADA Team Leader
Office of Civil Rights

cc:  
SRTA
FTA Region 1