Middlesex County Area Transit, New Brunswick, NJ, 11-1-11

U.S. Department
of Transportation
Headquarters East Building, 5th Floor - TCR
1200 New Jersey Ave. SE
Washington, DC 20590
Federal Transit
Administration
November 1, 2011

Re: FTA Complaint Number 11-0253

     

H. James Polos, Chairman
Middlesex County Department of Transportation
711 Jersey Avenue
Brunswick, NJ 08901

Re: FTA Complaint No. 11-0253

Dear Mr. Polos:

Enclosed is a copy of the Federal Transit Administration (FTA) Office of Civil Rights’ disposition of Complaint No. 11-0253 filed against Middlesex County Department of Transportation/Middlesex County Area Transit (MCAT) alleging a violation of the Americans with Disabilities Act of 1990 (ADA). The 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 ADA, Section 504 of the Rehabilitation Act of 1973, and the U.S. Department of Transportation’s (DOT) implementing regulations at 49 CFR Parts 27, 37, 38 and 39.

In the FTA complaint investigation process, we analyze allegations for possible ADA deficiencies by the transit provider. If deficiencies are identified, they are presented to the transit provider and assistance is offered to correct them within a predetermined timeframe. 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.

The complainant alleged that MCAT’s bus service along the M6 route is frequently inaccessible to persons using wheelchairs because of inoperable lifts. He described a June 2, 2011, incident in which he encountered a vehicle with an inoperable lift and the vehicle operator instructed him to wait an hour for the next scheduled bus. He also claimed that M6 route operators have made him feel uncomfortable when using the lift and having his wheelchair secured, claiming these actions delay other passengers.

We appreciate your response to our information request during our investigation. As explained in the disposition letter, however, we have concerns about the County’s apparent lack of alternative transportation when an MCAT Shuttle’s lift breaks down. The DOT ADA regulations at 49 CFR §37.163(f) explain the relevant requirement:

(f) In any case in which a vehicle is operating on a fixed route with an inoperative lift, and the headway to the next accessible vehicle on the route exceeds 30 minutes, the entity shall promptly provide alternative transportation to individuals with disabilities who are unable to use the vehicle because its lift does not work.

You replied in your letter of July 13, 2011, that the M6 route operates two wheelchair accessible buses. You also stated that “generally, a substitute vehicle with a working lift is provided within two hours of the discovered non-operable lift” and that “all deviated fixed route buses operate on at least a 60 minute headway and passengers may wait for the 2nd bus of the two bus operation on each route.”

As noted in 49 CFR §37.163(f), however, if the headway to the next accessible vehicle on a route exceeds 30 minutes, alternative transportation must be provided. Individuals needing a lift cannot be simply instructed to wait for the next bus. Appendix D to §37.163(f) further explains that an accessible vehicle “with a short (i.e., less than 30-minute) response” should be dispatched to pick up the stranded passenger.

Please respond to my attention within 30 days of the date of this letter with a description of MCAT’s process to provide alternative transportation within 30 minutes consistent with the DOT ADA regulatory requirement. With your response, include copies of any written policies or instructions implementing the practices. If any practices are under development, please explain the steps that are being taken and provide an estimated timeline for implementation.

If you have any questions regarding this request, please contact me or Michael Virts at (202) 366-4018 or via e-mail at michael.virts@dot.gov. Please include FTA Complaint No. 11-0253 in any correspondence regarding this complaint. Thank you for your continued assistance.

Sincerely,

 

John R. Day
ADA Team Leader
Office of Civil Rights

Enclosure

cc: FTA Region 2


Enclosure: Letter to Complainant

Re: FTA Complaint No. 11-0253

Dear [name withheld]:

This letter responds to your complaint against the Middlesex County Department of Transportation/Middlesex County Area Transit (MCAT) 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, 38, and 39.

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.

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 alleged that:

FTA investigated your allegations and sent an information request to MCAT. We received a response from MCAT that addressed your allegations and provided relevant information as described below.

Relevant ADA Requirements

The DOT ADA regulations contain two primary provisions to ensure that vehicles with accessibility features are reliable and properly maintained. General equipment maintenance requirements, which pertain to all types of entities and services, are contained in 49 CFR §37.161:

(a) Public and private entities providing transportation services shall maintain in operative condition those features of facilities and vehicles that are required to make the vehicles and facilities readily accessible to and usable by individuals with disabilities. These features include, but are not limited to, lifts and other means of access to vehicles . . .
(b) Accessibility features shall be repaired promptly if they are damaged or out of order. When an accessibility feature is out of order, the entity shall take reasonable steps to accommodate individuals with disabilities who would otherwise use the feature.
(c) This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.

In addition to the general maintenance provisions described above that apply to all transportation providers, 49 CFR §37.163 requires public entities such as MCAT to keep vehicle lifts in operative condition and provide alternative transportation in certain circumstances, as follows:

(a) This section applies only to public entities with respect to lifts in non-rail vehicles.
(b) The entity shall establish a system of regular and frequent maintenance checks of lifts sufficient to determine if they are operative.
(c) The entity shall ensure that vehicle operators report to the entity, by the most immediate means available, any failure of a lift to operate in service.
(d) Except as provided in paragraph (e) of this section, when a lift is discovered to be inoperative, the entity shall take the vehicle out of service before the beginning of the vehicle’s next service day and ensure that the lift is repaired before the vehicle returns to service.
(e) If there is no spare vehicle available to take the place of a vehicle with an inoperable lift, such that taking the vehicle out of service will reduce the transportation service the entity is able to provide, the public entity may keep the vehicle in service with an inoperable lift for no more than five days (if the entity serves an area of 50,000 or less population) or three days (if the entity serves an area of over 50,000 population) from the day on which the lift is discovered to be inoperative.
(f) In any case in which a vehicle is operating on a fixed route with an inoperative lift, and the headway to the next accessible vehicle on the route exceeds 30 minutes, the entity shall promptly provide alternative transportation to individuals with disabilities who are unable to use the vehicle because its lift does not work.

MCAT’s Response

In response to our information request, MCAT informed FTA that it has committed to close monitoring of the wheelchair lifts on the M6 buses and instructed operators that any “discouragement of [you] from feeling comfortable on using the M6 would result in progressive disciplinary action.” MCAT also reported that you met with its Safety Director Bob Jandernal on the M6 route during the last week in June. The Director of the Middlesex County Department of Transportation also spoke with you in spring of 2011.

MCAT also submitted such information as details on its vehicle fleet, its lift maintenance practices, and instructions for vehicle operators to report lift failures that occur in service. Pertinent information includes, but is not limited to, the following: the two vehicles that run on the M6 route are accessible and operate with at least 60-minute headways, or intervals, between vehicles; maintenance checks include daily lift/ramp cycling before pull-out; and operators are instructed to notify either the dispatcher or the fleet manager when a lift/ramp breaks down in service.

MCAT did not provide specifics, however, on its procedures for providing prompt alternative transportation to individuals with disabilities who are unable to use a vehicle because its lift/ramp does not work as required in §37.163(f) of the DOT ADA regulations. Instead, it reported:

In response to your specific allegation regarding the June 2 lift breakdown, MCAT acknowledged that the bus you encountered that day did not have a working lift, stating: “Regarding the June 2 incident the operations management staff was not immediately aware of what happened to [name withheld] as he had elected to use his chair rather than waiting for the 2nd bus with the working wheelchair lift.”

Conclusion

The record shows that MCAT has generally been responsive to your complaint and has taken steps to help ensure you receive better service, such as committing to close monitoring of lift operation on the M6 route and following up with the vehicle operators you encounter on the route. We do not have information to suggest that you are experiencing ongoing lift issues, and your complaint only gave one specific example on which we could follow up.

We do, however, have concerns about MCAT’s apparent lack of alternative transportation. While MCAT reports that it has lift maintenance and inspection procedures in place, vehicle lifts can break down in service and for this reason the DOT ADA regulations require transit agencies to promptly provide alternative transportation to individuals with disabilities who are unable to use a vehicle because its lift does not work in cases where the next accessible vehicle on the route exceeds 30 minutes. Appendix D to §37.163(f) further explains that an accessible vehicle “with a short (i.e., less than 30-minute) response” should be dispatched to pick up the stranded passenger.

The operator’s instructions to you on June 2 to wait an hour for the next bus and MCAT’s response to FTA that passengers encountering a broken lift “may wait for the 2nd bus”—when the headway between vehicle arrival is described as at least 60 minutes—are inconsistent with §37.163(f).

We are following up separately with MCAT to ensure it complies with the requirement to provide prompt alternative transportation.

The investigative portion of this complaint has concluded. Accordingly, we are taking no further action and are closing your complaint as of the date of this letter. If you continue to encounter problems with the bus lifts or do not receive alternative transportation, you may wish to file another complaint with this office documenting the incidents. We recommend keeping a log that records dates/times, route numbers, a description of the incidents, and indication of whether the matters were reported to the transit provider. We also recommend continuing to work directly with MCAT as you have done to resolve any future issues before filing a complaint with FTA.

If you have any questions, please contact me or Michael Virts at (202) 366-4018 or via e-mail at michael.virts@dot.gov. Any further correspondence should reference FTA Complaint No. 11-0253. Thank you for bringing your concerns to our attention, and we trust this information is helpful.

Sincerely,

 

John R. Day
ADA Team Leader
Office of Civil Rights

cc:
MCAT
FTA Region 2