|Headquarters||East Building, 5th Floor - TCR|
1200 New Jersey Ave. SE
Washington, DC 20590
|September 9, 2011|
Re: FTA Complaint Number 11-0014
Dear [name withheld]:
This letter responds to your complaint against Fresno Area Express (FAX). 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.
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:
FTA has investigated your allegations and sent an information request to FAX. We received a response from FAX that addressed your allegations and provided relevant information. Your allegations are addressed in detail below.
Relevant ADA Requirements
The DOT ADA regulations in 49 CFR §37.165(b) require transit agencies to transport all “common wheelchairs” in their vehicles. Section 37.3 defines a “common wheelchair” as a three or four-wheeled mobility device that does not exceed 30 inches in width and 48 inches in length measured two inches above the ground, and does not weigh more than 600 pounds when occupied. If a mobility device meets the physical specifications of a common wheelchair as defined by the DOT’s ADA regulations, it must be transported.
Section 38.23(d) requires all ADA-compliant vehicles to be equipped with securement devices capable of accommodating all common wheelchairs and mobility aids, as well as a separate seatbelt and shoulder harness for use by wheelchair users. When a wheelchair is secured in accordance with manufacturer’s instructions, the securement system must limit the movement of an occupied wheelchair to no more than 2 inches in any direction under normal vehicle operating conditions. The regulations do not mandate the installation of a specific type of securement device; any device, however, must meet the performance standards outlined in Part 38 of the regulations.
While a transit agency may adopt a mandatory securement policy, it cannot deny transportation to a wheelchair or its user on the grounds that the device cannot be secured or restrained satisfactorily by the vehicle’s securement system (§37.165(d)). Transit personnel are to use their best efforts to secure any mobility device that meets the regulatory definition of a common wheelchair.
Under §37.173 transportation providers are required to train all employees to proficiency as appropriate under the ADA. This includes training personnel to secure different types of common wheelchairs, as well as to treat individuals with disabilities with respect and courtesy. The regulations do not require a specific course of training or dictate how often training must occur; however, every employee of a transportation provider who is involved with service to persons with disabilities must have been trained so that he or she knows what needs to be done to provide the service in the right way.
In response to FTA’s information request, FAX provided a record of your complaints between May 30, 2006, and November 18, 2010; information detailing the investigation of those complaints; and documentation such as its securement policy, operator training materials related to securement, and notices to operators and other personnel regarding the transport of wheelchairs and securement.
FAX reports that it has adopted a mandatory securement policy. The policy states, in part, “While on board the bus, no mobility device shall be transported on Fresno Area Express buses without first being strapped or secured to the bus by the restraints provided on the bus. A minimum of three straps shall be used to secure the device.”
Despite its securement policy, FAX acknowledges that some of your complaints over the past five years were substantiated. Specifically, six of your 14 formal complaints were found to be valid and FAX followed up with the operator involved in the incidents. For your complaint of September 23, 2010, for example, FAX conducted a “coaching session” with the operator and placed a letter in his/her personnel file.
FAX responded specifically to a March 15, 2010, incident in which you claimed you fell to the floor and sustained an injury when the operator braked hard, and provided documents pertaining to the accident. According to the Occurrence Report, the operator contended that your wheelchair remained in the securement location, but that you fell from the wheelchair. According to FAX, witnesses recounted that you were trying to stand or shift your position at the time of the braking incident, which could have contributed to your sliding out of the wheelchair. The accident report was forwarded to the City of Fresno’s Risk/Claims Division, but a claim was not received.
In addition to responding to your specific securement-related incidents, FAX provided FTA information on its driver training program and efforts to ensure operators remain aware of their ADA responsibilities as well as information on its new wheelchair tether-strap program. According to FAX, all new operators attend an eight-week training program that includes hands-on instruction on how to secure wheelchairs on each type of vehicle in the FAX fleet. After graduation, each operator participates in annual training, which also includes instruction on wheelchair securement to cover any new vehicle types in the fleet. The FAX ADA coordinator is a presenter at the training. In the last year, operators have also been given an orientation on a new hybrid 2009 gas/electric bus, which included the securement process. FAX estimates that 25 percent of all its training classes are devoted to ADA topics and updates for operators.
While FAX provided copies of several “Driver Alerts” that pertain to ADA requirements, one is particularly relevant to this complaint. On May 3, 2011, subsequent to the filing of your complaint with FTA, the FAX Operations Manager reissued a memorandum to all drivers regarding its “Marking and Tethering Program” developed in partnership with the Resources for Independence in Central Valley. The complaint correspondence indicates that you participated in this voluntary program in which FAX attaches four yellow tethering straps or applies colored tape on parts of customers’ wheelchairs/scooters that provide the best location for the securement straps to be attached. In the memorandum, drivers were re-instructed to use the tethers when present.
As a direct result of your complaint, FAX also reported that it initiated an inspection of the securement devices throughout its entire bus fleet on November 5, 2010. The inspection found some issues, primarily straps not retracting properly, and FAX replaced affected belts and spring housing mechanisms.
FAX did not validate your claim that operators have treated you in an unprofessional and disrespectful manner; however, it did note that it is committed to addressing issues quickly with its employees by always coaching, but also assigning retraining and discipline where necessary.
The record shows that FAX has acknowledged incidents in which your wheelchair was not secured in accordance with its securement policy. It maintains that it acted swiftly to address the incidents with the vehicle operator involved after receiving your complaints. We cannot verify the specifics of your securement in those incidents or, in particular, confirm what happened when you sustained an injury after sliding out of your wheelchair on March 15, 2010, during the braking incident. Any injury claim would need to be pursued with the City of Fresno.
Our focus is not retroactive but rather to ensure that a public transit provider has taken steps to correct any deficiencies or to ensure continued compliance with the DOT ADA regulations. Our investigation confirms that FAX has a training program in place that provides for both annual and refresher sessions on securement procedures. FAX has also issued several “Driver Alerts,” followed up with operators who failed to follow the securement policy, inspected its securement devices to ensure they were operating properly, and implemented a voluntary tether-strap program to facilitate securement. All of these steps together should help prevent the incidents you describe.
By copying FAX on this letter, however, we are raising two specific concerns. The first concern involves the agency’s securement policy, which requires operators to use “a minimum of three straps” to secure a mobility device. Our understanding is that FAX vehicles are equipped with common four-point securement systems consisting of two front restraint belts and two rear restraint belts. Through its tether-strap program, FAX also works with customers to attach for yellow tethering straps to appropriate locations on their wheelchairs. We are concerned, therefore, that FAX personnel who have been trained to believe that three straps are sufficient have not been trained to proficiency as appropriate to their duties to operate vehicles and equipment safely and properly assist individuals with disabilities, as required under §37.173 of the DOT ADA regulations. Further, using only three securement points in a four-point system appears inconsistent with the manufacturer’s instructions and may not sufficiently limit movement of a wheelchair as required by §38.23(d). The instructions on operating the securement system, provided to FTA by FAX, note the attachment of two rear wheelchair restraint belts and two front wheelchair restraint belts. While the DOT ADA regulations do not require transit providers to adopt a mandatory securement policy, when they do—or when a rider asks to be secured—the securement must be done in a way that meets the performance standards in §38.23(d).
Our second concern involves references to a “two-point” securement system on older “93” buses in FAX’s response to FTA’s initial information request. It was unclear to us how such a system could sufficiently limit movement. In response to a follow-up inquiry, however, FAX staff reported that all of the two-point devices in the fleet had been replaced and noted that the older buses in which these devices were originally installed are being phased out.
We will follow up with FAX separately to ensure that any needed changes are made to its securement policy to ensure compliance and confirm that the two-point securement devices have been replaced.
The investigative portion of your complaint has concluded and we are therefore closing the complaint as of the date of this letter. We find that FAX has been responsive to your complaint and expect that the steps FAX has taken as described above and our response to your complaint will help prevent the securement issues you raised. However, in the future, if you feel that your wheelchair has not been properly secured or if an operator fails to use the tether straps affixed to your device, we would encourage you to immediately bring this to the attention of the vehicle operator.
Our communications with FAX also suggest that the agency has a robust complaint process and we would suggest that you promptly contact FAX with any other specific incidents related to securement or operator behavior. Your complaint to FTA noted only generally that operators are “disrespectful,” “mean,” and have “attitudes” and lacked specificity regarding the dates/times and route numbers of any particular incident. These details would be needed to confirm your allegation and follow up with the operator involved. If you find the transit provider unresponsive, you may also wish to file another complaint with the FTA Office of Civil Rights.
This concludes the processing of your complaint. While FTA’s decision in your case is administratively final, it does not prevent you from pursuing this matter privately in the appropriate court. If you have any questions, please contact me or Dawn Sweet at (202) 366-4018 or via e-mail at firstname.lastname@example.org. Any further correspondence should reference FTA Complaint No. 11-0014. Thank you for bringing this matter to our attention.
John R. Day
ADA Team Leader
Office of Civil Rights
FTA Region 9