Access Services Incorporated, Los Angeles, CA, 12-28-00

U.S. Department
of Transportation

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

Federal Transit
Administration
December 28, 2000

 

Re: FTA Complaint No. 00-0258

Dear (Name Withheld):

This letter responds to your complaint against Access Services, Incorporated (ASI), of Los Angeles, California and potential noncompliance with Title II of the Americans with Disabilities Act of 1990 (the 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 that 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, 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.

We understand your allegation to be as follows:

We informed ASI of your allegation and requested information relating to your complaint; reviewed the information presented by you and ASI; and made a determination on your allegation based on our analysis of the compiled information in relation to the DOT ADA regulations. Our determination on your allegation is stated below.

The DOT ADA regulations at 49 CFR section 37.121(a) states:

…each public entity operating a fixed route system shall provide paratransit or other special service to individuals with disabilities that is comparable to the level of service provided to individuals without disabilities who use the fixed route system.

The ADA is a civil rights statute. It clearly emphasizes nondiscriminatory access to fixed route service, with ADA Complementary Paratransit acting as a "safety net" for people who cannot use the fixed route system. Under the ADA, Complementary Paratransit service is not intended to be a comprehensive system of transportation for individuals with disabilities, and simply having a disability or multiple disabilities does not, in and of its self entitle a person to ride. Rather, the DOT ADA regulation provides for three categories of ADA Complementary Paratransit eligibility. Category 1 is for persons with disabilities who cannot use fixed route without the assistance of another person. Category 2 is for persons who could use the fixed route if the vehicles were accessible. Category 3 is described at DOT ADA regulation at 37.123(e)(3):

Any individual with a disability who has a specific impairment-related condition, which prevents such individual from traveling to a boarding location or from a disembarking location on such system.

The determining factor in deciding whether you qualify for supplemental social security income (SSI), as stated in the SSI Administrative Law Judge’s Findings of April 10,1999 includes whether in light of your disability you can perform "sustained work activities in an ordinary work setting on a regular and continuing basis." The determining factor in deciding whether you qualify for ADA Complementary Paratransit is whether you can functionally ride or access the bus. It is not a medical determination; it is a functional ability analysis.

The DOT ADA regulation requires that persons who are denied eligibility are granted an objective appeal. DOT ADA regulations at 49 CFR section 37.125(g) state the following:

The entity shall establish an administrative appeal process through which individuals who are denied eligibility can obtain review of the denial. (1) The entity may require that an appeal be filed within 60 days of the denial of an individual’s application. (2) The process shall include an opportunity to be heard and to present information and arguments, separation of functions (i.e., a decision by a person not involved with the initial decision to deny eligibility), and written notification of the decision, and the reasons for it. (3) The entity is not required to provide paratransit service to the individual pending determination on appeal. However, if the entity has not made a decision within 30 days of the completion of the appeal process, the entity shall provide paratransit service from that time until and unless a decision to deny the appeal is issued.

The DOT ADA regulations further explain in Appendix D to section 37.125:

The administrative appeal process is intended to give appellants the opportunity to have their cases heard by some official other than the one who turned them down in the first place. In order to have appropriate separation of functions, a key element of administrative due process, not only must the same person not decide the case on appeal but that person, to the extent practicable, should not have been involved in the first decision.

In complaints of this nature, unless the facts of the particular circumstance appear to be egregious or substantively violate the regulation, we consider only the appeals process to determine if it meets the requirements of the DOT ADA regulations. In your case, it appears that ASI followed the appropriate guidelines in making its decision.

We reviewed the documents presented and found that based on your in-person interview on September 3, 1999, ASI had determined that you were ineligible to use its ADA Complementary Paratransit service. ASI, in its September 11, 1999, letter informed you of this decision and likewise told you of your right to appeal the decision. You elected to appeal the decision and submitted a documentation from the Social Security Administration which entitled you for social security benefits. On November 15, 1999, a medical doctor at Olympic Medical, met with you and explained that the documentation you provided from the Social Security Administration will be considered, however was not despositive of this issue and that you needed to participate in the entire appeal process. However, you decided to terminate the appeal. ASI has agreed to give you another opportunity to continue the appeal process that you began a year ago. Should you decide to pursue your appeal, please call ASI at (213) 270-6081, for an appointment.

Thank you for bringing this matter to our attention. If you have any questions regarding this decision, please contact Mr. Peralta, at our toll free FTA ADA Assistance Line, 1-888-446-4511, or at his electronic mail address: roger.peralta@dot.gov.

 

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