August 5, 2014

Re: FTA Complaint No.14-0159

Dear Mr. Thomas:

This letter pertains to an Americans with Disabilities Act (ADA) complaint filed with the Federal Transit Administration (FTA) against Dallas Area Rapid Transit (DART). The FTA Office of Civil Rights is responsible for ensuring that providers of public transportation are in compliance with the 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.
If FTA identifies possible ADA deficiencies by a transit provider, 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 (DOJ) for enforcement.

Allegations

The complainant in this case did not give FTA permission to release his identity. His allegations, however, involved his suspension from DART’s ADA complementary paratransit service due to no-shows. A letter from DART provided with his complaint indicates that the complainant was suspended for accumulating three no-shows in a 30-day period.

Analysis

As a part of our investigation, we reviewed DART’s no-show policy on its website.[1] The policy imposes a 30-day suspension on riders who accumulate a total of three no-shows and/or “same-day cancellations” within a 30-day period. Same-day cancellations are defined as trips that are not cancelled at least two hours before the scheduled pickup time. The policy also penalizes riders for engaging in “late cancellations,” defined as trips cancelled between 5 p.m. the day prior to the scheduled trip and up to two hours before the pickup time. Three late-cancellations equals one no-show.

A separate penalty is applied for excessive “advance cancellations,” defined as trips cancelled by 5 p.m. the day before the scheduled trip. Riders engaging in excessive advance cancellations face a seven-day suspension.

DART’s no-show policy is deficient on several fronts. Under 49 CFR §37.125 of the DOT ADA regulations, a transit provider “may establish an administrative process to suspend, for a reasonable period of time, the provision of complementary paratransit service to ADA eligible individuals who establish a pattern or practice of missing scheduled trips.”

The DOT ADA regulations in Appendix D explain that a “pattern or practice” involves intentional, repeated or regular actions, not isolated, accidental, or singular incidents. A suspension policy based solely on a set number of no-shows, such as DART’s, runs the risk of penalizing riders who have not engaged in a pattern or practice of missing trips. Three no-shows in 30 days is not necessarily a pattern of rider abuse, particularly for frequent riders. Three no-shows in a month for a regular rider who uses the service daily to commute to and from work as well as for other purposes, for example, is very different from three no-shows by a customer who schedules only five trips a month.

A 30-day suspension for a first offense also raises questions about reasonableness of the suspension terms. FTA has considered one week for the first offense a reasonable duration, recognizing that subsequent offenses may justify longer suspensions.

The DOT ADA regulations do not expressly permit any penalty for late or “advance” cancellations. As an allowance to the industry, however, FTA has permitted transit agencies to count cancellations in the same manner as a no-show but only when the cancellations have the same effect on the system as a no-show. With this allowance comes the expectation that transit agencies will implement cancellation policies that meet this threshold. A transit provider should be able to absorb the capacity of a trip cancelled one or two hours before the scheduled pickup. An hour or two is typically sufficient notice for a transit provider to redirect a vehicle without any negative operational consequences. Transit agencies across the country with similar as well as smaller and larger paratransit ridership numbers as DART have adopted cancellation policies that are in line with FTA’s threshold.

Conclusion

FTA finds DART’s no-show policy inconsistent with the DOT ADA requirements in terms of its flat numerical threshold, the suspension length, and the incorporation of late and advance cancellation penalties. We are therefore asking DART to take corrective action.

Within 30 days of the date of this letter, please submit a description of the steps DART has taken or plans to take to revise its no-show policy to ensure it meets the DOT ADA requirements explained above. Include specifics on how DART will ensure that only riders who have engaged in a pattern or practice of no-shows within their control will face suspension, that the suspension length will be reasonable, and that riders will not face penalties for trips cancelled more than one or two hours before a scheduled pickup, if DART decides to continue applying penalties for cancellations. For any actions pending, please include an estimated timeline for implementation.
If you have any questions, I can be reached at (202) 366-0529 or via e-mail at dawn.sweet@dot.gov. Thank you for your attention to this matter.

Sincerely,

Dawn Sweet
Acting Team Leader
Office of Civil Rights

cc: Complainant 14-0159
FTA Region 6
DOJ

[1] DART, “A Guide to Paratransit Services,” http://www.dart.org/riding/paratransitguide.asp.