June 9, 2010

Re: FTA Complaint Number 10-0197

Dear [name withheld]:

This letter responds to your complaint against the Milwaukee County Transit System (MCTS) 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 comply with Title II of 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, in your complaint correspondence and a follow-up telephone conversation with this office you alleged that:

• MCTS wrongly certified you as being only conditionally eligible for its ADA complementary paratransit service, Transit Plus, when your disability should have qualified you for unconditional eligibility. You requested an opportunity to appeal the conditional eligibility determination through a November 24, 2009, letter (copy attached to your complaint) as well as through another letter to MCTS prepared with assistance from a local advocacy group. You did not, however, receive a response from MCTS to your requests for an appeal. You also note that you are being required to recertify yearly, instead of every three years as was procedure in the past. MCTS also initially refused to allow you to travel with a personal care attendant (PCA), although you informed us that the PCA issue was subsequently resolved.

In response to your complaint, FTA sent an information request to MCTS. We received a response from MCTS that addressed your allegations and provided relevant information.

Relevant ADA Requirements

FTA generally does not investigate eligibility determinations, per se, as those who perform the functional assessment are generally best able to make such determinations. FTA may investigate allegations of noncompliance with ADA regulations regarding the eligibility determination process. Although transit agencies, with input from the communities they serve, devise the specifics of their individual eligibility processes, 49 CFR §37.125 of the regulations sets broad requirements that all agencies must incorporate. One such requirement is the opportunity for an appeal. Section 37.125(g) states:

(g) 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 the 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.

Section 37.125(f) allows entities to require recertification of the eligibility of ADA paratransit eligible individuals at reasonable intervals. Appendix D to the regulations explains that, in DOT’s view, a reasonable interval for recertification is probably between one and three years. Less than one year would probably be too burdensome for consumers; over three years would begin to lose the point of doing recertifications.

Regarding PCAs, a provider may require that, as part of the initial eligibility certification process, an individual indicate whether he or she travels with a personal care attendant (§37.125(i)). A PCA is not charged a fare to travel with the eligible individual (§37.131(c)(3)). 

MCTS Response

After receiving our information request, MCTS promptly investigated your complaint allegations and informed FTA of its findings. MCTS reviewed its files and acknowledged that it had in fact received your November 24, 2009, letter appealing the conditions of your Transit Plus eligibility.1  The file did not show, however, that you received a response back; and an appeal hearing did not occur. This was an apparent oversight due to a clerical error. Because of this omission, MCTS immediately granted you full paratransit eligibility, rather than conditional eligibility, until you complete the recertification process later this year. MCTS sent you a letter dated May 26, 2010, informing you of your unconditional status. 

Conclusion

The record shows that MCTS was responsive to your complaint and immediately remedied an apparent oversight. We do not have evidence to suggest that this situation was other than a clerical mix up. As explained above, transit agencies have discretion in requiring recertification of the eligibility of ADA paratransit eligible individuals, as long as recertification is done at reasonable intervals. Therefore, we consider this matter resolved and are closing your complaint as of the date of this letter. By copying MCTS on this letter, however, we are reminding it to continue to ensure that all appeal requests are handled promptly.

This concludes the processing of your complaint. If you have any questions regarding this determination, please contact me or Dawn Sweet of my staff at (202) 366-0529 or via e-mail at dawn.sweet@dot.gov. Any further correspondence should reference FTA Complaint No. 10-0197. Thank you for bringing your concerns to our attention, and we trust the above information is helpful.
     

Sincerely,

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

cc:
MCTS
FTA Region 5

1 MCTS indicates that it received another letter from you dated April 18, 2010, but this letter did not request an appeal or the removal of conditions.