August 14, 2008

Re: FTA Complaint Number 08-0106

Dear [name withheld]:

This letter responds to your complaint against the Santa Cruz Metropolitan Transit District (METRO) 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 properly implement Title II of the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973, as amended (Section 504), and the U.S. 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 of April 8, 2005, alleged that METRO was no longer providing you with the specific type of vehicle (minivan) you requested as a reasonable modification to accommodate your disability. Additionally, you were no longer allowed to secure your wheelchair sideways (side-facing) as a reasonable modification.

FTA investigated your allegations and on November 8, 2005, found that absent a direct threat to others, “[name withheld] should be permitted to ride side-facing.” On December 21, 2005, METRO responded to FTA, asserting a number of reasons why the requested modification was not reasonable. In response, on March 28, 2006, FTA requested that METRO conduct a thorough analysis of the reasonable modification request, described below. We received a response from METRO that addressed and provided relevant information on your allegations. Your allegations are addressed in detail below.

A. METRO’s Obligation to Make Reasonable Modifications of Service

METRO has argued that there is no need to provide a reasonable modification of service, following the logic adopted by the U.S. Court of Appeals for the 5th Circuit in Melton v. Dallas Area Rapid Transit, 391 F.3d 669 (5th Cir. 2004). The Melton court held that there is no requirement under DOT regulations to provide a reasonable modification in transit service because paratransit service is the statutorily determined reasonable modification for fixed route public transportation. Additionally, the court held that the Department of Justice (DOJ) requirements to modify service are not applicable to public transportation. The court’s logic is at odds with the position of DOT and not controlling over the present question of METRO’s obligations to you in matters wholly occurring in California, under the jurisdiction of the 9th Circuit Court of Appeals.

As DOT interprets the ADA and existing ADA and Section 504 regulations, METRO, as a transit provider, may implement generally applicable rules and regulations, even where those rules and regulations have the effect of limiting service to people with disabilities. Transit providers must, however, make reasonable modifications to such rules and regulations in order to provide access to people with disabilities who would otherwise be denied access because of their disabilities.

Although the requirement for public entities to make reasonable modifications in their policies and practices is not explicitly addressed in the DOT ADA regulations, it is included in DOJ regulations, which are incorporated by reference at 49 CFR § 37.21(c). The relevant DOJ regulation states: “A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability….”[1]

The three-pronged analysis detailed in the March 28, 2006, letter to Santa Cruz METRO of then-FTA Chief Counsel David B. Horner, indicated that Santa Cruz METRO’s decision on whether to make a requested modification must rest on a thorough analysis of three questions: (1) Has the complainant made a factual showing that the requested modification is necessary to permit her to use the service for which she is eligible? (2) Does making the modification necessarily cause the transit authority to fundamentally alter its service? A modification is not required where it fundamentally alters the nature of the service, program, or activity being provided.[2] (3) Does making the modification create a direct threat to others that cannot be mitigated? If allowing the modification creates a direct threat to others, the modification is not required of the transit provider.[3]

B. Response to Allegations

Based on correspondence between you (as represented by Protection & Advocacy, Inc. (PAI)), FTA, and METRO, you have three distinct issues which need to be addressed.

1. METRO will not allow you to be secured sideways in their paratransit vehicles.
2. METRO will not send a specific type of paratransit vehicle to pick you up.
3. If allowed to be secured sideways, you want permission to grab the handle on the back of the paratransit vehicle operator’s seat for further stability or, if that is not available, the driver’s armrest.

1. METRO will not allow you to be secured sideways in their paratransit vehicles.

As indicated above, in March, 2006, we asked METRO to analyze whether you had made a factual showing that the requested modification is necessary to permit you to use the service for which you are eligible. METRO analyzed all the documentation you submitted and determined that you had not made such a showing. This documentation included your March, 2001, letter to Liftline; a January, 2001, letter from your physician, [name withheld]; and three letters from your physician, [name withheld]. Generally, you, PAI and the doctors assert that a side-facing position is better for you because it is easier to get in and out of the vehicle, and the movement fore and aft when you are in a forward-facing orientation is harder on your body than when you are in a side-facing orientation.

While you provided evidence supporting your claim, we note the documentation provided by you and your advocates indicates that you will experience pain and discomfort in a moving vehicle regardless of your orientation or the vehicle in which you ride. The documentation you provided to METRO does not demonstrate that the difference between the motion you would experience in a forward- or rearward-facing position and a side-facing position would preclude you from being able to travel in a forward- or rear-facing position.

FTA has undertaken a thorough review of the documentation regarding side-facing securements in transit vehicles, and finds that even if you had demonstrated unambiguously that the modification was necessary, in this unique case significant evidence exists that the risks of side-facing securement are real, and transportation experts agree that forward- or rearward-facing orientation is the safest means of transporting passengers who use wheelchairs.

When considering safety arguments used to oppose accessibility, DOT has consistently declined to give credit to speculative arguments of undocumented safety concerns.[4] In this particular case, there are documented sled tests indicating that side-facing securements are not safe.[5] As a result of these tests, the industry has developed standards requiring passengers who use wheelchairs to be transported in forward- or rear-facing positions.

When the National Highway Transportation Safety Administration (NHTSA) revised Federal Motor Vehicle Safety Standard 222 (49 CFR 571.222) in 1991, it noted in its proposed rulemaking: “As noted [in the report “Wheelchair and Occupant Restraint on School Buses," DOT-HS-807-570, May 1990], … in order to provide for maximum occupant protection, wheelchairs on school buses should be in a forward-facing position because wheelchairs are inherently stronger in this direction and because human injury tolerance levels are higher in the forward versus side direction. . . .

“Various other organizations working on wheelchair securement and occupant restraint [con]cur with the forward-facing orientation, including the Society of Automotive Engineers (SAE), the International Standards Organization (ISO), and the Canadian Standards Association (CSA). Additionally, the existing standards of several countries, e.g., Australia, Canada, and Great Britain, allow only forward or rearward-facing wheelchair orientations.”[6]

Also in 1991, in the Access Board’s rulemaking to develop vehicle standards, noted in the preamble that, “[m]any of the commenters agreed that the side facing system has been shown to be unsafe by all available crash test data. No information was provided to contradict the data.”[7] In subsequent technical assistance on 36 CFR 1192.23, the Access Board noted that, as a result of crash tests and the dynamics of ordinary sudden stop conditions, “[s]ide-facing securement is not permitted under any circumstances.”

In 1993, citing the Access Board’s conclusions, as well as the safety tests conducted by the California Department of Transportation, FTA declined to grant equivalent facilitation to a transportation provider that sought to carry riders in a side-facing orientation.[8] In its Federal Register notice, FTA stated: “To date, no one has provided test data indicating that side-facing wheelchair or mobility aid securement is as safe as forward or rearward facing securement positions. We would welcome the opportunity to review any such data.”[9] Finally, FTA previously found in Complaint No. 96178, May 18, 1998, in which a passenger requested a side-facing orientation, that a transit agency was not required to transport a passenger in a side-facing orientation “because it is unsafe.”

In light of the foregoing, and because there is no new information showing that a side-facing orientation is safe, there is no need to do a fundamental alteration or direct threat analysis. FTA reverses its November 8, 2005, determination that you should be permitted to ride side-facing and declines to require METRO to secure you in such a way.

2. METRO will not send a specific type of paratransit vehicle to pick you up.

You assert that a minivan eliminates most movement of your wheelchair because the movement of a van is much smoother and more stable than riding in a larger vehicle, such as a small bus. You have requested that only the types of vehicles that have less movement, specifically the Type A and B Chevrolet Venture Minivan, be assigned to pick you up for any paratransit trip you wish to take.

METRO provided us with information about their fleet of paratransit vehicles. All of METRO’s paratransit vehicles are wheelchair accessible. There are four Goshen vehicles, one Aerotech vehicle (similar to the Goshen vehicle), 15 Type A Chevrolet Venture Minivans, and 14 Type B Chevrolet Venture Minivans. Based on the types and quantity of vehicles in the fleet, it may be more likely that a minivan will be provided; however, the information regarding METRO’s scheduling software and operating procedures indicates that they do not currently dispatch by type of vehicles, and the regulations do not require them to do so.[10] Under these circumstances, guaranteeing the type of vehicles you prefer would constitute a fundamental alteration of service.

Therefore, we do not find that METRO is required to send a specific type of paratransit vehicle to pick you up.

3. If allowed to be secured sideways, you want permission to grab the handle on the back of the paratransit driver’s seat for further stability, or, if that is not available, the driver’s armrest.

When a potential modification creates a direct threat to the safety of others, a transit provider is not required to make that modification. We believe METRO makes a reasonable case that a passenger holding the driver’s armrest or the handle on the back of the driver’s seat could interfere with the driver’s ability to control the vehicle safely, thus potentially creating such a direct threat.

This concludes our processing of this matter and no further action will be taken. 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 regarding our determination, please contact David Knight, at (202) 366-0805 or at his e-mail address: david.knight@dot.gov. Thank you for bringing your concerns to our attention.

Sincerely,

David W. Knight
ADA Team Leader
Office of Civil Rights

cc:
Margaret Gallagher, District Counsel, METRO
Leslie White, General Manager, METRO
Robert C, Ashby, Deputy General Counsel for Regulation and Enforcement, U.S. DOT
Severn E.S. Miller, Chief Counsel, FTA
Leslie T. Rogers, Region IX Administrator, FTA
Derrin Jourdan, Region IX Civil Rights Officer, FTA

[1] 28 CFR § 35.130(b)(7).
[2] Id.
[3] 28 CFR § 36.208.
[4] See e.g., 63 Fed. Reg. 51670, 51672 (Sept. 28, 1998), finalizing DOT’s rules for over-the-road buses, and discussing four DOT rulemakings in which commenters made safety-related arguments to support limits on accessibility, which DOT rejected as speculative.
[5] The 1981 report, “Wheelchair Securement on Bus and Paratransit Vehicles,” prepared by the California Department of Transportation and funded by FTA’s predecessor agency, the Urban Mass Transportation Administration, found that, “…the side-facing tests have indicated this orientation is undesirable. The wheelchair user’s neck, hips, and knees are subjected to bending in an abnormal direction, and the main wheels of the wheelchair usually collapse.”
[6] 56 Fed. Reg. 48140, 48143, Sept. 24, 1991.
[7] 56 Fed. Reg. 45530, 45539, Sept. 6, 1991.
[8] 58 Fed.Reg. 54864, 54867, Oct. 22, 1993.
[9] Id.
[10] If some vehicles in METRO’s fleet were not accessible, it would be more feasible to accommodate your request for a specific type of vehicle, since having inaccessible vehicles would require a reservation system that allowed certain types of vehicles to be designated for certain classes of passengers.