Spotlight on ADA Compliance for Over-the-Road Bus Operators

1. Spotlight on ADA Compliance for Over-the-Road Bus Operators David W. Knight Disability Rights Section U.S. Department of Justice david.knight@usdoj.gov Bus Industry Safety Council Summer Meeting Linthicum, Maryland June 25, 2019

2. What you will learn today: U.S. Department of Justice Civil Rights Division • An overview of the Americans with Disabilities Act (ADA) rules for motorcoach operators • The role of DOJ, and it’s work with FMCSA • Enforcement efforts in the last two years

3. The Americans with Disabilities Act • Signed July 26, 1990

4. The Americans with Disabilities Act • Original DOT Regulations – Sep 6, 1991 • Over-the-Road Buses – Sep 28, 1998 • Reasonable Modification of Policies, Practices, and Procedures; Responsible Employee and Complaint Procedures – Mar 13, 2015

5. DOJ Enforcement 28 C.F.R. Part 35, Subpart F • Complaint/Investigations and Compliance Reviews http://www.ada.gov/filing_complaint.htm • DOJ and FMCSA have a collaborative Memorandum of Understanding (MOU) for our shared Over-the-Road Bus (OTRB) enforcement obligations regarding accessibility

6. Legal Authority • Title II, Part B – 42 U.S.C. §§ 12141-12150 • Title III – 42 U.S.C. §§ 12184-12186 www.ada.gov • 49 C.F.R. Part 37 – Transportation Services • Appendix D – Construction & Interpretation • 49 C.F.R. Part 38 – Vehicle Specifications www.transit.dot.gov/ada

7. Guidance • FTA Circular 4710.1 – Americans with Disabilities Act: Guidance, Nov. 4, 2015 found at www.transit.dot.gov/ada

8. How to Use Part 37, Appendix D, and the Circular Appendix D, Section 37.5, Nondiscrimination: • “The rule also points out that involuntary conduct related to a disability that may offend or annoy other persons… is not a basis for refusal of transportation.” Section 37.5, Nondiscrimination: • “It is not discrimination under this part for an entity to refuse to provide service to an individual with disabilities because that individual engages in violent, seriously disruptive, or illegal conduct...” FTA Circular: • “As another example, many agencies have asked FTA for guidance on serving riders with hygiene issues. It would not be appropriate to refuse service if the situation were merely unpleasant…”

9. DOT ADA Requirements

10. Key Terms • Over-the-Road Bus (OTRB): an elevated passenger deck over a baggage compartment • Fixed Route: vehicle is operated along a prescribed route according to a fixed schedule (city bus, intercity bus, rail, etc.) • Demand Responsive: not fixed route (taxi, paratransit, charter bus, tour bus, etc.) 49 C.F.R. § 37.3

11. Key Terms • Large Fixed Route: Class I motor carrier • More than about $9.89 million in annual gross transportation operating revenues • Revenues are combined with any other OTRB operator with which it is affiliated • Small Fixed Route: Less than about $9.89 million 49 C.F.R. § 37.3

12. OTRB/Motorcoach Vehicle Requirements • Large fixed route operators: • Mustbe 100% accessible as of Oct 2012; no extensions granted by DOT • Small fixed route operators: • Must provide accessible service, but may require up to 48 hours notice • New OTRBs purchased or leased must be accessible, unless equivalent service is provided • Demand responsive operators: • Must provide accessible service, but may require up to 48 hours notice 49 C.F.R. § 37.183, 185, 189, and 193

13. Recent DOJ Enforcement Actions

14. West Point Tours (July 2017) • Originated from an FMCSA ADA Review • Large, fixed-route operator • A survey of 32 routes found 15 instances of inaccessible OTRBs being used (47%); lack of training • Cease using inaccessible buses on fixed routes, and train staff

15. Martz Trailways (January 2018) • Wilkes-Barre, PA • Originated from an FMCSA ADA Review • Large, fixed-route operator • 5 of 68 OTRBs were not readily accessible • Removed those from the fleet; paid $10,000 civil penalty

16. Bieber Tourways (August 2017) • Kutztown, Pennsylvania • Originated from an FMCSA ADA Review • Large, fixed-route operator • Regularly used inaccessible buses on its fixed route in 2013, 2014, June 2016 (387 of 897 routes), and 2017 • Only use accessible buses, advertise accessibility, and pay a $20,000 civil penalty

17. Vonlane (February 2018) • Dallas, Texas • Initiated by a complaint • Small, fixed-route operators • Purchased 10 new OTRBs, all inaccessible; no online booking for accessible trips • Purchase of new accessible vehicle and provision of equivalent service until fleet is fully accessible

18. New York Tours (March 2017) • Initiated by a complaint • Demand-responsive service, with 1 van and 2 OTRBs • No accessible vehicles; no agreement with an alternative carrier to provide accessible service with 48 hours notice; no training program; did not file annual reports with FMCSA • Entered into agreement with carrier; trained staff; reported regularly to FMCSA; posted notices to the public

19. DOT ADA Requirements

20. Rest Stops • Assist passengers with disabilities in deboardingat rest stops • On express runs of three hours or more, if coach bathroom is inaccessible: • make a good faith effort to accommodate a request for an unscheduled stop. • If the operator does not make the stop, the operator shall explain to the passenger making the request the reason for its decision not to do so. 49 C.F.R. § 37.201

21. Non Discrimination Provisions • Cannot use or request the use of persons other than the motorcoach company’s employees for route boarding or other assistance (unless the passenger requests) • Cannot require a passenger with a disability to travel at a different time • Must provide equivalent reservation services 49 CFR § 37.207

22. Non Discrimination Provisions • Cannot prevent a person with a disability from using the transportation service for the general public if the individual is capable of using the system. § 37.5(b) • Cannot require that an individual with a disability be accompanied by an attendant. § 37.5(e) FTA Circular Ch. 2.2

23. Non Discrimination Provisions • Cannot impose special charges (extra fees) on individual with disabilities. § 37.5(d), FTA Circular Ch. 2.2 • Same rate must be charged to passenger requiring use of the lift. • If a taxi charges $1 to stow luggage in the trunk, it cannot charge $2 to stow a wheelchair. $1 charge would be acceptable. [Appendix D]

24. Other Service Requirements 49 C.F.R. § 37.167, FTA Circular Ch. 2 • Entity must ensure that operators make use of accessibility-related equipment and features • Adequate information regarding transportation services must be made available through accessible formats • Persons using the lift must be allowed to exit at any stop, unless it would damage the lift or there are temporary conditions precluding anyone’s use of the stop • Must ensure adequate time allowed to board/disembark

25. Service Animals • Allow to accompany passengers • Animals that are individually trained to perform tasksfor people with disabilities 49 C.F.R. §§ 37.3 & 37.167(d) FTA Circular Ch. 2.6

26. Resources National Aging and Disability Transportation Center – www.nadtc.org

27. Training Requirements 49 C.F.R. § 37.173, FTA Circular Ch. 2.9 • All entities which operate a transportation system shall ensure that personnel are trained to proficiency, as appropriate to their duties, so that they operate vehicles and equipment safely and properly assist and treat individuals with disabilities who use the service in a respectful and courteous way, with appropriate attention to differences among individuals with disabilities.

28. Stop Announcements 49 C.F.R. § 37.167(b), FTA Circular Ch. 6.6 • Applies to fixed route – public & private • Must announce transfer points, major intersections, and destination points, at intervals along a route sufficient to permit individuals to be oriented to their location. • Must announce stops on request. • Can be automated or by driver.

29. Route Identification 49 C.F.R. § 37.167(c), FTA Circular Ch. 6.7 Where vehicles or other conveyances for more than one route serve the same stop, the entity shall provide a means by which an individual with a visual impairment or other disability can identify the proper vehicle to enter or be identified to the vehicle operator as a person seeking a ride on that particular route. • i.e., external stop announcements

30. Maintenance of Accessible Features 49 C.F.R. § 37.161, FTA Circular Ch. 2.3 • Covers lift/ramps, securement devices, elevators, signage, public address systems, etc. • Must be repaired promptly • Must take reasonable steps to accommodate persons with disabilities who would otherwise use the feature • Does not prohibit isolate or temporary interruptions due to repair or maintenance

31. Keeping Lifts Operable 49 C.F.R. § 37.203 OTRB operators: • Establish system of regular & frequent maintenance checks • Report failures as soon as possible • Must take lift vehicle out of service before the next trip • If no spare, may leave in service for no more than five days

32. Wheelchair Lift & Securement Requirements 49 C.F.R. § 37.165, FTA Circular Ch. 2.4 • Securement systems on all accessible buses • Transport all wheelchairs • Establish a policy to secure all wheelchairs, or only upon passenger’s request • May not refuse to transport person because the chair cannot be satisfactorily restrained

33. Wheelchair Lift & Securement Requirements 49 C.F.R. § 37.165, FTA Circular Ch. 2.4 Upon request, must: • Allow standees to use the lift • Secure wheelchairs • Assist with securement system, seatbelts, ramp and lift • May require wheelchairs to remain in designated securement locations; persons may transfer, however may not require person to transfer

34. Recent DOJ Enforcement Actions

35. Greyhound Lines (February 2016) • The alleged violations included: • Failing to maintain accessibility features on its bus fleet such as lifts and securement devices • Failing to provide passengers with disabilities assistance boarding and exiting buses at rest stops • Failing to allow customers traveling in wheelchairs to complete their reservations online

36. Greyhound Lines (February 2016) – cont’d • Systemic reforms to included: • Hiring an ADA compliance manager • Annual in-person ADA trainings • Technical training to employees on the proper operation of accessibility features of the fleet • Paid over $3 million to compensate victims: • $300,000 in 2016 to individuals identified by the Department • $2,966,000 in May 2019 to over 2,100 individuals who experienced discrimination by Greyhound

37. Peter Pan Bus Lines (July 2017) • Springfield, Massachusetts • Initiated by a complaint • Large, fixed-route operator • Records showed a routine failure of lifts and improper securement of wheelchairs • Training of staff; system of lift and securements checks • Paid $15,000 in damages to complainant who was not transported on several occasions

38. 2015 Requirements

39. Responsible Person and Complaint Procedures 49 C.F.R. § 37.17, FTA Circular Ch. 12.7 Effective July 2015 • Each entity must designate at least one person to comply with the DOT requirements • Shall adopt a complaint procedures with incorporates due process standards • Provide prompt equitable resolution of complaints

40. Reasonable Modifications • Made reasonable modifications in policies, practices, or procedures • When necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities • Unless making the modification would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations § 37.5(i)

41. Reasonable Modification Requests Examples that should generally be granted: • Assistance over snow and ice or other extreme weather assistance • Positioning a fixed route bus around an obstruction • Assistance with fare handling • Allowing eating and drinking or medicine • Boarding separately from wheelchair Appendix E

42. Reasonable Modification Requests Examples that would generally be denied: • A dedicated vehicle or special equipment in a vehicle • Personal Care Attendant • Free rides • Caring for a service animal • Assistance with luggage or packages Appendix E

43. Vehicle Accessibility Standards 49 C.F.R. Part 38 FTA Circular Ch. 4, Attachment 4-1 (optional checklist)

44. Vehicle Accessibility Standards 49 C.F.R. Part 38 FTA Circular Ch. 4, Attachment 4-1 (optional checklist) • Lift edge barriers, handrails, safety elements, etc.

45. Vehicle Accessibility Standards 49 C.F.R. Part 38 • Ramp slopes, cross-slopes, runs, and edge conditions • Floor slopes, slip resistance, and level changes • Interior handrails – location, cross-sectional diameter, knuckle clearances

46. Vehicle Accessibility Standards 49 C.F.R. Part 38 FTA Circular Ch. 4, Attachment 4-1 (optional checklist) • 2 securement locations and devices – 30” x 48” clear floor space • Seatbelt and shoulder harness

47. Resources – www.nadtc.org

48. David Knight Disability Rights Section U.S. Department of Justice david.knight@usdoj.gov 202-616-2110 1-800-514-0301 (voice) 1-800-514-0383 (TTY) www.ada.gov