Civil Rights Update and Policy Modification - Dakota Transit Association Meeting

1. Dakota Transit Association MeetingCivil Rights Update andReasonable Modification of Policy Region VIII September 21, 2015 Minot, ND

2. FTA and the Office of Civil Rights (TCR) has put an increased emphasis on assuring compliance with all civil rights regulations Having all required civil rights programs (Title VI, EEO, and DBE Program and Goal) on file and concurred upon are pre-requisites to funding. Increased emphasis means: • programs are submitted in TEAM by the grantee • reviews are more in-depth • reviews are followed-up with a letter from TCR indicating review determination, and any corrections

3. Program Determinations • Concur • In Review • Expired/Expiration

4. Recipient Classifications • Direct Recipient - this term applies to recipients that receive funds from FTA and spends those funds • Primary Recipient – this is a term used in the regulation and it applies to recipients that pass funds through to subrecipients -The State is considered the Primary Recipient when it passes FTA funds to an organization, or a Subrecipient

5. TEAM / TrAMS is used to Contact You The Office of Civil Rights (TCR) pulls information from TEAM and TrAMS to send emails, letters and other correspondence to grantees. -Under the “Recipient” tab, make sure all necessary individuals are listed and their contact information is correct: Name, Title, Address, Email, Telephone… -Send RCRO the contact information for individuals responsible for civil rights matters in your organization as they may not be listed in TEAM.

6. Great Way to Get Information and Stay Current Sign-up to receive email notifications when TCR (The Office of Civil Rights) adds information to the webpage. Look for a red icon at the top of the page to get you started. Sign up for email updates on this topic. You can choose what information you would like to receive notifications about

7. Circular News New ADA Circular is in the works A New EEO Circular is in the works The (Revised) Title VI Circular 4702.1B (Effective October 1, 2012) A (New in 2012)Environmental Justice CircularTCR does NOT oversee this

8. DBE DBE applies to FTA recipients receiving planning, capital and/or operating assistance who will award contracts exceeding $250,000 in FTA funds in a Federal fiscal year (excluding vehicle purchase and internal expenses, i.e. planning). There are THREE components to the DBE Requirement; the DBE Program is different from the DBE Goal grantees submit every three years. • The DBE Goal anticipates contracts with FTA funds and the availability of DBEs to perform work on FTA-assisted contracts. • The DBE PROGRAM describes how the agency implements the program or carries out its DBE efforts. • DBE Reports provide information on how the money received is actually spent. MUST be filed in TEAM each June and December

9. Meeting your Goal • Really look at your projected spending and do not overlook contracting opportunities. • If you did not meet your goal, conduct an honest Shortfall Analysis. This is your opportunity to analyze your Goal, determine why you didn’t meet it and what you can do to improve. Was it because a faulty goal setting method was used? Was a change in the market? • Increase your participation by starting with improved RN efforts. • Hold meet and greets, implement mentoring programs, review your SBE Program and really implement it. • Increase enforcement of Contract Goals.

10. DBE Rule Changes Several changes: TWO important changes to the DBE Goal requirement • Publication and Consultation Publication is deemphasized. Recipients must at least publish their goal on their website, but whether to publish the goal in other avenues is at the recipient’s discretion. Consultation is being given more emphasis. Recipients must make an concentrated effort to reach out to all interested parties and gain their feedback. (Passive or slight efforts such as blast emails without follow-up will not satisfy this requirement.) • This is the time of year to be conducting consultations and FTA is looking closely to see that this requirement is met.

11. DBE Rule Changes Changes to TWO aspects of the DBE Goal requirement 2. Goal Adjustment Recipients are NOT required to adjust their goal (never have been). But if you adjust the goal, submission must now really explain well why you chose to adjust the goal. • The emphasis has shifted to explaining why you CHOSE to adjust and what factors you considered. (Before we expected a comprehensive explanation about why you did not adjust the goal.) • Recipients MUST consider all factors and goal adjustment whether or not a goal adjustment is actually done. -Include a statement in the goal submission about adjustment considerations so it is clear that this requirement was not overlooked.

12. EEO Equal Employment Opportunity Program (EEO) Does it apply to you? • FTA recipients with 50 or more transit-related employees AND -(1) received $1 million or more in capital or operatingassistance ~ Or ~ -(2) received $250,000 or more in planning assistance during the previous fiscal year

13. Title VI Prohibits Discrimination Based on Race, Color, National Origin “No Person in the U.S. shall, on the grounds of Race, Color, national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” • 42 U.S.C § 2000d, et seq

14. EJ and Title VI • EJ • Executive Order • Applies to Federal agencies • Recipients facilitate FTA compliance with E.O. • Title VI • Statute • Applies to ALL FTA recipients • FTA oversees recipients’ compliance with Title VI regulations

15. Environmental Justice • EJ is separated from Title VI circular to reduce confusion • FTA developed EJ guidance in circular number 4703.1 “Environmental Justice Policy Guidance for Federal Transit Administration Recipients” • EJ is not handled by the Office of Civil Rights. The Office of Planning and Environment (TPE) is responsible for EJ matters.

16. Title VI Program Submission • Applies to all FTA Recipients • Every 3 years – The Office of Civil Rights has developed a submission schedule similar to the DBE submission schedule. • Submit your Program at least 60 calendar days prior to expiration date. • All recipients must have Title VI Program approved by the recipient’s governing entity and MUST submit documentation of review and approval actions. • For State DOTs, the appropriate governing entity is the State’s Secretary of Transportation or equivalent.

17. Contractors and Title VI Contractors who operate service for FTA grantees do NOT submit Title VI Programs. They must comply with the grantee’s Title VI program. • For example: A company contracted to provide paratransit service for Transit Agency A must implement the Title VI Program of Transit Agency A.

18. Subrecipientsand Title VI • Each subrecipientmust develop and implement its own Program. -Even if the organization does not get any funding directly from FTA but gets FTA funding from the State – the organization still must have its own Title VI Program. -The Subrecipient submits its Program to the State on a schedule established by the State.

19. Subrecipientsand Title VI The State is responsible providing technical assistance, review and concurrence and oversight of the subrecipient’s Program. • If the Subrecipient is out of civil rights compliance – the State is out of compliance. • The State may assist with the preparation of the Program but the subrecipient Program mustbeaseparate Program. • The subrecipient may use some elements of the primary recipient’s Title VI Program.

20. Title VI Circular Highlights • Provides grantees with guidance on the relationship between Title VI Program requirements and DOT’s Title VI regulation • Explains what grantees must include in their Title VI programs • Includes in-depth appendices to provide examples to grantees (Includes graphs, sample forms, and flow charts)

21. Chapter IIIRequirements for ALL Recipients Eight elements contained in every Title VI Program: • Notice of Rights under Title VI • How to File a Complaint, copy of complaint form • List of Title VI investigations, complaints or lawsuits • Public Participation Plan • LEP Plan • Racial Breakdown of Non-elected Advisory Councils • Narrative Describing Subrecipient Monitoring • Board of Directors resolution or meeting minutes demonstrating the board approved the Title VI Program

22. Promoting InclusivePublic Participation among LEP and Minority Populations

23. The Public Participation Plan • Must contain: • Proactive Strategies, • Procedures, and • Desired Outcomes • Suggested Participation Plan strategies and examples • Meetings at convenient times and accessible locations • Utilizing different meeting sizes and formats • Alternative advertising platforms • Varying community interaction

24. LEP Must be prepared to meet any language need that arises. Title VI States “No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal Financial assistance”.

25. LEP Assessment Four Factor Analysis • The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or recipient. • The frequency with which LEP persons come into contact with the program. • The nature and importance of the program, activity, or service provided by the program to people’s lives • The resources available to the recipient for LEP outreach, as well as the costs associated with that outreach

26. Developing a LEP Plan Recipients have considerable flexibility in developing a LEP Plan but at a minimum, a LEP Plan shall: • Include the results of the Four Factor Analysis, including a description of the LEP population(s) served; • Describe how the recipient provides language assistance services by language; • Describe how the recipient provides notice to LEP persons about the availability of language assistance; • Describe how the recipient monitors, evaluates and updates the language access plan; and • Describe how the recipient trains employees to provide timely and reasonable language assistance to LEP populations. Need Assistance? www.LEP.gov

27. Minority Representation on Planning and Advisory Bodies If you have: transit-related,non-electedplanning boards, advisory councils, committees, or similar groups and the membership is selected by the recipient Then -You must provide a table depicting the racial breakdown of the membership of those committees, and a description of efforts made to encourage the participation of minorities on such committees

28. Monitoring Subrecipients • Primary recipients must monitor subrecipients • Non-compliant subrecipientmeans primary recipient is also non-compliant • Primary recipients should assist subrecipients • Primary recipients shall: • Document process for ensuring all subrecipients are complying with the general and specific requirements . • Collect and review subrecipient’s Title VI Program • At FTA’s request, the primary recipient shall request that subrecipientswho provide transportation services verify that their level and quality of service is equitably provided.

29. Requirement to Collect and Report Demographic Data • Must prepare data regarding demographic and service profile maps and charts and customer demographic and travel patterns • Demographic and Service Profile Maps and Charts. • Base map of service area that overlays with geographic data • Demographic map • Demographic Ridership and Travel Patterns Such As: • Race - National Origin • Color- English Proficiency

30. Map Predominantly Minority Areas Minority threshold of 37% determined by total service area population

31. Chapter VRequirements for States • State shall include: • General requirements outlined in Chapter III • Any applicable transit provider requirements • Signed by State Secretary of Transportation • Demographic profile • Demographic maps • Analysis of disparate impacts • Statewide transportation planning process • Pass-through procedures • Procedures to assist subrecipients

32. Planning • All States must conduct planning activities • Collect Title VI programs from MPOs if they “pass through” planning funds to the MPO • Collection and storage of subrecipientsPrograms is a decision for the state • Self Certification

33. Requirements for Program Administration under 5310 • Document FTA funds passed-through without regard to race, color, or national origin • States prepare/maintain but not report unless requested by FTA: • Record of funding request • Description of competitive selection process • Agency’s selection Criteria

34. The Appendix is Your Friend Appendices are meant to provide practical guidance and include checklists, examples, tables… for FTA recipients to consult when preparing their Title VI program Use them and encourage others to do the same  Check out our civil rights training pageon the website

35. Americans with Disabilities Act Proposed ADA Circular FTA C 4710.1

36. Proposed ADA Circular • FTA is proposing the phased development of a new ADA Circular FTA C 4710.1 • It is being developed by chapter (about 12 chapters total) • There is a draft of the Circular on the FTA ADA home page “Proposed ADA Circular Chapter” • Watch for opportunities to submit comments on the current proposed chapter and ideas for issues to cover in future chapters

37. The ADA Final Rule DOT issued an ADA Final Rule March 15, 2015 “Reasonable Modification” 49 CFR Parts 27 and 37 This is not a new rule but is intended to clarify or fill a gap in the regulations, particularly as it pertains to paratransit. “Undue hardship” and “Safety” are terms of art and key considerations under this Final Rule. Effective July 13, 2015

38. Origin-to-Destination • No change to the longstanding origin-to-destination requirement under §37.129 (a) • Base curb-to-curb policy ok, but assistance beyond curb would be needed on an individual basis, consistent with 2005 DOT law guidance

39. Reasonable Modification Modification \ˌmä-də-fə-ˈkā-shən\; n.: the act or process of changing parts of something • Reasonable \ˈrē-zən-ə-bəl\; adj.: fair and sensible; not extreme or excessive; possessing sound judgment

40. What is reasonable modification? • Agencies are required to make reasonable modifications to policies, practices, and procedures to avoid discrimination and ensure that their programs are accessible to individuals with disabilities • Appendix E provides a framework with examples

41. Reasonable Modification: Examples General Paratransit • Pick up at hard to maneuver spots • Pick up at specific entrances • Assist in extreme weather • Have operator pull up a reasonable distance from obstructed bus stop • Help rider with fare media • Allow passenger with medical condition to eat/drink to avoid adverse health consequences

42. Reasonable Modification: What is It Not? Appendix E “Importantly, reasonable modification applies to an entities’ own policies and practices, and not regulatory requirements contained in 49 CFR parts 27, 37, 38, and 39, such as complementary paratransit service going beyond 3⁄4 mile of the fixed route, providing same day complementary paratransit service, etc.” • Applies to an agency’s policies/practices, not the regulations themselves • e.g., Not a need to exceed minimum service criteria

43. Reasonable Modification: What it Is Not? 1.Fundamental alteration of service 2.Direct threat to the health or safety of others 3.Not needed by the requester to use the service 4.Undue financial / administrative burden

44. 1. Fundamental Alteration • A change so significant that it alters the nature of the service • Examples (Appendix E): –Specific vehicle requests (“I like the new buses!”) –Exclusive rides –PCA functions like carrying packages, staying with unattended passengers –Operating outside service area or hours • Basic concepts: –The service is shared-ride public transportation to get people from point A to point B –The bus driver is not a personal care attendant

45. 2. Direct Threat • A significant risk to the health or safety of others –Clear and present danger to someone else Examples (Appendix E): • Exposing the vehicles to hazards (reversing down a narrow alley, striking overhead objects, etc.) • Leaving a vehicle unattended for a lengthy period

46. 3. Not Needed • Without the requested modification, the individual with a disability is able to fully use the entity’s services, programs, or activities for their intended purpose Example (Appendix E): • Request for a specific driver

47. 4. Undue Burden • Depends on facts and circumstances of each individual case • Burden of proof on agency • Accommodation requested may be unreasonable based on more than one principle • Example: Asking to not ride with a particular passenger

48. Local Process Requirement • Transit providers must implement their own process for making decisions and providing reasonable modifications (§37.169) –The rule does not prescribe the exact process to adopt or require DOT approval • Existing local processes may suffice – no separate process for RM –Complaint process –Paratransit eligibility process –Customer service –Operating personnel (when advance notice is impracticable)

49. Basic Process Requirements Requesters must describe what they need to use the service Requesters do not need to use the phrase, “reasonable modification” • Information on RM process is readily available to the public • Process is accessible • Require advance notice; but when feasible, flexibility needed in handling requests only practicable on the spot

50. Basic Process Requirements • Flexibility! –Appendix E is not exhaustive –Scenarios may evolve over time and initially require case-by-case assessment • Some situations will always be on-the-spot –Obstructed bus stops –Eating/drinking • How have you handled before?