Federal Transit Administration November 4, 2015 Subject: americans with disabilities act (ada): guidance
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- Navigate this page:
- 2.2.1Prohibition Against Discrimination
- 2.2.2Right to Use General Public Transportation Services
- 2.2.3Prohibition Against Requiring Use of Priority Seating
- 2.2.4Prohibition Against Imposition of Special Charges
- 2.2.5Prohibition Against Requiring Use of Attendants
- 2.2.6Prohibition Against Refusing Service Due to Insurance Issues
- 2.2.7Service Denial Due to Rider Conduct
- Determining Seriously Disruptive Behavior
- Determining a Direct Threat
- Steps to Take Before Refusing Service
- Right of Individuals to Contest Service Denials
2.Chapter 2 – General Requirements2.1IntroductionThis chapter explains the U.S. Department of Transportation (DOT) Americans with Disabilities Act (ADA) regulations related to nondiscrimination and other broad crosscutting requirements applicable to fixed route (rail and non-rail), complementary paratransit, and demand responsive services. Regulations covered in this chapter are primarily from 49 CFR Part 37 Subparts A (General) and G (Provision of Service). As the chapter outlining the broad general requirements that apply across transit modes, Chapter 2 is meant to accompany the specific service-focused chapters that follow and to be cross-referenced by the reader as needed. This Circular does not alter, amend, supersede, or otherwise affect the DOT ADA regulations themselves or replace the need for readers to reference the detailed information in the regulations. FTA recommendations and examples of optional practices are included throughout the Circular and do not represent requirements. FTA recognizes there are many different ways agencies can implement the regulatory requirements and ensure the delivery of compliant service. FTA encourages transit agencies to engage riders with disabilities when making decisions about local transit service.
2.2NondiscriminationAs a comprehensive civil rights law, the ADA grants the same rights and responsibilities to individuals with disabilities as are available to all individuals. Fundamentally, the overarching requirement of the law is that entities cannot discriminate against individuals with disabilities. Section 37.5 contains a general prohibition against discrimination and outlines several specific actions the regulations disallow. 2.2.1Prohibition Against DiscriminationRequirement“No entity shall discriminate against an individual with a disability in connection with the provision of transportation service” (§ 37.5(a)). DiscussionHaving a disability in no way diminishes an individual’s right to be treated equally and to benefit from public transit along with others in the community. This general nondiscrimination requirement represents the foundation upon which the rest of the regulatory requirements rest. In the absence of a specific provision covering a particular policy or operating issue, the general nondiscrimination requirement applies. The following are examples of policies and practices FTA considers discriminatory under § 37.5(a): Refusing to provide service because of a person’s disability Requiring individuals with disabilities to use seat belts or shoulder harnesses when other riders on the same vehicle are not also required to do the same Requiring riders who use wheelchairs to wear a special body belt as a condition of using lifts on vehicles or riding on transportation systems Requiring riders who board a vehicle with a service animal to first disclose the nature of their disability to receive transportation Requiring adults to accompany children under a certain age in order to use complementary paratransit service without having the same age requirement to ride the fixed route system Prohibiting an individual with a disability from serving as a personal care attendant (PCA) for another rider with a disability 2.2.2Right to Use General Public Transportation ServicesRequirement“Notwithstanding the provision of any special transportation service to individuals with disabilities, an entity shall not, on the basis of disability, deny to any individual with a disability the opportunity to use the entity’s transportation service for the general public, if the individual is capable of using that service” (§ 37.5(b)). DiscussionSection 37.5(b) prohibits a transit agency from denying to any individual with a disability the opportunity to use the agency’s transportation service for the general public if the individual is capable of using that service. An agency cannot compel an individual with a disability, for example, to use its complementary paratransit service, or otherwise prevent the individual from using fixed route service, based on a belief that he or she will “take too long” to board a bus. An agency cannot deny service to a person with a disability based on what it perceives to be “safe” or “unsafe” for that individual. All riders take on some level of risk when traveling (e.g., standing while riding a bus, crossing busy streets, or walking along roadways with quickly moving traffic). Individuals with disabilities also have the right to decide the level of risk they are willing to take to travel independently. To ensure nondiscrimination, an optional good practice is for an agency to have written rules of rider conduct and related internal policies. (See Circular Section 2.11.) Such policies would apply equally to complementary paratransit and fixed route, as well as to riders with and without disabilities. These policies are particularly important if it becomes necessary to refuse service to individual riders, as discussed in Circular Section 2.2.7.
Requirement“An entity shall not require an individual with a disability to use designated priority seats, if the individual does not choose to use these seats” (§ 37.5(c)). DiscussionSection 37.5(c) prohibits an agency from requiring an individual with a disability to use designated priority seats if the individual does not choose to use the seats. Individuals with disabilities have the same right as all other riders to decide where they would like to sit. 2.2.4Prohibition Against Imposition of Special ChargesRequirement“An entity shall not impose special charges, not authorized by [Part 37], on individuals with disabilities, including individuals who use wheelchairs, for providing services required by [Part 37] or otherwise necessary to accommodate them” (§ 37.5(d)). DiscussionA transit agency cannot impose special charges for providing required accessible services to individuals with disabilities. Examples of prohibited charges include: Charging individuals more to ride in lift-equipped vehicles than in sedans in demand responsive services that use both types of vehicles Charging individuals more for assistance beyond the curb when riding complementary paratransit, if such assistance is necessary to meet the origin-to-destination requirements of that service (See Circular Section 8.3.1.) Charging extra to riders who use wheelchairs to travel in an accessible vanpool vehicle Charging individuals for travel to in-person interviews or functional assessments that are required as part of the ADA paratransit eligibility process Charging ADA paratransit eligible riders for photo IDs or for travel to or from locations to obtain required ID cards Imposing a mandatory fee to complementary paratransit riders (and their companions) for cancelled trips or trips counted as no-shows (See Circular Section 9.12.5.) Special charges are not the same as premium services for which agencies may charge extra fees. (See Circular Section 8.7.) 2.2.5Prohibition Against Requiring Use of AttendantsRequirement“An entity shall not require that an individual with disabilities be accompanied by an attendant” (§ 37.5(e)). DiscussionA transit agency cannot require an attendant to accompany an individual with disabilities. For example, an agency may not require a rider with a disability to travel with an attendant based on concerns about his or her safety. There is one exception. As discussed in Circular Section 2.2.7, § 37.5(h) permits agencies to refuse service to individuals with disabilities if they engage in violent, seriously disruptive, or illegal conduct, or if they pose a direct threat to the health or safety of others. As discussed in Appendix D to § 37.5, This provision must also be considered in light of the fact that an entity may refuse service to someone who engages in violent, seriously disruptive, or illegal conduct. If an entity may legitimately refuse service to someone, it may condition service to him on actions that would mitigate the problem. The entity could require an attendant as a condition of providing service it otherwise had the right to refuse. If a transit agency requires a rider to travel with an attendant as a condition of service under the circumstances described above, those conditions cannot be permanent. The agency would need to afford the rider the future opportunity to demonstrate that circumstances have changed and he or she is now able to travel independently, i.e., without an attendant. From a practical standpoint, some riders with disabilities will need to travel with an attendant to use the service, sometimes permanently. While § 37.165(f) requires drivers to provide assistance with the use of lifts, ramps, and securement systems (see Circular Section 2.5.1), per Appendix D to § 37.5 they are not required to provide “attendant services.” This includes assisting with the use of oxygen or other medical equipment, administering medication, or helping with other personal needs. If unable to travel without this level of assistance, riders may need to bring along their own attendant. 2.2.6Prohibition Against Refusing Service Due to Insurance IssuesRequirement“An entity shall not refuse to serve an individual with a disability or require anything contrary to [Part 37] because its insurance company conditions coverage or rates on the absence of individuals with disabilities or requirements contrary to [Part 37]” (§ 37.5(g)). DiscussionIf an insurer declines to provide liability coverage for required services to individuals with disabilities, a transit agency cannot use this decision as a basis for not providing the required services. This also applies if insurance companies require anything contrary to the regulations. The following examples illustrate possible issues related to insurance: A transit agency’s vehicle liability policy does not provide coverage for a driver to help push a rider using a manual wheelchair up the vehicle ramp. An insurance company refuses to provide coverage if riders travel with portable oxygen supplies, or classifies this situation as a form of medical transportation and charges higher rates. In both instances, § 37.5(g) requires the transit agency to provide the required services to riders with disabilities and to refrain from using insurance company stipulations as reasons to deny service. Similarly, an agency cannot require individuals with disabilities to sign liability waivers as a condition of receiving service. For example, if an agency has a mandatory wheelchair securement policy, and a vehicle operator is unable to determine how best to secure a passenger’s wheelchair aboard a bus, the agency may not deny service or require the passenger to sign a waiver in order to ride. 2.2.7Service Denial Due to Rider ConductRequirement“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, or represents a direct threat to the health or safety of others. However, an entity shall not refuse to provide service to an individual with disabilities solely because the individual’s disability results in appearance or involuntary behavior that may offend, annoy, or inconvenience employees of the entity or other persons” (§ 37.5(h)). DiscussionSection 37.5(h) permits transit agencies to refuse to provide service to an individual with disabilities because that individual engages in violent, seriously disruptive, or illegal conduct, or that individual constitutes a direct threat to others. Overlap among these four thresholds is common and therefore FTA recommends agencies consider them as a unit. Rarely is violent behavior such as physical assault, for example, not also seriously disruptive, illegal, and a direct threat. Consider another example: a verbal outburst directed at a driver or other passengers may start out as seriously disruptive but become so threatening as to prevent a driver from safely operating the vehicle and, therefore, rise to a direct threat as well. Determining Seriously Disruptive BehaviorIt can be especially challenging to assess whether rider behavior rises to the level of “seriously disruptive.” Given that a service refusal can be a denial of a civil right, the threshold for seriously disruptive conduct, like the other denial bases, is an intentionally high standard. A transit agency cannot refuse service to individuals with disabilities solely because their appearance or involuntary behavior may offend, annoy, or inconvenience employees or other riders. As discussed in Appendix D to § 37.5, “some persons with Tourette’s syndrome may make involuntary profane exclamations. These may be very annoying or offensive to others, but would not be a ground for denial of service.” 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 to other passengers or drivers. If the situation disrupts the provision of service, however, grounds for refusing service may exist. Determining a Direct ThreatAppendix D to § 37.3 explains that transit agencies may refuse to transport individuals who pose a significant risk to the health or safety of others, stating: The definition of “direct threat” is intended to be interpreted consistently with the parallel definition in the Department of Justice regulations. That is, Part 37 does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others. In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment, that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk, the probability that the potential injury will actually occur, and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. Presuming certain conduct will occur based on specific disabilities is not appropriate. For example, it is incorrect to presume all riders with particular psychiatric disabilities will behave in a violent manner that constitutes a direct threat to others. If during the ADA paratransit eligibility process, however, an agency obtains documentation indicating a pattern of violent behavior that likely will recur, or documents an individual’s pattern or practice of violent behavior on its services, this information might be used to deny service or require such an individual to travel with an attendant, following the process in Appendix D to § 37.3 described above. FTA emphasizes that the definition of direct threat refers to a direct threat to other individuals and not to the person with the disability. Steps to Take Before Refusing ServiceBefore refusing service to an individual with a disability, FTA encourages transit agencies to make reasonable attempts to resolve issues with riders or, if appropriate, caregivers or guardians. Often, local disability organizations may be helpful in resolving issues so that individuals do not lose access to vital transportation services. FTA recommends that agencies document the incident or incidents leading to the service denial, substantiating how such an incident rises to the level of seriously disruptive or a direct threat, for example. When possible, FTA also recommends that agencies provide the rider with a written warning before denying service. Right of Individuals to Contest Service DenialsAccess to public transit is a civil right and inherent in any civil right is the opportunity for due process. This means providing an individual who is denied service the opportunity to contest that decision, correct the situation, and resume service. Service refusals cannot be permanent unless an individual continues to pose a direct threat to the health or safety of others. Riders must have the opportunity to subsequently present information to the transit agency, demonstrating that issues have been resolved or presenting options to mitigate any problems, to have service reinstated. This also means providing a rider required to travel with an attendant the opportunity to appeal such a requirement. As with service refusals, riders have the right to subsequently provide information demonstrating they have addressed the agency’s concerns and can now travel without an attendant or propose other solutions that permit them to travel on their own. Directory: sites -> fta.dot.gov -> files -> docs docs -> Federal Transit Administration Safety Advisory 14-1: Right-of-Way Worker Protection docs -> Alternative Fuels and Propulsion Vehicle Incentives docs -> Job Access Reverse Commute (jarc) Program fy 2010 Service Profiles docs -> Review of the new jersey transit corporation docs -> Review of new Jersey Transit Corporation docs -> Review of the jacksonville transportation authority docs -> Jacksonville Transportation Authority Assessment of ada complementary Paratransit Service Capacity Constraints June 8-11, 1999 docs -> Final policy statement docs -> 1200 New Jersey Ave, se washington, dc 20590 Download 1.93 Mb. Share with your friends:
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