Federal Transit Administration November 4, 2015 Subject: americans with disabilities act (ada): guidance
Chapter 12 – Oversight, Complaints, and Monitoring
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- 12.2FTA Oversight of Recipients
- 12.3FTA Informal Resolution
- 12.4FTA Administrative Enforcement
- 12.4.1DOJ Authority
- 12.4.2DOJ-FTA Memorandum of Understanding
12.Chapter 12 – Oversight, Complaints, and Monitoring12.1IntroductionThis chapter explains how FTA carries out its oversight and enforcement responsibilities, including complaint investigations, under the Americans with Disabilities Act (ADA), and covers transit agencies’ own responsibilities for resolving and tracking disability-related complaints. This chapter also highlights topics in the Circular that include related information on the monitoring of service for compliance. 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. 12.2FTA Oversight of RecipientsRequirement“Recipients of Federal financial assistance from the Department of Transportation are subject to administrative enforcement of the requirements of [Part 37] under the provisions of 49 CFR Part 27, Subpart C” (§ 37.11(a)). “Public entities, whether or not they receive Federal financial assistance, also are subject to enforcement action as provided by the Department of Justice” (§ 37.11(b)). “Private entities, whether or not they receive Federal financial assistance, are also subject to enforcement action as provided in the regulations of the Department of Justice implementing title III of the ADA (28 CFR Part 36) ” (§ 37.11(c)).
DiscussionFTA is charged with ensuring recipients of Federal transit funding (grantees) do not discriminate against individuals with disabilities. The responsibility falls under 49 CFR § 37.11(a) and Subpart C (Enforcement) of 49 CFR Part 27. Each grantee annually signs FTA’s Master Agreement, thus agreeing it will comply with Federal law. In addition, each grantee annually signs FTA’s certifications and assurances, self-certifying that it is complying with Federal law. FTA assesses compliance through grantee self-certification, as well as grant reviews, complaint investigations, and site visits such as: Triennial Reviews of grantees receiving § 5307 Urbanized Area Formula Grants State Management Reviews of grantees receiving § 5311 Non-Urbanized Area Formula Grants and § 5310 Enhanced Mobility for Seniors and Individuals with Disabilities Grants Civil Rights Specialized Compliance Reviews of grantees’ fixed route, complementary paratransit, and rail service FTA also conducts oversight reviews in specific areas when grantees either (1) are participating in special programs (e.g., Project Management Oversight reviews for grantees receiving § 5309 New Starts funding) or (2) may be at risk for deficiencies in specific areas, including the ADA. Further information on other program reviews is available on the FTA website. 12.3FTA Informal ResolutionRequirement“Cooperation and assistance. The responsible Departmental official, to the fullest extent practicable, seeks the cooperation of recipients in securing compliance with this part and provides assistance and guidance to recipients to help them comply with [Part 27]” (§ 27.121(a)). DiscussionFTA’s role in overseeing ADA compliance is rooted in DOT’s overall administrative enforcement policy, as discussed in Appendix D to § 37.11: In considering enforcement matters, the Department is guided by a policy that emphasizes compliance. The aim of enforcement action, as we see it, is to make sure that entities meet their obligations, not to impose sanctions for their own sake. The Department’s enforcement priority is on failures to comply with basic requirements and “pattern or practice” kinds of problems, rather than on isolated operational errors. If through a compliance review, complaint investigation, or other means, FTA identifies a grantee’s failure to comply with applicable ADA requirements, it notifies the grantee, gives it an opportunity to correct the deficiency, and provides technical assistance if needed.
Requirement“Recipients of Federal financial assistance from the Department of Transportation are subject to administrative enforcement of the requirements of [Part 37] under the provisions of 49 CFR Part 27, Subpart C” (§ 37.11(a)). “General. If there is reasonable cause for the responsible Departmental official to believe that there is a failure to comply with any provision of [Part 27] that cannot be corrected by informal means, the responsible Departmental official may recommend suspension or termination of, or refusal to grant or to continue Federal financial assistance, or take any other steps authorized by law. Such other steps may include, but are not limited to: (1) A referral to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking; and (2) Any applicable proceeding under State or local law” (§ 27.125(a)). “Refusal of Federal financial assistance. (1) No order suspending, terminating, or refusing to grant or continue Federal financial assistance becomes effective until: (i) The responsible Departmental official has advised the applicant or recipient of its failure to comply and has determined that compliance cannot be secured by voluntary means; and (ii) There has been an express finding by the Secretary on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to [Part 27]. (2) Any action to suspend, terminate, or refuse to grant or to continue Federal financial assistance is limited to the particular recipient who has failed to comply, and is limited in its effect to the particular program or activity, or part thereof, in which noncompliance has been found” (§ 27.125(b)). “Other means authorized by law. No other action is taken until: (1) The responsible Departmental official has determined that compliance cannot be secured by voluntary means; (2) The recipient or other person has been notified by the responsible Departmental official of its failure to comply and of the proposed action; (3) The expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period, additional efforts are made to persuade the recipient or other person to comply with the regulations and to take such corrective action as may be appropriate” (§ 27.125(c)).
DiscussionIf DOT/FTA determines a matter cannot be resolved voluntarily, DOT/FTA may take action, including suspension or termination of Federal financial assistance or referral of the matter to the Department of Justice (DOJ) for enforcement, or any other steps authorized by law. In order to suspend or terminate Federal financial assistance, the regulations at § 27.125(b) require: DOT/FTA to determine that compliance cannot be secured by voluntary means DOT/FTA to advise the grantee of its failure to comply The Secretary of Transportation to make an express finding on the record, after opportunity for hearing, that the grantee has failed to comply
In addition, Part 35 of DOJ’s updated 2010 ADA Title II regulations (Nondiscrimination on the Basis of Disability in State and Local Government Services) includes a provision in Subpart G (Designated Agencies) that allows DOJ to investigate a complaint on its own, without referring the complaint to the designated agency. (See 28 CFR 35.190(e).) This means an FTA grantee may be subject to a DOJ complaint investigation independent of FTA. 12.4.2DOJ-FTA Memorandum of UnderstandingIn 2005, FTA and DOJ executed a Memorandum of Understanding (MOU) to strengthen the respective enforcement efforts of both agencies, to eliminate possible duplication of effort, to streamline the enforcement process, and to ensure coordinated and consistent nationwide enforcement. 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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