HomeMy WebLinkAboutPR 18929: CREATING AN ADA PARATRANSIT ELIGIBILITY BOARD ____,_ ,_
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INTEROFFICE MEMORANDUM
Office of the Transit Department
Date: 4/2/2015
To: Brian McDougal,City Manager and City Council
From: Colleen Russell,Transit Director
Re: P.R. No. 18929-Eligibility Board for Paratransit Commuters
Nature of the request: The Transit Department seeks to be in compliance with
the U. S. Department of Transportation regulations as to Chapter 9 on ADA
(Americans with Disability Act) Eligibility for Paratransit. In addition to FTA's
(the Federal Transit Administration's) section of 49 CFR 37.125 (parts a-g).
Staff Analysis, Considerations: As ADA rules changes, so must Transit in order
to be compliant and be able to show proof of obeying the requirements when
given an oversight visit.
Recommendation: The City Council review and approve this P.R. (proposed
resolution) 18929 such that Port Arthur Transit may begin to organize a body in
line with the City Codes to review the denial of persons considered ineligible
for paratransit service.
r
Budget Considerations: The Port Arthur Transit needs to use vehicles and staff
conservatively, in order to run an effective paratransit service. Staff is shared
between Fixed Route and Paratransit as to drivers, dispatch and mechanics.
About 500 persons use paratransit, mostly for medical services.
INTEROFFICE MEMORANDUM
Office of the Transit Department
Re: P.R.No. 18929-Eligibility Board for Paratransit Commuters
Budget Considerations: The Port Arthur Transit needs to ensure its door to door
paratransit passengers are eligible so that resources are being used effectively to
serve the commuters and meet the half an hour service timeline for scheduled
pickups.
1.4111
, Transit Director
• Page 2
P.R. No. 18929
04/9/2015 CWR
RESOLUTION NO.
A RESOLUTION CREATING AN ADA PARATRANSIT ELIGIBILITY
BOARD FOR APPEALS WITHIN SIXTY (60) DAYS OF DENIAL OF
RIDERS' ELIGIBILITY, IN COMPLIANCE WITH THE UNITED
STATES DEPARTMENT OF TRANSPORTATION
WHEREAS, the City Code of Ordinance Chapter 14 establishes that Port Arthur City
Council can create Boards, Authorities, Commissions and Committees; and
WHEREAS, the City Council shall approve operational procedures set herein regarding:
selection of officers, terms of service, meeting times, bylaws, duties, unexcused absences and the
residents right to be heard; and,
WHEREAS, the City Council and the Mayor shall appoint and approve Board members
to the Board; and,
WHEREAS, the proposed Board appointments as attached hereto as "Exhibit "A" are
potential members that will be conversant and familiar with the Americans with Disability Act
(ADA) and the U.S. Department of Transportation, Chapter 9, as to ADA Paratransit Eligibility,
attached and labeled "Exhibit" B".
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PORT ARTHUR:
THAT the Board or Committee be established in accordance with 49 CFR 37.123, 125
and 127 of FTA Draft Circular and US Department of Transportation, Section 9, as well as the
City Code of Ordinance.
P.R. No. 18929
04/09/2015 CWR
THAT the following persons be appointed to the Paratransit Eligibility Board to serve
until removed, unable to do so or is replaced:
1. The Deputy Fire Chief
2. The Health Director
3. The Personnel Director
4. The Risk Manager
5. A paratransit commuter
6. Director of Transportation and Environmental Services of SETRPC (Southeast
Texas Regional and Planning Commission).
THAT any or all of the six considered members be present and ready to work with
Transit staff and the City Council on matters of ADA Paratransit Eligibility in accordance with
rules and procedures to be created and presented to the Council for approval.
THAT a copy of the caption of this Resolution be spread upon the Minutes of the City
Council.
READ,ADOPTED AND APPROVED this day of April, A.D., 2015, at a
Regular Meeting of the City Council of the City of Port Arthur, Texas, by the following vote:
AYES:
Mayor:
Councilmembers: ,
NOES: .
Mayor
P.R. No. 18929
04/09/2015 CWR
ATTEST:
City Secretary
APP 1 OVED S TO FORM:
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APPROVED FOR ADMINISTRATION:
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Director of Tran' t
EXHIBIT "A"
List of Potential Members for the ADA Paratransit Eligibility Board
Name Status Department/Resident
John Avery Deputy Fire Chief Fire Department
Judith Smith Health Director Health Department
Albert Thigpen Personnel Director Human Resources
Lisa Colten Risk Manager Human Resources
Helen Provost Rider of paratransit Commuter/resident
Bob Dickinson Dir. Of Transportation, Southeast Texas Planning
SETPRC and Regional Committee
EXHIBIT "B"
The U. S. Department of Transportation (DOT)
Americans with Disability Act-Chapter 9
Sections 9, on Paratransit Eligibility.
FTA Draft ADA Circular—November 2014
Chapter 9-ADA Paratransit Eligibility Page 9-1
Chapter 9 — ADA Paratransit Eligibility
9.1 Introduction
As described in Chapter 8,public entities that operate fixed route services are required to provide
complementaryparatransit services."This chapter explains the U.S.Department of Transportation(DOT)
Americans with Disabilities Act(ADA)regulations related to eligibility for complementary paratransit
services,covering who is eligible and the regulatory requirements that transit agencies must follow when
determining eligibility.The topics covered and the associated regulatory sections are:
• Requirement to provide complementary paratransit service to ADA paratransit eligible
individuals—§37.123(a)
• Trip eligibility—§37.123(6)
• Permanent or temporary eligibility—§37.123(c)
• Regulatory criteria defining ADA paratransit eligibility—§37.123(e)
• Attendants and companions—§37.123(f)
• Eligibility-determination process requirements—§37.125
a. Strictly limiting eligibility—§37.125(a)
b. Making information available in accessible formats—§37.125(b)
c. Making timely determinations—§37.125(c)
d. Eligibility documentation—§37.125(d)-(e)&(i)
e. Recertification—§37.125(f)
f. Appeals process requirements—§37.125(g)
• No-show suspensions—§37.125(h)
• Complementary paratransit service for visitors—§37.127
• Types of service—§37.129
This Circular does not alter,amend,supersede,or otherwise affect the DOT ADA regulations themselves
or replace or reduce the need for detailed information in the regulations.Suggestions of good practices are
included throughout the Circular;FTA recognizes that there are many different ways agencies can
implement the regulatory requirements and ensure the delivery of compliant service.
9.2 Eligibility Standards
9.2.1 Requirement to Provide Complementary Paratransit Service
Requirement
"[Transit agencies]required by§37.121...to provide complementary paratransit service shall provide the
service to the ADA paratransit eligible individuals described in[§37.123(e)]"(§37.123(a)).
11 Under§37.121(c),commuter bus and cotmauter rail systems are nut subject to the requirement fur complementary paratransit
service.
FTA Draft ADA Circular–November 2014
Chapter 9:ADA Paratransit Eligibility
Page 9-2
DiscussIOn.
As a civil rights statute,the ADA emphasizes nondiscriminatory access to fixed route services.
Complementary paratransit service is intended to serve as a"safety net"for individuals who, because of
their disabilities, are unable to use fixed route services. The criteria for ADA paratransit eligibility—
spelled out in § 37.123—reflect this safety net role of complementary paratransit.
The detailed criteria defining who is eligible for complementary paratransit and the requirements for
transporting attendants and companions who may be traveling with an eligible passenger are discussed
below.
9.2.2 Eligible Individuals
Eligibility for complementary paratransit is directly related to the functional ability of individuals with
disabilities to use fixed route transit services. Eligibility is not based on a diagnosis or type of disability.
Individuals with the same diagnosis or disability can have very different functional abilities to use fixed
route services. Similarly, eligibility is not based on the type of mobility aids that individuals use. Use of a
wheelchair, for example, does not imply eligibility since many individuals who use wheelchairs are able
to use fixed route services for many or all of their trips.Nor is ADA paratransit eligibility based on such
factors as age, income,or whether or not individuals can drive or have access to private automobile
transportation.
The regulations identify individuals with disabilities who are ADA paratransit eligible. These individuals
may not be able to use fixed route services for some or all of their trips. The discussion in the Appendix D
section on ADA Paratransit Eligibility Standards explains these categories of eligibility, described further
below.
Eligibility Category 1
Requirement
"Any individual with a disability who is unable, as the result of a physeal or mental impairment
(including a vision impairment), and without the assistance of another individual(except the operator of a
wheelchair lift or other boarding assistance device),to board,ride, or disembark from any vehicle on the
system which is readily accessible to and usable by individuals with disabilities [is an ADA paratransit
eligible individual] "(&37.123(e)(])).
Discussion
The first category of eligibility includes individuals who, because of their disabilities, cannot
independently navigate and use the accessible fixed route services. In determining eligibility under this
category, required assistance from vehicle operators may be assumed. (See Chapter 6.)
Ability to Use the Fixed Route System Independently
Beyond the assistance of vehicle operators, eligibility is based on the independent ability of individuals to
use the fixed route system. Eligibility is not based on the availability of other individuals, including
attendants, family, or friends who may be traveling with the passenger with a disability. See below for a
discussion of eligibility for young children.
Current Functional Ability
Eligibility is based on current functional ability. While some individuals may learn to use fixed route
services independently after participating in travel training, actual functional ability at the time of
application is the basis for determining eligibility. FTA encourages transit agencies to offer travel
training, but transit agencies cannot require individuals to participate. If applicants indicate interest in
FTA Draft ADA Circular—November 2014
Chapter 9:ADA Paratransit Eligibility Page 9-20
reconsideration of their eligibility by submitting new documentation or reapplying at any time during
their current term of eligibility. Determinations made during existing terms of eligibility,whether based
on additional documentation or new applications, are considered new decisions and,as such, are
appealable.(See Section 94.)
Similarly,transit agencies may request that eligible individuals reapply if documentation shows a
significant change in their functional abilities. For example, an individual may initially apply while using
a manual wheelchair.At some point during the term of eligibility,the individual might obtain a power
wheelchair that could overcome a previous inability to get to and from transit stops and stations.In this
case,it would be acceptable for the agency to ask the individual to reapply so that eligibility could be
appropriately adjusted.It would not be acceptable to ask or require an individual to reapply for eligibility
based on casual anecdotal observations by people not trained in making eligibility determinations, such as
drivers and/or other riders.
A good practice is to remind riders of the need to reapply before the end of their term of eligibility.Many
transit agencies send riders a notice 60-90 days before their current eligibility expires and include the
materials needed to reapply. Doing this helps to avoid lapses in eligibility and facilitates a smooth
recertification process.
Simplified Recertification for Certain Riders
Some transit agencies use a simplified recertification process for certain riders such as those whose
functional abilities are not likely to change over time even with different mobility aids. Such simplified
recertification forms ask riders to update their contact information and note any changes in their travel
abilities or needs.Appropriate use of simplified recertification forms and processes may reduce eligibility
determination costs.
9.4 Appeal Process
Requirement
"The entity shall establish an administrative appeal process through which individuals who are denied
eligibility can obtain review of the denial.
(1)The entity may require that an appeal be filed within 60 days of the denial of an individual's
application
(2)The process shall include an opportunity to be heard and to present information and
arguments, separation of functions(i.e.,a decision by a person not involved with the initial
decision to deny eligibility),and written notification of the decision,and the reasons for it
(3)The entity is not required to provide paratransit service to the individual pending the
determination on appeal. However, if the entity has not made a decision within 30 days of the
completion of the appeal process,the entity shall provide paratransit service from that time until
and unless a decision to deny the appeal is issued"(§37.125(g)).
Discussion
Transit agencies must establish an administrative process through which individuals can appeal eligibility
decisions that limit or deny eligibility, including those determined conditionally eligible or only eligible
on a temporary basis.The right to appeal also extends to decisions resulting from individuals choosing to
reapply during their eligibility term.
• FTA Draft ADA Circular—November 2014
Chapter 9:ADA Paratransit Eligibility Page 9-21
9.4.1 Notification of Rights to Appeal and Accepting Appeals
Transit agencies should include notice of the right to appeal and how to request an appeal in letters that
communicate decisions that deny or limit eligibility in any way. Agencies may require requests for an
appeal to be in writing. A good practice is to enclose an appeal request form with initial determination
letters.(See Attachment 9-3 for a sample appeal request form.)
Transit agencies must accept appeal requests received within 60 days of the initial determinations. Transit
agencies may choose to establish policies that provide a longer period to request appeals but are not
required to accept requests for appeals after 60 days.
Transit agencies should arrange in-person appeal hearings without unreasonable delays(e.g.,within 30
days of the request).
9.4.2 Right to be Heard in Person
Appellants can choose not to appear in person and to send written information for consideration instead.
However, a transit agency cannot require written appeals because the process must give individuals the
opportunity to present information and arguments in person.
In support of this right to be heard in person,FTA encourages transit agencies to provide free
transportation to and from appeal hearings. Some appellants may be discouraged or prevented from
exercising their right to attend an appeal hearing if they have no transportation or if they have to incur a
significant expense to travel to and from appeal hearings.
9.4.3 Separation of Functions
A separation of functions means that,to the extent practicable,those deciding appeals should not be
involved with the initial determination including working in the same office as, supervising, or working
for the original decisionmaker.
One way to check for separation of function(and authority) is to examine a transit agency's
organizational chart.There should not be a vertical line or lines connecting those involved in initial
determinations and those deciding appeals. If individuals from the agency are involved in appeals,they
should work in a different office or department from those making the initial decision. In smaller transit
agencies where it is not feasible to fully separate functions,the Appendix D discussion of ADA
Paratransit Eligibility Process states,"the second decisionmaker should at least be `bubbled' with respect
to the original decision(i.e.,not have participated in the original decision or discussed it with the original
decisionmaker)."
9.4.4 Timely Decisions
A transit agency is not required to provide complementary paratransit service to the appellant pending the
determination on appeal. However, if the agency has not made a decision within 30 days of the
completion of the appeal process,the agency must provide complementary paratransit service from that
time until and unless it issues a decision to deny the appeal. Some agencies elect to continue to provide
complementary paratransit service to current riders whose eligibility was denied or limited during
recertification to avoid service interruptions if the appeal overturns the initial decision.
FTA Draft ADA Circular—November 2014
Chapter 9:ADA Paratransit Eligibility Page 9-22
Written Decisions
Transit agencies must provide appellants with written appeal decisions(in accessible formats as
appropriate)and, if upholding an initial eligibility determination,the letter must describe the specific
reasons for the decision, similar to the level of detail provided in the initial determination letter.
9.4.5 Selecting Individuals to Hear Appeals
In selecting individuals to hear and decide appeals,FTA recommends that transit agencies consider the
following general guidelines and suggestions:
• Select individuals for their ability to maintain objectivity in reviewing appeals; they should not be
selected to"represent"one side or particular point of view(e.g.,the transit agency or the
disability community).
• Ideally, individuals who hear and decide appeals should bring a high level of knowledge about
the functional abilities of individuals with disabilities similar to those of appellants. A good
practice is to develop a roster of specialists to call upon depending on an appellant's disability.
For example, call on orientation and mobility specialists on to hear appeals from individuals with
vision disabilities. Call on psychiatrists, mental health professionals,or social workers to hear
appeals from individuals with psychiatric or cognitive disabilities. Physical or occupational
therapists would be qualified to hear appeals from individuals with physical disabilities.
• Those who hear appeals should have a thorough understanding of the function and intent of
complementary paratransit and the regulatory criteria for ADA paratransit eligibility and should
be trained as necessary to ensure they fully understand the regulations.
• Individuals involved in appeals should also have a good knowledge of fixed route transit and
complementary paratransit policies. This will allow them to more accurately determine if
appellants can perform all of the tasks required to use fixed route services and to understand the
differences between use of fixed route transit and complementary paratransit.
Additional Good Appeal Practices
To help minimize the need for appeals,FTA encourages transit agencies to double-check any
determinations that deny or limit eligibility. A second reviewer might review each file to ensure that the
decision appears appropriate before communicating the decision to the applicant.
Similarly,transit agencies might consider double-checking applicants' files and the initial decisions when
applicants request appeals. If internal reviews identify errors in initial determinations,transit agencies can
quickly reverse the initial decisions and obviate the burden and cost of formal appeals. If internal review
supports the initial determinations,transit agencies should schedule the appeal hearing promptly.
Agencies that elect to implement such informal reviews should complete such reviews quickly. These
reviews would not be part of the rider's appeal,since they were undertaken without additional
information from the appellant,without an opportunity for the appellant to be heard in person,and might
not meet the requirement for separation of function.
Transit agencies should also ensure that procedures are in place to ensure confidentiality during the
appeal process.
FTA Draft ADA Circular—November 2014
Chapter 9:ADA Paratransit Eligibility Page 9-25
they qualify as a visitor. For visitors whose disabilities are apparent,transit agencies cannot require
additional documentation.For visitors whose disability is not apparent(e.g., cognitive disability, cardiac
condition, etc.),transit agencies can require documentation of disability and should accept basic forms of
documentation.
FTA notes that granting visitor eligibility should be a fairly simple and quick process. Individuals should
be able to contact the host agency to learn what is required and then be able to easily meet the
requirements.Upon receipt of any required documentation,transit agencies should be able to quickly
enter necessary information into any databases or systems to permit visitors to place trip requests. FTA
envisions this as a process that can often be completed the same day or no more than one day later to
begin accepting trip requests.
9.6.3 Duration of Visitor Eligibility
Requirement
"A public entity shall make the service to a visitor required by this section available for any combination
of 21 days during any 365-day period beginning with the visitor's first use of the service during such 365-
day period. In no case shall the public entity require a visitor to apply for or receive eligibility
certification from the public entity before receiving the service required by this section"(§ 37.127(efl.
Discussion
Transit agencies are required to provide visitors with complementary paratransit service for any
combination of 21 days during a 365-day period beginning with the visitor's first use of the service.
Agencies can require visitors requesting additional service to apply through the local eligibility process.
Transit agencies may not require visitors to apply for ADA paratransit eligibility. Should visitors choose
to apply, agencies must process their applications.A good practice is to ask visitors when they first call if
they expect to use the service for more than 21 days in the next 365-day period and to offer application
materials if they answer in the affirmative.
• 9.7 No-show Suspensions
Requirement
"The entity may establish an administrative process to suspend, for a reasonable period of time,the
provision of complementary paratransit service to ADA eligible individuals who establish a pattern or
practice of missing scheduled trips.
(1)Trips missed by the individual for reasons beyond his or her control(including,but not
limited to,trips which are missed due to operator error)shall not be a basis for determining that
such a pattern or practice exists.
(2) Before suspending service,the entity shall take the following steps:
(i)Notify the individual in writing that the entity proposes to suspend service,citing with
specificity the basis of the proposed suspension and setting forth the proposed sanction.
(ii)Provide the individual an opportunity to be heard and to present information and
arguments;
(iii)Provide the individual with written notification of the decision and the reasons for it.
FTA Draft ADA Circular—November 2014
Chapter 9:ADA Paratransit Eligibility Page 9-26
(3)The appeals process of paragraph(g)of this section is available to an individual on whom
sanctions have been imposed under this paragraph. The sanction is stayed pending the outcome of
the appeal"(§ 37.125(h)).
Discussion
As discussed in the Appendix D section on ADA Paratransit Eligibility Process, a"pattern or practice" is
defined as"intentional,repeated or regular actions,not isolated,accidental, or singular incidents."
Furthermore, "only actions within the control of the individual count as part of a pattern or practice.
Missed trips due to operator error are not attributable to the individual passenger for this purpose."If
riders do not take trips because a vehicle waited at a wrong address or arrived late,transit agencies cannot
count such errors as rider no-shows. Similarly, if riders cancel trips due to sudden illness or family
emergencies or whose medical appointments run longer than expected, agencies cannot include such
events in the process of determining that a pattern or practice exists.
While the regulations only address proposed service suspensions due to a pattern or practice of missing
scheduled trips,FTA has allowed transit agencies to also count late cancellations that are the operational
equivalent to no-shows, i.e.,cancelling a trip less than one-to-two hours prior to the pickup time
negotiated with the rider.
Because riders have an independent right to each trip,transit agencies that assess riders with no-shows for
the outgoing portion of a round trip should not automatically assume that the return trip is not needed.
Absent indications from riders or other reliable sources that they will not need return trips,the return trips
and subsequent trips should remain on schedules.In these instances,a good practice is to attempt to
contact riders to inquire about return trips to avoid the cost of sending vehicles unnecessarily.
9.7.1 Establishing That a Pattern or Practice Exists
Service suspension policies should define how transit agencies defme"a pattern or practice."In addition
to considering the number of no-shows(or late cancellations)from individual riders,agencies should also
consider the frequency of no-shows compared to all trips scheduled. To help defme what constitutes an
abuse of the service,-transit-agencies should establish thresholds for suspensions that represent-multiples
of the systemwide average. For example, if the systemwide average for no-shows is 5 percent of all
scheduled trips, the threshold for potential suspensions should be greater than 10-15 percent.
In addition to establishing a frequency threshold,transit agencies are encouraged to also establish
thresholds for the minimum number of no-shows within a given interval, below which they would not
impose suspensions.For example,while one no-show out of two scheduled trips in one month yields a
frequency of 50 percent, one no-show in one month is a very low rate.
A sample no-show policy that offers an example of how to address both the absolute number and
frequency of no-shows is provided as Attachment 9-4.
Because transit agencies cannot use no-shows beyond a rider's control as a basis for determining a pattern
or practice of missing scheduled trips, a good practice is to include statements to this effect in all public
information describing no-show policies.
9.7.2 Notifying Riders of Proposed Suspensions
Notifications of proposed suspensions should include the date,time, and location of each no-show or late
cancellation.Notifications must offer riders an opportunity to dispute no-shows or explain no-shows
beyond their control.Notification letters must also state that riders can formally appeal proposed
suspensions and include instructions on the appeal process and how to request an appeal. FTA notes that
riders can appeal the basis for proposed suspensions even if they elect not to dispute any of the listed no-