4.1 Introduction

This chapter addresses the enforcement of the Americans with Disabilities Act as it applies to publicly funded and privately funded transportation and transportation-related activities by the various operating administrations (or component subagencies, also called modal administrations) of the U.S. Department of Transportation (DOT).

DOT has several offices that have overarching authority across the entire department, including the Office of the Secretary (OST), the Office of the General Counsel (OGC), and the Departmental Office of Civil Rights (DOCR). Apart from these offices, however, DOT is an amalgam of separate, autonomous "operating administrations" or "modes," which function almost independently. Figure 4-1 displays this structure as an organizational chart. The operating administrations that have some sort of ADA responsibilities are the Federal Transit Administration (FTA), the Federal Highway Administration (FHWA), the National Highway Traffic Safety Administration (NHTSA), the Federal Aviation Administration (FAA), the Federal Railroad Administration (FRA), and the Coast Guard (USCG).

Regulatory standards for implementing ADA in its application to publicly funded transportation are established by DOT and enforced by the FTA. Regulatory standards for implementing ADA in its application to privately funded transportation are also established by DOT, but these are enforced by the Department of Justice (DOJ).

DOT has certain additional ADA enforcement responsibilities. The DOJ regulation implementing Title II of ADA allocates to eight federal agencies, including DOT, responsibility for enforcing ADA's requirements regarding state and local governments. Each of the eight agencies is required to investigate complaints about the components of state and local governments that exercise responsibilities in its subject matter area. Often the eight agencies receive complaints directly from complainants. If DOJ receives the complaint of discrimination, it refers the complaint to the appropriate agency. DOJ refers transportation-related complaints to DOT's Departmental Office of Civil Rights, which in turn refers them to the appropriate operating administration.

The sections that follow offer an analysis of each DOT operating administration that has a role in enforcing the ADA: the Federal Transit Administration, the Federal Highway Administration, the National Highway Traffic Safety Administration, the Federal Aviation Administration, the Federal Railroad Administration, and the Coast Guard.[1] Each operating administration has different strengths and weaknesses in its enforcement program. The chapter also includes a brief discussion of the DOJ's enforcement of ADA requirements applicable to transportation provided by private entities.

[Figure 4-1, Organization Chart of the Department of Transportation not available.]

4.2 Federal Transit Administration

4.2.1 Background

The Federal Transit Administration manages federal funding programs to support mass transit systems in urban, suburban, and rural areas nationwide. Federal assistance for mass transit began in 1961 as a demonstration program under the Housing and Home Finance Agency. In 1964, the Urban Mass Transportation Act created what is now FTA to provide federal assistance to preserve the deteriorating public transit infrastructure in many American cities. Originally known as the Urban Transportation Administration, it was initially part of the Department of Housing and Urban Development (HUD). In 1968, the agency became part of the new U.S. Department of Transportation as the Urban Mass Transportation Administration (UMTA).

In the beginning, the federal transit program was administered primarily as a system of discretionary capital grants to repair and replace aging buses and rail systems that had endured a steady decline from 1946 to 1972. During that time, most transit systems in the United States were privately owned and operated. As the American landscape became more and more dominated by suburban development, highway construction, and an increasing reliance on private automobiles, transit ridership declined. Fewer riders meant less profit for the private transit companies and therefore less funding for service, repairs, maintenance, and expansion. UMTA established a buyout program that allowed public transit authorities to take over the privately owned transit infrastructure.

At the time the federal program was established, many systems had deteriorated almost to the point of collapse. The initial funding enabled many cities to buyout these private transit companies, operate their services under a public authority, and ultimately to invest in new equipment, rail system extensions, and entirely new rail systems. After the buy-outs were completed, UMTA continued to support the public transit infrastructure with funding for operating funds, rebuilding maintenance programs, and bus repairs. Funding was also provided for transit planning and research. A later funding phase focused on the acquisition of light rail mass transit.

Today, FTA funding is distributed to these public transit authorities, as well as other state and local agencies, through a number of discretionary and formula grant programs. The FTA grant program has grown to nearly $6 billion annually, which includes more than $2.5 billion for capital investments in bus and rail systems and more than $3 billion in formula grants.[2]

The earliest and an enduring fundamental purpose of FTA was to distribute public dollars to purchase equipment and build, operate, and maintain public transit systems. FTA (formerly UMTA) has never owned, operated, or managed any transit systems or services in the United States, but it has been responsible for ensuring their compliance with federal requirements, including the ADA regulations issued by DOT. Many of FTA's high-level program staff members have spent their long careers doing everything they could to assist transit agencies. And, for the most part, these same individuals are entrusted with the responsibility to implement and enforce the public transportation provisions of ADA.

FTA staffed and funded an unprecedented effort within its Program Management Office to provide technical assistance to the grantees for accessible vehicles and accessible services throughout the country. While this effort yielded significant national results in the purchase of accessible vehicles and the provision of service, it was accomplished by generally allowing broad flexibility in the interpretation and implementation of the DOT ADA regulations. The administration at the time justified this discretion in the interpretation of the law on the basis that each transit property is totally unique in funding, the makeup of its board, its previous efforts toward accessibility, the types of service it provides to the community, and the terrain and environment in which it operates. At the time it was thought that a "one-size-fits-all" strict interpretation of the regulations would result in stiff resistance and would be detrimental to the overall accessibility of the nation's transit systems.

From the perspective of many in the disability community, FTA's policy of broad flexibility has given transit agencies permission to place a low priority on ADA implementation. In the absence of a clear and strong expectation from FTA of timely compliance, many transit agencies have failed to take ADA implementation seriously enough. In city after city, advocates have had to wage long battles for the basics: purchase and use of accessible buses, regular maintenance of bus accessibility features (especially wheelchair lifts), implementation of effective paratransit programs, and alteration of key stations in rail systems to provide access.

FTA's Program Management Office (FTATPM) was tasked with "implementation" of ADA because it was believed the staff understood the needs of the grantees. In FTA's view, FTATPM has been instrumental in making the transit community leaders in implementing ADA, as compared with other covered entities such as municipalities, counties, etc. However, although the equipment got on the road, there has been significant difficulty obtaining compliance with some of the most basic rights created by ADA. Moreover, this overall approach deemphasized the regulatory or enforcement powers of FTA, resulting in the impression that FTA was interested in serving only the needs of the transit properties. This impression caused a general distrust of the overall agency by the disability community, while the transit industry has persisted in the view that FTA's main purpose is to promote transit and to make grants.

Beginning in 1996, the responsibility for ADA and the enforcement of ADA was ever so slowly delegated to FTA's Office of Civil Rights (FTAOCR). The evolution from an office perceived as implementor (FTATPM) to an office perceived as regulator (FTAOCR) caused confusion and in some cases resentment among the transit properties and even in FTA. Throughout the years, as the implementation phase of ADA has been slowly replaced by the enforcement phase, the overall direction of FTA with regard to enforcement has evolved, albeit too slowly for many members of the public and the disability community and too quickly for some in the agency.

4.2.2 Organization of Enforcement

A number of units within FTA have a role in ADA implementation and enforcement, including the Office of Civil Rights, the Office of Program Management, the Office of the Chief Counsel, the Office of Planning, and the Office of Research, Demonstration, and Innovation. Area field offices in the former (10) federal regions are also involved in a number of different activities related to ADA. This report is not organized by office, because many aspects of ADA enforcement cut across more than one office. For example, FTAOCR, the Office of the Chief Counsel, and sometimes the area field offices are all involved in the process of making decisions on or carrying out investigations of discrimination complaints. Therefore, this discussion is organized around the program areas or activities of FTA that relate to ADA, and it will evaluate all the FTA offices that are involved in the particular program or activity.[3]

4.2.3 Investigation of Complaints of Discrimination

FTA investigates complaints of discrimination under the Americans with Disabilities Act having to do with public bus systems, most passenger rail systems (including rapid, light, and commuter rail--everything except Amtrak), and ADA complementary paratransit. The headquarters FTAOCR handles the bulk of the processing of ADA complaints, unlike other operating administrations within DOT, such as the Federal Aviation Administration and the Federal Highway Administration, which send complaints to the area field offices for investigation.

For a number of years after ADA became effective, a significant backlog of complaints sat uninvestigated in the Department. FTA eventually addressed this backlog, using trained contractors, and made substantial progress clearing it. Clearing up the backlog brought with it difficulties inherent in attempting to address complaints that were up to five years old. Many complainants were not easy to reach and many of these complaints were quickly dismissed.

The 1996 Report on the Department of Transportation Offices of Civil Rights, prepared by the Office of the Assistant Inspector General for Inspections and Evaluations of DOT and covering the time period 1993-1994, found that "FTA had untrained interns investigating all ADA complaints" and that "FAA, FTA, and FHWA officials stated no ADA or Section 504 training was provided to the staff. This was a particularly stressful area to the staff since the Department had, at the time of our review, 626 ADA complaints to investigate and staff had no ADA or investigative training."[4]

4.2.4 Organizational and Procedural Improvements

In the three years between the publishing of the inspector general's report and the conclusion of the research period for the present report, a number of things have changed. FTA's Office of Civil Rights (FTAOCR), under its current director, has greatly increased the efficiency of complaint processing. Investigations occur relatively promptly and according to established procedures. The office deserves kudos for this important achievement.

In 1996, at the beginning of the director's tenure, approximately 270 ADA complaints were pending. With a significantly expanded ADA team, new procedures, and a computer tracking system, the 1996 backlog was soon eliminated, and FTAOCR continued to process and close on the average of 200 cases per year.

The newly appointed director also filled vacant staff positions, designated funds for external investigation, provided ADA training, and encouraged community outreach efforts within budget limitations. Outreach initiatives included the creation of a toll-free ADA telephone assistance line (the first at DOT), and an interactive Internet address. A complaint form is available on the FTA Web site.

FTAOCR's procedures now include an Initial Handling Unit and a Continuous Handling Unit. Internal guidelines for investigations appear to be followed with reasonable efficiency. The office closed on about 200 complaints each year in 1996, 1997, and 1998, clearing much of the backlog that had been there since 1991. Staff members make a concerted effort to be responsive to all complaints that came in, and staff interviews reflect a sense of caring on the part of the staff involved.[5] Part of this staff awareness may stem from the outspokenness of FTAOCR's director with regard to the importance of compliance with ADA.

Despite great improvement, FTA's complaint files still share some of the procedural gaps that exist in many of the other operating administrations of DOT. Many complaint files do not include a Report of Investigation with findings of fact, applicable sections of law, issues, and legal analysis. Most complaints requiring corrective action are closed without verification that the corrective action is taken, or, if such verification has occurred, that fact may not be reported in the complaint file. Past complaints that have been closed without monitoring of corrective action should be reopened for verification of whether the remedial steps were taken.

4.2.5 Content of Complaint Resolutions

Despite improvements in procedure, significant concerns arose from a random review of the content of complaint resolutions, as well as other information received on complaints. Researchers noted a number of overall trends, not in every complaint, but in significant numbers of them:

1. The use of the narrowest possible legal interpretations of the DOT ADA regulation;
2. Compartmentalizing problems one by one, seeing them as wholly separate, rather than assessing the situation systemically;
3. Taking the transit agency at its word rather than conducting an investigation;
4. Limiting interaction with the complainant and avoiding consultation with the disability community.

These trends add up to a situation of enforcement on paper alone, without taking forceful action against discriminatory practices. Although some individual problems receive minimal corrective action, overall enforcement activities do not look for systemic problems or pursue investigations of patterns of discrimination. No matter how significant the noncompliance, researchers found no evidence that FTA has ever imposed enforcement measures rigorous enough to correct the problem and to have real consequences for the transit agency. FTA's Office of Civil Rights does not bear the full responsibility for these enforcement deficiencies, to which other FTA offices and FTA's leadership also have contributed.

In an official response to a review draft of this report, FTA emphatically denies that a "trend" exists by which on-site investigations are not performed in ADA complaints. Instead, FTA sees its practices as with civil rights investigations at other federal agencies, where scarce resources demand setting priorities and spending investigative funds wisely. Not all investigations demand on-site work, and many include inquiries conducted by telephone and/or letter. Further, over the past few years, FTA maintains that FTAOCR and its director have increasingly looked for especially appropriate cases in which to invest the additional dollars required for an on-site investigation.

Cases selected for investigation have not been restricted to actual complaints filed with FTA. Instead, FTAOCR states that it has become involved with an eye toward systemic ADA problems. As a result, FTA has investigated on-site a number of transit systems across the country, including Raleigh, North Carolina; Salt Lake City, Utah; New York City; and Washington, D.C. Differing conclusions were reached on the issue of liability, but in Utah, for instance, substantial ADA problems were identified and remedied. After an on-site investigation in Raleigh, conducted in coordination with the Department of Justice, a few widespread problems were identified. In New York City, a complaint initially filed with FTA led to a lawsuit filed by the New York Public Advocate, resulting in a consent decree calling for sweeping changes in operations. (See the discussion at the end of section 4.2.6 on this complaint and its outcome.).

FTA's procedures seem to work satisfactorily in those situations where clear noncompliance is found with a regulatory provision that provides an absolute, bright-line standard. For example, DOT's ADA regulation requires that fares on publicly funded ADA complementary paratransit exceed no more than twice the fixed route fare for a similar trip. In one complaint about ADA complementary paratransit fares that were higher, FTA found "probable noncompliance," and the transit agency apparently changed its fare structure as a result. In a second example, ADA does not allow a transit agency to require certification of a service animal before allowing the animal's owner to take the animal on a bus. In response to a complaint in which a transit agency required service animal owners to demonstrate that the animals were licensed, FTA instructed the transit agency to revise its policy.

However, ADA, like many laws, does not always establish absolute, bright-line requirements. Rather, the ADA regulations include many general rules or principles that must be applied on a case-by-case basis to each situation. FTA's handling of another, more complex, complaint shows the narrow approach being taken. An individual eligible for ADA complementary paratransit complained of the many times he had tried to arrange for a paratransit ride the next day, almost always to be refused. ADA complementary paratransit rides appeared to be nearly unavailable, unless he called more than a week in advance. Though the ADA regulation requires next-day ADA complementary paratransit service, FTA accepted the transit agency's promise to improve its performance in the area of trip denials. The section of the ADA regulation addressing capacity constraints makes it illegal for a transit agency providing ADA complementary paratransit to limit the availability of service to eligible individuals by any operational pattern or practice that significantly limits the availability of service, including but not limited to substantial numbers of significantly untimely pickups, substantial numbers of trip denials or missed trips, or substantial numbers of trips with excessive lengths. The intent of this provision is to prevent ADA complementary paratransit vehicles from frequently being late, from requested trips frequently being denied (just as this complainant experienced), from vehicles frequently not showing up, or from trip lengths being extraordinarily long, in comparison to comparable rides on fixed-route buses. The capacity constraints provision is so important, and compliance with it is so poor, that capacity constraints constitute the most frequent type of complaint.[6] Thus, capacity constraints and how FTA handles them are critical issues.

At the start-up of its complaint-handling system, FTA would not make a finding of noncompliance with the capacity constraints provision unless there were complaints from several individuals rather than just one individual, even when the individual showed numerous instances of the problem happening to him or her, as the complainant mentioned above had. Further, FTA does not consider complaints submitted in a group by one person on behalf of others, because such complaints could be orchestrated by a single individual. FTA will only find noncompliance if there are multiple randomly submitted complaints.[7] Despite FTA's increased outreach to the public, it is not common knowledge among public transit or ADA complementary paratransit riders that one can complain to FTA. This greatly decreases the likelihood of the submission of several randomly submitted complaints against the same agency on the same issue.

FTA also noted that the restrictions of a paper- and telephone-based complaint process severely hinder an effective response to capacity constraint complaints. To counteract these limitations, the current process has slowly incorporated the use of specific compliance reviews to address capacity constraint issues The use of specific compliance reviews to address capacity constraint issues has recently been made public by the FTAOCR director and the FTA chief counsel.

FTAOCR reports that it has encountered the situation where a single complainant has filed a complaint "on behalf of" numerous other individuals without obtaining their permission. When the other named individuals were contacted by FTA, it was discovered that they had not given permission for use of their names, nor had they intended to file a complaint. To remedy this situation, FTA now requires each complainant or her or his authorized representative to file a complaint. In NCD's opinion, the basis for FTA's decision not to accept group complaints may not have been sound. For example, it is not clear how many complaints contained unauthorized signatures and what proportion of the total number of signatures was involved. Unless FTA was able to substantiate a pervasive problem, the decision represented an unwarranted presumption of bad faith on the part of those filing group complaints. The refusal to accept complaints filed on behalf of a group of individuals has imposed an unnecessary barrier to bringing situations involving possible systemic noncompliance to FTA's attention and obtaining corrective action sooner.

Since FTA requires more than one complaint be submitted to make a finding of noncompliance in the capacity constraints area, it would be sensible for FTA to track the complaints by transit agency over time. This would allow multiple complaints against a single agency to be determined, but researchers were told that data are not collected in a way that makes tracking this possible.[8] FTA requires multiple complaints to make a noncompliance finding, yet until recently it did not track complaints in a manner that would produce the required information. The current method used by FTAOCR to track ADA complaints is by jurisdiction and geographic location. On a monthly basis, the ADA team reviews these data to see if there are substantial numbers of complaints from one geographic location. Another new practice is to assign multiple complaints arising from one of the larger transit properties to one investigator in order to identify patterns of conduct.

Furthermore, in response to a complaint about a pattern of late pickups on ADA complementary paratransit, FTA quoted a DOT inspector general's report on one city's ADA complementary paratransit system, which disclosed that about 30 percent of the trips were between one and five hours late. FTA acknowledged that such a situation would constitute a violation of the capacity constraints provision. FTA added that if there were only a few instances of trips one to five hours late, or many instances of trips a few minutes late, this would not constitute capacity constraints. Individual complainants, however, are not in a position to offer documentation of the overall rates of compliance.

FTA's earliest advice to grantees in implementing ADA complementary paratransit was not to consider it to be a violation of the capacity constraints provision if the service problem (lateness, denials, etc.) did not happen to the same person. This advice appears to have had a significant impact on the quality of paratransit service as it evolved.[9] It is widely acknowledged, and has been confirmed by the ADA Paratransit Compliance Study, that some cities have transit agencies with very significant patterns of capacity constraints.[10] In these cities, eligible riders are routinely denied the rides they request, like the rider who complained in the example. In other cities, extreme lateness is very common. Yet FTA has yet to make a noncompliance finding in this area, because it has applied a narrow interpretation to the capacity constraints provision.[11]

Another complaint involved a sheltered workshop that received a contract for ADA complementary paratransit and used the funds only to transport its clients to its workshop, denying rides to all other callers. The complaint was dismissed. FTAOCR's response to a protest from advocates was that the regional office (now an area field office), that had conducted the investigation found no discrimination.[12]

Many other complaints of discriminatory behavior by bus drivers (including retaliation against passengers with disabilities who had complained about transit service, refusing to stop and pick up wheelchair users, and requiring written documentation before allowing transit of a service animal with its owner) were dismissed by FTA on the basis of statements from the transit agency that the driver was no longer with the agency or that the driver had been disciplined. In many instances, there is no documentation of corrective action. Additionally, the failure to examine the complaints from a broad or systemic perspective raises the possibility that the same driver, or other drivers similarly untrained, may be acting similarly in other situations. There was nothing in the documentation provided to indicate that FTA conducted further investigation for a pattern of discrimination on any complaint. FTA denies that these findings are accurate, maintaining that FTAOCR inquires when investigating whether a single driver has a history of discipline for past offenses and whether the driver received additional training as a matter of practice. Moreover, FTAOCR says that it has performed extensive compliance reviews that addressed systemic problems by bus drivers, including those in New York City; Milwaukee, Wisconsin; and Salt Lake City, Utah.

In one group of complaints submitted by several riders in the same city, part of the problem at issue was that the riders were transferred without their knowledge from standard paratransit service to a fixed-route deviation service. FTA dismissed their claim of being transferred without their knowledge by stating that the transit agency had reported that it notified everyone by mail. No further investigation on this point was made. This pattern is repeated in many other complaints: a denial by a transit agency of discriminatory action is frequently the basis for dismissal of a complaint, with no further investigation. Even if resources have not been available to conduct in-depth investigations on every complaint, there is no evidence that FTA ever conducted a thorough investigation of such situations in other ways, such as through phone calls or letters.

A review of more recent complaint findings revealed that FTA is asking transit agencies somewhat more often to review a policy or correct a problem. For example, in one complaint about frequent wheelchair lift breakdowns and bus drivers who refuse to help with wheelchair securement or who secure wheelchairs incorrectly, FTA directed the transit agency to address these difficulties, pointing out the regulations' requirements for bus lifts to be kept in operative condition or to be removed from service and advising the agency to monitor its drivers for adherence to ADA requirements for proper assistance. However, even in the more recent findings, the basic problems already described continue. FTA is reluctant to enforce the law when the consequences to the transit agencies are significant. Too often, the response to noncompliance, even egregious noncompliance, is a pat on the head and "Let us help you do a little better." As one critic of FTA put it, "The punishment for speeding is 'Go slow the next time'."[13] Consistent with FTA's reluctance to take a strong enforcement position in resolving complaints with a finding of noncompliance is the fact that at the time research for this report was conducted, DOT had never referred any findings of discrimination resulting from an ADA complaint to the Department of Justice for litigation. This was true despite the best efforts of DOJ. Mindful of the ongoing difficulties in implementing the transportation requirements of ADA, DOJ has stated for several years its interest in pursuing litigation in the area of public transit. DOJ staff members have spent considerable time with staff members from DOT and FTA toward this end, yet nothing had been referred.[14] FTA staff members have commented informally on their unwillingness to refer complaints to DOJ because it conflicts with FTA's mission, which is to support the transit agencies.[15]

In official comments on the review draft of this report, FTAOCR commented that this picture has changed. FTA emphasizes that it operates in accordance with the regulatory requirement to seek cooperation of recipients in securing compliance and to provide assistance and guidance to recipients to help facilitate compliance, before taking harsher action such as sanctions or making a referral to DOJ. In addition, FTA has worked to create a good relationship with DOJ so that the ADA referral mechanism, when needed, is an efficient one. Since 1998, staff from FTA, DOT, and DOJ have met on a number of ADA matters to discuss joint investigative work, potential referrals, and the hiring of an expert witness in a complex transit case. In addition, FTA has referred ADA matters to DOJ for enforcement. In San Francisco, California, FTA staff encountered lack of voluntary cooperation by transit officials concerning ADA key station compliance and referred the matter to DOJ for enforcement. (NCD is unaware of any referrals to the Department of Justice other than the 1994 San Francisco case.) Moreover, on a regular basis, staff at FTA make contacts with DOJ attorneys across the country to report ADA compliance problems. In a recent example, when an FTA attorney learned of ADA violations involving visually impaired persons and temporary bus stops in South Bend, Indiana, he referred the matter to the relevant DOJ attorney in that area. In another recent case, FTA staff and DOJ staff conducted a joint investigation in Salt Lake City, Utah, on ADA issues. They agreed that the case was not an appropriate one for referral, but it would have been had the investigation revealed different results.

4.2.6 Compliance Reviews, the Milwaukee County Voluntary Compliance Agreement, and New York City

FTA has authority to conduct compliance reviews in response to complaints that are filed, but has done so only once, in Milwaukee County, Wisconsin. There, the disability community was taking many steps to resolve numerous extreme ADA complementary paratransit difficulties, including lack of next-day service; limitations on the service area; and widespread and significant capacity constraints, including a very high trip denial rate, excessive trip lengths, and late pickups. In addition to filing a lawsuit, individuals with disabilities filed a significant number of complaints with FTA. FTA conducted a compliance review that resulted in a voluntary compliance agreement (VCA) between FTA and Milwaukee County. In the interim, the Wisconsin Coalition for Advocacy (WCA) had filed a lawsuit on the same issues. The FTAOCR director viewed the VCA as a significant positive contribution to bettering the overall situation. He characterized the inclusion of the VCA into the consent decree, which temporarily settled the lawsuit, as an agreement, which included input from the disability community, furthered resolution of the problems, and improved transit service in Milwaukee County. In fact, he stated that the disability community "picked the terms" from the VCA for inclusion in the consent decree, although the disability community did not have the opportunity to participate in the creation of the VCA.[16] FTA later conceded that VCAs were never intended to include input from the disability community, which is one of the reasons they are no longer in use.

However, several leaders in the disability community in Milwaukee County disagreed, noting significant problems with the VCA process, its failure to ameliorate the problems, and FTA's refusal to consider input from any source other than the transit authority. Researchers contacted several leaders in the disability community in Milwaukee County, and Mike Bachhuber, Esq., of the Wisconsin Coalition for Advocacy sent a written statement, excerpts of which follow (see Appendix E for the complete statement).

FTA relies almost entirely upon self-reporting to determine if its grantees comply with ADA....It was hard to give much credibility to the agency in light of [this]. The lack of credibility was aggravated by statements from various FTA staff that they are not an enforcement agency, despite the fact that the ADA makes them an enforcement agency....

The FTA sent form letters to notify complainants that their complaints were assigned to the (then) regional office. No follow-up was done to see if the complaints were resolved. When I called to follow one complaint, I was told that the VCA process was the entire agency response to the complaints. This caused a greater loss of confidence in the agency.

The VCA was negotiated between FTA and Milwaukee County. No opportunity was given to complainants, the disability community or others to have a voice in that process.

Despite the fact that various organizations in the disability community had contacted FTA regarding problems, the FTA relied solely on Milwaukee County's position.[17]

Bachhuber, in an interview, explained that FTA never initiated a single contact with a complainant or anyone else in the disability community.[18] The only interaction that occurred was a meeting in autumn 1997, initiated and organized by a disability organization, the Wisconsin Coalition for Advocacy. At and after that meeting, people in the disability community asked to be kept up to date and included in discussions. The only response they received were questions about the appropriateness of having outside parties involved. Bachhuber's statement also explained that Milwaukee County said it could not provide ADA complementary paratransit service that crossed county lines for statutory reasons, even though the disability community conducted a thorough legal analysis, supported by examples of transit in the same area, that indicated the contrary.[19] FTA, based on its own legal analysis, concurred with Milwaukee County's conclusion.

Bachhuber's statement concludes, "The VCA itself primarily consisted of milestones in redesigning, letting and implementing contracts for the van service. Each of the milestones was met. However, universal access to next-day service is still not available. Excessive trip lengths, late pick-ups and other capacity constraints are still common. We have been told the FTA area field office recommended closing the enforcement file concerning Milwaukee County based solely upon the County's self report. Again, complainants and other interested parties were not contacted nor was any independent investigation done [to monitor compliance with the VCA]....The FTA should also be required to do better follow-up with complainants. Those who have taken the effort to raise a complaint...should receive the courtesy of follow through."

Several themes emerge from this compliance review, which appear to be typical of FTA enforcement efforts agencywide. FTA staff members undercut FTA's ability to enforce by making disclaimers about its enforcement power, practice, and history and by failing to get back to complainants as to the disposition of the complaint. Even in a compliance review, FTA communicated exclusively with the covered entity to the exclusion of interactions with the complainants or relevant parties in the disability community. FTA took the word of the covered entity, even when it came to important findings of fact and conclusions involving state law. Perhaps most important, the milestones that constituted the content of the VCA itself consisted of measures that could be reached without resolving the underlying problems plaguing the transit system, problems that were the subjects of the complaints. The determination of whether VCA milestones were reached was made only in consultation with the covered entity, with no outside verification by investigation or by consultation with another party.

What happened in Milwaukee is not an isolated example: a similar situation is brewing in New York City. Considerable attention in the transit world has been directed at New York City because of the submission to FTA of an extensive set of complaints covering many riders' concerns by New York's Office of the Public Advocate about significant capacity constraints on ADA complementary paratransit. The problems include a very high denial rate (the transit agency admitted a policy of 6 percent allowable denials, known as a fixed denial rate), large numbers of extremely late vehicle arrivals, frequent occasions where vehicles did not arrive, and frequent overly lengthy trips.

FTA's initial actions gave the complainants some cause for hope. Within a month of the April 1998 filing, complainants received a letter stating that a fixed denial rate is likely to be discriminatory (although nothing was stated about the transit agency's violations of the capacity constraints service criterion). A few months later, in autumn 1998, FTA sent a consultant to conduct a compliance review. This consultant was perceived by involved members of the disability community as biased in favor of transit providers, on the basis of remarks he had made in hearings and other venues, and other history.[20] Moreover, FTA staff members made statements to the transit agency that it need not worry about serious consequences coming from FTA's efforts, despite the public statements of FTAOCR's director to the contrary.[21]

In the eight months following the consultant's visit, individual complainants maintained that they were not getting responses to their inquiries at FTA. FTA staff, however, reported ongoing communication between FTA and the Public Advocate's Office on this matter, including several letters. Several compliance assessment reports were prepared, a conference call was conducted, and FTA was involved with settlement negotiations. The transit agency did take steps, including establishing a free telephone line (a response to 20-minute holds when people called about late vehicles), making a long-needed budget increase, and ordering new vehicles. Despite these actions, FTA apparently made no determination about the alleged numerous and serious violations of the capacity constraints service criterion. Information from the Office of the Public Advocate for the City of New York indicated that the service problems continued unabated in New York's ADA complementary paratransit service.[22]

There are many places across the country like Milwaukee County and New York City, including Salt Lake City, Utah, and San Antonio, Texas. They face enormous difficulties in reaching ADA transportation compliance in the absence of strong enforcement by FTA. When FTA fails to speak in one voice, from the program staff to the grant representatives to FTAOCR, the disability community is left with the justifiable impression that people with disabilities must rely on their own resources to fight pervasive, systemic discriminatory practices because of what they view as FTA's negligence.

4.2.7 Findings and Recommendations

Finding 40: FTAOCR, under its current leadership, has greatly increased the efficiency and procedural consistency of complaint processing. More public outreach efforts have also been instituted.

Finding 41: FTA complaint processing is still flawed in many areas. Understaffing, underfunding, and restrictions on the use of oversight funding for investigation of complaints have contributed to the problems cited below:

• Complaint files are closed without monitoring that corrective action has been taken and often do not include a report of investigation with findings of fact, legal analysis, or indication of the applicable sections of the law.
• Numerous complaints must be filed on ADA complementary paratransit capacity constraints to cause an investigation and finding of noncompliance.
• Investigation never involves a site visit or consultation with persons or organizations other than the transit agency against which complaints have been filed. While FTAOCR receives funds for assessments, it receives no funds for complaint investigation.
• FTA resolutions tend toward (1) the narrowest possible legal interpretation of the DOT ADA regulation; (2) considering the problem in isolation rather than looking at the situation systemically; (3) taking the transit agency at its word rather than conducting an investigation; and (4) interacting very little with the complainant and failing to consult with the disability community.
• FTAOCR has been given no additional FTEs since responsibility for the enforcement of the ADA transportation provisions was delegated in 1996.

Recommendation 47: Congress should adequately fund ADA enforcement activities to ensure the staff and other resources necessary for thorough follow-up on complaint handling, evidence of systemic violations derived from complaint data, and for conducting compliance reviews. Administrative restrictions on the use of oversight funds for complaint investigation should be removed.

In FY 2000, ADA key station assessments were funded at $350,000, and ADA complementary paratransit and fixed-route assessments were funded at $250,000 each. FTA was provided approximately $500,000 in additional funds to conduct fixed-route and paratransit compliance reviews. No funds were allocated for complaint investigation, and the use of oversight funds for complaint investigations is prohibited according to the inspector general's report. Given this funding situation, investigation of complaints continues to be a paper- and telephone-based process. Unlike DOJ, which has a separate staff to respond to complaints and to provide technical assistance to the transit entities, FTAOCR uses investigators in rotation. In contrast, triennial reviews, which are mandated and annually funded by statute as an oversight activity, received a total of $3,490,000 for FY 2000.

Recommendation 48: Each complaint file should include a Report of Investigation with findings of fact, applicable sections of law, issues, and legal analysis. No complaint requiring corrective action should be closed without verification that the corrective action is taken, and this verification should be included in the complaint file.

Past complaints, closed without follow-up monitoring, should be reopened to verify whether corrective action agreed to by the transit authority was actually taken.

Recommendation 49: FTA should continue to improve its methods for tracking complaints in a manner that allows the analysis of patterns of practice in particular transit agencies as well as across the country as a whole.

FTA should continue making improvements to its current tracking system that allow identification of patterns of conduct, such as their current monthly review to detect patterns of noncompliance by tracking the number of occurrences of similar complaints arising from a single transit property.

Finding 42: Compliance reviews are seldom performed.

In the one compliance review on which NCD received information, it appeared that FTA's methodology for compliance review relied too much on self-reporting from the covered entity and on communication exclusively with the transit agency, and too little on information provided by complainants and the disability community.

Recommendation 50: The tool of compliance reviews should be used for ADA fixed-route and complementary paratransit situations where there appear to be significant ADA compliance problems.

FTA has recently begun conducting such compliance reviews for fixed-route and ADA complementary paratransit. FTA just completed its first group of compliance reviews at various sites across the country, and an additional nine reviews are now beginning under a new contract.

Recommendation 51: Except in rare circumstances, FTA investigations should probe beyond the self-reporting of the transit agency. Investigations conducted as part of compliance reviews should involve more interaction with the disability community, particularly in large systemwide investigations.

FTA should conduct some site visits and spot checks. These activities should be funded adequately. Examples of when the disability community should be consulted include determination of whether compliance review milestones are reached or whether systemwide corrective actions have been implemented. Investigations should never be closed without follow-up on problems noted by the disability community.

Finding 43: No matter how significant or egregious noncompliance is, FTA has not imposed the kind of rigorous enforcement measures that would ensure that transit agencies correct the ADA violations.

FTA maintains that compliance efforts can be highly effective and efficient in bringing about ADA compliance. In its view, informal means such as voluntary compliance agreements are used throughout the Federal Government by agencies with oversight responsibilities, including civil rights. More rigorous enforcement measures should be used only when compliance cannot be achieved by other means. FTA has persisted in the use of informal measures to obtain compliance long beyond what can be considered a reasonable time frame in many instances. The FTAOCR does not bear the sole responsibility for these problems, to which other FTA offices and FTA's leadership also have contributed.

Recommendation 52: FTA enforcement should involve more substantial consequences for transit agencies that violate ADA. FTA should develop objective criteria defining degrees or forms of noncompliance by transit agencies that will trigger specific types of sanctions among a range of such sanctions of varying degrees of severity, including significant sanctions for transit agencies with serious, ongoing compliance problems.

Referral to the Department of Justice for litigation and holding up federal funds, or a portion of them, until compliance is achieved are among the consequences FTA can use to secure compliance.

Recommendation 53: When FTA uses consultants to conduct investigations, it should select only individuals or organizations who are viewed as fair and impartial by all parties.

In situations involving significant ADA compliance problems, the investigator should engage in extensive communication with the complainants and with the disability community.

Finding 44: At the time research for this report was conducted, DOT had never referred any findings of discrimination resulting from an ADA complaint to the Department of Justice for litigation.

Recommendation 54: FTA should continue to identify appropriate cases of noncompliance to the Department of Justice and cooperate fully in developing ADA transportation cases for litigation.

Recommendation 55: FTA should issue subregulatory guidance requiring transit agencies to display notices prominently in all vehicles used by transit systems notifying riders, in a format that is culturally competent for their ridership, that discrimination complaints can be made to the transit systems and to FTA.

Notices should include the FTA address and phone number. Transit agencies should also be required to notify all people who complain to them about problems with accessible service that complaints can be made to FTA.

4.2.8 ADA Complementary Paratransit Plan Review

From February 26, 1992, until January 26, 1997, FTA also had responsibility for reviewing ADA complementary paratransit plans submitted by transit agencies. The ADA regulations required any transit agency providing fixed-route service to provide complementary paratransit to people who, because of disability, cannot use the fixed-route service. Eligibility provisions explain who is eligible for the service, establish safeguards in the eligibility determination process, and establish service criteria that must be met to ensure the quality of the service. Every transit agency required to provide complementary paratransit was also required to submit to FTA on February 20, 1992, a paratransit plan detailing how it would come into compliance with these requirements and to begin implementation of the plan. Transit agencies were also required to submit a detailed plan update on February 26 of each year and to complete implementation of the plan (that is, to be in full compliance with ADA's paratransit requirements) by February 26, 1997.

The ADA statutory language and regulations, anticipating that providing complementary paratransit service in compliance with all the ADA requirements could be difficult in some cities, included a provision that transit agencies could apply to FTA for a waiver based on undue financial burden (UFB). Later, FTA clarified its UFB policy to allow the granting of time extensions (not waivers) for coming into full compliance if undue financial burden was found. FTA conducted review and approval of the ADA complementary paratransit plans through the five-year implementation period, making extensive use of contractors and the area field offices, with direction from FTA's headquarters, particularly the Office of Program Management, formerly Grants Management.

The disability community had hoped that the submission of ADA complementary paratransit plans to FTA would constitute an opportunity for real monitoring of local progress and that FTA would take action to ensure that transit agencies were in compliance with their plans. In some cities, people with disabilities were not happy with the plans submitted by their transit agencies or believed the plans did not reflect the true situation of ADA complementary paratransit service. In interviews, FTA staff members emphasized that they perceived their jobs were to ensure that transit agencies were in compliance with the requirement to submit the written plans, not to monitor actual ADA complementary paratransit service or verify compliance.[23] In official comments on the review draft of this report, FTA maintains that substantive review of content did occur at the cost of almost $2 million and that FTA recommended changes to those submitting plans. The comments did not indicate whether verification took place to determine whether the changes were, in fact, made.

Consistent with its past policy of not consulting with the disability community on VCAs, FTA also did not consult the disability community about ADA complementary paratransit plans, even though extensive disability community participation is a requirement in the plans. FTA's ADA complementary paratransit plan contractors learned about what transpired in the required public hearing by reading the transit agency's descriptions of it. Contractors were not encouraged to make contacts with disability representatives to get other views; instead, they were told to require additional information from the transit agencies if necessary.[24] FTA's contractors examined the plans closely to be sure the submitted statistics were reasonable and to try to detect any attempts to obfuscate. FTA and its agents made little effort to otherwise ascertain the veracity of ADA complementary paratransit plans and did not undertake a program to spot-check whether transit agencies were in compliance. This does not appear to be the result of a lack of resources. No staff person ever expressed the desire to do these things. FTA has not identified its role in a manner that produces genuine monitoring of ADA complementary paratransit service.

Pursuant to the ADA regulation, once a transit agency's complementary paratransit plan is approved, if paratransit service included in the plan is not provided in accordance with the plan, the transit agency is violating ADA. What a transit agency claimed in its ADA complementary paratransit plan should be an extremely important compliance tool, because it was, and continues to be, typical for transit agencies to view their paratransit services as in compliance with ADA. People with disabilities in local communities often have very different views. A significant divergence of views between the disability community and transit agencies about how well paratransit services comply with ADA was documented in the ADA Paratransit Compliance Study.[25]

In 1996, DOT issued a final rule that changed the ADA complementary paratransit plan requirement. Once a transit agency had achieved compliance with ADA's paratransit requirements, the agency was no longer required to submit a detailed ADA complementary paratransit plan, despite the fact that local disability communities often used the paratransit plan process as a way of ensuring disability involvement with the transit agency and assessing the actual progress of the transit agencies to meet their implementation and compliance goals. This fact was acknowledged by FTA in interviews.[26] Instead of the detailed ADA complementary paratransit plan submitted annually, DOT now only requires a very short statement of self-certification that a transit agency's complementary paratransit service is in full compliance with ADA.

By 1997, FTA was receiving very few applications for time extensions based on UFB. Many observers in the transit field noted that transit agencies, compliant or not, have little incentive to apply for a time extension when submission of a short self-certification of compliance satisfies FTA.

4.2.9 The ADA Complementary Paratransit Problem

People with disabilities continue to experience significant service problems with ADA complementary paratransit in many cities. Interviews with various FTA staff members revealed negative attitudes toward ADA complementary paratransit. Interviewees identified a variety of different parties as responsible for the difficulties surrounding the implementation of ADA complementary paratransit, although the staff and the disability community did not view the difficulties in the same way.

For many on staff at FTA, ADA complementary paratransit is viewed as burdensome to the transit agencies, and thus ADA itself is blamed for the paratransit problem. For example, one interviewee referred to the "infinite" number of elements that have been added to the compliance list, creating huge burdens on grantees. He emphasized that FTA is a transit agency, not a civil rights agency, and he explicitly referred to ADA as an unfunded mandate.[27] Another interviewee who was present at this interview responded by noting that the FTA administrator says ADA compliance is part of FTA's mission.[28]

FTA staff members also appear to blame the ADA complementary paratransit problem, at least in part, on the Department of Health and Human Services (HHS).[29] There have been efforts by FTA to work with HHS, since many HHS programs affect paratransit in communities across the United States. HHS's perceived lack of cooperation has become something of a scapegoat for some in FTA.

FTA staff interviews also suggested another target for responsibility for the ADA complementary paratransit problem: there was sometimes an undercurrent of blaming the riders themselves for using the service.[30] Transit agencies, FTA, and national disability advocates share the frustration that many people with disabilities who could use fixed-route transit prefer to ride ADA complementary paratransit. However, it is still noteworthy that some leading FTA staff persons do not view it as inappropriate to place blame on the riders themselves. Only one person who was interviewed, the FTAOCR director, put the issue into an accurate historical perspective. He commented that the transit industry's long resistance to complying with Section 504 of the Rehabilitation Act of 1973 has led to the present problems with ADA complementary paratransit. If public transit systems had been made fully accessible in accordance with the regulations implementing Section 504, the post-ADA demand for ADA complementary paratransit would not be as great.[31]

Some disability advocates from ADAPT have long argued that, instead of ADA complementary paratransit plans, DOT should have required "ADA plans" that would have included information on progress toward compliance with ADA's fixed-route requirements as well as those for paratransit.[32] If DOT had done this, more attention would have been directed to monitoring each transit agency's fixed-route access. Such an approach could have played a strong role in emphasizing the importance of fixed-route transportation. Establishing such a policy at the subregulatory level was well within the purview of FTA. Despite the disdain of some FTA staff persons for the ADA complementary paratransit "burden" on transit agencies, this policy was never established.[33]

4.2.10 Findings and Recommendations

Finding 45: FTA conducted ADA complementary paratransit plan review and approval through the five-year implementation period of ADA paratransit between 1992 and 1997. FTA staff members perceive that their responsibility is to ensure that transit agencies are in compliance with the requirement to submit the written plans, not to monitor actual ADA complementary paratransit service or verify compliance.

DOT now requires only a very short statement of self-certification that a transit agency's ADA complementary paratransit service is in full compliance with ADA. Transit agencies tend to submit this self-certification even when they are not in full compliance, as no monitoring takes place.

Recommendation 56: FTA should require transit agencies to submit ADA plans that include detailed reports on progress toward compliance with ADA's fixed-route requirements, along with ADA complementary paratransit compliance. FTA should monitor agencies' performance of both fixed-route and ADA complementary paratransit compliance by conducting compliance reviews and making use of site visits and spot checks, instead of relying exclusively on self-certification.

Increased emphasis on fixed-route transit will address inadequacies of fixed-route service and help to improve such service for passengers with disabilities. This will not only enhance the transit experience of current users of fixed-route services but will help to encourage the use of such services by nonusers, including persons who currently rely on ADA complementary paratransit services. Compliance oversight should include investigation of the training and performance of bus drivers, including their willingness to help passengers with disabilities board and exit, to call out streets and destinations for passengers who are unable to see them, and to perform other services necessary for passengers with disabilities to make effective and equal use of bus service. Oversight of ADA complementary paratransit compliance should include careful review of detailed ADA complementary paratransit plans and conscientious FTA monitoring of actual performance, including procedures for arranging rides, rate of trip denials, conformance with scheduled pickup times, and length of ride-times.

4.2.11 Key Station Compliance

The Americans with Disabilities Act transportation regulations include extensive requirements regarding rapid rail, light rail, and commuter rail, all enforced by FTA. (The ADA requirements for the only other type of passenger rail in the United States, Amtrak, are enforced by the Federal Railroad Administration). These requirements include rules on new and existing rail cars. New rail stations are required to be accessible. For existing stations, transit systems were required to develop a plan designating key stations, based on which stations have the highest rate of passenger boardings, which are transfer stations and major interchange points with other transportation modes, which are end stations, and which serve major activity centers. In developing key station plans, rail agencies were required to engage in an extensive public input process, including a public hearing, with significant involvement by the disability community. Key stations were required to be accessible by July 1993. The regulations state that this time limit was extendible by DOT for up to 30 years (for rapid and light rail) or 20 years (for commuter rail) if a key station would require extraordinarily expensive structural modifications to achieve accessibility, such as the installation of elevators, the raising of an entire train platform, or alterations within a station of similar magnitude and cost.

FTA reports that 689 rapid, light, and commuter rail stations in the United States are designated as key stations.[34] FTA granted time extensions to 19 key stations, which are part of six transit agencies. Since large numbers of the other stations were not in compliance by the deadline, FTA established voluntary compliance agreements detailing when and how compliance would be achieved. Establishment of the VCAs included a process of hiring contractors who surveyed all key stations.

In a memo dated March 16, 1998, the Office of Civil Rights outlined the status of key station compliance in 33 transit systems, based upon an assessment of stations performed under contract by an outside consultant and by transit system self-certification. Table 4-1 and Table 4-2 are derived from data contained in the memo and from summary data from the FTA key station surveys as of February 1998. Table 4-1 shows that 38 percent of key stations were rated in compliance, with another 26 percent not in compliance but operating under a valid time extension or voluntary compliance agreement. The remaining 36 percent of key stations had expired agreements or extensions; in the case of 173 stations, the agreements had been expired for two or more years. Transit systems have varying numbers of key stations; for some systems, many key stations were out of compliance, while for others, only a small number failed to meet the ADA standards. Table 4-2 rates the overall inaccessibility of a transit system in terms of the percentage of its key stations that were out of compliance. This table shows that as of March 1998, 42.2 percent of transit systems were rated inaccessible, meaning that none of their key stations were in compliance with ADA. Nearly one-third of the transit systems did have at least 75 percent of their key stations in compliance with ADA.

Table 4-1
Compliance Status of Key Transit Stations
February 1998

Note: Stations were audited on 14 elements. The cells show the number of stations with any time extension (TE) or voluntary compliance agreement (VCA). Some stations may have more than one element that is the basis of a TE or VCA. Count does not include new stations.

Table 4-2
Level of Transit System Accessibility, February 1998

Source: Key station survey summary data, FTA, Department of Transportation, 2/98. Author calculation.

The assessment of key station ADA compliance was based on compliance in 14 areas, called key elements. The elements are parking/drop-off, accessible route, curb ramp, entrance, doors, ramps, elevators, lifts, ticketing/auto fare vending, platforms, mini-high platforms, public address systems, telephone, and signage. Key stations were rated in terms of their compliance for each of these 14 areas. Where a time extension (TE) or VCA was granted for compliance, it was associated with a specific element. Table 4-3 shows which elements were most often the basis of extensions or agreements. Signage, P/A system, and accessible route were the compliance elements that were most often a component of a TE or VCA. A second tier of noncompliant elements included telephones, platforms, ramps, parking, elevators, and entrances. Without more specific information about the circumstances at each transit property, it is difficult to know whether in every case the reason for a VCA for such elements as signage, telephone, P/A system, and parking was because compliance involved significant and difficult modifications. These most common elements of VCAs would seem to involve less extraordinary modification than some of the other key elements of compliance.

Table 4-3
Key Elements for Which Time Extensions Have Been Granted, February 1998

Source: Key station survey summary data, FTA, Department of Transportation, 2/98. Author calculation.

The 14 key elements used in the compliance surveys performed by the consultants are a reduced list from the instrument first developed for the assessment. The initial survey contractor reportedly developed a very thorough key station survey instrument. FTA circulated it among various transit properties, some of which balked at certain questions. FTA then pared down this survey instrument, leaving many things out.[35] It has been reported that when a contractor's surveyors came to inspect a key station, a statement was made to the effect that, "By the way, we're telling you what's on a pared-down list, but if we don't mention a particular feature, that doesn't mean it's in compliance with ADA."[36] On the condition of privacy, an FTA staff person agreed that the survey instrument being used does not cover everything needed for ADA compliance. This leaves transit properties in the position of still being legally liable for certain barriers and gives the false impression that once a transit agency fixes the problems that show up in the survey, the station is accessible. By early 1998, FTA found that 349 out of 689 key stations were out of compliance with their time extensions or VCAs, either because they did not meet their deadlines or because it was clear that work to bring them into compliance would not be done in time. In response, FTA renegotiated the VCAs and time extension agreements, extending all the deadlines. FTA sent the transit agencies letters stating that if they did not enter into a further agreement by July 1998, their cases would be sent to the Department of Justice for enforcement. As of February 1999, the agencies with the 349 noncompliant stations were either in compliance or committed in a VCA or time extension to coming into compliance by 2001. They have been told that if they do not comply by that time, their cases will be sent to DOJ.[37]

FTA admits that the VCAs and time extensions were not well enforced but insists that this has been remedied by its recent "key station initiative" in 1998-1999, during which FTA developed an elaborate tracking system and established renegotiated agreements. The FTAOCR director went on to state, "Hopefully, FTA will stick to our threats [not to extend the VCAs any longer than 2001]."[38] Given FTA's past tolerance of broken promises and its oft-stated policy of broad flexibility, it remains to be seen whether FTA will follow through in 2001.

FTA should be commended for actually conducting key station surveys, rather than just accepting the transit agency's self-description of the level of transit station accessibility. If a transit agency reported, for example, that it had 25 key stations and 20 were accessible but 5 were not, FTA might have surveyed only the 5. FTA did survey the other 20, as well. However, critics of FTA's key station program point out that the ADA deadline for key station access (July 1993) has long since passed. Those stations not in compliance and not granted a time extension for extraordinarily expensive structural accommodations have been in violation of the law since that time. Many transit agencies with no or few accessible stations took no action whatsoever toward providing access. Some of these transit agencies have been granted a VCA or time extension more than once, in effect rewarding their noncompliance with further and further extensions of their compliance deadlines. FTA's activity in developing VCAs and time extensions should also be viewed in the larger context of keeping transit dollars flowing. The last two omnibus congressional statutes providing funds for transit agencies--the Intermodal Surface Transportation Equity Act (ISTEA) and the Transportation Equity Act for the 21st Century (TEA 21)--required that, to receive funds, transit agencies must be in compliance with an extensive list of laws and regulations, including ADA.[39] The many transit agencies with noncomplying key stations could not have been considered in compliance with ADA without some resolution of the noncompliance problem and thus were in the dangerous position of being ineligible for funding. However, once a transit agency executed a VCA with FTA, the agency could be considered "in compliance" and thus still eligible for federal funding. From this perspective (one that is hotly denied by FTA), FTA had a strong incentive to develop some instrument such as VCAs to satisfy the terms of compliance with congressional funding mandates-at least compliance on paper. Of course, again on paper, the idea was that the transit agency had to stick to the terms of the VCA. In reality, many VCAs that expired with little or no activity toward improving access have been renegotiated or extended.

There are important distinctions between TEs and VCAs. Time extensions are described in the ADA regulation: they require a public input process with extensive involvement by the disability community and are to be used only in situations where a key station requires extraordinarily expensive structural modifications, such as the installation of elevators, the raising of an entire train platform, or alterations of similar magnitude and cost within a station. Only 19 key stations (out of a total of 689 key stations in the country) have received time extensions. VCAs have no public input requirements; they are not mentioned in the ADA regulation. They have been used by FTA for any access barriers at a key station, even those that are inexpensive to remove or sufficiently minor that a process of public scrutiny would not have justified an extension (for example, a major Florida transit property was given two years to fix gate pressure).[40] VCAs, created by FTA to extend congressionally mandated statutory deadlines without public scrutiny, have been issued to cover approximately half of the key stations in the country.

In defending its actions, FTA has argued that it is better to grant VCAs until 2001 than to grant time extensions, which, by statute, are allowed to extend through 2010 or even 2020. However, FTA's authority to grant long time extensions would have been limited to barriers requiring extraordinarily expensive structural modifications to remove, and those barriers would have to be documented. FTA's defense does not address the use of VCAs where access barriers do not involve extraordinary modifications and where transit agencies have engaged in few efforts to meet ADA accessibility requirements.

VCAs have been signed with 26 rail transit agencies that carry the overwhelming majority of the non-Amtrak rail passengers in the United States (including large cities such as New York City, Chicago, and Philadelphia). Disability advocates report that some transit agencies have done nothing to implement their key station plans. Many of them apparently did not apply for time extensions because they did not take the requirements seriously; FTA's actions have reassured them they did not have to.

In official comments on a review draft of this report, FTA underscored that key station assessments are a vital part of FTA's ADA oversight efforts. The assessments are conducted by highly skilled engineers who measure and record data and provide technical assistance on-site at each of the designated key stations. All assessments are conducted using the same specific categories of accessibility elements. Each assessment concludes with a comprehensive report addressing where deficiencies have been found.

The comments further noted that FTA, in accordance with DOT/ADA regulations, seeks the cooperation of the transit operators in securing key station compliance to the fullest extent practicable and works to resolve matters through informal means whenever possible. The first 80 station assessments were completed in November 1998. The final report of the first 80 stations found that various deficiencies existed at all assessed stations. The results varied by property, depending on which accessibility element was in question. Transit operators have been cooperative during the assessments and willing to work with FTA toward achieving compliance. The second round of 102 assessments was completed in April 1999, with the final draft report submitted to FTA for review in May 1999. Assessments will continue in 1999, as another 160+ key stations at the 33 transit properties will be visited. FTA anticipates that these additional assessments will be completed in the spring of 2001 and that all key stations will be in compliance by the end of 2001. The question remains how FTA will respond to transit properties still out of compliance at that time.

4.2.12 Detectible Warnings on Key Station Transit Platforms

One compliance area in which most transit systems have met their responsibilities is with regard to detectable warnings on station platforms to alert passenger with visual impairments that they are approaching the edge of the platform. Although the absence of such warning edge surfaces was a problem through the early 1990s, about 30 of the 33 transit systems nationwide were either fully in compliance or in the process of completing construction on detectable warning edges of platforms at all their key stations by 1997. Particularly slow in coming into compliance were the Long Island, Chicago, and Washington, D.C., systems. Members of the disability community indicate that only the Chicago system is still out of compliance.

The Washington Metropolitan Area Transit Agency (WMATA) has completed construction of detectable warning strips at all key stations in the system. In the eyes of some disability advocates, however, WMATA only came into compliance as a result of a lawsuit filed against it and DOT over the issue. In that action--American Council of the Blind, et al. v. Washington Metropolitan Area Transit Authority, et al., Case No. 96-2058 (D.D.C., pending)--the plaintiffs challenged the failure of the transit authority to install detectable warning surfaces and DOT's failure to enforce ADA with regard to detectable warnings, and claimed that DOT and FTA had arbitrarily and capriciously granted a series of extensions and equivalent facilitation determinations permitting WMATA to delay compliance. Subsequent to the filing of the suit, DOT denied WMATA's request for additional delay, and WMATA finally came into compliance. The lawsuit is still pending in U.S. District Court; the court has made no rulings in the case. Reportedly, the defendants have not been agreeable to entering into settlement negotiations.

Some disability community members believe that the DOT and FTA actions with respect to WMATA and detectable warnings over the years were unconscionable and consider it outrageous that consumers have to spend their limited resources to trigger proper enforcement by the very agency charged with enforcing the ADA transportation provisions.

4.2.13 Findings and Recommendations

Finding 46: FTA has established voluntary compliance agreements (VCAs) for key rail stations in rapid rail, light rail, and commuter rail systems that failed to meet the accessibility requirements by July 1993 and were not eligible for or did not receive time extensions for extraordinarily expensive structural modifications.

FTA has extended the earlier deadlines of the VCAs for 26 rail transit agencies that carry the majority of rail passengers in the United States despite a statutory deadline of 1993 for most of them, because so many were still out of compliance in 1998. Some transit agencies with no or few accessible stations took no action toward providing access and have been rewarded more than once with a VCA or additional time extension, further extending their compliance deadlines.

Recommendation 57: FTA should undertake more rigorous enforcement measures against several transit properties whose VCAs or time extensions have expired.

FTA should refer the cases to the Department of Justice for litigation or should hold up funding (or a portion of funding) until full compliance is achieved.

Recommendation 58: The survey instrument used in key station inspections should be comprehensive and should reflect all characteristics necessary for ADA compliance.

4.2.14 Triennial Reviews

FTA conducts what is called a triennial review process to look at the use of grant monies by each transit agency in urbanized areas. This review process is mandated by Congress. FTA must monitor the 500 transit agencies and 50 state programs that receive federal grants every three years. About 150 agencies and about 17 states are monitored per year. Triennial reviews are conducted by contractors who are inspecting 25 compliance areas at each transit agency. The area field offices coordinate these reviews, report on the findings, conduct follow-up, and forward information to headquarters on each of the reviews.

Some people have mentioned the triennial review process as a possible tool for enhanced ADA compliance monitoring. This is not possible if FTA's triennial review program continues in its current form. Each transit agency is evaluated for a period of a couple of days on every type of compliance measure FTA is required to monitor (project management, procurement, etc.). Because of its breadth, the triennial review is not detailed in any area. Sometimes significant problems with a transit agency do not even register in the triennial review. Therefore, the triennial review process appears not to be an appropriate vehicle for enhanced ADA compliance monitoring.

4.2.15 Technical Assistance

FTA can boast of the considerable amount technical assistance activity it funds. FTA funds some research projects and publications directly. It also provides funds to the following entities:

• The National Transportation Institute at Rutgers University conducts training on a broad set of areas in transportation, some of which are related to ADA.
• The Transportation Research Board (TRB) of the National Academy of Sciences conducts research and conferences and has publications, a portion of which are related to ADA. The Transit Cooperative Research Program, which is part of TRB, also conducts research, some of which is related to ADA.
• The Volpe Center conducts research and publishing.
• Project ACTION (Accessible Community Transportation in Our Nation) is focused entirely on access to public transit for people with disabilities. Project ACTION conducts research, demonstration, and technical assistance projects as well as conferences, trainings, and publications.

Virtually all the publications and the extensive training and research funded by FTA are aimed at transit agencies. Very little is available for the consumers of FTA's programs--the riders. FTA's Web site does include a link allowing one to download a copy of DOT's ADA regulation. Also posted are a complaint form a rider can send in if he or she feels an ADA regulation has been violated, as well as a form for transit agencies to use to apply for exemptions from compliance with the regulation.

In one interview, an FTA staff person mentioned that the Office of Program Management had developed the ADA Paratransit Handbook for local transit agencies. When asked about guidance for ADA complementary paratransit users, he said FTA did not develop that, since each transit agency is unique.[41] However, all transit agencies required to provide complementary paratransit are required to meet the same minimum standards. It appears that FTA has not recognized that there is a second audience for technical assistance.

One kind of technical assistance that FTA has made available to individual transit agencies is a written response to questions that transit agencies raise. However, these letters are not distributed beyond the transit agency that asked the question. Several persons in the transit industry expressed the view that it would be helpful if the industry at large had access to these letters.

Another potential aspect of technical assistance involves assistance with access to advanced technology that can improve program efficiencies. This technology includes computer systems with data analysis capabilities to generate more reliable data about service performance and to improve systems' schedule adherence abilities by automatic scheduling, automatic vehicle location systems (AVLSs), and mobile data terminal systems (MDTSs). When asked whether this type of assistance would be appropriate, FTA staff persons discounted the idea, replying that transit agencies cannot afford these systems.[42] However, these systems may increase management efficiency and thus save money. Furthermore, FTA staff persons acknowledged that there is a certain amount of fraud in carrying out ADA complementary paratransit contracts.[43] More highly developed management information systems could help transit agencies alleviate this fraud. FTA has been assiduous in developing assistance for transit agencies in other areas, but this area has been ignored.

Finally, the FTAOCR director initiated the distribution of over 15,000 brochures to the public about ADA. While these brochures announce FTA's ADA information line, they provide no other substantive information about the law or the rights it guarantees people with disabilities. The lack of substantive information seems to be related to a larger FTA policy concern about what types of interface and exchange with the disability community are appropriate. Project ACTION has some publications for people with disabilities about their rights and has conducted training, but information about these are not available on FTA's Web site, and the relevant FTA staff persons are not familiar with them.[44] The ADA regulation is available but is certainly not user-friendly. Consequently, a rider interested in learning about his or her rights has access to only a paltry amount of information resources from FTA.

4.2.16 Findings and Recommendations

Finding 47: FTA has engaged in a considerable amount of technical assistance activity, but little of it is for riders or for people with disabilities.

Virtually all the publications and the extensive training and research that FTA has funded are aimed at transit agencies. Very little of an informative nature is available for the consumers of FTA's programs, including people with disabilities.

Recommendation 59: FTA should make publications available for people with disabilities about their rights to transportation services at varying levels of complexity (brief summaries; longer, more technical documents; etc.), FTA should also provide clear notice to transit agencies that they are required to provide and post information for transit users about procedures for filing complaints regarding alleged ADA violations with the transit agencies themselves and with FTA and that such information shall be provided in culturally competent formats appropriate to their riderships.

In addition to funding the development of appropriate additional publications, FTA should have Project ACTION's consumer resources listed on its own Web site, not just a link to Project ACTION.

Recommendation 60: FTA should conduct extensive public education activities in culturally competent formats about accessible transportation for the disability community and other rider constituencies.

Recommendation 61: FTA should index on its Web site the technical assistance letters written in response to transit agency questions and make them readily available.

Recommendation 62: FTA should offer technical assistance to transit agencies in the area of advanced technologies to improve program efficiencies.

The assistance should support the procurement and development of computer systems with data analysis capabilities to generate more reliable data about service performance and systems' schedule adherence and for automatic scheduling, AVLSs, and MDTSs.

4.2.17 Overarching Themes Regarding FTA

The FTA workforce has many staff members who have held their positions for a long time. The civil rights regulatory role was imposed on an agency whose primary role was not civil rights enforcement and whose staff had not been trained in regulation and enforcement in this area on behalf of riders.[45] Despite on-paper goals to the contrary, FTA's view of itself is summed up in statements made by staff persons that "FTA is a bank"[46] and "FTA's mission is making grants."[47] FTA staff members, generally speaking, identify their constituency as transit agencies, not transit riders. One staff person described transit agencies as "basically small businesses which are losing money each year."[48] The sympathies of FTA's staff members unquestionably lie with the transit agencies, in civil rights matters as in all matters. They want to be helpful to and close with transit agencies. They communicate frequently with transit agencies and not with rider constituencies, including people with disabilities. Staff members spoke of "the inherent inequity in the [ADA] which makes the public transit system the provider of last resort."[49] There are staff members who feel differently, but they are in the minority.

This dynamic has led to a number of overall enforcement problems across the agency. A key issue is a general tendency to fail to look for systemic problems or to investigate patterns of discrimination. The result is that no matter how significant the noncompliance, there is no evidence that FTA has ever taken rigorous enforcement measures that could correct the problem by imposing meaningful sanctions on noncomplying transit agencies. FTA engages in considerable activity to ensure transit agencies' compliance with mandates, including ADA. However, whether the focus is ADA complementary paratransit plans, key stations, or triennial reviews, the activities appear to serve the primary goal of ensuring only on-paper compliance.

In ways both explicit and implicit, these attitudes are communicated to transit agencies and to people with disabilities who have dealings with FTA. Transit agencies take liberties with the legal requirements, because at times they are virtually invited to do so. Spokespersons and decision makers at FTA have not hesitated to reflect these attitudes and tendencies, both in interviews for this research and in general, in private and in public. Examples of statements that indicate these attitudes appear throughout this report, and some additional examples are described below.

In May 1998, the civil rights liaison in FTA's Office of the Chief Counsel gave a presentation on a panel at a major disability conference that created a furor. When asked about the well-known ADA complementary paratransit difficulties in New York (see section on Compliance Reviews) and the transit agency's explicit goal of allowing a 6 percent rate of trip denials (illegal, according to FTA), he said, "94 percent is still an A!" He reiterated his long-standing defense of rail systems that refuse to modify "no eating" policies for individuals with diabetes who need to eat at a specific time. He reluctantly backed down from this position when another panelist, the director of DOJ's Disability Rights Section, explained that the Department of Justice ADA regulation, which also covers transit agencies, according to DOT's regulation, would require this and similar modifications.[50]

In another example that contradicts the same DOJ regulation, FTA ruled in 1992 that a bus driver is not required to help a rider with a disability get out his or her fare card.[51] The DOT regulation does spell out some situations where assistance is required, such as securing a wheelchair. In this particular instance, the driver was asked to reach into the rider's clothing to remove the fare card. FTA's analysis of why the driver was not required to help with a fare card was that since the DOT regulation does not specifically direct drivers to assist with fares, it must not be required. However, the DOJ regulation requires a covered entity to make reasonable modifications to any policy, practice, or procedure that is necessary to avoid discrimination on the basis of disability.[52] Although DOT's ADA regulation explicitly states that public and private covered entities receiving or benefitting from federal financial assistance may also be covered by DOJ's and EEOC's ADA regulations, these entities are often unaware of these other requirements.[53] However, FTA should understand the DOT, DOJ, and EEOC regulations that may apply, as compliance is required in order to receive federal financial assistance from DOJ and avoid enforcement action.[54]

The same attitudes are evident in policy decisions. After enactment of the Transportation Equity Act for the 21st Century in June 1998, FTA staff members worked to develop a new program under that legislation that provides funds for private transit companies that use over-the-road buses (high-floor buses with baggage compartments underneath) to procure accessibility equipment such as lifts for their vehicles.[55] The legislation included a component for ADA-related training for these companies. There was preliminary discussion about how to structure