Get documents about "Transcript of Topics in Paratransit
Document Sample
1
Easter Seals
"Selected Topics in Paratransit Operations"
Tuesday, March 17, 2009 2:00PM ET
Robyn Hoeschen
Jonathan Klein
Susan Clark
OPERATOR: Good afternoon and welcome to the Easter Seals “Selected Topics in Paratransit
Operations” conference call. All participants will be in listen-only mode and
there will be an opportunity for you to ask questions during today’s presentation.
An operator will give instructions on how to ask your questions at that time. If
you should need assistance during the conference, please signal an operator by
pressing “*” then “0” on your touchtone phone. This conference is being
recorded.
I would like to turn the conference over to Robyn Hoeschen, Ms. Hoeschen
please begin.
ROBYN HOESCHEN: Thank you, Andrea. Welcome everyone. Easter Seals Project ACTION is
happy to bring this Distance Learning Session to you today. We are pleased to
have Jonathan Klein from the Federal Transit Administration Region IX office
and Sue Clark from the Federal Transit Administration Office of Civil Rights
join us.
I would like to remind everyone that this call is being transcribed and will be
available in text, Braille and audio CD about 45 days following the conference.
Visit the Easter Seals Project ACTION Web site at www.projectaction.org to
obtain a PDF or text format and contact espadistancelearning@easterseals.com
to request a Braille or audio CD. With that I would like to introduce our
speakers for today’s session.
Jonathan Klein recently arrived at the Federal Transit Administration Region IX
Los Angeles Metropolitan Office after 2.5 years in FTA’s Office of Civil Rights
where he began working as a Presidential Management Fellow in October 2006.
Mr. Klein completed his undergraduate degree at Columbia University and Law
Degree from the University of Southern California Law School in Los Angeles.
He is a member of the California State Bar.
While with the Office of Civil Rights, Mr. Klein served as a program manager
for FTA’s Americans with Disabilities Act Compliance Reviews, authored
several major letters of finding regarding ADA issues, conducted courses for
federal grantees concerning ADA requirements and participated in efforts to
revise regulations and issue guidance. In his current position at the LA Metro
office Mr. Klein is responsible for planning, program management and
regulatory Oversight of Federal Transit Projects and operations in Los Angeles
County.
Sue Clark joined the FTA Office of Civil Rights in October 2007 after nine
years with Easter Seals Project ACTION, and is working as an equal
opportunity specialist at FTA. Sue provides technical assistances and training to
public transit providers and riders with disabilities, investigates complaints and
authors letter of finding regarding ADA service issues and manages FTA’s
Paratransit Compliance Reviews.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
2
We would like to follow today’s presentation with questions from you. So
following the presentation we will receive additional instructions from the
Chorus Call operator on how you can ask a question to our presenters. Now it
gives me great pleasure to turn this session over to Jonathan.
JONATHAN KLEIN: Good morning everyone. Our first topic today is Origin to Destination service.
Origin to Destination comes from the DOT Part 37 Regulations for Paratransit
requirements. Origin to Destination, as the term implies, means service from
someone’s origin, their starting point (such as their home), and all the way to
their destination (such as an occupation location or a medical services location).
So for any given individual, Origin to Destination Service may mean different
things, depending on their ability to move themselves from one doorway to the
vehicle doorway. Obviously homes and medical offices and work locations
aren’t right on the street. There is some space between the street, where the
vehicle is, and the building. There is a curb, sidewalk, and often plazas, stairs,
ramps, and any number of things that could be an obstacle for someone,
depending on their disability.
And now, the first few slides (for those of you who have them) contain excerpts
from various regulatory legal authorities that you can use for your reference
later. But I’m going to skip now to slide #4.
Slide #4, the other major legal requirement in the background of Origin to
Destination Service is the Doctrine of Reasonable Modification, and that means
reasonable modification from any general policy to practices to date and they
might have and this is a Department of Justice regulatory requirement and an
ADA Statutory requirement. The requirement applies more broadly than
transportation. It has a particular application to paratransit service as well.
Reasonable modification means any modification that’s necessary because of
the person’s disability, where the modification is reasonable, and does not create
a fundamental alteration or direct threat.
Now, in light of the Department of Justice and Department of Transportation
requirements, the Department of Transportation issued guidance to give clear
understanding to Transit Providers and riders about what Origin to Destination
and Reasonable Modification mean, in the context of paratransit service. In
other words, the Department of Transportation tried to clarify where door-to-
door service is necessary as opposed to just curb-to-curb service. .
The Department clarified that Origin to Destination does not require door-to-
door service for everybody. In other words curb-to-curb service is fine as a
general policy for a transit provider’s paratransit service. However the
department also clarified that a transit provider, under the Doctrine of
Reasonable Modification, must provide door-to-door service for those
individuals who require it as a result of their disability.
A door-to-door service will most often take the form of a driver assisting a rider
to and from the doorway. However, the department clarified, as well, that it is
consistent with doctrines of fundamental alteration and direct threat that a transit
provider (driver) is not required to leave a vehicle unattended for a substantial
period of time in order to help someone to move between the door and vehicle.
The driver is not required to lose sight of a vehicle while helping a rider and the
driver is not required to go beyond the first doorway.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
3
This is consistent with the fact that a transit provider is not a provider of
personal services. A transit provider is in the business of providing
transportation service from one point to another. So it would seem to cross over
into personal services if a transit provider goes beyond providing transportation,
by providing services beyond a building doorway. So that’s why the
requirement stops at the doorway, and that is what the guidance piece tried to
clarify.
With that I am going to hand it over to Sue who is going to handle the next two
topics.
ROBYN HOESCHEN: Actually, before we move on, we had one question come in about Origin to
Destination. Does the driver have to pull wheelchairs up stairs?
JONATHAN KLEIN: No. That would create a threat to the safety of the driver as well as probably to
the safety of anyone around the person being helped up the stairs. It will also be
a fundamental alternation because drivers are not movers or personal care
providers. It would be a provision of service beyond transportation.
So, pulling people up stairs, even if they are otherwise unable to traverse the
stairs as a result of a disability, is not a requirement. However helping someone
who is ambulatory to walk up the stairs that just needs someone to lean on will
probably be a requirement under the Origin to Destination Service guidance.
Any other questions?
ROBYN HOESCHEN: Thanks, Jonathan. We are going to turn it over to Sue now.
SUSAN CLARK: Great, thanks Robyn. We get a lot of questions about the Paratransit Service
criteria. So we have included a list of the service criteria on Slide #9. We are
not going to have time today to discuss these all in detail, and we are going to be
focusing on trip reservations but I would like to encourage everyone on the
phone if they have questions to feel free to email the FTA Office of Civil Rights
at our ADA email address, which is fta.adaassistance@dot.gov and we will
repeat that address at the end of the call.
The service criteria on Slide #9 are service area needs to be at a minimum of
three quarter mile corridor around fixed route bus service, response time is next
day. I should be able to call and make a trip reservation for a trip during the
next service day. Fares are no more than double the full-fixed route,
undiscounted fare. No trip purpose restrictions, no capacity constraints and
paratransit service needs to be available during the same hours and days of
service as fixed route.
We also get a lot of questions about when reservation capability needs to be
available. As indicated on Slide #11, you have to be able to accept reservations
on a day when your office is not open, for example on a Sunday for trips that are
going to be made on Monday. You can’t require people to call in on Friday for
trips that they need to take on Monday. The regulations allow you to use
technology; an answering machine or other voice mail will meet this
requirement; highlighting a best practice from Dallas Area Rapid Transit where
the schedulers take trip requests on Sunday for trips on Monday using a voice
mail system. Staff picks up the messages and calls the rider back and if they are
not able to engage in the trip negotiation or it’s somehow problematic, the trip is
scheduled and delivered as promised. I think we have a third question?
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
4
ROBYN HOESCHEN: Yes, we did have one question. What happens if the reservationist is able to
schedule a person’s going trip within the hour negotiation window but not the
rider’s return trip?
SUSAN CLARK: This brings up the concept of the trip negotiation window, which means that you
can negotiate a pick-up time with the riders as long as they are not required to
travel more than an hour before or an hour after the time that they want to travel.
The trip request needs to be counted as a trip denial in a couple of different
situations.
If a transit provider offers a trip that’s outside of that window it needs to be
counted as a trip denial, even if the rider accepts the trip: if a transit provider can
only schedule one leg of a trip and not the return trip, that needs to be counted as
two denials.
And now I would like to move on to the next part of the presentation about
personal care attendants. As Jonathan said, it’s someone employed to provide
personal services. And this personal care attendant (PCA) can be anybody; a
friend, a family member as long as they are providing personal service.
As a part of your paratransit eligibility process you are allowed to collect
information about whether or not somebody needs to travel with the PCA and
include that information in your written letter of eligibility determination, but we
would suggest that you not be too probing other than that about somebody’s
need for a PCA.
Virtually any paratransit rider may need help with activities of daily living,
whether it’s during the transit trip or at their origin or destination.
The paratransit regulations require that a PCA rides for free; this is not required
on fixed route. We know that many transit systems allow PCA’s to travel for
free on a fixed route; if that’s the assistance that people need to make the
transition from paratransit to fixed route, where they are functionally able to do
so.
There is a lot of interest in the difference between a PCA and a companion. A
companion is someone who is traveling with the eligible rider to the same
destination but they are not providing personal services. If I want to go to the
movies and Karen is coming with me, you have to allow space on the vehicle for
a companion even if the eligible rider is traveling with the PCA and then
additional companions are allowed if space permits. Companions can be
charged the same fare as the eligible rider. So that’s another difference between
PCA’s and companions.
ROBYN HOESCHEN: Great, we have a couple of questions come in about PCA’s. The first one; can a
customer travel with a PCA on any trip even if the PCA is clearly not needed
when in transport?
SUSAN CLARK: Much of the work that a PCA does may not happen during the transit trip.
Depending on the person’s disability it could be assistance with taking
medication or other very private, very personal tasks that wouldn’t be
appropriate to take place on the vehicle anyway. And so it could be that
somebody needs assistance when they get to a destination and there would be no
reason for that type of service to being provided on a transit vehicle.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
5
ROBYN HOESCHEN: We received another question: if a customer who is eligible for ADA
complimentary paratransit indicated on his application that he would be
traveling with a personal care attendant, a PCA; can the transit authority deny
trips when he is not traveling with an attendant?
SUSAN CLARK: There are times when a person may not be able to find the PCA who is able to
travel with them to their destination; they may have to ask for assistance from
somebody else when they get to their destination. And if you’ve already
determined in the eligibility process that the person is authorized to travel with
the PCA, it’s not as if the PCA is taking up any extra capacity because you
would be going to the destination anyway. So the answer is no.
ROBYN HOESCHEN: Great. And now I will turn it back over to Jonathan to talk about suspension
policies.
JONATHAN KLEIN: Great, thank you very much, thank you Sue. Also as with the first origin to
destination section, the first few slides contain excerpts from relevant legal
authority that’s just there for everyone’s reference, so those who have the slides,
go to slide #30.
Suspensions break down into two basic categories. You can be suspended or a
rider can be suspended where the rider has engaged in violent, seriously
disruptive or illegal behavior. Riders can also be suspended where they have a
pattern of practice of missing scheduled trips which we will call “No Shows”
hereafter. And those individuals with no show problems can be suspended for a
reasonable period of time, only. Those are the broad categories and I’m going to
take them each in turn.
The first category is covered in slide #31. This is different from the second
category most remarkably in that there is not a lot of regulatory, statutory or
guidance authority out there indicating exactly when a person can and cannot be
suspended due to violent or seriously disruptive or illegal behavior. However,
that’s probably the case because it’s sort of a know-it-when-you-see-it type of
circumstance. Also the transit providers are still obligated by the general ADA
requirements to act with reasonableness toward riders and in deciding to deny an
entitlement to a person with a disability who is otherwise entitled to paratransit
service.
Another noticeable distinction between suspension and denial of service for
violent or disruptive behavior as compared to the second category of no shows is
that the ability to suspend for violent or seriously disruptive behavior also
applies to fixed route service. If someone’s conduct could result in suspension
for being violent or being disruptive on fixed route services, that person could
also be suspended from riding on paratransit service. The other side to that
point is that any sort of standard or a rule that’s being applied to a rider on
paratransit service as a reason for denying them eligibility should be equally
applied and applicable to riders on the fixed route service. In other words, you
can’t just have behavioral rules that are strictly applicable to paratransit and
don’t also apply to fixed route. For example decorum requirement or a, personal
hygiene requirement, must be enforced equally on fixed route and on
paratransits in order to ensure that you’re not discriminating against people with
disabilities who are on paratransit service.
An example of behavior justifying suspension that we encountered at the Office
of Civil Rights while I was there is an individual who was known to the transit
provider to be selling rides under his paratransit eligibility through a sort of
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
6
brokerage system. He was booking trips on paratransit service for individuals
who were not eligible for paratransit service and making a profit from that and
keeping the profit for himself. That person was suspended and that was
consistent with what FTA had said theretofore.
Another example of someone who was suspended under this category is
someone who consistently presented herself for paratransit rides in an extremely
unsanitary condition, which may or may not have been the result of her
disability. The crucial facts are that the person’s condition was so unsanitary
that it was causing the driver illness, distracting the driver, and causing illness to
the other passengers.
Because, there is no clear regulatory authority here it’s also unclear how long
you can suspend someone for this category of behavior. But in order to be
reasonable, one would presume that if the problem is corrected, for example the
individual with the odor problem, if she corrected the problem, she should
probably be allowed at that point back onto paratransit service. To continue to
deny her eligibility would be unreasonable once the problem is corrected.
Moving on to the second category, which starts on slide #33. Suspension of
someone for no shows is very regulatory-dependent and very heavy on
definitions. The meaning of no shows is important. A no show occurs where a
rider does not present himself or herself for a scheduled ride and where the
reason for why the person does not present himself or herself is not within the
control of the rider. The reasonableness requirement also applies; it overlays the
explicit regulatory requirements. Reasonableness dictates that the transit
providers not just simply drive by the pick up location without stopping. The
transit provider, especially given the nature of the service needed by many
individuals on paratransit service, should wait for a reasonable period of time.
In practice, I think most transit providers wait 5 to 10 minutes for someone to
appear at the pickup point.
Moving onto slide #34, cancelled trips may be treated as no shows. So, no
shows also include some scenarios where someone decides that they don’t want
their ride. Although cancellations aren’t explicitly covered in the regulations
obviously there is some gray area between the cancellation and a no show and at
a certain point, for example where someone cancels when the vehicle has
already arrived at their door, there is no difference between the no show and the
cancellation. Consistent with that reality, FTA has interpreted no shows as
encompassing cancellations where those cancellations had the same operational
effect on service as a no show. Cancellation with less than 2 hours, maybe even
less than 3 hours before a scheduled pickup (and this is a case-by-case
determination) depending on the system may be treated as a no show if the
transit provider can demonstrate that this is a type of cancellation and short
notice that disrupts the service like a no show.
In most cases that I remember seeing, transit providers should probably allow
cancellations on the same day where they occur say in the morning and the trip
is in the evening, early evening or late afternoon. That seems to be within most
transit providers’ capacity to absorb. Actually, many transit providers depend
on those sorts of early same day cancellations in order to have service run on
time.
So, now turning to pattern of practice which is on slide #35, as you recall the
definition of the category for no show suspensions included a requirement that
there be a pattern or practice of no shows. This is one area where there is not
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
7
clear guidance from the Department or direction from the regulations or statute.
So, the reasonableness standard will again be our guide. The analysis of a
pattern or practice is also inherently case-by-case.
Consequently, the FTA Office of Civil Rights when analyzing systems looks to
the frequency with which someone is no showing their trips. For example, if
someone no shows four times in a month, it would not be possible, most likely,
to determine whether a pattern or practice exists, without considering how many
trips the person has actually taken. If the person is taking ten trips and no shows
four, in other words no shows 40% of trips, that would seem to be a clearer case
of a pattern or practice than where someone no shows four out of 100 trips or
only 4%.
For most systems that FTA has evaluated and found an effective practice there
was a frequency-based system in place. Rather than a blanket “four trips” type
threshold for pattern or practice the systems with effective practices say 40%
trips or 50% of the trips with a minimum of 10 or 20 trips, and that is consistent
with the case-by-case analysis. The important part here is not to develop a
standard that has the effect of cutting off people’s eligibility before they have
actually established a clear pattern or practice of missing trips of no showing.
So now moving on to slide #36, I will come to the last point in the second
category for suspension of service and that’s suspension for no shows. The
suspension, per the regulations, can only be for a reasonable period of time. The
regulations aren’t particularly clear on what is a reasonable period of time, but
this is supposed to be a corrective action against the transit rider, not a punitive
one. So, we are in most cases looking for a suspension on a progressive system
so that the first offense, say the first time you suspended after you suspended
40% of your rides in a one month period, that suspension should probably only
be for a couple of days, maybe a week. Thereafter, the second time a rider
reaches the threshold number of no shows for suspension, you could allow for a
more severe punishment, say twice as long as the first suspension, and so on and
so forth, with the goal ultimately of not denying the person service but of
correcting the behavioral problem or the lack of attention problem that is leading
to disruption to your service. In summary, we are looking for suspensions of
days maybe weeks, not suspensions, typically, of months and especially of
years. I can think of only a couple cases where the FTA Office of Civil Rights
agreed that suspensions of months met the requirement that suspension not be
for an unreasonable period of time.
One point to close on, that ties together the issues of PCA’s and suspensions, is
that individuals who could otherwise be suspended can be required to do things
that will mitigate whatever problem led to the problem, such as their no showing
habitually or their failure to arrive on time for pickups or their unsanitary
condition upon provision of service. Often, a PCA can help with the underlying
issue that results in the person’s suspendable behavior. For example many
people miss trips because they simply are not capable of organizing themselves
in order to be at the trip pick up location on time. A PCA might be a very good
solution for that person in order to ensure that he or she is able to get to the pick
up point consistently. Similarly, for someone who has behavioral problems and
cannot sit quietly and respectfully while on the vehicle, within the rules of the
transit provider, having a PCA present in order to calm the person down and to
address the person’s needs might be sufficient to bring the person’s problems to
under control and permit service. To be clear, a PCA can only be required under
these circumstances, where someone could otherwise be suspended from
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
8
service. As Sue said earlier, a PCA cannot be required, generally, in order to
ride paratransit service. And with that I will open up to any questions.
ROBYN HOESCHEN: Jonathan, we have one question regarding suspension; can a rider be suspended
if the rider is causing injuries to himself or herself but not to others?
JONATHAN KLEIN: Okay thank you, great question. This touches on the issue of direct threat which
is a larger topic that we are not addressing here, but to make a long story short,
in order to suspend someone from transit service because he or she is creating a
direct threat, typically that direct threat has to be to others as opposed to that
individual. In other words, if someone is taking a risk of injury to themselves
that per se is not a reason for denial of service or suspension. However, within
the limited transit environment - the small vehicles for paratransit services and
buses fixed route service - someone doing injury or endangering themselves will
almost certainly, given the crowded confines of the vehicle, create the potential
for danger to others as well. It also may create a fundamental alteration to the
service provider if they have to deal with the disruption that ensues when the
person is creating a danger to themselves. So it’s a case-by-case determination
but potentially, yes, even if someone is only creating a danger to themselves
there may be grounds for suspension of the individual. To clarify, this scenario
only applies to the first category of suspensions - where we were suspending a
rider for violent or seriously disruptive behavior – not to the second category of
no showing.
ROBYN HOESCHEN: Can a rider be charged with a no-show if he or she leaves the pick-up point to go
to the bathroom and the paratransit vehicle arrives and then departs before the
rider gets back?
JONATHAN KLIEN: Okay, great question again. The general answer is yes, a person who leaves for
any reason from the pick-up point can be charged with a no-show. If the person
keeps doing it and establishes a pattern or practice of missing trips, that person
could be suspended from service for a reasonable period of time for no showing.
However, if, you know, under a given circumstance that reason is totally outside
of the person’s control, for instance as a result of a disability related condition
that causes the person to have to leave at that exact moment so that the person
has no choice, the person could not have prevented it, could not have gone to the
bathroom in advance of the pick-up window then that particular trip may be
excused and is not a no-show. It is a case-by-case determination, looking at why
the person failed to show up for that one particular trip. Also, if someone has a
seizure or some other condition that physically prevents him or her from going
to the pickup point, then that is a circumstance where it should not be charged as
a no-show.
ROBYN HOESCHEN: Thanks Jonathan. We are now ready to take some questions on origin to
destination service, trip reservation, personal care attendants and suspension
policies from you. I would like to request the callers with question to refrain
from naming their transit system and the city or town that they are speaking
about so we can maintain adequate confidentiality. At this time, I would like to
ask our Chorus Call operator, Andrea to provide instructions on how participants
can pose questions.
OPERATOR: Thank you. At this time if you would like to ask a question, please press “*”
then “1” on a touchtone phone. You will hear a tone to confirm that you have
entered the list. If you decide you want to withdraw your question, please press
“*” then “2” to remove yourself from the list. Again it is “*” then “1” to ask a
question.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
9
I have a question from Theresa in Arkansas. Please go ahead.
THERESA: Yes, could you give me some clarification as to what constitutes a no-show
without reasons, you know, say that a call is less than two hours what is beyond
the person’s control mean? Sometimes it’s iffy and we’re not sure.
JONATHAN KLIEN: It’s one those of areas where as I alluded, the determination is inherently case-
by-case. It is almost impossible to address unless you have, clear examples. I
already alluded to the example of the person who has the medical event that
prevents them from being there and the bathroom emergency. For those
examples, the reasons for the no shows were outside the control that is normally
attributable to the rider. Any reason for missing the trip that is attributable to the
transit provider would also have to be excused as a no-show. For example if the
vehicle doesn’t show up within the pick-up window, that’s something that’s not
attributable to the rider; it is a service provider missed trip and that should not be
charged as a no-show. Another example is where the wrong vehicle is
dispatched from the transit provider, for example if the person uses a
wheelchair, a motorized wheelchair, that can only be loaded into an accessible
van and the transit provider has been made aware of that and still dispatches a
sedan, and the rider is unable to take the trip, that will be a circumstance where
the transit provider should not be charging the rider a no-show.
OPERATOR: Our next question comes from Teresa of South Dakota; please go ahead.
TERESA: If a person calls in to say that they are ready early, can they be marked as a no-
show if they are not there?
JONATHAN KLIEN: I guess it depends on how early and what you mean by “early.” If a transit
provider arrives for pick-up within the pick-up window, waits the pre-
determined time, and the rider is not there, that can be charged potentially as a
no-show consistent with the transit provider’s policies. Often, transit providers
will have a early portion of their pick-up window, for example if they have
scheduled a trip for pick-up at 3 o’clock, they may give themselves a 10 minute
pick-up window in either direction, so it’s from 2:50 to 3:10. If that policy has
been communicated clearly to riders so they know that when they have a 3
o’clock pick-up time they have to be there at 2:50 and that vehicle arrives for the
pick-up and the person is not there, the vehicle waits a reasonable amount of
time, say 5 minutes, and the person is still not there, that could legitimately be
charged a no-show. However, transit providers cannot pressure or require that
riders get on vehicles outside of their established pick-up window times. If the
transit provider has a 10 minute window on either side of the 3 o’clock pickup
time, and the transit provider vehicle shows up at a quarter to two, the driver
demands that the rider get on the vehicle and the rider is simply not ready to go
yet, and the vehicle leaves before the pick-up window (before the 5 minutes into
the pick-up window), then that would be an example of a no-show that should
not be charged. Riders should only be subjected to the policies that have been
clearly communicated to them and the policies that are reasonable.
TERESA: So if a passenger is at the grocery store and they have a scheduled 3 o’clock
pick-up and they call at 2 o’clock to say that they are ready to go and we get a
driver there at 2:15 and the driver waits 5 minutes. Can we mark them as a no-
show?
JONATHAN KLEIN: I would say under those circumstances probably not, unless you can apply a
clearly communicated policy for a pick-up window there.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
10
TERESA: Okay.
JONATHAN KLEIN: That policy would also have to be reasonable. If you had, for example, a pickup
window extending 1 hour on either side of the pick-up time (which will cover
that early pick-up), that would probably be an unreasonable window. The DOT
ADA regulations require that the pickup window be reasonable, as a prerequisite
to charging a rider with a no-show that could lead to suspension of service.
If, however, the rider re-scheduled the pickup as part of a same-day premium
service option, under some existing policy, then the rider could be penalized for
the no-show, at least in terms of eligibility for the premium (same-day) service.
It is unclear under the DOT ADA regulations whether a violation of premium
service policies can be considered a no-show for purposes of basic ADA
mandated service eligibility, but it seems unlikely. In other words, while the
transit provider could tell the rider that his / her rights to book same day rides is
going to be suspended for missing that same-day scheduled trip, the transit
provider probably cannot say that his / her next day trip rights could be
suspended.
TERESA: Okay. Thank you.
JONATHAN KLEIN: Sure.
ROBYN HOESCHEN: Andrea, do we have another question?
OPERATOR: Yes. We have multiple questions. We have a question from Joyce of
California.
JOYCE: Hi, I was wondering when a passenger has a PCA and they have requested that
the PCA be picked up at a different location, are you supposed to be able to do
that or how would we handle that?
SUSAN CLARK: The PCA needs to have the same origin and destination as the eligible rider.
JOYCE: Okay, so even if we picked them up and they are together and then on their way
for their drop off from the location, now the PCA says, no I need to go to a
different location, than a passenger, we can deny that request, correct?
SUSAN CLARK: I’m assuming that the PCA is not also an eligible rider?
JOYCE: Yes, absolutely - the PCA just happens to be at a different location than where
the passenger is.
SUSAN CLARK: You are not providing transportation for the PCA. The PCA is there to
accompany the eligible rider so the origin and destination need to be the same.
JOYCE: Okay, excellent. And if we find that this passenger needs a PCA and doesn’t
actually and is eligible for one but doesn’t have a PCA can we require them and
deny requests unless they have the PCA with them because of, you know,
maybe the passenger, you know, just can’t even do anything on his own and
then that would be the driver’s responsibility to be the PCA and so can we
require that person to have a PCA for every trip?
SUSAN CLARK: No, you can’t.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
11
JOYCE: Okay.
SUSAN CLARK: The customer determines the need for a PCA and the regulations permit the
transit authority to document someone’s need for a PCA as part of the
paratransit eligibility process, but thinking broadly, virtually anybody who is a
paratransit eligible rider might have a need at some point either before, during,
or after the transit trip for assistance with activities of daily living and if
someone needs assistance at the origin or destination and their PCA cancels on
them and they can’t find someone else to act as their PCA, they may need to
take the transit trip and get assistance from somebody at the grocery store.
JOYCE: Okay. Okay, that’s great. Thank you.
SUSAN CLARK: Thank you.
OPERATOR: We have a question from Mary Beth of Illinois. Please go ahead.
MARY BETH: Yeah I had two questions. Why would PCA have a no show and turning to
PCA, can a child act as PCA?
SUSAN CLARK: Yes. So the PCA can be a friend, family member or a child. With that said,
however, the child needs to be old enough to be able to provide assistance. We
had a situation in our office a couple of months ago where someone wanted to
travel with all of her grandchildren and we found out that the child that she was
designating as a PCA was a 3 month old infant, and so we had conversations
with her and said one of the other kids you are taking can act as your PCA, but
the 3 month old infant cannot be the PCA.
JONATHAN KLEIN: I believe you had a no-show question as well, ma’am?
MARY BETH: Yeah the no-show question had to do when the vehicle arrived outside the
window and the rider is no longer there. Does that tell a no-show because the
rider never contacts our company or it has arrived outside the window should it
be considered a no-show or not?
JONATHAN KLEIN: Okay, thank you for that, that’s actually a situation that comes up often across
the country. Under that circumstance, the rider should not be charged a no-
show. Riders should only be charged no-shows when they have failed to abide
by clearly explained and publicized policies. If the vehicle is arriving outside
the pick up window, then for the rider to be charged a no-show would be against
the policy of the transit provider. And actually under those circumstances, the
FTA would require that the transit provider record that as a missed trip
attributable to the transit provider even if the rider would have taken the trip
outside the window. If you have a significant number of missed trips, the FTA
considers that to be a capacity constraint - that is, again, too many missed trips
from the transit provider.
MARY BETH: Thank you.
JONATHAN KLEIN: Sure. Just to jump in really quickly and give a larger caveat or reminder, I just
want to make sure that we recognize that nothing that Sue or I say here should
be taken as legal advice. Also, I am no longer a member of the Office of Civil
Rights, so I am not speaking on behalf of the Office of the Civil Rights of FTA
or on behalf of my current job at Region IX. Our purpose here is to provide
technical assistance, not legal advice or authoritative determination concerning
legal obligations.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
12
OPERATOR: Thank you. We have a question from Robert in New York.
ROBERT: Yeah, the first thing I wanted to know is what is the minimum time that a
paratransit vehicle has to wait at a pickup stop?
JONATHAN KLEIN: FTA and DOT have not, as far as I am aware, circulated a specific minimum
time. I’d say in practice a transit provider should, in order to be reasonable
(which is a requirement of the regulations and statute), wait at least 5 minutes. .
That is reasonable, generally, just to make sure you are not missing a rider who
is actually there. For example the sidewalk might be crowded and that the rider
and the driver might have trouble identifying each other so it’s also reasonable
given the nature of the service we are talking about here. A paratransit service is
a service for people who are not able to independently navigate the fixed route
system and therefore, by definition, may require more of a wait time or more
service to connect the rider with the vehicle and driver, than would be expected
of a fixed route rider and a bus. The bus doesn’t wait for the sake of waiting,
however, so the paratransit vehicle does not have to wait beyond that reasonable
amount of time needed for the rider and driver to connect either. In order to
ensure that the connection is made, the paratransit vehicle should wait at least 5
minutes in practice.
OPERATOR: Thank you. We have a question from Brenda in West Virginia. Please go
ahead.
BRENDA: Hi my question is also about PCA’s. We do some non-emergency medical
transportation for nursing home clients and you are saying that we are not
allowed to require them to have a PCA. Is that correct?
JONATHAN KLEIN: Sue, do you want to answer that?
SUSAN CLARK: Yes, I just want to make sure that I heard the question, could you repeat it
please?
BRENDA: Yes, we do some non-emergency medical transportation for nursing home
residents to doctor’s appointments. Are we allowed to require that they have a
PCA?
SUSAN CLARK: No, you are not allowed to require it. If it turns out on a case-by-case basis that
you find that a rider needs some assistance while on the vehicle and is expecting
the driver to provide personal assistance services, assistance with medication or
something like that. Then that’s something you can address privately with that
customer. Until you have information about an actual incident, you can’t
require somebody to travel with the PCA. As Jonathan mentioned, requiring a
driver to provide that kind of assistance would be a fundamental alteration of the
nature of transportation, but you can’t make an assumption that that somebody is
going to need that assistance.
BRENDA: Can I ask a follow up question?
JONATHAN KLEIN: Sure. I just would add one more clarification or one elaboration to Sue’s answer
quickly. I would say that Sue and I, in answering and then doing this
presentation, we are assuming that we are talking about a complimentary ADA
required paratransit trips since you’ve got the larger category of non-ADA
medical transportation and everything else outside of paratransit service, which
potentially enters into an area where you are offering premium service. Non-
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
13
ADA services can have additional requirements, such as potentially a travel with
the PCA requirement. So I just want to flag that as a distinction to be aware of.
SUSAN CLARK: Oh that’s a good point Jonathan. I hadn’t read that into the question, that’s a
great catch, thanks.
PENNY EVERLINE: And Brenda this is Penny from Project ACTION as well. From an operational
perspective having a background in social work and having interned in a long
term care facility, you might want to think about, if this is a pattern with that
facility in particular, you might want to think about for example contacting the
social worker or the case manager. In that facility there may be an education
piece in which you can educate them about what type of service is provided in
that paratransit service and that that person might need a personal care attendant.
BRENDA: I will tell you that the one issue we run into is when we take them to the hospital
or if it’s a larger facility, the doctor’s office, they have to get from the main
entrance at the hospital to their physician’s office which could be quite a
distance away and if they are not that steady whether it’s in a wheelchair or if
they are not ambulatory or otherwise it’s a real issue and they expect to drive or
to leave the van at the entrance, take them maybe up several floors to the
doctor’s office, it’s just not practicable.
JONATHAN KLEIN: I would agree that it’s not practical to do that and fortunately the Department of
Transportation, in issuing its guidance on Origin-to-Destination Service took on
that exact situation and explicitly said: the front door, the first door is your clear
bright line that the transit provider does not need to cross. I would caution
against telling a rider that they can’t have a trip without a PCA because of these
issues that they are going to encounter past the first door but I mean it would
probably be a best practice for the transit provider to warn the person that he or
she is not going to be able to get to the appointment based on the transit
provider’s experience, without having a PCA to get him or her past that first
door because our driver is not going to go past that first door. If the rider still
wants to go without a PCA, despite the problem once he or she gets through that
front door it’s unfortunately the rider’s problem at that point to deal with the
consequences, from the standpoint of the minimum requirements of the DOT
ADA regulations.
BRENDA: That kills the driver because they want to help them but…
JONATHAN KLEIN: Yeah.
BRENDA: You know what I am saying- it is really a precarious position to put the driver
in?
JONATHAN KLEIN: Right, I understand.
BRENDA: So there is no easy answer.
JONATHAN KLEIN: No there isn’t. On the other hand we, by nature in FTA when it comes to
paratransit, are talking about minimum requirements. There is nothing that says
that a transit provider can’t go beyond the first doors if it chooses to do so.
BRENDA: But it just doesn’t work in that setting because they can’t park the van when they
are dropping the client off.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
14
JONATHAN KLEIN: Right, so it probably doesn’t make sense to do so but you could if you decided
you wanted to do that. I don’t know if Sue wants to add something here.
BRENDA: And then the paper writes us up because we dropped a client off and left them at
the front door and they couldn’t get any further, you know what I am saying?
SUSAN CLARK: And just to put you back on Penny’s point, one of the things that we spend a lot
of time doing in the Office of Civil Rights; providing technical assistance on
issues like this. Many people have expectations about what your service is and
what it isn’t and so it’s helpful to have clear policies about what the drivers are
able to do and what they are not going to do.
BRENDA: Are there any templates out there for those kinds of policies?
PENNY EVERLINE: What we can do, we will give you our number here and you can call us for
additional technical assistance on this question.
BRENDA: That would be great I don’t mean to hog all the time.
PENNY EVERLINE: Oh, that’s fine. I am sure a lot of people have similar questions but we can work
with you individually on this as well. Our number is 1-800-659-6428.
ROBYN HOESCHEN: Andrea do we have another question?
OPERATOR: Yes we have a question from Frances from North Carolina. Please go ahead.
DONALD: Yes, I am Donald with Frances here. We have two quick questions. One is
when an operator does decide to give personal assistance say going up to the
front door and walking them down to the van. They are ambulatory but they use
a walking device and we assist them and they fall. I guess part two there is: is
the driver personally liable and is the agency liable for the fall that occurs during
assistance?
JONATHAN KLEIN: Okay, I will address that question. Thank you for bringing us back to the
beginning of the presentation on Origin-to-Destination Service. The general
answer is that we do not treat or rather no one treats liability in this area as being
particular to paratransit requirements. I will refresh my caveat that we are not
here giving legal advice because liability often is a subject of litigation and legal
interest. Presumably, whatever liability risk exists generally within the transit
provider’s service should be consistent across paratransit and fixed route
service. And I know that’s not the answer that anyone wants to hear because
these paratransit services are requirement of the ADA regulations, but we don’t
address liability specifically through paratransit requirements or at FTA. It falls
into the general pool of your liability concerns as a transit provider; there is no
unique treatment of liability for personal injury or property damage under the
DOT ADA regulations. For liability questions, we have to defer to your local
law and whatever your counsel says as far liability, generally. Notably liability
also varies from jurisdiction to jurisdiction.
DONALD: Okay and we just have a tie, you know, between the operator’s heart wanting to
reach out and help and being worried about those liability issues. Our second
question: we have some customers that are now requesting that we pull into their
driveway or back into their driveway because of whatever set up challenges are
on their property and from a safety standpoint we are concerned about the
backing in and backing out of driveways obviously and where do we go with
that?
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
15
JONATHAN KLEIN: Yeah I think this is the most common issue that comes up that wasn’t actually as
far as I recall addressed in the guidance that this department issued. And that’s
probably because it is a circumstance where the reasonableness of what is being
requested, like many of the things we talked about today, is a case by case
determination. Obviously pulling into a small driveway in order to help
someone to a vehicle is not something that will be unreasonable in and of itself,
but if someone has to go up a long circuitous driveway to get to a person, so that
a person can be loaded safely into the vehicle, that begins to be a problem and
potentially unreasonable. One solution would be to recognize that, the ADA in
mandating reasonable modification, which is similar to reasonable
accommodations in employment, does not necessarily require the transit
provider or employer to give the modification or accommodation that the person
wants. If a person can be assisted to the vehicle safely without pulling the
vehicle into the driveway and that’s the preference of the transit provider, there
is nothing to require the transit provider to provide one choice form of
modification over another effective and preferred form of modification. I am
not sure if I got too artificial in my language there, but what I am basically
saying is that if you would prefer to help the person walk from the doorway to
the vehicle as opposed to pulling your vehicle into the difficult driveway, that’s
your option as the transit provider.
DONALD: Well, I guess to be more detailed but they may be in an electronic wheelchair
and there is no paved sidewalk or driveway so the wheelchair is unable to make
it to the street and therefore they are requesting that the vans pull all the way up
to the door or close to the door.
JONATHAN KLEIN: Okay well then under those circumstances you would have to assist up until the
point where it becomes unreasonable to do so, and it could be unreasonable for
any number of reasons. It may be unsafe for your driver to do it or it may take a
substantial amount of time for the driver to pull all the way back like that. For
example, if the driver has to back up a long circuitous driveway, it could be a 30
minute process; I would say that reaches the point of unreasonableness.
DONALD: All right, thank you Mr. Klein.
JONATHAN KLEIN: Sure.
ROBYN HOESCHEN: Andrea can you let us know how many questioners are still on the queue?
OPERATOR: 25 ma’am.
ROBYN HOESCHEN: Great. Well, I just want to let everyone know that it is right about the top of the
hour, but our presenters have been generous with their time and have been kind
enough to agree to stay on for a couple of more minutes to address more of your
questions. Can we have another question Andrea?
OPERATOR: We have a question from Kim in Minnesota, please go ahead.
KIM: Yes, I wanted to talk just a little bit more suspensions of individuals where you
had the question earlier about causing harm to themselves, my question is they
are causing harm to our driver, their arms are flailing out, they are kicking when
we are securing their chair and they have a PCA present, they are telling us that
its out of his control. We’ve…I am wondering, you know, what we can do, if
we do a suspension, for how long and it’s probably not going to change the
situation.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
16
JONATHAN KLEIN: I think this falls generally within the circumstances that I addressed in a
hypothetical, but it’s a little bit more borderline in that the person already has a
PCA. Stepping outside of the legal framework my first thought would be maybe
that this person needs a different PCA it doesn’t sound like the PCA may be
doing the job. And that ties into the length of suspensions that would be
appropriate. If the rider or his guardian is able to get a new PCA that it is able to
control the rider and ensure that he is not harming the driver in particular, I’d
say the person should be at that point eligible to return for service. Our guide
for a suspension for disruptive behavior is only the reasonableness - there is no
more exacting direction from the regulations or any guidance. If this behavior
can’t be controlled through a corrective action, however, that’s not something
that you can reasonably be expected to say “Okay we will come back in 10 days
and we will see if your uncontrollable problem has resolved itself.” I think it
would be reasonable to suspend the person up to the point where the problem
has been addressed. Just to reiterate, a rider who is causing harm to the driver,
while driving, raises a clear case of direct threat to others and fundamental
alteration. A rider who is merely causing harm to the driver while loading may
be a closer case. Being a paratransit driver is a tough job and you expect some
level of hands on work. A particular case clearly crosses over into
unreasonableness, permitting suspension, if the rider really is causing injury to
the driver. That circumstance is probably sufficient to justify suspension under
both direct threat and fundamental alteration theories, allowing suspension up
until the point that problem is brought under control, either with a new PCA or I
am unsure of what else to suggest to address the problem.
KIM: Okay.
PENNY EVERLINE: This is Penny again from Project ACTION another operational thought might be
sometimes having an opportunity to practice with a vehicle that is not actually in
service and being able to, to practice how to communicate with your riders you
might be, you might find that perhaps the driver is startling the rider by not
communicating okay now I am going to move the belt here or do this or do that
and perhaps it might be just a matter of learning how to better communicate with
the rider…for the rider to be able to better communicate what he or she needs as
well.
KIM : Yeah unfortunately this person’s conditions isn’t that’s not going to…that isn’t
the problem their disability is causing them to do this and they have no control
over it, the PCA doesn’t even know when it’s going to happen. It isn’t
something that the driver can communicate to them…for them to even really
understand, it’s pretty much out of their control but there it’s happening
frequently when they are boarding, at the time of boarding the bus and when
they are trying to secure the wheelchair.
PENNY EVERLINE: Yeah.
ROBYN HOESCHEN: Thanks for your question and your comments, Kim if you want to give you us a
call at 1-800-659-6428 we would be happy to go into more detail about your
situation.
KIM: Great thank you.
OPERATOR: Thank you we have a question from Frank from Illinois. Please go ahead.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
17
FRANK: Yeah this is Frank in Indiana. My question has to do with the PCA’s and it was
kind of covered a little bit ago. Is there an age requirement for a PCA?
SUSAN CLARK: No, there is no age requirement. We have a finding in a recent compliance
review where a transit property has said that only people who were over the age
of 12 could be a PCA and this goes back to the reasonableness standard that we
have been talking about today. We are not going to say that only people over a
certain age can be a PCA, but we are going to suggest that the person has to be
able to actually provide the assistance.
JONATHAN KLEIN: Okay, I would just add just very quickly that you know in reality we realized
that there is de facto an age requirement. It is safe to say that someone doesn’t
become cognitively and physically able to offer assistance until…I don’t have
small children, so I don’t know what age to say, but that is probably around two
or three or four years of age - that’s probably the age of maturity that’s required
in order to do the things that a PCA does. But you know, you may end up with a
very mature three year old who breaks from the mold. You have to address the
situation you are presented. If you have an infant - it is pretty safe to say that
that infant is not going to be able to be a PCA.
FRANK: Because that’s the situation that I have a client who is using a four year old and
or a five year old, they are a PCA.
JONATHAN KLEIN: I guess it depends on the 4 and 5 year old and it’s going to be your
determination, because FTA is not going to come in and interview these 4 or 5-
year olds and determine what their abilities are. Potentially those 4 or 5 year
olds are capable of providing service and they shouldn’t be denied. The rider
shouldn’t be denied the opportunity to use them as PCA’s based under a blanket
policy.
FRANK: Okay, what about the use of that phrase that you had, “old enough to both
physically and cognitively perform the duties of a PCA,” has that been included
in any of the FTA guidelines on the ADA or can it be if I wanted to add that to
our policy would that be permissible?
JONATHAN KLEIN: I would shy away from saying “old enough,” because that implies there is an
actual age requirement. You could maybe say “mature enough” or “capable”
instead. I would probably say just say the person has to be capable of
performing the service. You could also provide an elaboration. You could say
some children may not be old enough to have the maturity to level to serve as a
PCA. But to say that the PCA has to be a certain age - that is what we are trying
to avoid.
FRANK: Okay, so just to be capable both physically and cognitively to perform the
duties?
JONATHAN KLEIN: And that’s what I would say and I am not sure if Sue has any thing to add,
because it enters her area.
SUSAN CLARK: The regulation is silent on this issue, so you have discretion to come up with a
policy as long as the policy is reasonable. We’re sharing recent examples of
unreasonable expectations on either end of the spectrum. We are not going to
say that only people over a certain age can be a PCA, but we are going to
suggest that the person has to be mature enough to actually provide the
assistance.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
18
FRANK: Okay so a follow up, what’s the possibility of getting this wording put into the
regs?
SUSAN CLARK: The compliance review that addressed this issue is not publicly available yet, it
will be available online in the near future. This is a good time to repeat our ADA
assistance email address: it is fta.adaassistance@dot.gov and if you would like
to email us there I can make sure you get a copy of the compliance review when
it’s available.
FRANK: Okay. Thank you.
ROBYN HOESCHEN: And we have time for one more question today.
OPERATOR: We have a question from Don of New York.
DON: Yes, this has been most interesting; my question is you spoke about the
requirement of reservations being able to taken one day before. Our paratransit
service accepts reservations up to a week before and a lot of people make the
reservations at that time. Sometimes when you call the day prior a person is
able to get a trip and very often they are not simply because the reservations are
booked. There is no more space available at the times that you want. I want to
be sure that I am accurate, is it the case that they can turn you down because
although they would accept the reservation there is no trip availability because
people have made prior reservations for those times?
SUSAN CLARK: When somebody calls the trip reservation is made and the person thinks they’re
going to get a trip…?
DON: No, the person calls the day before but because so many other people have
called earlier there are no longer trips available when the person needs it on the
following day.
SUSAN CLARK: On ADA complimentary paratransit?
DON: Yes.
SUSAN CLARK: I’m assuming that it is not an issue of somebody being offered a trip within the
one hour negotiation window that the person is just told, we don’t have any
more capacity on that day, is that right?
DON: Right, we have no more capacity within 3-4 hours of the time that you are
looking to go and because so many people made prior reservations.
SUSAN CLARK: That would be a sign that the system might be experiencing capacity constraints
that aren’t allowed under the regulation.
JONATHAN KLEIN: The risk here is that you are creating the impression to the riders that they have
to call several times in order to get through to schedule their trips. They won’t
necessarily know the difference, let’s say between booking 4 days out and 1 day
out and the fact that one option is constrained may be perceived as creating a
problem for reservations as a whole, including the required ADA options. A
solution might be for you to cut back your advance scheduling and move more
toward the legal minimum of 1day out, 2 days out and 3 days out. Four days out
may just not be workable for your system in order to maintain an open trip
reservation program that’s compliant.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
19
ROBYN HOESCHEN: Well we have used up our time for today and we just have a few more moments
left before we end this session. We know there were tons of questions left in the
queue and thank you for all those great questions. If we didn’t get to your
question today please feel free to give us a call here at Project ACTION at 1-
800-659-6428 or email us at espadistancelearning@easterseals.com. Alternately
you can email the FTA ADA assistance at fta.adaassistance@dot.gov .
Your feedback is very important to us. Please take a few moments to give us
your feedback concerning the effectiveness of this event by completing the
event evaluation. A link to this online forum will be emailed to you
immediately following this call and is also available on the event website.
On behalf of my colleagues at Easter Seals Project ACTION I want to extend
our gratitude to Jonathan and Sue for their great job of sharing their experience
and knowledge with us today. I’d also I like to thank everyone who is on this
call as well as the Chorus Call team. Are there any final comments from our
presenters?
JONATHAN KLEIN: No, other than thank you everyone for being on the call.
SUSAN CLARK: Thanks for the great questions.
ROBYN HOESCHEN: Thank you very much everyone for your participation and please watch our
website www.projectaction.org and your email for future Easter Seals Project
ACTION events. Thank you and have a great day.
EasterSeals_20090317_200
Tuesday, March 17, 2009 2:00PM ET
