AC TRANSIT DISTRICT Board of Directors Executive Summary
GM Memo No. 08-190 (Revised) Meeting Date: August 6, 2008
Committees: Planning Committee External Affairs Committee Rider Complaint Committee Board of Directors
Finance and Audit Committee Operations Committee Paratransit Committee Financing Corporation
SUBJECT: Consideration of the United States Department of Justice (USDOJ) Notice of Proposed Rulemaking (NPRM) Concerning Proposed Revisions to Americans with Disabilities Act (ADA) Regulations, Including Standards for Accessible Design under Title II and Title III. RECOMMENDED ACTION: Information Only
Briefing Item
Recommended Motion
Amendments requested by the Special Paratransit Committee on August 6, 2008 are underlined below and in the attached letter. 1. Paratransit Committee: Recommend authorizing the Board President to Submit Comments Regarding the USDOJ NPRM Concerning Nondiscrimination on the Basis of Disability in State and Local Government Services, as contained in Attachment A to this memo. 2. Board of Directors: Authorize the Board President to Submit Comments Regarding the USDOJ NPRM Concerning Nondiscrimination on the Basis of Disability in State and Local Government Services, as contained in Attachment A to this memo and as modified by the Parataransit Committee. 3. Authorize the Accessibility Advisosry Committee (AAC) to submit comments directly to the Docket Clerk indicating that the comments developed do not represent the comments of the District or the District Board of Directors. Justification for Same Day Board Action: Section 5.5.4 permits, under certain circumstances, for an item considered by a Standing Committee to be considered on the same day as the action by the Standing Committee. The pertinent portions of the
BOARD ACTION:
Approved as Recommended [ ] Approved with Modification(s) [ ]
Other
[ ]
The above order was passed on: . Linda A. Nemeroff, District Secretary By
GM Memo No. 08-190 Meeting Date: August 6, 2008 Page 2 of 3 section require: (1) the Board President to concur that extenuating circumstances require Board consideration of the item; (2) the extenuating circumstances are communicated to the Board in writing prior to the consideration of the item; and (3) a majority of the Board concur that extenuating circumstances exist and the item requires the Board’s immediate consideration. The extenuating circumstances justifying joint consideration of this item are: Comments on the NPRM are due to the USDOJ on August 18, 2008. The Board will not be meeting again until September 10th. Consequently, this does not allow adequate time to present the item to the Paratransit Committee and the Board on separate days before the USDOJ deadline. The Board President was notified of the extenuating circumstances on July 30, 2008, and agreed to same day consideration of the item at the Paratransit and Board meetings on August 6, 2008. Staff recommends that a majority of the Board concur that extenuating circumstances exist and the item requires the Board’s immediate consideration.
Fiscal Impact: None Background/Discussion: The Amercans with Disabilities Act (ADA) broadly protects the rights of individuals with disabilities. Titles II and III of the ADA were issued by the USDOJ on July 26, 1991, as part of a final rule implementing the Americans with Disabilities Act of 1990. Title II applies to state and local governments, and protects individuals with disabilities from discrimination in services, programs, and activities. Public transportation services are covered by Title II, Subtitle B of the ADA, as well as by the Department of Transportation (DOT) 49 CFR Part 37. Where not covered by Subtitle B, the USDOJ rule applies. The USDOJ is issuing this notice of proposed rulemaking (NPRM) in order to adopt enforceable accessibility standards under the ADA that are consistent with guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board (Access Board). In addition to the Access Board issuance, the Americans with Disabilities Act Accessibility Guidelines (ADAAG) document was updated in 2004, completing a long term effort to facilitate ADA compliance and enforcement by eliminating inconsistencies among federal accessibility requirements and state and local building codes. The USDOJ is thus publishing a NPRM in order to adopt the 2004 ADAAG as its proposed standards for Title III entities, that is any and all business and government agencies subject to Title II and III of the ADA, to make amendments to the Title III
GM Memo No. 08-190 Meeting Date: August 6, 2008 Page 3 of 3 regulation for consistency with Title II, and to make amendments that reflect the experience of 16 years of ADA enforcement. This NPRM proposes updates to the current regulations. It defines, clarifies and/or modifies some of the existing regulatory language and deletes obsolete rules. In the past, the AC Transit Board of Directors has either commented on NPRMs relating to the ADA, and/or has supported the Accessible Advisory Committee (AAC) comments on accessibility issues that were addressed by a NPRM. Comments regarding this NPRM must be submitted to the USDOJ by August 18, 2008. Due to the timing of the receipt of the NPRM, and the schedule of AAC and Board meetings, the NPRM could not be provided to the AAC in time for that body to fully consider the contents at its July meeting. Therefore, the District has prepared comments on the NPRM for Board consideration without the benefit of substantive AAC input. The majority of the proposals in the NPRM are not relevant to the District’s delivery of fixed route and paratransit service. Accordingly, the comments in Attachment A are restricted to those sections of the NPRM that have direct applicability to the District. Prior Relevant Board Actions/Policies: Comments on selected proposals in Previous NPRMs – (re: ADA rule changes): GM Memo 94-301, Oct 1994 GM Memo 96-23, Jan 1996 GM Memo 06-167, July 2006 Attachments: Attachment A:
AC Transit Comment Letter regarding ADA NPRM
Approved by:
Rick Fernandez, General Manager
Reviewed by:
Nancy Skowbo, DGM, Service Development
Prepared by:
Mallory Nestor-Brush, Accessible Services Manager Francis Masson, Accessible Services Specialist
Date Prepared:
August 6, 2008
GM Memo 08-190 Attachment A (Rev)
July 28, 2008
ADA NPRM PO Box 2846 Fairfax, VA 22031-0846 Disability Rights Section, Civil Rights Division U.S. Department of Justice 1425 New York Avenue, N.W., Suite 4039 Washington, DC 20005 Re:
NPRM: CRT Docket No. 105; AG Order No. 2967-2008, RIN 1190-AA46 28 C.F.R. Part 35; Fed. Reg. Vol. 73, No. 117 (June 17, 2008)
Nondiscrimination on the Basis of Disability in State and Local Government Services; Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities; Proposed Rules Comments of a Public Transit District and ADA Paratransit Provider Dear Docket Clerk: Alameda-Contra Costa Transit District (AC Transit) is pleased to provide comments on the Notice of Proposed Rulemaking (NPRM) proposal to revise ADA regulations under Title II and Title III of the Americans with Disabilities Act (ADA). AC Transit is a public transit district furnishing bus and paratransit service in Oakland and surrounding cities in the San Francisco Bay Area. AC Transit operates approximately 650 buses in fixed-route service, and employs over 1,200 bus operators. AC Transit is also the primary participant in the East Bay Paratransit Consortium (EBPC). In an arrangement with the Bay Area Rapid Transit District (BART), the EBPC provides ADA mandated paratransit service within the overlapping service area of these two Districts. In reviewing the NPRM, AC Transit found that the proposed standards are primarily directed toward public entities whose functions and services are significantly different in most cases from those of public transportation providers. The majority of the proposed rulemaking does not apply to AC Transit’s fixed route transit or paratransit service delivery obligations. Accordingly, AC Transit’s
comments will be limited to those areas of the NPRM that would have a direct impact on service delivery: • • •
Wheelchairs/other power driven mobility devices Service animals DOJ questions contained in the NPRM that are relevant to transit
On September 1, 2005, the US Department of Transportation, through its Disability Law Coordinating Council (DLCC), issued a Disability Law Guidance on the use of “Segways” on Transportation Vehicles. It states that “….a Segway, when used by a person with a disability as a mobility device, is part of the broad class of mobility aids that Part 37 (49CFRPart 37, section 37.3) intends will be accommodated.” It also says that “this guidance represents the official views on this matter.” In June of 2007 AC Transit, along with many public transit operators, submitted comments responding to an NPRM issued by the Architectural and Transportation Barriers Compliance Board (Access Board) with proposed revisions to the ADA Guidelines for Transportation Vehicles. AC Transit raised questions regarding the DLCC as an entity and the binding force of the “guidance” issued. In short, the DLCC is an entity not established by statute, whose members are not accountable to any public constituency and whose decisions and pronouncements suggest mandatory compliance but without any established authority. An excerpt from the letter stated “…given no express or apparent reason for the creation of DLCC by regulation, we are concerned that it may be intended to circumvent the Administrative Procedures Act (APA) and the recent amendment to the Federal Transit Act in section 3032 (l) of SAFETEA-LU, enacted in August 2005. AC Transit maintains its position on the DLCC. Since the issuance of the guidance, carrying Electronic Personal Assistive Mobility Devices (EPAMDs) on public transit has become a very topical and controversial issue in the transit industry. Although the most common example, the Segway, was not designed for use as a mobility aid, some persons with disabilities have adopted it for that purpose. Several Bay Area and other transit operators are only now developing or have only recently adopted policies related to this device, because the design and operation of the device differs significantly from any other current device, and identified safety risks have been associated with it. The Segway cannot and should not be considered a “common wheelchair” for public transit purposes but considered included in the broader class of mobility devices. AC Transit staff and Accessibility Advisory Committee (AAC) members are currently developing a policy proposal/recommendation for AC Transit’s Board of Directors’ consideration for carrying EPAMDs on AC Transit vehicles.
The sections below contain AC Transit’s response to the questions in this NPRM relating to service animals, and to the definition of mobility devices, including Power-Driven Mobility Devices (PDMDs) as distinct from the EPAMD’s discussed above. USDOJ: Question 8: Please comment on the proposed definition of other Power-Driven Mobility Devices (PDMDs). Is the definition overly inclusive of power-driven mobility devices (PDMDs) that may be used by individuals with disabilities? Response: Yes, the definition of other power-driven mobility devices is overly inclusive. Again, in June 2007 AC Transit supported continuation of the current definition of a “common wheelchair” as defined by the ADA, with the three-dimensional volume and weight limitations. AC Transit reaffirms agency support of this definition. Transit operators should be permitted to develop a screening process to determine eligibility for, and to reasonably limit PDMD use on public transit vehicles, if, after due consideration, they conclude that their particular operating conditions warrant some service limitations. USDOJ: Question 9: Should the Department clarify the phrase “providing minimal protection” in the definition or remove it? Are there any circumstances where a service animal providing “minimal protection” would be appropriate or expected? Response: Service animals are trained to perform a function which the person with a disability is prevented from doing because of a disability. While external protection which could be provided by a service dog may be appropriate in some circumstances, for example, individuals who experience seizures or diabetes, training to be aggressive/protective was not intended per the USDOT’s regulation clarification. The service animal should be required to perform a physical function in addition to “minimal protection” in order to qualify as a service animal. Otherwise, the words ”minimal protection” should be deleted. “Aggressive” protection by itself is not an appropriate qualifier for a service animal. Additional language should be provided which gives a clear definition of a service animal. The language should establish qualifying criteria to define the functions a service animal performs. The modified language would reduce
operator/passenger disputes over time, by providing a clear statement of definition and function of service animals. USDOJ: Question 10: Should the Department eliminate certain species from the definition of “service animal”? If so, please provide comment on the Department's use of the phrase “common domestic animal” and on its choice of which types of animals to exclude. Response: Yes, the suggested additional clarification that a service animal does not include wild animals (including nonhuman primates born in captivity), farm animals, reptiles, ferrets, amphibians, rodents, etc. is reasonable. Wild or exotic animals were not anticipated, nor intended, when the service animal rule was being developed. The elimination of farm animals is not intended to exclude miniature horses . Miniature horses are able to be trained to do work or perform tasks and are an option for those individuals who are allergic to dogs. USDOJ: Question 11: Should the Department impose a size or weight limitation for common domestic animals, even if the animal satisfies the “common domestic animal” prong of the proposed definition? Response: Yes. Carrying excessively large animals, trained or not, could create extremely difficult situations for transit operators and for other passengers who may be present. As it is possible that some individuals could train a St. Bernard, Irish Wolfhound, Great Dane, or other excessively large domestic animal, as a service animal and meet the letter of the regulation, it is reasonable to specify a reasonable weight restriction for service animals. USDOJ: Question 12: As explained above, the definition of “wheelchair” is intended to be tailored so that it includes many styles of traditional wheeled mobility devices (e.g., wheelchairs and mobility scooters). Does the definition appear to exclude some types of wheelchairs, mobility scooters, or other traditional wheeled mobility devices? Please cite specific examples if possible. Response: It is AC Transit’s opinion that the definition does not exclude different types of wheelchairs, mobility scooters, or other traditional wheeled mobility devices. If anything, the definition is overly inclusive. AC Transit has had the repeated experience of being expected to carry persons using mobility devices that were not designed or intended to be carried on public transit, because the consumers
claim that the devices are actually mobility devices which they use because of their disability. Often the size and shape of the devices makes them entirely inappropriate for transport on transit vehicles. For example, AC Transit has recently been asked to carry three-wheeled tricycles and two wheeled golf type powered bicycles on its vehicles. Power wheelchairs and other mobility aids have increased in size, weight, power and variety, absolutely without regard to the capacities of transit vehicles, wheelchair lifts/ramps and available securement systems. Again, AC Transit supports the maintenance of the definition of a “common wheelchair” as defined by the ADA for public transit purposes, recognizing that persons are transported using other mobility devices that do not fall within the definition but that meet the volume and weight limitations as established. USDOJ: Question 13: Should the Department expand its definition of “wheelchair” to include Segways? Response: No. It is not a chair. The rider stands, and does not sit on it. It is and should be considered as part of the broad class of mobility aids. USDOJ: Question 14: Are there better ways to define different classes of mobility devices, such as the weight and size of the device that is used by the Department of Transportation in the definition of “common wheelchair”? Response: A mobility device may be defined and/or categorized according to any number of criteria including, but not limited to: relative weight, size, the number of wheels, or whether or not it has wheels (i.e: crutches, canes and walkers), or whether it is manual or power operated. Most importantly, the definition should include a three-dimensional volume limitation, similar to the Department of Transportation (DOT) definition. USDOJ: Question 15: Should the Department maintain the non-exhaustive list of examples as the definitional approach to the term “manually powered mobility aids”? If so, please indicate whether there are any other non-powered or manually powered mobility devices that should be considered for specific inclusion in the definition, a description of those devices, and an explanation of the reasons they should be included. Response: Maintaining a non-exhaustive list of examples for a definitional approach to the term “manually powered mobility aids” will facilitate transit entities’ understanding
and implementation of related service requirements. The list should state that it includes, but is not limited to these examples. USDOJ: Question 16: Should the Department adopt a definition of the term “manually powered mobility aids”? If so, please provide suggested language and an explanation of the reasons such a definition would better serve the public. Response: The following definition is suggested: A manually powered mobility aid is a device which is used by a person with a disability to assist or provide locomotion, and which is operated by the owner or his/her human or animal assistant, and which is not powered by engines, batteries, electricity, or other artificial mechanical means. Having a definition will reinforce the concept that persons with disabilities may use many acceptable types of mobility aids, but that they are not restricted to a limited and specific number and/or type of aid that must be used. USDOJ: Question 17: Are there types of personal mobility devices that must be accommodated under nearly all circumstances? Conversely, are there types of mobility devices that almost always will require an assessment to determine whether they should be accommodated? Please provide examples of devices and circumstances in your responses. Response: Examples of personal mobility devices that must be accommodated under nearly all circumstances would be walkers, canes, and manual wheelchairs. In the case of power wheelchairs, when used by an obese consumer, and reclining wheelchairs, if the consumer indicates that they normally use the device in an extended position, it is reasonable to inquire as to the weight/length of the chair when occupied and determine whether it can be safely transported and secured on a public transit vehicle. Again, for public transit purposes the dimension and weight limitation, as defined in the ADA, should be maintained. USDOJ: Question 18: Should motorized devices that use fuel or internalcombustion engines (e.g., all-terrain vehicles) be considered personal mobility devices that are covered by the ADA? Are there specific circumstances in which accommodating these devices would result in a fundamental alteration? Response: No. Motorized devices that use fuel or are powered by internal-combustion engines would most likely be intended for external use, and unsuitable for use on transit vehicles. Their exhaust could result in oxygen deprivation and cause severe breathing problems for other passengers in an enclosed environment.
USDOJ: Question 19: Should personal mobility devices used by individuals with disabilities be categorized by intended purpose or function, by indoor or outdoor use, or by some other factor? Why or why not? Response: The entire wheelchair, mobility device, safety standards, securement issues, etc. should be considered by a newly created stakeholders committee. This stakeholder committee should be empowered by the federal government and comprised of all interested parties including but not limited to, wheelchair and lift manufacturers, transit providers, consumers, social service agency representatives and members of the medical profession. The stakeholder committee should establish criteria and standards for manufacture, operation (how they function), transportation and securement methods, usage, to whom they are prescribed and for what conditions and purpose the mobility device was intended. Within the transit industry several organizations currently exist whose function is to standardize wheelchair manufacturing and securement systems, specifically for public transit. The work completed by these groups should be reviewed. In general, AC Transit requests that the time period allowed to submit comments to this and any future NPRM’s be extended. Given AC Transit’s Advisory Board and Board of Director’s meeting schedule it is often difficult to conduct a thorough staff analysis and seek meaningful input to the NPRM, in a timely fashion. Again, AC Transit appreciates this opportunity to comment on the Department of Justice’s Notice of Proposed Rulemaking proposal to revise ADA regulations under Title II and Title III. Sincerely,
H. E. Peeples, President AC Transit Board of Directors
C:
Board of Directors R. Fernandez, General Manager K. Scheidig General Counsel N. Skowbo, Deputy General Manager, Service Development M. Brush, Accessible Services Manager
