March 29, 2012
Re: FTA Complaint Number 12-0042
Dear [name withheld]:
This letter responds to your complaint against the Southeastern Pennsylvania Transportation Authority (SEPTA). The Federal Transit Administration (FTA) Office of Civil Rights is responsible for civil rights compliance and monitoring, which includes ensuring that providers of public transportation are in compliance with the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973, and the U.S. Department of Transportation’s (DOT) implementing regulations at 49 CFR Parts 27, 37, 38 and 39.
In the FTA complaint investigation process, we analyze allegations for possible ADA deficiencies by the transit provider. If FTA identifies what may be a violation, we first attempt to provide technical assistance to assist the public transit provider in complying with the ADA. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transit provider which may result in the termination of Federal funds. FTA also may refer the matter to the U.S. Department of Justice for enforcement.
Each response is developed based on the specific facts and circumstances at issue. A determination resulting from a review of these facts is not intended to express an opinion as to the overall ADA compliance of that transit provider.
In your complaint, filed by Heather Eggert as your legal representative, you alleged that: (1) as a result of the worsening of your condition from when you originally were granted conditional paratransit eligibility on February 22, 2010, you requested additional paratransit service over a year later on January 6, 2011; and (2) based on the functional assessment report, your application for additional services was denied and SEPTA refused to allow you to appeal that determination.
The DOT ADA regulations at 49 CFR 37.125 set broad requirements that all transit agencies must follow. Section 37.125(f) explains that transit agencies may require recertification of the eligibility of ADA paratransit eligible individuals at reasonable intervals. Appendix D to Part 37 further clarified:
As the mention of an expiration date implies, certification is not forever. The entity may recertify at reasonable intervals to make sure that changed circumstances have not invalidated or changed the individual’s eligibility. In the Department’s view, a reasonable interval for recertification is probably between one and three years.
Additionally, 49 CFR 37.123(e) describes different categories of paratransit eligibility, outlining how a person may be ADA paratransit eligible for some stops but not others. Disability alone does not determine paratransit eligibility; the decision is based on the applicant’s functional ability to use the fixed route bus and is not a medical decision. This ability is likely to change with differing circumstances. Appendix D to 49 CFR 37.125 explains:
The substantive eligibility process is not aimed at making a medical or diagnostic determination. While evaluation by a physician (or professionals in rehabilitation or other relevant fields) may be used as part of the process, a diagnosis of a disability is not dispositive. What is needed is a determination of whether, as a practical matter, the individual can use fixed route transit in his or her own circumstances. That is a transportation decision primarily, not a medical decision.
Please be advised that FTA does not normally get involved in the certification process for eligibility to use paratransit service or in the certification appeal. FTA typically does not second-guess a transit agency’s eligibility determination because that is the process of the local appeal. However, FTA would become involved in a situation where the transit agency is not acting in accordance with the certification and appeal process requirements.
The DOT ADA regulations at 49 CFR 37.125(g) require that transit providers establish an administrative appeals process through which individuals who are denied eligibility can obtain review of the denial.
Under SEPTA’s paratransit eligibility framework, if a rider’s health, functional abilities, and/or their use of assistive devices changes before the term of their eligibility expires, riders may report any changes to SEPTA, and in turn SEPTA’s practice is to request supporting documentation from the rider’s treating professional. In some situations, SEPTA may require that a functional assessment be conducted. When riders report changes in their functional abilities significantly affecting their ability to access and/or use regular fixed-route service, SEPTA’s practice is to request supporting documentation of this from their treating professional. Based on the information received, SEPTA may request that the rider undergo functional assessment(s). These materials are reviewed and compared with the rider’s applications and assessments on file. If it appears that a substantial change has occurred, affecting the rider’s functional ability to use the regular service, the rider’s conditions of eligibility will be changed.
Despite not calling this process a “reapplication” because you did not actually fill out a new application, this was essentially a reapplication. You submitted new medical documentation, underwent a functional assessment with SEPTA’s independent contractor, and received a determination letter from SEPTA on May 2, 2011, which compared your 2010 conditional approval and the 2011physical assessment.
Riders can reapply at any time, and for all intents and purposes, you reapplied. SEPTA’s policy denying you the opportunity to appeal a reapplication is not consistent with DOT ADA requirements. In light of the concerns raised in your complaint, we are following up with SEPTA separately. However, the investigative portion of this complaint has concluded.
If you have any questions, please contact me or Aaron Meyers at (202) 366 3055 or via e-mail at aaron.meyers@dot.gov. Any future correspondence should reference FTA Complaint No. 12-0042.
Sincerely,
John R. Day
ADA Team Leader
Office of Civil Rights
cc:
Heather Eggert, Legal Representative for [name withheld]
SEPTA
FTA Region 3
Letter to Transit Provider
March 29, 2012
Re: FTA Complaint No. 12-0042
Dear Mr. Casey:
Enclosed is a copy of the Federal Transit Administration (FTA) Office of Civil Rights’ disposition of the above-referenced complaint against the Southeastern Pennsylvania Transportation Authority (SEPTA) alleging violations of the Americans with Disabilities Act of 1990 (ADA). The complainant, [name withheld], raised issues regarding her paratransit eligibility and due process rights.
The FTA Office of Civil Rights is responsible for civil rights compliance and monitoring, which includes ensuring that providers of public transportation are in compliance with the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973, and the U.S. Department of Transportation’s (DOT) implementing regulations at 49 CFR Parts 27, 37, 38, and 39.
In the FTA complaint investigation process, we analyze allegations for possible ADA deficiencies by the transit provider. If deficiencies are identified, they are presented to the transit provider and assistance is offered to correct them within a predetermined timeframe. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transportation provider. FTA also may refer the matter to the U.S. Department of Justice for enforcement.
We appreciate the thoroughness and promptness of the response from SEPTA to our information request during our investigation. Our subsequent conference call with SEPTA staff also helped us gain a more complete picture of [the complainant’s] situation. However, we must clarify a few points regarding your paratransit recertification policy.
The DOT ADA regulations at 49 CFR 37.125 set broad requirements that all transit agencies must follow. Section 37.125(f) explains that transit agencies may require recertification of the eligibility of ADA paratransit eligible individuals at reasonable intervals. Appendix D to Part 37 further clarified:
As the mention of an expiration date implies, certification is not forever. The entity may recertify at reasonable intervals to make sure that changed circumstances have not invalidated or changed the individual’s eligibility. In the Department’s view, a reasonable interval for recertification is probably between one and three years.
Additionally, 49 CFR 37.123(e) describes different categories of paratransit eligibility, outlining how a person may be ADA paratransit eligible for some stops but not others. Disability alone does not determine paratransit eligibility; the decision is based on the applicant’s functional ability to use the fixed route bus and is not a medical decision. This ability is likely to change with differing circumstances. Appendix D to 49 CFR 37.125 explains:
The substantive eligibility process is not aimed at making a medical or diagnostic determination. While evaluation by a physician (or professionals in rehabilitation or other relevant fields) may be used as part of the process, a diagnosis of a disability is not dispositive. What is needed is a determination of whether, as a practical matter, the individual can use fixed route transit in his or her own circumstances. That is a transportation decision primarily, not a medical decision.
The DOT ADA regulations at 49 CFR 37.125(g) also require that transit providers establish an administrative appeals process through which individuals who are denied eligibility can obtain review of the denial. Anytime an applicant is found ineligible or has their eligibility limited in any way, the transit provider must provide an opportunity to appeal that determination. Of course, if an applicant misses the appeal deadline, he or she is free to reapply at any time for eligibility, and then if denied, may file an appeal.
In the instant case, SEPTA has acknowledged on page 26 of its ADA paratransit application form that upon receiving new information regarding a change in an ADA paratransit certified rider’s functional mobility, it may review and change the rider’s paratransit eligibility status. Furthermore, in SEPTA’s February 10, 2012 letter to FTA responding to FTA’s information request, SEPTA states that “this functional assessment could have changed [the complainant’s] eligibility status.” However, SEPTA argues in its response that [the complainant] cannot appeal her functional assessment, despite the fact that she essentially reapplied for eligibility and wants to challenge the reapplication denial.
When [the complainant] recently went through a functional assessment prior to her scheduled recertification date in 2013, she did so based on changed circumstances to her health and/or functional abilities. Despite not calling this process a reapplication because [the complainant] did not actually file the paperwork for an application, this was essentially a reapplication. [The complainant] submitted new medical documentation, underwent a functional assessment with SEPTA’s independent contractor, and received a determination letter from SEPTA on May 2, 2011, which compared her 2010 conditional approval and her 2011physical assessment. [The complainant] must be allowed to appeal the May 2011 determination.
SEPTA quoted from its application form on page 5 of the “Position Statement and Response to FTA Complaint #12-0042,” submitted to FTA, highlighting the burden on riders, “I agree to notify SEPTA if my condition changes . . . I understand if SEPTA or its authorized agent received new information regarding a change in my functional mobility, my eligibility status may be reviewed and changed.” This statement suggests that SEPTA is permitted to modify the applicant’s rights to paratransit eligibility between recertification periods.
Since SEPTA made an adjudicatory decision on what was really [the complainant’s] reapplication for paratransit, SEPTA must also provide her with the procedural due process requirements under the law. This includes an opportunity to appeal SEPTA’s May 2011 decision to deny [the complainant] full, unconditional eligibility, pursuant to 49 CFR 37.125(g) of the DOT ADA regulations. SEPTA has attempted to draw an impermissible distinction between a reapplication for paratransit service and a reevaluation of functional ability in between scheduled recertification periods.
By sending this letter, FTA requests that SEPTA clarify its reapplication process, as well as how it will ensure that [the complainant] can appeal the eligibility determination made by SEPTA in May 2011. Please be aware that people can reapply before the recertification period, and must be given due process in those instances. SEPTA’s response should be sent to my attention within 30 days of the date of this letter at the address above.
If you have any questions regarding this inquiry, please contact me or Aaron Meyers of my staff at (202) 366-3055 or via e-mail at aaron.meyers@dot.gov. Please include the FTA Complaint No. 12-0042 in any correspondence regarding this complaint. Thank you for your continued assistance.
Sincerely,
John R. Day
ADA Team Leader
Office of Civil Rights
Enclosure
cc:
Lorraine McKenzie, SEPTA
FTA Region 3