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5 developed through the public planning and participation process There are means other than sanctions, however, by which a for the entity's paratransit plan, and the result reflected in the plan transit provider can deal with a `no-show' problem in its system. submission to FTA. Providers who use `real-time scheduling' report that this tech- nique is very effective in reducing no-shows and cancellations, It is very important to note that sanctions could be imposed and increasing the mix of real-time scheduling in a system can only for a `pattern or practice' of missed trips. A pattern or prac- probably be of benefit in this area. Calling the customer to recon- tice involves intentional, repeated, or regular actions, not iso- firm a reasonable time before pickup can head off some prob- lated, accidental, or singular incidents. Moreover, only actions lems, as can educating consumers to call with cancellations within the control of the individual count as part of a pattern or ahead of time. Training of dispatch and operator personnel can practice. Missed trips due to operator error are not attributable to help to avoid miscommunications that lead to missed trips. the individual passenger for this purpose. If the vehicle arrives substantially after the scheduled pickup time, and the passenger In summary, some of the important additional aspects of has given up on the vehicle and taken a taxi or gone down the street to talk to a neighbor, that is not a missed trip attributable no-show policies included in this excerpt from the interpre- to the passenger. If the vehicle does not arrive at all, or is sent to tive section of the regulation are that: the wrong address, or to the wrong entrance to a building, that is not a missed trip attributable to the passenger. There may be The specifics of the no-show policy must be developed other circumstances beyond the individual's control (e.g., a sud- den turn for the worse in someone with a variable condition, a through the public planning and participation process. sudden family emergency) that make it impracticable for the A "pattern or practice" of missed trips involves inten- individual to travel at the scheduled time and also for the indi- tional, repeated, or regular incidents. vidual to notify the entity in time to cancel the trip before the vehicle comes. Such circumstances also would not form part of Missed trips caused by scheduling errors or vehicles arriv- a sanctionable pattern or practice. ing late for pick-ups should not be held against the rider. Issues related to disability or to sudden emergencies Once an entity has certified someone as eligible, the individ- that make it impracticable for riders to keep scheduled ual's eligibility takes on the coloration of a property right.... Consequently, before eligibility may be removed `for cause' pick-ups or to call and cancel in a timely way can also under this provision, the entity must provide administrative due be considered "beyond the rider's control." process to the individual. ADA paratransit eligibility is to be treated at the level of a "property right" and the administrative process used in If the entity proposes to impose sanctions on someone, it must first notify the individual in writing (using accessible for- imposing sanctions must be careful to provide full due mats where necessary). The notice must specify the basis of the process. proposed sanction (e.g., Mr. Smith scheduled trips for 8 a.m. on Before sanctions can be imposed, transit agencies must May 15, 2 p.m. on June 3, 9 a.m. on June 21, and 9:20 p.m. on July 10, and on each occasion the vehicle appeared at the sched- notify riders in writing and list, in detail, the no-shows uled time and Mr. Smith was nowhere to be found) and set forth that have been recorded against them. the proposed sanction (e.g., Mr. Smith would not receive service An informal hearing process must be provided for rid- for 15 days). ers to dispute the no-shows recorded or to offer reasons The entity would provide the individual an opportunity to be that the missed trips were beyond their control. heard (i.e., an in-person informal hearing before a decision Transportation to this hearing must be provided, if maker) as well as to present written and oral information and needed. arguments. All relevant entity records and personnel would be After this informal hearing, if sanctions are to be made available to the individual, and other persons could testify. It is likely that, in many cases, an important factual issue would imposed, riders must be notified in writing of this and be whether a missed trip was the responsibility of the provider given the specific reasons for the decision. or the passenger, and the testimony of other persons and the Riders then must be allowed to request a formal appeal provider's records or personnel are likely to be relevant in decid- ing this issue. While the hearing is intended to be informal, the (under appeal procedures similar to those used when individual could bring a representative (e.g., someone from an applicants are denied eligibility). advocacy organization, an attorney). Access to the ADA complementary paratransit service must be continued through the hearing and appeal The individual may waive the hearing and proceed on the basis of written presentations. If the individual does not process. respond to the notice within a reasonable time, the entity may Approaches other than sanctions and suspensions for make, in effect, a default finding and impose sanctions. If there addressing no-show problems are encouraged. is a hearing, and the individual needs paratransit service to attend the hearing, the entity must provide it. We would emphasize that, prior to a finding against the individual after RECENT FEDERAL TRANSIT ADMINISTRATION this due process procedure, the individual must continue to GUIDANCE AND INTERPRETATIONS receive service. The entity cannot suspend service while the matter is pending. FTA is responsible for ensuring compliance with ADA and The entity must notify the individual in writing about the U.S.DOT regulations. As part of its compliance efforts, FTA, decision, the reasons for it, and the sanctions imposed, if any. through its Office of Civil Rights, reviews formal complaints Again, this information would be made available in accessible formats. In the case of a decision adverse to the individual, the filed with its office and conducts periodic reviews of fixed- administrative appeals process of this section would apply. The route transit and ADA complementary paratransit services sanction would be stayed pending an appeal. operated by grantees. The information included here represents

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6 publicly available regulatory interpretations and guidance many systems rely on a certain percent of cancellations to create offered by FTA based on ADA paratransit compliance the slack time in schedules needed to address same day service delivery issues, such as routes running late. This is particularly reviews, related transmittal letters and letters of findings, and true in systems [such as this transit system] where floater vehi- responses to consumer complaints that pertain to the topic of cles are not used and same day service issues are largely handled no-show and late cancellation policies. through utilization of available slack time on runs. Much of the slack time initially created by cancellations is therefore eventu- ally used effectively. This may not be the case, though, if can- Two primary concerns related to no-show/late cancella- cellations are made close to the scheduled pick-up time (e.g., less tion policies have been identified by FTA during recent than 12 hours before the scheduled pick-up time). reviews of grantee ADA complementary paratransit pro- grams. The first issue is concerned with late cancellation As indicated in this correspondence, late cancellations policies. The second issue is concerned with establishing a can be considered a kind of missed trip as long as they are pattern or practice of no-shows. the "functional equivalent" of a no-show. According to FTA, cancellations made after 5 p.m. the day before ser- vice are not the functional equivalent of a no-show; how- Late Cancellations ever, cancellations made only 1 to 2 h before the scheduled pick-up might be considered the functional equivalent of a "[The transit system] should reconsider its policy of suspending persons who do not cancel by 5:00 PM on the day before service no-show. and should ensure that its definition of a late cancellations is operationally equivalent to a no-show in terms of the negative impact on the service" (FTA October 1993). Pattern or Practice of No-Shows In a November 2002 review of ADA paratransit service "A pattern or practice involves intentional, repeated, or regular actions, not isolated, accidental, or singular incident" (FTA provided by a transit system, FTA stated that a no-show pol- October 2003). icy that counted cancellations made after 5 p.m. on the day before service in its determination of a pattern or practice of In the same transit system review, FTA provided addi- missed trips was not consistent with the regulations. The tional guidance on what level of no-shows might be consid- finding specifically stated that ered a pattern or practice of abuse of the system. The regulations allow transit systems to suspend service for a Considering only six no-shows or late cancellations in a six- reasonable period for riders who abuse the system by regularly month period to be excessive and an abuse of the service may `no-showing' for scheduled trips. While transit agencies have in unreasonably limit service to ADA eligible customers. Appen- recent years also considered `late cancellations' to be an abuse dix D of 49 CFR Part 37 indicates that suspensions of eligibil- of the system and have considered this in their suspension poli- ity for no-shows are intended to prevent a `pattern or practice cies, the effects of a late cancellation should be operationally of "no-shows."' It is further noted, `a pattern or practice equivalent to a no-show in terms of the negative impact on the involves intentional, repeated, or regular actions, not isolated, service. Cancellations made several hours in advance of the accidental, or singular incidents.' [The transit system] should scheduled pick-up time would still seem to allow the system's reconsider this policy and should also consider analyzing over- dispatchers to use the open vehicle time to respond to same-day all frequency of riders' use of the service as well as the num- operating issues. Systems, which operate without `floater' vehi- ber of no-shows when determining whether there is a sufficient cles or with limited `floater' capacity, often rely on same-day pattern or practice of no-shows to justify a suspension (FTA cancellations to be able to operate reliably and on-time. [The October 2003). transit system] should reconsider its policy of suspending per- sons who do not cancel by 5:00 PM the day before service and should ensure that its definition of a late cancellation is opera- In its March 2004, quarterly progress report, the transit tionally equivalent to a no-show in terms of its impact on the ser- system changed its no-show policy so that 10 violations vice (FTA October 2003). within a 6-month period may result in a suspension of 2 weeks, and 15 violations within the same rolling 6-month In a June 2004 letter, from FTA, this position was reiterated: period may result in a suspension of 3 weeks. In a December 2004, letter FTA stated that The regulations permit service suspension only for customer missed trips and not for late cancellations such as described in [the paratransit system's] policies. FTA recognizes late can- We remain concerned that [the transit system's] revised policy cellations that are the `functional equivalent' of a missed trip, could result in suspension of service for regular riders who, due or customer no-show, in service suspension policies. FTA to the frequency of their trips, amass 10 to 15 violations, but at does not consider cancellations after 5:00 PM on the day the same time do not establish a pattern or practice of no-shows. before the service day the functional equivalent of a trip To appropriately determine such a pattern or practice, we missed by a customer. encourage you to consider the frequency of use by the rider. While it is recognized that cancellations after 5:00 PM affect schedules that are created a day in advance, FTA does not agree Automatic Cancellation of Return Trips that the slack time initially created by cancellations received well in advance of the actual pick-up time have the same effect "We find [the transit system's] policy to cancel automatically a on capacity and costs as riders not boarding after vehicles have return trip if the rider was a `no-show' for the first half of the trip already traveled to the pick-up location (missed trips). In fact, not acceptable" (FTA February 2001).

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7 FTA also has provided guidance on scheduling and dis- In response to this finding, the transit agency drafted a patching procedures related to rider no-shows. In a letter of new policy based on a point system, which was submitted to finding from February 2001, from FTA to a costumer, related FTA in a quarterly report. However, in a December 2004, let- to a complaint that a return ride was automatically canceled ter to the transit agency, FTA provided a clarification of its by the transit system after the rider was recorded as a request for corrective action: no-show on the "going" portion of the roundtrip, the FTA stated: "We find [the transit agency's] policy to cancel auto- The proposed policy detailed in [the transit agency's] July 15, matically a return trip if the rider was a `no-show' for the first 2004, letter proposes a first suspension (for three days) for eight (8) accumulated points in a 180-day period. The suspen- half of the trip not acceptable." sion could therefore be triggered for a total of four no-shows, with two points given for each no-show. The prior policy, Then, in a follow-up letter in April 2001, from FTA to the which FTA questioned, allowed for a suspension after six no- same transit agency, FTA stated: "We ask that you take every shows in a calendar year. The proposed policy seems to be only a marginal change. Under the proposed policy, a person step possible to ensure that an assumed `no-show' is in fact traveling five days a week (10 one-way trips a week) could be an actual `no-show' before canceling the return trip." suspended for no-showing only 1.5% of their scheduled trips. We still feel that this rate of no-shows does not constitutes a `pattern or practice' as intended by the regulations. To appro- Other Related FTA Findings priately determine a `pattern or practice,' we also would sug- gest that the new policy consider the frequency of use of the service by the rider. Additionally, several other recent ADA compliance reviews have cited issues relating to no-show/late cancellation poli- The proposed policy also escalates the period of suspension cies and practices. These letters included findings related to from three days (for 8 points, or 4 no-shows) to one year (for 21 the frequency of use (i.e., establishing a pattern or practice of points, or 11 no-shows). Section 37.125(h) of 49 CFR Part 37 allows for a suspension for `a reasonable period of time.' Given no-shows), duration of suspension, and late cancellations as the importance of paratransit service to an ADA paratransit eligi- the functional equivalent of no-shows. ble person, a one-year suspension for missing 11 one-way trips (or perhaps only 5 round-trips out of a potential 130 round-trips, at 5 For example, in a December 2003 letter to a transit per week) in a six-month period does not seem to be reasonable. agency, FTA requested that the agency Please review your policy regarding late cancellations to ensure In another ADA paratransit compliance review final that only late cancellations that are the functional equivalent of a report, published in October 2004, FTA included findings no-show are considered in your suspension policy and provide my related to no-shows and late cancellation policies and prac- office with your updated policy within 30 days. tices. One finding noted that: As for the suspension of service for no-shows/late cancella- tions, considering only three no-shows or six cancellations in a While the current practice appears to be appropriate, the formal 30-day period to be excessive and an abuse of the service may policy, which considers seven or more no-shows or late cancel- unreasonably limit service to ADA-eligible customers.... [the lations in a six-month period to be an abuse of the service could transit agency] should reconsider this policy and should also con- unreasonably limit service to ADA eligible customers and does sider analyzing overall frequency of riders' use of the service, as not appear to be consistent with the intent of the regulations. . . . well as the number of no-shows, when determining whether there Seven no-shows or late cancellations in a six-month period, par- is a sufficient pattern or practice of no-shows to justify a suspen- ticularly when considering a customer who uses the service fre- sion (FTA December 2003). quently, may not rise to the level of a pattern or practice as intended by the regulations and described in the associated appendix (FTA October 2004). In a later ADA paratransit compliance review of a tran- sit's agency's ADA paratransit system, FTA again expressed FTA also found that the need to consider the frequency with which riders use the service when determining whether a certain number of The regulations allow transit systems to suspend service for a no-shows or late cancellations constitute a pattern or practice reasonable period for riders who abuse the system by regularly `no-showing' for scheduled trips. While transit agencies have in of abuse of the service. The finding specifically stated that recent years also considered `late cancellations' to be an abuse of the system and have considered this in their suspension poli- A policy of considering only six missed trips in a calendar year cies, the effects of a late cancellation should be operationally to constitute a pattern or practice of abuse may unreasonably limit equivalent to a no-show in terms of the negative impact on the service to ADA eligible customers and does not appear to be con- service. Cancellations made several hours in advance of the sistent with the intent of the regulations. Appendix D of 49 CFR scheduled pick-up time would still seem to allow the system's Part 37 indicates that, `suspensions of eligibility for no-shows are dispatchers to use the open vehicle time to respond to same-day intended to prevent a "pattern or practice of `no-shows."' It is fur- operating issues. Systems, which operate without `floater' vehi- ther noted, `a pattern or practice involves intentional, repeated or cles or with limited `floater' capacity, often rely on same-day regular actions, not isolated, accidental, or singular incident.' For cancellations to be able to operate reliably and on time. [The a person traveling regularly (e.g., 10 trips a week), this level of transit agency] should reconsider its policy of suspending per- missed trips would constitute only about 1% of all scheduled sons who do not cancel by 5:00 PM the day before service and rides. Missing only one out of every 100 trips scheduled does not should ensure that its definition of a `late cancellation' is opera- seem to be a reasonable standard for defining a `pattern or prac- tionally equivalent to a no-show in terms of its impact on the ser- tice' or abuse of the service (FTA April 2004). vice (FTA October 2004).