Administration of ADA Paratransit Eligibility Appeal Programs (2018)

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12 With input from the topic panel, the principal investigator developed a survey to gather information about eligibility appeal programs from selected transit agencies. Appendix B presents a copy of the survey questions. The survey requested information about the follow- ing topics: • Paratransit service overview • Eligibility overview • Appeal program structure and administration • Appeal committee composition • Appeal hearing process • Appeal documentation • Budget and resources • Appeal outcomes • Overview comments (focusing on changes and challenges) The 45 transit agencies identified as candidates to respond to the survey included a combina- tion of agencies with which the principal investigator had a prior working relationship, agencies with a representative on the topic panel, and/or agencies recommended by members of the topic panel. The transit agencies represent a mix in terms of size and geography. Panel members received an initial draft of the survey questions for their review and com- ment. Their comments were incorporated into a revised draft of the survey. The four panel members from transit agencies tested this revised survey, provided additional comments (e.g., “unclear questions,” “need for revised sequencing of the questions”) and suggested ways to improve the presentation of the questions. Based on these comments, the principal investigator prepared a final version of the survey. Paratransit Service Overview The principal investigator used SurveyGizmo, an online survey tool, to distribute the sur- vey and collect the survey responses. A total of 37 transit agencies completed the survey (an 82% response rate). Table 1 lists these 37 transit agencies and their respective metropolitan areas. The transit agencies numbered 33 through 37 in the table are the five case example transit agencies high- lighted in Chapter 4. Figure 1 and Figure 2 present the locations of the 37 respondents. C H A P T E R 3 Survey Results

Survey Results 13 Map # * Transit Agency Service Area State 1 Eastern Contra Costa Transit Authority (Tri-Delta Transit) Antioch CA 2 Clovis Transit Clovis CA 3 East Bay Paratransit Oakland CA 4 Orange County Transportation Authority (OCTA) Orange CA 5 Gold Coast Transit District Oxnard CA 6 San Mateo County Transit District San Carlos CA 7 San Francisco Municipal Transportation Agency (SFMTA) San Francisco CA 8 Regional Transportation District (RTD) Denver CO 9 Greater Hartford Transit District (GHTD) Hartford CT 10 Washington Metropolitan Area Transit Authority (WMATA) Washington D.C. 11 Pinellas Suncoast Transit Authority (PSTA) St. Petersburg FL 12 Connect Transit Bloomington IL 13 Regional Transportation Authority (RTA) ** Chicago IL 14 Pioneer Valley Transit Authority (PVTA) Springfield MA 15 Ann Arbor Area Transportation Authority (TheRide) Ann Arbor MI 16 St. Cloud Metropolitan Transit Commission (Metro Bus) St Cloud MN 17 Kansas City Area Transportation Authority (KCATA) Kansas City MO 18 Charlotte Area Transit System (CATS) Charlotte NC 19 Fayetteville Area System of Transit (FAST) Fayetteville NC 20 Winston-Salem Transit Authority (WSTA) Winston-Salem NC 21 Southwest Ohio Regional Transit Authority (SORTA) Cincinnati OH 22 Portage Area Regional Transportation Authority (PARTA) Kent OH 23 Metropolitan Tulsa Transit Authority (Tulsa Transit) Tulsa OK 24 Chattanooga Area Regional Transportation Authority (CARTA) Chattanooga TN 25 Nashville Metropolitan Transit Authority (MTA) Nashville TN 26 Dallas Area Rapid Transit (DART) Dallas TX 27 Fort Worth Transportation Authority (FWTA) Fort Worth TX 28 Denton County Transportation Authority (DCTA) Lewisville TX 29 VIA Metropolitan Transit (VIA) San Antonio TX 30 Utah Transit Authority (UTA) Salt Lake City UT 31 Hampton Roads Transit Hampton VA 32 Spokane Transit Authority Spokane WA 33 Valley Metro Regional Public Transportation Authority (Valley Metro) Phoenix AZ 34 Regional Transportation Commission of Southern Nevada (RTC) Las Vegas NV 35 Tri-County Metro Transportation District of Oregon (TriMet) Portland OR 36 Capital Metropolitan Transportation Authority (Capital Metro) Austin TX 37 King County Department of Transportation Metro Transit Division (King County Metro) Seattle WA * See Figure 1 and Figure 2. ** The RTA conducts ADA paratransit certification and eligibility appeals on behalf of the Chicago Transit Authority and Pace Suburban Bus. Table 1. Transit agencies that participated in the survey.

Source: Figure created using GoogleMyMaps. Red stars indicate transit agencies that are case examples; blue circles indicate other survey respondents. See Figure 2 for details in northern California, Texas, and New England (where blue circles on this map overlap). Figure 1. Survey respondents.

Figure 2. Northern California, Texas, and New England survey respondents. Northern California Transit Agency Respondents Texas Transit Agency Respondents New England Transit Agency Respondents Red stars indicate transit agencies that are case examples; blue circles indicate other survey respondents. Source: Figure created using GoogleMyMaps.

16 Administration of ADA Paratransit Eligibility Appeal Programs Eligibility Overview For most transit agencies—including the survey respondents—the ADA paratransit eligibility determination process consists of the following steps: 1. The transit agency provides information on paratransit service through a website, printed material, and presentations to target markets. 2. The applicant completes a paper application. The transit agency may request the applicant to mail the completed application or bring it to an interview (Step 3). 3. The applicant visits the transit agency (or contractor) site for an in-person interview and functional assessment. A majority of transit agencies currently conduct interviews and assess- ments to gather more accurate information on applicants’ capabilities. 4. The applicant sends part of the paper application to a medical (or other) professional who provides more information on the applicant’s disabilities. The medical professional sends the completed form directly to the transit agency. (This is a common step, though an increasing number of transit agencies are relying more on their own assessments.) 5. The transit agency makes an eligibility determination. There is no regulatory time limit to making the determination; however, the U.S.DOT regulations require that, if no decision is made within 21 days after receipt of a “complete” application (steps 2, 3, and 4), an appli- cant will receive eligibility until the transit agency makes a determination (§ 37.125(c)). As a result, most transit agencies have adopted 21 days as the unofficial deadline for making a determination. 6. The transit agency sends the decision to the applicant with proper documentation (§ 37.125(d),(e)). If the determination is any status other than unconditional eligibility, the transit agency must inform the applicant of the right to appeal the decision. The survey asked the transit agencies how they divided responsibilities for three general eligibility determination tasks: interviews and assessments, determinations, and appeals. Table 2 presents the collected responses to this question. Respondents could indicate that both the agency and the contractor (and/or another entity) shared responsibility for a task. A majority of the respondents (1) did their own interviews and assessments or worked together with contrac- tors (56.8%); (2) made determinations (81.1%); and (3) handled appeals (70.3%). One agency responded “Other” for the interviews/assessments and determinations because this agency delegates the activities to a county transportation commission. For performing appeals, the “Other” responses cited a combination of staff, volunteers from the community, professionals from other government agencies, and/or paid professionals. In response to the survey question, “Who manages the eligibility appeal process on a day- to-day basis?”, 34 agencies (91.9%) said that they manage the appeal process in house. Three agencies (8.1%) said that they use a contractor. One of these three agencies uses a private transit operator, one uses the local county government, and one did not specify the contractor. The survey asked the transit agencies for the distribution of the determinations for their reg- istered riders. Figure 3 presents the distribution of transit agencies by the percent of riders with Interviews, Assessments Determinations Appeals Agency 21 30 26 Contractor 16 10 5 Other 1 1 9 Number of respondents 37 37 37 Table 2. Who performs eligibility activities.

Survey Results 17 unconditional eligibility. Three agencies did not provide data on the number of registered riders. One agency provided the total number of riders, but not the breakdown by type of eligibility. The survey asked transit agencies to provide information on the eligibility determinations made in the two most recent years. Table 3 presents the composite proportion of eligibility determinations for the two most recent years for the transit agencies. Three agencies did not provide data for this question. Among the responding agencies, 60.3% of applicants received unconditional eligibility in FY 2016; 25.9% received conditional eligibility; 8.1% received tem- porary eligibility; 0.8% received visitor eligibility; and 4.9% were found not eligible. Appeal Program Structure and Administration Table 4 presents the distribution of the type of outreach and education that transit agen- cies provide concerning the appeal program structure and administration. Agencies could select as many methods as they used. The most common means for outreach on the eligibility appeal process for the respondents is their respective rider guides (28 of 37 agencies, or 75.7% of respondents). For “Other,” the most common explanations were determination letters sent to applicants (nine) and information posted to the agency’s website (nine). 9 9 8 7 0 1 2 3 4 5 6 7 8 9 10 Less than 60% 60–75% 75.1–90% Over 90% Respondents (n = 33) Figure 3. Agencies and proportion of unconditional paratransit eligibility. Determination FY 2016 (%) FY 2015 (%) Unconditional 60.3 55.5 Conditional 25.9 26.3 Temporary 8.1 9.8 Visitor 0.8 0.9 Not eligible 4.9 7.5 Note: Three (3) agencies did not provide data on categories of eligibility. Table 3. Proportion of types of eligibility determinations. Type of Outreach Number Rider guide 28 Public meetings 13 Visit to target groups 11 Other 26 No specific efforts 5 Number of respondents 37 Table 4. Type of outreach and public education for eligibility appeal process.

18 Administration of ADA Paratransit Eligibility Appeal Programs Figure 4 shows where agencies provide information about the right to appeal. Agencies could select as many methods as they used. All but one agency reported that they included information on the appeal process with the determination letter. A majority (21 of 37 agencies, or 56.8% of respondents) included appeal information in their rider guides. The DOT regulations require that all information about the eligibility process be made avail- able in accessible formats, upon request (§ 37.125(b)). Figure 5 presents the formats in which transit agencies make information on the appeal process available. In the survey, agencies could select as many media as they used. Nearly all agencies indicated that they had information avail- able in print (97.3%) and large print (91.9%). Comments provided by agencies that selected “Other” included: • “Will accommodate any request.” • “Will review/read over phone upon request.” • “Spanish.” • “Sign language.” • “Fax.” The survey asked transit agencies whether they worked with a rider advisory group on the appeal process. Figure 6 summarizes the responses. Once the appeal process is established, the regulations do not require a transit agency to seek ongoing input from the public. Nevertheless, many transit agencies (59.5%) work with 11 11 21 36 13 10 15 20 25 30 35 40 Other Stand-alone Letter or Information Page Rider Guide Determination Letter Part of Application Respondents (n = 37) 0 5 Figure 4. Where agencies provide information on appeal process. 16 27 19 22 34 36 10 150 5 20 25 30 35 40 Other Electronic File Audio Braille Large Print Print Respondents (n = 37) Figure 5. Media for information on appeal process.

Survey Results 19 advisory groups to improve the process. Comments provided by agencies that responded “No” included: • “We worked with the FTA Civil Rights Department to have a policy that meets the federal requirements.” • “There is consideration to include the Local Advisory Council in our appeal process.” • “We have a transit advisory group made up of riders/people with disabilities, but they only advise concerning appeals process if requested.” The survey asked, “Which applicant categories for ADA paratransit can appeal the initial determination?” One agency reported that it did not accept appeals for determinations of not eligible, and four agencies reported that they did not accept appeals for determinations of condi- tional eligibility. Not accepting appeals for determinations of not eligible or conditional eligibil- ity is contrary to the U.S.DOT regulations (§ 37.125(g)). Figure 7 presents the split among the survey respondents whether an eligibility appeal request must include a reason for the appeal. Thirteen of the 37 respondents (35.1%) indicated “Yes,” they required the appellant to provide a reason for the appeal. A transit agency may ask the appellant the reason for the appeal, but DOT regulations prohibit an agency from requiring the appellant to provide a reason as a condition for the appeal. Comments provided by transit agencies that responded “Yes” included: • “[A] reason for the appeal is necessary to understand why the customer disagrees.” • “[The] applicant must state why they feel the determination does not accurately reflect their ability to use the fixed-route service.” • “If they say they disagree with the determination, we will accept [the applicant’s appeal], but our form does ask why they disagree.” 22 15 Respondents (n = 37) Work with Advisory Group Does Not Specifically Work with Advisory Group Figure 6. Working with advisory group on appeal process. 13 24 Respondents (n = 37) Require Reason for Appeal Reason Not Required Figure 7. Requiring appellant to provide reason for appeal.

20 Administration of ADA Paratransit Eligibility Appeal Programs • “They must provide the basis of the appeal and what the appeals panel should take into account.” • “[The] applicant is requested to provide new information not considered in the eligibility process.” Figure 8 presents the ways in which an applicant can request an appeal from the transit agen- cies. Agencies could select as many formats as they make available. The three agencies that did not cite “in writing” as an option instead provide a standard form for an applicant to complete. Comments provided by agencies that selected “Other” included: • “In accessible language or alternate format upon request.” • “In-person walk in” (four agencies). • “Call for assistance or in-house assistance completing.” • “Whatever the customer needs for clear communication.” The U.S.DOT regulations require that a transit agency offer the opportunity for an in-person appeal (§ 37.125(g)(2)). Agencies may choose to also offer appeals in writing if this is the appel- lant’s preference. Figure 9 shows that 27 of 37 survey respondents (73%) provide the option for an appeal to be made in writing in place of an in-person hearing. Several transit agencies that do not offer an appeal in writing in place of a hearing noted that the appellant is not required to appear in person at the hearing. The appellant may request to have the hearing take place via conference call. The survey asked whether a transit agency conducts an internal review of the initial determina- tion prior to proceeding with the formal appeal. This step is considered separate from the appeal, as it consists of other staff (often the manager of the eligibility process) reviewing the decision making but does not include obtaining additional information from the appellant. If the transit agency opts to revise its initial determination, this revised determination may satisfy the appellant and eliminate the need for the formal appeal. Thirty-one of the 37 survey respondents (83.8%) said that they conduct an internal review. Comments provided by transit agencies that indicated they conduct an internal review included: • “Agency staff review the decision made by the certification contractor independently and mark their vote accordingly. The majority vote will decide whether the decision is overturned or if the case goes to the appeal committee.” 9 29 31 22 34 19 1050 15 20 25 30 35 40 Other Fax Email Telephone Writing Form Provided by Agency Respondents (n = 37) Figure 8. How an applicant can request an appeal.

Survey Results 21 • “[The] agency offers applicants two opportunities to appeal. Informal appeals may be requested within 15 days following the date of the letter of eligibility. Most disagreements are resolved through an informal appeal. Informal appeals are conducted by [the agency’s] travel trainer. Decisions are made in writing within 7 days following the review of the appeal. Persons who disagree with the informal appeal decision may request a formal appeal.” • “[A] senior eligibility specialist reviews the initial determination, particularly if additional information is submitted. [The] applicant is offered the administrative review process or to request an appeal hearing.” • “[The] file is reviewed by the programming director for administrative review to determine if the denial requires an in-person appeal meeting. In other words, the director can overrule the determination in favor of the appellant.” One agency that responded “No” stated, “On rare occasions, when an appellant sends addi- tional information to supplement application for appeal, I will overturn my own decision and approve it based on new included information without having to go through the appeals process.” Agencies that conduct an internal review may or may not inform the appellant of this step, as the internal review is not a regulatory requirement. Some agencies do inform the appellant, as seen in two documents collected for the case examples (see Chapter 4). TriMet (Portland, Oregon) explains its administrative review prior to a hearing; similarly, King County Metro (Seattle, Washington) explains its appeal evaluation prior to a formal hearing. The survey did not specifically gather information on the length (i.e., number of days) of any internal review. The survey asked transit agencies how often they held appeal hearings. Figure 10 presents the range of responses. Nine agencies (24.3%) schedule monthly appeal hearings, whereas six agencies (16.2%) schedule appeal hearings twice per month. Most comments submitted for “Other” were “As needed,” but two agencies commented that they have not yet had a request for an eligibility appeal. 27 10 Allows Written Appeal in Place of Hearing Hearing Required Respondents (n = 37) Figure 9. Transit agencies that offer appeal in writing in place of in-person hearing. 9 6 22 Monthly Twice per Month Other Respondents (n = 37) Figure 10. Frequency of appeal hearings.

22 Administration of ADA Paratransit Eligibility Appeal Programs The survey asked transit agencies if they offer free ADA paratransit service to an appellant who is coming to an appeal hearing. Of 37 respondents, 32 agencies (86.5%) indicated that they offer free paratransit to an appellant, whereas five transit agencies (13.5%) do not provide free paratransit. Appeal Committee Composition A wide representation of constituencies and professions occurs on transit agency appeal hear- ing committees. For committees with more than one member, a transit agency usually includes at least one individual who works for the agency. Based on the survey responses, the most frequent groups or professions represented on appeal committees include: • Transit agency staff. • Transit advisory committee members. • Employees of a human service agency. • Medical professionals (including physicians, nurses, occupational therapists, and mental health specialists). • Community members with disabilities. • Human resources or ADA specialists. • Independent living specialists. • Attorneys. Transit agencies with appeal committees composed of multiple members often have com- mittee seats that can be filled by any of several alternate individuals. For example, the transit agency seat may be filled by a primary individual, with backups (alternates) who also work for the agency. Similarly, for any given hearing, a committee seat reserved for an advisory commit- tee member may be filled by one of several individuals. This practice helps to prevent conflicts of interest and can enable a hearing to take place even when a primary seat-holder cannot be present. As shown in Figure 11, most agencies do not place a term limit on how long an appeal com- mittee member may serve. Twenty-nine of 37 agencies (78.4%) indicated that they had no limit. This is likely related to the issue that transit agencies have difficulty in recruiting committee members and are therefore reluctant to set a time limit on their service. Two transit agencies replied “Other” in response to this question. One of these transit agen- cies commented that the limit is the length of the contract with a private firm (5 years). Another agency stated, “We do not have a formal appeal committee.” 29 2 2 2 2 No limit 1 year 2 years 3 years Other Respondents (n = 37) Figure 11. Term limits for appeal committee members.

Survey Results 23 The survey asked transit agencies about the ways in which they train the appeal committee members. Figure 12 presents the responses. Agencies could select as many ways as they used. The two most commonly mentioned training methods were in-person training (25 agencies, or 67.6% of respondents) and written instructions (24 agencies, or 64.9% of respondents). Comments provided by transit agencies that selected “Other” training methods included: • “All applicants were chosen based on their previous ADA knowledge.” • “Review of sample appeals.” • “Review of applicant’s application and supporting documents.” The survey asked transit agencies if they compensate committee members for their work on the appeal committee. Just nine agencies (24.3%) compensate any committee members. For seven of the nine agencies that provide compensation, only the medical professional on the committee receives compensation. Two agencies that compensate committee members contract the services to another entity. In addition, two agencies noted that they reimburse committee members for any transportation costs to the hearings. The survey asked transit agencies if they have a written agreement with committee members concerning compensation and confidentiality. Three agencies did not respond to the question; of the 34 agencies that did respond, only 12 agencies (35.3%) stated that they had such an agree- ment. Appendix C contains the sample text of a confidentiality agreement. The survey included an open-ended question about how transit agencies address commit- tee members’ conflicts of interest for a particular hearing. In general, transit agencies rely on a committee member to step away from a given hearing if that member has a conflict. Comments provided by agencies that responded to this question included: • “Any member is able to excuse themselves if they feel there is a conflict of interest.” • “As part of the agreement with committee members, conflicts of interest are defined and members are asked to recuse themselves if a conflict exists.” • “If a member has a conflict of interest, that member does not hear the particular appeal.” • “Members are asked in advance about potential conflict of interest with specific appellants.” • “[The] transit agency makes sure the members do not know the appellant.” • “If a committee member has a relationship with the appellant they decline and another mem- ber is asked to hear the appeal.” • “Panel members are able to recuse themselves should any type of conflict exist.” 5 5 24 25 2 12 10 150 5 20 25 30 Other No formal training Written instructions In-person training Videos Observations of other appeal hearings Respondents (n = 37) Figure 12. Methods of training appeal committee members.

24 Administration of ADA Paratransit Eligibility Appeal Programs Appeal Hearing Process Figure 13 presents the range of the committee sizes that hear an appeal. The most common committee size for an appeal hearing is three members (14 agencies, or 37.8% of respondents). Ten agencies (27%) reported that their committee size is always three members; four agencies (10.8%) reported that the largest committee size is three members, but they may hold hearings with only two members. Four agencies (10.8%) generally have five-member committees. Five agencies (13.5%) have committees that consist of one member. Chapter 4 includes two case examples of transit agencies that have one-person hearing committees. For 13 of the transit agencies (35.1%), all committee members hear all appeal hearings. For most of the remaining transit agencies, the question of which members will hear a particular appeal depends primarily on who is available for the scheduled date and time. Arranging hear- ings that meet the schedule of the committee members is one of the transit agencies’ biggest challenges in the appeal process. One transit agency did not respond to the question about where appeal hearings are con- ducted. Most respondents (29 of 36 agencies, or 80.6%) indicated that they conduct the appeal hearings at their administrative offices or at one of their facilities. Four agencies (11.1%) indi- cated that they hold the appeal hearings at their contractor’s office, and three agencies (8.3%) indicated that they hold the appeal hearing at the office of another government agency. Four of the five transit agencies that do not provide free paratransit trips to appeal hearings are among those that hold their appeal hearings at their administrative offices, and the remaining agency holds its appeal hearings at an intermodal transportation center. As set forth in the U.S.DOT ADA regulations, the appeal “process shall include an opportu- nity to be heard and to present information and arguments . . .” (§ 37.125(g)(2)). At the hearing, the transit agency must provide the appellant time to speak and present information to support the case for paratransit eligibility. The appellant may present written as well as oral arguments, and the appellant may have other individuals (including but not exclusively medical profession- als) speak on the appellant’s behalf. In the survey responses, all agencies stated that the appellant and any of the appellant’s rep- resentatives may speak and present additional written information. Several agencies stated that they place a time limit (either 10 minutes or 15 minutes) for the appellant to speak and for the transit agency to present its rationale for the initial determination. After the hearing, the appeal committee chooses whether to uphold or overturn the ini- tial determination. The survey asked the transit agencies whether the decisions are made by a 5 14 2 4 2 1 9 1 member 3 members 4 members 5 members 6 members 10 members No max size Respondents (n = 37) Figure 13. Maximum size of appeal committee.

Survey Results 25 majority vote or by consensus. Three transit agencies did not answer this question. Of the 34 agencies that responded to this question, 25 agencies (73.5%) said that decisions are based on a majority vote of the committee. Eight agencies (23.5%) indicated that they require a consensus. One transit agency responded that decisions are made by “both” majority vote and consensus. The U.S.DOT regulations place an implicit limit on the time that transit agencies have to make a decision after the appeal hearing. If a transit agency has not made a decision on the appeal within 30 days, the agency must provide presumptive eligibility until it makes the decision. All agencies acknowledged that if they have not made a decision by their respective deadlines, they give presumptive eligibility to the appellant until a decision is made. In the survey responses, 24 of 36 transit agencies (66.7%) said that they allow themselves up to 30 days to make a decision. No responding agency indicated that it allows itself more than 30 days. One agency did not respond to this question. Figure 14 shows the distribution of maxi- mum days reported to make an appeal decision. The survey asked transit agencies what options—apart from re-applying for ADA para- transit service—are available to an appellant who disagrees with the outcome of the appeal. (An individual can always reapply, although some transit agencies require a waiting period.) For most respondents (33 of 37 agencies, or 89.2%), the appeal committee has the final decision. Two agencies indicated that they permit another appeal, and two agencies indicated they allow the appellant to appeal to the transit agency’s board. An appellant also may file a complaint with FTA, although FTA tends to focus on a transit agency’s eligibility process rather than on indi- vidual eligibility determinations. The survey asked the transit agencies about their quality control process. In particular, the survey question addressed how agencies make sure that appeal outcomes are consistent with other appeal outcomes and with other initial eligibility determinations. Comments received in response to this open-ended question included: • “[The] agency conducts a biannual audit of appeal hearings, looking specifically for any inconsistencies and any areas that could benefit from refresher training on ADA paratransit eligibility (either for certification analyst staff or appeal panel members).” 1 2 2 3 2 2 24 0 5 10 15 20 25 30 3 days 5 days 7 days 10 days 15 days 21 days 30 days Respondents (n = 36) Figure 14. Maximum days to make appeal decision.

26 Administration of ADA Paratransit Eligibility Appeal Programs • “Agency staff randomly reviews 10 eligibility applications each month to ensure that the determination is consistent with the information provided. Staff also participate as the transit representative on the appeals panel.” • “After each appeal, the ADA paratransit manager analyzes data and communicates with the appeals board coordinator if there is concern with quality for future appeals cases.” • “The agency has one appeal officer who is well trained and well qualified. The staff analyzes outcomes for consistency.” • “Agency staff compare outcomes to previous appeals.” • “Agency staff review best practices from other agencies [and] refer to [the] FTA Circular.” • “Agency staff confer with other transit systems or FTA information regarding eligibility determinations.” • “Agency paratransit staff consult the staff attorney.” • “The agency takes no specific effort to assure the appeal outcome is consistent with other ini- tial eligibility determinations. The two functions are completely separate. There is consistency in approach throughout the eligibility and appeal processes.” • “The agency has no specific quality control process.” Appeal Documentation Appendix D to 49 CFR Part 37 states that paratransit eligibility “takes on the coloration of a property right.” Therefore, for any decision that provides less than unconditional eligibil- ity to an applicant, the transit agency “must provide administrative due process to the indi- vidual.” Documenting the appeal hearing is part of demonstrating that the agency is following due process. The survey asked who is responsible for documenting the appeal hearing and storing the documentation. As shown in Figure 15, of the 37 respondents, 30 transit agencies (81.1%) indicated that they are responsible for documenting the appeal hearing. The survey asked transit agencies which media they use to document an appeal hearing. Agencies could select as many methods as they used. As presented in Figure 16, the most com- mon means reported is summary notes (26 of 37 agencies, or 70.3%). A majority of respon- dents (20 of 37 agencies, or 54.1%) make audio recordings. The time frame for keeping these records usually is based on transit agency, municipal, or state law. Figure 17 presents the range of years reported by the transit agencies for storing this documentation. The most common responses were “indefinitely” (42.9%) and 5 years (25.7%). Two agencies did not provide a specific time frame. 30 5 1 1 Transit Agency Contractor Other Public Agency Committee Members Respondents (n = 37) Figure 15. Who documents appeal hearings and stores the documentation.

Survey Results 27 26 20 20 30 4 2 1 Summary Notes Audio Recording Transcriptions Transit Agency Form Video Recording Respondents (n = 37) 100 Figure 16. Methods used to document appeal hearing. 1 1 2 9 1 4 2 15 0 2 4 6 8 10 12 14 16 Respondents (n = 35) Figure 17. How long to hold appeal hearing records. Budget and Resources The survey asked transit agencies about the resources they used for conducting the appeal process. Components of the responses could include one or more of the following elements: • Agency staff time. • Contractor time. • Compensation or reimbursement to appeal committee members. • Training for committee members. • Transportation for appellants. • Other appellant resources (e.g., interpreters). Only nine agencies (24.3%) could provide an actual or estimated budget for their appeals processes. Another 18 agencies (48.6%) provided an estimate of staff and/or contractor hours, but not an overall budget, for their appeals processes. For many agencies, the appeal process is a small portion of the eligibility determination process. Managers and staff consider it as part of their overall work. One agency indicated that it has not calculated a separate budget for the appeals process, as much of this cost is absorbed within the agency’s eligibility department budget. Another agency responded that it does not have a separate line item in the budget for the appeal process. The

28 Administration of ADA Paratransit Eligibility Appeal Programs appeal activity is minimal and cost is nominal, so it is calculated as part of each employee’s responsibility. Another agency responded that staff hours for appeals are part of regular duties. One agency responded that it does not have “a separate budget for everyone’s time/hours regarding appeals.” Staff time, training, resources and transportation are wrapped up as part of the overall functional evaluator budget. The budget does have a line item for an evaluation contractor’s fee to administer the appeals and to provide a qualified appeal officer. For 2017, the contractor’s fee was $402.60 per appeal. Another agency that responded that it does not have a specific budget related to the appeals pro- cess. The agency noted that the process is considered part of regular duties and involves employees from several department sections. Translators, including American Sign Language (ASL) inter- preters, are available on request but are not drawn directly out of the agency’s mobility manage- ment services budget; rather, they are paid via the marketing department’s budget, which lumps these services in with its larger outreach budget. At this agency, the appellant transportation budget is a monetary figure derived from how many trips were performed for free to get the appellant to and from the hearing. The budget for staff time is based the hourly allotment per appeal. The survey requested information related to this topic in a variety of ways: dollars, employee and contractor full-time equivalents, employee and contractor annual hours, or employee and contrac- tor hours per appeal. Data for the latter measure was likely the most useful and reliable. Table 5 provides selected responses concerning the average hours per appeal for staff and contractor time. Appeal Outcomes Most of the transit agencies surveyed provided data on the number and outcomes of appeals for FY 2016 and FY 2015. Among the transit agencies that provided this data, 771 eligibility appeals took place in FY 2016 (33 agencies) and 623 appeals took place in FY 2015 (32 agencies). Table 6 presents ranges for the number of annual eligibility appeals during both fiscal years. Overall, transit agencies upheld the initial determinations in 60% of these appeals. Table 7 presents the distributions of appeals outcomes as reported by 31 agencies in FY 2016 and Transit Agency Average Hours per Appeal Staff Contractor Valley Metro (AZ) 2 12 TriMet (OR) 10 — Charlotte Area Transit System (NC) 8 — VIA (TX) 8 — Hampton Roads Transit (VA) 6 1 Nashville MTA (TN) 6 — WMATA (D.C.) 5 — Capital Metro (TX) 4 1 King County Metro (WA) 3 2 San Mateo County Transit District (CA) 3 1 Connect Transit (IL) 3 1 RTC (NV) 1 3 San Francisco Municipal Transportation Agency (CA) 1 2 St. Cloud Metro Bus (MN) 2 — Pioneer Valley Transit Authority (MA) 1 1 Orange County Transportation Authority (CA) 1 — Ann Arbor Area Transportation Authority (MI) 1 — Table 5. Reported labor hours per appeal.

Survey Results 29 Number of Appeals Number of Agencies FY 2016 FY 2015 No appeal 10 13 1–2 appeals 11 9 3–24 appeals 5 2 25–49 appeals 2 4 50–99 appeals 1 2 100+ appeals 4 2 No data provided 4 5 Table 6. Number of eligibility appeals per transit agency. 30 agencies in FY 2015. (Agencies that did not provide data on the number of appeals or did not have data for the categories of appeal outcomes were excluded from this analysis.) The most common explanation for “Other decisions” was that the original determination of conditional eligibility remained but the appeal committee revised the conditions, usually adding conditions that allowed the appellant to use paratransit service. For the transit agencies that had the most appeals, the proportion of upheld determinations was similar to that for the transit agencies overall. For the transit agencies with 25 or more appeals in a year (seven agencies in FY 2016, eight agencies in FY 2015), the respective propor- tions of upheld determinations were 64.3% in FY 2016 and 61.0% in FY 2015. For 21 agencies, FY 2016 data was available for both the total number of ADA paratransit applications and the number of appeals. The proportion of appeals to applications ranged from 0.04% to 3.9%. Table 8 presents the distribution of this measure for the 21 agencies. Transit agencies, riders, and advocates believe that one sign of a good eligibility determination process is few requests for appeals. Of course, a lack of appeals does not necessarily signify a good initial determination process, which can result from other factors (e.g., overly generous initial determinations or limited public awareness of the availability of appeals). A more accurate way to calculate an appeal rate might be to exclude unconditional determinations from the calcula- tion, as no appeals result from those determinations. On the other hand, if the appeal rate is used as a measure of the satisfaction of applicants, it may be useful to include all determinations (given that those determinations of unconditional eligibility satisfy the applicants). Although the median appeal rate is roughly 1% among the 21 transit agencies in the synthesis sample, no conclusion is drawn concerning an optimal appeal rate—or if an optimal rate exists—given the varying factors that determine the rate for each agency. Appeal Decisions FY 2016 * (n = 734) FY 2015** (n = 583) Uphold initial determination 62.4% 60.9% Overturn not eligible to unconditional 9.7% 12.9% Overturn not eligible to conditional 12.7% 17.3% Overturn conditional to unconditional 2.0% 2.4% Overturn not eligible to temporary 5.3% 2.1% Overturn temporary to unconditional 0.1% 0.2% Overturn temporary to conditional 1.1% 1.4% Other decisions 6.7% 2.9% * Data from 31 agencies. ** Data from 30 agencies. Table 7. Distribution of eligibility appeal outcomes.

30 Administration of ADA Paratransit Eligibility Appeal Programs Percent of Total Applicants Who Appealed Number of Agencies * < 0.50% (minimum 0.04%) 7 0.50%–0.99% 4 1.00%–1.99% 5 2%–3% 1 > 3% (maximum 3.9%) 4 * Data from 21 agencies. Table 8. Ratio of applicants to appeals (FY 2016). 5 5 2 25 Recent Changes Planned Changes Recent and Planned Changes No Changes Respondents (n = 37) Figure 18. Recent or planned changes to appeal process by transit agencies. 5 2 1 18 12 6 4 5 2 0 5 10 15 20 Other In-house Expertise Contractor Expertise Availability of Committee Members Specialized Expertise of Committee Members Staff Time Existing Process Consistency of Decisions Recordkeeping Respondents (n = 37) Figure 19. Challenges with appeal process.

Survey Results 31 Changes and Challenges Figure 18 shows whether the surveyed transit agencies have recently made or plan to make changes to their appeal processes. Overall, about a third (12 of 37) agencies have made recent changes or plan to make changes. Recent changes included: • Modified to meet FTA regulations. • Contracted with outside agency for eligibility determinations. • Changed composition of committee. • Updated terminology. • Updated training materials. Planned changes include: • Involve local advisory committee. • Change term length of members. • Invite additional people to participate in committee. Figure 19 cites the variety of challenges that transit agencies identified with their appeal pro- cesses. Agencies could select as many challenges as they believed were appropriate to their sys- tem. The most common challenge identified by transit agencies was the availability of committee members. About half of the agencies (18 of 37) cited this issue. The second most common chal- lenge, identified by 12 transit agencies (32.4% of respondents), was having committee members with the proper specialized expertise. Among the comments provided with “Other,” one transit agency mentioned a challenge in finding a willing medical professional to participate: “If you have a public representative, it is important to find the right person who is willing to make hard decisions.”