Administration of ADA Paratransit Eligibility Appeal Programs (2018)

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E-1 A P P E N D I X E TriMet LIFT Eligibility Appeal Policy and Appeal Procedure LIFT Paratransit Eligibility Determination Appeal Policy Appellants found not eligible for LIFT paratransit or found eligible with specified conditions or found temporarily eligible, may request an appeal of those decisions. This document outlines the steps for requesting an appeal and the procedure governing the appeal process. Requesting an Appeal The Appellant shall make the appeal in writing or via telephone. The request for appeal must be received by TriMet not later than the 60th calendar day after the date that the Appellant receives the decision being appealed. For purposes of this requirement, TriMet assumes that the Appellant will have received the decision not later than five calendar days after the date the decision was mailed to Appellant’s address of record. TriMet mails all determination decisions via regular U.S. first-class mail, unless the Appellant requests otherwise. The 60-day appeal period begins to run on the sixth calendar day after the date the decision was mailed. For example, if the decision was mailed on June 1, the 60-day appeal period begins to run on June 6, and expires on August 4. The Appellant shall timely mail a request for appeal to: TriMet Transit Mobility Center Attn: LIFT Appeals 515 NW Davis Street Portland, OR 97209 or The Appellant shall timely fax a request for appeal to (XXX) XXX-XXXX or

E-2 Administration of ADA Paratransit Eligibility Appeal Programs LIFT Paratransit Eligibility Determination Appeal Policy Page 2 The Appellant shall timely call and leave a message requesting an appeal to: LIFT Administration at (XXX) XXX-XXXX, Option 4. Once a timely appeal is received, LIFT staff shall promptly contact the Appellant to determine whether the appeal may be resolved through administrative review. If the appeal is resolved through administrative review to the satisfaction of the Appellant, LIFT staff shall prepare a written notice of resolution and send it to the Appellant. If the Appellant disagrees with the notice of resolution, Appellant has an additional 10 calendar days from the date the notice of resolution was mailed, including the date of mailing, to object. For purposes of this requirement, TriMet assumes that the Appellant will have received the notice of resolution not later than five calendar days after the date the decision was mailed to Appellant’s address of record. The 10-day objection period begins to run on the sixth calendar day after the date the resolution was mailed. Appellant’s objection must be delivered to TriMet, and received by the tenth day in the same manner described above. If the appeal cannot be resolved through administrative review, LIFT staff shall: (1) promptly advise the Appeal Panel of a timely request for an appeal; (2) determine whether the Appellant requests a hearing or not, and if the Appellant requests a hearing, coordinate a hearing date, time, and location with the Appellant and the Appeal Panel, and so notify the parties in writing; and (3) reserve sufficient time for the hearing. If necessary, LIFT staff shall arrange for the Appellant to receive LIFT transportation to and from the place of hearing at no charge. Appeal with Hearing Prior to Hearing: Appellant may request copies of documents relating to the decision being appealed. The Appeal Panel or its designee shall promptly consider and decide all requests for documents. The Appeal Panel shall timely provide all requested documents or things to the Appellant that are relevant and non-privileged. Appellants may request the appearance of other individuals who have knowledge of information relevant to the decision the Appellant is appealing. The Appeal

TriMet LIFT Eligibility Appeal Policy and Appeal Procedure E-3 LIFT Paratransit Eligibility Determination Appeal Policy Page 3 Panel or its designee shall promptly consider and decide all requests for the appearance of witnesses, considering the witness’s relevance to the decision being appealed or the likelihood that the witness will assist the Appeal Panel in deciding the appeal. The Appeal Panel does not have subpoena power to order the appearance of witnesses. Appellants may submit not later than three days before the appeal hearing, including the date of the hearing, written arguments, evidence, and any other information the Appellant wishes the Appeal Panel to consider before the hearing. For good cause shown by the Appellant, the Appeal Panel may consider written arguments, evidence, and any other information to be presented for the first time at the hearing. At Hearing Appellants may represent themselves at hearing, or may be represented by an attorney, paralegal or legal assistance, caseworker, care provider, or other person designated by the Appellant to present the Appellant’s case. The parties may present documents and offer other oral, written or recorded information to support their respective positions or to respond to each other’s positions. TriMet shall present its position first, then the Appellant may present next. As required or appropriate, the parties shall be permitted to present additional documents. The Appeal Panel may for good cause continue a hearing or permit the post- hearing submission of additional evidence, information and arguments. If a continuance or post-hearing submission is permitted, the Appeal Panel shall promptly advise the parties of the date, time and location of the continued hearing or the date by which the post-hearing submission must be received by the Appeal Panel. The hearing will be electronically recorded. Appeal without Hearing If the materials the Appellant wishes the Appeal Panel to consider in determining the Appellant declines an in-person appeal hearing, LIFT staff shall inform the Appellant of the date by which the Appellant must submit to TriMet any written

E-4 Administration of ADA Paratransit Eligibility Appeal Programs LIFT Paratransit Eligibility Determination Appeal Policy Page 4 Following the submission date, the Appeal Panel shall review the Appellant’s file and written submissions, if any, and decide the matter. Evidentiary Burden and Standard TriMet shall have the burden of demonstration that the Appellant’s eligibility for paratransit service was appropriately determined. This burden must be satisfied by a preponderance of all the evidence submitted in connection with the appeal or otherwise in the customer’s record. The standard of admissibility for evidence and information presented in connection with an appeal shall be whether the evidence or information is of the type that a reasonable person would rely upon in making decisions about their personal affairs. The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position. Decision and Notification of Decision The Appeal Panel may uphold or overturn the eligibility determination, modify the eligibility determination, impose conditions upon eligibility, or take another appropriate action to decide the matter. The Appeal Panel shall notify the Appellant of its decision and the reasons for its decision in writing, not later than 30 days after the date of the appeal hearing, including the date of the hearing. Or if the Appellant declined a hearing, the Appeals Panel shall notify the Appellant of its decision and the reasons for its decision in writing not later than 30 days after the date the Appeals Panel reviewed and considered the matter. If no decision is made on an appeal of eligibility determination within 30 days of the date of the appeal hearing or the Appeal Panel’s consideration (inclusive of any time allowed for receipt of additional documents), the Appellant will be eligible for LIFT service as of the 31st day, until and unless a decision otherwise is rendered by the Panel. TriMet shall immediately inform the Appellant that he/she is presumptively eligible for LIFT service first by telephone and then follow up with a written communication at the Appellant’s last known address of record. K:\TriMet\Appeals\LIFT Eligibility Appeal Policy (2015) – 1-13-15.docx Appellant’s appeal. Extensions of this date may be allowed for good cause.

TriMet LIFT Eligibility Appeal Policy and Appeal Procedure E-5 LIFT Paratransit Eligibility Determination Appeal Procedure Individuals found not eligible for LIFT paratransit, or found eligible with specified conditions, or found temporarily eligible, may request an appeal of those decisions (“Appellant”). This document outlines the steps for requesting an appeal and the procedure governing the appeal process. I. Requesting an Appeal a. The Appellant shall make the appeal in writing or via telephone. b. The request for appeal must be received by TriMet not later than the 60th calendar day after the date that the Appellant receives the decision being appealed. For purposes of this requirement, TriMet assumes that the Appellant will have received the decision not later than five calendar days after the date the decision was mailed to Appellant’s address of record. TriMet mails all determination decisions via regular U.S. first-class mail, unless the Appellant requests otherwise. The 60-day appeal period begins to run on the sixth calendar day after the date the decision was mailed. For example, if the decision was mailed on June 1, the 60-day appeal period begins to run on June 6, and expires on August 4. c. The Appellant shall timely mail a request for appeal to: TriMet Transit Mobility Center Attn: LIFT Appeals 515 NW Davis Street Portland, OR 97209 or The Appellant shall timely fax a request for appeal to: (XXX) XXX-XXXX or

E-6 Administration of ADA Paratransit Eligibility Appeal Programs LIFT Paratransit Eligibility Determination Appeal Procedure Page 2 The Appellant shall timely call and leave a message requesting an appeal to: LIFT Administration at (XXX) XXX-XXXX, Option 4. d. e. If the appeal cannot be resolved through administrative review, LIFT staff shall: (1) promptly advise the Appeal Panel of a timely request for an appeal; (2) determine whether the Appellant requests a hearing or not, and if the Appellant requests a hearing, coordinate a hearing date, time, and location with the Appellant and the Appeal Panel, and so notify the parties in writing; and (3) reserve sufficient time for the hearing. If necessary, LIFT staff shall arrange for the Appellant to receive LIFT transportation to and from the place of hearing at no charge. f. The failure of any person to receive actual notice of the hearing or the date on which the Appeal Panel will consider the matter, does not invalidate the hearing or any determination, decision, or order of the Appeal Panel. g. If at any point during the request for appeal process, the Appellant determines that he or she does not want to proceed with the appeal, the Appellant may request to withdraw the appeal. The request may be made in writing or via telephone. Once the request for withdrawal Once a timely appeal is received, LIFT staff shall promptly contact the Appellant to determine whether the appeal may be resolved through administrative review. If the appeal is resolved through administrative review to the satisfaction of the Appellant, LIFT staff shall prepare a written notice of resolution and send it to the Appellant. If the Appellant disagrees with the notice of resolution, Appellant has an additional 10 calendar days from the date the notice of resolution was mailed, including the date of mailing, to object. For purposes of this requirement, TriMet assumes that the Appellant will have received the notice of resolution not later than five calendar days after the date the decision was mailed to Appellant’s address of record. The 10-day objection period begins to run on the sixth calendar day after the date the resolution was mailed. Appellant’s objection must be delivered to TriMet, and received by the tenth day in the same manner described in Section 1(c).

TriMet LIFT Eligibility Appeal Policy and Appeal Procedure E-7 LIFT Paratransit Eligibility Determination Appeal Procedure Page 3 has been received, LIFT staff shall prepare a written notice of withdrawal and send it to the Appellant. If the Appellant disagrees with the notice of withdrawal, Appellant has 10 days from the date the notice of withdrawal was mailed, including the date of mailing, to object. For purposes of this requirement, TriMet assumes that the Appellant will have received the notice of withdrawal not later than five calendar days after the withdrawal was mailed to Appellant’s address of record. The 10-day objection period begins to run on the sixth calendar day after the date the withdrawal was mailed. Appellant’s objection must be delivered to TriMet, and received by the tenth day in the same manner described in Section 1(c). II. Appeal Panel The Appeal Panel has jurisdiction over all Appeal of decisions made by TriMet’s LIFT department. The Appeal Panel consists of three members, each of whom is selected by TriMet because of his/her unique knowledge in the areas of paratransit eligibility, safety, and/or the law. Each panel consists of a Chair, who will run the hearing and write the decision of the panel. III. Appeal with Hearing a. Prior to Hearing: i. Appellant may request copies of documents relating to the decision being appealed. The Appeal Panel or its designee shall promptly consider and decide all requests for documents. The Appeal Panel shall timely provide all requested documents or things to the Appellant that are relevant and non-privileged. ii. Appellants may request the appearance of other individuals who have knowledge of information relevant to the decision the Appellant is appealing. The Appeal Panel or its designee shall promptly consider and decide all requests for the appearance of witnesses, considering the witness’s relevance to the decision being appealed or the likelihood that the witness will assist the Appeal Panel in deciding the appeal. The Appeal Panel does not have subpoena power to order the appearance of witnesses.

E-8 Administration of ADA Paratransit Eligibility Appeal Programs LIFT Paratransit Eligibility Determination Appeal Procedure Page 4 iii. Appellants may submit not later than three days before the appeal hearing, including the date of the hearing, written arguments, evidence, and any other information the Appellant wishes the Appeal Panel to consider before the hearing. For good cause shown by the Appellant, the Appeal Panel may consider written arguments, evidence, and any other information to be presented for the first time at the hearing. b. At Hearing: i. Prior to the hearing, the Appeal Panel shall inform each party to the hearing of the following matters, each of which may be presented orally or in writing: 1) A general description of the hearing procedure, including the order of presentation of evidence, what kinds of evidence are admissible, whether objections may be made to the introduction of evidence and what kind of objections made be made, and an explanation of the burdens of proof or burdens going forward with evidence. 2) That an electronic record will be made of the proceedings. 3) The function of the record-making with respect to the perpetuation of the testimony and evidence and with respect to any appeal from the Appeal Panel’s decision. 4) If the Appellant is not represented by an attorney, whether the party may, during the course of proceedings, request a recess if at that point the Appellant determines that representation by an attorney is necessary to the protection of the Appellant’s rights. 5) Whether TriMet is represented by an attorney in the matter to be heard, and whether the parties are ordinarily and customarily represented by an attorney. 6) Whether there exists an opportunity after the hearing and prior to the final determination or order of the Appeal Panel to review and

TriMet LIFT Eligibility Appeal Policy and Appeal Procedure E-9 LIFT Paratransit Eligibility Determination Appeal Procedure Page 5 object to any proposed findings, summary of evidence, or order of the Appeal Panel. 7) The title and function of the Appeal Panel, including the effect and authority of the Appeal Panel’s determination. 8) A description of the appeal or judicial review process from the determination or order of the Appeal Panel. ii. The failure to give notice of any of this information will not invalidate any determination or order of the Appeal Panel unless on appeal from or review of the determination or order a court finds that the failure affects the substantive rights of the complaining party. In the event of such a finding, the court should remand the matter to the Appeal Panel for a reopening of the hearing and should direct the Appeal Panel as to what steps are to be taken to remedy the prejudice to the rights of the complaining party. iii. Appellants may represent themselves at hearing, or may be represented by an attorney, paralegal or legal assistant, caseworker, care provider, or other person designated by the Appellant to present the Appellant’s case. iv. TriMet will be represented by an individual appointed by the Executive Director of Transportation. The TriMet representative will be appointed based on the individual’s experience with LIFT and the Appellant’s case. v. The parties may present documents and offer other oral, written, or recorded information to support their respective positions or to respond to each other’s positions. TriMet shall present its position first, then the Appellant may present next. vi. The Appeal Panel will receive testimony taken upon affirmation of the witness. Every party will have the right of cross-examination of witnesses who testify and will have the right to submit rebuttal evidence. vii. The Appeal Panel will exclude all irrelevant, immaterial, or unduly repetitious evidence. Erroneous rulings on evidence do not

E-10 Administration of ADA Paratransit Eligibility Appeal Programs LIFT Paratransit Eligibility Determination Appeal Procedure 6 preclude action by the Appeal Panel on the record unless shown to have substantially prejudiced the rights of a party. All other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs will be admissible. Objections to evidence may be received in written form. viii. The Appeal Panel shall place on the record a statement of the substance of any written or oral ex parte communications made to the Appeal Panel on a fact in issue during the pendency of the proceedings. The Appeal Panel shall notify the parties of the communication and of their right to rebut such communications. ix. The Appeal Panel may for good cause continue a hearing or permit the post-hearing submission of additional evidence, information, and arguments. If a continuance or post-hearing submission is permitted, the Appeal Panel shall promptly advise the parties of the date, time, and location of the continued hearing or the date by which the post-hearing submission must be received by the Appeal Panel. x. The hearing will be electronically recorded, and at the request of a party, transcribed at that party’s expense. IV. Appeal without Hearing a. If the Appellant declines an in-person appeal hearing, LIFT staff shall timely inform the individual of the date by which the Appellant must submit to TriMet any written materials the Appellant wishes the Appeal Panel to consider in determining the appeal. Extensions of this date may be allowed for good cause. b. Following the submission date, the Appeal Panel shall timely review the Appellant’s file and written submissions, if any, and decide the matter. V. Evidentiary Burden and Standard a. TriMet shall have the burden of demonstrating that the individual’s eligibility for paratransit service was appropriately determined. This burden must be satisfied by a preponderance of all the evidence submitted in connection with the appeal or otherwise in the customer’s Page

TriMet LIFT Eligibility Appeal Policy and Appeal Procedure E-11 LIFT Paratransit Eligibility Determination Appeal Procedure Page 7 record. The standard of admissibility for evidence and information presented in connection with an appeal is whether the evidence or information is of the type that a reasonable person would rely upon in making decisions about their personal affairs. The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position. b. The Appeal Panel may take notice of judicially recognizable facts, and the Panel may take official notice of general, technical, or scientific facts within the specialized knowledge of TriMet employees. The Appeal Panel shall notify the parties at any time during the proceeding, but in any event prior to the final decision, of material officially noticed and the parties shall be afforded an opportunity to contest the facts so noticed. c. The record in a proceeding before the Appeal Panel includes: i. All pleadings, motions, or intermediate rulings; ii. Evidence received or considered; iii. Stipulations; iv. A statement of matters officially noticed; v. Questions and offers of proof, objections, and rulings thereon; vi. A statement of any ex parte communications on a fact in issue made to the Appeal Panel during the pendency of the proceedings; vii. Proposed findings and exceptions; and viii. Any proposed, intermediate, or final order prepared by the Appeal Panel. VI. Decision and Notification of Decision a. The Appeal Panel may uphold or overturn the eligibility determination, modify the eligibility determination, impose conditions upon eligibility, or take any other appropriate action to decide the matter. b. The Appeal Panel shall notify the Appellant of its decision and the reasons for its decision in writing, not later than 30 days after the date of the appeal hearing, including the date of the hearing. Or, if the Appellant declined hearing, the Appeal Panel shall notify the Appellant of its decision and the reasons for its decision in writing not later than

E-12 Administration of ADA Paratransit Eligibility Appeal Programs If no decision is made on an appeal of eligibility determination within 30 days after the date of (1) the appeal hearing (including the date of the hearing); or (2) or if no hearing, the date of the Appeal Panel’s consideration (including the date of consideration), the Appellant will be eligible for LIFT service as of the 31st day, until and unless a decision otherwise is rendered by the Panel. If the appellant is presumptively eligible for LIFT service because no decision has been rendered by the Panel by the 30th day, TriMet shall immediately inform the appellant that he/she is presumptively eligible for LIFT service. TriMet shall first attempt to contact the appellant via telephone, and then shall follow up with a written communication at the appellant’s last known address of record. LIFT Paratransit Eligibility Determination Appeal Procedure Page 8 30 days after the date the Appeal Panel reviewed and considered the matter, including the date of the review. c. Every decision will inform the Appellant that he/she may: 1) appeal the Panel’s decision pursuant to ORS 34.010-34.100; 2) seek legal counsel to determine next steps; or 3) file a complaint with the Federal Transit Administration Office of Civil Rights. d. An order adverse to a party may be issued by the Appeal Panel upon default only upon a prima facie case made on the record before the Appeal Panel. e. VII. Petitions for Reconsideration, Rehearing a. Appellant may file in writing a petition for reconsideration or rehearing on a final order with the Appeal Panel not later than 30 days after the date of the appeal hearing or date of Appeal Panel consideration, including the date of the hearing or date of consideration. Appellant shall set forth the specific ground or grounds for requesting the reconsideration or rehearing, and may be supported by written argument. b. The Appeal Panel may grant a request for reconsideration if good and sufficient reason therefor appears. If the petition is granted, the Appeal Panel shall issue an amended order.

TriMet LIFT Eligibility Appeal Policy and Appeal Procedure E-13 LIFT Paratransit Eligibility Determination Appeal Procedure Page 9 c. The Appeal Panel may grant a rehearing petition if good and sufficient reason therefor appears. The rehearing may be limited by the Appeal Panel to specific matters. If a rehearing is held, the Appeal Panel may issue an amended order. VIII. Judicial Review a. Review of the final order of the Appeal Panel by any aggrieved party will be by writ of review to the Circuit Court of Multnomah County, Oregon, as provided in ORS 34.010-34.100. K:\TriMet\Appeals\LIFT Eligibility Appeal Procedure (2015) – 1-13-15.docx