Administration of ADA Paratransit Eligibility Appeal Programs (2018)

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7 The literature review encompassed materials obtained from various sources and included a TRIS database search, Google searches, and other published resources. The searches yielded a mix of academic research, federal government documents, advocacy papers, and other publicly funded studies. Relevant documents also included FTA ADA compliance reviews available on FTA’s Civil Rights ADA web page, as noted in this chapter. U.S.DOT Regulations and Other Publications Appendix D to 49 CFR Part 37 Appendix D to 49 CFR Part 37 (titled “Construction and Interpretation of Provisions of 49 CFR Part 37”) offers additional guidance on the appeal process. The appendix seeks to elabo- rate in plain language the key issues and consequences of the text of the body of the regulations. For example, it explains the meaning of “separation of functions” for the appeal process: “not only must the same person not decide the case on appeal, but that person, to the extent practi- cable, should not have been involved in the first decision (e.g., as a member of the same office, or a supervisor or subordinate of the original decision maker).” Appendix A of this synthesis includes a larger excerpt from the regulation’s Appendix D relating to the appeal process. FTA Circular 4710.1 FTA’s guidance document for 49 CFR Part 37 is FTA Circular 4710.1, Americans with Dis- abilities Act (ADA): Guidance (FTA 2015). The ADA circular sets forth the regulatory requirements, along with a discussion of each requirement and suggestions for ways to comply with the requirements. The circular does not impose additional requirements on transit agencies, but it provides further explanation and often recommends (but does not mandate) preferred practices. For example, Chapter 9 of the circular includes a discussion of the eligibility appeal process and recommends guidelines for selecting individuals who hear appeals. According to the circular, these individuals should be objective and not represent a particular point of view; understand how disabilities affect the use of fixed-route service; and understand the agency’s fixed-route and paratransit services and policies. The circular also emphasizes training all appeals panel members on the regulatory criteria for ADA paratransit eligibility. FTA Circular 4710.1 also suggests several “optional internal review practices,” such as having a second individual review any determination that denies or limits eligibility before communicat- ing the decision to the applicant. Moreover, “[i]t is important to note that these double-checks are internal and not considered part of the rider’s appeal, since they would be undertaken without C H A P T E R 2 Literature Review

8 Administration of ADA Paratransit Eligibility Appeal Programs additional information from the appellant and without an opportunity for the appellant to be heard in person, and might not meet the requirement for separation of functions” (FTA 2015). FTA Frequently Asked Questions FTA maintains a linked list of frequently asked questions (FAQs) on its Civil Rights/ADA web page (FTA n.d.b). As of early 2017, one of the five paratransit eligibility FAQs was, “How do I appeal a transit agency’s decision that I am not eligible for paratransit?” The published response excerpts portions of § 37.125 and Appendix D. There is no further interpretation or guidance. FTA Complaints Individuals may submit formal written complaints to FTA’s Office of Civil Rights alleging that a transit agency has violated the U.S.DOT ADA regulations. FTA investigates the complaints, which may involve gathering information from the agency and/or conducting an independent review. FTA posts final correspondence summarizing its investigations on its Civil Rights/ADA web page (FTA n.d.a). As of early 2017, FTA had posted responses to five complaints related to eligibility appeals, all from applicants. Two of the posted responses provide limited guidance for transit agencies. A complaint filed in 2004 by an applicant for Washington Metropolitan Area Transit Author- ity’s (WMATA) MetroAccess paratransit service claimed that MetroAccess did not provide sufficient reason for denying eligibility. FTA agreed with this claim. Another complaint, filed in 2011, involved a Southeastern Pennsylvania Transportation Authority (SEPTA) paratransit service rider who claimed that SEPTA improperly did not allow her to appeal an eligibility determination after she provided SEPTA with updated medical infor- mation. FTA agreed with the rider, noting that “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” (FTA n.d.a). Paratransit Eligibility Manual FTA published the Americans with Disabilities Act (ADA) Paratransit Eligibility Manual (FTA 1993) very early in the evolution of ADA paratransit services and the associated development and implementation of eligibility determination processes. The structured approach to eligibility— based on an applicant’s functional capabilities to use the existing fixed-route services—was new for many transit agencies. The manual remains a comprehensive and well-written guide for transit agencies that need to create (or revise) an eligibility determination process. Its discussion of appeal procedures provides the regulatory requirements for the appeals, along with guidance on structur- ing an appeal process and holding an appeal hearing. Of particular interest is a table that describes the composition of appeals committees for 23 transit agencies. Committee size ranged from one to nine individuals. Several agencies under- took both informal and formal reviews. Some agencies had two levels of appeals. Research Publications Project ACTION Guidance Determining ADA Paratransit Eligibility: An Approach, Recommendations and Training Materi- als (TranSystems Corp. and ACCESS Transportation Systems 2014) is a comprehensive how-to guide for transit agencies to develop and carry out ADA paratransit eligibility determination

Literature Review 9 programs. Topics covered include: instructions; recommendations; training material for managers, trainers, and evaluators; and sample forms, brochures, and letters. The authors of the 2014 edition were longtime instructors for the Easter Seals Project ACTION ADA paratransit eligibility course. The guide suggests that a transit agency compare the distribution of eligibility determinations to “national ‘norms’ to determine if the process is ‘on track.’” This guide offers suggestions for structuring the appeals process and training and select- ing members of the appeal panel. The guide stresses the importance of consistent decision making, both between the initial determination and appeals and among the appeals. As stated in the guide: “It is critical that those hearing appeals make decisions on the same regulatory criteria of eligibility that are used in the initial process. There can be a tendency for those hearing [an] appeal to try to resolve the difference of opinion between the applicant and the agency by coming up with a ‘compromise’ decision that gives something to each side. However, this is not the purpose of the appeals process and it can be damaging to the overall process if appeal decisions are made in this way.” Refer to Appendix A for additional excerpts from this guide. TRB Synthesis Nearly 20 years ago, TRB published TCRP Synthesis 30: ADA Paratransit Eligibility Certifica- tion Practices (Weiner 1998). This synthesis documented the approaches to paratransit eligibil- ity that had been developed during the first 5 years of ADA paratransit. The eligibility appeal process was a relatively new responsibility for transit agencies. Eligibility appeals were not a pressing issue for transit agencies at that time. “In general, transit agencies have not been over- whelmed with the number of appeals submitted by applicants who have been dissatisfied with their eligibility determination. A number of agencies reported that, as they enter the recertifica- tion process with more restrictive eligibility procedures, the number of appeals has increased.” The synthesis also raised the possibility of looking at a transit agency’s appeals statistics as a measure of the eligibility program. The conclusions do not, however, address the appeal process. At the time the research was conducted, much concern existed among transit agen- cies about the rapidly increasing ADA paratransit ridership. The hope among many in the industry was that refinements in the eligibility determination process—in particular, the use of in-person interviews and functional assessments, which were much less common during the 1990s—would lead to a slowing in ridership growth. National Center for Transit Research Eligibility Assessments Research A 2009 study funded by the National Center for Transit Research looked at a trend toward more rigorous paratransit eligibility assessments (Sapper, Goodwill, and Carapella 2009). As stated in the study’s project overview, “The objective of this research was to document the changes that transit systems made to their ADA paratransit eligibility procedures and to deter- mine the impacts these changes have had on riders with disabilities.” The study team con- ducted a transit agency survey and received 39 responses. The report presents case studies of ten respondents. The report’s summary of best practices included the following statement: “It is essential to ensure that ADA complementary paratransit eligibility determinations are conducted in a fair and objective manner and that an appeal or grievance procedure is offered to any applicant deemed ineligible; this is a Civil Right. To accomplish this, the process must be provided in a timely, straightforward manner and with the inclusion of independent assessors.”

10 Administration of ADA Paratransit Eligibility Appeal Programs DREDF Topic Guides The Disability Rights Education & Defense Fund (DREDF), an advocacy group for persons with disabilities, published a set of seven topic guides that cover various components of the U.S.DOT ADA regulations for both fixed-route and paratransit service. The intended audi- ences for these topic guides are transit agencies, fixed-route riders, paratransit riders, and dis- ability advocates. Volume 3 is Eligibility for ADA Paratransit (DREDF and TranSystems Corp. 2010). The topic guides draw many of their findings and recommendations from FTA’s ADA compliance reviews. These reviews set forth findings (usually citations of non-compliance) and recommendations (suggestions for ways to address the findings). The topic guides also draw information and recommendations from: • U.S.DOT disability law guidance. • FTA ADA letters of finding and bulletins. • TRB and National Council on Disability publications. • National Transit Institute courses. • Easter Seals Project ACTION publications and distance learning sessions. • APTA draft recommended standards. • Recommendations of nationally recognized ADA paratransit operators, planners, and researchers. The topic guide on ADA paratransit eligibility demonstrates how FTA applies the regulatory requirements to actual transit agency policies and practices. This topic guide also offers analysis of the FTA findings and recommendations to transit agencies. Refer to Appendix A for excerpts from the ADA paratransit eligibility topic guide. Proposed Alternative to Appeal Hearings Easter Seals Project ACTION funded a study to explore the use of mediation as a part of the complaint and appeal process in ADA paratransit. The resulting publication, A Complaint and Appeals Guidebook for Public Transit Agencies: A New Approach Using Mediation (Lipsey, McCarty, Mummey, and Miles 1998) describes how mediation can be used as part of the ADA complaint and appeals process. The authors developed a pilot mediation process together with Lane Transit District in Eugene, Oregon, and also applied it with the Metropolitan Atlanta Rapid Transit Authority in Georgia. This document sets forth a rationale for an alternative to the eligibility appeal process. The study claims three advantages of mediation: streamlining the complaint process, saving costs, and resolving more complaints to both sides’ satisfaction. To those individuals who are wary of the mediation process, the study cites a paragraph in Title III of the ADA that encourages the use of alternate means of dispute resolution. The study did not, however, identify any transit agency that uses mediation as a way to address eligibility appeals. Also, it is notable that the idea of finding middle ground conflicts with the 2014 Easter Seals Project ACTION guidance. Advocacy Publication DREDF Advocacy Document DREDF also published a handout, “ADA Paratransit Eligibility: How to Make Your Case” (Irvine and Golden n.d.). The stated purpose of this document is “to assist people with dis- abilities to obtain an accurate and fair ADA paratransit eligibility determination.” The handout

Literature Review 11 outlines a series of suggestions to be taken by an individual who is applying for complementary paratransit service: • “Figure out what categories you are eligible for.” • “Prepare your supporting documentation.” • “Make the most of an in-person interview or functional assessment.” • “Bring help if you need it.” • “Appeal if you are denied paratransit eligibility.” The handout also suggests a sixth step that can be taken if the individual’s appeal is denied “and you don’t think the ADA paratransit eligibility process was fair.” The authors also observe that “[t]o date, FTA has been more involved in pursuing violations of the eligibility process (for example, ensuring that transit agencies have a proper appeals pro- cess) than in second-guessing the content of a particular eligibility appeal decision. However, it is very important that FTA hear about problems with eligibility denials, especially serious prob- lems and patterns (that is, when the same problem affects more than one person)” (Irvine and Golden n.d.). Refer to Appendix A in this synthesis for excerpts from this document. Summary Little recent literature was found on the eligibility appeal process. In the broader area of paratransit eligibility, most agencies have focused on refining their process for the initial deter- minations, such as conducting in-person interviews and assessments to supplement paper appli- cations and medical verifications. As the survey data collected for this research indicates, whereas agencies have established appeal processes in response to the DOT regulations, it is primarily the larger paratransit operations that have had to make significant use of the process.