Administration of ADA Paratransit Eligibility Appeal Programs (2018)

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A-1 A P P E N D I X A Excerpts from Literature Review Documents United States Department of Transportation (US DOT): 49 CFR Part 37, Transportation Services for People with Disabilities, Code of Federal Regulations. Appendix D to Part 37 (“Construction and Interpretation of Provisions of 49 CFR Part 37”) offers additional guidance on the appeal process. The administrative appeal process is intended to give applicants who have been denied eligibility the opportunity to have their cases heard by some official other than the one who turned them down in the first place. In order to have appropriate separation of functions—a key element of administrative due process—not only must the same person not decide the case on appeal, but that person, to the extent practicable, 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 decisionmaker). When, as in the case of a small transit operator, this degree of separation is not feasible, the second decisionmaker should at least be “bubbled” with respect to the original decision (i.e., not have participated in the original decision or discussed it with the original decisionmaker). In addition, there must be an opportunity to be heard in person as well as the chance to present written evidence and arguments. All appeals decisions must be in writing, stating the reasons for the decision. To prevent the filing of stale claims, the entity may establish a 60 day “statute of limitations” on filing of appeals, the time starting to run on the date the individual is notified on the negative initial decision. After the appeals process has been completed (i.e., the hearing and/or written submission completed), the entity should make a decision within 30 days. If it does not, the individual must be provided service beginning the 31st day, until and unless an adverse decision is rendered on his or her appeal.

A-2 Administration of ADA Paratransit Eligibility Appeal Programs TranSystems Corp. and ACCESS Transportation Systems, Determining ADA Paratransit Eligibility: An Approach, Guidance and Training Materials, Easter Seals Project ACTION, Washington, D.C., 2014. The eligibility appeal process is one of many topics covered. Section 10, “Managing the Process,” offers a number of suggestions for appeal process: Outcome data should also be compared to peers and national “norms” to determine if the process is “on track.” For example, national reports suggest the following types of outcomes for thorough processes that include in-person interviews and functional assessments: Unconditional eligibility—About 50-60% of all applicants Conditional eligibility—About 20-40% of all applicants Temporary eligibility—About 10-15% of all applicants Not eligible—About 1-10% of all applicants A good appeals process is in the interest of both applicants and transit agencies. It helps ensure that people with disabilities have access to services to which they have a right. It also helps correct any errors made by transit agencies in the initial determinations… A good appeals process that is viewed as fair and objective by the community will also help with public acceptance of the overall eligibility determination process. If mistakes are sometimes made in initial determinations (no system can expect to be perfect), the community will have confidence that decisions will be reviewed in an objective and fair way. Concerning the scheduling of appeal hearings, the guide states: The regulations are silent, though, on the amount of time that transit agencies have to schedule appeal hearings after requests have been received… Given the intent to ensure that appeal decisions are made in a timely manner, it is recommended that transit agencies schedule appeal hearings in a reasonable period of time following the receipt of requests. It is a good practice to schedule appeal hearings within 2 to 3 weeks. It may be considered unreasonable to take longer than 3 to 4 weeks to schedule appeal hearings… To help ensure timeliness, it is a good practice to limit the number of people who hear appeals… Three or five members is typical. More might pose scheduling problems and make it more difficult to hear appeals in a timely way. Concerning the members of the appeal committee, the guide states: ... They should also have a clear understanding of the regulatory criteria for ADA paratransit eligibility. They should understand fixed-route accessibility and policies

Excerpts from Literature Review Documents A-3 related to riders with disabilities, and should know what tasks need to be performed and what skills are needed to be able to use the fixed-route system independently. ... It is recommended that individuals not be selected solely as “representatives” of the transit agency, advisory committee, or community .... They may feel compelled to represent the perspective of that agency or group. At the same time, it is important to select people who will be viewed as independent and objective by the community. ... It is recommended that individuals be selected for the added knowledge they bring to the decision.” It is also recommended that transit agencies provide training to those selected to hear appeals. The guide stresses the importance of consistent decision making, both between the initial determination and appeals, and among the appeals, stating: 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 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. Similarly, those making initial determinations should not rely on the appeal process for accurate decisions. For documenting appeals: There is no requirement to transcribe appeal hearings. However, it is recommended that a good and detailed record be made of the proceedings.

A-4 Administration of ADA Paratransit Eligibility Appeal Programs Disability Rights Education and Defense Fund (DREDF) and TranSystems Corp., Topic Guides on ADA Transportation: Eligibility for ADA Paratransit, DREDF, Berkeley, CA, 2010 The ADA paratransit eligibility topic guide demonstrates how FTA applies the regulatory requirements to actual transit agency policies and practices. FTA found transit agencies required too much detailed information from applicants requesting appeals in several ADA compliance reviews including: Finding: “EBP’s ‘Request for Appeal’ form includes, ‘I think I am eligible for ADA paratransit services because,’ followed by blank lines. All that is required of the appellant is a signed declaration, within the specified timeframe, that he/she is exercising his/her right to appeal.” [Federal Transit Administration ADA Compliance Review of Alameda Contra Costa Transit District (AC Transit) and San Francisco Bay Area Rapid Transit District (BART), Oakland, California] The topic guide also offers recommendations to transit agencies. Two examples: It is a best practice to have an informal review of eligibility denials when applicants request appeals. If the internal, informal review finds that an error was made in the initial determination, and the decision is changed, a formal appeal can be avoided. However, these informal reviews should be transparent to the applicant. If an internal review is considered a first formal part of the appeal process, all requirements related to formal appeals must be met. Generally, the transit agency need not provide paratransit service to the individual during determination of the appeal. However, if the person filing the appeal received ADA paratransit service in the past, but was denied eligibility during recertification, it is a best practice to continue paratransit service during determination of the appeal. It also mixes recommendations and analysis. Two examples: The first part of the appeal process, from request to hearing, does not have a specific time limit, but it is not open ended. If it takes too long to complete, this is not consistent with the ADA because it is administratively burdensome on the applicant. A high rate of overturned denials in the appeal process may indicate that improvements are needed in initial determinations. It is a best practice for transit agencies to use appeals decisions to identify possible problems with the initial determination process, and make changes to avoid the same mistakes in the future. A low rate of overturned denials in the appeal process may indicate that the initial determination process is very thorough and accurate. But it may also indicate that the person or panel deciding appeals is not properly trained in ADA eligibility standards, and is not sufficiently scrutinizing initial eligibility determinations. Strong trends in the outcomes of appeals (whether high or low) should be considered carefully by transit agencies.

Excerpts from Literature Review Documents A-5 Irvine, K. and M. Golden, ADA Paratransit Eligibility: How to Make Your Case, https://dredf.org/transportation/paratransit_eligibility.html, retrieved January 18, 2017 The document provides an overview of ADA paratransit eligibility process. It offers suggestions to an individual who is applying for complementary paratransit service, including: 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 Further steps if your appeal is denied, and you don't think the ADA paratransit eligibility process was fair The list of supporting documentation suggested by the authors is meant primarily for the initial eligibility application, but may be equally useful for an individual who is appealing: A detailed statement from a disability-service provider (independent living specialist, rehabilitation counselor, travel trainer, employment-support specialist, etc.). This should explain how your disability or its symptoms/effects prevent you from using the mainline system. A detailed statement from a medical professional (physician, psychologist, therapist, etc.). Medical or disability-related information should explain how your disability or its symptoms/effects prevent you from using the mainline system. A detailed personal journal/log that documents the impact of travel on your disability, health, energy, stamina, etc. This can be as detailed as you wish, so long as it is clear. For example, one entry might read: "May 31, 2003: I went four blocks to the store this afternoon. While at the store, I needed to take 20 minutes to rest before getting the energy to shop. When I returned home, I needed to rest for two hours before I had the energy to make dinner." A detailed listing of the access barriers that prevent you from traveling to the bus stop or rail station. For example, no curb cuts on all four corners, no sidewalks, extremely busy intersection with fast "walk/don't walk" cycle, no pedestrian signals, lack of snow removal during winter months, hilly terrain, weather during portions of the year that makes negotiating the distance impossible for you, etc. Information about other factors that would prevent you from riding the mainline service, such as inadequate funding for personal assistance services that would allow you to be adequately dressed to be outside for a prolonged period of time, or inadequate funding for a power wheelchair, etc. For example: "I could use the mainline bus on cold days if I had assistance to get my coat, gloves, hat and scarf on, but current funding only allows me to

A-6 Administration of ADA Paratransit Eligibility Appeal Programs hire a personal assistant to come to my home first thing in the morning and at the end of the day and I cannot wear those warm clothes indoors all day.” If an appeal committee upholds a decision, the authors note that: To date, FTA has been more involved in pursuing violations of the eligibility process (for example, ensuring that transit agencies have a proper appeals process) 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 problems and patterns (that is, when the same problem affects more than one person). Eligibility complaints to FTA may be particularly effective if important information was disregarded by the transit agency, or if multiple complaints are submitted by several people against the same transit agency, especially if all are submitted together.