Impacts of the Americans with Disabilities Act on Transit Agency Liability (2018)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

24 Section 37.9(a) of the DOT regulations states that “a transportation facility shall be considered to be readily accessible to and usable by individuals with disabilities if it meets the requirements of [part 37] and the requirements set forth in Appendices B and D to 36 CFR part 1191, which apply to buildings and facilities covered by the [ADA], as modified by Appendix A to [part 37].”310 Thus, the DOT Stan- dards, which differ from the Justice Department’s 2010 standards, apply to transportation facilities.311 Transit agencies must comply with the DOT Standards when constructing new transportation facilities or altering existing ones. Transportation facilities must be accessible to and usable by indi- viduals with disabilities when the facilities are viewed in their entirety.312 When a public transit agency owns more than 50% of a rail facility that is used by both commuter and intercity rail, the tran- sit agency is responsible for making the rail facility accessible.313 When other entities control elements of facilities that individuals with disabilities use or would use, the FTA encourages transit agencies to “engage” with the other entities.314 B. Construction of New Transportation Facilities Section 12146 of the ADA states that for purposes of 42 U.S.C. § 12132, as well as Section 504 of the Rehabilitation Act of 1973, it shall be considered discrimination for a public entity to construct a new facility to be used in the provision of desig- nated public transportation services unless such facility is readily accessible to and usable by individuals with disabili- ties, including individuals who use wheelchairs.315 Section 37.41(a) of the regulations also requires that any new facility for providing designated public transportation services must be built so that it is readily accessible.316 Chapter 3 of the FTA Circular likewise discusses requirements for transportation facilities and 310 FTA Circular, Ch. 3.1.1, p. 3-1 (quoting 49 C.F.R. § 37.9(a)). 311 Id. Ch. 3.1.1, p. 3-2. 312 Id. Ch. 3.1.2, p. 3-3 (discussing 49 C.F.R. part 37, subpart C). 313 Id. (discussing 49 C.F.R. § 37.49(b)). 314 Id. Appendix D to 49 C.F.R. § 37.49 explains the requirements for coordinating shared Amtrak and com- muter rail stations. See FTA Circular, Ch. 3.1.2, p. 3-3. 315 42 U.S.C. § 12146 (2018). 316 See FTA Circular, Ch. 3.3, p. 3-10 (discussing 49 C.F.R. § 37.41(a)). “[A] facility or station is ‘new’ if its con- struction begins (i.e., issuance of notice to proceed) after January 25, 1992, or, in the case of intercity or commuter rail stations, after October 7, 1991.” FTA Circular, Ch. 3.3, p. 3-10 (quoting 49 C.F.R. § 37.41(a)). preparedness program did not meet ADA require- ments, in part because its evacuation plans failed to accommodate the needs of individuals with dis- abilities for evacuation from high-rise buildings and accessible transportation. The plans for shel- ters, either architecturally or programmatically, did not require that shelters be sufficiently acces- sible to accommodate persons with disabilities in an emergency. The city had no plan for ensuring that people with disabilities would be able to have access to city services after an emergency. J. Claims Against Transit Agencies for Alleged Violations of Title II Of the forty-seven transit agencies responding to the survey conducted for this digest, twenty-one agencies had claims or cases in the past five years that alleged that their agency violated Title II by the use of prohibited discriminatory practices. The claims related to a lack of accessibility features required for vehicles, such as bus lifts or ramps, and/or facilities, lack of assistance of individuals by transit agency personnel, passengers’ use of service animals, inaccessible or inoperable elevators, and/or failure to make reasonable modifications of vehicles and facilities.306 The claims and cases are discussed in the summary of the transit agencies’ responses to the survey.307 On the other hand, twenty-six agen- cies responding to the survey did not have any Title II claims or cases in the past five years. VI. REQUIREMENTS FOR TRANSPORTATION FACILITIES UNDER TITLE II OF THE ADA A. ADA Standards for Transportation Facilities Under the ADA, the U.S. Architectural and Transportation Barriers Compliance Board (Access Board) is responsible for design guidelines for the accessibility of facilities and vehicles that the ADA covers.308 The FTA Circular refers to the ADA Stan- dards for Transportation Facilities that are set forth in Appendices B and D to 36 C.F.R. part 1191 and in Appendix A to part 37 as the “DOT Standards.”309 306 See Appendix C, Transit Agencies’ Responses to Question 6. 307 See id. 308 FTA Circular, Ch. 3.1.1, p. 3-2 (discussing 49 C.F.R. § 37.9(a)). 309 Id. Ch. 3.1.1, p. 3-2. The DOT Standards are acces- sibility standards for transportation facilities that are based upon the United States Access Board’s ADA Acces- sibility Guidelines. See uniteD states access boaRD, about tHe aDa stanDaRDs foR tRansPoRtation faciLities, https:// www.access-board.gov/guidelines-and-standards/trans- portation/facilities/about-the-ada-standards-for-transpor- tation-facilities (last accessed June 20, 2018).

25 D. Claims Arising out of Alleged Inaccessible Facilities Only one transit agency responding to the survey had a claim or case in the past five years that alleged that a new facility its agency constructed and/or used for public transportation service violated the ADA.329 Only four transit agencies responding to the survey reported that they had claims or cases in the past five years that alleged that their agency’s alteration of an existing facility violated the ADA.330 However, since the enactment of the ADA, transit agencies have had cases that alleged that their agency did not comply with the ADA when con- structing or altering transportation facilities. Disabled in Action v. Southeastern Pennsylvania Transportation Authority331 concerned two separate construction projects for SEPTA involving three sta- tions.332 SEPTA appealed a district court’s grant of a summary judgment in favor of the plaintiff Disabled in Action (DIA) on the basis that SEPTA’s work at the 15th Street Courtyard and City Hall Courtyard locations constituted alterations that “triggered” requirements under the ADA and the Rehabilitation Act to make the locations readily accessible to indi- viduals with disabilities.333 The Third Circuit had to decide the meaning of the terms alterations, maximum extent feasible, and readily accessible and their application to the SEPTA projects.334 First, regarding alterations, the court found that § 12147(a) of the ADA does not define the terms alterations or maximum extent fea- sible.335 However, the “implementing regulations … in 49 C.F.R. § 37.43(a)(1) echo the requirements of 42 U.S.C. § 12147(a).”336 Under the regulations, the term alteration means “a change to an existing facility, including, but not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in struc- tural parts or elements, and changes or rearrangement in the plan configuration of walls ... [but not] [n]ormal mainte- nance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical or electrical systems ... unless they affect the usability of the building or facility.”337 329 See Appendix C, Transit Agencies’ Responses to Question 18. 330 See id., Transit Agencies’ Responses to Question 19. Forty-two agencies responding to the question stated that they had not had any claims or cases. One agency did not respond to the question. 331 635 F.3d 87 (3d Cir. 2011). 332 Id. at 89-90. 333 Id. at 92. 334 Id. at 93. 335 Id. 336 Id. 337 Id. (quoting 49 C.F.R. § 37.3). emphasizes that the requirements apply to the con- struction of new facilities,317 as well as the alteration of existing ones.318 C. Alterations of Existing Facilities The ADA applies to alterations of existing facili- ties. An alteration is a change that affects the usabil- ity of a facility.319 When there are alterations of an existing facility that is used for designated public transportation services, a public entity discrimi- nates against individuals with disabilities when the public entity fails to make such alterations (or to ensure that the alterations are made) in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the com- pletion of such alterations.320 The ADA mandates that when there are altera- tions of a “primary function area” of a facility, such as platforms or waiting areas, a public entity, such as a transit agency, must “ensure that the path of travel to the altered area is readily accessible to the maximum extent feasible, subject to a dispropor- tionate cost analysis.”321 That is, “[w]hen the cost of alterations necessary to make a path of travel to the altered area fully accessible is disproportionate to the cost of the overall alteration, then such areas shall be made accessible to the maximum extent without resulting in disproportionate costs….”322 The FTA Circular discusses accessibility issues in connection with DOT Standards and station parking,323 passenger loading zones,324 curb ramps,325 track crossings,326 and station platforms,327 as well as the “path of travel to and within facilities, sig- nage and communication, telephones and fare vend- ing, and emergency egress and places of refuge.”328 317 Id. Ch. 3, p. 3-1. 318 Id. Ch. 3.4 p. 3-11. 319 Id. Ch. 3.4.2, p. 3-13 (discussing 49 C.F.R. §§ 37.3 and 37.43(a)). 320 42 U.S.C. § 12147(a) (2018). See also FTA Circular, Ch. 3.4, p. 3-11 (discussing 49 C.F.R. § 37.43(a)(1)). 321 FTA Circular, Ch. 3.4, p. 3-11 and Ch. 3.4.4, pp. 3-14–3.15 (discussing 49 C.F.R. § 37.43(a)(2)). 322 Id. Ch. 3.4.6, p. 3-16 (quoting 49 C.F.R. § 37.43(f)(1)). 323 Id. Ch. 3.2.1, p. 3-5. 324 Id. Ch. 3.2.2, p. 3-6. 325 Id. Ch. 3.2.3, p. 3-7. 326 Id. Ch. 3.2.4, p. 3-8. 327 Id. Ch. 3.2.5, p. 3-9. 328 Id. Ch. 3.2, p. 3-5 (discussing DOT Standards).

26 The court ruled that SEPTA violated Title II of the ADA, as well as the Rehabilitation Act, when it made alterations at the foregoing locations without making the facilities readily accessible to persons with disabilities and affirmed the district court’s grant of a summary judgment for DIA.346 E. New and Existing Stations for Use in Intercity or Commuter Rail Transportation Section 12162(e) of the ADA applies to new and existing stations for use in intercity or commuter rail transportation.347 It is a violation of the ADA if a new station is constructed “for use in intercity or commuter rail transportation that is not readily accessible to and usable by individuals with a dis- ability, including individuals who use wheelchairs.”348 “The term ‘intercity rail transportation’ means transportation provided by the National Railroad Passenger Corporation.”349 The term “commuter rail passenger transportation” refers to “short-haul rail passenger transportation in metropolitan and suburban areas usually having reduced fare, multiple-ride, and commuter tickets and morning and evening peak period operations.”350 As for existing intercity and commuter rail stations, they must be made accessible to and usable by persons with disabilities.351 When altering inter- city or commuter rail stations, they must be altered “to the maximum extent feasible” so that the altered 346 Id. 347 42 U.S.C. § 12162(e)(1) and (2) (2018). 348 Id. § 12162(e)(1). 349 Id. § 12161(3). 350 Id. § 24102(3). 351 Id. §§ 12162(e)(2)(A)(ii) states (I) Intercity rail—All stations in the inter- city rail transportation system shall be made readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as soon as practicable, but in no event later than 20 years after the date of enactment of this Act [enacted July 26, 1990]. (II) Commuter rail—Key stations in com- muter rail transportation systems shall be made readily accessible to and usable by indi- viduals with disabilities, including individu- als who use wheelchairs, as soon as practica- ble but in no event later than 3 years after the date of enactment of this Act [enacted July 26, 1990], except that the time limit may be extended by the Secretary of Transportation up to 20 years after the date of enactment of this Act [enacted July 26, 1990] in a case where the raising of the entire passenger plat- form is the only means available of attaining accessibility or where other extraordinarily expensive structural changes are necessary to attain accessibility. An alteration is a change that affects the usabil- ity of the facility being altered.338 The court rejected SEPTA’s argument that the ADA Accessibility Guidelines (ADAAG) are incorpo- rated in the DOT regulations and, therefore, limit the types of construction that are alterations within the meaning of the ADA.339 The Third Circuit ruled that the construction in the 15th Street Courtyard and City Hall Courtyard locations, even if they were not major structural alterations, were still altera- tions that required SEPTA to comply with part 37 and the ADAAG.340 Second, regarding what is meant by the term maximum extent feasible, DIA argued that, because of the absence of any reference to costs, the term maximum extent feasible only refers to technical feasibility. SEPTA argued that the term maximum extent feasible had to include economic feasibility as well.341 The court held that because of the “narrow- ness” of 49 C.F.R. § 37.43(b), the term maximum extent feasible “contemplates that the infeasibility of making the altered portion of a facility will be only ‘occasional’ and will arise from ‘the nature of an existing facility….’”342 Therefore, the term maxi- mum extent feasible does not contemplate a trans- portation agency’s budgetary limitations as they “must be reckoned with at all times….”343 Third, as for the meaning of the term readily accessible, “SEPTA argue[d] that the 15th Street Courtyard is a part of Suburban Station, not of 15th Street Station, and thus, since the 15th Street Courtyard may be reached from street level by indi- viduals in wheelchairs via one of the Suburban Sta- tion elevators, it is already ‘readily accessible.’”344 The court, however, found that neither the 15th Street Courtyard nor the City Hall Courtyard loca- tion was readily accessible.345 338 Id. 339 Id. 340 Id. at 94. 341 Id. 342 Id. at 95. 343 Id. The court noted that both 42 U.S.C. § 12147(a) and 49 C.F.R. § 37.43 do contain provisions for the consid- eration of cost in making public transit facili- ties accessible, but only in different sections establishing requirements for certain addi- tional changes (e.g., to the bathrooms and drinking fountains) that must be made “to the maximum extent feasible” if an area that serves a “primary function” is altered. Id. 344 Id. at 96 (footnote omitted). 345 Id. at 97.

27 members encountered were not simply isolated or temporary interruptions caused by maintenance or repairs.362 The court found that BART’s manage- ment decisions had “resulted in a pervasive pat- tern of neglected maintenance” that repeatedly violated the ADA.363 BART’s promise to change its conduct was “not sufficient to overcome the strong record of its past neglect.”364 The court held that the plaintiffs had satisfied the requirements for preliminary mandatory injunctive relief, first, because there was a strong likelihood of success on the merits of the plaintiffs’ ADA claims, and, sec- ond, because the “[i]njuries to individual dignity and deprivations of civil rights constitute irrepa- rable injury.”365 The court also rejected BART’s argument that the plaintiffs’ action was moot.366 In Neighborhood Ass’n of the Back Bay, Inc. v. Federal Transit Administration,367 a federal court in Massachusetts held that the FTA complied with 49 U.S.C. § 303(c), which prescribed federal policy for federal lands, wildlife and waterfowl refuges, and historic sites. The FTA found that there was no fea- sible and prudent alternative to building an elevator headhouse on the granite steps of a library to make an historic subway station accessible to individuals with disabilities. Placing an elevator entrance else- where would “pervert” the purpose of making the station compliant with Title II of the ADA.368 More recently, in Williams v. Chicago Transit Authority,369 the plaintiff alleged that the Chicago Transit Authority (CTA) failed to notify passengers that the Clark and Lake station’s elevator was out of service, that there was no alternative route for wheelchair users to leave the station or to reach 362 Id. at 1083. 363 Id. at 1085. 364 Id. 365 Id. (citations omitted). The court expected the plain- tiffs to provide appropriate excerpts from the original manufacturers’ specifications on the elevator mainte- nance procedures that BART should follow so that the court could include them in the injunction. Id. at 1086. 366 Id. at 1084 (stating that “[v]oluntary cessation of illegal conduct does not render a challenge to that conduct moot unless ‘(1) there is no reasonable expectation that the wrong will be repeated, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation’”) (citation omitted). 367 407 F. Supp. 2d 323 (D. Mass 2005), aff’d, 463 F.3d 50 (1st Cir. 2006) (rejecting the organizations’ arguments that the proposed modifications would violate the National Historic Preservation Act of 1966 §§ 106 and 110(f), 16 U.S.C. §§ 470f, 470h-2(f), and § 4(f), 49 U.S.C. § 303(f), of the Department of Transportation Act of 1966). 368 Id. at 340. 369 No. 16 C 9072, 2017 U.S. Dist. LEXIS 166191 (N.D. Ill. Sept. 30, 2017). portions of the stations are readily accessible to and usable by individuals with disabilities.352 When alterations are completed, the travel paths to altered areas, as well as to bathrooms, telephones, and drinking fountains serving altered areas, must be readily accessible to and usable by individuals with disabilities, including individuals who use wheel- chairs, to the maximum extent feasible, as long as the costs of the alterations “are not disproportionate to the overall alterations in terms of cost and scope”353 F. Accessibility of Elevators Federal regulations require that “[p]ublic entities providing transportation services must ‘maintain in operative condition those features of facilities ... that are required to make the vehicles and facilities read- ily accessible.’”354 A public entity must repair acces- sibility features promptly and “take reasonable steps to accommodate individuals with disabilities who would otherwise use a malfunctioning feature.”355 In Cupolo v. Bay Area Rapid Transit,356 the plain- tiffs alleged that the Bay Area Rapid Transit (BART) systematically failed to provide equal access to its services to individuals with mobility disabilities.357 In support of their motion for a preliminary injunc- tion, the plaintiffs submitted declarations of class members who had encountered problems with BART’s elevators.358 Because BART was a recipient of financial assistance from the U.S. Department of Transportation, BART was subject to the Rehabili- tation Act.359 As the court observed, the ADA stan- dards apply to entities subject to the Rehabilitation Act.360 The court stated that § 37.16(c) of the regula- tions “‘does not prohibit isolated or temporary interruptions in service or access due to mainte- nance or repairs.’”361 However, BART’s record per- suaded the court that the problems that class 352 Id. § 12162(e)(2)(B)(i). 353 Id. § 12162(e)(2)(B)(ii). Whether alterations are dis- proportionate are to be determined by criteria established by the Attorney General. Id. 354 Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1083-84 (N.D. Cal. 1997) (quoting 49 C.F.R. § 37.161(a)). 355 Id. (citing 49 C.F.R. § 37.161(b)). 356 5 F. Supp. 2d 1078 (N.D. Cal. 1997). 357 Id. at 1079 (citing caL. civ. coDe § 54). 358 Id. at 1080. 359 Id. at 1082-83. 360 Id. (citing 49 C.F.R. § 27.19(a)). The court acknowl- edged also that the California Disabled Persons Act, caL. civ. coDe § 54(a), incorporates the ADA. 361 Id. at 1083-84 (quoting 49 C.F.R. § 161(c)).

28 regulations “requires that light rail systems con- fined entirely to a dedicated right-of-way provide level boarding, and establishes standards for new vehicles in new stations, new vehicles in existing stations, and retrofitted vehicles in new and key stations.”379 The FTA Circular explains the require- ments for rapid rail380 and light rail platforms.381 In September 2011, DOT added § 37.42 to its regulations. The section states in part: (a) In addition to meeting the requirements of sections 37.9 and 37.41, an operator of a commuter, intercity, or high- speed rail system must ensure, at stations that are approved for entry into final design or that begin construction or alteration of platforms on or after February 1, 2012, that the following performance standard is met: individuals with disabilities, including individuals who use wheel- chairs, must have access to all accessible cars available to passengers without disabilities in each train using the station. (b) For new or altered stations serving commuter, intercity, or high-speed rail lines or systems, in which no track pass- ing through the station and adjacent to platforms is shared with existing freight rail operations, the performance stan- dard of paragraph (a) of this section must be met by provid- ing level-entry boarding to all accessible cars in each train that serves the station.382 As the FTA Circular affirms, the regulations require “intercity, commuter, and high-speed pas- senger railroads to ensure, at new and altered sta- tion platforms, that passengers with disabilities can enter and exit any accessible car of the train.”383 In Foley v. City of Lafayette,384 the plaintiff alleged that there was inadequate egress from a city-owned train-station platform. The Seventh Circuit found 379 Id. 380 Id. Ch. 3.6, p. 3-20 (discussing 49 C.F.R. § 38.53(d)). 381 Id. Ch. 3.7, p. 3-21 (discussing 49 C.F.R. § 38.71(b) and (d)). 382 49 C.F.R. § 37.42 (c) states: For new or altered stations serving com- muter, intercity, or high-speed rail lines or systems, in which track passing through the station and adjacent to platforms is shared with existing freight rail operations, the rail- road operator may comply with the perfor- mance standard of paragraph (a) by use of one or more of the following means: (1) Level-entry boarding; (2) Car-borne lifts; (3) Bridge plates, ramps or other appropri- ate devices; (4) Mini-high platforms, with multiple mini-high platforms or multiple train stops, as needed, to permit access to all accessible cars available at that station; or (5) Station-based lifts.… 383 FTA Circular, Ch. 3.8, p. 3-22 (discussing 49 C.F.R. § 37.42(a)). 384 359 F.3d 925 (7th Cir. 2004). ground level, and that the State and Lake station was not wheelchair accessible. Williams alleged also that he was thrown violently to the floor when a CTA rail operator failed to assist Williams as he boarded a second train.370 The court observed that “[t]he ADA’s implement- ing regulations provide that ‘[a] public entity shall maintain in operable working condition those fea- tures of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.’”371 Although DOT regulations state that an entity that operates a train station must repair accessibility features “promptly if they are damaged or out of order,” and that “[w]hen an accessibility feature is out of order, the entity shall take reasonable steps to accom- modate individuals with disabilities who would otherwise use the feature,”… the regulations caution that they do “not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.”372 First, the court ruled that the plaintiff ’s allega- tions did not create a “reasonable inference” that there was a “frequent denial of access” to individu- als with disabilities or a policy that neglects elevator maintenance, that the CTA failed to promptly repair the broken elevator, or that the CTA did not make the repair a high priority.373 Second, although the rail operator driving the next train may have been negligent for failing to assist the plaintiff, the court ruled that “‘[i]solated acts of negligence by a city employee,’ assuming that the alleged acts were in fact negligent, ‘do not come within the ambit of discrimination’ proscribed by the ADA” against individuals with disabilities.374 Moreover, when an ADA plaintiff alleges only that the defendant was negligent, the plaintiff may not recover compensatory damages.375 Third, however, the court allowed the plaintiff to replead his claim that the State and Lake station violated the ADA.376 G. Accessibility of Platforms The DOT Standards in Section 810.5 establish the general standards for rail platforms.377 “Section 810.5.3 references the platform-to-rail-car gap stan- dards found in Part 38.”378 Section 38.71(b) of the 370 Id. at *3. 371 Id. at *5 (citation omitted). 372 Id. at *6 (citations omitted). 373 Id. at *8-9 (citations omitted). 374 Id. at *10 (citation omitted). 375 Id. at *11. 376 Id. at *13. 377 FTA Circular, Ch. 3.7, p. 3-21. 378 Id.

29 other extraordinarily expensive structural changes [were] necessary to attain accessibility.”391 The ADA requires public entities operating rapid and light rail systems and commuter rail systems to identify key stations that must be altered “to ensure a basic degree of usability by individuals with disabilities.”392 Commuter authorities must consult with individuals with disabilities and organizations representing them when designating key stations.393 The authorities must consider factors such as whether ridership is high and whether a station serves as a transfer or feeder station. A commuter authority must hold a public hearing before making a final designation of key stations.394 Primarily, key stations have to be altered “to provide at least one fully accessible entrance and accessible route to all areas necessary for the use of the transportation system,” a requirement that often necessitates the installation of elevators.395 With some exceptions, key stations have to comply with DOT Standards to the same extent as other new or altered stations.396 Plaintiffs have brought claims against transit agencies alleging that stations were not accessible to individuals with disabilities. In George v. Bay Area Rapid Transit,397 the plaintiff, who was legally blind, and for whom it was particularly difficult to negotiate stairs, fell when attempting to use BART’s “accessible or universal routes in its train stations.”398 BART’s facilities complied with DOT regulations that required each light rail station to have “‘at least one accessible route from an accessible entrance to those areas necessary for the use of the transporta- tion system.’”399 The plaintiff alleged, however, that some of BART’s stations did not have “color contrast striping or accessible handrails.”400 The Ninth Circuit reversed the district court’s ruling that the “DOT regulations were ‘both arbi- trary and plainly contrary to the statute … by fail- ing to address the needs of those with visual impairments.’”401 The appellate court found that the DOT considered the needs of individuals with visual disabilities, in part, through a performance 391 Id. § 12162(e)(2)(A)(ii)(II). 392 FTA Circular, Ch. 3.9, p. 3-27 (discussing 42 U.S.C. § 12147(b) (rapid rail and light rail) and 42 U.S.C. § 12162(e)(2)(a) (commuter rail)). 393 42 U.S.C. § 12162(e)(2)(A)(iii) (2018). 394 Id. 395 FTA Circular, Ch. 3.9, p. 3-27. 396 Id. 397 577 F.3d 1005 (9th Cir. 2009). 398 Id. at 1007. 399 Id. at 1008 (citation omitted). 400 Id. 401 Id. at 1009 (citation omitted). that the inoperable elevators and snow-covered ramp that prevented Foley from exiting the station platform were “non-actionable isolated or tempo- rary conditions….”385 The DOT’s interpretation of its own regulation makes sense: the only way to apply 49 C.F.R. § 37.161 is to consider the unique circumstances inherent in any particular trans- portation service site. In other words, there are no univer- sal definitions in the regulations for what is required to “maintain in operative condition” the accessibility features, to repair “promptly” such features, or to take “reasonable steps” to accommodate when the features are not accessi- ble. The extent of inaccessibility covered by the terms “iso- lated or temporary” in 49 C.F.R. § 37.161 is likewise unclear and only determinable by considering the unique circum- stances of the case.386 The court ruled that the conditions of which Foley complained were weather-related that the city rem- edied or repaired promptly.387 There was no evi- dence of frequent denials of access to individuals with disabilities or a policy of neglect of elevator maintenance.388 Even if the defendant were negli- gent, the negligence “did not constitute a violation of the ADA.”389 H. Accessibility of Key Stations Title II specifically requires that transit agencies designate key stations and ensure their accessibil- ity. Under the ADA, a public entity providing desig- nated public transportation must “make key stations … in rapid rail and light rail systems readily acces- sible to and usable by individuals with disabilities, including individuals who use wheelchairs.”390 Sec- tion 12163 of the ADA requires that accessibility standards be consistent with the Architectural and Transportation Barriers Compliance Board’s mini- mum guidelines. Key stations used in commuter rail transportation systems had to “be made readily accessible to and usable by individuals with disabili- ties, including individuals who use wheelchairs, as soon as practicable but in no event later than 3 years after the date of enactment of [the ADA in 1990],” but the time limit could “be extended by the Secre- tary of Transportation up to 20 years after [the date of enactment of the ADA] in a case where the raising of the entire passenger platform [was] the only means available of attaining accessibility or where 385 Id. at 926. 386 Id. at 929. 387 Id. at 930. 388 Id. at 929. 389 Id. at 930. 390 42 U.S.C. § 12147(b)(1) (2018). By regulation, the Secretary of Transportation establishes criteria for the determination of key stations. Id.