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Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications (2011)

Chapter: IX. DISCUSSION OF PRACTICES WHEN REDUCING SERVICE OR INCREASING FARES

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Suggested Citation:"IX. DISCUSSION OF PRACTICES WHEN REDUCING SERVICE OR INCREASING FARES." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"IX. DISCUSSION OF PRACTICES WHEN REDUCING SERVICE OR INCREASING FARES." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"IX. DISCUSSION OF PRACTICES WHEN REDUCING SERVICE OR INCREASING FARES." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"IX. DISCUSSION OF PRACTICES WHEN REDUCING SERVICE OR INCREASING FARES." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"IX. DISCUSSION OF PRACTICES WHEN REDUCING SERVICE OR INCREASING FARES." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"IX. DISCUSSION OF PRACTICES WHEN REDUCING SERVICE OR INCREASING FARES." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"IX. DISCUSSION OF PRACTICES WHEN REDUCING SERVICE OR INCREASING FARES." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"IX. DISCUSSION OF PRACTICES WHEN REDUCING SERVICE OR INCREASING FARES." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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38 action brought by the Attorney General.548 Thus, the USDOT could not require by regulation “that bus com- panies pay ‘compensation’ to disabled passengers when [the bus companies] fail to provide them with accessible service.”549 Although a successful private plaintiff may recover reasonable attorney’s fees,550 only injunctive relief is available under Title III to a private party.551 Further- more, some courts have held “that they lacked jurisdic- tion to hear ADA Title III cases, because the plaintiffs’ individual instances of discrimination did not create standing to seek injunctive relief.”552 It may be noted that one commentator argues that the laws of 20 states and the District of Columbia “provide for reasonably effective relief beyond what ADA Title III requires.”553 One case has addressed the issue of whether a Title III private transit entity may be held liable under Title II of the ADA, discussed in Section VI, supra. In O’Connor v. Metro Ride, Inc.,554 the defendant Metro- politan Council was the successor to the former Re- gional Transit Board (RTB) and the former Metropoli- tan Transit Commission (MTC). Metro Ride was a “private, for profit company that was under contract with the RTB to provide Metro Mobility service, admin- istered by the MTC.”555 The plaintiffs’ complaint alleged that they were disabled and that they sustained inju- ries in connection with their use of the Metro Mobility’s paratransit van service.556 The plaintiffs argued that Metro Ride, even though a private party, was also liable under Title II of the ADA and thus subject to a claim for money damages not available under Title III. The plaintiffs argued that, because Metro Ride provided public transportation ser- vices and was subject to the ADA, they stood “in the shoes of the public entities with which they contract.”557 However, the court held that nothing under the regula- tions “provide[d] that a private entity may be liable to 548 Am. Bus. Ass’n v. Slater, 231 F.3d 1, 4, 343 U.S. App. D.C. 367 (D.C. Cir. 2000). 549 Id. at 3, 6. 550 Id. § 12205. The statute provides: In any action or administrative proceeding commenced pur- suant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a rea- sonable attorney’s fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual. 551 Id. §§ 12188(a)(1), (2) (2009) and § 2000a-3(a) (2009). See James v. Peter Pan Transit Mgmt., Inc., 1999 U.S. Dist. LEXIS 2565, at *21 N 4 (E.D. N.C. 1999) (stating that the “[p]laintiff may not recover money damages from Peter Pan on her ADA claim because money damages are not recoverable under title III of the ADA,” (citing 42 U.S.C. § 12188)). 552 Colker, supra note 518, at 377, 395 (citations omitted). 553 Id. at 406. 554 87 F. Supp. 2d 894 (D. Minn. 2000). 555 Id. at 895. 556 Id. 557 Id. at 899 (citing 49 C.F.R. §§ 37.5(a), 37.21(a), and 37.23(a)) (quotation marks omitted). pay money damages to a private plaintiff under Title II.”558 Thus, the court held that Metro Ride was not “li- able for money damages under Title II of the ADA, even though it may be bound by ADA requirements.”559 E. Transit Cases Arising Under Title III No cases were located involving Title III and private transportation entities providing regular service to the public that related to reduced service or increased fares.560 There is one recent case involving a private transportation company that failed to provide a bus with a wheelchair lift for customers with disabilities in which the company entered into a consent decree with the Justice Department.561 IX. DISCUSSION OF PRACTICES WHEN REDUCING SERVICE OR INCREASING FARES As stated, 64 agencies (see Appendix B) responded to a survey conducted for the digest. Some of the agencies’ responses are discussed elsewhere in the digest.562 Based on the agencies’ survey responses, this part of the digest discusses what transit agencies’ practices are with respect to Title VI and the ADA when transit agencies have to reduce service or increase fares. Many of the practices mentioned by agencies are covered, for example, in the 2007 FTA Title VI Circular or the USDOT LEP Policy Guidance. A. Transit Agencies’ Title VI Policies Thirty-two agencies stated that they had a policy for dealing with Title VI issues that may be implicated by a reduction in transit service and/or an increase in fares, whereas the same number of agencies, 32, stated that they do not. 558 Id. at 899–900 (footnote omitted). 559 Id. at 899. 560 In James, 1999 U.S. Dist. LEXIS 2565, at *20, the magis- trate judge recommended that Peter Pan’s motion for summary judgment be denied, because a “genuine issue of material fact exists as to whether Peter Pan adequately maintained and repaired its CAT Connector wheelchair lifts and adequately trained its employees to operate the lifts” in violation of Title III of the ADA. 561 United States v. New Century Travel, Inc. (D.D.C. July 10, 2008) (consent decree available at http://www.ada.gov/ newcentury.htm (Last visited Sept. 8, 2010)). 562 See pts. I.E.4 (transit agencies’ response to the 2007 FTA Title VI Circular); pt. V.C (transit agencies’ reported Title VI complaints in the past 10 years caused by a reduction in ser- vice or an increase in fares); pt. VI.E (transit agencies’ reported ADA complaints in the past 10 years); and pt. VIII.C (§ 13(c) certifications and the transit agencies’ responses to the survey regarding § 13(c)).

39 Table 1. Transit Agencies Having a Title VI Policy Ap- plicable to Reduction in Service or Increases in Fares Transit Agencies Having a Ti- tle VI Policy 32 Transit Agencies Not Having a Title VI Policy 32 For agencies having a policy, some of the transit agencies’ responses were: • The agency’s “policy/procedures regarding fare in- creases and service changes and the public review of such proposals is part of the Agency’s policy and proce- dure manual which does not differentiate between Title VI or ADA complaints.” • The agency has a written policy but it is not “spe- cific to reductions in service or increases in fares.” • The agency “regularly includes information on [its] policy and complaint process in monthly brochures to our passengers.” Several agencies referred to their formal Title VI in- vestigation and complaint process. For example, one agency in describing its practice stated that any com- plaints are logged and forwarded to the appropriate officer, an internal investigation is conducted with the assistance of counsel, and the results are conveyed in a letter to the complainant. A more detailed description provided by one agency was that: • It has established procedures and developed “local standards” for compliance with Title VI. • It has established internal guidelines for making determinations of Title VI compliance as part of the local decision-making processes and “continuing project management responsibilities.” • It evaluates system-wide changes in service and proposed improvements at the planning stage to deter- mine whether the benefits and costs of the changes are distributed equally and are not discriminatory. • It conducts compliance assessments of transit ser- vices and benefits to assure that service levels are equi- table and to ensure consistency in the quality of service among different user groups and to ensure responsive- ness to the needs of minorities. • It takes action on the findings and recommenda- tions made by officials reviewing the agencies’ policies and actions. In the resolution of complaints on an informal basis, the practices of some agencies are of interest. One agency stated that in one instance when there were complaints regarding a service reduction, the com- plaints were resolved by explaining to patrons why the service changes were occurring and that most riders would experience only minor inconvenience. In addi- tion, the agency used an appeals process to consider complaints with special circumstances, a method that resulted in approximately 10 percent of proposed bus stop consolidations being reinstated. Another agency described its practice in the han- dling of specific complaints regarding service reductions and fare increases. First, the agency’s service planning group used statistical analyses and documentation to demonstrate that none of the allegations could be sub- stantiated. Second, an analysis by the agency’s revenue department demonstrated that complaints regarding fare increases also could not be substantiated. In neither of the two agencies’ situations described above were complaints filed with the FTA. In sum, many agencies having a policy referred to their Title VI investigation and complaint process. As discussed below, when asked specifically about consid- eration of low-income populations or outreach to LEP persons, a much higher number of transit agencies re- ported having a policy of evaluating the effect of a re- duction in service or an increase in fares on low-income populations and having implemented methods to com- municate with and involve LEP persons with respect to such changes. B. Low-Income Populations Fifty-nine transit agencies said that when reducing transit service and/or increasing fares they take into account the effect of the change on low-income popula- tions as a factor in the agency’s decision-making. Three agencies stated that they do not. Table 2. Transit Agencies That Consider the Effect of a Reduction in Service or an Increase in Fare on Low-Income Populations Transit Agencies That Consider the Effect on Low- Income Populations 59 Transit Agencies That Do Not Consider the Effect on Low-Income Populations 3 Transit Agencies Not Re- sponding 2 In describing their practices, the agencies stated, for example, that: • The agency collects and analyzes demographic and service data showing the extent to which members of minority and low-income populations within the

40 agency’s service area are beneficiaries of programs re- ceiving FTA financial assistance. • The agency’s Title VI plan calls for the agency to examine the impact in particular within census tracts with a poverty level higher than the community as a whole. • The agency raises fares in accordance with federal guidelines, compares its fares with those of other agen- cies of similar size in its state and with nearby cities, and works with a Citizen Advisory Committee and community advocacy groups. • The agency’s service changes have been based upon performance measures, and the agency has re- duced service only on routes with the lowest ridership and contract services with the highest costs. • The city has conducted an analysis that compares the level of service provided to low-income and non-low- income populations that demonstrated that transit ser- vice was provided equitably and that disparities in ser- vice did not exist. • The MPO’s analysis and mapping of the low- income populations are completed for any service reduc- tions or fare increases. • The mayor’s Transit Rates and Service Commis- sion’s membership will include someone from the low- income population. • Public information sessions are held at the agency’s central transfer facility (accessible by all routes), as well as in low-income neighborhoods at community centers and meeting rooms of public hous- ing complexes. Some agencies provided a more detailed description of their practices. For example, Metropolitan Transit of Harris County, Houston, Texas, explained that [D]uring the FY 2004 System Productivity Program, five weekday routes were identified as being both poor per- forming routes with subsidies per boarding in excess of 100% above the average for local routes and lifeline with very low average household incomes. … Non-lifeline poor performing routes were discontinued in fall 2004, but these lifeline poor performing routes were retained for an additional 6 months to try and increase the ridership such that their subsidy per boarding would decrease to target levels. None of the five weekday routes met the ridership/subsidy per boarding targets at the end of the 6- month period. With community support, the alignment of one of these lifeline routes, the headway, and the span of service were shortened, but the route was retained. A new route was created from the remnants of another lifeline route, while the remaining three routes were discontin- ued due to poor performance. According to Omnitrans, San Bernardino, California, [The agency] use[s] GIS analytical techniques to model impact of multiple change scenarios in order to determine the least onerous scenario. … The effect of any proposed change is modeled against the demographics of the area in question. For any proposed service change, for exam- ple, the new route is compared to the old route, half-mile walking distance buffers are placed around the routes, and by using GIS analysis, the census blocks and block- groups affected by the change are identified within these buffers. Multiple scenarios are always generated as al- ternatives, and their effects are also determined. Dispro- portionate impact upon low-income or minority popula- tions is noted in each case…. The agency also stated that [O]nce a consensus is reached, there is always extensive public outreach, public hearings, and opportunity for pub- lic feedback. Very often, input from the public will sub- stantially modify the original change scenario so that dis- proportionate effect is mitigated even further. In the case of fare changes, multiple scenarios are always tendered, and compromises or least-impact alternatives are what the agency frequently chooses. As a matter of course, whenever fare increases are proposed, an accompanying pass discount of some type is often included as well; this gives the public a way to offset the effects of the fare in- crease. In all cases, …the public is given ample opportu- nity to comment upon them; the public’s input frequently mitigates any disproportionate effect the change might cause to low-income riders. Finally, and in all cases, pro- posed changes are only made, finalized, and approved by our Board if the changes in question are of substantial need and would have less of an impact than the status quo or other alternatives. The San Francisco Municipal Transportation Agency (SFMTA) states that [It employs] various off-setting measures in order to de- crease the impact of fare changes on minority and/or low- income groups: 1) increases in the Single Ride- Senior/Youth/Disabled Fare were designed to continue to offer deep discounts over the full fare via the Single Ride- Adult Fare and the Adult Monthly Passes; 2) the Lifeline Pass, created by SFMTA in 2005 in conjunction with the Human Services Agency in order to minimize the impact of fare increases being implemented at that time, re- mained an option for qualifying riders (according to an analysis of the 2000 U.S. Census data, minority commu- nities are the major beneficiaries of the Lifeline Pass pro- gram); and 3) in order to mitigate the effect of fare changes to minority and/or low-income youth transit cus- tomers, SFMTA continued its partnership with the San Francisco Human Services Agency (HSA) to provide at- risk minority and/or low-income youth with City-funded Single Ride-Senior/Youth/Disabled Monthly Passes. In sum, the vast majority of transit agencies report that they consider the effect of a reduction in service or an increase in fares on low-income populations. The practices include geographic information system (GIS) mapping and collecting and analyzing demographic, income, and service data; assessing the impact of pro- posed service reductions on low-income areas; compar- ing fares with fares in other areas; making efforts to assure that service and fares are equitable; using public information sessions and public hearings; being respon- sive to community involvement and input; and using discounts for low-income populations most affected by increased fares. C. Limited-English-Proficiency Persons Fifty-three transit agencies responded that when re- ducing transit service and/or increasing fares they take steps to give notice to and otherwise involve LEP per-

41 sons, including the use of public hearings. Nine transit agencies responded that they do not take LEP persons into consideration; two agencies did not respond to the question. Table 3. Transit Agencies That Involve LEP Persons When Reducing Service or Increasing Fares Transit Agencies That Involve LEP Persons 53 Transit Agencies That Do Not Involve LEP Per- sons 9 Transit Agencies Not Responding 2 Some of the agencies’ responses were: • The agency has an “LEP plan in effect that calls for us to provide translation assistance and other assis- tance to individuals identified as LEP.” • All prominent information is translated into Span- ish, which makes up 29 percent of the non-English- speaking population in the area as obtained from school district and census data, and materials are translated into Asian languages even though the 5 percent thresh- old is not met in the community the agency services. • Notices are published in local foreign language newspapers. • The agency uses multi-language advertisements and brochures and has interpreters and signers at all meetings with relevance to the riding public. • The city staff conducts outreach at “high passen- ger-transfer points such as transit centers or in com- munities known to have high levels of transit passen- gers”; all notices of public hearings are published in English and Spanish; and information is broadcast in media outlets that specifically serve African-American, Hispanic, and Asian communities. Other transit agencies described their practices in more detail. For example, the practice of Greater Bridgeport Transit Authority, Bridgeport, Connecticut, is to recognize “that there are more than 50,000 His- panic or Latino residents in its service area, which translates to roughly 25 percent of the service area’s population.” The Authority undertakes to make avail- able its timetables, newsletters, on-board displays, spe- cial notices, and radio advertisements and announce- ments to Hispanic or Latino residents. The Greater Cleveland Regional Transit Authority (GCRTA) reported that it uses language banks as one of its practices. [The agency] provides meaningful communication access to LEP persons through the assistance of Cleveland State University’s language bank. The language bank is a tele- phone interpreter service line offering speedy interpreta- tion assistance in many different languages. In addition, GCRTA’s Community Relations Specialist translates as needed to provide two-way communication between the Hispanic Community and GCRTA. GCRTA also employs three Customer Service Representatives in the Telephone Information Center (Call Center) who are Hispanic and speak fluent Spanish. Another agency provided an example of its recent outreach when it discontinued a lightly used branch and extended the route to serve a community college. The agency stated that prior to the changes, agency staff conducted research regarding languages spoken at home in the neighborhoods surrounding the route and disseminated handouts, brochures, and bus stop infor- mation in four languages (English, Spanish, Korean, and Vietnamese) to communicate successfully with af- fected transit riders. Another agency’s practice is to make certain it is aware of the ethnic and linguistic makeup of its service population. The agency uses an Attitude and Aware- ness Survey of its service population every 3 years. The survey provides the agency with a profile of its patrons by age, ethnicity, gender, and income, as well as the typical rider’s dependence on transit use. For instance, only 55 percent of its riders have a driver’s license; 14 percent of its riders live in a household without a li- censed driver compared to 2 percent of nonriders. Not unlike other agencies responding to the survey, one agency stated that because of the linguistic makeup of the agency’s service area, the agency seeks to im- prove communication with its Spanish-speaking com- munity by printing materials in both English and Span- ish, including its Rider Alerts; having bilingual Information Clerks; providing interpreters at public hearings; printing advertisements in both English- and Spanish-language newspapers; and making announce- ments on local radio stations that serve listeners who speak English or Spanish. TriMet uses a variety of methods to communicate proposed changes and solicit feedback from the commu- nity, including on-board notification, notification at af- fected stops, notification through a diversity list-serve, and public notices in local, minority newspapers and community publications. Its proposed changes are posted within buses and shelters, and individual notices are mailed to businesses or individuals identified as key stakeholders. TriMet advises that public hearings generally are held at public facilities (schools, community centers) within the affected neighborhoods. The agency commu- nicates with community-based organizations that rep- resent minority or low-income communities; employs GIS mapping software to identify affected LEP commu- nities for targeting its materials; and provides inter- preters at open houses or public hearings. TriMet has a full-time LEP Outreach Coordinator who solicits feed-

42 back from LEP audiences both from within their com- munities and at TriMet’s activities such as open houses and public hearings. It may be noted that TriMet’s “Language Implementation Plan” is made available by FTA on its Web site.563 Thus, most agencies responding to the survey re- ported that they undertake to communicate effectively with and involve LEP populations. The transit agencies’ practices include some of the “promising practices” dis- cussed in the USDOT LEP Policy Guidance, such as language banks, language support offices, the use of technology, telephone information lines and hot lines, and signage and other outreach.564 Transit agencies re- port using surveys or GIS mapping software to identify LEP communities; determining the languages spoken by the LEP persons in the area served; publishing no- tices, advertisements, brochures, and newsletters in the languages of the LEP persons; holding hearings in loca- tions convenient to neighborhoods with affected LEP populations; and providing interpreters at meetings and hearings. D. Transit Agencies’ ADA Policies Twenty transit agencies responding to the survey stated that they had a policy for dealing with ADA is- sues that may arise because of a reduction in transit service and/or an increase in fares, although not all policies were necessarily in writing or specific to the ADA. Forty-two agencies responded that they did not have an ADA policy in connection with issues arising because of a reduction in transit service and/or an in- crease in fares. Table 4. Transit Agencies Having an ADA Policy for Dealing With Issues Arising Because of a Reduc- tion in Transit Service and/or an Increase in Fares Transit Agencies Report- ing an ADA Policy Regard- ing Reduction in Transit Service and/or Increase in Fares 20 Transit Agencies Not Reporting an ADA Policy Regarding Reduction in Transit Service and/or In- crease in Fares 42 Transit Agencies Not Responding 2 563 See Examples of Language Implementation Plans Devel- oped by Transit Agencies, available at http://www.fta.dot.gov/civilrights/civil_rights_5088.html (Last accessed on Sept. 9, 2010). 564 DOT LEP Policy Guidance, 70 Fed. Reg. 74087, 74097– 098 (Dec. 14, 2005), available at http://edocket.access.gpo.gov/2005/05-23972.htm. Of the agencies responding that they have a policy, several referred to their complaint procedures or to their Title VI FTA reports. The responses were that the agency has a “formal ADA complaint investigation process,” “employs a grievance process for addressing all disagreements with service to ADA customers,” or that “ADA issues are forwarded to either the specialized service or operations department to determine if a vio- lation of [the] ADA has occurred.” GCRTA provided a more detailed description of its ADA practice. GCRTA stated that it “has a formal in- ternal complaint procedure with a mission to ensure prompt, fair impartial resolution of complaints and/or problem situations. This internal complaint procedure also identifies areas where corrective action is needed and makes effective recommendations with regard to those areas.” In the processing of an ADA complaint, GCRTA strives to: • Maintain the confidentiality of the complainant to the extent permitted under the law. • Ensure that the complainant is aware of his or her rights at all stages of the complaint process. • Investigate the allegations by reviewing informa- tion and interviewing all the stakeholders. • Process the complaint within a reasonable amount of time after the matter is brought to the agency’s at- tention. • Analyze the allegations of discrimination to iden- tify conditions or circumstances that may exist beyond the individual case that require further investigation. • Have access to GCRTA officials at all levels to dis- cuss findings and recommendations regarding the com- plaint and make periodic checks as necessary to assure that any agreed upon corrective action has been taken or is continuing. GCRTA reported that “[i]n the event that there is a determination that a probable discriminatory impact exists as it relates to decisions made regarding transit services or future capital projects, the appropriate Dep- uty General manager(s) are notified and required to respond by clarifying and/or resolving the issue in ques- tion.” One agency described how it had successfully re- solved complaints by the elderly and the disabled re- garding service reductions and fare increases. The ser- vice reductions caused some patrons to have to travel an additional one or two city blocks for access to bus service. The agency reported that the complaints con- cerning reductions in service were resolved by explain- ing why the changes were occurring and that if the ad- ditional distance made access to the bus impossible, riders could be eligible for paratransit service. As for complaints made at a public hearing regarding a pro- posed increase in fare for paratransit service to $3.00 per ride (twice the fixed-route rate), the agency re- sponded by reducing the proposed fare increase to $2.50.

43 In addition to the survey responses, it may be noted that the Ninth Circuit in Midgett, supra, in 2009 held that the evidence demonstrated TriMet’s intention to comply in good faith with the ADA as demonstrated “by its practices and programs directed at ensuring ADA compliance….”565 The court observed that the FTA had found that, based on TriMet’s FTA Triennial Review, the agency was in compliance with the ADA and that a TriMet internal report showed that its lift-performance exceeded that of providers in similar communities.566 The court stated that “Tri-Met…presented extensive evidence showing that it has specific programs in place to address ADA issues, including a procedure for classi- fying ADA-related calls as urgent, training programs to instruct officers how to address ADA-related issues, periodic quality control inspections by outside investi- gators, and specific practices related to lift failures.”567 The court held that “TriMet’s practices and procedures for ensuring ADA compliance further show that Plain- tiff does not face a threat of immediate irreparable harm without an injunction.”568 In sum, of the agencies reporting that they have an ADA policy, most referred to their policy for handling ADA complaints. One agency described how it had re- solved complaints regarding service reductions or in- creases in fares by explaining why the changes were necessary. As seen, one agency in an ADA case pre- sented extensive evidence satisfactory to the court that the agency was in compliance with ADA laws and regu- lations and had a policy for dealing promptly with ADA issues. E. Transit Agency Coordination Fifty-four transit agencies stated that when consid- ering a reduction in transit service and/or an increase in fares, they coordinate with other government agen- cies, nongovernmental associations or groups, and the public. Six agencies stated that they do not; four agen- cies did not respond to the inquiry. 565 Midgett v. Tri-County Metro Transp. Dist., 254 F.3d, 846, 851 (9th Cir. 2001). 566 Id. at 849. 567 Id. (citation omitted) (internal quotation marks omitted). 568 Id. at 850. Table 5. Transit Agencies’ Coordination with Govern- ment Agencies and Others When Reducing Ser- vice or Increasing Fares Transit Agencies That Coordinate with Govern- ment Agencies and Others 54 Transit Agencies That Do Not Coordinate with Government Agencies and Others 6 Transit Agencies Not Responding 4 One agency reported that many “[i]ssues have been resolved through one-on-one discussion between elected officials and our Director of Planning, Director of Busi- ness Development, Executive Director and Chairman” and that “extensive outreach to potentially affected partners is done including community partners [and] governmental entities.” One agency describing its practice when making a change in transit service stated that it: • Held public hearings to solicit public comments in accordance with the Public Hearing Policy adopted by its board. • Contacted over 100 elected officials and civic lead- ers by means of letters and phone calls. • Conducted research and analysis both locally and nationally. • Talked to customers on buses and trains. • Facilitated meetings with editorial boards at local media companies. • Organized team forums for input from front line experts. Miami Dade Transit (MDT) in Miami, Florida, de- scribed in some detail its practices, which include con- sultation and coordination “with the Metropolitan Planning Organization, the Citizens’ Independent Transportation Trust, and other local transit agencies prior to implementing changes of this nature.” These discussions take place in publicly advertised meet- ings. In addition, MDT encourages public involvement and participation in transportation-related issues, con- ducting interactive presentations with communities across the county. MDT’s public involvement section monitors help develop a proactive public involvement process that provides complete information, timely public notice, full public access to key decisions, and supports early and continuing involvement of the public in develop- ing transit issues. …MDT has adopted an involvement plan in an effort to foster two-way communication and trust between the county government and the citizens of [the] County and to ensure that public transit programs reflect community values and benefit all segments of the

44 community equally. MDT reaches out to all demographic communities and involves the public by providing oppor- tunities early and often in the transportation planning and decision-making processes by holding public work- shops, meetings, forums, town hall meetings, etc. SFMTA stated that [It] works with a diverse set of stakeholders, including community members, local organizations, City Depart- ments and other regional transit properties. For example, SFMTA coordinates with BART, its partner transit agency, which provides regional rail service…. SFMTA also coordinate[s] with the [San Francisco] Human Ser- vices Agency, which helps us distribute our low-income “lifeline” pass. Additionally, we work closely with a vari- ety of non-profit organizations that represent the needs of our customers and other stakeholders…. SFMTA’s most recent changes were informed by the Transit Effectiveness Project, a comprehensive operations analysis conducted to increase the effectiveness of the City’s transit system. During the TEP process, SFMTA’s Service Planning staff met with dozens of community or- ganizations to get input on service changes. Finally, TriMet stated that [It] provides notice of proposed reductions in service and/or fare increases through [a] public notice, outreach, and comment process that reaches community, business, and jurisdictional stakeholders. …Methods of outreach and involvement include on-board notification, notifica- tion at affected stops, notification through a diversity list serve, and public notice in local minority newspapers and community publications. Proposed changes are also con- tained in postings within buses and shelters. Among the other measures taken, individual notices are mailed to any party who has requested such notice and any busi- nesses or individuals identified as key stakeholders. Pub- lic hearings are generally held within the affected com- munity…at public facilities (schools, community centers) within the affected neighborhoods. TriMet communicates with community-based organizations who represent mi- nority or low-income communities that are interested in policy changes or may be affected by changes. Thus, besides having public hearings, agencies re- ported a wide variety of methods of coordination, in- cluding having multiple public meetings and forums to gain public input; coordinating with school districts and other public entities; communicating directly with elected officials in advance of any changes, including the mayor and council members, and inviting public officials to attend meetings; and making effective use of workshops, staff working groups, customer comments, neighborhood associations, advisory committees, local civic groups, transit advocacy groups, disabled commu- nity and LEP support centers, and Internet postings. F. Transit Agency Resources Twenty-eight transit agencies stated that they have specific resources to assist them in complying with Title VI and/or the ADA when considering a reduction in service or an increase in fares. Thirty-two agencies said they do not; four agencies did not respond to the in- quiry. Table 6. Transit Agencies’ Resources When Reducing Service or Increasing Fares Transit Agencies That Have Specific Resources to Assist Them When Reduc- ing Service or Increasing Fares 28 Transit Agencies That Do Not Have Specific Re- sources to Assist Them When Reducing Service or Increasing Fares 32 Transit Agencies Not Responding 4 Although some of the resources identified below overlap, the resources include: • The FTA, the tri-annual report to the FTA, and the FTA Civil Rights Officer. • GIS mapping of transit areas, on-board fare sur- veys, and reviews by the FTA District Office. • Census data to identify low-income and minority neighborhoods. • The agency’s own Title VI Committee that “is made up of members from critical areas throughout the agency.” • The city’s Mayor’s Commission on Disability Issues that provides “input on accessibility to city facilities and properties and public transportation needs for people with disabilities.” • In-house software (Trapeze Plan) that the agency uses and the agency’s “MPO, if necessary, for GIS assis- tance.” • A “management firm for fixed route service as- sessments.” • Demographic and service profile maps and charts to identify populations in service areas. The GCRTA identified its Citizen Advisory Board (CAB) and ADA Advisory Committee as important re- sources. The CAB is a transit-related group of volunteers that meets monthly to discuss relevant issues pertaining to the operations of the Authority. Members of the CAB work to increase citizen participation in community ac- tivities and involve the public in transit decision-making. The ADA Advisory Committee is comprised of representa- tives selected from public and private agencies, consumer groups, interested individuals and users of the transit system. This group’s primary task is to assist the Author- ity in planning for and providing comments and sugges- tions about RTA’s service for its disabled customers. Omnitrans stated that [It] employs a variety of tools to aid it in complying with Title VI and ADA requirements whenever reducing tran- sit service or increasing fares. Primary among these is a well-designed and well-organized planning process which ensures that decisions regarding service modification are

45 never made precipitously. A series of steps are involved, including meetings with experts and constituents, public outreach efforts to all interest groups, and the inclusion of beneficiaries at important stages of the planning process. Along with this, quantitative measures involving census and demographic data are included in the decision- making process very early on such that any effects of ser- vice or fare change are mitigated. For example, whenever route changes are planned, a “demographic profile” of the affected area(s) is taken by using GIS analytical tech- niques and applying walking-distance buffers around routes to obtain a demographic “snapshot” of the route in question at the block-group and block level; this gives us invaluable information about the demographic makeup of this area, including information regarding low-income and minority percentages of residents. Whenever possi- ble, numerous scenarios of change are offered; this is done to minimize the overall effect of change by allowing us to choose the least onerous of scenarios with the minimal impact upon the region in question. So, modeling of change scenarios is done by employing census demo- graphic data at the block-group and block level and using GIS analytical techniques. In general, the transit agencies mentioned GIS map- ping and analysis and census data most often in their responses regarding resources available to them when reducing service or increasing fares. G. Policy Regarding Review of Legal Issues When Reducing Service or Increasing Fares 1. Review of Legal Issues Forty transit agencies stated that they have a policy of reviewing legal issues that may arise when consider- ing a reduction in transit service and/or an increase in fares; however, 22 agencies reported that they do not have such a policy. Table 7. Transit Agencies with a Policy of Reviewing Legal Issues When Reducing Service or Increas- ing Fares Transit Agencies That Have a Policy of Reviewing Legal Issues 40 Transit Agencies That Do Not Have a Policy of Reviewing Legal Issues 22 Transit Agencies Not Responding 2 Some of the responses were that the agency’s “[s]trategic investments staff conducts detailed statisti- cal analyses to determine the impact of proposed service or fare changes on minority communities for the pur- pose of determining whether or not mitigating action would be required,” that the agency “reviews issues with the Assistant County Attorney responsible for transit,” or that the agency’s “legal staff specifically focused on regulatory and compliance issues.” Some of the responses were more detailed and thus more indicative of what transit agencies consider to be best practices. For example, Capital District Transit Authority, Albany, New York, stated that it has a “for- mal process…for consideration of service changes that is laid out in [its] Strategic Business Plan”; that routes and corridors identified for a reduction in service are based primarily on low ridership levels; and that con- sideration is given to existing service “heavily used by the elderly, disabled, or low-income passengers.” Another agency reported that [It discusses] all ramifications which would arise from any service reduction or fare increase. The issues that are typically included in [the] discussion are [the] effect on riders of service reduction and/or [a] fare increase. We look at areas where service reduction is considered and make sure that other routes overlap and cover the region fully. We never remove all coverage from a region during a reduction. Whenever fare increases are considered, we include ameliorating or mitigating options so that the change in fare does not unduly harm those least able to pay. In this sense, we always offer fare savings alterna- tives, too, so as to lessen the effect of fare increases, e.g., 7-day and 31-day passes with their special rates. As for groups which are often at a disadvantage in paying, we include special pass rates for them (students, seniors, disabled/Medicare recipients). Our Short Range Transit Plan is the document, which de- scribes fully our legal process for addressing issues in- volving service reduction or fare increases. Finally, some of the agencies’ responses indicated for example, that they consulted the Title VI or ADA laws, relied on a “robust public hearing process,” or relied on review by the local FTA office. One agency said that it made “a good faith effort” to assure that the agency complied with the law, while another agency said that it sought to make certain that resources are “distrib- uted equitably.” Another agency commented that a “[r]eview of legal issues in regard to Title VI and the ADA [is] part of [a] larger review of potential impacts on access to jobs and services” and that its review “al- ways includes extens[ive] public participation.” 2. Use of a Legal Memorandum Fifty-four agencies reported that they do not prepare or have not prepared for the agency an internal legal memorandum on issues that are anticipated to arise when the agency is considering a reduction in transit service and/or an increase in fares, whereas six transit agencies reported that they do have a legal memoran- dum. Four agencies did not respond to the question.

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TRB’s Transit Cooperative Research Program (TCRP) Legal Research Digest 35: Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications explores the legal implications of reductions in transit service or increases in fares in the context of environmental justice. Based on federal environmental justice principles, the report analyzes constitutional and statutory provisions and regulations in regard to transit agencies’ compliance with Title VI of the Civil Rights Act of 1964 (Title VI) and the Americans with Disabilities Act (ADA).

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