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

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30 triggered at the time the construction is undertaken, not after it has been completed and litigation has commenced.”412 The court remanded the case “for consideration of ‘feasibility’ anew, as of the time of construction.”413 The Port Authority had raised the issue in the litigation of whether it would be able to acquire the land rights it needed from Jersey City to comply with the ADA. However, the court ruled that “the mere fact that the Authority would now have to acquire land from a third-party [was] not sufficient to render the proposed accommodations per se infeasible.”414 Besides other issues of material fact in dispute that were unresolved, the court remanded the case for more development of the record on whether the city would refuse to negotiate a subter- ranean easement or a sale of land to the Port Authority.415 I. Programs and Activities in Existing Facilities A public transit agency is required to operate or conduct a designated public transportation program or activity “in an existing facility so that, when viewed in its entirety, the program or activity is readily accessible to and usable by individuals with disabilities.”416 Examples of accessible and usable programs and facilities include user-friendly fare cards; accessible websites and mobile applications; user-friendly schedules; edge detection on rail plat- forms; adequate lighting; use of telecommunication display devices (TDDs) and other means and devices; enhanced wayfinding and signage for people with visual impairments; continuous pathways for indi- viduals with visual disabilities and individuals who use wheelchairs or other mobility disabilities; and public address systems and clocks.417 VII. REQUIREMENTS FOR FIXED ROUTE SERVICE UNDER THE ADA A. Accessibility Issues Specific to Fixed Route Service Chapter 6 of the FTA Circular provides guidance on the DOT regulations in 49 C.F.R. part 37 that are specific to fixed route service. The term fixed route service “encompasses a variety of transit services and modes, including bus (local, express, commuter, and bus rapid transit (BRT)) and rail (light, rapid, 412 Id. at 352-53. 413 Id. at 353. 414 Id. at 354. 415 Id. at 354, 355. 416 FTA Circular, Ch. 3.10, p. 3-28 (quoting 49 C.F.R. § 37.61(a)). 417 Id. (discussing 49 C.F.R. § 37.61, app. D). standard that addresses the needs of persons who are unable to negotiate steps. Therefore, the DOT regulations were not arbitrary or capricious.402 Moreover, the regulations were consistent with the decisions of the Transportation Barriers Compli- ance Board.403 It may well be sensible to require accessible handrails, con- trast striping on stairs, and other such measures to pro- mote accessibility. However, it is not up to this court to decide what is reasonable or sensible in this regard; instead, our task is to ascertain BART’s legal obligations. Unless DOT regulations are arbitrary and capricious, BART is required to do no more than follow them.404 BART argued that, even if it had violated the ADA, it had immunity from liability under a “safe harbor” provision in § 12150 of the ADA and a simi- lar provision in 49 C.F.R. § 37.9 that stated that compliance with existing federal accessibility standards in construction completed after the passage of the ADA but before DOT regulations were issued “shall suffice to satisfy the requirement that facilities be readily accessible to and usable by persons with disabilities as required under” sec- tions 12146 and 12147.405 The Ninth Circuit agreed with BART that transit riders “should not be permitted to use the courts … to enact regulations they failed to convince the … Board or the DOT to implement….”406 In HIP (Heightened Independence & Progress), Inc. v. Port Authority,407 the Port Authority of New York and New Jersey (Port Authority) appealed a dis- trict court’s order that the Port Authority modify its Grove Street Station in Jersey City, New Jersey, so that it complied with the ADA.408 The plaintiff alleged that the renovations to the station “triggered” an obli- gation under the ADA to make the station accessible to individuals with disabilities.409 The Third Circuit ruled that the construction project was an alteration: “[a]n alteration is ‘a change to an existing facility, including, but not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or ele- ments, and changes or rearrangement in the plan configuration of walls and full-height partitions.’”410 At issue was whether the Port Authority had made the station accessible to the maximum extent feasi- ble.411 The court ruled “that the ADA’s obligations are 402 Id. 403 Id. at 1010. 404 Id. at 1011. 405 Id. at 1012. 406 Id. at 1013. 407 693 F.3d 345 (3d Cir. 2012). 408 Id. at 349. 409 Id. at 350. 410 Id. at 351 (quoting 49 C.F.R. § 37.3)). 411 Id. at 351-52.

31 Chapter 6 of the Circular also addresses priority seating and securement areas for wheelchairs427 and adequate time for and assistance with vehicle board- ing and disembarking.428 B. Acquisition of ADA-Compliant Vehicles for Fixed Route Service Although vehicles used for fixed route service must comply with the ADA, it may be noted that as of 2013 “[n]early 100 percent of transit buses and rapid rail cars and 87 percent of commuter rail and light rail cars were reported to be accessible….”429 Under § 12142(a) of the ADA, a public entity that operates a fixed route system is discriminating against individuals with disabilities when it pur- chases or leases a new bus, a new rapid rail vehicle, a new light rail vehicle, or any other new vehicle to be used on such system if the vehicle is not readily accessible to and usable by individuals with disabili- ties, including those who use wheelchairs. Likewise, it is discriminatory for a public entity that operates a fixed route system to purchase or lease ... a used vehicle for use on such system unless such entity makes demonstrated good faith efforts to purchase or lease a used vehicle for use on such system that is readily accessible to and usable by individuals with dis- abilities, including individuals who use wheelchairs;430 . . . . to remanufacture a vehicle for use on such system so as to extend its usable life for 5 years or more … [or] purchase or lease for use on such system a remanufactured vehicle which has been remanufactured so as to extend its usable life for 5 years or more, … unless, after remanufacture, the vehicle is, to the maximum extent feasible, readily accessi- ble to and usable by individuals with disabilities, including individuals who use wheelchairs.431 The ADA applies also to private entities who have contracts or other arrangements with public enti- ties. Under § 37.23(b) of the regulations, there are “stand-in-the-shoes” provisions that require [a] private entity which purchases or leases new, used, or remanufactured vehicles, or remanufactures vehicles, for use, or in contemplation of use, in fixed route or demand responsive service under contract or other arrangement or relationship with a public entity, shall acquire accessible vehicles in all situations in which the public entity itself would be required to do so by this part.432 427 Id. Ch. 6.3, p. 6-4. 428 Id. Ch. 6.4, p. 6-5 and Ch. 6.5.1, p. 6-6 (discussing 49 C.F.R. § 37.167(i)). 429 Id. Ch. 4.1, p. 4-1 (footnote omitted). 430 42 U.S.C. § 12142(b) (2018). 431 Id. § 12142(c)(1)(A) and (B). There is an exception for historic vehicles. Id. § 12142(c)(2). 432 FTA Circular, Ch. 4.1.3, pp. 4-4–4-5 (quoting 49 C.F.R. § 37.23(b)). and commuter rail).”418 The provisions that apply to fixed route service include those discussed in Part V.F of this digest on general accessibility features but include also “alternative transportation when bus lifts are inoperable, service to designated bus stops, priority seating, and stop announcements and route identification.”419 Section 37.163(f) of the regulations applies when- ever a vehicle operating on a fixed route has an inop- erative lift and the “headway” to the next accessible vehicle on the route is more than thirty minutes. Under the circumstances, a transit agency must provide alternative transportation promptly to indi- viduals with disabilities who are unable to use a vehicle because of an inoperative lift.420 Alternative transportation includes the dispatching of a similar vehicle with a working lift or ramp or dispatching a different vehicle that is accessible, such as a para- transit van.421 However, when a bus with an inop- erative lift is unable to accommodate a rider because the bus is full, the requirement for alternative trans- portation does not apply.422 A stop may not be made “off-limits” to individuals with disabilities except in one of three situations: the lift cannot be deployed; the lift will be damaged if it is deployed; or tempo- rary conditions beyond the control of a transit agency preclude all passengers from using the stop safely.423 The regulations require that transit agencies make onboard stop announcements on fixed route bus and rail service, including for commuter service, so that people with visual impairments and other disabilities will be “oriented to their location.”424 The regulations also require all accessible rail vehi- cles, such as light rail, rapid rail, and commuter rail, and buses more than twenty-two feet in length, to have a public address system to amplify announce- ments.425 When vehicles for more than one route serve the same stop, a public entity must provide the means necessary for “an individual with a visual impairment or other disability [to be] able to iden- tify the proper vehicle to enter or be identified to the vehicle operator as a person seeking a ride on a par- ticular route.”426 418 Id. Ch. 6.1, p. 6-1 (footnote omitted). 419 Id. 420 Id. Ch. 6.2.1, p. 6-2 (discussing 49 C.F.R. § 37.163(f)). 421 Id. 422 Id. 423 Id. Ch. 6.2.2, p. 6-3 (discussing 49 C.F.R. § 37.167(g)). 424 Id. Ch. 6.6, p. 6-7 (discussing 49 C.F.R. § 37.167(b)). 425 Id. Ch. 6.6.5, p. 6-10 (discussing 49 C.F.R. §§ 38.35, 38.61, 38.87, and 38.103). 426 Id. Ch. 6.7, p. 6-12 (quoting 49 C.F.R. § 37.167(c)).

32 that a vehicle is readily accessible for individuals with disabilities, including those who use wheel- chairs.445 Amtrak or a commuter authority may pur- chase or lease a used intercity or commuter rail car that is not readily accessible if it is unable to obtain an accessible one after good faith efforts to do so.446 The FTC Circular explains the requirements that apply to the acquisition of remanufactured com- muter railcars.447 E. Purchase or Lease of New Rail Passenger Cars for Intercity Rail Transportation It is a violation of the ADA for “a person to pur- chase or lease any new rail passenger cars for use in intercity rail transportation … unless all such rail cars are readily accessible to and usable by individu- als with disabilities, including individuals who use wheelchairs….”448 There are special rules that apply to single-level passenger coaches and single-level dining cars,449 bi-level dining cars,450 and food ser- vices for single-level and bi-level dining cars for per- sons with disabilities, including those who use wheelchairs.451 F. One-Car-Per-Train Accessibility Section 12148(b) of the ADA mandates a “one car per train rule.”452 The one-car-per-train rule does not negate the requirement that all new, used, or remanu- factured rail cars must be readily accessible.453 When two or more vehicles are operated as a train by a light or rapid rail system, a public entity must have at least one vehicle per train that is accessible to individuals with disabilities, including those who use wheelchairs.454 The ADA requires that a person who provides intercity rail transporta- tion must have at least one readily accessible pas- senger car per train.455 Commuter rail transportation 445 Id. 446 Id. Ch. 4.4.4, p. 4-23 (discussing 49 C.F.R. § 37.87(b)). 447 Id. Ch. 4.4.3, p. 4-25 (discussing 49 C.F.R. § 37.89(a)- (c)). 448 42 U.S.C. § 12162(a)(2)(A) (2018). The requirement applied to a solicitation for new cars made later than thirty days after the effective date of the statute in July 1990. 449 Id. § 12162(a)(2)(B) and (C) and (a)(3)(A). 450 Id. § 12162(a)(2)(D). 451 Id. § 1262(a)(4)(A) and (B). 452 Id. § 12148(b)(1). See FTA Circular, Ch. 4.5, at 4-27 (discussing 49 C.F.R. § 37.93(a)-(c)). 453 FTA Circular, Ch. 4.5, p. 4-27. 454 42 U.S.C. § 12148(b)(1) (2018). A special rule applies to historic trains. Id. § 12148(b)(2). 455 Id. § 12162(a)(1). As noted, the term intercity rail transportation refers to transportation provided by the National Railroad Passenger Corporation, i.e., Amtrak, Chapter 4 of the FTA Circular discusses design requirements for accessible buses and vans; design requirements for rapid, commuter, and light rail cars; requirements for various types of service; and suggestions for the acquisition of accessible vehi- cles.433 The Circular also discusses the requirements that apply to new fixed route bus or van acquisition,434 used fixed route bus or van acquisition,435 remanu- factured fixed route bus or van acquisition,436 and demand responsive bus or van acquisition of inac- cessible vehicles,437 as well as lifts, ramps, and securement systems.438 C. Rapid and Light Rail Vehicles New rapid rail cars and light rail vehicles must be accessible.439 Likewise, used rapid or light rail vehicles must be made accessible. A transit agency may purchase or lease an inaccessible vehicle if it makes good faith efforts to obtain an accessible vehi- cle but is unable to do so.440 Without a signed FTA determination of “equiva- lent facilitation,”441 there are no exceptions to the specific technical and scoping requirements for light rail vehicles.442 However, for light rail systems where “level boarding” may not be practicable, part 38 allows “the use of various devices to board and alight wheelchair users and others who cannot climb steps.”443 D. Commuter Rail Vehicles There are no exceptions to the requirement that all new commuter rail cars must be accessible.444 Since August 25, 1990, Amtrak or a commuter authority soliciting the purchase or lease of a new intercity or commuter rail car has had to ensure 433 Id. Ch. 4, p. 4-1. 434 Id. Ch. 4.2.1, p. 4-6–4-7 (discussing 49 C.F.R. § 37.71(a)). 435 Id. Ch. 4.2.2, pp. 4-7–4-8 (discussing 49 C.F.R. § 37.73(a)-(d)). 436 Id. Ch. 4.2.3, pp. 4-8–4-9 (discussing 49 C.F.R. § 37.75(a)-(e)). 437 Id. Ch. 4.2.4, pp. 4-9–4-10 (discussing 49 C.F.R. § 37.77(a) and (b)). 438 Id. Ch. 4.2.5, pp. 4-10–4-13. 439 Id. Ch. 4.3.1, pp. 4-15–4-16 (discussing 49 C.F.R. § 37.79). 440 Id. Ch. 4.3.2, p. 4-16 (discussing 49 C.F.R. § 37.81(b)). According to Appendix D to § 37.83, the regulations for remanufactured rapid or light rail vehicles parallel the ones for buses in § 37.75. See FTA Circular, Ch. 4.3.3, p. 4-17 (discussing 49 C.F.R. § 37.83, app. D). 441 Id. Ch. 4.3.5, p. 4-20. 442 Id. 443 Id. (discussing 49 C.F.R. pt. 38). 444 Id. Ch. 4.4.1, p. 4-23 (discussing 49 C.F.R. § 37.85).

33 H. Effect of the ADA on Placement and Location of Transit Stops Of forty-seven agencies responding to the survey, forty stated that the ADA had influenced their agen- cy’s decisions on the placement or location of transit stops along their agency’s routes.468 Thirty-seven agencies stated that the ADA had influenced their decisions on where their agency should relocate or change stops.469 Appendix C to this digest discusses the transit agencies’ responses describing how the ADA has influenced, or is influencing, their agen- cies’ decisions.470 As for the adoption of their own policy or other guidance, seventeen agencies said that they have a policy or other guidance regarding ADA require- ments and their location or relocation of stops. How- ever, twenty-five agencies stated that they did not have such a policy or other guidance.471 Some agen- cies provided an Internet link472 to or a copy473 of their policy or guidance. I. Transit Agencies’ Claims or Cases Alleging that Their Fixed Route Service Violated the ADA Of forty-seven transit agencies responding to the survey, five agencies reported that in the past five years their agency had claims or cases by individu- als with disabilities that alleged that their agency’s fixed-route system violated the ADA.474 Thirty-nine agencies reported that they did not have any claims or cases of that nature in the past five years.475 Of the agencies reporting that they had had claims or cases, only one agency reported a claim or case that involved a vehicle that allegedly was not readily accessible.476 Four agencies had a claim or case in 468 See Appendix C, Transit Agencies’ Responses to Question 7(a). Six agencies said the ADA had not influ- enced their decisions; one agency did not respond to the question. 469 See id., Transit Agencies’ Responses to Question 7(b). Six agencies said the ADA had not influenced their decisions; four agencies did not respond to the question. 470 See id., Transit Agencies’ Responses to Question 7(c). 471 See id., Transit Agencies’ Responses to Question 7(d). Five agencies did not respond to the question. 472 See id., Transit Agencies’ Responses to Question 7(d). 473 See Appendix D to this digest. 474 See Appendix C, Transit Agencies’ Responses to Question 8. 475 See id. Three agencies did not respond to the ques- tion. 476 See id., Transit Agencies’ Responses to Question 9. The transit authority did not provide additional informa- tion regarding the claim. systems must have one readily accessible passenger car per train;456 new commuter rail cars must be readily accessible;457 and used and remanufactured rail cars also must comply with the ADA.458 G. Equivalent Facilitation Chapter 5 of the FTA Circular discusses the equivalent facilitation process for transportation vehicles459 and transportation facilities460 that per- mits departures from the vehicle specifications in 49 CFR part 38461 and the use of “alternative designs or technologies that provide equal or greater accessibility.”462 “Such innovations must provide equal or greater accessibility in comparison to the specific technical and scoping requirements con- tained in the regulations….”463 A party requesting equivalent facilitation must submit, inter alia, “[d]ocumentation of the public participation used in developing an alternative method of compliance.”464 Section 37.7(b) of the reg- ulations sets forth in detail the public participation requirement, which includes at least one public hearing.465 Section 37.7(b)(4) requires that manu- facturers must consult with “representatives of national and local organizations representing indi- viduals with disabilities who would be affected by the request.”466 The equivalent facilitation process requires that “the FTA Administrator must be able to conclude that the alternative method of compliance meets or exceeds the level of accessibility or usability of the vehicle or vehicle component specified in Part 38.”467 whereas the term commuter rail transportation has the same meaning as the term commuter rail passenger transportation has in 49 U.S.C. § 24102(3): “short-haul rail passenger transportation in metropolitan and subur- ban areas usually having reduced fare, multiple-ride, and commuter tickets and morning and evening peak period operations.” 456 Id. § 12162(b)(1). 457 Id. § 12162(b)(2). 458 Id. § 12162(c) and (d). 459 FTA Circular, Ch. 5.3, p. 5-2. 460 Id. Ch. 5.4, p. 5-5. 461 Id. Ch. 5.3.1, p. 5-2. 462 Id. Ch. 5.1, p. 5-1. 463 Id. Ch. 5.2, p. 5-1. 464 Id. Ch. 5.3.3, p. 5-3 (quoting 49 C.F.R. § 37.7(b)(2)(v)). 465 Id. Ch. 5.3.4, p. 5-3 (discussing 49 C.F.R. § 37.7(b)(3) and (4)). 466 Id. Ch. 5.3.4, p. 5-4 (quoting 49 C.F.R. § 37.7(b)(4)). 467 Id. Ch. 5.3.3, p. 5-3.