Legal Issues and Emerging Technologies (2022)

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38 TCRP LRD 59 • Position computer screens away from windows, doors, and publicly accessible areas. • Equip monitors and mobile device screens with privacy screens to obscure viewing by others. • Limit ability to access sensitive information on mobile de- vices, remotely from home, and in public places/in view of others. • Keep track of and physically secure any devices that collect sensitive information, and know who has access to them. • Train anyone with access to sensitive data on the response if data, equipment (laptops, mobile devices) or paper files are lost or stolen. Physical security can go hand in hand with cybersecurity in protecting technology systems against both physical and cyber threats. VI. ACCESSIBILITY A. Introduction Transportation agencies that employ new and emerging technologies to provide service to the public must ensure that these technologies comply with the ADA and related acces- sibility requirements and regulations applicable to the type of service being provided.321 There are specific requirements for public transportation systems pertaining to rider information, assistance equipment and accessible features of vehicles, among others. This section analyzes key provisions of the ADA, federal regulations, and Federal Transit Administration (FTA) guid- ance issued in November 2015 that apply to new technologies and contracting or partnering with private companies to pro- vide innovative service.322 Under the ADA, public transit agencies generally must make their systems and services readily accessible to individuals with disabilities, including individuals who use wheelchairs. This applies to vehicle acquisition and specification requirements and to service provision requirements, as well as the way tran- sit agencies convey information about services, websites and mobile applications, trip planning and booking systems, fare payment technology, real-time information apps, route optimi- zation and dispatch and planning software, and other new tech- nologies. Nearly all technologies are implicated by the ADA and state-equivalent requirements. While new and emerging tech- nologies present general and specific challenges to public transit agencies’ ADA compliance, the DOT explains that:323 The ADA does not stand in the way of new technology, but it does require that new technology, and the benefits it brings, be accessible to all persons, including those with disabilities. This point applies to 321 Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§ 12101–12213). 322 In 2018, TCRP issued a legal digest exploring the types of ADA requirements and legal claims against transit agencies, Larry W. Thomas, TCRP LRD 54: Potential Tort Liability for Transit Agencies Aris- ing Out of the Americans with Disabilities Act, Transportation Research Board of the National Academies of Sciences, Engineering and Medi- cine, Washington, D.C., 2018, https://doi.org/10.17226/25329. 323 49 C.F.R. Part 37, App. D. all vehicle acquisition provisions of this regulation, whether for rail or non-rail, private or public, fixed route or demand responsive vehicles and systems. The ADA and the Rehabilitation Act of 1973, as amended (the “Rehabilitation Act”),324 are federal civil rights laws that protect individuals from discrimination based on their dis- ability. Title II of the ADA applies to public entities providing public services, including transportation services, and prohibits discrimination against individuals with disabilities by—and imposes affirmative responsibilities on—such entities related to public programs and services they provide.325 Title III of the ADA prohibits private entities that provide public transporta- tion services from discriminating against individuals with a disability and preventing them from receiving full and equal enjoyment of specified transportation services provided by such private entities.326 Section 504 of the Rehabilitation Act of 1973 prohibits recipients of federal financial assistance from discrim- inating against qualified individuals with disabilities in employ- ment and in their programs and activities.327 The FTA within the U.S. DOT is charged with ensuring pub- lic transit providers comply with the DOT regulations imple- menting the transportation-related provisions of the ADA of 1990 and Section 504 of the Rehabilitation Act. DOT regula- tions in 49 C.F.R. Parts 37, 38, and 39 establish minimum ac- cessibility standards for public transportation services and vehicles, including rapid rail vehicles, light rail vehicles, buses, vans, commuter rail cars, intercity rail cars, and over-the-road buses. DOT regulations implementing Section 504 are found in 49 CFR Part 274. The U.S. DOT regulations implementing the ADA and Section 504 mandate accessible public transit vehicles and facilities.328 In November 2015, FTA issued a issued Circular 4710.1329 that provides guidance for recipients and subrecipients of FTA financial assistance concerning their compliance with the ADA, Section 504 of the Rehabilitation Act, and the DOT regulations in 49 C.F.R. Parts 27, 37, 38, and 39. B. Title II of the ADA Title II of the ADA requires equal access to most public transportation for persons with disabilities. Title II applies to public entities providing public services, including desig- nated public transportation services, and prohibits discrimina- tion against individuals with disabilities and imposes affirma- tive responsibilities on such entities related to public programs 324 Pub. L. No. 93-112, 87 Stat. 355 (1973) (codified at 29 U.S.C. § 701 et seq.). 325 42 U.S.C. § 12132. See also Abrahams v. MTA Long Island Bus, 644 F.3d 110, 115 (2d Cir. 2011). 326 42 U.S.C. § 12184(a). 327 29 U.S.C. § 794. 328 See 49 C.F.R. Parts 27, 37, 38, and 39. 329 U.S. Dep’t of Transportation, Fed. Transit Admin., FTA C 4710.1: Americans with Disabilities Act (ADA): Guidance (2015) (hereinafter “FTA ADA Circular”), available at https://www.transit.dot. gov/sites/fta.dot.gov/files/docs/Final_FTA_ADA_Circular_C_4710.1.pdf.

TCRP LRD 59 39 and services they provide.330 Public entities include (1) any state or local government; (2) any department, agency, special-pur- pose district, or other instrumentality of a state or states or local government; and (3) the National Railroad Passenger Corpora- tion (Amtrak) and any commuter authority.331 Designated pub- lic transportation means “transportation provided by a public entity (other than public school transportation) by bus, rail, or other conveyance (other than transportation by aircraft or inter- city or commuter rail transportation) that provides the general public with general or special service, including charter service, on a regular and continuing basis.”332 1.  General Accessibility Requirements The overarching requirement of the ADA is that entities cannot discriminate against individuals with disabilities. Under Title II, a qualified individual with a disability shall not, be- cause of their disability, “be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”333 The DOT regulations in 49 C.F.R. Part 37 provide that “[n]o entity shall discriminate against an individual with a disability in connection with the provision of transportation service.”334 Under Part 37, public entities that provide desig nated public transportation must make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability or to provide program accessibility to their services.335 This applies to the means public entities use to meet their obligations under all provisions of Part 37.336 DOT ADA regulations include standards applicable to service, facilities, and vehicles covered by Title II, consistent with the U.S. Architectural and Transportation Barriers Compliance Board’s (Access Board) minimum guidelines and requirements.337 Part 37 requires vehicles that provide public transportation to meet the minimum guidelines and accessibility standards in Part 38 of the regulations.338 Under the ADA, an “accessible” vehicle is one that meets the Part 38 design specifications. A vehicle that complies with the base Part 38 specifications will be able to accommodate, at a minimum, occupied wheelchairs weighing up to 600 pounds and measuring 30 inches in width and 48 inches in length.339 330 42 U.S.C. § 12131. See also Abrahams v. MTA Long Island Bus, 644 F.3d 110, 115 (2d Cir. 2011). 331 42 U.S.C. § 12131(1). 332 49 C.F.R. § 37.3. 333 42 U.S.C. § 12132. 334 49 C.F.R. § 37.5(a). 335 49 C.F.R. § 37.5. 336 Id. 337 42 U.S.C. § 12149(a) and (b). The Access Board is responsible for creating design guidelines for the accessibility of facilities and vehicles subject to ADA requirements. 338 49 C.F.R. §§ 37.7(a) and 38.1. 339 FTA ADA Circular, Ch. 2.4.1, p. 2-10 (discussing 49 C.F.R. § 37.165). All new vehicles that a public entity acquires for use in fixed route service (those operating along a prescribed route) must be accessible, and complementary paratransit service is required where public entities provide fixed route service.340 In the case of demand responsive service,341 a public entity operating a de- mand responsive system is not required to buy an accessible vehicle if its system, when viewed in its entirety, “provides a level of service to such individuals equivalent to the level of service such system provides to individuals without disabilities.”342 De- mand responsive services include dial-a-ride (paratransit), taxi subsidy, vanpool, and route deviation services. Equivalent service is measured according to the criteria of 49 C.F.R. §§ 37.105 and 37.77. A demand responsive system, when viewed in its entirety, will be deemed to provide equivalent ser- vice if the service available to individuals with disabilities, in- cluding individuals who use wheelchairs, is provided in the most integrated setting appropriate to the needs of the indi vidual, and is equivalent to the service provided to other individuals with respect to response time, fares, geographic area of service, hours and days of service, availability of information, reservations capability, any constraints on capacity or service availability, or restrictions based on trip purpose.343 Regarding service requirements, a public transportation system must: have accessibility-related equipment or features and facilities such as lifts, ramps, securement devices (straps for securing wheelchairs on board), signage, and communication devices and maintain them in good operating condition;344 pro- vide adequate information on services in accessible formats for persons with different types of disabilities (e.g., information in large print, braille or alternative and electronic format);345 allow adequate time for people with disabilities to board and exit from vehicles;346 allow service animals to accompany people with dis- abilities in vehicles and facilities;347 include, for fixed route sys- tems, signs designating seating for passengers with disabilities; and ensure that personnel are trained to operate vehicles and equipment safely.348 2. Services Under Contract If a private entity is providing service under a contract or other arrangement with a public entity (including, but not lim- ited to, a grant, subgrant, or cooperative agreement) to operate fixed route or demand responsive service, then the private entity 340 42 U.S.C. § 12142; 49 C.F.R. § 37.5(b)-(d). A “fixed route system” is “a system of providing designated public transportation on which a vehicle is operated along a prescribed route according to a fixed sched- ule.” 42 U.S.C. § 12141. 341 A “demand responsive system” is “any system of providing des- ignated public transportation which is not a fixed route system.” 42 U.S.C. § 12141; 49 C.F.R. § 37.3. 342 42 U.S.C. § 12144. 343 49 C.F.R. §§ 37.105, 37.77. 344 49 C.F.R. §§ 37.161, 37.163. 345 49 C.F.R. § 37.167. 346 49 C.F.R. § 37.167(i). 347 49 C.F.R. § 37.167(d). 348 49 C.F.R. § 37.167.

40 TCRP LRD 59 “stands in the shoes” of the public entity under 49 C.F.R. § 37.23 and is subject to the requirements applicable to the public entity. While a public entity may hire contractors, it may not “contract away its ADA responsibilities.”349 The requirement applies pri- marily to vehicle acquisition requirements and to service pro- vision requirements. The private entity must acquire accessible vehicles in all situations in which the public entity itself would be required to do so.350 According to the FTA ADA Circular, the stand-in-the-shoes requirements do not apply if private entities are merely regu- lated by public entities, receive a franchise or permit to operate, or receive general subsidies to underwrite private transportation services.351 The FTA uses the example of a taxi voucher program for individuals 65 and older using local taxicabs:352 Accepting these vouchers does not mean the taxi companies stand in the shoes of the city. In operating such a program, however, to comply with the ADA general nondiscrimination requirements in § 37.5, the city—not the taxi company—would be required to ensure that its taxi voucher program does not discriminate against program participants with disabilities. (See Circular Section 2.2.) In this example, the city would have to ensure that program participants with disabilities, in- cluding those who use wheelchairs, have the same access to the pro- gram as nondisabled individuals during the same times and with the same fares and response times. Public transit agencies that partner with private entities to provide new and innovative transportation services, such as MaaS and first mile/last mile solutions, will need to ensure that individuals with disabilities have the same access to the program as individuals without disabilities. 3.  Equivalent Facilitation Part 37 requires transportation vehicles to meet the mini- mum guidelines and accessibility standards in Part 38 of the regulations.353 Public entities cannot depart from the specific technical and scoping requirements for vehicles in Part 38 with- out an “equivalent facilitation” determination from the FTA Administrator. Equivalent facilitation is the process for seeking a determination from the FTA Administrator that alternative ways—by use of other designs and technologies—comply with the regulations for vehicles and transportation facilities. The procedures for an entity to deviate from Part 38 are set forth in 49 C.F.R. § 37.7(b). The entity must “describe how its alter- native mode of compliance would meet or exceed the level of access to or usability of the vehicle that compliance with part 38 would otherwise provide.”354 The entity must obtain public input in devising its alternative form of compliance, and this must be reflected in the submission to the Administrator. Decisions will be made on “a case-by-case decision about whether compliance 349 49 C.F.R. Part 37, Appendix D. 350 49 C.F.R. § 37.23. 351 FTA ADA Circular, Ch. 1.3.2, p. 1-6. 352 Id. 353 49 C.F.R. §§ 37.7(a), 38.1. 354 FTA ADA Circular, Ch. 5.3, p. 5-1 (discussing 37.7(b)). with part 38 was achievable and, if not, weather the proffered alternative complies with the equivalent facilitation standard.”355 Equivalent facilitation may be appropriate if a new vehicle technology does not meet the specific standards in Part 38 but nonetheless meets accessibility requirements. The FTA offers the following suggested “dos and don’ts” to those considering submitting a request for equivalent facilitation: • Do not rely on an explanation of why it is difficult to comply with the regulatory standards; inability to comply is not a basis for a determination of equivalent facilitation. • Do not present only evidence from another system or from your own system in the past. • Do provide your actual test results to support the assertion of equal or greater accessibility or usability. • Do perform the testing with a realistic mockup and with a cross-section of potential passengers with varying types of disabilities and mobility aids. • Do perform statistical analysis on a large enough sample of tests to demonstrate the reliability of the proposed solution. • Do consider all potential failure points and use testing of a realistic mockup to demonstrate why these are not poten- tial problems with the proposed solution. • Do provide complete documentation of the public partici- pation process used to develop the proposed solution, be- ginning early in the development of proposed alternatives, and include all input received. • Do not combine requests for determination of equivalent facilitation for separate issues (e.g., vehicle ramp design and platform design); do submit separate requests for these deter minations, with cross-references in each submission to present the overall situation clearly. • Do not forget to include all information needed to make the request complete; do follow the requirements of the regula- tions and include: (a) the transportation entity name, ad- dress, and contact person; (b) the specific provision of the standard for which you are proposing equivalent facilita- tion; (c) a complete and detailed description of the alterna- tive method of compliance, other alternatives considered, and technical analysis to support a determination of equal or greater accessibility or usability; and (d) a complete de- scription of the public participation process, addressing all points listed in the regulation.356 4.  Accessibility Standards for New Forms of  Transportation To meet accessibility requirements, vehicles must comply with standards, incorporated in DOT rules as 49 C.F.R. Part 38. However, the DOT ADA regulations anticipated that entities may employ new and different types of vehicles and systems in transportation service, including modes that had yet to be de- veloped when the regulations were written. The regulations in 49 C.F.R. Part 38, Subpart H, establish a process for determining 355 49 C.F.R. Part 37, App. D. 356 FTA ADA Circular, Ch. 5.5, p. 5-1 (discussing 37.7(b)).

TCRP LRD 59 41 accessibility standards for new types of vehicles and systems that may be developed, for which specific accessibility standards do not yet exist. Transit agencies that want to develop and operate new vehi- cles and modes of transportation through advances in technol- ogy and innovative methods of delivering services must comply with Subpart H.357 Under 49 C.F.R. § 38.171(c), DOT and the Access Board establish accessibility standards and specifications for new vehicles, modes, and services on a case-by-case basis. The FTA encourages transit agencies to contact the FTA Office of Civil Rights with questions if they believe they will be operat- ing a mode not covered by the existing regulations or acquiring vehicles not covered by the existing Part 38 specifications.358 The FTA recommends that agencies review all elements of new ser- vices and any new vehicles and systems that they plan to operate to determine the applicability of Part 38 and whether the speci- fications in Subparts B, C, D, or E already apply. C. Assistance by Transit Agency Personnel Considerations for Autonomous Vehicles The DOT ADA regulations require a transit agency have accessibility-related equipment or features and ensure that personnel are trained, as appropriate to their duties, to oper- ate vehicles and equipment safely and properly assist and treat individuals with disabilities who use the service in a respectful and courteous way, with appropriate attention to the difference among individuals with disabilities.359 The entity’s personnel must also assist individuals with disabilities with deploying and stowing lifts and ramps, securing riders’ wheelchairs, and as- sisting with seat belts and shoulder harnesses.360 “On a vehicle which uses a ramp for entry, the driver may have to assist in pushing a manual wheelchair up the ramp (particularly where the ramp slope is relatively steep).”361 Attendant-type services (e.g., toileting, feeding, dressing, carrying passengers’ personal baggage or suitcases) are not required.362 Typically, such assistance is performed by the vehicle’s driver, as is illustrated by Appendix D to Part 37 (Lift and Securement Use): The entity’s personnel have an obligation to ensure that a passenger with a disability is able to take advantage of the accessibility and safety features on vehicles. Consequently, the driver or other personnel must provide assistance with the use of lifts, ramps, and securement devices. For example, the driver must deploy the lift properly and safely. If the passenger cannot do so independently, the driver must assist the passenger with using the securement device. On a vehicle 357 49 C.F.R. § 38.171(a). 358 FTA ADA Circular, Ch. 11.1, p. 11-1 (discussing 49 C.F.R. Part 37, Subpart H). 359 49 C.F.R. §§ 37.167(e), 37.173; see FTA Response to Complaint 10-0172 (Apr. 29, 2010), available at https://www.transit.dot.gov/ regulations-and-guidance/civil-rights-ada/niagara-frontier-transit- authority-buffalo-ny-4-29-10. 360 49 C.F.R. § 37.165(f); FTA ADA Circular, Ch. 2.5.1, p. 2-16 (dis- cussing 49 C.F.R. § 37.165(f)). 361 49 C.F.R. Part 37, App. D. 362 Id. which uses a ramp for entry, the driver may have to assist in pushing a manual wheelchair up the ramp (particularly where the ramp slope is relatively steep). This requirement could pose challenges for autonomous vehicles that do not have drivers and may require transit agen- cies to staff such vehicles with personnel to assist individuals with disabilities. D. Accessibility Standards for Mobile Applications Mobile apps are generally covered by the same standards for access by people with disabilities that apply to non-mobile software and web applications. Applicable federal law includes the ADA, Section 508 of the Rehabilitation Act, as amended by the Workforce Investment Act of 1998,363 and the Twenty-First Century Communications and Video Accessibility Act (CVAA) of 2010.364 The ADA requires a public transportation system to make adequate communications and information available, using ac- cessible formats and technology (e.g., large print, braille, audio- tape, and electronic files usable with text-to-speech technology) for persons with different types of disabilities.365 If the informa- tion is available on a mobile application or website, then there are additional requirements. Section 508 of the Rehabilitation Act applies to federal gov- ernment agencies and the technology providers that sell to them.366 Section 508 requires all information and communica- tions technology the federal government develops, procures, maintains, and uses be accessible to people with disabilities, and, to the extent that those agencies provide IT to the public, it must be accessible by persons with disabilities. The CVAA Rulemaking and Order from October 2011 ad- dress guidelines on what performance objectives must be met for advanced communication devices and applications.367 This includes access without vision, with low vision, without hearing, without color perception, with limited manual dexterity, with- out speech. The objectives also address availability of informa- tion without requiring vision, hearing, etc. While the DOT ADA regulations do not set standards for website accessibility, the FTA suggests that agencies review DOJ guidance, “Accessibility of State and Local Government Web- sites to People with Disabilities,” which notes general related obligations under the Rehabilitation Act.368 The U.S. Access Board is responsible for developing Information and Commu- nication Technology (ICT) accessibility standards to incorpo- rate into regulations that govern Federal procurement practices. 363 Workforce Investment Act of 1998, 1998 Enacted H.R. 1385, 105 Enacted H.R. 1385, 112 Stat. 936. 364 Twenty-First Century Communications and Video Accessibility Act of 2010, 111 P.L. 260, 124 Stat. 2751. 365 49 C.F.R. § 37.165; 49 C.F.R. Part 37, App. D. 366 29 U.S.C. § 794(d). 367 FCC, FCC-11-151 (Oct. 7, 2011), https://apps.fcc.gov/edocs_ public/attachmatch/FCC-11-151A1.pdf. 368 FTA ADA Circular, Ch. 2.8.2, p. 2-20 (discussing 49 C.F.R. § 37.167(f)).