COVID-19, Shenanigans and Liability Part 1: Wheelchair Securement
A ancient cliché declares that a chain is only as strong as its weakest link. Such things matter most when things are their worst. In the best of times, the public transportation industry’s weakest link is wheelchair securement. In the worst of times, this link is crumbling.
71% of wheelchairs transported on fixed route transit vehicles are not secured.
Before COVID-19 arrived, a study found that 71 percent of wheelchairs transported
on fixed route transit vehicles are not secured. Back then, securing a wheelchair simply
made the vehicles run further behind. Without committing other safety compromises to
offset the time squandered, drivers risked reprimands by performing this task. Now,
with COVID-19, securing a wheelchair compromises social distancing from our most vulnerable
passengers (those most likely to get really sick or die from COVID-19). Affixing a lap belt and shoulder harness brings drivers and wheelchair users practically face-to-face with them.
Presumably for such reasons, when COVID-19 struck, it did not take the transit industry long to invent new shenanigans to avoid securing wheelchairs. First, transit officials began “mode splitting” wheelchair users to paratransit – a flagrant violation of the Americans with Disabilities Act (ADA), even while a sensible deviation from it given the circumstances. Paratransit members of APTA’s Access Committee suggested that, on paratransit services, wheelchairs should not be secured at all (and along with it, obviously, these passengers secured into their
wheelchairs – a similarly-disregarded practice in the best of times). Regrettably, there
are no studies comparing the risks of ignoring inertial and centrifugal forces to the risks of
COVID-19. Of course, no study is needed to ensure a driver’s safety by dressing and outfitting
him or her properly. There is no comparable protection to wheelchair users whose chairs are not secured.
Interestingly, the ADA does not actually require wheelchair securement. In real life, of course, stupid and reckless policies fare poorly. In a 2002 lawsuit (Borja v. Santa Clara Valley Transit Authority) against a transit agency allowing passengers to decline their chairs’ securement, I helped the plaintiff win $2.1 million, the defendant’s counsel was verily laughed out of court. Two months later, the transit agency fired him (while it would have been more appropriate to fire the system’s general manager). I have now testified at trial in more than 100 wheelchair securement-related cases since.
Shenanigans are not the answer and they can incur serious penalties. Taking responsible actions and making reasonable interpretations of regulations are.
Danger And Donations
Compared to the practices of non-emergency medical transportation (NEMT) service – pre-COVID-19 or otherwise – transit service is stellar. Part of this stems from the fact that transit services are paid for whether or not the vehicle is moving. In the NEMT sector, the services (provided mostly by contractors) are paid only when the vehicle is moving. In other words, wheelchair and passenger securement is effectively a donation by the service provider and its funding agency or (increasingly) its broker. In the era of COVID-19, it is a donation compounded by a risk: If only 73 percent of wheelchairs were secured on transit during the pre-COVID-era, what percentage of these chairs are likely secured on NEMT service during the COVID-19 pandemic?
I have found entire fleets in which not a single wheelchair had ever been secured in any of its vehicles.
The pre-COVID practices in this area are stunning to those unfamiliar with them. Frankly, many NEMT providers deliberately do not allow their drivers to secure wheelchairs, or make it impossible for them to do so in numerous ways: Pieces of ADA required equipment are often missing. Often they are mismatched and do not fit together. Many devices are broken. Wheelchair tiedowns are commonly immovable – often rusted in place in securement tracks. As an expert witness, I have not merely examined many vehicles on which no wheelchair had ever been secured during that vehicle’s entire life span. In a few cases, I have found entire fleets in which not a single wheelchair had ever been secured in any of its vehicles.
As an asterisk, almost every one of these cases is a civil rights case. However, they are very different than most civil rights cases. Before her revolt in 1955, when Rosa Parks was forced to sit at the rear of the bus, at least her seat was bolted to the floor. This is not the case when one’s seat has three or four tires, and its frame is not tied to the vehicle – essentially a moving floor. A rolling chair on a moving floor is a sure formula for carnage.
Prudence and Priorities
To my knowledge, no such shenanigans are occurring in school bus and special needs transportation. Regrettably, the school bus industry is awash in confusion about COVID-
19 transportation in general, notwithstanding my own plan for returning all students to
physical school by this coming March (see “Getting Students back to School During COVID-19” in NATIONAL BUS TRADER’S online October, 2020 edition) – advice being completely disregarded. Despite the chaos, special needs students and, particularly wheelchair users, are not being sacrificed. Many wheelchair using schoolchildren who had previously been mainstreamed (a requirement known as the “least restrictive environment” in the Individuals with Disabilities Education Act [IDEA]) are now being transported separately on smaller vehicles – much like fixed route transit has mode split most wheelchair users to paratransit.
The taxi and limousine sectors are also doing better in the COVID-19 environment largely from a few factors: (a) Plexiglas shields, (b) the mode split from transit now thickening their densities and (c) school transportation (especially transporting special needs students). The taxi sector ’s abilities were hamstrung as this sector was decimated by the invasion of TNCs (i.e., Uber, Lyft), and compounded by questionable policy decisions (e.g., New York City initially assigned 11,000 taxis to deliver meals and other packages). Those rare taxis that are wheelchair accessible have come in handy, and savvy drivers protected with PPE are serving wheelchair users nobly. Plus, in these vehicles’ smaller passenger compartments, failing to secure a wheelchair is not as dangerous as it is in a bus, van- or minivan-conversion, with more room for a wheelchair to tip completely over.
Listening and Learning
Like school buses, motorcoaches are not known for wheelchair securement failures. Of course, most of this reflects so few wheelchair users riding motorcoaches (most exceptions occur in commuter/express service operated by or for transit agencies – which, again, rarely secure these passengers’ chairs). As I have noted occasionally in the pages of NATIONAL BUS TRADER, this trend is slowly changing. Some securement equipment is making it faster and easier to secure wheelchairs (even while some new equipment is confusing, dangerous, pointless and poorly-designed, and many drivers cannot figure out how to operate it). Some models even help a subset of wheelchair users secure their own chairs and themselves into them. These innovations have emerged largely on a handful of transit buses. They are virtually unknown to the motorcoach sector.
With the emergence of the MCI D45 CRT LE, we now have motorcoaches designed to facilitate wheelchair boarding and alighting.
More importantly, with the emergence of the MCI D45 CRT lE, we now have motorcoaches designed to facilitate wheelchair boarding and alighting. Further – and of critical importance in the era of COVID-19 – more-vulnerable wheelchair users can ride in a vestibule separated from the remainder of the passengers by seven steps and an entire floor.
The Worst of Times
Hopefully, motorcoaches will be deployed to supplement our nation’s school bus fleet as schools begin to reopen, and where social distancing limits the utilization of vehicle capacity to only one fourth of the seats in the nation’s finite sized school bus fleet. I hope the motorcoach
community embraces its opportunities to diversify into the provision of numerous other services where there is considerable need, and where motorcoaches would have ideal characteristics (see Drivers v. Robots, Parts 1, 2 and 4: Motorcoach Survival in the Era of COVID-
19 in NATIONAL BUS TRADER, May, June and August, 2020). At the moment, however, only about 15 percent of motorcoaches are in operation. The industry is quite simply squandering its opportunities to contribute to our current needs and survive financially, as some other sectors
(taxis and limousines are the best examples) have done.
Like other modes where well-trained and well-protected drivers face few risks securing wheelchairs, the same would be true of motorcoach drivers. This is especially true since, with vehicles not filled to capacity, wheelchair users would be socially distanced from other riders. The safety risks to these riders, other passengers and drivers would be miniscule. The
liability risks associated with failing to secure these passengers’ wheelchairs can be considerable.
This is only the tip of the iceberg. Under the ADA, a transit system is forbidden to deny service to a wheelchair user (liberty Resources v. SEPTA, PA, 2001). Copy-cat lawsuits have dotted the transit landscape. God help the motorcoach company committing this violation when a similar class action lawsuit is extended to this sector. Beyond possibly destroying that defendant’s business, such a suit will radically alter the motorcoach transportation landscape.
Most motorcoaches on the road have a wheelchair lift and two securement positions. Most of them have restrooms and countless other amenities that render motorcoaches our most versatile vehicles. Yet they are the least used while their provincial owners sit around, lobbying for bail-out funds. Motorcoach operators would do well to chase the positive opportunities rather than wish for the negative ones.
There is a saying among the jaded political veterans in Washington, D.C. that, with elections, “You deserve what you get, and you get what you deserve.” Doing the worst job in the worst of times will yield the results one should expect it to. The opposite is likely to accrue to those doing the best they can in the worst of times. This is even more true when one helps those most in need during the worst of times. We even have a name for such people. We call them heroes.
Ned Einstein is the president of Transportation Alternatives (www.transalt.com), a public transportation witness firm.
Einstein (einstein@transalt.com) specializes in catastrophic motorcoach accidents.
