Anyone but a hard-core sociopath (or someone enduring a long incarceration) should be extremely grateful for the countless things this country has accomplished, even if our history is tarnished with unforgivable evil and inexcusable behavior. And despite plenty still wrong with this country, and to many getting seemingly worse, we have led the world in remarkable achievements. One of them in the Americans with Disabilities Act, a less-than-perform document that granted a far more fulfilling life to a sizable segment of our society – like that still in many or most other countries – that continues to suffer.
But in any piece of sweeping legislation, one would be foolish to expect it to have no imperfections. Some of them – including the one I choose to talk about in this post – are not dreadful. But they are worth familiarizing oneself with if he or he works on the inside or the outskirts of the legal profession.
The one I choose to discuss in this piece is the small jumble of contradictions in the requirements for wheelchair securement, and the securement of passenger riding in wheelchairs. As an expert in field, I cannot understand the small conundrum of requirements for wheelchair and passenger securement that dominate this section of the ADA.
Wheelchair Securement. The hardest thing to explain to an industry outsider deals with wheelchair securement:
- If one makes the most minimal efforts to secure a wheelchair, he or she must ensure that the chair (or scooter) must not move more than two inches during normal operating conditions (49 C.F.R. Section 38.23(d)(5) — a procedure that includes slamming on the brakes.
- Yet, while a flagrant violation of the industry standard, if someone makes no effort to secure a wheelchair, he or she is exempt from any consequences thereof) 49 C.F.R. Section 37.165.)
The craziest part of this dichotomy is the fact that there is no middle ground: Either fully protect a wheelchair user from a tipover or do nothing whatsoever to prevent it.
Passenger Securement. A similar puzzle deals with the three-point occupant restraint system which taxpayers must also fund: 49 C.F.R. Section 38.23 (d)(7): The ADA requires that every wheelchair securement position on any accessible vehicle must contain a three point occupant restraint system. However, no provision within the ADA requires that any driver (or any other management or enforcement official) insist that the wheelchair occupant use it.
While there may be a rationale for these distinctions either I cannot figure out, which was explained to me but long forgotten, these seeming or actual discrepancies in the ADA appear to make no sense at all. So the four-square tic-tac-toe game involving these two issues is likely to remain for a while, with no absolute right or wrong.
I may not be the only member of the U.S. public transportation community troubled or confused by these discrepancies. But modifying or reconciling these provisions – or almost every provision in the ADA – has been something the U.S. transportation community’s centerpiece. The Federal Transportation Administration has been unwilling to straighten this out – afraid to “open up” the ADA once again for fear that many of the loopholes will be tightened up – something transit agencies and other entities do now want, with their feet held closer to the coals in return for their sloppiness. A sloppy guess I’ve come to believe over the years is that that FTA – under pressure from its constituent transit agencies – does not wish to make the regulations tighter. And transit agencies whose staff and practices kill or maim disabled passengers would prefer to have some loopholes that their attorneys can use to exonerate them from these dangerous errors and omissions. Fortunately, industry standards tend to be higher than regulations, which are more often than not minimal requirements. So plaintiff’s attorney can still prevail in disturbed about regulatory requirements that seem weak or ambiguous. Still, as a proponent of transportation safety, I could prefer to see fewer loopholes and higher standards than the ambiguities that many regulations (like 49 C.F.R.38.23(d) and 49 C.F.R. 37.165) present.
#americanswithdisabilitiesact #publictransportationregulations #transalt #adacompliance #wheelchairsecurement #passengersecurement