Q: Does the ADA cover elderly individuals who are not disabled?
A: No. However, no one operating some modes realize this, practices that treat elderly and disabled passenger alike still persist on many modes, and only in the provision of complementary paratransit service are non-disabled elderly individuals excluded. Apart from paratransit services, most members of the public transportation community think that non-disabled elderly individuals were “subsumed” under the ADA when it was promulgated.
Comment: For decades before the ADA was promulgated, elderly passengers (disabled and non-disabled) were treated the same as all disabled individuals, including both pre-ADA paratransit systems, and fixed route bus and subway systems. For political reasons, the non-disabled elderly were not excluded from these same privileges on fixed route bus and subway services: They ride at half fare (at most). And those powder blue signs with white lettering mounted in the sidewalls over “priority treatment” seats still say “Please yield your seat to the Elderly and Disabled.” This odd discrepancy never comes up in any tort suits. Non-disabled elderly individuals are denied paratransit service because of the high per-trip costs, and the practice and goals of all or most transit agencies are to erect “ride limiting barriers” (including poor service) to discourage the use of paratransit by even clearly-qualified disabled individuals.
Q: Does the ADA apply to all modes of public transportation?
A: Yes in the most general of ways: No mode can deny transportation to anyone disabled (although the characteristics of some modes make their usage by certain types of disabled individuals (mostly wheelchair users) difficult or impossible. Otherwise, the answer is “no” – although the ADA applies to most modes, but in different ways. And the requirements went into effect in different fiscal years: All new fixed route buses were required to be wheelchair accessible in 1991, large cities’ paratransit systems could be “phased in” by 1996, and motorcoaches were given until 2001 to become wheelchair accessible. And all paratransit and schoolbus vehicles need not be accessible, as long as the fleet as a whole contains enough accessible vehicles to meet the demand for them. Otherwise, many key features – like accessibility – were not extended to modes like taxi, limousine, TNC (e.g., Uber & Lyft) service, and they are “watered down” considerably for passenger rail (not subway) service and airline service.
Comment: The Rehabilitation Act of 1973 required that new fixed route buses and other services (e.g., paratransit) paid for with Federal funds be accessible. Fixed route buses have a strange history: In 1976, President Carter mandated the doctrine of “full accessibility.” While President Reagan reversed this mandate in 1980, most states had echoed the Federal requirements in state legislation, and did not have the political courage to reverse it. For this reason, by the time the ADA was promulgated in 1991, most fixed route buses were already accessible – but did not meet every nuance of the ADA (e.g., requirements for three-point occupant restraint systems to be installed adjacent to every securement area). But few if any buses produced before 1991 exist today. So this history has no impact in any tort claim.
Q: Are there any exemptions for subway service?
A: Yes. Because the cost of retrofitting elevators on deeply-underground subway stations built more than 100 or more years ago would be exorbitant, many stations have been exempted from the requirement that they be “accessible.” Yet even in these old subway stations, key stations were required to be retrofitted. Otherwise, some stations were exempted in Cleveland, Boston, New York City, Philadelphia and Chicago. Otherwise, all subway stations must be accessible.
Comment: Obviously, newer systems – including many new light rail systems built before 1991 – had to be accessible (including retrofitting those built before 1991).
Q: Are ADA requirements the same for all modes?
A: No. For example, passenger rail systems are required to have a space for one wheelchair in the “accessible car.” Yet there are no securement devices in them. (The rationale is that rail systems travel on an exclusive right-of-way, and collisions are rare.) On commercial airlines, wheelchair users are transferred to narrow chairs on the “gangway,” which must fit through the narrower aircraft door. (On most vehicles, the ADA requires doors to be at least 56 inches high and 32 inches wide.) So until some enlightened attorney changes the Act’s application to commercial airline doors through injunctive relief, large wheelchair users cannot effectively travel by commercial airline.
Comment: While some modes like taxis are excluded, some have been rendered accessible. And when they are, key features (like those for securement area dimensions and securement equipment available) must meet ADA requirements.
Q: For services that must meet ADA requirements, must every vehicle be accessible?
A: No. All fixed route buses and motorcoaches must be accessible, whereas in paratransit and schoolbus service, there must merely be enough accessible vehicles in the fleet, overall, to meet the demand for them. The same is true for non-emergency medical transportation (NEMT) service – although the ADA does not even address this mode (seemingly it is considered a form of paratransit service, and the same rules that apply to complementary paratransit service ostensibly apply to NEMT service and other paratransit services).
Comment: There is no enforcement of deviations – e.g., a shuttle service for adult day care centers may not contain any accessible vehicles, and I know of no class action suit that required it too – partly because most adult day care centers deploy more than a single vehicle. Further, if transportation service is “ancillary” to the main purposes of a facility, its vehicles need not meet ADA requirements.
Q: Are the drivers or attendants of accessible and non-accessible vehicles required to help disabled passengers to board and alight?
A: No. But it is the clear industry to do so if the need is obvious, or the driver or system has information about the passengers’ needs (and if having such information is realistic for the mode).
Comment: Many disabled individuals require no assistance, do not want any, and the ADA stresses “independence” throughout the Act, in different ways (for example, a driver or attendant should not touch a passenger unless it is necessary – like assisting a frail elderly or disabled individual with poor balance up and down the stepwell, or from the floor level, or to secure a lap and shoulder belt to this individual, etc.) During my decade transporting developmentally-disabled adults, many were not physically disabled, participated in the Special Olympics, and during normal travel, bounded on and off the vehicle before our drivers could walk around and open the doors for them.
Q: Must or should a service provider transporting disabled individuals have medical and/or treatment records for the passengers it carries?
A: There is no requirement for this in the ADA. However, the Business Associates Amendment to HIPAA regulations requires medical facilities to share medical and treatment records with “agents” which perform services they themselves do not or cannot – like paratransit service. For this reason, a paratransit or NEMT provider can proactively seek and obtain such records – while few do. And when such information (e.g., about a passenger’s tendency to have a petit mal or grand mal seizure) leads to an incident, the service provider is likely to be held liable for not having such information when, more probably than not, having this information would or might have prevented (or helped to mitigate) an incident. Few plaintiff’s attorneys explore or care about this requirement.
Comment: During the decade when I directed my own 70-vehicle system which daily transported 1100 developmentally-disabled adults and infants (most of whom were also physically disabled) – I curtailed this service five years before the initial HIPAA requirements were promulgated (in 1996) – I wrote the contract between my company (PTS Transportation) and the social service agency for which we worked to require all passengers to complete and submit a detailed, three-page questionnaire before my company would transport them. As an expert, I have often argued the importance of knowing helpful and critical things about the passengers one carries. (This is impractical for transit service, most forms of motorcoach service, and taxi, limousine, TNC (e.g., Uber & Lyft) and passenger rail service, while it is not impractical for commercial airline services (which almost never obtain any such information, nor do the feeder services transporting these passengers to their airport terminals).
Q: Who can use a wheelchair lift or the ramp of a low-floor vehicle?
A: It is the industry standard to require all wheelchair users to obviously use this feature, and as a safety matter, all walker users and cane users should do so as well (in this case, with the driver riding alongside the passenger during his or her boarding and alighting). But if a walker or cane user declines, drivers must permit them to board as other passengers due: The ADA does not permit any denials of service – even when equipment to transport them safely is absent or compromised.
Comment: Otherwise, any passenger who requests that he or she ride the lift or ramp – whether an athlete, acrobat or a non-threatening creature from another planet – must be allowed to do so.
Q: Can an accessible mode of transportation place limits on how trips an individual may take, or limit the number of riders per day (or per any period of time)?
A: No.
Comment: The prohibition of any trip denials has been codified in several class action lawsuits (see Liberty Resources v SEPTA, PA, 2001). Huge systems are generally allowed to make a handful of errors a day (the rule-of-thumb is five denials among thousands of trips provided). Trips for eligible, certified paratransit users can occasionally be denied – legitimately under the ADA — by those few bus systems which require the would-be passenger’s origin and destination to lie within ¼ of a mile of a bus stop – a thoughtless chore at the trip reservation level that costs more to research, examine and enforce than the few trips this approach denies would cost. Otherwise, class action lawsuits related to trip denials (e.g., Beauchamp v. LACMTA, CA, 1998 – in which I served as the plaintiff’s expert, working for the ACLU and the Legal Defense Fund) have usually settled quickly, and some included monitoring efforts to ensure compliance throughout the period of the Consent Decree.
Q: On “mixed mode” systems (e.g., paratransit systems deploying “dedicated vans” supplemented by non-accessible or accessible taxis that fade in and out of paratransit and general public taxi service), can a passenger choose the mode he or she prefers?
A: No.
Comment: However, every passenger must be accommodated by some vehicle that meets his or her needs.
Q: Can a paratransit service provide same day service?
A: Yes. But the ADA does not require this.
Comment: Most paratransit services do not do so even when space for the trip is available — as one of many “ride-limiting barriers” to deter ridership on paratransit service, which is costly. But this is also wasteful, since unused space to accommodate a trip means that the trip must be provided on the following day (or another day) by another vehicle. But transit officials have the impunity to make ridership as difficult as possible for its disabled audience, and many top transit agency officials and staff devote considerable time to finding loopholes in the ADA. But there are reasons for this: Every transit system must provide paratransit service, while they were given no additional federal funding to provide it. So the provision of paratransit service effectively translated into a reduction of fixed route bus service – which transit officials strongly prefer to provide since its design and operation is exponentially more simple.
Q: Must paratransit service be reliable?
A: Yes, but only as a weak regulatory matter, with no constraints on, or consequences for, late service. To my knowledge, the Federal Transit Administration has never enforced a single mandate of the ADA – even via simple methods like reducing a transit agency’s funding.
Comment: However, many class action lawsuits (e.g. Flores v. LACMTA. CA. 2000) have generally held that more than 85 to 90 percent of pickups provided late (within a “window” of 15 or 20 minutes) is unacceptable. Monitoring late pickups and drop-offs is rare, as few driver’s logs (or computer programs tracking vehicles via GPS installations) contain both the scheduled pickup and drop-off times and the actual ones (which drivers must enter).
Q: Can late service result in injury incidents?
A: Yes. And often. When a vehicle is running behind schedule – often when the schedules are too tight – drivers commit “safety compromises” of all kinds to try to not fall further behind schedule (see safetycompromises.com).
Comment: Certain safety compromises save more time than others. For example, it may take five minutes for poorly-trained or marginally-trained driver to secure a garden-variety manual wheelchair, whereas it takes a fixed route bus only about six seconds to both “kneel” and (after the passenger is onboard) raise the kneeling feature at the front door. These factors help explain the plethora of wheelchair tipovers (I served as an expert in roughly 150 of these) as well as boarding and alighting incidents (I did nearly 200 of those). In roughly 700 cases as an expert witness – involving all ground transportation modes – I found that the vehicle was running behind schedule in roughly half of them.
Q: What other factors translate into injury incidents?
A: There are too many to list here (beyond vehicles running behind schedule). A good example is the reimbursement formula for service providers in NEMT service – almost always $X/trip plus $Y/mile (without the meter found on taxicabs to charge a lower rate when the vehicle is not moving). Under such an arrangement, a service provider is paid nothing unless and until the vehicle is moving with an eligible passenger on board.
Comment: Operating under such a reimbursement formula – which is not a requirement of the ADA, and rarely a requirement of the public agency engaging the broker, but a choice by the “brokers” assigned to “direct” the operation of service providers who actually deliver the service — owners of many companies sabotage the vehicles’ equipment so that a driver cannot secure a wheelchair if he or she wanted to. In the 100 or so vehicles I examined in the roughly 150 wheelchair tipover cases I’ve done as an expert, I found that no wheelchair of any kind could have been secured in many them during the vehicle’s entire life-span.
Q: How common is the failure to secure a wheelchair, or properly do so?
A: This depends on the mode. A study performed by Fall & Associates in 2011 found that 73.6 percent of transit drivers did not secure the wheelchairs they transported. (In my experience, 23 years of which I worked and lived in Manhattan, and rode buses often, I never ever observed a driver properly securing a wheelchair.) In NEMT service, I suspect that securing a wheelchair is rare. In contrast, wheelchairs are almost always secured in general education and special needs schoolbus service.
Comment: As noted above, certain vehicles – like accessible passenger rail cars and commercial airline planes – do not contain any equipment to which a wheelchair can be secured. (In commercial airlines, those passengers who can even fit through the door are then transferred to a passenger seat – usually a First Class seat in the front of the aircraft – an approach I consider dangerous to both the passenger and the person handling him or her – and an approach I never allowed during the decade I provided paratransit service to physically and developmentally-disabled individuals, or the three years during that decade that my company also provided NEMT service.)
Q: How winnable are lawsuits involving disabled individuals?
A: If done properly, most are difficult to lose, and some (like wheelchair tipovers) are nearly impossible to lose. Since expert costs come out of the 2/3rds of the settlement or verdicts, the costs for technical and medical experts is almost always zero – a mere cash-flow annoyance until the case settles or (rarely) goes to trial.
Comment: NEMT cases, in particular, can yield enormous settlements, since a single broker is effectively stealing what I estimate to exceed $100B a year from our healthcare system by pretending to direct the provision of flagrantly dangerous and reckless service. Such a defendant is likely to loose its contract to operate in its service area (which is often an entire state, or a major city) if a genuine (albeit rare) expert in demand-responsive service explains, on the record, in open court, how the broker has been operating, and how it usually consumes most of the budget for merely “pushing paper around” (much of which it doesn’t even do) while not providing a single trip, and failing to provide any meaningful training to, or monitoring of, the service provided by the always-too-many contractors it assigns to provide the actual service (which the broker fails to, and does not know how to do) – much less how to design a coherent system. So a single wheelchair tipover in NEMT service can place such a broker at risk of losing its billion dollar or multi-billion dollar annual contract for a slate of services. To characterize the deep pockets of the monopoly NEMT broker that operates in all or part of 45 states and the District of Columbia, a broker providing service to MediCare recipients is also likely to provide Medicaid and VA service, as well as service to an agency in charge of developmentally-disabled adults) – often in an entire state or major city.
Q: As many disabled passengers are old or have limited remaining life spans (e.g., many have renal failure and travel to dialysis units for treatment three times a week), is the value of their remaining lives reflected in settlements or verdicts?
A: While one may think “yes,” intuitively, in real life, this is rarely a factor – for a variety of reasons from sympathy for the plaintiff, the fact that the value of most plaintiffs’ remaining lives are often meaningful, replete with close and extensive family relationships and activities, to the outrageous reckless indifferent of the agency, broker and/or contractor whose driver (and often an attendant) provided the actual service to that individual and on whose vehicle the incident occurred.
Comment: The viciousness of the reckless disregard leading to the incident usually trumps any limitations of the plaintiff’s post-incident life and/or his or her estimated remaining life. A good expert thoroughly familiar with the mode, and seasoned about the plethora of industry standard failures which these services often (if not usually) commit, can identify dozens or scores of errors and omissions. About 100 wheelchair tipover cases ago (I last went to trial on one, in 2002), I found about 80 errors or omissions. I commonly find dozens or scores of them. In general, other than incidents involving children, incidents involving disabled adults tend to yield larger (often much larger) settlements or damage awards than those involving healthy adults. But the expert, and sometimes the attorney, must be willing to do the work necessary to compile the mountain of evidence that an extensive discovery request usually yields, and communicate it to the defendant’s counsel.
Q: How do providers of services to disabled passengers keep the costs of their service under control?
A: Ideally, every disabled person should travel on the least costly mode – for example, on transit service, trips on which cost a fraction as much as they do on paratransit service. In fact, “mode-splitting” disabled passengers to the least-costly most is one of the few “official” purposes cited for engaging brokers – even while the major NEMT broker, and possibly a few smaller for-profit brokers consume most of the budget for doing nothing but submitting reports (some or much of which they often do not even do). In complementary paratransit service, in contrast, transit agencies try to control costs by making it as difficult as possible for any of those eligible to use it as they can possibly make it – through an approach for which I coined the term creating “ride limiting barriers.” The simplest example, which is wasteful, but which the ADA allows, is the requirement that all trips be scheduled a day in advance – even where there are gaps in every schedule into which requests for same-day service could easily be accommodated (saving money in the short run).
Comment: In contrast, since some form of paratransit system is almost always more convenient and more safe than less-costly modes, the answer lies in knowing how to provide paratransit and NEMT service efficiently. Regrettably – and a colossal failure of the FTA during every presidential administration before and subsequent to the passage of the ADA – few transit agencies or municipalities know how to provided paratransit service efficiently [I know of one paratransit broker in Pennsylvania that knows how], while no NEMT broker that I know of knows remotely how to do so, and has no incentives to learn how. Frankly, over time, the less efficient NEMT service is, and the more it costs, the great the gross funds going to the broker are, and thus, the more money the broker earns.
Q: In special needs schoolbus service, must all disabled students be transported by smaller vehicles providing door-to-door or curb-to-curb service – more convenient to the vast lion’s share of these individuals?
A: Interestingly, no. Because a goal of education is to teach disabled students how to live among non-disabled individuals, particularly when their school years are over, the Individuals with Disabilities Educational Act (IDEA) requires that every student be transported in the “least restrictive environment” (LRE) – meaning on a general education schoolbus, if that student’s needs can be met on such a vehicle. (Back in the day, before the IDEA was promulgated, this approach was referred to as “mainstreaming.”)
Comment: Riding with non-disabled students is not always practical, for a number of reasons. For example, large buses cannot operate on many small-scale streets (referred to as “locals” by traffic engineers). Or making too many deviations to pick these students up at their homes could unreasonable increase ride times for the bulk of general education students on board.
Q: Can one defend a service provider whose passenger was involved in an incident stemming from negligence?
A: Yes – when that service provider is a contractor, and especially when that contractor is a broker.
Comment: As an example, the lead agency – whether a transit agency or a school district – creates the route and the schedule, and selects the stops. A tight schedule, in particular, induces the commission of safety compromises (see safetycompromises.com), which place the passengers whose safety has been compromised at risk. Very few contractors take the time to perform “dry runs” on proposed routes (where they are even defined in a Request for Proposals) to see if they are tight. And in some modes like fixed route bus service, where most schedules are tight, a contractor is left with the choice of struggling with such constraints or going out of business.