Department of Transportation (DOT) Finishes Greyhound Regulation -- Proposes Bus Companies Must Document Lack of Service

Accessible Greyhound Buses!

PLEASE POST ON DISABILITY-RELATED E-MAIL NETWORKS!!

Your letters are needed by JUNE 1, 1999 expressing your support for DOT's final proposal for Greyhound and other companies using over-the-road buses.

Last September, when DOT published final regulations requiring these companies to buy only accessible buses, and to provide accessible service on 48-hour advance notice until their fleets are fully accessible, DOT also proposed additional, very important paperwork requirements -- short forms for passengers with disabilities and brief annual reports to DOT, which are the only part of DOT's regulation which is not yet final. This proposed paper trail will be the ONLY WAY people with disabilities who are not served as the law requires, receive their financial compensation (between $300 and $700), and it will enable the disability community to know and prove whether or not the companies complied. However, Greyhound and the other companies are objecting strenuously to this so-called onerous paperwork burden -- we must show THIS IS DOCUMENTATION WE NEED FOR OUR CIVIL RIGHTS. (Also, one of DOT's proposals, the third one out of four, is problematic and should be opposed.)

Below are comments from the Disability Rights Education and Defense Fund (DREDF) to help you write your letters. Please DON'T send in the comments below, themselves. Instead, write a letter in your own words. Borrow ideas and arguments from the comments as much as you wish. Add your own experiences and your impressions of the transit companies' past performance. YOUR LETTERS MUST INCLUDE THE DOCKET AND NOTICE NUMBERS LISTED BELOW. Send your letters BEFORE JUNE 1st to:

Docket Clerk
Docket Number OST-98-3648; Notice Number 64 Fed. Reg. #15866
Department of Transportation Room PL-401
400 7th St., S.W.
Washington, DC 20590-0001

OVER-THE-ROAD BUS COMPANIES AND INFORMATION COLLECTION: COMMENTS ON DEPARTMENT OF TRANSPORTATION (DOT) NOTICE OF REQUEST FOR COMMENTS, AMERICANS WITH DISABILITIES ACT (ADA), DOCKET NUMBER OST-98-3648, NOTICE NUMBER 64 Fed. Reg. #15866, PUBLISHED IN THE FEDERAL REGISTER ON APRIL 1, 1999, STARTING p. 15866

Comments by the DISABILITY RIGHTS EDUCATION AND DEFENSE FUND (DREDF)

In September 1998, the Department of Transportation (DOT) issued its final regulation for Greyhound and other private companies operating over-the-road buses (OTRB's ). This regulation was an important advance in the civil rights of people with disabilities. At long last, it finally required full access by an industry which has been extraordinarily resistant to the Americans with Disabilities Act.

WHAT'S ALREADY REQUIRED

DOT's regulation already requires companies using OTRB's to replace their inaccessible bus fleets, over time, with accessible buses, when new buses are purchased. The regulation also requires these companies to provide service in an accessible bus to a passenger who requests it with 48 hours advance notice, beginning in October 2001 (or October 2002 for small companies), until their bus fleets are fully accessible (so advance notice will no longer be necessary). Demand-response service providers which use OTRB's, such as charter bus companies and many tour bus companies, are also required to provide accessible service with 48 hour advance notice. Small companies may provide equivalent service on alternate vehicles such as vans rather than acquiring accessible buses, as long as people who use wheelchairs may ride in their own wheelchairs.

The final regulation also requires that, if a passenger requests advance notice service, and the company doesn't provide it, the company must pay the passenger compensation. The amounts of compensation range from $300 to $700. The first time a given company fails to provide the required service, it pays the passenger $300. The second time the same company fails to provide any passenger the required service, it pays the passenger $400, and so forth, until $700 is the required compensation for the fifth time the company fails to serve a passenger as required.

WHAT'S BEING PROPOSED NOW

DOT also proposed several information collection requirements for these companies -- the filling out and maintaining of short forms and short annual reports -- to aid in monitoring and enforcing compliance with the regulation. These requirements, which are not yet finalized, are being hotly disputed by the companies as completely unnecessary and onerously burdensome.

However, almost all of the proposed requirements are extremely important and should be maintained by DOT. (Of the four proposed sets of requirements, the third one is of dubious value, and DOT is encouraged to drop it.) The only way government agencies and people with disabilities will be able to ensure that the OTRB industry, famous for its almost complete ignorance of and compliance with the ADA, is actually complying, is if the modest amount of documentation in DOT's proposal is required. The first, second, and fourth requirements are important for a number of other reasons, explained below. However, DOT's proposed requirements don't go far enough, and some additional steps are also suggested.

WHY THE REQUIREMENTS ARE NECESSARY

ADVANCE NOTICE SERVICE (DOT's first proposed requirement)

DOT's most important proposal is the brief form transit companies like Greyhound must immediately provide the passenger when he or she requests advance notice service. With companies like Greyhound, it will be extremely difficult if not impossible for people with disabilities who request accessible service in advance, but who arrive at the bus station and find only an inaccessible vehicle, to show the company that they truly made an advance request. How are they to document their request, without some kind of confirming paperwork from the company showing they made one? Without this requirement for documentation, the advance notice requirement will be meaningless.

It has been shown in the past that Greyhound, the largest company using OTRB's, has a high rate of failing to heed advance requests ALREADY REQUIRED BY THE ADA TODAY. It is hard to see why DOT's latest requirement for advance notice service will be followed any more faithfully without some way for people with disabilities to show formal documentation of their advance requests.

Another crucial aspect of this requirement is that if accessible service is not provided despite it having been requested, the company must immediately provide another short form to the would-be passenger, documenting this failure. This documentation will be necessary for people with disabilities to ensure they receive the required financial compensation. It is unlikely that any person with a disability will ever receive a dollar of financial compensation without a way to document the company's failure to serve him or her.

Further, DOT has proposed that the companies maintain their copies of the paperwork for five years, and report annually to DOT a summary of the documentation. These are also very important requirements for monitoring compliance, and should be maintained in the final rule. However, it is not clear that five years is a sufficient amount of time. Monitoring efforts, research into compliance trends, and enforcement actions which attempt to show a pattern of compliance over time all need records to be maintained for a more significant number of years. A five year requirement is rather short when considering this kind of time scale. Ideally, records should be maintained indefinitely. If a particular time period must be stated, 15 - 20 years is suggested, in order for trends to be adequately tracked.

Further, why should the information be available only to DOT and to the Department of Justice (DOJ), as DOT's proposal states? Private research efforts and other interested parties should have access to this information. It should be available on request.

It should also be pointed out that computerization and the Internet can make this and the other paperwork requirements significantly easier for everyone. Not every passenger will have access to the Internet, of course, but some will. In these cases, the form can be on the company's web site, which many companies will have. An automatic confirmation can be given to the passenger and recorded by the company, without company staff doing anything whatsoever on paper. For passengers doing business by telephone or in person, company staff can input the information into the company database. Then, the annual report can be easily generated simply by printing and sending the database. This can greatly reduce the so-called paperwork burden.

As of today the ADA has been law for almost 10 years. Very few OTRB companies have made their service accessible or even available, but Greyhound has publicly sworn it can do so through advance notice service. Yet they have vehemently opposed a requirement to document what they say they can do anyway. Under these circumstances, their vociferous opposition must be viewed with great suspicion. If Greyhound and other companies are so sure they can provide advance notice service, why are they so resistant to a reasonable means of monitoring it? And why do they find so onerous the suggestion that they compensate passengers when they fail to provide such service, if they are so sure they will NOT fail to provide it? It is to DOT's credit that it proposed these monitoring devices, and it should maintain them in a final regulation.

EQUIVALENT SERVICE BY SMALL COMPANIES (DOT's second proposed requirement)

DOT has allowed small companies to provide equivalent service on alternate vehicles such as vans rather than acquiring accessible buses, as long as people who use wheelchairs may ride in their own wheelchairs. In each case, DOT proposes the company must fill out a short form, a copy of which is given to the passenger, and another which is maintained by the company for five years. Again, they must be available to DOT and DOJ, and must be summarized in a report to DOT annually.

Similar to advance notice service, a company providing equivalent service to people with disabilities must afford them some means of verifying their request, if service is not provided. The equivalent service requirement for small OTRB companies is somewhat like DOT's ADA requirement for private hotels which provide shuttle service to the airport. The hotels are allowed to provide alternate service rather than being required to have an accessible airport van, in most cases. Yet, 10 years after the ADA, hotels which actually provide equivalent alternate service are rare. DOT's requirement for OTRB companies to document a request for equivalent service with a short form is an excellent way to aid genuine implementation of the requirement.

Also similar to advance notice service, such documentation will be necessary for people with disabilities to ensure they receive the required financial compensation, if equivalent service is not provided. And again, it is important for records to be available for a longer duration than five years in order to track trends in providing service over a number of years. A requirement of 15 - 20 years is suggested. It is further suggested that, in addition to summarizing results for DOT, the information be available upon request. And again, it should be noted that computerization and the Internet can greatly reduce the number of hours companies will need to spend fulfilling this requirement.

REPORTING THE NUMBER OF LIFT BOARDINGS (DOT's third proposed requirement)

DOT also proposes that OTRB companies submit an annual report to DOT on how many passengers with disabilities use lifts to board their accessible buses. We encourage DOT to drop this requirement.

The reason is that many companies in this industry have a long history of significantly UNDER REPORTING demand for and use of service by people with disabilities. There is no reason to believe they'll not continue this extreme under reporting of demand, because there will be no independent validation of their records by any external party.

It is of great concern to the disability community that DOT always treats the data and other claims of transit agencies as absolute gospel, with no independent validation and without any consultation whatsoever with riders or with the disability community. Imposing this requirement could place the future measure of people with disabilities' transportation needs in the hands of the very companies which have been the most resistant to serving those needs.

Therefore this requirement is of dubious value, and DOT is encouraged to eliminate it from the final rule.

REPORTING THE NUMBER OF ACCESSIBLE BUSES ACQUIRED (DOT's fourth proposed requirement)

Finally, DOT has proposed that all fixed route OTRB companies submit an annual report to DOT listing the number of new and used buses they have purchased or leased in the preceding year, how many are accessible, and the total number of buses in each company's fleet.

This requirement is extremely important, because information about how many vehicles are bought by private transit companies, when they are bought, and whether they are accessible, is otherwise completely unavailable to the general public as well as to any government agency. In contrast to public transit agencies, which must make extensive reports about vehicle purchases, there is no way to find out this information about private transit companies. This lack of information has confounded the disability community in its attempts to monitor and enforce the existing ADA requirements of private transportation providers.

Also, this is a perfectly reasonable and minimal requirement which could enable DOT to track whether the requirement to acquire accessible vehicles is being complied with. This information should also be made available to all interested parties upon request by both the companies and DOT.

OTHER COMMENTS

PUBLIC NOTICE OF KEY REQUIREMENTS

One very important informational requirement that DOT did NOT propose, but should require, is for companies to give the public notice of key requirements in the regulations. It is very common under the ADA for covered businesses to be required to provide information about the ADA's requirements to job applicants or the general public. For example, employers and state and local governments are all required to post or disseminate public notices stating their key ADA requirements.

Similarly, companies using OTRB's should be required to give notice to the public of the key requirements in DOT's OTRB regulation. For example, the key ADA requirements of Greyhound should be posted in Greyhound stations, in Greyhound buses, and in Greyhound publications. This information should include a contact person in the company who is responsible for ensuring the requirements are followed. Further, this information should appear on the company's web site, if it has one.

DOT'S PROJECTION OF REQUIRED HOURS

DOT's Notice of Request for Comments appears to exaggerate the number of hours companies will have to spend to comply with some of DOT's proposals. For example, why will it take 35.4 hours for a company to prepare and submit a brief annual report listing the number of new and used buses it has purchased or leased in the preceding year, how many are accessible, and the total number of buses in the company's fleet?

In other cases, DOT's projections appear realistic and show the minimalist nature of the requirements. For example, DOT states that many of the requirements will need a company to spend merely 3 staff hours (or, in some cases, much less) ANNUALLY. As described above, computerization can reduce this even more. This is a very modest amount of time when one considers the important function which is served: providing people with disabilities the same transportation service available to the general public."

For more info contact:
Marilyn Golden
mgolden@wli.net