VIA FAX 202-493-2251

July 25, 2006

U.S. Department of Transportation
Docket Management System
U.S. Department of Transportation
400 Seventh Street, S.W.
Nassif Building, Room PL-401
Washington, DC 20590-001

Docket No. 2006-OST-23985 Regulatory Identification Number RIN 2105-AD54
Issue: Modification of Policies and Practices:

AAPD Comments to U.S. Department of Transportation (DOT) Notice of Proposed Rulemaking, Americans with Disabilities Act (ADA)

The American Association of People with Disabilities (AAPD) is pleased to offer comments in this proposed rulemaking. AAPD is the largest national independent nonprofit cross-disability member organization in the United States, dedicated to ensuring economic self-sufficiency and political empowerment for the more than 51 million Americans with disabilities. AAPD works in coalition with other disability organizations for the full implementation and enforcement of disability nondiscrimination laws, particularly the Americans with Disabilities Act (ADA) of 1990, the Rehabilitation Act of 1973, and other statutes.

AAPD believes that accessible transportation is critical for its members and all persons with disabilities, across the age spectrum and regardless of severity of disability. Transportation technologies and policies that advance the integration of persons with disabilities into all arenas of life are fundamental to a society that values civil rights and where advances in transportation and transportation-related technology are made every day. Public transportation is vital to AAPD’s membership, in ensuring employment opportunity and to enjoying the benefits and privileges of a free society.

In summary, AAPD supports DOT's proposed addition of a requirement for transit agencies to make reasonable modifications of policies, practices, and procedures. AAPD offers an additional recommendation for a provision for communications accessibility, and some comments on other issues raised in the rulemaking.

Sincerely,

Jenifer Simpson
Senior Director, Telecommunications and Technology Policy


American Association of People with Disabilities
1629 K Street NW, Suite 503 • Washington, DC 20006
phone 202-457-0046 (V/TTY) • 800-840-8844 (V/TTY) • fax 202-457-0473 • www.aapd.com

COMMENTS TO THE RECORD BY THE AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES (AAPD)

DOT Should Add Regulatory Provision Requiring Reasonable Modifications to Policies, Practices and Procedures

AAPD supports strongly DOT’s proposal to add to its regulations a provision requiring ADA transportation providers to make reasonable modifications to policies, practices, and procedures when necessary to avoid discrimination on the basis of disability, unless the transit agency can show that the modification would fundamentally alter the nature of the service or activity, or would result in undue administrative or financial burden or a direct threat to the health and safety of others.

AAPD echoes DOT in asserting that this requirement is not new and is a fundamental concept within disability rights law, and has been included in various regulations by the U.S. Department of Transportation (DOT) and the U.S. Department of Justice (DOJ) under the ADA, Section 504 of the Rehabilitation Act, and the Air Carrier Access Act. AAPD believes that adding this provision, in the public transit context, will help address situations where there may be unresolved policy concerns such as in situations like the following:

AAPD notes that DOT’s proposal only requires transit agencies to modify policies and practices when needed to avoid discrimination on the basis of disability, with clear strong limitations and does not mean customized services subject to the whim of individuals with disabilities. AAPD notes that these types of examples, that can and should be modifications of policy, practice and procedure, are “just plain common sense” and part of general human courtesy, where individual age or ability difference is respected in a civil society.

Federal Financial Assistance Indicates Authority to Issue New Regulation
AAPD supports DOT’s emphasis that it is adding this provision in the context of its financial assistance relationship with transit agencies. DOT notes that there is language in the FTA Master Agreement that requires recipients to acknowledge the possibility of new federal regulations even after the execution of the Agreement.

Additional Provision for Communications Accessibility Recommended
AAPD recommends adding a provision requiring auxiliary aids and services, to meet the effective communications accessibility needs of persons with hearing, speech, vision and other disabilities, is essential. There are two reasons for this: (a) to avoid discriminating on the basis of such disabilities and (b) because effective communication in public settings is more important than ever given the demands of maintaining Homeland Security, such as may occur in public transportation. Examples of guidance, for this requirement, that DOT could provide include:

Alternate Formats
If a transit agency distributes a bus or train schedule in print form, it must be provided in alternate formats upon request, with a variety of alternate formats available; for instance, via automated or human voice telephone service for persons with vision, learning or mental disabilities, or in alternate formats, such as in large font or Braille, or another digital format, as appropriate, or in a simpler plain language version for persons with cognitive disabilities.

Website Accessibility
If transportation information is made available on a web site to the general public such as about fares and routes, including information about disability accessibility or paratransit availability, the web site should be made disability accessible if has not already been designed to be accessible, so that persons with vision disabilities, who may be using screen readers may access the information; likewise the web site should be designed for accessibility by persons with other disabilities, such as the accessibility needs of persons with cognitive disabilities or with hearing disabilities (if the web site includes audio output in any video streaming). AAPD notes that experts agree generally that making web sites accessible to persons with disabilities generally makes it more usable for all consumers. AAPD recommends that DOT issue guidance to transit agencies to ensure that Section 508 of the Rehabilitation Act standards for website accessibility is used by transit agencies receiving federal financial assistance.

Public Address Announcements
DOT should consider a requirement for development of alternatives to audible emergency and other instructions delivered over public address systems in transit agency sites, such as at stations and terminals. For instance, “fixed information” communications accessibility could involve a requirement for availability of written instructions that is posted in multiple locations throughout the facility with an easily recognizable standardized symbol or emblem so that persons with hearing disabilities are aware of the general procedures used, such as for evacuation or site lock-down, with a description of the types of situations that could trigger emergency announcements over the public address system (e.g., flooding, fires, criminal or terrorist activity, “heavy” weather, other social disruption scenarios).

For information that is “changing information,” such as departure or arrival delays, cancellations and gate changes, any output device that puts this information in text format quickly and easily would assist passengers with hearing disabilities. For instance, a summary screen on the bank of arrival/departure screens that captures this information as fast as possible in text format; or a continuous text display moving banner type device that uses different color lettering (e.g., red for cancellation, yellow for delay, blue for alternate gate, etc.) could be used. These would be implemented when the announcement is first made by transit staff so that customers with hearing disabilities are made aware as soon as possible of gate or other changes. Another alternative is a screen with video streaming capability, such as a crawl or scroll, on the general information CRT screens, that provides these updates in a fast and timely fashion

Accessibility of Information & Sales Devices
AAPD recommends that DOT establish that information transaction and vending machines in transit areas should be disability accessible, particularly for persons with low vision or blindness.

Accessible Public Venues
If a transit agency holds a public hearing and an individual who is deaf requests a sign language interpreter, or other commonly used means of providing information to persons who are deaf or hard of hearing, such as Video Remote Interpreting (VRI), it must be provided upon request, as appropriate.

Use of Telecommunications Relay Services
If a disabled person does not have understandable speech, or has a hearing disability, and uses Telecommunications Relay Services (TRS), the transit agency’s Communications Center or Information Center – commonly contacted by users without disabilities as well -- must train and maintain staff awareness on how to appropriately converse with users of TRS. AAPD recommends that DOT encourage transit information centers to contact their state TRS center for further information on the many forms of TRS, if they have not already done so, such as on Hearing Carry Over (HCO), Voice Carry Over (VCO), Speech-to-Speech (STS) relay, Video Relay Services (VRS), and Captel or captioned telephone service, in addition to more traditional TTY TRS service, if transit agency staff do not have capacity in this area. AAPD recommends that training about TRS at such transit information call centers be refreshed periodically.

Inclusion of Video Relay Service “Phone Booths”
In key or other terminals or stations that are now or will become wired for broadband, including wireless broadband, or broadband supplied by a municipality, establish a Video Relay Services (VRS) “phone booth” for persons with hearing disabilities who are sign language users. VRS is often the most preferred form of making a telephone call for sign language users and such a “phone booth” enables use of this form of relay service.

Commuter and Intercity Rail Station Platform Accessibility
AAPD agrees with DOT's proposal to require level entry boarding at new commuter and intercity rail stations from a fully accessible high platform, with a ramp or bridge plate if necessary, making it possible for everyone to board any accessible train car. The proposal would avoid, if possible, the use of mini-high platforms to provide disability access to the train on commuter rail, allowing mini-highs only as a very last resort. AAPD recommends a phase-out of the use of mini-high platforms, with DOT establishing a date certain terminating the use of this measure, for the purpose of encouraging station platform development that accommodates to the likely growing number of wheelchair users and passengers with physical disabilities as the American population ages.

AAPD agrees that mini-high platforms do not work well since they put a person with a disability out of the general public way, sometimes out in the rain or snow and may greatly delay the person with a disability. Also mini-high platforms may require that the train move in small increments to align its cars in a time-consuming, inconvenient, and likely costly manner. High-level accessible platforms, with bridge plates if necessary, are the only realistic solution, particularly in new construction, for wheelchair users and other persons with disabilities requiring such physical accessibility. Bridge plates are acceptable, given the wider gaps that may often be unavoidable in commuter and intercity rail systems. Bridge plate deployment would only be necessary when there is an individual with a disability present who needs the bridge plate and would not be required all the time for every train.

Cooperation Between Intercity and Commuter Rail Stations
DOT also mentions that there are sometimes difficulties in providing level-entry boarding from a fully accessible high platform that stems from disagreements between commuter rail authorities and freight railroads whose track the commuter railroads use. DOT has asked whether its current regulatory section requiring cooperation between commuter and intercity station owners and the parties attempting to implement the ADA is sufficient to address this problem, or whether an addition is needed. AAPD believes that the owners of the freight railroad itself, or other critical stakeholders, such as their agents or lessees, if not already involved, should be entities involved in such cooperative efforts to deliver seamless customer service. Customer service solutions for such situations should be resolved quickly to avoid even the appearance of discrimination against persons with disabilities.

Additional Key Stations
AAPD believes that transit agencies should have the responsibility to identify additional key stations as circumstances change, such as when a station becomes a major destination point due to new development like the building of a stadium or convention center or due to other factors (changing travel patterns, for instance). DOT should establish appropriate deadlines for when these key stations should be added to the list, based on when the stations are added.

Heritage Fleets
DOT asks if "heritage fleets" of vintage streetcars acquired in the global marketplace for use in revenue service are appropriately covered by the ADA regulation as it is today, and whether it is acceptable if the result is that these systems remain inaccessible (for example, if providing access would compromise the vehicles' structural integrity). AAPD believes that the regulation today covers these systems adequately.

When used vehicles are acquired, good faith efforts to find accessible vehicles are required. If vehicles are altered to the point of remanufacture, they are required to be accessible to the maximum extent feasible. These rules have successfully resulted in some accessible heritage fleets in New Orleans and Seattle that have accessible heritage trolleys. AAPD sees no reason why people with disabilities should not also have full enjoyment of these vehicles since people with disabilities enjoy vacations and tourism alone or with their families, just like anyone else, a typical use of such heritage fleets.

Publicly Funded Demand Response Systems and Used Vehicles
AAPD asserts that operators of publicly funded demand response systems should, like fixed route operators, be required to make good faith efforts to find accessible vehicles when acquiring used vehicles. AAPD supports development of new regulatory text to address this problem, including, for example, a phase-in schedule based on number of vehicles, with a date certain for compliance.

Changes in Mobility Devices; Deviation from "common wheelchair" sizes
AAPD recommends that DOT includes wheelchairs and other devices that do not fit what the DOT ADA standards describe as a "common wheelchair" in any regulations citing use of wheelchairs. Wheelchair technologies evolve, and may include larger wheelchairs, including some with robotic, telematic and other functional properties that contribute to an individual’s ability to live independently. ADA standards for transportation must keep pace with other technological developments in mobility devices used by people with disabilities.

Counting of Paratransit Trips
AAPD supports DOT's view that each individual leg of a paratransit journey should be counted as a trip, so that a round trip from home to work, if denied, would count as two denials. If the transit provider can provide the return trip but not the inbound, and the passenger, as a result, does not go at all, this would also count as two denials, because the inbound denial is the reason the individual cannot go. DOT states that this approach recognizes that a shortage of capacity at one time of day can have a ripple effect that impacts the true availability of passenger service at other times. DOT also points out that treating paratransit trips this way will enable all providers to count successes and failures of service provision in a consistent manner. AAPD agrees with DOT's approach as it reflects reality; people without disabilities would count an inbound and outbound trip on a fixed transit route to a specific destination as two rides, i.e., “the trip to” and “the trip back,” so there should be no difference in approach for persons with disabilities using paratransit service.

JS/AAPD: 7/28/06

1The technical web-based standards are "Web-based intranet and internet information and applications."
2 A three- or four-wheeled mobility device that, when occupied, does not exceed 600 pounds or 30 inches in width by 48 inches in length, measured 2 inches above the ground.