Dakota Transit Association Meeting

Civil Rights Update andReasonable Modification of

PolicyRegion VIII

September 21, 2015Minot, ND

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FTA and the Office of Civil Rights (TCR) has put an increased

emphasis on assuring compliance with all civil rights regulations

Having all required civil rights programs (Title VI, EEO, and DBE Program and Goal) on file and concurred upon are pre-requisites to funding. Increased emphasis means:

– programs are submitted in TEAM by the grantee

– reviews are more in-depth– reviews are followed-up with a letter from TCR

indicating review determination, and any corrections

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Program Determinations–Concur–In Review–Expired/Expiration

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Recipient Classifications• Direct Recipient - this term applies to

recipients that receive funds from FTA and spends those funds

• Primary Recipient – this is a term used in the regulation and it applies to recipients that pass funds through to subrecipients-The State is considered the Primary Recipient when it passes FTA funds to an organization, or a Subrecipient

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The Office of Civil Rights (TCR) pulls information from TEAM and TrAMS to send emails, letters and other correspondence to grantees.

-Under the “Recipient” tab, make sure all necessary individuals are listed and their contact information is correct: Name, Title, Address, Email, Telephone…-Send RCRO the contact information for individuals responsible for civil rights matters in your organization as they may not be listed in TEAM.

TEAM / TRAMS IS USED TO CONTACT YOU

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Great Way to Get Information and Stay

CurrentSign-up to receive email notifications when TCR (The Office of Civil Rights) adds information to the webpage.

Look for a red icon at the top of the page to get you started.

Sign up for email updates on this topic.

You can choose what information you would like to receive notifications about

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Circular NewsNEW ADA CIRCULAR IS IN THE WORKS

A NEW EEO CIRCULAR IS IN THE WORKS

THE (REVISED) TITLE VI CIRCULAR 4702.1B (Effective October 1, 2012)

A (NEW IN 2012) ENVIRONMENTAL JUSTICE CIRCULAR TCR does NOT oversee this

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DBE applies to FTA recipients receiving planning, capital and/or operating assistance who will award contracts exceeding $250,000 in FTA funds in a Federal fiscal year (excluding vehicle purchase and internal expenses, i.e. planning).There are THREE components to the DBE Requirement;

the DBE Program is different from the DBE Goal grantees submit every three years.

• The DBE Goal anticipates contracts with FTA funds and the availability of DBEs to perform work on FTA-assisted contracts.

• The DBE PROGRAM describes how the agency implements the program or carries out its DBE efforts.

• DBE Reports provide information on how the money received is actually spent. MUST be filed in TEAM each June and December

DBE

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• Really look at your projected spending and do not overlook contracting opportunities.

• If you did not meet your goal, conduct an honest Shortfall Analysis. This is your opportunity to analyze your Goal, determine why you didn’t meet it and what you can do to improve. Was it because a faulty goal setting method was used? Was a change in the market?

• Increase your participation by starting with improved RN efforts.- Hold meet and greets, implement mentoring programs, review your SBE

Program and really implement it.

• Increase enforcement of Contract Goals.

MEETING YOUR GOAL

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DBE RULE CHANGESSeveral changes: TWO important changes to

the DBE Goal requirement1. Publication and Consultation

Publication is deemphasized. Recipients must at least publish their goal on their website, but whether to publish the goal in other avenues is at the recipient’s discretion.Consultation is being given more emphasis. Recipients must make an concentrated effort to reach out to all interested parties and gain their feedback. (Passive or slight efforts such as blast emails without follow-up will not satisfy this requirement.) • This is the time of year to be conducting consultations and

FTA is looking closely to see that this requirement is met.

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DBE RULE CHANGESChanges to TWO aspects of the DBE Goal

requirement2. Goal Adjustment

Recipients are NOT required to adjust their goal (never have been). But if you adjust the goal, submission must now really explain well why you chose to adjust the goal.• The emphasis has shifted to explaining why you CHOSE to

adjust and what factors you considered. (Before we expected a comprehensive explanation about why you did not adjust the goal.)

• Recipients MUST consider all factors and goal adjustment whether or not a goal adjustment is actually done. -Include a statement in the goal submission about adjustment considerations so it is clear that this requirement was not overlooked.

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EEOEQUAL EMPLOYMENT OPPORTUNITY PROGRAM (EEO)

Does it apply to you?

• FTA recipients with 50 or more transit-related employees

AND -(1) received $1 million or more in capital or operating assistance

~ Or ~

-(2) received $250,000 or more in planning assistance during the previous fiscal year

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TITLE VIPROHIBITS DISCRIMINATION BASED ON RACE, COLOR,

NATIONAL ORIGIN

“No Person in the U.S. shall, on the grounds of Race, Color, national origin be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”

• 42 U.S.C § 2000d, et seq

EJ and Title VI• EJ

– Executive Order– Applies to Federal

agencies– Recipients

facilitate FTA compliance with E.O.

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• Title VI– Statute– Applies to ALL FTA

recipients– FTA oversees

recipients’ compliance with Title VI regulations

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Environmental Justice• EJ is separated from Title VI circular

to reduce confusion • FTA developed EJ guidance in circular

number 4703.1 “Environmental Justice Policy Guidance for Federal Transit Administration Recipients”

• EJ is not handled by the Office of Civil Rights. The Office of Planning and Environment (TPE) is responsible for EJ matters.

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TITLE VI PROGRAM SUBMISSION• Applies to all FTA Recipients • Every 3 years – The Office of Civil Rights has

developed a submission schedule similar to the DBE submission schedule.

• Submit your Program at least 60 calendar days prior to expiration date.

• All recipients must have Title VI Program approved by the recipient’s governing entity and MUST submit documentation of review and approval actions.– For State DOTs, the appropriate governing entity is the State’s

Secretary of Transportation or equivalent.

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CONTRACTORS AND TITLE VIContractors who operate service for FTA grantees do NOT submit Title VI Programs. They must comply with the grantee’s Title VI program.

• For example: A company contracted to provide paratransit service for Transit Agency A must implement the Title VI

Program of Transit Agency A.

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SUBRECIPIENTS AND TITLE VI• Each subrecipient must develop and

implement its own Program.

-Even if the organization does not get any funding directly from FTA but gets FTA funding from the State – the organization still must have its own Title VI Program.

-The Subrecipient submits its Program to the State on a schedule established by the State.

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SUBRECIPIENTS AND TITLE VIThe State is responsible providing technical assistance, review and concurrence and oversight of the subrecipient’s Program.

• If the Subrecipient is out of civil rights compliance – the State is out of compliance.

– The State may assist with the preparation of the Program but the subrecipient Program must be a separate Program.

– The subrecipient may use some elements of the primary recipient’s Title VI Program.

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• Provides grantees with guidance on the relationship between Title VI Program requirements and DOT’s Title VI regulation

• Explains what grantees must include in their Title VI programs

• Includes in-depth appendices to provide examples to grantees (Includes graphs, sample forms, and flow charts)

TITLE VI CIRCULAR HIGHLIGHTS

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CHAPTER IIIRequirements for ALL Recipients

Eight elements contained in every Title VI Program:• Notice of Rights under Title VI• How to File a Complaint, copy of complaint form• List of Title VI investigations, complaints or lawsuits• Public Participation Plan• LEP Plan• Racial Breakdown of Non-elected Advisory

Councils• Narrative Describing Subrecipient Monitoring• Board of Directors resolution or meeting

minutes demonstrating the board approved the Title VI Program

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Promoting InclusivePublic Participation among LEP

and Minority Populations

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The Public Participation Plan

• Must contain:– Proactive Strategies,– Procedures, and – Desired Outcomes

• Suggested Participation Plan strategies and examples• Meetings at convenient times and accessible

locations • Utilizing different meeting sizes and formats• Alternative advertising platforms• Varying community interaction

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LEPMust be prepared to meet any language need that arises.

Title VI States“No person in the United States shall,

on the grounds of race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal Financial assistance”.

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LEP AssessmentFour Factor Analysis

1. The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or recipient.

2. The frequency with which LEP persons come into contact with the program.

3. The nature and importance of the program, activity, or service provided by the program to people’s lives

4. The resources available to the recipient for LEP outreach, as well as the costs associated with that outreach

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Developing a LEP PlanRecipients have considerable flexibility in developing a LEP Plan but at a minimum, a LEP Plan shall:

1.Include the results of the Four Factor Analysis, including a description of the LEP population(s) served;

2.Describe how the recipient provides language assistance services by language;

3.Describe how the recipient provides notice to LEP persons about the availability of language assistance;

4.Describe how the recipient monitors, evaluates and updates the language access plan; and

5.Describe how the recipient trains employees to provide timely and reasonable language assistance to LEP populations.

Need Assistance? www.LEP.gov

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Minority Representation on Planning and Advisory

BodiesIf you have: transit-related, non-elected planning boards, advisory councils, committees, or similar groups and the membership is selected by the recipient

Then -You must provide a table depicting the racial breakdown of the membership of those committees, and a description of efforts made to encourage the participation of minorities on such committees

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Monitoring Subrecipients• Primary recipients must monitor subrecipients• Non-compliant subrecipient means

primary recipient is also non-compliant• Primary recipients should assist subrecipients• Primary recipients shall:

– Document process for ensuring all subrecipients are complying with the general and specific requirements .

– Collect and review subrecipient’s Title VI Program

– At FTA’s request, the primary recipient shall request that subrecipients who provide transportation services verify that their level and quality of service is equitably provided.

Requirement to Collect and Report Demographic Data

• Must prepare data regarding demographic and service profile maps and charts and customer demographic and travel patterns

• Demographic and Service Profile Maps and Charts. – Base map of service area that overlays with geographic

data– Demographic map

• Demographic Ridership and Travel Patterns Such As: – Race - National Origin– Color - English Proficiency

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Map Predominantly Minority Areas

Minority threshold of 37% determined by total service area population

CHAPTER VRequirements for States

• State shall include:– General requirements outlined in Chapter III– Any applicable transit provider requirements– Signed by State Secretary of Transportation– Demographic profile– Demographic maps– Analysis of disparate impacts– Statewide transportation planning process– Pass-through procedures– Procedures to assist subrecipients

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Planning• All States must conduct planning activities

• Collect Title VI programs from MPOs if they “pass through” planning funds to the MPO

• Collection and storage of subrecipients Programs is a decision for the state

• Self Certification

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Requirements for Program Administration under 5310

• Document FTA funds passed-through without regard to race, color, or national origin

• States prepare/maintain but not report unless requested by FTA:– Record of funding request– Description of competitive selection process– Agency’s selection Criteria

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THE APPENDIX IS YOUR FRIEND

Appendices are meant to provide practical guidance and include checklists, examples, tables… for FTA recipients to consult when preparing their Title VI program

Use them and encourage others to do the same

Check out our civil rights training page on the website

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Americans with Disabilities Act

Proposed ADA Circular FTA C 4710.1

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Proposed ADA Circular• FTA is proposing the phased development

of a new ADA Circular FTA C 4710.1• It is being developed by chapter (about 12

chapters total)• There is a draft of the Circular on the FTA

ADA home page “Proposed ADA Circular Chapter”

• Watch for opportunities to submit comments on the current proposed chapter and ideas for issues to cover in future chapters

THE ADA FINAL RULEDOT issued an ADA Final Rule March 15, 2015

“Reasonable Modification”49 CFR Parts 27 and 37

This is not a new rule but is intended to clarify or fill a gap in the regulations, particularly as it pertains to paratransit.

“Undue hardship” and “Safety” are terms of art and key considerations under this Final Rule.

Effective July 13, 201537

Origin-to-Destination• No change to the longstanding origin-to-

destination requirement under §37.129 (a)

• Base curb-to-curb policy ok, but assistance beyond curb would be needed on an individual basis, consistent with 2005 DOT law guidance

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Reasonable Modification

• Reasonable \ˈrē-zən-ə-bəl\; adj.: fair and sensible; not extreme or excessive; possessing sound judgment

• Modification \ˌmä-də-fə-ˈkā-shən\; n.: the act or process of changing parts of something

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What is reasonable modification?

• Agencies are required to make reasonable modifications to policies, practices, and procedures to avoid discrimination and ensure that their programs are accessible to individuals with disabilities

• Appendix E provides a framework with examples

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Reasonable Modification: Examples

• Have operator pull up a reasonable distance from obstructed bus stop• Help rider with fare media• Allow passenger with medical condition to eat/drink to avoid adverse health consequences

Paratransit• Pick up at hard to maneuver spots• Pick up at specific entrances• Assist in extreme weather

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General

Reasonable Modification: What is It Not?

• Applies to an agency’s policies/practices, not the regulations themselves

• e.g., Not a need to exceed minimum service criteria

Appendix E“Importantly, reasonable modification applies to an entities’ own policies and practices, and not regulatory requirements contained in 49 CFR parts 27, 37, 38, and 39, such as complementary paratransit service going beyond 3⁄4 mile of the fixed route, providing same day complementary paratransit service, etc.”

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Reasonable Modification: What it Is Not?

1.Fundamental alteration of service

2.Direct threat to the health or safety of others

3.Not needed by the requester to use the service

4.Undue financial / administrative burden43

1. Fundamental Alteration• A change so significant that it alters the nature of the service• Examples (Appendix E): –Specific vehicle requests (“I like the new buses!”) –Exclusive rides –PCA functions like carrying packages, staying with unattended passengers –Operating outside service area or hours• Basic concepts: –The service is shared-ride public transportation to get people from point A to point B –The bus driver is not a personal care attendant

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2. Direct Threat

• A significant risk to the health or safety of others –Clear and present danger to someone else

Examples (Appendix E):• Exposing the vehicles to hazards (reversing down

a narrow alley, striking overhead objects, etc.)• Leaving a vehicle unattended for a lengthy period

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3. Not Needed

• Without the requested modification, the individual with a disability is able to fully use the entity’s services, programs, or activities for their intended purpose

Example (Appendix E): • Request for a specific driver

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4. Undue Burden

• Depends on facts and circumstances of each individual case

• Burden of proof on agency• Accommodation requested may be

unreasonable based on more than one principle

• Example: Asking to not ride with a particular passenger

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Local Process Requirement• Transit providers must implement their own

process for making decisions and providing reasonable modifications (§37.169)

–The rule does not prescribe the exact process to adopt or require DOT approval• Existing local processes may suffice – no separate

process for RM–Complaint process–Paratransit eligibility process–Customer service–Operating personnel (when advance notice is

impracticable) 48

Basic Process Requirements

• Information on RM process is readily available to the public

• Process is accessible• Require advance

notice; but when feasible, flexibility needed in handling requests only practicable on the spot

• Requesters must describe what they need to use the service

• Requesters do not need to use the phrase, “reasonable modification”

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Basic Process Requirements

• Flexibility!–Appendix E is not exhaustive–Scenarios may evolve over time and initially

require case-by-case assessment• Some situations will always be on-the-spot

–Obstructed bus stops–Eating/drinking

• How have you handled before?

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Federal Oversight

• Oversight focus is on local process–“DOT agencies retain the authority to review

an entity’s process as part of normal program oversight” §37.169

• RM requests to be handled locally–“[T]he Department intends decisions on

individual requests for modification to be addressed at the local level”

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Federal Oversight• Tracking

–No requirement for separate tracking of reasonable modification requests

–Rule assumes existing processes will be used• Identify where requests are handled outside of

these processes• Process must be operated in good faith

–Can’t routinely reject all requests regardless of merit• Document responses (or know where to find

them)–Paratransit eligibility–Complaint process

– –Other : It’s not intended to be onerous process

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Local Complaint Procedures : Change

• Existing complaint requirement in §27.13 revised.

–Previously said agencies must “promptly resolve” complaints• Now, must also:

–“Promptly communicate” the response to the complainant, including the reasons for the response, and “document” the response

–Advertise the complaint process–Ensure procedures are accessible

• Mirrored in new §37.1753

REASONABLE MODIFICATION POLICY

Regional Civil Rights Officers will NOT be reviewing every grantee’s Reasonable

Modification Policy.

- Policies will be looked at during oversight reviews and on a case-by case basis in the interim.

- Remember FTA Office of Civil Rights offers a lot of technical assistance materials to help you.

Familiarize yourself with them and use them.54

THE ADAOther rules and regulations to remember

The following rules are not new. They generate frequent questions so they are included here as

a reminder.

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The definition of “wheelchair” has been refined

– The reference to “three- or four-wheeled devices” has been changed to “three- or more wheeled devices”

– This change was made in light of advances in wheelchair design, with many power wheelchairs now having more than four wheels; these should not be excluded from the definition of “wheelchair” solely on the basis of having a larger number of wheels

Mobility Device Size and Type

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– The rule provides that transit operators must carry a wheelchair and occupant if the lift and vehicle can physically accommodate them, unless doing so is inconsistent with legitimate safety requirements

“Legitimate safety requirements” includes such circumstances as a wheelchair of such size that it would block an aisle, would be too large to fully enter a railcar, would block the vestibule, or would interfere with the safe evacuation of passengers in an emergency

Mobility Device Size and Type

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– Consistent with the rule before this revision, a transit provider cannot impose a limitation on the transportation of wheelchairs and other mobility aids based on the inability of the securement system to secure the device to the satisfaction of the transportation provider.

– It would be inconsistent with the rule to deny service to people who use wheelchairs just because particular devices may be problematic from a securement point of view.

Mobility Device Size and Type

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• Requirement: carry devices that fit on the lift and vehicle, even if the devices exceed 30” x 48” footprint or weigh more than 600 pounds

• No requirement to carry devices that do not fit on the lift or vehicle

• No requirement to retrofit vehicles• No requirement to procure vehicles or

lifts that exceed the ADA requirements – see e.g., 49 CFR part 38, specifically 38.23(b) and (d).

Mobility Device Size and Type

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Service Animals• The new DOJ rule (published

September 15, 2010) defines some terms, such as service animal, differently than the DOT rule.

Transit agencies should not change their service animal policy on the basis of the DOJ rule, since the DOT rule applies to transit agencies.

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Emotional Support Animals• Per the regulation at 49 CFR

37.167(d), a service animal is “trained to work or perform tasks for an individual with a disability”

• If an animal’s only function is to provide emotional support or comfort, that animal would not fall under the regulatory definition of a service animal.

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OPTIONS FOR PROVIDING PARATRANSIT

• Traditional Paratransit - where you have separate fixed route and paratransit vehicles operating alongside one another.

• “Comingling” - under this approach the fixed route bus goes off route ONLY to pick up a paratransit rider. This is ONLY possible if the person is paratransit eligible. ALL traditional paratransit rules and requirements in Subpart F of Part 37 apply. For example: the service area, response times, fares, hours and days of service and all the other paratransit requirements apply.

• Demand Responsive – a system that permits user-initiated variations from routes and/or schedules. Under this type of system the transit system must provide “equivalent service” to all passengers. These requirements are found in 37.171.

• This area is very confusing and determining the type of service being offered is difficult. So it can be difficult to know what rules apply and if the current service is being implemented properly. TCR has developed a checklist.

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Questions or concerns about ADA or Paratransit

Home Page >> Civil Rights >> Americans with Disabilities Act >> ADA Technical Assistance

FTA ADA Assistance Line 1-888-446-4511

Email the FTA ADA Team through FTA’s Contact Us tool on our website

SURF the Civil Rights ADA Webpage, particularly the dredf “Topic Guides on ADA Transportation”

ADA TECHNICAL ASSISTANCE

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Kevin OsbornRegion VII Civil Rights Officer, Lakewood, CO

Office of Civil Rights, Federal Transit Administration

12300 West Dakota Ave.Lakewood, CO 80228

Direct: 720-963-3341  | Kevin.Osborn@dot.gov