Bus Riders Union of Austin, Texas | El Sindicato de Pasajeros

Sunset report June 2010.pdf
Pat Bartel - Certified ADA Paratransit Specialist
9617 Covey Ridge Lane; Austin, TX 78758
Sunset Advisory Commission - May 30, 2010
The following pertains to the illegal CMTA paratransit service area change late fall 2009 - making
paratransit passengers who live in Phleugerville, etc. "come into the ADA service area"
Note: this change to the paratransit service area not only violates state law but also is in violation of the
ADA because Cap Metro failed to abide by the major public participation requirements as well as failed to
disclose this policy change to its own board and thus, the board never voted on this life-altering change.
Texas Statute: 1995
Referring to Sec. 451.610. CONTINUATION OF SERVICES TO PERSONS WITH DISABILITIES.
An authority shall continue to provide transportation services for persons with disabilities in a withdrawn
unit of election. The authority may not charge a fare for transportation services to persons with disabilities
in the withdrawn unit that is more than the fare for those services for persons in the authority.
CMTA service area policy before fall 2009, From the 2002 policy manual:
STS transportation services are provided to any location within the Capital Metro service area including:
Austin, Lago Vista, Pflugerville, Rollingwood, Cedar Park, San Leanna,West Lake Hills, Jonestown Manor,
Valley Unincorporated areas of Travis County.
* The STS passenger must be a resident to be eligible for service in this area.
New CMTA Policy: Affective Jan 2010
If you reside in the following areas you will be allowed to register but must come into theADAService Area
for pick-up: Cedar Park, Pflugerville, Leander, Jonestown, Manor, San Leanna, Sunset Valley, Rollingwood
and West Lake Hills.
[Come into the ADA service area means that passengers who live in these withdrawn units must somehow
find their own way to a designated pickup/drop off area within 3/4 miles of a fixed route bus stop.]
Critical Note: Since 2008, CMTA officials, (Andrea Lofye and Inez Evans), have indicated that the ADA
supercedes state laws, i.e. that if CMTA only wants to adhere to minimum ADA standards, in particular
pertaining to the paratransit service area, that it is not necessary to comply with state laws which specify a
broader service area coverage for people with disabilities.
Clearly, CMTA is violating the provisions of Title II, Appendix D to Part 37--Construction and
Interpretation of Provisions of 49 CFR Part 37:
“We also would point out that the ADA does not assert any blanket preemptive authority
over state or local nondiscrimination laws and enforcement mechanisms. While requirements
of the ADA and this regulation would preempt conflicting state or local provisions (e.g., a
building code or zoning ordinance that prevents compliance with appendix A or other facility
accessibility requirements, ... theADAand this rule do not prohibit states and localities from
legislating in areas relating to disability. For example, if a state law requires a higher degree
of service than the ADA, that requirement could still be enforced. Also, states and localities
may continue to enforce their own parallel requirements.”
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Yet in March, 2007, as per the minutes of the Access Advisory Committee for CMTA, (produced below),
CMTA official Andrea Lofye stated:
 Staff Updates-Legislative Update-Andrea Lofye:
“Legislative update was discussed by Andrea Lofye, Government Affairs. House Bill 504,
introduced by Representative Eliot Naishtat, which would require reimbursement to Capital
Metro from cities Capital Metro is serving with STS and have withdrawn from the service
area. These cities currently reimburse Capital Metro at 50% of the cost per trip by the
residents, but the legislation, if passed, would require the cities to reimburse Capital Metro
at 100%. State law requires Capital Metro to serve residents of these cities. These cities
include Pflugerville, Cedar Park, Westlake and Rollingwood. If the new law is passed,
Capital Metro would still be required to provide services to these areas but would be fully
reimbursed. Austin tax-payers are currently subsidizing the Capital Metro STS costs for
riders in these cities. The new law would not in any way affect current STS riders.”
Thanks to the passage of HB-504 summer 2007, CMTA no longer had any economic argument to justify
the refusal of providing paratransit service under Texas law because cities in the withdrawn units of election
now paid 100% instead of 50% to CMTA for paratransit service.
In fact, on April 12, 2007, John S. O'Brien, Director, Legislative Budget Board, stated in his Local
Government Impact analysis that:
 “The proposed change in statute would result in an increase in the amount of costs recouped by an
authority and an equal amount of revenue loss to a unit that has withdrawn from an authority.”
This Impact Analysis further states that CMTA projects increased revenue through at least 2012. Therefore,
it is clearly an advantage for CMTA to abide by Texas statutes rather than violating them. However, with
the establishment of a minimalists ADAservice area, affective 01/2010,CMTAwould not be able to benefit
from the reimbursement of withdrawn cities because it now forces those who need paratransit to/from those
cities to “come into the minimum ADA service area”, which is not located in those withdrawn cities.
As per the Texas Transportation Institute, TTI, report, April 2009, CMTA had been providing paratransit
service to ADA eligible residents in these withdrawn units of election, (Phleugerville, Rollingwood, etc.).
Furthermore, CMTA provided paratransit service, tos some extent, to those passengers who lived in Austin
who also traveled to these withdrawn units.
For example, between 2004 and 2007, I received paratransit service from my residence in Austin to several
medical facilities on Bee Caves Rd, one of which was Austin Spine, (technically part of Rollingwood).
However, in the spring of 2007, suddenly, without prior notification of any kind, I was informed that I would
not receive paratransit service to destinations on Bee Caves Rd which I had been traveling to before. I
needed monthly visits for special treatments, available no where else in the central Texas area, for to disc
issues as well as migraines related to pituitary cancer. Although the fixed route bus stop was within .5 miles
of this address, within ADA requirements, paratransit service was still denied. In fall 2009 this particular
fixed route mysteriously changed and this address is more than 1.5 miles from the closest bus stop.
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As proof of how Cap Metro violates the public participation requirements of the ADA on a routine basis,
consider the following:
At the operations meeting for theCMTAboard, 04/26/2010, (which I recorded), Elaine Timbes,CMTA vice
president, admitted that in 2004/05, "a decision was made to reduce the paratransit service area to 3/4 mile
from fixed route". She further stated:
 Over 1200 paratransit passengers were adversely affected;
 800 of these have been phased out from paratransit service;
 400 still remained to either be phased out or grandfathered in.
For the record: this drastic policy change in 2005 was never discussed with the Access Advisory Committee,
(AAC), public hearings were never held, the Cap Metro board never voted on this decision.
The original plan as well as updated plans filed with the FTA stated only that Cap Metro would provide at
least the minimum ADA paratransit service, (3/4 mile either side of fixed route). However, since 1985, the
paratransit service area has been much larger, even more than 1.5 miles either side of fixed route. Therefore,
under FTA regs, major public participation is mandentory because this reduction to minimum ADA
standards is such a major life altering change. One or two public hearings would not be sufficient.
As an example, at the National Transportation Institute course that Diane Bomar and I attended this March,
the director for paratransit in Madison WI held over fifty public hearings when they made changes to their
paratransit service area.
Aside from the fact that in both paratransit service area reductions, all public participation requirements were
completely ignored, and that no prior notice was given to paratransit passengers who live in these withdrawn
units of election, now the new Metro policy definitely violates state law. In effect, passengers living in these
withdrawn units do not receive appropriate paratransit service - the service they now receive is less than, is
not equivalent to, and is substantially different than the quality of paratransit service they received before
November 2009.
An ADA eligible paratransit passenger is thus forced to "come into the ADA service area" which clearly
imposes a substantial burden, as well as this violates the “reasonable” requirements of the ADA since:
 What if a friend/neighbor, etc. did not get them to the designated pickup/drop off point in time for
their paratransit ride?
 This passenger would then be deprived of their paratransit ride which is defined as per ADA as a
civil right, akin to a property right.
FINALCRITICALNOTE: In the 2008 federal court case, judge Lee Yeakel, the 2002 Metro policy manual
was accepted as the baseline, i.e. it is the defacto standard. As per the mediation agreement, under no
circumstances, are changes to policy and/or procedure to take place without the Metro Mobility Working
Group, (MMWG), first studying the affects of these changes and second, presenting their recommendations
to the CMTA board. Yet, in the fall of 2009, CMTA never consulted either the ADA mandated Access
Advisory Committee or the MMWG when it violated this mediation agreement when it changed its
paratransit service area yet again.
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CONCLUSION
The fact that CMTA under the leadership of Fred Gilliam squandered and mismanaged $200 Million on the
Red Line Leander train, does not give CMTA any justification to claim a financial hardship to justify
violating Texas statutes pertaining to the provision of paratransit. Furthermore, the following evidence
clearly demonstrates that current CMTA top level management is incompetent, and in fact, would prefer to
perpetuate not only violations of Texas law, but FTA civil rights violations as well.
1. CMTA presented Linda Watson, CEO finalist, to its board and the public, even though the Lynx
paratransit system she manages violates FTA regulations in the following areas:
 No-show policy: Lynx 4 per 90 days with a 30-day suspension for the first occurrence when the
minimum requirements for FTA are 4 per month plus a 4 day suspension for the first occurrence;
 Trip Length on Paratransit: Lynx is up to twice the time taken for a bus for this trip while the FTA
regulations are that the trip length for paratransit are equivalent to the time on fixed route for this
same trip;
 Cancellation: Lynx 3 hours in advance while the FTA regulations are 1 to 2 hours in advance;
2. In a letter I discussed with congressman Lloyd Doggett, I outlined major FTA violations on the part of
CMTA management in the following major areas:
 Changing policy and practices regarding the service area as well as certification for paratransit
eligibility while ignoring public participation requirements;
 Violations to its administrative appeals process pertaining to paratransit eligibility and No-Show
suspension of service;
 Attempts of both CMTA management and current board chair Martinez to eliminate and/or reduce
the effectiveness of its Access Advisory Committee, thus violating ADA effectiveness requirements;
 Since June 2009, MetroAccess has knowingly jeopardized the civil rights of hundreds of passengers
who previously were certified as unconditional by wrongly certifying them as conditionally eligible
for paratransit or denying them paratransit service when the policy does not allow this;
3. In March 2010, the CMTA board was presented with four resolutions from disability related
organizations asking the board to demand that MetroAccess restore the civil rights of adversely affected
passengers by giving them unconditional eligibility for the remainder of their certification period. These
requests are based in part, on the fact that the appeals process is in noncompliance with FTA regulations:
 Separation of authority;
 The director of MetroAccess being involved in the decision making - she was cited in a 2006 FTA
compliance review of WMATA MetroAccess for these same violations;
 Most importantly, MetroAccess changed the way applications for paratransit service were evaluated;
the application that had been used for over 10 years, was processed in a different way, by unqualified
staff, without public input, or discussion with the MMWG.
However, although CMTA management and the board were given proper legal notice of major civil rights
violations that have occurred since June 2009, nothing has taken place to restore paratransit to adversely
affected individuals. Instead, at the April 26, 2010 operations meeting committee for the CMTA board,
management presented major policy changes pertaining to MetroAccess paratransit that management would
like to see implemented before a new paratransit plan is filed with FTA in August of this year.
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4. As the final proof that complicity exists betweenCMTAmanagement and board chair Martinez, consider
the following resolution, (produced in part below), to be voted upon at the May 24, 2010 board meeting. It
not only demonstrates that chair Martinez is completely ignorant of the 2008 mediation agreement between
the plaintiffs and MetroAccess, even though he participated in mediation efforts between the Access
Advisory Committee and CMTA management in 2008, but that both CMTA and apparently chair Martinez
are only interested in coercion to minimize public input in order to force unacceptable changes upon our
disadvantaged and most vulnerable paratransit ridership.
COUNTY OF TRAVIS - RESOLUTION CMTA 05/24/2010
! WHEREAS, the Capital Metropolitan Transportation Authority intends to support and act upon the
recommendations identified in the Sunset Commission Report; and
! WHEREAS, the Capital Metropolitan Transportation Authority wishes to obtain meaningful input
and comments from the community; and
! WHEREAS, the Capital Metropolitan Transportation Authority wishes to comply with the Mediation
Agreement between Capital Metro and the Metro Mobility Working Group (MMWG); and
! WHEREAS, the Capital Metropolitan Transportation Authority must submit recommended policy
changes to the Board of Directors in conjunction with the 2011 budget process.
NOW, THEREFORE, BE IT RESOLVED by the CMTA Board of Directors that:
! Staff is directed to initiate the public input and comment process in May 2010 and to complete all
outreach by June 15, 2010;
! The MMWG is requested to bring forward their final recommendations on the three outstanding
issues, eligibility, open returns and taxi vouchers, to the June 2010 meeting of the Board of
Directors;
! Staff and the MMWG are requested to work together to identify a mediation service that can
facilitate the process to support the advancement of theMMWGrecommendations at the June 2010
meeting of the Board of Directors; and
! Staff is directed to present, at the June 2010 meeting of the Board of Directors, analysis of all public
comment and input, final staff recommendations of service levels, service area and policy change
recommendations.
It is truly significant that when riders from the paratransit community were signing up to speak at the
CMTA board meeting regarding this resolution, we found out that the wording had been changed in
several areas. Perhaps these changes were made to show that board chair Martinez suddenly had become
more open-minded - as he stated “I have an open mind”. However, neither the board chair or CMTA
management made an effort to email the revised resolution to Diane Bomar, who is chair of the Access
Advisory Committee as well as chair of the federal court-mandated Metro Mobility Working Group,
(MMWG).
The two changes are listed below:
COUNTY OF TRAVIS RESOLUTION (ID # 1585) MetroAccess Process
! Staff is directed to initiate the public input and comment process in July 2010 and to complete all
outreach by July 31 2010;
! and Staff is directed to present, at the August 2010 meeting of the Board of Directors, analysis of
all public comment and input, final staff recommendations of service levels, service area and
policy change recommendations.
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1) The fact that chair Martinez expected that public participation requirements as per the ADA would be
met in less than 3 weeks, (the revised/approved resolution gives a generous ttime period of one month),
for such proposed sweeping changes is clearly unsatisfactory and would be deemed not only coercive but
would be a violation of said ADA requirements;
2) It is revealing that CMTA suddenly “wishes to comply with the mediation agreement” when in fact,
they not only violated this agreement on 04/26/2010 when discussing proposed changes with the
operations committee of the board, but also violated said agreement since its inception, on a multitude of
prior occasions;
3) It is incorrect that CMTA must submit most recommended policy changes to the Board of Directors in
conjunction with the 2011 budget process. FTA plan updates are normally submitted in January. At the
Access Advisory Committee meeting May 5, 2010, (digital recordings are available), Elaines Timbes,
MTA vice president, assured the committee that:
1. a new plan did not have to be submitted to FTA in July or August of this year.
Apparently, chair Martinez was unaware of this when he submitted his first resolution on May 20.
 A. During the discussion of this resolution, chair Martinez inappropriately stated that he
approved this resolution and made a motion for its acceptance.
 B. A board member asked Inez Evans, director for MetroAccess paratransit, what was the driving
force behind why she proposed so many policy changes and why did they need to take place
quickly. She stated that FTA had already contacted her about compliance issues and that they
needed to change some things pretty quickly. She did not state that the Sunset Commission had
recommended this action.
 C. Before and during an informal/formal FTA compliance review of a transit agency, it is an
unacceptable and highly abnormal practice for a transit agency to make new changes until the
FTA has reviewed and approved the policy/practices under question as well as concluding its
investigation.
4) I have been advised that CMTA and/or its board of directors cannot vote on proposed changes until
the report from the CMTA internal audit department pertaining to MetroAccess federal violations is 1)
presented to both the CMTA board and the public; and 2) presented to the Sunset Advisory Commission.
5) Several board members questioned the need for an accelerated timeline for public input as well as
CMTA management being uncooperative with the MMWG. They further expressed concerns that if the
MMWG must provide recommendations on 3 major policy changes within only 30 days, that this would
compromise the ability of the MMWG and the ADA mandated Access Advisory Committee to properly
study the impact of such sweeping changes. Therrefore, the MMWG would be forced to provide
unfavorable recommendations for the disabled paratransit ridership due to heavy pressure from CMTA.
6) It is my understanding after reviewing case documents for pretrial hearings in 2008, that only federal
judge Lee Yeakel, can be the mediator for this agreement. Furthermore, the presence of a mediator
between the MMWG and CMTA management would indicate that the mediation agreeement would need
to be changed and therefore approved by only judge Yeakel.
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7) Chair Martinez stated that the Sunset Commission recommendations included an accelerated process
to implement sweeping changes to MetroAccess. If this is truly the case, then the Sunset Commission
promoted and recommended this resolution which is guaranteed to adversely affect the civil rights of the
disabled community without first properly investigating CMTA as to whether it was in full FTA
compliance, and secondly, ignoring the evidence that has surfaced since late 2009 that MetroAccess
paratransit is in noncompliance with the FTA. Therefore, if the Sunset Commission supports this type of
onerous resolution in its report, then it not only is perpetuating civil rights violations, but is just as guilty
and liable as both CMTA management and its board of directors for not restoring those civil rights, and
not solving the glaring inadequacies in the MetroAccess policies first, before recommending any further
changes.
8) Since the CMTA board of directors voted for this resolution which the Sunset Commission apparently
supports, after it was notified that serious violations existed with CMTA, the question is: why is the
CMTA board and CMTA management so insistent upon implementing new changes instead of first
fixing serious flaws. Furthermore, since MetroAccess director Inez Evans admitted that the FTA is in
contact with MetroAccess concerning some proven violations, it is only common sense that in order to
avoid potential legal actions as well as a major FTA compliance review, that CMTA correct these
violations before seeking to implement new ones. Finally, it is incomprehensible that CMTA insists that
sweeping policy changes occur while it is in the process of hiring its next CEO.
Please note: if plaintiffs or the otherwise undersigned, who represent the paratransit community served
by CMTA, wish to dissolve said agreement, that CMTA will be back in federal court, under an
injunction which stipulates that no changes to MetroAccess can occur until either another mediation
agreement is developed and/or until judge Yeakel rules on this case.
In summation, based upon the evidence presented, I strongly believe that chair Martinez as well as some
other CMTA board members has no grasp of the conflict between management and the paratransit
community. As per minutes of the Metro Mobility Working Group, (court appointed committee to
ensure that CMTA adheres with federally mandated public participation requirements), CMTA has only
created obstacles while its members from the Access Advisory Committee have tried to suggest policy
changes which would increase efficiency and reduce the paratransit budget.
For example, consider the transit industry “best practice” paratransit application recently developed by
certified ADA Paratransit Eligibility Specialists presented at the CMTA board meeting May 24, 2010.
CMTA management has resisted its implementation in favor of its own insufficient and burdensome
application that would only propagate continued civil rights violations due to flawed design and biased
methodology. The reason is that the CMTA application would guarantee a greatly increased need for
costly in-person interviews, ($50 each), and functional assessments at an unknown cost.
 In fact, the MetroAccess director stated at a MMWG meeting 05/20/2010, that she wanted to
have in-person interviews for each applicant (both for first-time certification and recertification),
at an estimated annual cost of over $300,000. This flawed logic and unnecessary expense will
inevitably increase the potential for lawsuits and FTA complaints.
On the other hand, the enhanced accuracy of the application presented by certified ADA specialists
would reduce the need for costly third party contractors to perform these interviews and assessments,
drastically reduce the occurrence of costly appeals and potential lawsuits, while at the same time,
adhering to FTA regulations pertaining to paratransit eligibility requirements.
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CMTA management has objected to the inclusion of what they term as "leading questions" in the
application, which are actually listing items that the applicant can check if applicable. This would not
only make it more accessible for the applicant, (especially in an online version), but would also ensure
accuracy as well as present a more complete picture of the applicants disabilities which prevent them
from independently and safely using the entire fixed route bus system. Furthermore, this “best practice”
application would be more efficient and cost-effective for CMTA because it could be analyzed by
computer, rather than requiring a human resource to analyze each application. This can significantly
reduce bias, because, with the applications that MetroAccess management favors, applicants who are
more familiar with the paratransit requirements, and those who have a higher education level, are able to
receive full eligibility, whereas those who are economically disadvantaged, and/or do not possess an
in-depth knowledge of paratransit requirements are deemed ineligible for paratransit, or at best, certified
under very restrictive conditions. In fact, this scenario recently occurred and now the illegally certified
applicant will pursue a second level grievance appeal as well as file an FTA complaint in conjunction
with a federal lawsuit.
In short, MetroAccess prefers a certification application which is a violation of the civil rights of those
who are economically and/or cognitively disabled, because the ability to present written material instead
of the “best practice” standardized checklists, gives an unfair advantage to those who have acquired an
in-depth knowledge of paratransit requirements and have the necessary education. Furthermore, it is
evident upon examination of the proposed CMTA paratransit application that the CMTA philosophy
does not embrace and/or recognize the much broader definitions of what is to be considered a disability
as per the ADA Amendments Act of 2008. Therefore, it would prevent individuals with recognized
disabilities who are ADA eligible from participating in our paratransit program.
As a final note: please consider the brief analysis that CMTA presented at the April 26, 2010 operations
board committee meeting in order to support and justify proposed policy changes to MetroAccess:
 1. Financial worksheets and supporting data were analyzed by the Texas Transportation Institute
with skewed data provided by CMTA, not data researched and obtained on its own;
 2. The faulty financial cost analysis assumes that CMTA will not receive any increase in revenue
during the period from 2010 through 2015, even though sale taxes have already started to
increase and are projected to continue to increase, not decrease;
 3. Continued reliance, both in the present as well as in the past, of CMTA and MetroAccess on
comparison data with peer cities such as DART in Dallas, without checking to see if those
paratransit systems are in full FTA compliance; interestingly, DART is not.
Note that the FTA strongly advises against and cautions transit agencies not to seek comparisons with
peer cities in order to formulate their own paratransit policies, especially when they are being
investigated for policies that are already not in compliance.
 4. Impact analysis for 2010 - 2015 states that 25 fixed route trips will be cut for every single
paratransit trip added. Clearly, since CMTA has wasted over $200 million on its 32-mile long
light rail which runs predominantly on existing freight train tracks as well as mismanaged federal
stimulus funds that should have been used to enhance both the fixed route bus and paratransit
system, CMTA obviously believes it is appropriate to pit both classes of disadvantaged
transportation users against each other because it is incapable of operating a transportation
system in a fiscally responsible manner to ensure equality for all.
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So the question before you is:
ARE THE GREAT LAW MAKERS OF TEXAS GOING TO STAND BY AND:
 Let CMTA management and board chair Martinez run rampant over the civil rights of the
disabled;
 Destroy representative Naishtat’s hard work to promote HB-504 which was enacted to ensure
that all ADA paratransit eligible individuals would receive service as per Texas law;
 Destroy senator Watson’s goal of creating a new CMTA board to restore integrity and fiscal
responsibility to a public transit agency, that is after all, owned by the citizens of Austin, Texas,
and not under the will of its management and/or certain members of its board;
 Implement questionable and/or illegal MetroAccess policy changes which will diminish services
for the disabled paratransit community at the expense of the CMTA Red Line Leander train
which after all, loses money even when it runs to full capacity;
 And finally, support CMTA management and board chair Martinez in their efforts to consolodate
its advisory committees, (ADA mandated “mechanism” Access Advisory Committee and the
Customer Satisfaction Advisory Committee), which will guarantee that the public participation
requirements of Title II of the ADA will not only be in violation, but will assuredly diminish the
effectiveness of both federally mandated input mechanisms for the paratransit dependent (AAC
and MMWG), to the point that it will be impossible for the CMTA board to obtain any
meaningful input and recommendations concerning even minor changes. In this event, the FTA
would most likely recommend that an oversight group be formed whose members would not only
be totally separate from CMTA, but would be completely autonomous and independent from the
CMTA board.
In closing, I sincerely thank all of you on the Sunset Commission for your valuable time to consider the
troubling amount of factual evidence presented herein. All the disabled paratransit community hopes
that you will be objective in your considerations of the problems with CMTA management that I have
presented and recommend to the Texas legislature fair and proper remedies to restore our civil rights and
restore integrity to CMTA.
Cc
Director, FTA Office of Civil Rights - attached evidence for a major FTA complaint
Department of Justice