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

C_cap metro_doggett march 2010.pdf
Pat Bartel & All Disabled Central Texans
9617 Covey Ridge Lane; Austin, TX 78758
(512)
837-3041 -qtranslations@sbcglobal.net
Lloyd Doggett
United States Congressman, CD 25
March 27, 2010 1 of 3
Capital Metro Update - Newly Discovered FTA/ADA Violations
Before I begin, I want to thank you for all your hard work and personal sacrifice for this historical health
care reform to become a reality, especially for all the uninsured disabled Texans. Your dedication to
promote equality for all is something that none of us will ever forget; many of our lawmakers across
the isle would do well to learn from your example.
It is truly with regret, especially during such a momentous celebration that I must again bring to your
attention Capital Metros (CMTA), continued major civil rights violations against disabled paratransit
passengers. I really believed after your intervention on my behalf as well as many others in 2005
concerning taxi voucher violations, that CMTA management would follow proper requirements under
the ADA, as well as updated FTA interpretations, before implementing changes, especially in the areas
of obtaining board approval and ensuring proper public participation requirements. Sadly, this has not
been the case.

After the approval of the rail referendum in 2004, the paratransit service area began to shrink
to the ADA minimum of 3/4 mile from fixed route bus service, without prior notice, without
any public input, and without board approval.
At a recent National Transportation Institute course on ADA paratransit eligibility and certification,
Diane Bomar, my special mentor, and I discovered major FTA violations that CMTA has committed
over the last few years. For example, regarding changes in paratransit service area, CMTA failed to
follow the rigorous public input requirements that are mandated before the implementation of such a
major life-altering policy change. Note that it is not sufficient to satisfy these requirements with just
one or two public hearings. Suddenly, paratransit passengers who had received rides for years to
dialysis facilities and employment were informed that service was no longer available. Furthermore,
there appears to be evidence that CMTA is in violation of Texas laws:

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].
In January 2008, without warning and without the knowledge of its board, CMTA management,
eliminated taxi vouchers for over 700 paratransit passengers who needed this flexibility for flex-time
employment and daily medical trips. Without taxi vouchers, CMTA could not provide guaranteed next-
day service, an FTA requirement as per [Anderson, et al. v. Rochester-Genesee Regional Transp. Auth].
CMTA UPDATE, FTA VIOLATIONS, 03/27/2010, P. B. 2 of 3
Since CMTA violated the injunction from State District Judge Jeanne Meurer, it was necessary to file
a class action lawsuit in federal court. CMTA attempted to make policy changes even after judge Lee
Yeakel imposed a pretrial injunction against further policy changes. In an attempt to limit the costs of
protracted litigation for Capital Metro, judge Yeakel advocated a mediation agreement to set up an
oversight group to review proposed policy changes and make recommendations to the CMTA board.
Diane Bomar, who is chair of this group, (Metro Mobility Working Group, hereafter written as
MMWG), would be more than happy to discuss with you Capital Metro’s violations of this agreement,
especially in the area of unauthorized changes to certification and recertification practices for paratransit
applicants.
More disturbing, are the following FTA civil rights violations that Diane and I recently discovered at
the NTI course. I will outline them briefly.

Both the eligibility process and the appeals process are in direct violation to updated FTA
policy.

The newly adopted no-show policy is also in violation of FTA regulations.
For example, since July of 2009, CMTA has knowingly violated the civil rights of applicants by
recertifying them only temporarily while a travel trainer evaluates their ability to use the fixed route bus
system. In other cases, improper conditions for paratransit use have been imposed, i.e. only providing
paratransit for medical trips to a passenger who not only has a severe seizure disorder, but necessary
medications cause such severe disorientation and sedation that her doctor has certified that she cannot
independently use our fixed route bus system. Other applicants have been denied paratransit service,
without written clarification, even though they have been certified as ADA eligible for many years.
It is conservatively estimated that over 600 disabled passengers have been improperly certified or denied
paratransit service since July 1, 2009. CMTA has forced these passengers to attempt to use a fixed
route bus system with over 2000 inaccessible bus stops when the evidence indicated that they could not
independently navigate the bus system. Thus, this would place them at undue and unreasonable risk
which is in direct violation of title II, 49 CFR PART 37, appendix D.
As per FTA regulations, paratransit is akin to a property right, it takes on the coloration of a property
right; as per the U.S. constitution, property cannot be seized without due process. Therefore, even
though the ADA allows a transit agency to impose conditions on paratransit use, (if the applicant can
use fixed route buses some of the time), a transit agency cannot impose these conditions for eligibility
unless they have been written into the policy, and cannot certify an individual with permanent
disabilities for a temporary period while a travel trainer is used to evaluate them. [The civil rights
violation is: the passenger suddenly becomes ineligible for paratransit after the temporary certification
ends.] If, as in our case, the policies do not include these stipulations, regarding conditional eligibility,
then transit agency policies can only be changed to mirror the ADA if the proper level of public
participation is obtained.

CMTA has violated all public participation requirements because it has changed these policies
without obtaining any public input.
Note that as per recent advisement of the FTA, Capital Metro has been forced to cancel its appeals
process for paratransit certification, in part, because it failed to abide by FTA regulations pertaining to
separation of authority and inability to keep proper records pertaining to the basis for its decisions.
CMTA UPDATE, FTA VIOLATIONS, 03/27/2010, P. B. 3 of 3
Although the new CMTA board does have promise, I sincerely do not believe that it has enough
initiative to follow through with recommendations of the MMWG as well as other resolutions that
Diane recently presented. Among the most important and least costly is that Capital Metro must
recertify everyone whose eligibility for paratransit has changed since July 1 2009, as unconditionally
eligible. Although some of the legal evidence has been presented, I do not believe the board fully
comprehends the pervasiveness of these FTA violations, and certainly they do not comprehend the
scope of undue hardship and unreasonable levels of risks imposed on our paratransit community.
Regrettably, board chair Mike Martinez as well as CMTA management is intent on diminishing the
effectiveness of the Access Advisory Committee, (ADA mandated “mechanism”), by combining it with
a far less important CMTA committee. This would drastically impair the Access committee in its
advisory role to the board for paratransit issues as well as its role in the disabled community to increase
public participation. As you are aware, the FTA places great importance on the effectiveness of the
“mechanism”. Our friend and former board chair Margaret Gomez would never have endorsed this
violation. Access chair Diane would be more than happy to elaborate on this issue.
CONCLUSION
Based upon the summary of FTA violations I have presented, (this is not a comprehensive list), as well
as the potential misuse of federal stimulus funds that CMTA invested in its rail system rather than to
address proven deficiencies in its existing transportation system, (as per civil rights complaint against
BART, Title VI violation of the 1964 Civil Rights Act), I urge you to facilitate the process of an FTA
compliance review. Furthermore, all of us would like to see an investigation into CMTA’s misuse and
misappropriation of $200 million from sales tax revenue and federal funds that has occurred since 2002.
Finally, I am in the process of submitting a major FTA complaint against CMTA which details 10 major
areas of wrongdoing as well as misrepresenting information to the FTA during the last triennial review,
June 2009. I will send you copies as soon as I submit my complaint.
It is imperative to restore the civil rights of the hundreds of disabled passengers whose right to
paratransit has been adversely affected due to the inability of CMTA to establish an equitable as well
as an acceptable eligibility and appeals process as per FTA regulations. Obviously, the CMTA board
will not act on our resolutions and presentations alone. However, with your help, CMTA can right the
wrongs, and more importantly, the disabled who are now at risk will be safe.
Perhaps, Diane, who will be in Washington D. C. For the next month, could discuss these issues further
with your staff, assuming your hectic schedule would allow this.
We know your time is valuable, especially in such turbulent and uncertain times that we all face. We
appreciate any help and assistance that you can provide in order to ensure that our paratransit provider,
CMTA, is in FTA compliance, that our civil rights are restored and maintained, and that our disabled
ridership is treated with respect and fairness granted under the law.
Most sincerely and respectfully,
Pat Bartel