Disability Law Index - Transportation: Facilities

Statutes:

42 U.S.C. § 12146 - New facilities

For purposes of section 12132 of this title and section 794 of title 29, it shall be considered discrimination for a public entity to construct a new facility to be used in the provision of designated public transportation services unless such facility is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

42 U.S.C. § 12147 - Alterations of existing facilities

(a) General rule With respect to alterations of an existing facility or part thereof used in the provision of designated public transportation services that affect or could affect the usability of the facility or part thereof, it shall be considered discrimination, for purposes of section 12132 of this title and section 794 of title 29, for a public entity to fail to make such alterations (or to ensure that the alterations are made) in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations. Where the public entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon completion of such alterations, where such alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General).

(b) Special rule for stations

(1) General rule - For purposes of section 12132 of this title and section 794 of title 29, it shall be considered discrimination for a public entity that provides designated public transportation to fail, in accordance with the provisions of this subsection, to make key stations (as determined under criteria established by the Secretary by regulation) in rapid rail and light rail systems readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

(2) Rapid rail and light rail key stations

(A) Accessibility - Except as otherwise provided in this paragraph, all key stations (as determined under criteria established by the Secretary by regulation) in rapid rail and light rail systems shall be made readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as soon as practicable but in no event later than the last day of the 3-year period beginning on July 26, 1990.

(B) Extension for extraordinarily expensive structural changes The Secretary may extend the 3-year period under subparagraph (A) up to a 30-year period for key stations in a rapid rail or light rail system which stations need extraordinarily expensive structural changes to, or replacement of, existing facilities; except that by the last day of the 20th year following July 26, 1990, at least 2/3 of such key stations must be readily accessible to and usable by individuals with disabilities.

(3) Plans and milestones The Secretary shall require the appropriate public entity to develop and submit to the Secretary a plan for compliance with this subsection -

(A) that reflects consultation with individuals with disabilities affected by such plan and the results of a public hearing and public comments on such plan, and

(B) that establishes milestones for achievement of the requirements of this subsection.

42 U.S.C. § 12148 - Public transportation programs and activities in existing facilities and one car per train rule

(a) Public transportation programs and activities in existing facilities

(1) In general - With respect to existing facilities used in the provision of designated public transportation services, it shall be considered discrimination, for purposes of section 12132 of this title and section 794 of title 29, for a public entity to fail to operate a designated public transportation program or activity conducted in such facilities so that, when viewed in the entirety, the program or activity is readily accessible to and usable by individuals with disabilities.

(2) Exception - Paragraph (1) shall not require a public entity to make structural changes to existing facilities in order to make such facilities accessible to individuals who use wheelchairs, unless and to the extent required by section 12147(a) of this title (relating to alterations) or section 12147(b) of this title (relating to key stations).

(3) Utilization - Paragraph (1) shall not require a public entity to which paragraph (2) applies, to provide to individuals who use wheelchairs services made available to the general public at such facilities when such individuals could not utilize or benefit from such services provided at such facilities.

(b) One car per train rule

(1) General rule - Subject to paragraph (2), with respect to 2 or more vehicles operated as a train by a light or rapid rail system, for purposes of section 12132 of this title and section 794 of title 29, it shall be considered discrimination for a public entity to fail to have at least 1 vehicle per train that is accessible to individuals with disabilities, including individuals who use wheelchairs, as soon as practicable but in no event later than the last day of the 5-year period beginning on the effective date of this section.

(2) Historic trains - In order to comply with paragraph (1) with respect to the remanufacture of a vehicle of historic character which is to be used on a segment of a light or rapid rail system which is included on the National Register of Historic Places, if making such vehicle readily accessible to and usable by individuals with disabilities would significantly alter the historic character of such vehicle, the public entity which operates such system only has to make (or to purchase or lease a remanufactured vehicle with) those modifications which are necessary to meet the requirements of section 12142(c)(1) of this title and which do not significantly alter the historic character of such vehicle.

Regulations:

49 C.F.R. § 37.9 - Standards for accessible transportation facilities

(a) For purposes of this part, a transportation facility shall be considered to be readily accessible to and usable by individuals with disabilities if it meets the requirements of this part and the standards set forth in appendix A to this part.

(b) Facility alterations begun before January 26, 1992, in a good faith effort to make a facility accessible to individuals with disabilities may be used to meet the key station requirements set forth in Secs. 37.47 and 37.51 of this part, even if these alterations are not consistent with the standards set forth in appendix A to this part, if the modifications complied with the Uniform Federal Accessibility Standard (UFAS) (41 CFR part 101-19, subpart 101-19.6) or ANSI A117.1 (1980) (American National Standards Specification for Making Buildings and Facilities Accessible to and Usable by, the Physically Handicapped). This paragraph applies only to alterations of individual elements and spaces and only to the extent that provisions covering those elements or spaces are contained in UFAS or ANSI A117.1, as applicable.

(c) Public entities shall ensure the construction of new bus stop pads are in compliance with Sec. 10.2.1.(1) of appendix A to this part, to the extent construction specifications are within their control.

(d)

(1) For purposes of implementing the equivalent facilitation provision in Sec. 2.2 of appendix A to this part, the following parties may submit to the Administrator of the applicable operating administration a request for a determination of equivalent facilitation:

(i)(A) A public or private entity that provides transportation facilities subject to the provisions of subpart C this part, or other appropriate party with the concurrence of the Administrator;

(ii) With respect to airport facilities, an entity that is an airport operator subject to the requirements of 49 CFR part 27 or regulations implementing the Americans with Disabilities Act, an air carrier subject to the requirements of 14 CFR part 382, or other appropriate party with the concurrence of the Administrator. (B) The manufacturer of a product or accessibility feature to be used in the facility of such entity to comply with this part.

(2) The requesting party shall provide the following information with its request:

(i) Entity name, address, contact person and telephone;
(ii) Specific provision of Appendix A to Part 37 concerning which the entity is seeking a determination of equivalent facilitation.
(iii) Removed and reserved
(iv) Alternative method of compliance, with demonstration of how the alternative meets or exceeds the level of accessibility or usability of the vehicle provided in appendix A to this part; and
(v) Documentation of the public participation used in developing an alternative method of compliance.

(3) In the case of a request by a public entity that provides transportation facilities (including an airport operator), or a request by an air carrier with respect to airport facilities, the required public participation shall include the following:

(i) The entity shall contact individuals with disabilities and groups representing them in the community. Consultation with these individuals and groups shall take place at all stages of the development of the request for equivalent facilitation. All documents and other information concerning the request shall be available, upon request, to members of the public.

(ii) The entity shall make its proposed request available for public comment before the request is made final or transmitted to DOT. In making the request available for public review, the entity shall ensure that it is available, upon request, in accessible formats.

(iii) The entity shall sponsor at least one public hearing on the request and shall provide adequate notice of the hearing, including advertisement in appropriate media, such as newspapers of general and special interest circulation and radio announcements.

(4) In the case of a request by a manufacturer or a private entity other than an air carrier, the manufacturer or private entity shall consult, in person, in writing, or by other appropriate means, with representatives of national and local organizations representing people with those disabilities who would be affected by the request.

(5) A determination of compliance will be made by the Administrator of the concerned operating administration on a case- by-case basis, with the concurrence of the Assistant Secretary for Policy and International Affairs.

(6) Determinations of equivalent facilitation are made only with respect to transportation facilities, and pertain only to the specific situation concerning which the determination is made. Entities shall not cite these determinations as indicating that a products or methods constitute equivalent facilitations in situations other than those to which the determinations specifically pertain. Entities shall not claim that a determination of equivalent facilitation indicates approval or endorsement of any product or method by the Federal government, the Department of Transportation, or any of its operating administrations.

49 C.F.R. Part 37, Subpart C (41-61) - Transportation Facilities

Case Law:

Disabled in Action of Pennsylvania v. Se. Pennsylvania Transp. Auth., 635 F.3d 87 (3d Cir. 2011).

    • SEPTA is an agency and instrumentality of Pennsylvania, which provides public transportation, including train, subway, trolley, and paratransit services in five counties. SEPTA undertook two separate construction projects that involved three of its stations in Philadelphia. The first project was to replace the only stairway at an inaccessible station that connected to a “key station” subject to special accessibility requirements under the ADA. The second project involved the replacement of an inoperative escalator at another inaccessible station. The projects did not involve modifications to any load-bearing structures and the installation of an elevator was not technically infeasible at either location. DIA, a non-profit group which advocates for the civil rights of persons with disabilities filed a suit against SEPTA alleging that SEPTA violated the ADA by making “alterations” to these facilities without also making the affected portions of the facilities accessible to individuals with disabilities.
    • The appellate court determined that the two constructions projects constituted “alterations” under the ADA, even without “major structural alterations” because 49 C.F.R. § 37.3 defines “alterations” to include “remodeling, renovation, rehabilitation or reconstruction” that affect the “usability” of the location.
    Foley v. City of Lafayette, 359 F.3d 925 (7th Cir. 2004).

    • Under 49 C.F.R. § 37.161, occasional elevator malfunctions, unaccompanied by systemic problems of poor maintenance policy or frequent denials of access, do not constitute violations.
    • Isolated acts of negligence by a city employee do not come within the ambit of discrimination against disabled persons proscribed by the ADA.

    Molloy v. Metropolitan Transp. Authority, 94 F.3d 808 (2nd Cir. 1996).

    • Plaintiffs were seeking to enjoin the transportation authority from reducing human staff and replacing them with inaccessible ticket vending machines. Appellate court reversed the injunction.
    • "The only service that the TVMs provide is the sale of tickets. The blind and visually impaired can still purchase tickets on board, without paying the ticket surcharge which the non- disabled must pay. It is true that one cannot buy a weekly or monthly ticket from the conductor on board, and those tickets are more economical than the single trip tickets. But monthly tickets are purchasable via the mail and weekly and monthly tickets can be bought at any destination station where there is a ticket clerk. We do not doubt that these alternatives are less convenient than purchasing a weekly or monthly ticket from a TVM or from a human ticket clerk. However, we cannot say that the extra inconvenience rises to the level of irreparable harm such that the LIRR must be stopped from implementing its plan."