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Denver, Settling Access Suit, Makes Securement Optional

by Sid Goldstein

Transit Access Report

An accessibility case in Denver has been settled, with the transit system letting passengers who use wheelchairs make their own decision on wheelchair securement.

The new securement policy, part of a broader settlement of discrimination charges, represents a stunning about-face from the transit system’s previous hardline stance.

Officials of the transit agency, the Regional Transportation District (RTD), said the turnabout grew out of a change in policy at the federal level. Since September 2000, the Federal Transit Administration’s Office of Civil Rights has maintained that transit agencies can make wheelchair securement on their fixed-route buses either mandatory or optional. Facing complaints in a lawsuit that it was requiring securement unnecessarily or implementing the policy improperly, the RTD finally gave in to the plaintiffs’ demands. And an agency once known to call in the police if a defiant passenger refused to submit to wheelchair securement now states:
“RTD will permit riders who use wheelchairs to choose whether they want to be secured.”

The lawsuit, Taylor et al. v. RTD, was filed May 11, 2000, by several individuals with disabilities and the Colorado Cross-Disability Coalition (CCDC), a disability rights advocacy group. In addition to problems with securement, they accused the RTD of refusing to pick up passengers in wheelchairs, failing to maintain wheelchair lifts, and also committing various other violations of the Americans With Disabilities Act. All of the issues have been resolved with a consent decree approved September 28, 2001, by Judge Zita L. Winshienk of the United States District Court in Denver.

As explained in a joint press release issued by the parties last week, the settlement (in addition to the securement provision) requires the RTD:

Timothy P. Fox, the lead counsel for the plaintiffs, is credited with authoring a meticulously detailed guide for the transit system to follow to resolve the issues in the case. “It’s a blueprint for how to do ADA compliance,” said Clarence W. Marsella, general manager of the RTD.

On the issue of wheelchair securement, the consent decree provides for the following:

  1. RTD will permit riders who use wheelchairs to choose whether they want to be secured. RTD will not refuse transportation on the ground that the rider elects to ride unsecured.

  2. RTD will provide free ‘Secure Here’ stickers to riders using wheelchairs who request such stickers. RTD will also provide, free of charge, one set of Stokes straps to riders using wheelchairs who request such straps. Additional sets of Stokes straps will be provided at cost to riders using wheelchairs who request such straps.

  3. When a rider in a wheelchair is boarding the bus, the operator will ask whether the rider wants to be secured. If a rider states that he or she does not want to be secured, the operator will respect that decision without question or comment.

  4. If a rider using a wheelchair indicates a preference for being secured, the operator will secure the wheelchair as indicated by the ‘Secure Here’ stickers, by the Stokes straps, or as otherwise directed by the rider, unless the rider wishes to secure his or her wheelchair.

  5. Under no circumstances will operators attempt to secure wheelchairs around joysticks, footrests, or armrests. This will be part of the retraining discussed [elsewhere in the consent decree].

  6. RTD cannot require securement by straps that are broken or otherwise unusable and cannot refuse transportation because the straps are missing or broken or are unusable.

  7. Operators cannot dictate where in the securement area people in wheelchairs sit (e.g., operators cannot require riders in wheelchairs to sit in the far back of the securement area).

  8. Operators will allow riders to secure and unsecure themselves if the riders so desire.

  9. Buses operating on the 16th Street Mall [a frequent shuttle service] will permit as many riders in wheelchairs to board as will fit on the bus.

  10. Light rail operators will permit as many riders in wheelchairs to board as will fit on the train. When there are large crowds, operators shall assist with arranging the area so that people with strollers, canes, etc., can move back to make room, rather than refuse to allow wheelchair users to board.

  11. When riders who do not use wheelchairs are permitted to board light rail cars while the operator is on break, the operator must open the doors to the accessible car with the ramp extended so that riders who use wheelchairs can board.”

In support of the plaintiffs’ case for optional securement, Tim Fox noted that items such as strollers and shopping carts are often permitted on buses without being secured. “I know transit companies say wheelchairs are different,” Mr. Fox told Transit Access Report. “I don’t know if that is accurate or not.” Nor could he say whether manual or motorized wheelchairs present the greater risk of flying loose and hurting someone else in an accident. He suggested that the heavier, motorized chair – assumed by some to be the greater threat – might actually have a better chance of remaining stationary if it has a good locking mechanism.

Fox called it an “individualized” choice whether to request securement on a transit bus, saying it depends on the wheelchair and the capabilities of the person using the wheelchair. But he said passengers who choose securement “want to be secured in a proper fashion that does not break their chair.”

Kevin W. Williams, general counsel of the CCDC, said the “hassles” that passengers in wheelchairs empirically encountered with RTD bus drivers discouraged them from using fixed-route transit service altogether.

As the controversy festered in Denver, the FTA Office of Civil Rights insisted that wheelchair securement had to be required, unless the chair could not be secured by the available equipment. In such cases, the civil rights office told transit agencies, it would be the passenger’s choice whether to ride.

Federal Change Provided Opening 

Then in September 2000, the civil rights office shifted its position, publishing the following Q&A:

“May a transit operator require common wheelchairs be secured to the vehicle?”

“Yes, provided that the transit operator has established such a policy. Section 37.165(c)(3) of the DOT’s ADA regulations allows a transit operator to establish a policy that requires all riders to have their common wheelchairs secured while aboard a transit vehicle. Therefore, the operator may decline to provide service to a rider who refuses to allow his or her common wheelchair to be secured.

“Alternatively, transit operators may adopt a policy that allows common wheelchairs to ride unsecured. If the rider wishes his or her wheelchair to be secured, however, the operator’s personnel must provide the requested assistance.”

The new policy was later backed up by a letter of interpretation issued by the FTA’s chief counsel.

“That took a lot of wind out of my defense sails,” Dana N. Mumey, associate general counsel of the RTD, said last week of the change in federal policy.

In spite of liability concerns without securement, Ms. Mumey indicated the RTD came to believe:
It could be held liable for somebody getting hurt because a wheelchair was improperly secured.
It might be held liable in court for a civil rights violation if it continued to require securement.

“I think there will be a large segment of the population that will still request securement,” Mumey said. “For those who don’t want securement, it is now at their option.”

The RTD attorney called wheelchair securement the “cornerstone” of the lawsuit, because it was the close interaction between passengers and drivers necessitated by securement that frequently became abrasive and gave rise to many of the complaints.

Making securement optional, she suggested, has reduced the opportunities for drivers to cause offense “when all they have to do is operate the lift and let the passenger in a wheelchair go to the securement area.”

Reprinted with permission of Transit Access Report

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