FLASHBACK 1998: UTA could lose federal light-rail money because agency officials refuse to comply with the Americans with Disabilities Act. 

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In commemoration of City Weekly's 40th anniversary, we are digging into our archives to celebrate. Each week, we FLASHBACK to a story or column from our past in honor of four decades of local alt-journalism. Whether the names and issues are familiar or new, we are grateful to have this unique newspaper to contain them all.

Title: Get Off the Bus!
Author: Rich Tuttle
Date: May 14, 1998

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Eric Glade and Peter Staniewiez are faced with a cruel riddle: When is a law not a law?

A few years ago, they thought they had the answer: “The law is always the law.” But for these two, and thousands of others with disabilities in the Salt Lake Valley, the answer to this riddle has been a source of frustration since 1990.

The board of directors as well as the managers at the Utah Transit Authority (UTA) have their own answer to this riddle: When the law is the Americans with Disabilities Act (ADA), and the people breaking the law are operating UTA’s Flextrans Paratransit Service, the law isn’t a law—it’s merely a goal.

It’s a goal they have not met. It is a goal they have no plan to meet.

Beyond that, it is a violation of the federal ADA law that UTA has been intentionally hiding from the public as well as federal regulators. But according to Richard Wong, an official in the Enforcement Division at the Federal Transit Administration, it’s a violation that has the potential to cost Utah taxpayers millions of dollars in federal matching funds for the Trax Light Rail System if UTA doesn’t comply with the law.

It was 1990 when the Federal Transit Administration gave the UTA, and all other transit systems in the United States, until January 1997 to comply with ADA. Flextrans is a bus service for people with disabilities who, because of their disability, cannot use the regular bus service. The law requires that Flextrans be comparable to the regular bus service by operating during the same hours and the same areas as the regular service.

But many people with disabilities in Salt Lake and Davis Counties who rely on Flextrans for transportation to work and other needs say the UTA’s refusal to comply with the law is causing them to lose jobs and other opportunities. They maintain that UTA’s past efforts to comply with ADA has led to the purging of over 1,200 disabled people from the service. Further, UTA has kept them off Flextrans by refusing to allow appeals required by law.

After initially denying any knowledge that UTA was violating the law, John Inglish, UTA’s general manager, admitted that the transit authority was “out of compliance” with ADA. “Flextrans service is an unfunded mandate imposed on the Utah Transit Authority by the federal government. The board of directors of the Utah Transit Authority has poured huge resources into Flextrans service but still does not have enough money to come into full compliance with the law,” he explained.

False Assurances
Salt Lake City Weekly has learned that UTA earlier had assured the Federal Transit Administration that by June 1997 it would be in full compliance with ADA. UTA officials had specifically said money was not a barrier to compliance.

Almost an entire year after the deadline, however, UTA is still knowingly violating the law in three critical areas: The first and most blatant violation is in trip scheduling. UTA requires seven-day advance notice to schedule a ride, and will only allow two rides to be scheduled at a time. This means that when a person calls to schedule a ride to work and home again, it’s counted as two rides. Federal law demands that paratransit services offer “Next Day” scheduling and that rides are allowed to be scheduled up to seven days in advance.

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The UTA’s Riders Guide says nothing about seven-day advance notice, and implies that Flextrans riders can schedule rides “up to” seven days in advance. But when City Weekly called Flextrans, the dispatcher said seven-day advance notice was required. When asked about the inconsistency, Kathy McCune, ADA Coordinator for UTA was contrite. “We’re not going to tell people in the Riders Guide that we’re breaking the law.”

The second area where UTA is out of compliance is under the heading of “Trip Denials.” ADA requires that paratransit services keep “Trip Denials” at a level of 3 percent or less of total riders. A “Trip Denial” is when the paratransit service denies a person a ride because all the buses are full. UTA officials acknowledge their Trip Denial rate is well above 3 percent, but they are not willing to go on the record about the percentage of riders who are being denied rides.

The third area where UTA is out of compliance is in its appeals process. “I know we have to allow an appeal if we deny a rider eligibility,” said McCune. “But I don’t know if we have to allow any other conditions on riders to be appealed. Besides, in the whole history of Flextrans we’ve only had one formal appeal.”

But Wong says the Federal Transit Administration has another view. “Federal law requires that all paratransit services offer an appeal process that allows applicants to question all conditions placed on riders by the paratransit service.”

The appeal must be made to a person or board not directly associated with the case, Wong says. The applicant is allowed to make arguments in person or through a representative. They can appeal if they are denied eligibility, or they can appeal if they are eligible but given “Conditional Rider” status.

A “Conditional Rider” is one of two types of status for people who use Flextrans service. An “Unconditional Rider” is allowed to use Flextrans for any purpose and at any time of the year. “Conditional Riders” are required to use Flextrans service only during times when they are unable to use the regular service. In most cases that means during winter months.

In a January 1997 report to the Federal Transit Administration, “UTA Americans with Disabilities Act/Update-Paratransit Plan,” the transit authority informed federal officials it was out of compliance with ADA. In the report, former UTA General Manager John Pingree requested an extension until June 1997 to come into full compliance. He told federal regulators that UTA needed the time so it could move into a new Riverside Facility.

Pingree also described a plan to reevaluate all the registered Flextrans riders in Salt Lake and Davis Counties. UTA managers made no secret of the fact that the reevaluation was designed to reduce the number of registered riders using Flextrans so the transit authority could come closer to compliance with ADA.

Purging Flextrans
Glade and Staniewiez are typical of about 53 percent of the people who need Flextrans service. They each have multiple disabilities and use mobility devices to get around. Glade has a power wheelchair and Staniewiez uses a scooter.

Their problem started last fall when, like all 3,500 Flextrans riders in Salt Lake and Davis Counties, they received new application forms in the mail. They filled out the form and sent it back to UTA. But a short time later, the Flextrans scheduling office started to refuse their scheduling requests.

When he was 14, Glade was one of the youngest people in the country to be diagnosed with multiple sclerosis. He and his family made a commitment that Glade would lead as normal a life as possible. He has an aggressive form of the disease. In a few short years after his diagnosis, Glade lost the ability to walk and control the movement of his arms. He also developed occasional vision problems and has difficulty understanding everything he reads.

Now in his mid-20s, Glade decided it was time to get a job. He quickly realized that, with no work history, most employers were reluctant to give him a chance. Glade had been a client at the Independent Living Center, where the staff recognized his ability and ambition and offered him a job through a program called Volunteers In Service To America. VISTA is a two-year program that helps people develop work skills and pays them a small wage.

“When the Flextrans dispatchers started to refuse to schedule rides for me to go to work, I wrote a letter to Kathy McCune, asking for the decision to be reconsidered,” Glade said. “I told her I could not get my power wheelchair through the snow and that it could be damaged in bad weather.”

In his letter, Glade told McCune that his disease had also affected his ability to read and understand signs. Glade was sure that if he could tell the managers at the UTA that his MS gave him multiple disabilities, he would get back his unconditional rider status.

Weather is one of the main reasons that conditional riders must use Flextrans. Wheelchairs do not go through snow. Power wheelchairs can sustain damage in both rain and snow. Weather can also affect the blind. The sight impaired can generally use the regular bus service, but must first be trained to find their way to and from the bus stops. If there is snow on the ground, they may have difficulty getting to the bus stop, or need additional training if the routes or stops are changed due to problems like highway construction.

The law requires that when these circumstances or problems surrounding unusual types of equipment exist, conditional riders must be allowed to call and schedule service for the next day.

“The Flextrans operator told me that I could only schedule a ride when the weather was bad,” said Glade. “I told them Flextrans requires seven days advance notice to schedule service and not even the weatherman could predict the weather seven days in advance. The dispatcher said that their supervisor had told them to stop scheduling rides for me and that I had to use the regular bus service. I asked for an appeal, but I never got one.”

No Appeals?
UTA officials claim that there are two levels in the appeal process. City Weekly found several people who had requested appeals but did not get one. Still, McCune contends anyone who applies for Flextrans service but is found to be ineligible can appeal the decision. The appeal must be made in writing within 30 days. The first level is an Administrative Appeal made to UTA staff. If that appeal is denied, the disabled rider can appeal to the Paratransit Advisory Board, made up of a group of Flextrans riders. But McCune says eligibility is the only issue that can be appealed and, in the 10-year history of the Flextrans Division, there has only been one formal appeal.

Pat Gann, a disabled member of the Paratransit Advisory Board, agrees that appeals are practically unheard of. “In the four years I’ve been on the board, we have never heard an appeal.”

But Gann says she knows two blind people who had to quit their jobs because Flextrans made them “conditional” and wouldn’t pick them up without seven days' notice. “They keep promising they will comply with the Americans with Disabilities Act, and when it comes to our eligibility they beat us over the head with ADA,” said Gann. “But in the end, they just do whatever they damned well please.”

Staniewiez, who is 39 and is unable to walk, has made two requests for an appeal. Ironically, one appeal request turned up in his file during City Weekly’s interview with McCune, while she was attempting to prove that he had never requested an appeal.

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During the 1997 reevaluation, Staniewiez’s rider status went from “unconditional” to “conditional.” He was told he could only schedule Flextrans service during bad weather. A note at the bottom of the letter indicated that McCune called him to say that he could not appeal his “conditional” status, and would have to use regular service.

Many people in the disabled community believe that UTA won’t grant appeals because transit officials know most of the people who were pushed off Flextrans would get their “unconditional” rider status back. They also believe that the seven-day advance requirement effectively excludes most riders who are “conditional” based on weather. The UTA’s own records show that after the 1997 reevaluation, the number of registered riders dropped by 35 percent—from 3,500 to 2,265 by April 1998.

McCune says that one reason the number of registered riders dropped significantly is that many people simply didn’t reapply for service. But advocates insist that since 17 percent of Flextrans riders have cognitive disabilities, like Down’s Syndrome or autism, they might not understand that they have to reapply to remain eligible.

Both McCune and Inglish say they are concerned about what they described as UTA’s eligibility problem. “We have to make sure that everyone who uses Flextrans is really eligible because we have a serious capacity problem,” said Inglish. “If we can’t reduce the number of riders, we can’t reduce our number of Trip Denials.”

McCune also insisted that Flextrans has been too flexible in its eligibility requirements, which she says are dictated by the ADA. “We have a demand we can’t meet and there are disabled people out there who use Flextrans who can use the regular buses,” McCune said.

UTA management also makes the point that 80 percent of the bus fleet is accessible, although they concede that less than 50 percent of the routes are totally accessible under ADA guidelines.

When Staniewiez tried to get on the regular bus, he had another problem. After two knee operations and back surgery, he needs a scooter to get around. Even on ADA-accessible buses, people with disabilities who use a mobility device, like wheelchairs and scooters, must make a sharp left turn to get down the aisle. The scooter Staniewiez uses is too big to make the turn, and when he is on the scooter it weighs over 500 pounds.

In order for him to use the regular bus, the driver must slide the back of the scooter around and point it down the aisle. That causes delays, and most drivers simply refuse to let the scooter on the bus.

“On a Flextrans bus I can simply drive my scooter straight through the back door,” Staniewiez explained. He made his second request for an appeal directly to UTA board member Ron Whitehead.

Whitehead recalls turning Staniewiez’s request for an appeal over to UTA staff, but doesn’t know what happened after that. He said he has only been on the UTA board for four months and was unaware UTA was out of compliance with the ADA.

Whitehead raised the issue of ADA compliance at UTA’s April 22 board meeting and was informed that, indeed, the agency is not in compliance.

Feds Can Go to Hell
In a colorful and forceful statement, UTA board member Curt Bramble criticized ADA requirements. “I think we should tell the federal government to go to hell. Forcing us to obey all these rules to get federal money is a form of blackmail and they interfere with our freedom to run this company the way we want to.”

James Clark, UTA board chairman, noted that Mr. Bramble’s comments did not reflect the official position of the UTA.

But according to local attorney and disability advocate Kay Fox, Bramble’s attitude is common at UTA. “The Utah Transit Authority has never really supported Flextrans. In 1988, the disabled community was trying to get UTA to make all the buses in the fleet accessible,” she said. “UTA said that would be too expensive, but they knew the government was going to require them to serve all citizens in their service area. UTA offered a compromise for a separate service for people with disabilities, and that became Flextrans.”

Fox says that the struggle to get the UTA to provide service to disabled people was a bitter fight that had people with disabilities lying down on highways and blocking regular buses. “It turned out that we were lucky to get Flextrans because there are lots of people with disabilities who will never be able to use the regular bus service.”

When initially contacted by City Weekly, Wong said the Federal Transit Administration was unaware of UTA’s failure to comply with ADA. “UTA is getting funds for the Trax Light-Rail System that they know are contingent upon them being in compliance with ADA. UTA told us they would be in compliance with ADA in June 1997, and as far as we knew they were.”

Additionally, Wong said UTA had seven years to comply with the law. “To argue that they don’t have the money now, while they’re engaged in massive expenditures for light rail, won’t work with us. Before they can get money for Trax, they have to prove they can meet their existing obligations.”

People with disabilities who are having problems with Flextrans have more options than they might think, Wong said. They can file a complaint with the Federal Transit Administration. The FTA will give the UTA 60 days to come into compliance. If they refuse, the federal agency can go to court and withhold funds for the Trax Light Rail system.

Flextrans riders could also file a civil rights complaint, Wong added. If they do that, UTA could also be forced to pay fines and punitive damages based on the number of people whose rights have been violated.

But McCune says there is no plan in place right now to bring UTA into compliance. “The board is putting all their resources into the Trax System. Flextrans just isn’t a high priority now,” she said. “I suppose if people want to file a complaint they’re free to do that. But we can’t comply right now.”

Glade and Staniewiez aren’t sure what they can do. Staniewiez says that since he can’t get on the regular bus and he can’t schedule Flextrans, he just stays home.

Glade will have to get a regular job when his VISTA grant runs out. But he says he will have to tell his next employer that he can only work on days when he knows the weather will be bad, seven days in advance, because that’s the only time Flextrans will pick him up.

The disabled community is exploring options for bringing UTA into compliance, says Fox. “We hope they will just provide the minimum customer service required by law,” she said. “But short of that, I would strongly advise people with disabilities to contact the Federal Transit Administration and start filing complaints.