Small Chicago operator gets quick, costly lesson in ADA compliance

CHICAGO After tearing open the FedEx envelope that arrived at his office in mid-November and glancing over its contents, Ralph Kotwica was dumbfounded.

What he had received was a single-page, five-sentence letter from the U.S. Justice Department, along with a five-page, 30-paragraph "settlement agreement under the Americans with Disabilities Act."

On page three of the settlement agreement, Kotwica came to item No. 20, a demand he and his one-bus company, Ralphs Coach, pay a $10,000 fine for violating the Americans with Disabilities Act.

Welcome to the new world of motorcoach industry ADA compliance.

Three years after the U.S. Justice Department and the Federal Motor Carrier Safety Administration became subject to the requirements of a law pushed through Congress by the American Bus Association and Greyhound Lines, and signed by President George W. Bush, the two federal agencies are teaming up to aggressively push for ADA compliance by motorcoach companies, especially small operators.

Operators in California, Texas and Illinois appear to be particularly vulnerable to the crackdown.

According to the federal governments ADA website, 14 small operators in those three states signed "letters of resolution" or "settlement agreements" with the Justice Department during a one-week period last month.

Those companies had received letters and settlement agreements similar to that sent to Kotwica.

When Congress adopted the Over-the-Road Bus Transportation Accessibility Act of 2007, the United Motorcoach Association predicted it would increase record-keeping requirements; make compliance reviews more onerous and risky, and open up private operators especially small operators to the increased possibility of fines and enforcement action by Justice Department lawyers working hand in glove with FMCSA inspectors.

The UMA Legislative and Regulatory Committee reviewed the proposed law carefully and ended up opposing it because of the perceived potential for increased recordkeeping and unnecessary scrutiny of small operators.

At the time, the ABA downplayed the concern, opting to push the legislation on behalf of Greyhound and other large line-run carriers that were facing aggressive competition from new curbside operators that were treating passengers with disabilities like second-class citizens and ignoring requests for service by customers needing assistance with wheelchairs.

In the years immediately following passage of the legislation by Congress in the summer of 2008, the FMCSA and Justice Department focused most of their attention on compliance by curbside operators and large operators. That took a while.

Now, with the general, stepped-up safety enforcement of the entire motorcoach industry, many smaller operators are being checked for adherence to ADA requirements. And many are being found wanting.

The triggering mechanism for an ADA audit typically is a compliance review.

As part of a compliance probe, FMCSA inspectors are now required not only to check a companys records for adherence to safety regulations but also compliance with ADA mandates.

And many small operators, like Kotwica, are either ignorant of ADA requirements or have incorrectly assumed the requirements dont apply to them because they are (1) small or (2) they dont have a wheelchair lift-equipped bus.

Once an FMCSA inspector conducting a compliance review finds shortcomings in a companys ADA compliance, word is sent to the Justice Department, which will send investigators, who are most likely attorneys, to the operators office to check records and interview company executives.

For Kotwica that meant three Justice Department officials showed on his doorstep and went through his records and met with him.

While the folks from the Justice Department were cordial with Kotwica and discussed a range of ADA-related issues, they were conducting an investigation and, it appears, like policemen everywhere, were not immune from obfuscation.

The message Kotwica took away from the meeting was that since he didnt have annual revenues of $6 million and there was no requirement that he have a wheelchair lift-equipped bus, everything was cool. He really understanding the talk about training and paperwork, but since he had no bus with a lift he didnt dwell on it. "I thought it was all over," he recalls.

He could not have been more wrong.

Within five days of the meeting, Kotwica received the FedEx envelope and letter signed by a senior trial attorney for the Justice Departments disability rights section, and the settlement agreement with a signature block containing the names of no less than five Justice Department lawyers, including an assistant U.S. attorney general.

Not only did the letter demand he pay a $10,000 fine for ADA violations but it contained a long list of findings and actions he must take to become compliant with the law. Heres some of the list:

Within 60 days of the effective date of the settlement agreement, Ralph's Coach will write and adopt policies and procedures that specify the practices to be used by Ralph's Coach to "ensure that persons with disabilities receive accessible transportation on the day and at the time and place requested." Oh, by the way, the policies and procedures adopted by Ralphs Coach will have to be submitted to the Justice Department for approval.

The policies and procedures adopted by Ralphs Coach "shall provide that the company will accommodate all requests for accessible service made with advance notice of 48 hours or more and that Ralph's Coach will attempt to accommodate any such requests on shorter notice.

The policies and procedures "shall identify the Ralph's Coach employees (with their job titles) responsible for implementing those procedures and specify the procedures for documenting and handling accessibi1ity-related complaints."

Within 60 days of the date of the agreement, Ralph's Coach "shall provide the United States with a copy of its written agreement with an alternative carrier specifying the arrangement for accessible service to be provided with advance notice of 48 hours or more."

Within 60 days of the date of the agreement, Ralph's Coach "shall draft a Service Request Form that is modeled on the provisions of 49 C.F.R. pt. 37, Subpart H, Appendix A, and distribute those forms to all employees and contractors who are responsible for handling requests for accessible transportation.

Ralph's Coach, its employees, and its contractors shall use the Service Request Form to record all requests for accessible transportation service. Ralph's Coach "shall ensure that a copy of every Service Request Form is maintained for review by the FMCSA and counsel for the United States."

Within 90 days of the effective date of the agreement, Ralph's Coach "shall train all employees and contractors about the requirements of the ADA and how they apply to Ralph's Coach, including the policies, practices and procedures to be adopted as the result of the agreement, and shall provide the same training to employees and contractors within 30 days of hiring."

Ralph's Coach shall maintain records relating to all the training conducted pursuant to the settlement, including the date and time the training occurred, the name of the individuals who attended the training, and the topics covered. "Such documents shall be furnished to counsel for the United States upon request."

Within 60 days of the effective date of the agreement, Ralph's Coach "shall post a notice on any website it operates, at any stations and pick-up locations it controls, and in any promotional materials and brochures it provides to the public, indicating its obligation to provide accessible transportation to persons with disabilities, how to reserve accessible transportation, and that it does not discriminate on the basis of disability in the provision of its transportation services. The notices shall be reviewed in advance by the United States and posted for the duration of the agreement."

Ralph's Coach "agrees that all training manuals or written materials dealing with policies and practices related to accessibility used, revised, or created after the effective date of the agreement shall be consistent with the provisions of the agreement."

Ralph's Coach shall report to the United States on its progress in implementing the Agreement 90 days from the effective date of the agreement, and will notify the United States as soon as it has completed the actions described in the agreement.

Initially, Kotwica was overwhelmed by it all. But he found an attorney who not only could provide him guidance but gave him hope he could avoid the $10,000 fine by adopting the requirements of the settlement agreement and complying with the law.

While he still doesnt think the regulations make sense, Kotwica has learned that forms are available for recording requests for accessible bus service. He has learned the deadlines when compliance paperwork must be sent to the feds. Hes still working, however, on other requirements of the settlement agreement.

Operators wanting to learn more about ADA requirements can go to www.ada.gov. To see the latest settlement agreements and letters of resolution signed by motorcoach companies, go to www.ada.gov/new.htm.

Operators that are members of industry trade groups can check with their associations for compliance information.