Region VII State Meeting

Civil Rights Update

June 24, 2015NATP Managers Workshop

Lexington, Nebraska

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FTA and the Office of Civil Rights (TCR) has put an increased

emphasis on assuring compliance with all civil rights regulations

Having all required civil rights programs (Title VI, EEO, and DBE Program and Goal) on file and concurred upon are pre-requisites to funding. Increased emphasis means:

– programs are submitted in TEAM by the grantee

– reviews are more in-depth– reviews are followed-up with a letter from TCR

indicating review determination, and any corrections

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Program Determinations

–Concur–In Review–Expired/Expiration

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Recipient Classifications

• Direct Recipient - this term applies to recipients that receive funds from FTA and spends those funds

• Primary Recipient – this is a term used in the regulation and it applies to recipients that pass funds through to subrecipients

The State is considered the Primary Recipient when it passes FTA funds to an organization, or a Subrecipient

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The Office of Civil Rights (TCR) pulls information from TEAM to send emails, letters and other correspondence to grantees.

Under the “Recipient” tab, make sure all necessary individuals are listed and their contact information is correct: Name, Title, Address, Email, Telephone…

Send Rebecca the contact information for individuals responsible for civil rights matters in your organization as they may not be listed in TEAM.

TEAM IS USED TO CONTACT YOU

MAKE SURE YOUR CONTACT INFORMATION IS CURRENT~AND~

WE KNOW WHAT YOU DO

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When updating contact information, complete the “Contact For” section at the bottom of the “Recipient” tab.

Check the applicable boxes next to the area the person is responsible for, so when we are looking for a contact for a particular program or area, we can see what areas that contact is involved with.

Contact For:   

TEAM IS USED TO CONTACT YOU

MAKE SURE YOUR CONTACT INFORMATION IS UP TO DATE

~AND~ WE KNOW WHAT YOU DO

CEO Grants MPO

EEO DBE Title VI

504 Echo General FTA Issues

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Another Great Way to Get Information and Stay

CurrentSign-up to receive email notifications when TCR (The Office of Civil Rights) adds information to the webpage.

Look for a red icon at the top of the page to get you started.

Sign up for email updates on this topic.

You can choose what information you would like to receive notifications about

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DBE applies to FTA recipients receiving planning, capital and/or operating assistance who will award contracts exceeding $250,000 in FTA funds in a Federal fiscal year (excluding vehicle purchase and internal expenses, i.e. planning).

There are THREE components to the DBE Requirement; the DBE Program is different from the DBE Goal grantees submit every three years.

The DBE Goal anticipates contracts with FTA funds and the availability of DBEs to perform work on FTA-assisted contracts.

The DBE PROGRAM describes how the agency implements the program or carries out its DBE efforts.

DBE Reports provide information on how the money received is actually spent. MUST be filed in TEAM each June and December

DBE

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Really look at your projected spending and do not overlook contracting opportunities.

If you did not meet your goal, conduct an honest Shortfall Analysis. This is your opportunity to analyze your Goal, determine why you didn’t meet it and what you can do to improve. Was it because a faulty goal setting method was used? Was a change in the market?

Increase your participation by starting with improved RN efforts.- Hold meet and greets, implement mentoring programs, review your SBE

Program and really implement it.

Increase enforcement of Contract Goals.

MEETING YOUR GOAL

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DBE RULE CHANGESSeveral changes: TWO important changes to

the DBE Goal requirement

1. Publication and ConsultationPublication is deemphasized. Recipients must at least publish their goal on their website, but whether to publish the goal in other avenues is at the recipient’s discretion.

Consultation is being given more emphasis. Recipients must make an concentrated effort to reach out to all interested parties and gain their feedback. (Passive or slight efforts such as blast emails without follow-up will not satisfy this requirement.)

This is the time of year to be conducting consultations and FTA is looking closely to see that this requirement is met.

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DBE RULE CHANGESChanges to TWO aspects of the DBE Goal

requirement

2. Goal AdjustmentRecipients are NOT required to adjust their goal (never have been). But if you adjust the goal, submission must now really explain well why you chose to adjust the goal. The emphasis has shifted to explaining why you CHOSE to

adjust and what factors you considered. (Before we expected a comprehensive explanation about why you did not adjust the goal.)

Recipients MUST consider all factors and goal adjustment whether or not a goal adjustment is actually done. Include a statement in the goal submission

about adjustment considerations so it is clear that this requirement was not overlooked.

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EEOEQUAL EMPLOYMENT OPPORTUNITY PROGRAM (EEO)

Does it apply to you?

FTA recipients with 50 or more transit-related employees

AND (1) received $1 million or more in capital or operating

assistance

~ Or ~

(2) received $250,000 or more in planning assistance during the previous fiscal year

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TITLE VIPROHIBITS DISCRIMINATION BASED ON RACE, COLOR,

NATIONAL ORIGIN

“No Person in the U.S. shall, on the grounds of Race, Color, national origin be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”

• 42 U.S.C § 2000d, et seq

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Circular News

A NEW EEO CIRCULAR IS IN THE WORKS

THE (REVISED) TITLE VI CIRCULAR 4702.1B (Effective October 1, 2012)

A (NEW IN 2012) ENVIRONMENTAL JUSTICE CIRCULAR TCR does NOT oversee this

A NEW ADA CIRCULAR IS BEING WRITTEN

EJ and Title VI

• EJ– Executive Order– Applies to Federal

agencies– Recipients

facilitate FTA compliance with E.O.

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• Title VI– Statute– Applies to ALL FTA

recipients– FTA oversees

recipients’ compliance with Title VI regulations

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Environmental Justice• EJ is separated from Title VI circular

to reduce confusion

• FTA developed EJ guidance in circular number 4703.1 “Environmental Justice Policy Guidance for Federal Transit Administration Recipients”

• EJ is not handled by the Office of Civil Rights. The Office of Planning and Environment (TPE) is responsible for EJ matters.

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TITLE VI PROGRAM SUBMISSION

• Applies to all FTA Recipients

• Every 3 years – The Office of Civil Rights has developed a submission schedule similar to the DBE submission schedule.

• Submit your Program at least 60 calendar days prior to expiration date.

• All recipients must have Title VI Program approved by the recipient’s governing entity and MUST submit documentation of review and approval actions.– For State DOTs, the appropriate governing entity is the State’s

Secretary of Transportation or equivalent.

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CONTRACTORS AND TITLE VI

Contractors who operate service for FTA grantees do NOT submit Title VI Programs. They must comply with the grantee’s Title VI program.

For example: A company contracted to provide paratransit service for Transit Agency A must implement the Title VI

Program of Transit Agency A.

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SUBRECIPIENTS AND TITLE VIEach subrecipient must develop and

implement its own Program.

• Even if the organization does not get any funding directly from FTA but gets FTA funding from the State – the organization still must have its own Title VI Program.

• The Subrecipient submits its Program to the State on a schedule established by the State.

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SUBRECIPIENTS AND TITLE VI

The State is responsible providing technical assistance, review and concurrence and oversight of the subrecipient’s Program.

If the Subrecipient is out of civil rights compliance – the State is out of compliance.

The State may assist with the preparation of the Program but the subrecipient Program must be a separate Program.

The subrecipient may use some elements of the primary recipient’s Title VI Program.

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• Provides grantees with guidance on the relationship between Title VI Program requirements and DOT’s Title VI regulation

• Explains what grantees must include in their Title VI programs

• Includes in-depth appendices to provide examples to grantees (Includes graphs, sample forms, and flow charts)

TITLE VI CIRCULAR HIGHLIGHTS

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Organization of Title VI Circular• Chapter 1: Introduction and Background

• Chapter II: Program Overview• Chapter III: General Requirements and Guidelines• Chapter IV: Requirements and Guidelines for Fixed

Route Transit Providers• Chapter V: Requirements for States• Chapter VI: Requirements for MPOs• Chapter VII: Effectuating Compliance with DOT Title VI

Regulations• Chapter VIII: Compliance Reviews• Chapter IX: Complaints• Appendices

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CHAPTER IIIRequirements for ALL Recipients

Eight elements contained in every Title VI Program: Notice of Rights under Title VI How to File a Complaint, copy of complaint form List of Title VI investigations, complaints or lawsuits Public Participation Plan LEP Plan Racial Breakdown of Non-elected Advisory

Councils Narrative Describing Subrecipient Monitoring Board of Directors resolution or meeting

minutes demonstrating the board approved the Title VI Program

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Promoting InclusivePublic Participation among LEP

and Minority Populations

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The Public Participation Plan

• Must contain:– Proactive Strategies,– Procedures, and – Desired Outcomes

• Suggested Participation Plan strategies and examples• Meetings at convenient times and accessible

locations • Utilizing different meeting sizes and formats• Alternative advertising platforms• Varying community interaction

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LEPMust be prepared to meet any language need that arises.

Title VI States

“No person in the United States shall, on the grounds of race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal Financial assistance”.

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LEP Assessment

Four Factor Analysis1. The number or proportion of LEP persons

eligible to be served or likely to be encountered by the program or recipient.

2. The frequency with which LEP persons come into contact with the program.

3. The nature and importance of the program, activity, or service provided by the program to people’s lives

4. The resources available to the recipient for LEP outreach, as well as the costs associated with that outreach

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Developing a LEP PlanRecipients have considerable flexibility in developing a LEP Plan but at a minimum, a LEP Plan shall:

1.Include the results of the Four Factor Analysis, including a description of the LEP population(s) served;

2.Describe how the recipient provides language assistance services by language;

3.Describe how the recipient provides notice to LEP persons about the availability of language assistance;

4.Describe how the recipient monitors, evaluates and updates the language access plan; and

5.Describe how the recipient trains employees to provide timely and reasonable language assistance to LEP populations.

Need Assistance? www.LEP.gov

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Minority Representation on Planning and Advisory

BodiesIf you have: transit-related, non-elected planning boards, advisory councils, committees, or similar groups and the membership is selected by the recipient

Then

You must provide a table depicting the racial breakdown of the membership of those committees, and a description of efforts made to encourage the participation of minorities on such committees

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Monitoring Subrecipients• Primary recipients must monitor subrecipients• Non-compliant subrecipient means

primary recipient is also non-compliant• Primary recipients should assist subrecipients• Primary recipients shall:

– Document process for ensuring all subrecipients are complying with the general and specific requirements .

– Collect and review subrecipient’s Title VI Program

– At FTA’s request, the primary recipient shall request that subrecipients who provide transportation services verify that their level and quality of service is equitably provided.

Requirement to Collect and Report Demographic Data

• Must prepare data regarding demographic and service profile maps and charts and customer demographic and travel patterns

• Demographic and Service Profile Maps and Charts. – Base map of service area that overlays with geographic

data– Demographic map

• Demographic Ridership and Travel Patterns Such As: – Race - National Origin– Color - English Proficiency

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Map Predominantly Minority Areas

Minority threshold of 37% determined by total service area population

CHAPTER VRequirements for States

• State shall include:

– General requirements outlined in Chapter III– Any applicable transit provider requirements– Signed by State Secretary of Transportation– Demographic profile– Demographic maps– Analysis of disparate impacts– Statewide transportation planning process– Pass-through procedures– Procedures to assist subrecipients

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Planning

• All States must conduct planning activities

• Collect Title VI programs from MPOs if they “pass through” planning funds to the MPO

• Collection and storage of subrecipients Programs is a decision for the state

• Self Certification

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Requirements for Program Administration under 5310

• Document FTA funds passed-through without regard to race, color, or national origin

• States prepare/maintain but not report unless requested by FTA:– Record of funding request– Description of competitive selection process– Agency’s selection Criteria

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THE APPENDIX IS YOUR FRIEND

Appendices are meant to provide practical guidance and include checklists, examples, tables… for FTA recipients to consult when preparing their Title VI program

Use them and encourage others to do the same

Check out our civil rights training page on the website

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Americans with Disabilities Act

Proposed ADA Circular FTA C 4710.1

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Proposed ADA Circular• FTA is proposing the phased development

of a new ADA Circular FTA C 4710.1

• It is being developed by chapter (about 12 chapters total)

• There is a draft of the Circular on the FTA ADA home page “Proposed ADA Circular Chapter”

• Watch for opportunities to submit comments on the current proposed chapter and ideas for issues to cover in future chapters

THE ADA FINAL RULE

DOT issued an ADA Final Rule March 15, 2015“Reasonable Modification”

This is not a new rule but is intended to fill clarify or fill a gap in the regulations, particularly as it pertains to paratransit.

“Undue hardship” and “Safety” are terms of art and key considerations under this Final Rule.

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THE ADA FINAL RULE

Transit agencies must provide reasonable accommodations by making changes to policies, practices, and procedures if:• needed by an individual with a disability to enable

him or her to participate in the recipient’s program or activity,

• unless providing such accommodations are an undue financial and administrative burden or constitute a fundamental alteration of the program or activity.

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DOOR-TO-DOOR ASSISTANCE IS A REASONABLE ACCOMMODATION

For example: If the agency policy is curb-to-curb assistance but the sidewalk is slick and it is not an undo hardship for the driver to get off the bus and help the passenger get on the bus, then the driver must do that.

- It won’t cause a system disruption for the driver to help the passenger and it is safer for the passenger who is a fall risk.

Personal care service is NOT a reasonable accommodation. Passengers must still have their own Personal Care Attendant when needed.

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REASONABLE MODIFICATION POLICY

Regional Civil Rights Officers will NOT be reviewing every grantee’s Reasonable

Modification Policy.

- Policies will be looked at during oversight reviews and on a case-by case basis in the interim.

Remember FTA Office of Civil Rights offers a lot of technical assistance materials to help you.

Familiarize yourself with them and use them.

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THE ADA

Other rules and regulations to remember

The following rules are not new. They generate frequent questions so they are included here as

a reminder.

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The definition of “wheelchair” has been refined

The reference to “three- or four-wheeled devices” has been changed to “three- or more wheeled devices”

This change was made in light of advances in wheelchair design, with many power wheelchairs now having more than four wheels; these should not be excluded from the definition of “wheelchair” solely on the basis of having a larger number of wheels

Mobility Device Size and Type

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The rule provides that transit operators must carry a wheelchair and occupant if the lift and vehicle can physically accommodate them, unless doing so is inconsistent with legitimate safety requirements

“Legitimate safety requirements” includes such circumstances as a wheelchair of such size that it would block an aisle, would be too large to fully enter a railcar, would block the vestibule, or would interfere with the safe evacuation of passengers in an emergency

Mobility Device Size and Type

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Consistent with the rule before this revision, a transit provider cannot impose a limitation on the transportation of wheelchairs and other mobility aids based on the inability of the securement system to secure the device to the satisfaction of the transportation provider.

It would be inconsistent with the rule to deny service to people who use wheelchairs just because particular devices may be problematic from a securement point of view.

Mobility Device Size and Type

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Requirement: carry devices that fit on the lift and vehicle, even if the devices exceed 30” x 48” footprint or weigh more than 600 pounds

No requirement to carry devices that do not fit on the lift or vehicle

No requirement to retrofit vehicles

No requirement to procure vehicles or lifts that exceed the ADA requirements – see e.g., 49 CFR part 38, specifically 38.23(b) and (d).

Mobility Device Size and Type

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Service Animals

• The new DOJ rule (published September 15, 2010) defines some terms, such as service animal, differently than the DOT rule.

Transit agencies should not change their service animal policy on the basis of the DOJ rule, since the DOT rule applies to transit agencies.

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Emotional Support Animals

• Per the regulation at 49 CFR 37.167(d), a service animal is “trained to work or perform tasks for an individual with a disability”

• If an animal’s only function is to provide emotional support or comfort, that animal would not fall under the regulatory definition of a service animal.

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OPTIONS FOR PROVIDING PARATRANSIT

• Traditional Paratransit - where you have separate fixed route and paratransit vehicles operating alongside one another.

• “Comingling” - under this approach the fixed route bus goes off route ONLY to pick up a paratransit rider. This is ONLY possible if the person is paratransit eligible. ALL traditional paratransit rules and requirements in Subpart F of Part 37 apply. For example: the service area, response times, fares, hours and days of service and all the other paratransit requirements apply.

• Demand Responsive – a system that permits user-initiated variations from routes and/or schedules. Under this type of system the transit system must provide “equivalent service” to all passengers. These requirements are found in 37.171.

This area is very confusing and determining the type of service being offered is difficult. So it can be difficult to know what rules apply and if the current service is being implemented properly. TCR has developed a checklist.

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Questions or concerns about ADA or Paratransit

Home Page >> Civil Rights >> Americans with Disabilities Act >> ADA Technical Assistance

FTA ADA Assistance Line 1-888-446-4511

Email the FTA ADA Team through FTA’s Contact Us tool on our website

SURF the Civil Rights ADA Webpage, particularly

the dredf “Topic Guides on ADA

Transportation”

ADA TECHNICAL ASSISTANCE

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NTI TRAINING: DBEJuly 21 -23 Ames, IA

NTI TRAINING: Title VI and Public TransitNov 9-10 Arlington Heights, IL

UPCOMING TRAINING

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Kevin OsbornRegion VII Civil Rights Officer, Lakewood, CO

Office of Civil Rights, Federal Transit Administration

12300 West Dakota Ave.Lakewood, CO 80228

Direct: 720-963-3341  | Kevin.Osborn@dot.gov