Safety and Liability by Ned Einstein Defending Contractors Part 1: Lead Agencies and Brokers
For decades, motorcoach providers have provided commuter-express service, under contract, to transit agencies (and, occasionally, to municipalities, counties or regions which do not have formal transit agencies). Particularly in the past 20 years, this role has expanded: Motorcoach providers are increasingly providing service on local and regional routes, often with regular buses – not even motorcoaches.
Similarly, many motorcoach companies also own school buses and provide school bus service, under contract, to school districts. For decades, roughly a third of all school bus service has been contracted out, and this percentage has remained surprisingly consistent. For the same reasons that contracted transit service has been expanding, I expect contracted school bus service to soon expand as well.
Other modes, like non-emergency medical transportation (NEMT) or “ambulette” service operate solely under contract to funding agencies or their brokers. These contractors have far worse problems. Their “lead” or funding agencies are not even transportation bureaucracies (like transit agencies or departments of transportation), but usually healthcare agencies. In some cases, the lead agencies are not even healthcare agencies.. A few years ago, non-emergency services (NEMT, Medicaid and VA transportation) in New Jersey were “managed” by the state’s Department of the Treasury.
Paratransit services are also contracted out for the most part, where the lead agencies are mostly transit agencies. In small, rural communities, transit service to the general public is often demand-responsive; some of this is provided by public agencies while some services are contracted out.
Finally, a percentage of special needs school bus transportation is contracted out – often to those contractors which provide general education pupil transportation to the same school districts. This practice is less common because the students who use these services are far more vulnerable, and many school districts like to maintain tighter control over the quality of service. In contrast, transit and healthcare agencies responsible for paratransit and non-emergency services cannot 32 • National Bus Trader / April, 2021
wait to pawn off the responsibilities to deal with them to contractors, particularly as the contractors indemnify them, and “hold them harmless,” for all errors and omissions. When brokers are shoehorned in to relieve lead agencies from even the fumes of supervisorial responsibility, these agencies are insulated by two layers of indemnification. Trends, Trials and Tribulation The significant amount of public transportation service contracted out reflects a number of factors including:
Contractors almost always provide the service for less money than public agencies. • Contractors almost always provide the service for less money than public agencies – even accounting for the often bloated bureaucracies still ostensibly in charge of managing and monitoring service and the high costs of service, overall, as a result. While thoroughly indemnified, these lead agencies and brokers still control many of the most critical factors which affect safety. The most obvious of these factors are the design of routes, the selection of stops, the establishment of schedules and/or the assignment of trips.
• In the case of shared-ride demandresponsive services, they are usually contracted out because they are far more complex to design (when any semblance of design is even performed) and exponentially more complex to operate. Especially where design is non- or barely-existent, operations are even more complex. Transit agencies at least have transit bureaucrats in charge, and most agencies contain staff with varying degrees of skill in at least setting parameters for their scheduling software. The same is not true for school district bureaucrats. However, the complexity of demand-responsive school bus service (mostly for “special needs” students) is far less than paratransit or NEMT service. In special needs service, routes and schedules are largely the same from day to day, all year long (notwithstanding cancellations). Along with a greater concern for more vulnerable students, special
needs school transportation is less often contracted out.
• Regarding fixed route general education school bus service, many or most school districts have a weak command of route design, stop selection and the array of things that can go wrong when they are not designed properly (see http://bit.ly/TAWhopiksstps; h t t p : / / b i t . l y / TA E v a l S t p s ; h t t p : / / b i t . l y / TA D s m g B e t w S t p s ; http://bit.ly/TAStpPos; http://bit.ly/ TACrsOrient; http://bit.ly/TABsSpsLndMns). However, the same routes operate largely unchanged throughout the school year. Plus, for decades, routes, schedules and stops have been established by software (which simply optimizes the chaos from the lack of design). The principle issue related to contracting out service is cost.
• As noted, contractors are universally required to indemnity or “hold harmless” their lead agencies – effectively relieving themselves of any accountability for incidents. (Enlightened attorneys coupled with competent experts can usually pierce this accountability – even while the contractors pay for its monetary components.) In reality, lead agencies commit many errors and omissions which contribute to incidents, and/or which create an operating environment which makes it challenging and/or unprofitable for their contractors to avoid the risks.
• Unlike most public agencies, contractors’ drivers are typically not unionized. Even when they are (the larger contractors more commonly are), the lead agencies can screen out the onerous union provisions by disallowing them in the requests for proposals to which contractors are required to submit bids. • Most elusive of these factors – and a central theme that will weave in and out of this series of installments – is that few plaintiffs’ attorneys bother to file against lead agencies or brokers who are often largely (and in some cases almost solely) responsible for the incidents. While excellent, honest hardworking plaintiffs’ attorneys exist, they hardly abound. As a result of these and other factors, lead agencies effectively operate with near-complete impunity – again, often insulated by a second layer of brokers. With no accountability (or rare or marginal accountability at best), in a society lacking accountability in general,
