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PENNSYLVANIAPUBLIC UTILITY COMMISSIONHarrisburg, PA 17105-3265Public Meeting held December 22, 2016Commissioners Present: Gladys M. Brown, ChairmanAndrew G. Place, Vice ChairmanJohn F. Coleman, JrRobert F. PowelsonDavid W. SweetApplication for Emergency Temporary Authority of Niazh, Inc. t/a Saiva Medical Transportation for the right to transport, as a common carrier, by motor vehicle, persons who are clients of My Dayhouse Achievement Center, in paratransit service, between points in the counties of Bucks and Montgomery A-2016-2559380 A-6419043 A-2016-2576951OPINION AND ORDERBY THE COMMISSION:Before the Pennsylvania Public Utility Commission (Commission) for consideration and disposition are the Exceptions filed by Niazh, Inc. t/a Saiva Medical Transportation (Applicant or Niazh) on December 13, 2016, to the Recommended Decision (R.D.) of Administrative Law Judge (ALJ) Marta Guhl, issued on December 12, 2016. The Recommended Decision denied the Application for Emergency Temporary Authority (ETA) filed by Niazh on November 22, 2016. For the reasons stated below, we will grant the Exceptions, reverse the Recommended Decision, and grant the ETA. History of the ProceedingOn August 1, 2016, Niazh filed an application at Docket No. A-2016-2559380 for permanent authority (Application) for the right to transport, as a common carrier by motor vehicle, persons in paratransit service, from points in the counties of Berks, Bucks, Chester, Delaware, Lehigh, Montgomery and Philadelphia, to points in Pennsylvania, and return. Notice of the Application was published in the Pennsylvania Bulletin on August 13, 2016. 46 Pa. B. 5049. On August 18, 2016, a joint protest was filed by Suburban Transit Network, Inc. t/a TransNet, Willow Grove Yellow Cab Co., Inc. t/b/d/a Bux-Mont Yellow Cab and t/d/b/a Bux-Mont Transportation Services Co., Easton Coach Company t/a Norristown Transportation Company, Tri County Transit Service, Inc., and Bucks County Transport, Inc. (Joint Protestants or TransNet). On August 19, 2016, Rover Community Transportation, Inc., filed a protest to the Application. Thereafter, Suburban Emergency Medical Services and Keystone Transportation, LLC filed protests on August 25, 2016. The Application was subsequently scheduled for a hearing for December 9, 2016. On November 22, 2016, Niazh filed its ETA at Docket No. A-2016-2576951 seeking to begin to transport persons, who are clients of My Dayhouse Achievement Center (MDAC), in paratransit service between points in Bucks and Montgomery Counties. The Applicant’s proposed service under the ETA would be limited to services originating and terminating at MDAC, which is located in Chalfont, Pennsylvania, in Bucks County. In response to the ETA, TransNet notified the Commission that it was able to provide the requested transportation services and thus opposed the ETA. R.D. at 3. By Order entered December 8, 2016 (December 8, 2016 Order), the Commission directed that the ETA be addressed at the hearing scheduled on December 9, 2016, for the Application proceeding. In the December 8, 2016 Order, we directed the presiding officer to issue a Recommended Decision on or before December 12, 2016, and required any Exceptions to be filed by December 13, 2016. The initial hearing was held on December 9, 2016. The Applicant was represented by counsel, presented two witnesses and offered six exhibits, which were entered into the record. The Joint Protestants were represented by counsel, presented three witnesses and offered five exhibits, which were entered into the record. The hearing produced a transcript of 166 pages. In her Recommended Decision issued on December 12, 2016, the ALJ determined that there is no basis for a finding of immediate need in this proceeding and recommended that the ETA be denied. As previously indicated, the Applicant filed Exceptions on December 13, 2016. DiscussionLegal StandardEmergency temporary authority is limited duration operation authority which authorizes the transportation of passengers to meet an emergency situation and when time or circumstances do not reasonably permit the filing and processing of an application for transportation authority. See 66 Pa. C.S. §§ 1103(d) and 2509; and 52 Pa. Code § 3.383(b)(1). An ETA may normally be filed only when a corresponding application for permanent authority has been filed. If the Commission grants an ETA, it will be only for an initial period not to exceed sixty days. 52?Pa. Code § 3.383(b)(4)(i). The standards for evaluation of an application for ETA are set forth in 52 Pa. Code § 3.384(b) and provide as follows: (b) Standards for determination of need. (1) General. Grants of [Temporary Authority (TA)] or ETA shall be made upon the establishment of an immediate need for the transportation of passengers or of household goods in use. Requests involving service to cities, counties, townships or other defined areas warrant approval when supported by evidence that there is a need for service to or from a representative number of points in each city, county, township or areas and that there is a reasonable certainty that the service will be used. (2) Immediate need. A grant of TA or ETA will be made when it is established that there is or soon will be an immediate transportation need. A showing of immediate need may involve passenger service to a new or relocated plant, an origin or destination not presently served by carriers, a discontinuance of existing service, failure of existing carriers to provide service or comparable situations which require new carrier service before an application for permanent authority can be filed and processed. An immediate need will not normally be found to exist when there are other carriers capable of rendering the service unless it is determined that there is a substantial benefit to be derived from the initiation of a competitive service. (3) Failure to provide equipment. TA or ETA may be granted when existing authorized carriers are unable or refuse to furnish equipment necessary to move passengers or household goods in use to meet an immediate transportation need. (4) General bases for disapproval. Applications for TA or ETA may be denied for the following reasons: (i) Failure to meet statutory standards and this title. (ii) Unfitness of the applicant. Before addressing the Exceptions, we note that any issue or Exception that we do not specifically address shall be deemed to have been duly considered and denied without further discussion. The Commission is not required to consider expressly or at great length each and every contention raised by a party to our proceedings. Consolidated Rail Corp. v. Pa. PUC, 625 A.2d 741 (Pa. Cmwlth. 1993); also see, generally, University of Pennsylvania v. Pa. PUC, 485?A.2d 1217 (Pa. Cmwlth. 1984).ETANiazh averred that it filed the ETA while its protested Application for permanent authority is pending so that it may fill an immediate and compelling need for the paratransit services of MDAC. According to the Applicant, MDAC is currently operating as a private pay facility. It was set to open for the public on December 1, 2016, to provide adult day care services. Niazh explained that MDAC, as part of its overall services, arranges for paratransit service for its clientele between MDAC and other destinations including medical facilities and private residences. The Applicant argued that existing paratransit providers are not capable of adequately providing these services due to difficulties with cultural and language barriers and the lack of any experience in monitoring health-related concerns. ETA at 1. In support of its ETA, Niazh submitted the verified supporting statement of Ms. Damini Patel, Director of MDAC. Ms. Patel stated that MDAC has an immediate and compelling need for a qualified and skilled paratransit company to provide transportation services between MDAC, medical facilities and the private residences of MDAC’s clientele. According to Ms. Patel, MDAC’s clientele consists of members of the public who are part of the South Asian Community. She asserted that MDAC’s immediate and compelling need is for a paratransit provider that can adequately meet the demands of its clientele with cultural and language barriers, as well as health-related issues. In particular, the language barrier presents a large challenge, and MDAC believes that this can be best served by Niazh. Ms. Patel contended that the transportation needs of the facility involve six to eight trips per day. Being able to deliver adequate paratransit services to its clientele, Ms. Patel avers, is an important part of MDAC’s overall care. A failure to meet the demands of its clientele adversely affects a significant number of people, Ms. Patel stated. ETA at App. B. In further support of the ETA, Niazh submitted a projected income statement for the twelve month period ending December 15, 2017, Niazh’s 2015 federal income tax return, and the Applicant’s verified statement. The Applicant’s verified statement provided information related to Niazh’s purported financial and technical expertise to provide the proposed service. ETA at App. A. Additionally, Niazh argued that, given the recent issuance of the final rulemaking to reduce barriers to entry for passenger motor carriers, the Commission should carve out the ETA for approval because it is the most pressing portion of its Application and not allow protests and the protracted litigation process to delay the delivery of needed transportation services to MDAC. ETA at 2 (citing Final Rulemaking Amending 52 Pa. Code Chapters 1, 3, 5, 23 and 29 to Reduce Barriers to Entry for Passenger Motor Carriers and to Eliminate Unnecessary Regulations Governing Temporary and Emergency Temporary Authority, Docket No. L-2015-2507592 (Order entered October 27, 2016) (Final Rulemaking Order)). Regarding the Applicant’s technical expertise, Niazh provided testimony that since 2011 it has provided basic life support ambulance service under a license issued by the Pennsylvania Department of Health. Tr. at 46-47; Applicant’s Exh. 3. This service has included ambulance service to the Philadelphia Prison System which has involved the transportation of 8,000 to 10,000 inmates. Tr. at 47. In addition to experience managing the day-to-day operations of the ambulance service, Mr. Malik testified that he previously managed his family’s taxicab business in New Jersey from 2007 to 2011 and has successfully renovated and operated a car wash business. Tr. at 45-46, 48-49.Mr. Malik also testified about the facilities used to operate the ambulance business and his business plan to operate the paratransit services out of the same facility. Tr. at 49-50. He also stated that the record maintenance plan such as trip logs, call logs, vehicle maintenance and driver records and the communications network will overlap with the existing maintenance and communication plans utilized by the ambulance business. Id. at 50-51. Currently, the ambulance business has eight employees, seven of whom are emergency medical technicians (EMTs) who share duties involving dispatching, administrative assistance and driving. Mr. Malik testified that he plans to use these employees to support the paratransit service and will hire additional drivers if necessary. Id. at 51-53. Next, Mr. Malik testified about the driver hiring standards for the proposed service including driver history checks, criminal background checks and prohibitions on using alcohol or controlled substances as well as the proposed review and reporting requirements. Tr. at 53-58. According to the Applicant, all drivers will take on-line safe driving courses and obtain cardiopulmonary resuscitation training. Additionally, Mr. Malik testified that he will require most of the drivers to hold EMT certification for the proposed ETA service and to use only bilingual drivers who can communicate with MDAC’s clients of South Asian descent. Id. at 54-56. Niazh presented testimony related to the two new vehicles (minivans) it proposes to purchase for the ETA and the periodic maintenance plan to ensure continuing compliance of those vehicles with the Commission’s safety standards. Tr. at 59-65. Regarding financial fitness, the Applicant presented evidence related to its anticipated profit submitting a projected income statement and a 2015 tax return. Mr. Malik also testified that he owns three ambulances and has access to additional assets such as the medallion of the New Jersey taxicab company. Id. at 69, 72-75. Finally, the Applicant presented evidence related to its ability to obtain sufficient vehicle liability insurance and submitted a proposed tariff for the ETA service. Id. at 65-66, 75-76, 108-109. ALJ’s Recommended DecisionIn her Recommended Decision, ALJ Guhl made seventeen Findings of Fact, and reached six Conclusions of Law. R.D. at 3-5, 7. The Findings of Fact and Conclusions of Law are incorporated herein by reference and are adopted without comment unless they are either expressly or by necessary implication overruled or modified by this Opinion and Order.The ALJ determined that Niazh has failed to meet its burden of proof to establish that there is an immediate need in this case. According to the ALJ, MDAC does not appear to be fully open for business and has transportation arranged for the clients it currently serves. The ALJ also found that TransNet is capable of providing paratransit services to MDAC’s clients at this time. Moreover, the ALJ cited to the evidence that TransNet already provides service to one of MDAC’s clients with no issues or complaints. R.D. at 6.Additionally, the ALJ explained that Ms. Patel’s verified statement and testimony provided no specific information regarding the number of clients who require immediate service or that those clients are not currently being served. The ALJ determined that Ms. Patel’s testimony did not provide sufficient information to establish immediate need in this matter and, thus, there is no basis to find immediate need under 52 Pa. Code § 3.384(b)(2). Thus, the ALJ recommended the ETA be denied but that the Application for permanent authority should proceed for disposition. R.D. at 6-8.Exceptions In its first Exception, Niazh argues that the ALJ erred in finding that the Applicant did not demonstrate an immediate need for the services proposed by the ETA. The Applicant asserts that the Recommended Decision fails to acknowledge the evidence offered through the verified statement and testimony of Ms. Patel, director of MDAC, and the testimony of Niazh’s president, Mr. Malik. According to the Applicant, this evidence clearly demonstrates the immediate need for the proposed services and the Applicant’s ability to fulfill MDAC’s transportation demands. Exc. at 6-7Niazh contends that the Joint Protestants failed to refute the following testimony which the Applicant proffered in support of its ETA and that the ALJ failed to acknowledge or consider it: MDAC is particularly focused on meeting the needs of elderly members of the South Asian community in all aspects of providing day care services;The current transportation needs of the newly-opened facility involve six to eight trips per day and that this need will continue through the foreseeable future, between their homes and MDAC and between MDAC and medical facilities;Because MDAC’s clientele are elderly and predominantly from the South Asian community, they require paratransit services that are provided by a company that is familiar with their culture and can effectively communicate with them;Most of MDAC’s elderly passengers suffer from major health issues and would benefit from a skilled and trained paratransit provider who is equipped to monitor their vital signs, blood pressure levels, glucose levels and other medically-important information;A failure to deliver adequate paratransit services as part of the overall care provided to its clients will adversely impact MDAC’s ability to successfully complete [sic] in the adult day care services market; andThe Applicant’s proposed services are directly responsive to the immediate needs of MDAC. Exc. at 5.The Applicant’s second Exception asserts that the ALJ failed to consider whether the Joint Protestants are able to provide the paratransit services demanded by MDAC. Instead, Niazh argues, the ALJ simply referred to the ability and availability of the Joint Protestants to provide paratransit services to MDAC. Further, the Applicant contends that the Recommended Decision does not address the inadequacies of the paratransit services offered by TransNet or the shortcomings of any of the Joint Protestants’ proffered solutions. Exc. at 7.According to the Applicant, the ALJ merely referenced testimony offered by the Joint Protestants indicating that they have provided trips to one client of MDAC without complaint. Regarding this service, Niazh proffers that it is notable that TransNet did not indicate whether the particular client is from the South Asian community or whether the individual speaks English. Regardless, the Applicant argues that the provision of service to one MDAC client does not establish or even suggest that the Joint Protestants are able to respond to the transportation needs described by Ms. Patel. Id.In its third Exception, the Applicant argues that the ALJ failed to address whether a substantial benefit would be derived from the initiation of the competitive service proposed in the ETA as required under 52 Pa. Code § 3.384(b)(2). Niazh contends that, although the Joint Protestants are capable of rendering paratransit services to the clients of MDAC, these services are not adequate due to language and cultural barriers, as well as the health-monitoring needs of MDAC’s clientele. According to the Applicant, the unique aspects of Niazh’s business model are tailored to meet these needs, and thus a substantial benefit is to be derived for the elderly members of the South Asian community served by MDAC by initiating the competitive services proposed in the ETA. Moreover, Niazh asserts that MDAC itself would substantially benefit from the proposed services through the Applicant’s ability to offer the whole package of adult day care services required by its clientele, including transportation provided by drivers who can effectively communicate with them. Exc. at 9. The Applicant’s fourth Exception argues that the ALJ erred in failing to find that Niazh has fulfilled the remaining requirements of the ETA application standards under 52 Pa. Code §§ 3.383 and 3.384. The Applicant contends that it presented evidence through the testimony of Mr. Malik showing its extensive technical expertise in the transportation industry, a solid business plan for providing the proposed services, and a commitment to providing quality-based and skilled paratransit services. Exc. 11-14. DispositionThe Commission may grant an ETA upon the establishment of an immediate transportation need, either presently existing or one expected in the near future. Examples of an immediate need may involve passenger service to an origin or destination not presently served by carriers or the failure of existing carriers to provide service. Ordinarily, the Commission will not make a finding of immediate need if there are other carriers capable of providing the service unless we determine that there is a substantial benefit to be derived from the initiation of a competitive service. 52 Pa. Code § 3.384(b)(2). The Applicant proffers that MDAC’s clients are elderly and predominantly from the South Asian community. It asserts that MDAC’s clients need the services of a paratransit company that is familiar with their culture and can effectively communicate with them. ETA at App. B; Tr. at 22. MDAC requires bilingual drivers who can speak languages such as Punjabi. Tr. at 23. Additionally, MDAC contends that its clients suffer from health issues and would benefit from a paratransit provider equipped to monitor vital signs, blood pressure levels, glucose levels and other medically-important information. ETA at App. B. Specifically, Ms. Patel testified about two instances in which clients being transported to MDAC needed immediate medical assistance upon evaluation by MDAC nursing staff upon their arrival. Tr. at 21-22. Ms. Patel emphasized that it is important for an EMT to be present during transportation who can properly communicate with MDAC’s clients. ETA at App. B; Tr. at 10. Niazh contends that it has sufficient staffing to meet the unique transportation needs of MDAC by providing drivers and EMTs who speak Hindi, Urdu or Punjabi, as well as English. Tr. at 52-53. The Applicant asserts that its business model is tailored to overcome the specific language and cultural barriers experienced by MDAC’s clients, while also meeting their health-monitoring needs. Exc. at 9. The Joint Protestants counter that they are fully capable of providing the proposed paratransit service to MDAC. The executive director of TransNet, Susan Kopystecki, testified that TransNet is comprised of several member companies. TransNet has its own paratransit operating authority and also acts as a broker in order to subcontract transportation requests through its member companies. Tr. at 123. According to their protest, the Joint Protestants have the authority to provide the services proposed by the Applicant, including the service within the territory of the ETA. Ms. Kopystecki testified that TransNet has 315 vehicles, half of which are equipped with wheel-chair lifts. Tr. at 128. She also testified that the Joint Protestants utilize a real-time scheduling software program called Ecolane throughout all of their operating territories. Furthermore, the Joint Protestants meet a variety of transportation needs including school transportation to special needs students, persons with disabilities programs, and medical assistance transportation. Ms. Kopystecki further testified that TransNet has a contract with Montgomery County to provide all of the transportation services for the Medical Assistance Transportation Program. Tr. at 126.Regarding the ability to serve non-English speaking riders, Ms. Kopystecki stated that TransNet uses a translation service called LanguageLine. This service involves a three-way call between the passenger, TransNet, and a translator which facilitates the transportation arrangements. LanguageLine is used infrequently by TransNet, usually no more than three times a month. Ms. Kopystecki also testified that TransNet serves portions of the Korean and Hispanic communities, but to her knowledge none of their drivers speak Korean or Spanish. According to Ms. Kopystecki, TransNet has not encountered problems with Korean or Hispanic passengers not being able to communicate with their drivers. Tr. at 129-130. Finally, the Joint Protestants note that they provided medical assistance transportation to one of MDAC’s clients twenty-three times in 2016. According to TransNet, they provided this transportation without the service of bilingual drivers and there were no records of reservation problems with this individual. Tr. at 158-159.Upon review of the record evidence, we find that the Applicant has satisfied its burden of showing immediate need for the proposed service pursuant to 52 Pa. Code § 3.384(b)(2). Here, Niazh has shown that MDAC requires specific transportation needs for its elderly clients who experience language and cultural barriers and require ongoing medical monitoring of their health needs. The Applicant has shown that it can meet these unique needs by providing drivers and personnel who are bilingual and can communicate with MDAC’s clients. Additionally, the Applicant has shown that it can provide EMT staff during the proposed trips to help monitor and converse with the clients to assess their health needs while providing the transportation service. Although the Joint Protestants are capable of rendering the proposed service, they have not shown that they are capable of meeting the specific requirements of MDAC by providing drivers or EMT-certified personnel who can effectively communicate with the clients during their transportation to or from MDAC. Rather, TransNet is only able to provide a translation service during the phone call in which the trip is being arranged. Moreover, the Joint Protestants did not provide evidence that they would provide a bilingual, EMT-certified individual during the proposed service who could help monitor the health related needs of the elderly clients. Here, TransNet has provided service to one client of MDAC during 2016. Thus, the Joint Petitioners have rendered service to MDAC. However, this does not mean that TransNet has met the specific transportation requirements of MDAC’s clients. Under the circumstances, we find that the Applicant has made a sufficient showing that its service will provide a substantial benefit to the transportation needs of MDAC’s clients and that the initiation of Niazh’s competitive service is appropriate in this case. Moreover, the Applicant has demonstrated the requisite technical and financial ability to provide the proposed service pursuant to the ETA. Accordingly, we shall grant the Applicant’s Exceptions, reverse the Recommended Decision, and grant the ETA. We stress that our discussion herein is limited to the ETA before us and that our determination shall have no bearing on the final disposition of the Application for permanent authority. ConclusionBased upon our review of the record evidence and applicable law, we shall grant the Exceptions, reverse the Recommended Decision, and grant the ETA, consistent with this Opinion and Order; THEREFORE, IT IS ORDERED: 1.That the Exceptions filed by Niazh, Inc. t/a Saiva Medical Transportation on December 13, 2016, to the Recommended Decision of Administrative Law Judge Marta Guhl are granted. 2.That the Recommended Decision of Administrative Law Judge Marta Guhl issued on December 12, 2016, is reversed. 3.That the application for Emergency Temporary Authority filed by Niazh, Inc. t/a Saiva Medical Transportation on November 22, 2016, is hereby approved, granting the following right:To transport, as a common carrier, by motor vehicle, persons who are clients of My Dayhouse Achievement Center, in paratransit service, between points in the counties of Bucks and Montgomery.The transportation authority is subject to the terms and conditions set forth herein. 4.That Niazh, Inc. t/a Saiva Medical Transportation shall not engage in any transportation authorized by this Opinion and Order until the following are submitted to and approved by the Commission:a.A Form E Certificate of Insurance evidencing compliance with the Commission’s insurance requirements. b.An acceptable tariff. Instructions for filing of a tariff can be found at: puc.general/onlineforms/pdf/Initial_Tariff_Instructions.pdf.5.That upon compliance with the requirements set forth in this Opinion and Order, Niazh, Inc. t/a Saiva Medical Transportation shall be granted Emergency Temporary Authority to provide service as set forth in Ordering Paragraph No. 3, above.6.That in the event Niazh, Inc. t/a Saiva Medical Transportation has not, on or before thirty days from the date of entry of this Opinion and Order, complied with the requirements hereinbefore set forth, the application for Emergency Temporary Authority shall be dismissed without further proceedings.7.That the grant of Emergency Temporary Authority shall have no bearing on the final disposition of the application for permanent authority filed by Niazh, Inc. t/a Saiva Medical Transportation at Docket No. A-2016-2559380.8.That the Commission may suspend the right to operate under the Emergency Temporary Authority if the service is provided in violation of the terms of this Opinion and Order or our Regulations. 9. That Niazh, Inc. t/a Saiva Medical Transportation shall be subject to assessments pursuant to 66 Pa. C.S. § 510.10. That Niazh, Inc. t/a Saiva Medical Transportation shall be subject to inspection by Commission enforcement officers. 295021018161000BY THE COMMISSIONRosemary ChiavettaSecretary(SEAL)ORDER ADOPTED: December 22, 2016ORDER ENTERED: December 22, 2016 ................
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